SOURAKI AZAD and MEDICAL BOARD OF AUSTRALIA
[2024] WASAT 71
•14 AUGUST 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: SOURAKI AZAD and MEDICAL BOARD OF AUSTRALIA [2024] WASAT 71
MEMBER: JUSTICE P A TOTTLE (SUPPLEMENTARY PRESIDENT)
DR P WINTERTON, SENIOR SESSIONAL MEMBER
MS H M LESLIE, SESSIONAL MEMBER
HEARD: 26 MARCH 2024
DELIVERED : 14 AUGUST 2024
FILE NO/S: VR 44 of 2023
BETWEEN: MOHAMMAD AMIN SOURAKI AZAD
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Vocational regulation - Medical practitioner - Whether reasonable belief that immediate action in the form of a suspension of medical practitioner's registration in the public interest - Suspension of registration in the public interest
Vocational regulation - Medical practitioner - Where in the absence of approved supervisor medical practitioner had no authority to practice medicine - Where no approved supervisor - Immediate action in the form of suspension not necessary to protect public health and safety
Legislation:
Health Practitioner Regulation National Law Application Act 2024 (WA)
Health Practitioner Regulation National Law Act 2009 (Qld)
Health Practitioner Regulation National Law (WA) Act 2010
State Administrative Tribunal Act 2004 (WA)
Result:
Decision to take immediate action under s 156(1)(e) of National Law substituted for decision to take immediate action under s 156(1)(a) of National Law
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms J McKenzie |
Solicitors:
| Applicant | : | In Person |
| Respondent | : | Minter Ellison |
Cases referred to in decision:
Azad v Mithila Family Trust t/a Rockingham GP [2023] FCA 404
Bernadt v Medical Board of Australia [2013] WASCA 259
Cheema v Medical Board of Australia [2020] SACAT 40
Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617
George v Rockett (1990) 170 CLR 104
Lee v Medical Board of Australia [2022] WASAT 28
Marcus and Medical Board of Australia [2024] WASAT 8
Medical Board of Australia v Adams [2023] WASCA 41
Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513
Mohammad Amin (Darius) Souraki Azad v Hammond Park Family Practice Pty Ltd [2021] FWC 6683
Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701
O'Sullivan v Farrer (1989) 168 CLR 210
Souraki Azad v Hammond Park Family Practice Pty Ltd T/A Jupiter Health Warnbro [2022] FWCFB 66
Souraki Azad v Jose [2023] WASC 160
WD v Medical Board of Australia [2013] QCAT 614
Webb v Tang [2023] WASCA 119
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
The applicant, a medical practitioner, has applied to the Tribunal for a review of the decision of the respondent, the Medical Board of Australia (the Board), made on 8 May 2023 to suspend the applicant's registration as a medical practitioner.[1] The Board's decision was made under s 156 of the Health Practitioner Regulation National Law (the National Law).[2] A decision of this type is commonly referred to as an 'immediate action decision'. The circumstances in which the Board is empowered to take immediate action are explained below.
[1] The application was lodged on 23 May 2023 pursuant to s 199 (1)(h) Health Practitioner Regulation National Law (WA) Act 2010. At the commencement of these proceedings the National Law was given effect in Western Australia by s 4 of the Health Practitioner Regulation National Law (WA) Act 2010 (the 2010 Act). The 2010 Act has since been repealed and replaced by the Health Practitioner Regulation National Law Application Act 2024 (WA) (Application Act). The National Law is given effect in Western Australia through s 5 of the Application Act which gives effect to the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (the National Law).
[2] National Law s 156.
It is open to the Tribunal either to confirm the decision made by the Board, to amend the decision or to substitute another decision.[3] The purpose of the review is for the Tribunal to produce the correct and preferable decision.[4] The review is by way of a hearing de novo. It is not confined to matters that were before the Board but may involve the consideration of new material, irrespective of whether the material existed when the Board made its decision on 8 May 2023. In the conduct of a review proceeding the Tribunal is not limited by the Board's reasons for decision or by the contents of the application.[5]
[3] National Law s 202(1).
[4] State Administrative Tribunal Act 2004 (WA) s 27(2).
[5] State Administrative Tribunal Act 2004 (WA) s 27(1) and (3).
The Tribunal has concluded that immediate action in the form of suspension of the applicant's registration as a medical practitioner should be taken. The basis upon which the Tribunal has reached this conclusion differs from the basis on which the Board concluded immediate action was necessary. The Board concluded that because of the applicant's conduct he posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety. For the reasons explained in detail below the Tribunal has concluded that because the applicant has no present authority to practise medicine it is not necessary to take immediate action to protect public health or safety but it is, in the Tribunal's reasonable belief, otherwise in the public interest to take immediate action in the form of a suspension of the applicant's registration as a medical practitioner.
Statutory regime and legal principles
The following section of these reasons draws heavily on the analysis of the relevant aspects of the statutory regime and applicable principles outlined in the Tribunal's decision in Marcus and Medical Board of Australia.[6]
[6] Marcus and Medical Board of Australia [2024] WASAT 8.
Section 156 of the National Law relevantly provides:
(1)A National Board may take immediate action in relation to a registered health practitioner … registered in a health profession for which the Board is established if –
(a)the National Board reasonably believes that —
(i)because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public health or safety;
or
.. .
(e)the National Board reasonably believes the action is otherwise in the public interest.
The term 'immediate action' is defined by s 155 of the National Law, which provides that the term means, amongst other things, 'the suspension, or imposition of a condition on, the health practitioner's … registration'.[7]
[7] National Law s 155(a)
The applicant is a person who is the subject of a decision by a National Board (the Board) to suspend [his] registration and, as provided for in s 199(1)(h) of the National Law, has a right of review.[8]
[8] Section 199 provides for an 'appeal' rather than a 'review', but s 36 of the Application Act provides that, in this State, 'appeal' is a reference to a review of the decision as provided under Pt 3, Div 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The legal principles relevant to the exercise of the Tribunal's review jurisdiction are as follows:
(a)It is necessary to identify with precision what it is that must be the subject of the Board's and, on review, the Tribunal's reasonable belief.[9]
[9] Bernadt v Medical Board of Australia [2013] WASCA 259 (Bernadt) at [65] (McLure P). There is nothing in the reasons of either Newnes JA or Murphy JA that suggests that they disagree with this aspect of her Honour's reasons.
(b)Section 156(1)(a) provides for three components that must be the subject of a reasonable belief to justify the taking of immediate action:[10]
[10] Bernadt at [65].
(i)because of (that is, by reason of) the practitioner's conduct, performance or health;
(ii)the practitioner poses a serious risk to persons; and
(iii)it is necessary to take immediate action to protect public health or safety.
(c)'Belief' is an inclination of the mind towards assenting to, rather than rejecting, a proposition.[11] The 'belief' of a person is ordinarily a conclusion reached after the probabilities have been weighed.[12] A person's mind will not incline towards accepting a proposition of fact if the person's mind inclines towards rejecting the proposition of fact or if the person's state of mind is that he or she is unable to arrive at a conclusion one way or the other.[13]
(d)A 'belief' is more than a 'suspicion' and is ordinarily less than 'positive knowledge'. The information available to a person who forms a belief may be from external sources, including hearsay, which the person may be unable independently to verify.[14]
(e)The grounds which can reasonably induce a belief may, depending on the circumstances, leave something to surmise or conjecture.[15]
(f)'Reasonable belief' or 'belief on reasonable grounds' requires a consideration of context.[16]
(g)A 'reasonable' belief imports an objective criterion.[17] It requires the existence of facts which are sufficient to induce the belief in a reasonable person.[18] There must be proven objective circumstances sufficient to justify the belief.[19]
[11] George v Rockett (1990) 170 CLR 104, 116; Webb v Tang [2023] WASCA 119 at [94].
[12] Webb v Tang [95].
[13] Webb v Tang at [98].
[14] Webb v Tang at [96].
[15] Rockett at (116).
[16] Webb v Tang at [99].
[17] Webb v Tang at [106].
[18] Bernadt at [173] (Newnes JA).
[19] Bernadt at [66] (McLure P).
The Tribunal is not required to find that the applicant in fact poses a serious risk to persons or that immediate action is in fact necessary to protect public health. Rather, the Tribunal is only required to determine whether it holds a reasonable belief as to those matters.[20] As Horneman-Wren J said in Oglesby v Nursing and Midwifery Board of Australia:[21]
… it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.
[20] Bernadt at [171] (Newnes JA).
[21] Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 at [20].
The Tribunal's task does not make it necessary for the Tribunal to decide what, in fact, has occurred. Rather, the inquiry is directed to the future. The focus is upon the nature and extent of risks to persons and the steps to be taken to address such risks.[22]
[22] Medical Board of Australia v Adams [2023] WASCA 41 (Adams) at [93]. See also Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513 (Sami) at [23], [106] and [174].
That is, at least in the ordinary course, the task of reaching a reasonable belief as to risk does not require an enquiry into the merits of the allegation made against the practitioner. It will be sufficient to know what the allegation is, what material supports it and whether the allegation is denied.[23]
[23] Adams at [93]. See also Sami at [101].
In WD v Medical Board of Australia,[24] Horneman-Wren J set out the following principles, which appear to us to be consistent with the principles outlined above and which have been previously applied by this Tribunal:[25]
[24] WD v Medical Board of Australia [2013] QCAT 614.
[25] WD v Medical Board of Australia [2013] QCAT 614 at [8]. See also Cheema v Medical Board of Australia [2020] SACAT 40 at [43].
1.an immediate action order does not entail a detailed enquiry;
2.it requires action on an urgent basis because of the need to protect public health and safety;
3.the taking of immediate action does not require proof of the conduct, but rather whether there is a reasonable belief that the registrant poses a serious risk;
4.an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
5.the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
6.the material available should be carefully scrutinised in order to determine the weight to be attached to it;
7.a complaint that is trivial or misconceived on its face will clearly not be given weight;
8.the nature of the allegations will be highly relevant to the issue of whether the order is justified.
The principles outlined above were developed in the context of s 156(1)(a) but they apply with equal force to the term 'reasonable belief' as it appears in s 156(1)(e).
Section 156(1)(e), however, is concerned with the public interest rather than any 'risk to persons'.
The phrase 'the public interest', 'when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable'.[26]
[26] O'Sullivan v Farrer (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ).
In Lee v Medical Board of Australia,[27] the Tribunal held that the public interest under s 156(1)(e) may warrant immediate action 'having regard to various public interest considerations, including the protection of the public, or maintenance of public confidence in the medical profession'.[28] It also adopted the VCAT's discussion of the public interest in Farshchi as follows:[29]
There is a public interest in members of health professions, in whom training and expenditure has been made, being able to practise.
There is a public interest in "area of need" professionals being able to practise.
There is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly.
There is a public interest in ensuring immediate action is only taken when it is necessary to do so.
[27] Lee v Medical Board of Australia [2022] WASAT 28.
[28] Lee v Medical Board of Australia at [30].
[29] Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617 at [71] - [75], adopted with approval in Lee at [47].
A procedural issue
The first two days of the substantive hearing of this application were conducted by the Tribunal constituted by the Honourable Justice Pritchard, the then President of the Tribunal, senior sessional member Hankey and member Benter. As explained in more detail below, in correspondence filed with the Tribunal, the applicant complained about the conduct of a member of Pritchard J's staff with whom he had communicated during the proceedings. Pritchard J considered that the fair-minded lay observer might reasonably apprehend that her Honour might not bring an impartial and unprejudiced resolution to aspects of the Board's case that referred to the applicant's complaints about the conduct of the staff member and, accordingly, considered the entire panel should recuse themselves.[30] The panel was reconstituted as shown on the title page of these reasons. In reaching the conclusions expressed in these reasons, the Tribunal has had regard to the evidence adduced on the first two days of the hearing and the transcript of the hearing in addition to the evidence adduced and submissions made on 26 March 2024.
[30] ts dated 14 February 2024, p 226.
The evidence and submissions
The Board tendered a bundle of documents (exhibit 1) and relied on its statement of issues, facts and contentions. No oral evidence was called by the Board.
