Re the Medical Practice Act 1992 and Mr. Monier Gad
[2006] NSWMT 4
•21 June 2006
New South Wales
Medical Tribunal
CITATION: Re the Medical Practice Act 1992 and Mr. Monier Gad [2006] NSWMT 4 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
Mr. Monier GadFILE NUMBER(S): 40024 of 2005 CORAM: Solomon, DCJ - Giuffrida, Dr M - Yeo, Dr G - Ettinger, Ms G CATCHWORDS: Review of Deregistration Order LEGISLATION CITED: Medical Practice Act 1992 (NSW)
Poisons and Therapeutic Goods Act, 1966
Pharmacy Act, 1964CASES CITED: Ex Parte Tziniolis 84 WN (Part 2);
Shariff, Medical Tribunal, 2.10.90;
Eman Faraj & Ors. v. Finworld Pty Ltd, 28.4.03DATES OF HEARING: 27.3.06, 28.3.06, 29.3.06 DATE OF JUDGMENT: 21 June 2006 ORDERS: 1. The Applicant's Application fails. 2. The Applicant is not permitted to make a further application pursuant to S.94(1)(d) of the Medical Practice Act, 1992 for a period of three years from the date of this Determination 3. The Applicant to pay the Respondent's costs of the Application.
JUDGMENT:
JUDGMENT
1 On 7 June 2005 Mr. Monier Gad ("the Applicant") made an application pursuant s.92 and s.94 of the Medical Practice Act, 1992 ("the Act") for a review of the order of the Medical Tribunal made 19 October 2001 which ordered that the Applicant's name be removed from the Register of medical practitioners.
BACKGROUND
2 The Applicant was born in Egypt on 19 January 1950. The Applicant migrated to Australia in 1974 with his family. The Applicant obtained his Bachelor of Medicine, Bachelor of Surgery degrees from the University of Sydney in 1982. On 6 April 1983 the Applicant was registered as a medical practitioner. The Applicant's registration was conditional upon him practising in a public hospital or private hospital or other institutions approved by the Medical Board for a period of twelve months. Prior to the expiration of the twelve months the conditions on the Applicant's registration were extended to two years, having regard to adverse reports about his performance.
3 Despite the conditions of his registration the Applicant between 2 December 1984 and 3 March 1985 worked as a medical practitioner for a medical entrepreneur. During the course of his employment the Applicant was party to a fraudulent scheme in which Medicare payments were claimed for long consultations which did not occur and for completing Medicare claim forms with regard to persons who were named on genuine patients Medicare cards without the Applicant providing medical services to those persons. The fraudulent scheme was the subject of investigation. The Applicant was charged with 26 charges pursuant to the Health Insurance Act arising out of his activities between 2 December 1984 and 3 March 1985. On 22 June 1986 the Applicant was convicted of those charges and fined $50.00 in respect of each charge and ordered to pay costs of $10,000.00.
4 In 1986 the Applicant commenced work as a general practitioner working in a sole practice at 4/3 Firth Street, Arncliffe ("the Arncliffe practice").
5 The Health Care Complaints Commission ("the Respondent") in May 1989 brought a complaint to the Medical Tribunal of New South Wales. The particulars of the complaint were twofold. Firstly, the fact of the Applicant's convictions of 22 June 1986 and secondly, the fact that the Applicant worked in 1984 and 1985 in breach of the conditions imposed on his registration.
6 The differently constituted Medical Tribunal in September 1990 found that the Applicant was guilty of professional misconduct. The Applicant was suspended from practice for two months. The Medical Tribunal imposed conditions on the registration of the Applicant regarding him keeping a profile of his consultations for a period of three years from September 1990.
7 The Department of Health on 23 August 1995 had dealings with the Applicant in respect of his prescribing of anabolic steroids. The Applicant gave an undertaking that he would not prescribe anabolic steroids except on the advice of an endocrinologist.
8 On 16 April 1998, Patient A, a sixteen year old female attended upon the Applicant complaining of being underweight. The Applicant consulted with patient A on six further occasions. The Applicant injected patient A with a substance and provided her with pills. During the course of treatment Patient A complained to the Applicant that she suffered from a rash and a sore throat. On 10 June 1998 patient A attended upon Dr. George, a general practitioner. Patient A informed Dr. George that she suffered from an increase of hair on her face, body and limbs, cystic acne, a deepening of her voice and disruption of her menstrual cycle. Patient A provided Dr. George with the pills which had been provided to her by the Applicant. Dr. George had the pills analysed and they were found to be 40mg Andriol capsules. Andriol is an anabolic steroid. Patient A was the subject of pathology tests which indicated that her testosterone reading was 7.8 nmol/L which was greater than the normal range of 0.5 to 2.6 nmo/L.
9 The Medical Tribunal on 19 October 2001 made findings against the Applicant as follows:
1. The Applicant did not carry out any clinical (apart from weighting the patient) or other investigative procedures to assess the patient's presenting problem;
2. The Applicant administered testosterone over a six week period to Patient A;
3. The Applicant provided Patient A with a container of Andriol tablets which he instructed her to take daily, (Andriol being an anabolic steroid);
4. When Patient A presented with symptoms of virilizing process, the Applicant failed to recognise those symptoms as side effects of the inappropriate testosterone treatment;
5. The Applicant failed to informed Patient A of the nature and side effects of the treatment he proposed and misled her as to the true nature of substance which he administered;
6. The Applicant did not keep proper or adequate medical records for Patient A;
8. The Applicant profited from the sale of the medication to Patient A in contravention of Pharmacy Act 1964, s.28(2)(a).7. The Applicant did not keep adequate records in relation to the supply of a restricted substance, in contravention of clauses 40 and 59 of the Poisons and Therapeutic Goods Regulation 1994; and
10 The Medical Tribunal made the following orders against the Applicant:
1. That the name of Monier Gad be removed from the Register of medical practitioners;
2. That such order be suspended for a period of 28 days to permit the practitioner to make alternative arrangements for his practice;
4. That the practitioner pay the complainant's costs of these proceedings.3. That the practitioner not be permitted to see to be restored to the Register for a period of three years from this date; and
11 The Applicant appealed to the NSW Court of Appeal in respect of the Determination of the Medical Tribunal. On 26 November 2001 the Applicant sought a stay of the orders made by the Medical Tribunal. The Applicant was unsuccessful in his application and his name was removed from the Register of medical practitioners on 26 November 2001. The NSW Court of Appeal dismissed the Applicant's appeal on 24 April 2002.
THE APPLICATION
12 The Applicant in bringing this application bears the onus of proof of satisfying the Medical Tribunal, on the balance of probabilities, that he is now a person of good character and that his name ought to be restored to the Register of medical practitioners.
13 In Ex Parte Tziniolis 84 WN (Part 2) Walsh J at page 286 stated the test to be applied in deciding whether an applicant has overcome his defect in character, as follows:
"Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he is known to be deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant - see Ex Parte Clyne 1962 SR 9NSW) 436 at 441, and cases there cited."
14 The obligation imposed on the Applicant to satisfy this Tribunal on the balance of probabilities that he is now of good character was considered by the (differently constituted) Medical Tribunal in Shariff, Medical Tribunal, 2 October 1990, as follows:
"The principal issue to be determined by this Tribunal is whether the Applicant has proved that he is now of that good character which befits a person to practise medicine. The onus lies on him to establish that he now bears such good character. As a person whose name has been removed from the Register he has to accept that it has been found that he was guilty of conduct which showed a defect of character incompatible with membership of a self-respecting profession. It is necessary for the Applicant to satisfy this Tribunal that the defect which led to the conduct requiring such an adverse finding has been overcome. Clear proof is required to satisfy the onus which lies on the applicant; one cannot rely merely on the effluxion of time".
EVIDENCE PRESENTED TO THE TRIBUNAL
15 The Tribunal in considering the application has taken into account the findings of the 2001 Medical Tribunal, the statement and sworn evidence of the Applicant, the documents filed in support of the Applicant's attendance and completion of various medical courses, the statement and sworn evidence of Reverend Tadros El Bakhoumi, the statement and sworn evidence of Fred Hanania, the statement and sworn evidence of Dr. Preslav Trenchev, the statement and sworn evidence of Dr. Medhat Guirgis, the submissions of the Applicant's Counsel, Mr. Young and the submissions of the Respondent's Counsel, Miss Manuell.
16 A summary of the Applicant's evidence in chief before the Tribunal is as follows.
17 The Applicant gave evidence that the findings of the 2001 Medical Tribunal were erroneous. However, he accepts the result without reservation.