The applicant relied on the contents of 17 separate volumes of documents. His primary submissions extended to 10 volumes. These were supplemented by 12 further submissions in the form of letters addressed to Pritchard J in which he expanded on some aspects of his earlier submissions by providing information about his personal, professional, and family background as well as dealing with procedural issues that had arisen.
The Tribunal recognises the difficulties self-represented parties encounter when presenting their cases and in making the observations that follow the Tribunal intends no disrespect to the applicant. The attacks the applicant chose to make on the Australian Health Practitioner Regulation Agency (AHPRA), the Board, their employees and officers and members of the Board's legal team combined with lengthy and detailed digressions into matters of little or no relevance devalued the cogency of his submissions. They make it difficult to identify and summarise what the applicant wanted to convey in his submissions.
The decision under review
The decision to take immediate action by suspending the applicant's registration was made on 8 May 2023.[31] The steps that preceded that decision were as follows.
[31] Exhibit 1, p 54.
On 24 April 2023 AHPRA notified the applicant that it proposed to take immediate action by suspending the applicant's registration as a medical practitioner.[32] On 25 April 2023 AHPRA sent the applicant the material that the Board considered when making the decision to take immediate action.[33]
[32] Exhibit 1, p 49.
[33] Exhibit 1, p 53.
On 5 May 2023 the applicant provided AHPRA with written submissions addressing the proposed immediate action.[34]
[34] Exhibit 1, p 17.
Notice of the Board's decision to take immediate action was provided by letter to the applicant sent to him by email on 8 May 2023.[35] The materials considered by the Board were listed in the letter.
[35] Exhibit 1, p 54.
The factual background
In the following section of these reasons the Tribunal provides a broadly chronological account of the key events that led to the Board making the immediate action decision and the subsequent progress of the review application. Where those events are contentious, or it is otherwise relevant to do so, reference is made to the materials provided to the Tribunal from which the information or allegations have been sourced.
Applicant's professional qualifications and registration status
The applicant (who is known as Dr Darius Azad) obtained his medical degree in Iran in 2012. He obtained limited registration as a medical practitioner on 22 August 2019.[36] The limited registration permitted the applicant to practise medicine under supervision. The supervisor was required to be approved by the Board. As explained below, no medical practitioner is currently approved by the Board to supervise the applicant.
Jupiter Health Warnbro
[36] Exhibit 1, p 17 [5]; National Laws 65.
In September 2019 the applicant began practising as a general medical practitioner at 'Jupiter Health Warnbro' in Western Australia. The applicant's approved supervisor was Dr Raheleh Hadipour. The Clinic Principal at Jupiter Health was Dr Mohammad Marashi.
On 12 October 2020 Dr Hadipour completed a 'Work performance report' in respect of the applicant's performance as an International Medical Graduate.[37] Dr Hadipour commented favourably on the applicant's professional competence and integrity. The general tenor of the report is exemplified by the following observation:[38]
The IMG has a strong work ethic, and acts with integrity and responsibility to his patients, colleagues and co workers. He shows respect and courtesy to his supervisor, and responds well to her feedback and suggestions and is happy to learn from her experience.
He is adaptable in his learning and shows great initiative to new ideas.
[37] Applicant's documents (6), p 56.
[38] Applicant's documents (6), p 60.
On 6 November 2020 Dr Hadipour withdrew from her supervision arrangements with the applicant.[39] The applicant did not see any patients or attend Jupiter Health Warnbro after that date.
[39] Exhibit 1, p 58.
The applicant described the deterioration of his professional relationship with Doctor Hadipour and Doctor Marashi as follows:[40]
After a few months of working at my first workplace, Jupiter Health Warnbro (JHW) and far from my prior expectations, I saw myself facing two major workplace issues simultaneously; First, being subjected to disrespectful and unprofessional behaviours from my employers. Second, I observed the poor practices of two other doctors, including their misconduct and repulsive attitudes towards the care of the patients, which was entirely against my principles and values.
Regrettably, my initial efforts to fix those issues through constructive discussions with two other senior doctors at the practice, Dr Hadipour (my then supervisor) and Dr Marashi (Clinic Principal and Dr Hadipour's husband), who were also my employers, did not bear fruit. Subsequently, I decided to seek advice from legal experts, and at the same time, started to study and read more about the matter, mainly about my workplace rights in Australia. After my last genuine attempt to reach out to the Clinic Principal on the 13/08/2020 to address the matter, followed by both doctors' harsh and adverse responses, I realised the situation would only worsen, and my predictions were correct. Given the above mentioned and considering that I was on a work visa with several limitations, I saw the Australian Legal and Justice System as the only hope and refuge to protect myself, my family and my patients. The system in which I had, and still have, a strong faith.
. . .
Eventually, I paid the price of standing up for the legitimate rights of myself and my patients; on 06/11/2020, I was forced out of my workplace in a very vague and absurd way.
[40] Exhibit 1, p 17 - 18.
On 3 December 2020 the applicant made a mandatory report to AHPRA in relation to Dr Hadipour and Dr Marashi.[41] The notification did not lead to any action being taken against either practitioner.
[41] Applicant's documents (6), p 45 [6].
The applicant commenced proceedings against the company that owned Jupiter Health Warnbro in the Fair Work Commission. The applicant alleged that he was dismissed in contravention of general protections for employees provided in the Fair Work Act 2009 (Cth) and contended that he was an employee. The Commission dismissed the application holding that the applicant was not an employee.[42]
[42] Mohammad Amin (Darius) Souraki Azad v Hammond Park Family Practice Pty Ltd [2021] FWC 6683.
The applicant appealed against the Fair Work Commission's decision. The appeal was dismissed.[43]
[43] Souraki Azad v Hammond Park Family Practice Pty Ltd T/A Jupiter Health Warnbro [2022] FWCFB 66.
On 10 December 2020, that is, at a time when the applicant was not permitted to practise medicine because there was no supervisor approved by the Board, the applicant attended a consultation between a patient of Jupiter Health Warnbro and Professor Peter Bremner, a specialist respiratory physician. In his letter reporting to Jupiter Health Warnbro about the consultation, Professor Bremner recorded that he had seen the patient for review 'in the company of his GP Darius Azad who had elected to attend with him'.[44] The applicant's explanation of his attendance at the consultation was to the effect that he attended so he could learn from Professor Bremner and because the patient and his family wanted him to attend.[45]
[44] Exhibit 1, p 60.
[45] ts dated 17 October 2023, p 158, 176.
In a letter addressed 'To whom it may concern' and dated 28 July 2023 written at the applicant's request, Professor Bremner referred to the applicant's attendance at the consultation and commented:[46]
It was clear to me during my management of Mr CS that Dr Azad was a very caring and empathic doctor who was clearly concerned about Mr CS's problems. As noted above Dr Azad accompanied him to his outpatient appointment with me on the 10th of December. At no time did Dr Azad's demeanour cause me any concern, in fact the opposite, I was most impressed with his care of his patient at that time.
It has also been my impression during the management of Dr Azad's other patients referred to me, that he is a competent and caring practitioner.
[46] Applicant's documents (6), p 52.
In late 2021 or early 2022 the applicant produced and uploaded to social media four videos in which, as he put it, he talked about 'the repulsive conduct of Dr Marashi and Dr Hadipour, in undermining the health of patients and disrespecting them, together with some proofs'.[47]
[47] Exhibit 1, p 214 [28].
On 3 February 2022 a receptionist employed by Jupiter Health Warnbro who was named in one of the videos lodged a notification with AHPRA about the applicant. The notification did not lead to any further action being taken.[48]
Rockingham Maternity and Family Practice
[48] Exhibit 1, p 15 - 16.
In January 2021 the applicant entered into a written agreement constituted by a document entitled 'letter of engagement' with a medical practice known as the Rockingham Maternity and Family Practice (RMFP). Pursuant to this agreement the applicant agreed to work as a medical practitioner in the capacity of an 'independent contractor' for a period of four years commencing on 1 February 2021.[49] Among other matters the agreement provided that the applicant had a professional responsibility to be familiar 'with AHPRA's Good Medical Practice Code of Conduct for Doctors in Australia' (the Good Medical Practice Code). The agreement was silent on the issue of ownership of records maintained in respect of patients who attended the practice.
[49] Applicant's documents (XA), p 20.
The RMFP was owned by Dr Vishnu Gopalan and Dr Jagadish Krishnan or entities associated with them.
The applicant did not begin practising medicine at the RMFP until about August 2021. His approved supervisor was Dr Princewill Chuka.
The applicant described a deterioration in his relations with the clinic and nursing staff at RMFP as follows:[50]
A couple of months later, I started to observe similar issues at my second workplace, RMFP. And again, I would not stay silent in relation to the issues that could negatively impact the care of my patients. The type of issues though, was a bit different and it looked to me there were a coordinated chain of negative actions against my patients and me, this time mostly through the clinic staff and nursing unit. The type of adverse actions was also a bit different, and it was for the first time that I was hearing here and there, that certain people there were trying to label me with strange things such as being inappropriate towards female patients and staff, being aggressive towards others, and even being in appropriate towards children!
Applicant's conduct towards Patient E
[50] Exhibit 1, p 21 - 22 [24].
Between about September 2021 and May 2022 the applicant provided medical care to a female patient (Patient E) and her children.
The applicant was not solely responsible for Patient E's medical care. Another doctor, Dr Ross Jose, provided maternity care to Patient E. On 26 August 2021 Patient E gave birth to a boy (Patient B).[51]
[51] Exhibit 1, p 4.
The applicant and his wife developed a social and personal relationship with Patient E. The relationship developed quickly. In late 2021 the applicant and his wife had assumed full time care of Patient B who lived with them for a period of about four to five months until early May 2022.[52] In written submissions to the Tribunal the applicant observed:[53]
It is important to note that although we had never offered to provide full-time care for [Patient B], [Patient E] seemed to overlook this fact and frequently disregarded [applicant's wife's name] requests to pick up [Patient B] or help with his full-time care (DSAT-166). Nevertheless, due to our genuine love for children, especially [Patient E's] children, who we observed lacked sufficient love and care, we continued to provide full-time care for [Patient B].
Up until late March or early April 2022, we genuinely believed that [Patient E's] request for help was sincere, and we thought that our assistance would greatly improve the overall care for their other seven children, particularly considering the special attention and care required by five-month-old [Patient B]. By this time, the connection between our two families was mainly built around the direct relationship between [applicant's wife's name] and [Patient E] (DSAT-167). Like any other friendship between families, we often visited each other's homes. Due to the limited space in [Patient E's] house, they would mostly come to our place, ensuring everyone felt more comfortable. We would also invite each other to various events and gatherings (DSAT-168), much like we do with our other local friends in Rockingham.
[52] Applicant's submissions dated 3 August 2023, p 5.
[53] Applicant's submissions dated 3 August 2023, [127] - [128].
Patient E had been diagnosed with bipolar depressive disorder. In a letter dated 6 January 2022 written by the applicant in support of an application by Patient E for an additional childcare subsidy, the applicant recorded that Patient E's mental health had deteriorated since the birth of her son.[54]
[54] Applicant's documents (11), p 46.
On 24 March 2022 the applicant sent a letter to a magistrate of the Family Court in which he expressed his support for Patient E's application for custody of her two oldest children. In the letter the applicant described Patient B as 'a mother who has dedicated herself entirely for the care of her eight-children' and described her husband as 'an honourable man and hard-working father'.[55]
[55] Exhibit 1, p 157.
Before going further it is convenient to refer to the account given by Patient E about the applicant's conduct towards her. The account was contained in a letter to AHPRA dated 27 March 2023.[56] Relevantly, Patient E wrote:
[56] Exhibit 1, p 4.
On the 18th of May 2022 I attended the Rockingham Family Maternity Practice as a patient. I was in the treatment room with two of the employees having a conversation about my son [redacted] born 28/08/2017. Dr Souraki Azad had entered the Practice to start his shift. When Dr Souraki walked past he had seen me speaking to both the employees and said 'you better not be speaking to these people about your sons issues and keep your mouth shut'. I was taken aback by the lack of professional manner & aggression that he had spoken to me in-front of the employees.
I was then called into my appointment with Dr Ross Jose for my Antenatal Appointment for my unborn son at the time. Whilst in my appointment with Dr Ross Jose, Dr Souraki Aazad walked into the room and informed me that he needed to speak to me about a matter he had with me. Dr Ross Jose politely informed Dr Souraki Azad that "we would be finished in five minutes and to take the matter to his office". Dr Souraki Azad grabbed a chair and sat down on a chair in-front of me whilst I was still in my appointment with Dr Ross Jose, informing me that he was getting paperwork written up. I looked at him confused asking "what paperwork?", he responded with "adoption papers for my son [Patient B] born the 26/08/2021 (9 months old at the time), I want to adopt your son". With that I said "I'm not signing any paperwork for my son and certainly not adoption papers". Dr Souraki Azad then went on to say "well speak to your Husband [Mr S] about signing the adoption paperwork". I said, "Neither my myself nor my husband will be signing any adoption papers for our child". Dr Souraki Azad's facial expression changed to a frown and appeared to be very angry as his whole body language changed. Dr Ross Jose informed Dr Souraki Azad that if you would like to adopt a child he could go through the Department of Child Protection, Dr Souraki Azad seemed to be even more angry with what he had heard and with that he got up, walked out and slammed the door behind him.
On the 23rd of May 2022, Dr Souraki Azad entered my residence wearing no Personal Protective Equipment despite knowing that there were three positive cases of Covid 19. Dr Souraki Azad informed me he was taking my son [Patient B] back to his home for a couple of days due to my son needing extra observation as my son had just come back with a positive Rapid Antigen Test of covid. Upon entering my home Dr Souraki Azad walked into the kitchen where I was standing holding my son whilst on fact time with my husband and one of his co-workers and took my son out of my arms. I informed Dr Souraki Azad he wasn't taking my son anywhere. Dr Souraki Azad got very angry and forcefully handed my son back to me.
Before exiting my home Dr Souraki Azad walked up to my daughter [daughter's name] born 04/09/2020 (21 months old at the time) and asked "what are the red marks on her legs?". I informed him that's the eczema I had previously spoke to him about and that I had been treating it with over the counter ointments and pinetarsol baths, and with that he left my home.
I later received a text messages on 31st of May 2022 from Dr Souraki Azad in relation to negligence on my children, breach of Covid 19 isolation, Covid 19 vaccination for my children neglect on not giving my children the influenza vaccination, unfit parenting, defamation of my character, demanding private and confidential information on myself and children out of work hours. With this I emailed the Rockingham Family Maternity Practice of this proof.
In the time of knowing Dr Souraki Azad he has made multiple inappropriate sexual comments towards me to name a few after an examination on my private region he said "you have a very good looking vagina and anus.". On another separate occasion in front of another staff member Dr Souraki Azad had hired at the time, he made a comment towards me saying "I don't blame him, I would rape you too". His staff member responded with "you cant say that to her.", to which Dr Souraki Azad responded back with "too bad, I just did". I was in utter disbelief that a medical professional who knew my past of being a victim of sexual molestation could say such a statement.
Dr Souraki Azad has in the past asked my husband and I to sign a Statutory Declaration for my son [Patient B] so himself and his Wife Marjan could take our son out of the country. We did not comply with this, nor gave our consent. He has even offered my husband and I money so he could buy our son [Patient B] from us. We also did not comply with this.
…
I remember going to the Department of Transport in Rockingham with Dr Souraki Azad to help him with his license, we had gone in his car. Upon the arrival a bottle and a syringe rolled from underneath the passenger seat of his vehicle just missing my foot. When Dr Souraki Azad got out of the car I quickly got my phone out and took a picture of what looked to me to be a used syringe.
At the time of finding out I was pregnant with my son [son's name] born 01/11/2022 Dr Souraki Azad tried forcing me to abort my son. He expressed that I already had enough children at home and I didn't need to add another one, so he would like me to make an appointment with Dr Ross Jose and get it sorted as soon as possible, with that I said "that is not your decision to make nor it is of your concern as my other children are happy, healthy, well cared for and loved unconditionally". I remember being in an antenatal appointment with Dr Ross Jose where Dr Souraki Azad had entered asking Dr Ross Jose if he had booked me in for the abortion, Dr Ross Jose said "no I have not". Dr Souraki Azad got very angry with this and said "why not, she doesn't need anymore children so book it in! ". Dr Ross Jose informed Dr Souraki Azad that "it was not his decision to be making this type of judgement and it was up to myself and my husband to make that decision". Dr Souraki Azad was not happy and closed the door and walked off.
Dr Souraki Azad has made false reports of me in calling the Mandurah police informing them that my husband had rang him advising him to ring the police on me for a welfare check of my son who was in hospital. He has also made numerous false reports to the Department of Child Protection who have been in contact with me and the Department of Child protection determined that no further action was warranted.
On 31 May 2022 Patient E sent a lengthy letter to RMFP addressing the content of the text message that the applicant had sent to her that day (that is the text message referred to in Patient E's letter to AHPRA of 27 March 2023) in which the applicant had been very critical of her.[57] Patient E attached a transcript of the applicant's text message to her.[58]
[57] Exhibit 1, p 159.
[58] Exhibit 1, p 163.
The applicant developed two themes in his text message to Patient E sent on 31 May 2022. The first was to the effect that Patient E neglected the care of her children, and the second was that the applicant and his wife were committed to caring for Patient E's children. The applicant's criticisms of Patient E's care of her children were expressed in terms that are in stark contrast to the terms in which he described Patient E in his letter to the Family Court magistrate of 24 March 2022. The following extracts from the text message exemplify the sentiments expressed in it.[59]
[59] Exhibit 1, p 163 - 165.
Hi [Patient E]
It has been more than a week passing from the night that you told me about having [Patient B] positive for COVID and yet I have not heard anything from you about his general condition. I observed your erratic and inconsiderate behaviour that night that I tried to provide care to [Patient B] due to his COVID infection while being at your household with other positive cases and considering that you have always been complaining of not being able to provide care for children even under normal circumstances. I have tried my best to be understanding and give you a bit of space to see other possible doctors to provide care to your children. However, I see that you have been continuing with your usual neglectful manner in the care of your children.
You have not been in touch with me as the regular doctor for all of these 8 children while you and your husband have been hanging out freely and having fun and it shows that the health and wealth-fare of your children is the least important matter in your priority list,
- 4 children out of 8 in your household are not in the age of immunisation for COVID so the risk of developing serious consequences in them is similar to any other children around the world and even more considering 3 of these 4 children have already had the diagnosis of asthma.
- 2 or 3 of the remaining 4 have not even received their second dose due to your negligence although they have been due for a while and I have been mentioning it to you constantly.
. . .
What I mentioned, together with other documents and your medical record, clearly show how reckless and neglectful you are towards the wellbeing of your children and also the public health. As your family Doctor and according to my duty of care, as well as due to my love towards all children especially those 8 angels, I have done everything to help with their well-fare including registering them for CTG benefits (with no other doctor in the past looking down that avenue) providing you with the best opportunities of employment in the other business that I have share in to help you with your mental health as well as finances, making myself available literally 24/7 for any urgent contact in regards to the health of your children as they have been several occasions of hospitalisation for them due to asthma exacerbation's over the last few months and most importantly providing full time care and support for [Patient B] for nearly 5 months because you had been constantly claiming that [Patient B] does not stay with you and that he is extremely unsettled while staying with you. I do not know how all of these things about [Patient B] being unsettled at your household or him not staying with you guys due to getting used to us has changed over 1 night 2 weeks ago. But as a doctor who is passionate to provide care to his patients, now I am severely concerned about your poor and reckless manner of providing care for your children, due to what I have observed over the past few months. You have already passed several ethical and legal boundaries and keep putting your surrounding people including those 8 children at risk and in danger.
Hereby I urge you to contact me as soon as possible and provide me about any details of the care you are providing for your COVID hit household and children. Now I have the legal obligation to intervene at this stage, so even if you have been seeing other doctors over the last 7 to 10 days you will need to send me details of those visits as well as treatment plans. Dear [Patient E] I need to remind you that your children are not your hostages to keep them captive under your control and to use them to get some incentives, government benefits and special attentions. These are precious little ones that deserved to be under constant and tender care.
I am waiting for your prompt and proper response.
(Emphasis supplied)
Dr Jose provided AHPRA with information about conversations he had with the applicant, and about conversations his wife had with the applicant, regarding Patient E and her son Patient B.[60] On 15 March 2023, Dr Jose told an AHPRA investigator that he was asked by the applicant to report Patient E to the Department of Child Protection 'as a bad mother' with a view to having Patient B removed from her care. Dr Jose told the investigator that the applicant had asked his wife to arrange to take over Patient B's care officially on the basis that the applicant and his wife would care for Patient B unofficially.
[60] Exhibit 1, p 1.
On 4 November 2022 RMFP's office manager, Ms Marijke Simmons sent an email to Dr Krishnan about communications she had had with Patient E: [61]
What [Patient E] didn't mention in her email but did tell me verbally was something quite upsetting. In two separate consults, Darius made some very deplorable remarks. First… [redacted]… Darius told her she could make a rape case out of that. Then he said "I'd rape you too". Another consult [Patient E] came for was because she thought she had thrush. Darius's nurse Tina did an examination and said that it was not thrush and that she believed it may have been vaginitis and asked if Darius could take a look himself. Tina remained in the room whilst he performed the examination. After the examination and [Patient E] was dressed again, Tina left the room and Darius made a comment stating to [Patient E] that she had a good looking vagina and anus. I have asked [Patient E] to put these incidents in writing which I will forward to you. [Patient E] has suffered a lot of stress and anxiety over this situation and is quite scared of him.
[61] Exhibit 1, p 155.
The applicant produced an email dated 11 May 2023 from Ms Tina Barton (the nurse who was present when the applicant carried out the vaginal examination referred to in Patient E's letter to AHPRA) in which she wrote:[62]
In regards to [Patient B]. Dr darius had [Patient B] for months and on multiple occasions his mother even refused to take him back for several hours so [applicant's wife] could work. Dr Darius and [applicant's wife] had to hire baby sitters.
I worked for dr darius for 5 months and he never touched me inapropriately.
I left his employ because I was not getting enough hours and had just bought a business and wanted to support my partner in his new venture.
I was a witness to one conversation where Dr Jose advised dr Darius to involve dcp and get Patient B as a foster.
During my employ dr darius and Dr Jose were very close friends [redacted].
In regards to Dr Darius being inapropriate there was a language barrier. For example i had to teach him children not kids. Bottom not arse.. etc.
In the case of [Patient E] and her vaginal examination he said she had a good vagina and anus.. i explained that we dont say things like that. We can say health He did not mention anything about doing anything to the sexual parts.
[62] Applicant's documents (6), p 4.
Taken together the contents of Patient E's letter to RMFP, the contents of Ms Simmons' email of 4 November 2022, the contents of Patient E's letter to AHPRA of 27 March 2023 and Ms Barton's email of 11 May 2023 are sufficient to establish reasonable belief that the applicant made the remarks referred to in Patient E's letter. The Tribunal stresses this observation is not a finding that such remarks were in fact made.
On 7 June 2022 the applicant communicated with an officer of the Department of Child Protection and was given the telephone number of a central duty team.[63] He had a further conversation with an officer from DCP on 10 June 2022 and on 15 June 2022 an officer of the DCP sent him a text message noting that she had not received his 'referral' in respect of Patient B.[64]
[63] Applicant's documents (11), p 3.
[64] Applicant's documents (11), p 4.
On 23 June 2022 the applicant sent an email to the DCP with a large number of attachments. In the email the applicant wrote:[65]
Thank you very much for following on my report about the situation within [Patient E's] household, in regards to her poor care and negligences towards her 8 children. For the mentioned reason in the attached letter, which should also be considered my official report against [Patient E] to the relevant authorities, I needed to make this email as a comprehensive correspondence. That was the main reason that it took me longer than we expect, to provide this email and the required information for you.