18 The Applicant gave evidence that he has not been able to find employment since his name was removed from the Register of medical practitioners. The Applicant gave evidence that he has devoted himself to two areas of improvement in his life, one, to maintain his medical knowledge and two, to work in an honorary capacity as secretary and chairman of the Church Committee of the Coptic Church.
19 Insofar as the Applicant's medical knowledge is concerned the Applicant has provided the Tribunal with evidence that during the period 2002 to 2004 he obtained 854 credit points under the Royal Australian College of General Practitioner, that he attended an education day in respect of pre-diabetes metabolism at the Clancy Auditorium at the University of New South Wales on 20 November 2004, that he attended the Australian Arabic Medical Associate Annual Conference in 2002, that he attended a NSW medical acupuncture course in 2002, that he attended a course in cardio-pulmonary resuscitation conducted by St. John's Ambulance on 28 August 2004, that he undertook an Implanon training course endorsed by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists and Family Planning Australia at Sydney University on 1 October 2002, that he attended a course in clinical hypnosis conducted at the ANA Hotel in Queensland on 27 April 2003, that he attended the St. George Division of General Practice/Prevention course on 5 September 2002, that he attended a general revision course at the University of Sydney held from 30 September 2002 to 2 October 2002 and that he attended a Merck Sharp and Dohme (Australia) University programme for general practitioners in 2002.
20 The Applicant put forward a plan in which he indicated that his practice of medicine would radically change if his name were to be restored to the Register. The Applicant indicated that he intended to work in a group practice and not ever to work again as a sole practitioner. The Applicant indicated that he intended to work some four and a half days per week and to reduce the number of patients seen by him to approximately 35 patients per day. The Applicant indicated that he did not wish to prescribe anabolic steroids in the future.
21 The Applicant was cross-examined over a far ranging area of topics. The Applicant gave evidence as to his financial affairs that his outgoings included a monthly mortgage of between $2,000.00 and $2,400.00, repayment of a judgment debt of between $200.00 and $250.00 per month and Sydney Grammar School fees in the vicinity of $20,000.00 per annum.
22 The Applicant gave evidence that he did not receive any income derived from his former practice at Arncliffe or from Dr. Borun who presently works out of the Arncliffe practice. The Applicant gave evidence that his source of income from early 2002 to the date of the hearing consisted of social security benefits and contributions from family members and friends.
23 The Applicant gave evidence that he was unable to sell the Arncliffe practice despite the fact that at the time of his name being removed from the Register of medical practitioners the practice had records relating to approximately 5,000 patients.
24 The Applicant agreed he gave evidence on 28 April 2003 in the District Court of NSW before Her Honour Judge English in the matters of Eman Faraj & Ors v. Finworld Pty Limited . The transcript of the case was tendered by the Respondent. At page 45 of the transcript it is recorded that the Applicant gave evidence that he was general manager of the Arncliffe practice, that he did all the paperwork and that documents consisting of patient records which were tendered to the Court in respect of medical records from 14 January 2002 to 29 January 2002 were in the writing of a locum working for the Applicant.
25 The Applicant gave evidence in these proceedings that the locum he referred to in the District Court proceedings was "working for the Centre and not under my supervision". The Applicant gave evidence in these proceedings that when he said in the District Court proceedings before Her Honour Judge English that he was the general manager of the Arncliffe practice, that he provided that information in response to a question put to him which he did not understand. However, the Applicant gave evidence that he involved himself with employees of the Arncliffe practice in the ordering of medical supplies from the time his name was removed from the Register until early March 2005.
26 The Applicant gave evidence that up until the date of the hearing before the Tribunal he had not removed his name from with window of the Arncliffe practice, nor had he removed the brass plaque containing his name from the building of the Arncliffe practice.
27 The Applicant gave evidence that his pre-printed prescription pads were not cancelled or kept in a secure place after his name was removed from the Register.
28 Evidence was given regarding certificates being Annexures A,F,G,H,I and J attached to the Application for Review filed by the Applicant which all bear dates subsequent to the date the Applicant's name was removed from the Register. The certificates refer to the Applicant as bearing the nomenclature "Dr".
29 The Applicant called two lay witnesses Reverend El Bakhoumi and Fayez Hanania. Both witnesses gave evidence favourable to the Applicant regarding his parish work for the Coptic Church and as to his integrity and good character.