Please see the enclosed Report Letter, alongside with the supporting evidence (as Attachments). Due to the nature of this case, I believe we will be in touch regularly for a while. Hence, please feel free to contact me anytime you need further information, as it would be my pleasure to respond to your upcoming enquiries.
[65] Applicant's documents (11), p 5.
The 'Report Letter' referred to in the email was not included in the documents provided by the applicant to the Tribunal but it is apparent from the text of the email itself and from an explanatory heading 'Official GP Report to the DCP - Dr Darius Azad' inserted on the copy of the email included in the applicant's documents that when providing the report to the DCP the applicant held himself out as Patient E's general medical practitioner. It may be inferred that by the time the applicant sent his 'official report against Patient E' to the DCP he knew that his therapeutic relationship with her had come to an end.
On 29 June 2022 the applicant sent a further email to the DCP entitled 'Request for Urgent Intervention' in which among other matters, he referred to Patient E and her husband, and wrote:[66]
While swearing about anything and pretending to be deprived of the slightest help, this couple have not yet contacted me while they know that I have been regular doctor for those children and I would love to provide care for them, and [Patient E] was constantly using that option even for minor issues in the past; now their selfishness does not allow them to call Dr Darius and seek help for [child's name], as it does not really matter what would happen to [child's name], but is important for [Mr S] and [Patient E] to prove to Dr Darius that they do not need him!
And most sadly, while I am sitting here and not being able to do anything, there is a 3-year-old innocent patient of mine, dealing with a serious condition (most possibly respiratory) who is apparently in a very bad condition that even declines to have food! The only thing that I can do at the moment is sending a letter to DCP, waiting for them to assess my letter, and be hopeful that they might decide to take some steps!!
Honesty speaking, I am devastated and it is indeed so painful for me to see the sufferings of those little ones, and the extent of stress and hardships they are through?! Why should not they have at least a normal life like many other children?! How that little [Patient B] can handle those abrupt traumas after being kept under the best possible condition and within a very calm household for 5 months?!
I do not really know what to do! But I really know that I will try everything and all avenues to help those 8 angels, who deserve to hear Fairy Tales Stories, instead of their father's (step-father for [children's names] hideous language in the public, the disgusting way of their parents talking to them at home, the annoying constant screaming and yelling at their household, and their brother becoming out of puff, wheezing and hardly breathing (because their mother has been recently very busy with her new exciting affair, to remember to buy him his puffer and taking care of him properly).
Looking forward to hearing from DCP's action in this urgent matter.
[66] Applicant's documents (11), p 6 - 7.
Insight into the applicant's perception of his relationship with Patient E is provided by statements made by him in a text message sent to Patient E on 26 March 2023:[67]
Hi [Patient E]
It has been a long time since last we spoke and there has been some changes impacting life of you guys, as well as ours.
You are aware of my personal love and affections towards children, in particular your kids. Moreover and after knowing [applicant's wife] directly during your work period at [office name] Office, you observed that she is even above me in loving children and in particular, your little ones. That was the reason that [applicant's wife] and myself have been always offering our help to close friends to take care of their children for a few days or weeks when they are facing some situations at home, as apart from your children we have hosted kids of [Mr G], our friend [Ms H], our friend [Ms I] and a few other families for days or weeks.
At the same time you could remember that it was never for the purpose of establishing a sort of ownership rights or a future custody of any of those kids, as last year when I asked you how could we have [Patient B] while on a trip you and [Mr S] said to us that we could arrange some sorts of Stat Declaration to show that we are helping you guys and I told you that I am happy to sign that I will never wish to claim any rights for the custody of [Patient B]. And it was just indeed our true intention, as we just felt like an extended family member to help you raising those lovely kids. I was seeing you as a sister, and your children as my nieces and nephews and felt responsible to help my sister with the care of her children as I was seeing that you were under enormous pressure of taking care of your populated family.
. . .
As I said I was seeing you as a sister and in general had a high trust and faith in both you and [Mr S], which was clearly reflected in my support letter to court for you. However, and similar to all brothers and sisters sometimes there might be disagreements and even fights happening between them. Especially if they are a bit crazy in some manner, as I reckon unlike our partners [Mr S and applicant's wife] who are calm, both you and myself could become a bit crazy and snappy sometimes, and things happened that should never have happened.
Lets' sit and chat and give our valuable relationship a chance to heal. I am again sorry for any pain I caused as I have also in pain of missing [Patient B], [Patient B's sister] and other boys and girls of their family. Like any other crazy brother and sister, you and I could reconcile and recover the relationship for the good of all of the loved ones.
(Emphasis supplied)
[67] Exhibit 1, p 8.
In his text message to Patient E of 26 March 2023 the applicant went to considerable lengths to attribute the damage to the 'good relationship between two families' to comments that, on his account, were made to him by Dr Jose and Dr Jose's wife and which denigrated Patient E.
On 27 April 2023 the applicant sent Patient E a letter entitled 'Defamation Concerns Notice'.[68] The applicant's letter referred to Patient E's letter to AHPRA dated 27 March 2023 and in it, the applicant asserted that the 27 March 2023 letter was not only defamatory but would be considered to be an act of 'Criminal Defamation'. In the letter the applicant suggested that the author of the letter was Dr Jose. The applicant gave Patient E until 1 May 2023 to respond to the 'Concerns Notice'. He sought confirmation as to whether Patient E had written the letter of 27 March 2023 failing which he would commence legal proceedings against her in the Supreme Court for defamation. The applicant threatened that he would seek an order that Patient E pay his 'legal costs'. In addition, the applicant referred to his text message sent to Patient E on 26 March 2023 and said:[69]
The last text message that I sent to you on 26/03/2023, was indeed a genuine expression of the way [applicant's wife] & I have been feeling about you and your lovely children.
[68] Exhibit 1, p 166.
[69] Exhibit 1, p 168 [12].
In his oral submissions to the Tribunal on 17 October 2023 the applicant described the care that he and his wife had provided for Patient B in late 2021 and early 2022 as an 'ill arrangement'.[70] The applicant explained that one of the reasons why his response to 'Patient B situation was delayed' was that he was under enormous pressure at the time.[71]
Applicant's work performance report 18 September 2022
[70] ts dated 17 October 2023, 202.
[71] ts dated 17 October 2023, 203.
On 18 September 2022 Dr Chuka completed a work performance report in respect of the applicant's performance in the period between 6 April 2022 and 18 September 2022.[72] Dr Chuka reported that the applicant 'performed consistently above the level expected'. Dr Chuka described the applicant as 'compassionate and Patient Centred' and made the following additional comments:[73]
Works with ethics, responsibility and integrity towards patients, superiors and colleagues.
Respects his supervisor and learns well from him. Is able to accept constructive criticism and feedback and learns from him.
Good mannerism and adaptable to learning with great initiatives.
Applicant accessing RMFP patient records
[72] Applicant's documents (6), p 66.
[73] Applicant's documents (6), p 70.
On 12 October 2022 Dr Gopalan lodged a notification with AHPRA about the applicant. The notification alleged that the applicant had behaved in a threatening, bullying and harassing manner and that he over-charged patients and engaged in inappropriate billing practices.[74] In response to the notification the Board considered taking immediate action in respect of the applicant but ultimately decided against doing so.[75]
[74] Exhibit 1, p 15.
[75] Applicant's documents (5), p 60; applicant's documents (4), 56.
The applicant's role at RMFP came to an end on 15 November 2022, however, the applicant continued to access the records of patients of RMFP even though he was no longer practising medicine at RMFP. The applicant accessed the medical records held by RMFP in respect of 14 patients between 4 December and 7 December 2022. In addition, the applicant accessed and took screenshots of bookings made with various doctors practising at RMFP on 1, 2, 3, 5, 6, 8, 9, 10, 12, 13, 14 and 15 November 2021. The applicant maintained that he was authorised to access and copy these medical records. When the applicant's access to RMFP's patient records was terminated, he pressed AHPRA to take steps to ensure access was restored.[76]
[76] Applicant's documents (5), p 70.
The applicant lodged a notification with AHPRA in respect of Dr Gopalan in November 2022.[77] The applicant lodged a notification with AHPRA in respect of Dr Jose in December 2022.[78] On 21 July 2023 the applicant was informed that no further action would be taken in respect of the notification made by him in respect of Dr Jose.[79]
[77] Exhibit 1, p 232 [102].
[78] Exhibit 1, p 232 [102]; applicant's documents (5), p 81.
[79] Applicant's documents (5), p 81.
On 25 January 2023 the applicant sent a letter to the Practice Manager at RMFP in the following terms:[80]
Please see the attached, WRIT OF SUMMONS for Defamation Claim filed at the Supreme Court of WA, against Dr Ross Jose. As you can observe within the INDORSEMENT OF CLAIM section, Dr Ross Jose referred numerous times to your statements or actions, which if were truly made by you, will make you liable for serious unlawful conduct and offences. There are also a few FWC correspondence by RMFP solicitor, Ms Jenny Edinger, in November & December 2022, in which your name has been expressly mentioned in relation to certain actions or statements against me.
Firstly, I demand you to read through the Writ of Summon very precisely, together with those FWC correspondence to which, you must have an access, and provide me with a precise response about those points that attributed to you. Any of those specific actions be truly taken by you, you will certainly face serious legal consequences (in addition to what you have already a Board to, i.e. the upcoming General Protection claim in front of FCA) as you clearly know I am not a person to let any wrongdoer to escape from the justice.
Secondly, I demand you to resume my access to my Work Computer through remote access as soon as possible, or alternatively inform me, who and in what position gave you the direction to block my access to my previous room computer and best practice software, so I can tune my litigation accordingly. Otherwise you will be liable for perverting the course of justice and I will definitely lodge a criminal case against you for that, as the investigations about the events at RMFP are still ongoing through various jurisdictions including AHPRA & Supreme Court (for both civil & criminal provisions) and I need to have my access back to provide the relevant documentation for those proceedings.
You have only until 5:00 pm Wednesday 01/02/2022 to provide me with your response to my demands.
(Emphasis supplied)
Applicant's conduct towards Patient C
[80] Applicant's documents (6), p 89.
Patient C was a patient managed by the applicant when he worked at RMFP. In his submissions to the Tribunal the applicant noted that Patient C faced significant mental health challenges.[81]
[81] Applicant's submissions dated 31 July 2023 [62].
On 1 December 2022 the applicant telephoned Patient C in the evening. The applicant telephoned Patient C in response to a text message she sent to him (he had missed a call from her earlier in the day). There was, however, no therapeutic reason for the applicant to contact Patient C. The next day Patient C telephoned RMFP and left a message with a member of staff who made the following note: [82]
I received a phone call from [Patient C] this morning who was very upset + distressed about a phone call she had received from Dr Darius.
Can you please call her as soon as possible as she wants to talk to you about the phone call she received.
Thanks
Toni
[82] Exhibit 1, p 175.
It may be inferred from the fact of Patient C's telephone call to the RMFP, the note reproduced above, and the text message referred to at [73] below, that Patient C was disquieted or concerned by the content of her telephone conversation with the applicant. On 2 December 2022 Dr Jose telephoned Patient C following which he made the following note in RMFP's computerised system:[83]
Call – Darius rang her last night & said is taking me to court for withholding Rx from patients.
Asked her if she had a BF
Weird , seedy , and overly touching and friendly during consults
[83] Exhibit 1, p 176.
There is no dispute that the applicant accessed and read the note made by Dr Jose of his telephone conversation with Patient C.
One day shortly after 2 December 2022 (the precise date is not apparent from the materials) at 7.43 pm the applicant sent a text message to Patient C's partner in the following terms:[84]
Hi there. It is Dr Darius. I need to send an important notice to [Patient C]. She must receive it to have a chance to avoid to be directly summoned by WA Supreme Court, please ask her to contact me or send her email address. She can also alternatively authorise you to receive that notice on her behalf and then I will be able to send the file here or to your email. This is a serious legal matter related to some criminal conduct commitment by certain people and I do not wish [Patient C] being dragged in it by ignoring the matter. Thank you very much.
Dr Darius.
[84] Exhibit 1, p 181.
Patient C's partner replied and explained that Patient C was 'very sick with Rona virus she said she will give you a call tomorrow'.[85] To which the applicant replied:[86]
Hi
There is no need for [Patient C] to call me. There is an urgent Legal Notice that she should receive it as soon as possible to become aware of a matter that are going to impact her seriously, as apparently [Patient C's] name has been used illegally by another person in a criminal offence.
Regards
Dr Darius
[85] Exhibit 1, p 181.
[86] Exhibit 1, p 182.
These exchanges were followed by a series of text messages between the applicant and Patient C.[87] In one of her text messages Patient C wrote:[88]
You did ask me whether I still had a boyfriend at the end of our conversation which I thought was weird??????
[87] Exhibit 1, p 182 - 190.
[88] Exhibit 1, p 184.
The applicant replied to this message and wrote that he did not ask Patient C whether she still had a boyfriend but whether 'are you still with your partner?'. The applicant explained that he asked the question because earlier in the conversation Patient C said that she had been through some challenges and he, the applicant, was concerned to know whether Patient C was still in a nurturing relationship with the person he understood was her partner.[89]
[89] Exhibit 1, p 185.
The 'important notice' the applicant wished to send to Patient C, and which he subsequently sent to her, was a letter entitled 'Defamation Concerns Notice'.[90] In the letter the applicant set out the full text of Dr Jose's note regarding his telephone conversation with her and set out his concerns that Dr Jose had been defaming him. The applicant made the following demand of Patient C:[91]
As by his action, Dr Jose has already involved you in this matter, I demand you to provide me with a written statement (in any form at your convenience including Paper Letter, Affidavit, Text Message or Email etc.) so I can submit it to WA Supreme Court in relation to the authenticity of Dr Jose report. I demand your response and clarification no later than 4pm (AWST) on Thursday, 05 January 2023, as I will commence my litigation against Dr Ross Jose from 10/01/2023. Dragging my patients to the court, is the last thing that I wish to do. However if I do not received the demanded declaration from you, I will be left with no choice other that acting against you and Dr Jose at the same time that unfortunately will make the situation very hard and challenging for you.
[90] Exhibit 1, p 177.
[91] Exhibit 1, p 179 [10].
On 23 March 2023 Dr Jose provided AHPRA with a statement that summarised what Patient C had told him.[92] Dr Jose's account was as follows:
[92] Exhibit 1, p 174.
Darius worked at RMFP for approx 12 months.
He was terminated here on 15-11-22 after a series of issues & his remote access to the practice server was closed.
However he continued to access patient records at RMFP via an AnyDesk app he had installed on the computer in his former consulting room without permission. When one of his personal assistants at his remote office saw him downloading Patient Files from his computer she questioned him & he replied along the lines that the idiots at RMFP didn't know that he still had remote access.
On 2-12-22 I was asked to return the call of a distressed patient [Patient C], who had received a call at her home the previous night from Darius who asked her personal questions such as did she have a boyfriend etc. [Patient C's] partner had committed suicide a year earlier.
I recorded on her file what [Patient C] told me, not suspecting that Darius would access my notes, contact the patient & take legal action for defamation against me in the Supreme Court.
Enclosed is a copy of a letter Darius sent to [Patient C] dated 23-12-22 in which he bullies & threatens [Patient C] to change her story.
Also enclosed is a copy of her file that he downloaded remotely & sent to the Supreme Court as evidence of me defaming him.
Darius has crossed a number of boundaries by continuing to have remote access illegally after his employment was terminated & to then contact many patients to support him & in this case call unsolicited & then threaten a young women with a baby who is still grieving which is disgraceful conduct.
This is in addition to numerous other examples of disgraceful conduct at this practice & the reason why he was terminated.
Applicant's conduct towards Ms P
Between April 2022 and July 2022 Ms P was employed as the applicant's nurse at RMFP. Ms P was named in a confidential notification received by AHPRA on 15 March 2023 containing statements to the effect that the applicant had made 'sexualised comments' to Ms P and touched her breasts.[93] On 30 April 2023 the applicant sent a 'defamation concerns notice' to Ms P.[94] In the defamation concerns notice the applicant asserted that Ms P had accused him of unprofessional, unethical and unlawful conduct though the applicant noted that the notification had been made by an 'unknown notifier'. The applicant asserted that the accusations made against him constituted 'criminal defamation'. The applicant demanded that Ms P inform him whether she had made the allegations by 5.00 pm on 1 May 2023 otherwise he would commence legal proceedings against her in the Supreme Court of Western Australia for defamation and that he would seek other orders.
Relations with Dr Jose
[93] Exhibit 1, p 14.
[94] Exhibit 1, p 169.
The applicant's relations with Dr Jose and his family are complicated. It appears from documents in the applicant's bundle that the applicant and his wife developed a friendship with Dr Jose and his wife and family. Members of Dr Jose's family were treated by the applicant while he practised at RMFP.[95] It appears that in 2022 Dr Jose and the applicant were contemplating establishing a medical practice together.[96]
[95] Applicant's documents (3) and (4); Exhibit 1, p 208, applicant's submissions dated 22 May 2023 [52], [132].
[96] Applicant's documents (4), p 56, 57; applicant's submissions dated 30 August 2024, [276].
By early November 2022 relations between the applicant and Dr Jose had soured and by December 2022 the applicant appears to have formed an intention to sue Dr Jose. In January 2023 the applicant commenced proceedings against Dr Jose for damages for defamation in the Supreme Court of Western Australia.[97]
Rockingham GP
[97] Exhibit 1, p 130.
On 2 April 2023 the applicant commenced practice under supervision at a medical practice known as Rockingham GP. The arrangement came to an end on 17 April 2023. In an email to AHPRA sent on 17 April 2024 Mr Harsha Jayatilake, an administrator at Rockingham GP, reported on the circumstances surrounding the cessation of the applicant's practice at Rockingham GP as follows:[98]
[98] Exhibit 1, p 62.
He started to practice on 02/04/2023 under Level 2 supervision at Rockingham GP.
End of two weeks period I did an initial review of his work with his Primary supervisor and sent him a letter (emailed) on 14/04/2023, stating some major concerns we have with some suggestions to improve.
Key concerns in a nutshell were;
1Informing us he cannot come to work as agreed with AHPRA and can work only from 10 am to 4 pm rather than agreed time of 9 – 5. Reason being can't wake up in the morning!
2.In almost all days he has closed his opened appointment slots and some of the booked appointments were rescheduled by him or by our staff. Reason being he has to attend his private work and work related to litigation.
3.His principal Supervisor was not happy with all observations mentioned in this document. Also, she noted a few times he was involved in his private matters related to court cases during consult hours and time blocked for teaching. She informs me that she lost her income due this this act.
4.She has also extended his consult time from 20 minutes to 40 minutes as he has indicated that he needed more time to complete a consult. I am not sure how viable this is in the long run.
5.Also, she noted that there are large amount of work including reporting to be done if she supervises him and whether it is worth continuing as a supervisor is a question mark to her at this point.
6.Administration staff is under additional pressure due to additional demands in the nature your practice. i.e. unexpected rescheduling and scheduling, changing software settings.
I suggested him to finish his litigation matters first and start work after, as this would provide him time and energy to concentrate on work.
He responded to me with an emailed letter today (17/04/2023), demanding many things including, I should allow him to work in our practice 3-4 months, and threatening me with legal action if I discontinue him.
He came to work today and I went to his room to discuss the matter further. However, he acted impolitely and threatened me with legal action.
My sincere intention was to discuss my suggestions in my letter and come to a constructive resolution to continue work.
I realised that he has no intention to have a good working relationship with the practice and I requested him leave the practice permanently as I cannot do our administration and supervision under this non-conducive environment created by him.
I request you to remove Rockingham GP name from his APHRA registration as keeping that would misguide our patients and the community.
Please contact me if you need further details.
The applicant commenced proceedings in the Federal Court of Australia against the owners of Rockingham GP (to which AHPRA was also joined) seeking orders that to the effect that he be re-engaged as a medical practitioner.[99]
Applicant's allegations against AHPRA
[99] Azad v Mithila Family Trust t/a Rockingham GP [2023] FCA 404.
In an email sent to an officer of AHPRA on 24 April 2023 the applicant wrote:[100]
As I promised I am updating you about the situation around my matters. There were no response from the RGP owners to my proposed conferral. So I did lodge my court application.
After my conversation with the Officer from the Notification Department, I became certain to start my litigation against AHPRA, as AHPRA has totally turned to a vehicle for criminals to reach their objectives through the most repulsive ways. I will sue AHPRA in all relevant jurisdictions.
The absurd fabricated report that was provided by two persons, [Ms P] and [Patient E], with the obvious direction from Dr Jose, was an obvious act of Criminal Defamation (a retaliatory action) and actuated my malice, for which I will soon served them with the notice of a Defamation action at the Supreme Court of WA.
[100] Exhibit 1, p 191.
On 3 May 2023 an officer of AHPRA sent an email to the applicant informing him that the Board had agreed to grant him an extension of time to respond to the proposed immediate action.[101] In the email, AHPRA encouraged the applicant to contact his professional indemnity insurer, AHPRA also informed him they were 'on notice' that he had contacted Ms P. The applicant responded to the email the same day in which he wrote:[102]
Thank you for your email. I had my hearing at the Federal Court of Australia on Monday 01/05/2023 seeking urgent order against AHPRA. The Honourable Justice Colvin directed me to take matter of AHPRA to the Supreme Court. His Honour also tasked me to provide Department of Notification of AHPRA with my submission. Hence and only to follow his Honour's direction, I will provide you with my submissions until Friday 05/05/2023, which would be technically the same materials that I am preparing for the Court.
Yesterday during my 3rd Defamation Hearing against Dr Jose (that you comically based this Notification on his recent report) at the Supreme Court of WA, I communicated the Honourable Justice Colvin's direction to the the Honourable Justice Lundberg about the jurisdiction of my matter with AHPRA. I also provided a brief history of AHPRA's repulsive approaches and it's officers' serious misconducts and constant harassment against me after my letters to the authorities in 2021. Furthermore, I reported to his Honour the appealing conduct of AHPRA in protecting Dr Vishnu Gopalan (after falsely accusing me to be an ISIS member) and Dr Ross Jose (after his first round of Defamation against me in November and December 2022), and ask for his leave to add AHPRA to the matter of Dr Jose in front of his Honour, due to AHPRA's recent sincere cooperation with that criminal in fabricating evidence against me. His Honour directed me to send my request for adding a party (AHPRA) for his Honour's assessment as the Case Manager, on which I am working. I promise AHPRA that this time I will go to the end of this road with you!
At the same time, I urge you to provide me with a full version (without strike out) of the last Notification (00519818) with the full name of the Investigation Advisor (Officer) that done that sham interview with Dr Ross Jose. I also require you to provide a report about steps that you have taken so far about my Notification against Dr Ross Jose (00515056) after nearly 5 months (if any!), because I need to provide information for the review of his Honour in that regard to that. Otherwise I will apply for discovery order.
Please also provide your name and position in AHPRA. This ridiculous way of hiding the officers name, is apparently becoming a custom in your criminal organisation. [Ms P], will definitely hear from me at least one more time at the time of being served with the Writ of Summons for my Defamation action against her. You need to familiarise yourself with the Rules, as you are in breach of the relevant provisions of the Health Practitioner Regulation National Law (WA) Act 2010, as you have never contacted me or done anything within the 60 days period after my Notification against Dr Ross Jose (your so-called Notifier here) that I made in December 2022 (00515056)! You need to also read more of legal sources to better understand the meanings for absolute/qualifies Privileged Documents. AHPRA is nobody to be able to protect peoples who are damaging others with the false allegations that are actuated by malice, and there is zero proof for it.
Lastly, it is not your business at all that how would I defend myself. I have been an Advisor for IMGs registration and coaching them for their pathways since February 2016. I have advised/coached more than 600 doctors in their registration and other pathways, including a number of them who had legal battles with AHPRA. I have observed menu absurd things from the Medical Boards, and I know how dirty is AHPRA. I have enormous documentation and witnesses (from both doctors and patients side) that have been severely damaged by your organisation. I exactly know how to deal with a corrupt organisation like AHPRA, and it happens frequently that Lawyers coming to me and asking for my advice in relation to their client's matters with AHPRA.