30 The Applicant called two medical witnesses, Dr. Preslev Trenchev and Dr. Medhat Giurgis. Dr. Trenchev was of the opinion that the Applicant had concern and welfare for his community and supported the Applicant's application for re-registration. Dr. Giurgis gave evidence that the Applicant since the time his name was removed from the Register had devoted himself to humanitarian work in the Coptic Church. Dr. Giurgis indicated that the Applicant had done good work as Secretary of the St. Mary and St. Pachlmins Coptic Orthodox Church in Kirrawee. Dr. Giurgis further indicated that the Applicant would not in his opinion prescribe steroids to patients similar to patient A in the future and that the Applicant had learned his lesson.
31 Both Dr. Trenchev and Dr. Giurgis gave evidence that the Applicant had not informed them of the fact of his 1986 convictions for Medicare fraud nor of the findings of the 1990 Medical Tribunal and his suspension from practice.
CONCERNS OF THE TRIBUNAL
32 The Tribunal is concerned about three aspects of the Applicant's character, the first being the Applicant's evidence regarding his dealings and association with the Arncliffe practice, the second being the Applicant holding himself out as a medical practitioner and the third being the Applicant's failure to inform his medical referees of the fact of the 1986 convictions and his subsequent 1990 suspension by the Medical Tribunal from practice.
33 As to the first concern of the Tribunal, that is, the Applicant's evidence regarding his dealings and association with the Arncliffe practice, the Tribunal is troubled by the evidence given by the Applicant in the District Court proceedings of Eman Faraj & Ors v. Finworld Pty Limited of 28 April 2003 when the Applicant gave sworn evidence regarding his being the manager of the Arncliffe practice and his employing locums to work in the practice. This evidence is in stark contrast to the evidence given before this Tribunal in which the Applicant attempted to distance himself from the Arncliffe practice.
34 The Tribunal is further troubled by the Applicant leaving prescription pads containing his provider number at the Arncliffe practice after his name was removed from the Register. The Tribunal fails to understand the Applicant's description of a blank prescription bearing his name as "a useless piece of paper". Records produced by Medicare Australia in Exhibit 16 indicate that 161 prescriptions were prescribed on the Applicant's prescription pads for patients of the Arncliffe practice after the Applicant's name was removed from the Register.
35 The Tribunal is further troubled by the Applicant's evidence that he only attended the Arncliffe practice on an irregular basis. This evidence is difficult to reconcile with the Applicant's evidence regarding his involvement in the process of ordering medical supplies for the practice up to approximate March 2005, the evidence contained in Exhibit 6 of his having three face to face unscheduled meetings with representatives of Organon Australia Pty Limited on 6 September 2002, 15 January 2003 and 11 September 2003 and the evidence that the Applicant was present at the Arncliffe practice on 18 March 2006 and accepted a summons to produce documents which was served without pre-arrangement on the practice manager of the Arncliffe practice.
36 The Tribunal finds the Applicant's evidence regarding his association and dealings with the Arncliffe practice as being evasive, contradictory, unbelievable and untruthful.
37 As to the second concern of the Tribunal, that is the Applicant holding himself out to be a medical practitioner when he was not entitled to do so, the Tribunal is troubled by the evidence that the Applicant did not, after his name was removed from the Register, remove the prominent words "Dr. M. Gad MB.BS" from the window of the Arncliffe practice, nor remove the plaque containing the words "Dr. M. Gad" from the building of the Arncliffe practice until the evening of 27 March 2006, that is, the day upon which the hearing before this Tribunal began.
38 The Tribunal finds that the Applicant in not removing his name from the signage of the Arncliffe practice held himself out to patients of the practice that he was connected to the practice in the capacity of a medical practitioner.
39 The Applicant, since his name was removed from the Register, has maintained membership of the Royal Australian College of General Practitioners ("RACGP") in the name of "Dr. M. Gad", and has completed the 2002/2004 RACGP Quality Assurance and Continuing Professional Development requirements in the name of "Dr. M. Gad".
40 The Applicant presented to the Tribunal a certificate dated 1 November 2002 in the name of "Dr. M. Gad" regarding his completion of the Implanon Training Course. The Applicant provided to the Tribunal a diploma dated 27 April 2003 in the name of "Dr. Monier Gad, MBBS", regarding his completion of a course in clinical hypnosis. The Applicant provided to the Tribunal a certificate dated 5 September 2002 in the name of "Dr. Monier Gad" regarding his attendance at a stroke prevention workshop organised by the St. George Division of General Practice. The Applicant provided to the Tribunal a certificate of attendance dated 11 October 2002 in the name of "Dr. Monier Gad" regarding his attendance at a general revision course for general practitioners arranged by the post graduate committee in medicine at the University of Sydney. The Applicant provided to the Tribunal a letter dated 5 December 2003 certifying the attendance of "Dr. Monier Gad" at a Merck Sharp and Dohme University programme for general practitioners.