This time I am going to fight AHPRA to the end for all of your criminal actions against the health and safety of the public.
[101] Exhibit 1, p 200.
[102] Exhibit 1, p 198.
On 16 May 2023 the applicant applied to join AHPRA as a party to the proceedings commenced by him against Dr Jose. The applicant sought the following orders against AHPRA:[103]
1To restrain AHPRA, to continue with its illegal retaliatory actions against the Plaintiff, because of him criticising them for numerous obvious serious misconducts and corrupt acts of some of its officers over the past 3 years in relation to the various matters, impacting the first applicant and his patients, including the comprehensive complaint that the first Boards lodged on 25/10/2021, to the offices of then Federal Attorney General, State Attorney General, then State & Federal Health Ministers, as well as the Federal Parliament Member for Brand (the letter has adduced to the Affidavit as DSASC4).
2Adding AHPRA and its certain Officers as the Defendant to this matter, due the numerous common causes of actions, especially recent cooperation with the current defendant in fabricating new loads of falsified and defamatory materials against the plaintiff.
3Restraining AHPRA from any sorts of the so-called disciplinary actions (including suspension), and use of any threatening communication with the plaintiff, until the total conclusion about the plaintiff's current extensive case against them.
4To restrain the AHPRA to provide a vehicle for the plaintiff's legal opponents and assisting them in fabricating continuous groundless allegations against the first applicant, and providing them with the so-called qualified privilege of not being pursued legally due to being protected by AHPRA, and from being able to continue fabricating false materials against the plaintiff, so AHPRA could continue threatening the plaintiff about exercising its power to suspend him (to buy more time in the favours of the opponents and inflict some further financial damages to the applicant, even for a few more weeks with the hope of making him totally collapse) – it be ordered that while the plaintiff already has extensive legal cases in various jurisdictions, including Australian superior courts (FCA & Supreme Court), which almost all of them are in some ways related to those fabricated materials, any sorts of complaint be adduced to one of the related proceeding (as the plaintiff is prepared to defend himself in front of any court, as he believes in the Justice System of Australia, while he has lost his faith in the corrupt disciplinary arm of AHPRA long times ago).
[103] Souraki Azad v Jose [2023] WASC 160 at [39].
On 16 May 2023 the applicant responded to the email from AHPRA, (which did not identify the author of the email by name) by which he was notified that his registration had been suspended. In his email in reply the applicant wrote:[104]
May I know who the hell are you?! If you and your department do not have the courage to even introduce you, how come you are aiming to monitor my conduct?!
By the way I am in the process of giving your criminal organisation a painful lession and make everyone aware that the Medical Board now is technically the Public Enemy number one in this country!
[104] Exhibit 1, p 206.
In an email to the Board's solicitors sent on 29 June 2023 the applicant threatened to commence proceedings against the Board, the chairperson of the Board, various officers of the Board, RMFP, Dr Krishnan, Dr Gopalan and Dr Jose and attached a draft form of originating summons to his email. The nature of the claims the applicant foreshadowed is illustrated by the following extract from the email:[105]
Last point that I need to mention, is that for many, especially for any lawyer, it is obvious what has happened in my case, and how horribly the Medical Board of this country is now involved in certain criminal conducts (please see the attachment). Referring to that, I remind you about your important position as lawyers and Officers of the Court, and to not forget your responsibilities; any further fabrication of documents by the Medical Board and its officers would only add to the gravity of their current crimes and offences. So it is better to warn your clients very clearly about this matter. I refer you to the below quotation from the recent Judgement (on 23/06/2023) of the Honourable Justice Colvin (emphasis added by myself) in the matter of cost order that was indeed an stringent warning to the MinterEllison about your firm's unethical conduct in relation to my urgent Hearing against your client. I might seemed to be alone and legally unskillful in this legal battle, but I have a strong belief in what I am doing and also a massive faith in the Australian Justice System, which is now becoming gradually and day by day more aware of the seriousness of corruption and criminal arrangements within the Medical Board of Australia, and the unfortunate involvements of some legal professionals within this scandal.
[105] Affidavit of Alexandra Murphy affirmed 1 September 2023, Annexure 'AM1'.
Examples of the statements made by the applicant in his submissions include the following:
(a)In his submissions filed 30 August 2023 the applicant wrote:
In summary, this corrupt and criminal organisation [AHPRA] closely resembles a tyrannical kingdom from the medieval era…An institution that largely bases its governance on terror and terrifying people under its jurisdiction to maintain its powerful grip and full control over industry dynamics in favour of certain groups or networks.[106]
[106] Applicant's submissions dated 30 August 2023, [285].
…
Now, I am not even sure if the disciplinary office of MBA understands English! [107]
[107] Applicant's submissions dated 30 August 2023, [301(g)].
(b)In his submissions filed 11 September 2023 the applicant wrote:
AHPRA appears to be expanding its network of questionable practices, possibly to suppress those who champion quality medical care and Patient Accessibility. [108]
[108] Applicant's submissions dated 11 September 2023, [98(C)].
…
Maybe AHPRA is now using some new technologies, such as Satellite Guided Breast Gropometer to detect any act of breast groping.[109]
(c)In his submissions filed 13 October 2023 the applicant wrote:
However, this criminal organisation, the MBA, along with its affiliates and dubious legal representatives, persists in advancing these allegations![110]
…
I feel like a very concerned father, currently chained by the shackles placed by this criminal medical Board, fighting desperately to free himself and provide a shield for his children from the harms, and protect them against certain arrangements within the medical Board in compromising the safety of my patients by trading their welfares as bargaining chips in dealing with other dirty parts of the health industry.[111]
Applicant's personal attacks on the Board's counsel
[109] Applicant's submissions dated 11 September 2023, [139].
[110] Applicant's submissions dated 13 October 2023, [40].
[111] Applicant's submissions dated 13 October 2023, [69].
In his written submissions to the Tribunal the applicant has repeatedly attacked the competence and integrity of the Board's counsel in highly personal, offensive, and indecent terms.[112] Some of the attacks have had a sexual theme.[113] The attacks on the Board's counsel were wholly unjustified and should never have been made.
Applicant's allegations against Tribunal staff
[112] Applicant's submissions dated 13 October 2023, [61] and [63]; Applicant's submissions dated 13 October 2023, [89] and [96]; applicant's letter to the Tribunal dated 24 December 2023, [15] and [30].
[113] Applicant's submissions dated 13 October 2023 [89] and applicant's letter to the Tribunal dated 23 December 2023, [15].
As referred to earlier, during the present proceedings the applicant made serious allegations against a member of Pritchard J's staff. These allegations include alleging that the staff member 'has committed serious offenses against [him] and has deliberately attempted to damage [his] status in this matter'. The applicant 'officially' accused the staff member of 'colluding with [his] adversaries'.[114] The applicant alleged that the staff member engaged in 'malicious unprofessional conducts against [him]'.
I hold a strong reasonable belief, that one of your Honour's Associates, [Ms X], has committed serious offenses against me and has deliberately attempted to damage my status in this matter. I also officially accuse her of colluding with my adversaries! My observations over the past two to three years indicate that my legal adversaries, whom I categorise as the mafia of Primary Health Care, are bold in their actions, extending their reach to anyone, even including my former wife!
I claim that [Ms X] has repeatedly engaged in series of malicious unprofessional conducts against me, which I will elaborate upon in more details in forthcoming Letters 8(3) and 8(4).
Therefore, whether justifiably or not, I am deeply troubled by the actions of [Ms X], viewing them as serious offenses, particularly given her sensitive and pivotal role in the Chamber of the President of this Tribunal. While I am known for not hesitating to publicly voice allegations against criminals and offenders, as evidenced by my persistent accusations against a perceived powerful parliament member, labeling him a thief among other things, or my ongoing criticisms of the corrupt official, Dr Anne Tonkin, my reluctance to speak out against someone like [Ms X], who pales in comparison to the aforementioned corrupt officials, stems not from fear but from my immense respect and belief in your Honour. I prioritize protecting the reputation of this chamber, having witnessed your Honour's diligent efforts to alleviate and heal the struggles and pains of those suffering in life. My time in the tribunal has been an invaluable learning experience, providing me with significant lessons frequently – at least one every 20 minutes. Therefore, I have already outlined my approach to this matter in Paragraph 39 of this letter.
I respectfully request, if feasible, the non-involvement of [Ms X] in any of my matters and with any of my documentation, except for documents that are aimed to be served to her. Given my sense of resentment towards her, lack of trust, and the fact that I have already raised allegations of serious wrongdoing against her, albeit yet only confined to this chamber and communicated solely to your Honour, I believe it is inappropriate for her to be involved in any aspect of my matter. At the same time, I believe it is my right as a litigant to pursue such a request, considering my current sense of aggrievedness. Hence, I kindly request that if the current resources within the chamber allow, and it does not cause significant issues, that Your Honour could kindly consider this request.
[114] Applicant's letter to the Tribunal filed 22 January 2024, [28] - [32].
The applicant accepted that his conduct in making the allegations set out above was unacceptable and thus, implicitly at least, he accepted that the allegations had no foundation and should never have been made.[115]
Applicant's admissions of domestic violence
[115] ts dated 26 March 2024, p 23.
As noted earlier, in submissions to the Tribunal in the form of a letter filed on 19 November 2023, the applicant recounted two episodes of domestic violence involving him striking his wife. These have led to the applicant being charged with assault. The applicant informed the Tribunal that he had pleaded not guilty and maintained that he was provoked.[116] The applicant's wife alleges she was the subject of multiple instances of assault committed by the applicant between 2021 and 2023.[117]
The applicant's health
[116] ts dated 26 March 2024, p 24.
[117] Applicant's submissions dated 19 November 2023, p 50; applicant's letter 5B, p 45.
In his written and oral submissions the applicant informed the Tribunal of mental health difficulties that he had experienced which he described as 'breakdowns' and referred to the events that in his view had precipitated these breakdowns which occurred over three separate periods in the last 12 months. The applicant informed the Tribunal that he did not have a regular general medical practitioner.[118] It appeared to the Tribunal that the applicant is managing his own health with limited and ad hoc assistance from others.[119] The applicant disclosed that he had consulted a psychiatrist, something he had found helpful, and that he had a further appointment.[120]
[118] ts dated 26 March 2024, p 30.
[119] ts 29.
[120] ts dated 26 March 2024, p 26.
Consideration and disposition
Summary of conclusions
Some of the materials reviewed by the Tribunal provide support for the conclusion that by practising the profession of medicine the applicant has the capacity to make a valuable contribution to the community. That said, the overwhelming impression the Tribunal has formed of the applicant is that he is a doctor in crisis whose conduct has demonstrated a lack of understanding of important ethical principles that guide the practice of medicine.
The Tribunal acknowledges there is a public interest in ensuring that appropriately qualified doctors are permitted to practise their profession for the benefit of the community generally. The Tribunal also acknowledges that to take action that prevents a professional person from earning their living is something that is not to be done lightly. It is a very serious step with grave repercussions for the individual practitioner.
Nevertheless the Tribunal has formed the reasonable belief that it is in the public interest that the applicant's registration as a medical practitioner should be suspended because it is necessary to maintain the public's confidence in the medical profession. In reaching this belief the Tribunal has relied on those aspects of the applicant's conduct towards Patient E, Patient B, Patient C, Ms P, AHPRA, the Board, the Board's counsel and the member of Pritchard J's staff that were not the subject of any material factual dispute. The Tribunal has also taken into account (in the manner described later in these reasons) the admissions of domestic violence made by the applicant and the limited information available to the Tribunal about the applicant's health. The Tribunal has come to the reasonable belief that immediate action is in the public interest without the necessity to rely on the allegations made by Patient E as to the offensive remarks she says were made by the applicant and without the necessity to rely on the allegations made in respect of the applicant's conduct towards Ms P. The Tribunal notes the applicant strenuously disputes those allegations.
The Board's decision to take immediate action was made under s 156(1)(a) of the National Law. As has been recorded earlier the applicant's authority to practise medicine was subject to the requirement that he would be supervised by a supervisor approved by the Board. The applicant has had no supervisor since 17 April 2023. The process of obtaining approval for a supervisor (assuming that the applicant was able to find a suitable nominee) is one that takes several weeks. Against that background the Tribunal is unable to conclude that immediate action under s 156(1)(a) is necessary to protect public health or safety.
In the paragraphs that follow the Tribunal expands on the reasons why it has come to the reasonable belief it is in the public interest to suspend the applicant's registration as a medical practitioner.
Some basic principles
It is convenient to refer to some basic principles that govern the practice of medicine. Many of these principles are embodied in the Good Medical Practice Code. In clause 1 of the Good Medical Practice Code its purpose is expressed as follows:
1.1Purpose of the code
Good medical practice (the code) describes what is expected of all doctors registered to practise medicine in Australia. It sets out the principles that characterise good medical practice and makes explicit the standards of ethical and professional conduct expected of doctors by their professional peers and the community. The code was developed after wide consultation with the medical profession and the community. It is addressed to doctors and is also intended to let the community know what they can expect from doctors. The application of the code will vary according to individual circumstances, but the principles should not be compromised.
This code complements the Australian Medical Association Code of ethics and is aligned with its values. It is also consistent with the Declaration of Geneva and the International code of medical ethics, issued by the World Medical Association.
This code does not set new standards. It brings together, into a single Australian code, standards that have long been at the core of medical practice.
. . .
The practice of medicine is challenging and rewarding. No code or set of guidelines can ever encompass every situation or replace the insight and professional judgement of good doctors. Good medical practice means using this judgement to try to practise in a way that would meet the standards expected of you by your peers and the community. (footnotes omitted)
Relationships between doctors and their patients are based on trust and effective communication. Clauses 4.1 and 4.2 of the Good Medical Practice Code provide:
4.1Introduction
Relationships based on respect, openness, trust and good communication will support you to work in partnership with your patients.
4.2Doctor-patient relationships
A good doctor–patient partnership requires high standards of professional conduct. It involves:
4.2.1Being courteous, respectful, compassionate and honest.
4.2.2Treating each Patient As an individual.
4.2.3Protecting patients' privacy and right to confidentiality, unless release of information is required or permitted by law.
4.2.4Encouraging and supporting patients and, when relevant, their carer or family, to care for themselves and manage their health.
4.2.5Encouraging and supporting patients to be well informed about their health and to use this information wisely when they are making decisions.
4.2.6Recognising that there is a power imbalance in the doctor–patient relationship, and not exploiting patients in any way, including physically, emotionally, sexually or financially.
It is important that doctors do not allow personal feelings or relationships to cloud their professional judgment. Clauses 10.1 and 10.2 of the Good Medical Practice Code provide:
10.1Introduction
In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct.
The guidance contained in this section emphasises the core qualities and characteristics of good doctors outlined in section 2 on Professionalism.
10.2Professional boundaries
10.2.1Maintaining professional boundaries.
10.2.2Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian, spouse or the parent of a child patient. The Board has developed Guidelines: Sexual boundaries in the doctor–patient relationship, which apply to all doctors.
10.2.3Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or are likely to cause them distress.
An aspect of maintaining professional boundaries is that a doctor should not provide medical care to a person with whom they had a close personal relationship because of the potential that their capacity for objective professional judgment may be compromised by the personal relationship. This principle is embodied in cl 4.15 of the Good Medical Practice Code which provides:
4.15Providing care to those close to you
Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the Patient And doctor. In particular, medical practitioners must not prescribe Schedule 8, psychotropic medication and/or drugs of dependence or perform elective surgery (such as cosmetic surgery), to anyone with whom they have a close personal relationship.
In some cases, providing care to those close to you is unavoidable, for example in an emergency. Whenever this is the case, good medical practice requires recognition and careful management of these issues.
Public confidence in the medical profession is undermined if doctors do not treat each other with respect. Clauses 5.1 and 5.2 of the Good Medical Practice Code provide:
5.1Introduction
Respectful relationships with medical colleagues, other healthcare professionals, team members and patients are essential for safe Patient Care.
5.2Respect for medical colleagues and other health care professionals
Good Patient Care is enhanced when there is mutual respect and clear communication between all healthcare professionals involved in the care of the patient. Good medical practice involves:
5.2.1Acknowledging and respecting the contribution of all healthcare professionals involved in the care of the patient.
5.2.2Communicating clearly, effectively, courteously, respectfully and promptly with other doctors and healthcare professionals caring for the patient.
5.2.3Behaving professionally and courteously to colleagues and other practitioners including when using social media.
Patients have a right to complain about doctors. This must be accepted and acknowledged by doctors. Clause 4.12 of the Good Medical Practice Code provides:
4.12When a complaint is made
Patients who are dissatisfied have a right to complain about their care. When a complaint is made, good medical practice involves:
4.12.1Acknowledging the patient's right to complain.
4.12.2 information about the complaints system.
4.12.3Working with the patient to resolve the issue, locally where possible.
4.12.4Providing a prompt, open and constructive response, including an explanation and, if appropriate, an apology.
4.12.5Ensuring the complaint does not adversely affect the patient's care. In some cases, it may be advisable to refer the patient to another doctor.
4.12.6Complying with relevant complaints law, policies and procedures.
4.12.7Reflecting on the complaint and learning from it.
The applicant's relations with Patient E and Patient B
The applicant's submissions about the relationship he and his wife established with Patient E and Patient B were lengthy. The four main points the applicant conveyed in his submissions were, first, his actions were motivated by a concern for the wellbeing of Patient E's children and in particular, her new born son, Patient B,[121] secondly, it was his wife who developed and encouraged the social relationship and his role was a secondary one,[122] thirdly, Patient E was a selfish neglectful mother and of bad character and no reliance could be placed on any statements made by her[123] and fourthly, Patient E had been manipulated into making complaints about him by Dr Jose.[124]
[121] Applicant's submissions dated 30 August 2023, [160].
[122] Applicant's submissions dated 13 October 2023, [71].
[123] Applicant's submissions dated 30 August 2023, [147], [169], [187], [191].
[124] Applicant's submissions dated 30 August 2023, [217], [218].
The Tribunal will focus on the following aspects of the applicant's relations with Patient E and Patient B, about which there was no material dispute, and which the Tribunal considers were established by the materials reviewed by it.
(a)Patient E and her children, most relevantly Patient B, were patients of the RMFP under the applicant's care from about September 2021 to a date in May 2022 (the materials reviewed by the Tribunal do not disclose a precise date).
(b)Patient E suffered from a serious mental health disorder that deteriorated following the birth of Patient B in August 2021.
(c)A social and personal relationship developed between the applicant and his wife and Patient E. The applicant and his wife took Patient B into their care for a period of approximately four to five months from about late 2021 to early May 2022.
(d)The nature of the relationship was described by the applicant in his text message to Patient E on 26 March 2023 in which he said he saw Patient E as 'a sister' in whom he 'in general had a high trust and faith' though he said they were both 'a bit crazy' and he expressed the hope that 'like any other crazy brother and sister, you and I could reconcile and recover the relationship for the good of all of the loved ones'.
(e)In the applicant's letter to the magistrate of the Family Court dated 24 March 2022 he referred to Patient E in her capacity as a mother in very positive terms.
(f)Some nine weeks later in his text message to her on 31 May 2022 the applicant was highly critical of the care provided by Patient E to her children.
(g)By June 2022 the applicant was pressing the DCP to intervene in Patient E's family.
(h)Following receipt of a copy of Patient E's letter to AHPRA dated 27 March 2023, the applicant asserted in the defamation concerns notice he sent to Patient E that the contents of her letter constituted 'an act of Criminal Defamation'.
The following observations may be made about the conduct summarised in the preceding paragraph.
First, although the applicant may have been motivated by altruistic intentions, by permitting a personal and social relationship to develop with Patient E to the point that he came to regard her as 'a sister', the applicant ignored the importance of maintaining a professional boundary with Patient E. It is apparent from the terms in which the applicant described his relationship with Patient E and her children that both he and his wife derived emotional satisfaction from being involved in Patient E's family life, and, particularly from being involved in the care of Patient B. The existence of the personal relationship and his emotional attachment to Patient B not only had the capacity to compromise his professional judgment but, for the reasons developed in the following paragraph, it did, in fact, compromise his professional judgment.
Secondly, by any objective standard the language used by the applicant in his text message to Patient E of 31 May 2022 ('your usual neglectful manner in the care of your children' and 'how reckless and neglectful you are towards the well-being of your children') was judgmental and disrespectful. It is also very difficult to reconcile such language with the positive impression of Patient E as a mother created in the applicant's letter to the Family Court of 24 March 2022. Many things may be said about the applicant's use of such language. For present purposes, it is sufficient to make four points. First, the applicant used language that a doctor should never use when communicating with a patient (or former patient). It is manifestly inconsistent with the requirement that a doctor communicate with patients in a courteous, respectful and compassionate manner. Secondly, that the applicant used such language with Patient E is a powerful indication of the extent to which his professional judgment had been compromised by the personal relationship he had allowed to develop. Thirdly, Patient E was a vulnerable patient suffering from a serious mental illness. The receipt of a communication containing such harsh personal observations had the capacity to damage her health and damage her confidence in the medical profession. Fourthly, there is nothing in the materials reviewed by the Tribunal that suggests the applicant has reflected on the language used by him or has any insight into why communicating with a vulnerable patient in those terms was not only inconsistent with a respectful and trusting therapeutic relationship but detrimental to the maintenance of such a relationship.
Thirdly, the steps taken by the applicant to report Patient E to the DCP and the language used by him in doing so give rise to a number of concerns. First, while there may be circumstances in which it is appropriate for a doctor to report a patient to the DCP without first discussing that step with them, approaching and engaging with officers of the DCP without discussing his intention to do so with Patient E, or with the doctor who was then responsible for her care, is conduct that had the capacity to undermine Patient E's confidence in the medical profession. It is inconsistent with a relationship of trust. Secondly, in his email to the DCP officer of 23 June 2022, the applicant held himself out as writing in an 'official capacity', implicitly as Patient E's doctor, but by that stage the therapeutic relationship was over. Thirdly, the applicant's communications with the DCP are expressed in emotive and judgmental terms that bespeak a lack of professional objectivity. This was compounded by the fact that the applicant had formed judgments about Patient E's family on the basis of what he had learned through their social relationship as well as the therapeutic relationship. Moreover, that the applicant expressed an interest in being involved in the DCP investigation as it proceeded was a further indication of a lack of objectivity. Assessed objectively, the applicant's conduct had the potential to undermine the DCP's protective role.
Fourthly, by serving the defamation concerns notice on Patient E asserting that her notification to AHPRA constituted a criminal defamation the applicant failed to respect Patient E's right to make a complaint about him. Viewed objectively, whether this is what the applicant intended or not, the defamation concerns notice appeared to be an attempt to intimidate Patient E into withdrawing her complaint. The impression created by the service of the defamation concerns notice on Patient E (and indeed created by the service of similar notices on Patient C and Ms P) is that the applicant viewed his relations with patients and colleagues through the lens of the rights that he considered he was entitled to enforce through the courts rather than through the lens of his professional obligations.
Fifthly, although the applicant referred to the relationship with Patient E as an 'ill arrangement', he appears to have no adequate understanding that by permitting a personal relationship to develop with Patient E in the manner described in these reasons he failed to maintain the necessary professional boundaries with Patient E and failed to treat with her respect and courtesy. The denigration of Patient E in the applicant's submissions is unedifying and creates the impression the applicant is transferring responsibility for consequences of the 'ill arrangement', which he permitted to develop, to Patient E. The applicant appears to have very limited insight, if any, into how his personal relationship could compromise his professional judgment. The absence of understanding and insight is a matter of grave concern because the Tribunal can have no confidence that if permitted to practise the applicant will maintain the necessary professional boundaries with other patients.