41 It is clear from the abovementioned documentation that the Applicant held himself out to medical professional organisations as being a medical practitioner when he was not entitled to do so.
42 A business record of Organon Australia Pty Limited, being Exhibit 6, reveals that the Applicant and Stephen Shields, a representative of Organon Australia Pty Limited, met at the Arncliffe practice on 15 January 2003. The business record contains the following notation regarding the meeting:
dr hasn't got certificate yet, but has done a few, liked that pbs and uses ment health care card pats, gave cd video, prod mono and imp and u, 130000, no fails"."Call comments
43 The Tribunal finds the probable inference from the notation that the Applicant described as "dr" had not received a certificate of attendance from the Implanon Training Course attended by the Applicant on 1 October 2002 (this certificate formed part of the Applicant's application for re-registration). However, the Applicant had used Implanon products on patients subsequent to his attending the training course.
44 The Tribunal finds that the Applicant held himself out to Stephen Shields not only that he was a medical practitioner but also that he practised as one in January 2003.
45 As to the Applicant's failure to inform his medical referees of the fact of his 1986 convictions and his suspension from practice in 1990, both Dr. Trenchev and Dr. Giurgis were denied the opportunity by the Applicant's omission to fully understand the Applicant's background when they commented on the Applicant's character for the purpose of these proceedings. In this regard the Tribunal finds that the Applicant was dishonest by omission with his medical referees.
46 The Tribunal finds that the Applicant's dishonesty is consistent with the Applicant's dishonest evidence given to this Tribunal regarding his association and dealings with the Arncliffe practice after his name was removed from the Register.
THE CONCLUSIONS OF THE TRIBUNAL
47 The Applicant bears a heavy evidentiary onus to establish on the balance of probabilities that the defect in his character which led to his name being removed from the Register has been rectified.
48 The evidence of Reverend Al-Bakhoumi and Mr. Hanania as to the charitable work undertaken by the Applicant is impressive. The Applicant has since his name was removed from the Register devoted a great deal of time and effort to the Coptic Church and its congregation. However, this Tribunal adopts the words of the differently constituted Medical Tribunal of September, 1990 as follows "… the doctrine of salvation by good works has its limitations".
49 The differently constituted Medical Tribunal on 9 October 2001 found, interalia, that the practitioner failed to truthfully answer questions from Patient A's family. Further, the Tribunal found that the practitioner deliberately falsified his records with the intention of misleading persons who would read them. The Tribunal made the following finding as to the totality of the practitioner's conduct:
"The Tribunal has made separate findings in relation to each particular, resulting in findings of both unsatisfactory professional conduct, and professional misconduct.
The Tribunal considers that the totality of the practitioner's conduct in relation to his treatment of Patient A constitutes professional misconduct".The conduct of the practitioner went well beyond mere professional incompetence or deficiencies in the practice of medicine. It involved a deliberate departure from accepted standards of practice, which put the patient at risk of suffering harm. That conduct was exacerbated by the practitioner profiting from the sale of the very medication which harmed the patient.
50 This Tribunal finds that the Applicant has been dishonest with it insofar as his dealings and association with the Arncliffe practice is concerned. The Tribunal further finds that the Applicant has improperly held himself out to patients of the Arncliffe practice and to professional medical organisations that he was a medical practitioner. The Tribunal further finds that the Applicant has been deliberately dishonest with his medical referees. As a consequence of these findings the Applicant has not satisfied the Tribunal on the balance of probabilities that he is now a fit and proper person to practise medicine.
ORDERS OF THE TRIBUNAL
1. The Applicant's Application fails.
2. The Applicant is not permitted to make a further application pursuant to S.94(1)(d) of the Act for a period of three years from the date of this Determination.
3. The Applicant pay the Respondent's costs of the Application.
(Sgd) Judge R.H. Solomon (Sgd) Dr. M. Giuffrida
(Sgd) Dr. G. Yeo (Sgd) Ms. G. Ettinger
0
0
3