The applicant's relations with Patient C
The applicant's submissions characterise Patient C as a patient who was appreciative of the care he had provided to her and her family members when he practised at RMFP. He asserted that Dr Jose had lied about the content of his telephone conversation with Patient C on 2 December 2022 as part of his campaign against the applicant.[125]
[125] Applicant's submissions dated 30 August 2024, [272] - [274].
The Tribunal will focus on the following aspects of the applicant's relations with Patient C, which were not in dispute and which the Tribunal considers were established by the materials reviewed by it.
(a)By 1 December 2022 any therapeutic relationship between the applicant and Patient C had come to an end (the applicant was without a supervisor approved by the Board and thus, there was no possibility of a therapeutic relationship).
(b)The applicant and Patient C spoke on the telephone in the evening of 1 December 2022. During the telephone conversation the applicant asked Patient C about her relationship.
(c)Sometime after 2 December 2022 the applicant accessed RMFP's notes in respect of Patient C and read Dr Jose's note of his conversation with Patient C.
(d)There was no professional justification for the applicant accessing and reading Dr Jose's note.
(e)The applicant's text messages to Patient C's partner insisted that Patient C communicate with him even though he was informed that Patient C was unwell.
(f)The applicant sent Patient C a defamation concerns notice about the content of a confidential communication between her and Dr Jose that occurred during a therapeutic relationship.
Every aspect of the applicant's conduct towards Patient C was fundamentally inconsistent with his professional and ethical responsibilities as a doctor. When the applicant spoke to Patient C on the telephone on 1 December 2022 and asked her a personal question about her relationship, he was no longer her doctor. There was no therapeutic reason for asking the question and, viewed objectively, it was an intrusive question. The applicant failed to recognise the limits of his role as Patient C's former doctor, that is, he failed to recognise the professional boundaries. By accessing Patient C's confidential medical records and using those records for his own purposes the applicant misused confidential information in a manner that was calculated to undermine the trust that Patient C was entitled to have in the medical profession, more specifically that her medical records would be kept confidential and would not be used for purposes unrelated to her treatment and management. By serving a defamation concerns notice expressed in intimidating language and containing threats to sue Patient C for defamation over statements reportedly made by her during a confidential medical consultation the applicant compounded the consequences of his earlier conduct. Once again, the applicant's focus appears to have been his legal dispute with Dr Jose and his conduct demonstrated no regard for his professional obligations. The applicant's conduct towards Patient C was destructive of the trust and confidence that Patient C was entitled to have in the applicant as a doctor who had been involved in her care and in the medical profession generally.
The applicant has demonstrated no insight or understanding into why his conduct in relation to Patient C involved breaches of his professional and ethical obligations. The applicant attempted to justify his conduct by reference to the allegations he has made about the conduct of Dr Jose and other doctors and staff at RMFP. Unfortunately, this response misconceived the nature of the Board's concerns and reinforced the conclusion that the applicant had no understanding of his ethical responsibilities.
Applicant's accessing RMFP notes
The applicant did not dispute that he accessed the notes of other patients after he had left RMFP and, when steps were taken to prevent further access, he demanded that his access be restored. If the applicant's concern was to have access to the notes for the purposes of addressing the allegations made against him, then the correct course would have been for him to press AHPRA to produce the notes.
The aspect of the applicant's conduct in accessing the notes that is of most concern to the Tribunal is that the applicant wanted access to the notes for the purpose of the litigation he was conducting. The applicant made his purpose in seeking access to the notes clear in his email dated 25 January 2023 to the Practice Manager of RMFP. He wanted access so that he could 'tune his litigation' and 'provide the relevant documentation for those proceedings'. Leaving to one side the question of whether the applicant had any rights to have access to the patients' notes, the applicant appears to have had no appreciation of the impropriety of using patients' confidential medical records for his own purposes.
Ms P
In his submissions the applicant denied the allegations of misconduct in respect of Ms P.[126] The applicant was highly critical of AHPRA for asking him to respond to a 'confidential' notification and regarded the allegations as part of a campaign by his former colleagues at RMFP to discredit him.[127]
[126] Applicant's submissions dated 30 August 2023, [235].
[127] Applicant's submissions dated 30 August 2023, [237].
The applicant did not dispute serving a defamation concerns notice on Ms P. The defamation concerns notice was expressed in intimidating language and demanded Ms P inform him whether she had made the allegations against him failing which he would commence proceedings. Ms P was under no obligation to provide the applicant with any information. Responding to a notification about his conduct by threatening to commence defamation proceedings against a prospective witness was a step that had the potential to interfere with the investigation of the allegations the subject of the notification. Objectively, whether this is what the applicant intended or not, the service of the defamation concerns notice appears to be an attempt to stifle the investigation. The plaintiff had a professional obligation to co-operate with any investigation into his conduct and not to take steps that were likely to obstruct the investigation.
It is apparent that the applicant viewed the service of the defamation concerns notice on Ms P as a step he was entitled to take as part of the litigation contemplated by him. It appears that the applicant gave no consideration to his professional responsibilities when he decided to serve the defamation concerns notice on Ms P. The Tribunal's strong impression is that the applicant had and has no appreciation of those professional responsibilities.
Conduct directed to AHPRA, the Board, its counsel and Tribunal staff
The applicant's submissions are replete with statements attributing criminality and corruption to AHPRA, the Board and their respective officers and employees. There were some representatives of AHPRA and some members of the Board's legal team about whom the applicant made complimentary observations but these were very much the exception.
In oral submissions on the final day of the hearing the applicant informed the Tribunal that he accepted that the personal attacks made by him on the Board's counsel and on the member of Pritchard J's chambers were unacceptable.[128]
[128] ts dated 26 March 2024, p 23.
There was no material dispute about the following aspects of the applicant's conduct towards AHPRA, the Board, the Board's counsel and the member of Pritchard J's staff. They are established by the material reviewed by the Tribunal.
(a)The applicant attempted to join AHPRA as a party to his Federal Court proceedings against Rockingham GP and as a party to his defamation proceedings in the Supreme Court against Dr Jose.
(b)The applicant has threatened proceedings against the Board and named officers of the Board.
(c)The applicant has accused AHPRA and the Board and their employees and officers of criminal and corrupt conduct. The accusations are expressed in abusive terms. The applicant's attitude towards the Board and AHPRA is characterised by hostility and contempt.
(d)The applicant has attacked the competence and integrity of the Board's counsel in highly personal, offensive, and indecent terms.
(e)The applicant made serious allegations of unprofessional behaviour against a member of Pritchard J's staff that have no basis in fact.
It is to the applicant's credit that (late in the day that it was) he acknowledged that at least some of his conduct was unacceptable but assessed in its totality the conduct summarised in the preceding paragraph reveals (i) the applicant does not have an appreciation of the regulatory framework applicable to the medical profession (ii) he has difficulties in self-regulation which manifests in an inability to refrain from making unfounded and offensive allegations against those with whom he perceives he is in conflict and (iii) he has no proper understanding of the obligations owed by him as a member of the profession when dealing with the body charged with regulating the profession.
To put the points made in the preceding paragraph in a different way, that the applicant chose to make personal attacks on the integrity of those with whom he deals in his professional life gives rise to a real concern about the applicant's capacity to make the professional judgments that are necessary to be a member of a profession which depends on collaborative working relationships based on mutual respect and trust.
Further, a member of the medical profession must deal with AHPRA and the Board in a frank, courteous and constructive manner. This is not to suggest that there will not be cases in which it is appropriate for a doctor to take steps to protect their rights by commencing proceedings against AHPRA or the Board. Communicating with AHPRA and the Board in the language used by the applicant is not only entirely counterproductive but it serves to bring the profession into disrepute with members of the community.
The Tribunal has no confidence that if permitted to practice the applicant would respect the authority of the Board and the role played by AHPRA. This is an important matter because one way in which the Board can ensure patient safety is by the imposition of conditions on the applicant's registration but this is only effective if the Board has a reasonable level of confidence the doctor will abide by the conditions. The applicant's hostile and contemptuous attitude towards the Board and AHPRA undermines the Tribunal's confidence in the applicant's willingness to comply with conditions. This is a matter to which the Tribunal returns at [134] below.
Applicant's admissions of domestic violence
As noted by the Tribunal earlier, the applicant admitted striking his wife on two occasions in June 2023 and that he is being prosecuted for assault though he is defending the proceedings. It is unnecessary to consider whether the applicant's admissions and the pending criminal proceedings are matters which, if taken in isolation, would justify the reasonable belief that it is in the public interest that immediate action in the form of a suspension of practice be taken. The admissions made by the applicant and the criminal proceedings form part of the broader circumstances that must be considered by the Tribunal. Viewed most charitably, the admissions of domestic violence are indicative of a doctor in crisis.
The applicant's health
The information available to the Tribunal about the applicant's health is limited but was not reassuring. The impression formed by the Tribunal was the applicant has mental health issues requiring proper assessment and management.
Jupiter Health matters
The applicant does not dispute that he uploaded videos containing allegations about the conduct of Dr Marashi and Dr Hadipour onto social media. This was conduct that was likely to undermine the confidence of the public in the medical profession. The Board, assisted by AHPRA, is charged with the responsibility of investigating concerns about the conduct and competence of doctors. Rather than uploading videos to social media the applicant should have confined himself to making appropriate notifications to AHRPA. To his credit, however, the applicant has acknowledged that he should not have uploaded the videos.[129]
[129] ts dated 26 March 2024, p 34 - 35.
The applicant's decision to upload the videos reinforces the Tribunal's concerns about his lack of professional judgment but does not weigh to any material extent in the consideration of whether immediate action should be taken.
It is possible, as the Board contends, that the applicant's attendance at the consultation with Professor Bremner on 10 December 2020 is indicative of a failure by him to appreciate professional boundaries but that is a contestable proposition. Ultimately, given the gravity of the other conduct of the applicant described above, it is not a matter of substantive significance in the context of this application.
The applicant's professional skills
As the Tribunal noted at [93] some of the materials reviewed by the Tribunal support the conclusion that the applicant has the capacity to manage and treat patients competently. The Work performance reports completed by Dr Hadipour and Dr Chuka refer to the applicant's skills in glowing terms. That the applicant treated members of Dr Jose's family and that Dr Jose was contemplating entering into medical practice with the applicant suggests that, at least at one point in their relationship, Dr Jose considered the applicant was able to treat patients competently.
It is in the public interest for those who are qualified to practise medicine to be permitted to do so and considered in isolation, the applicant's apparent competence is a factor that weighs against immediate action in the form of a suspension of his registration and weighs in favour of permitting the applicant to practise subject to conditions crafted to ensure that there is no repetition of conduct of the kind to which the Tribunal has referred. There are three significant difficulties in taking limited immediate action in the form of the imposition of conditions. First, the gravity of the applicant's conduct, his failure to appreciate and observe basic ethical principles and his lack of insight support the conclusion that only suspension will be sufficient to protect the public and maintain the public's confidence in the medical profession. Secondly, as foreshadowed in the Tribunal's observations at [126], the applicant's attitude towards the Board and AHPRA is such that the Tribunal is not confident that the applicant would abide by such conditions and would co-operate with AHPRA's monitoring of his observance of the conditions. Thirdly, the applicant was only permitted to practise subject to supervision and if permitted to practise subject to conditions, the requirement for supervision would continue. Both supervision and practising subject to conditions would require the applicant to work collaboratively and respectfully with professional colleagues. On the materials available, the Tribunal is not confident the applicant, at present at least, has the capacity to work in that way.
Conclusion
Taken in combination the matters described at paragraphs [104] to [129] and [134] have led to the Tribunal to form the reasonable belief that it is in the public interest that the applicant's registration as a medical practitioner be suspended.
Orders
The Tribunal orders that:
The decision of the Medical Board of Australia to suspend the applicant's registration as a medical practitioner under s 156(1)(a) of the Health Practitioner Regulation National Law be set aside and in its place there be a decision that the applicant's registration as a medical practitioner be suspended until further order under s 156(1)(e) of the Health Practitioner Regulation National Law.
The application is otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MH
Associate to the Honourable Justice Tottle
14 AUGUST 2024
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