The Medical Board Of Australia v Al-Naser; (Occupational Discipline)

[2015] ACAT 15

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE MEDICAL BOARD OF AUSTRALIA v AL-NASER

(Occupational Discipline) [2015] ACAT 15

OR 9 of 2014

Catchwords cited:     OCCUPATIONAL DISCIPLINE –  Health Practitioner – Medical Practitioner – consent decision – conflict of interest – failure to refer patient to another medical practitioner for treatment – failure to notify Board of notifiable conduct of other practitioner – breach of section 141 of National Law – inappropriate personal comments to patient – failure to take any action in relation to conduct of other medical practitioner

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 (ACT) s 55
  Health Practitioner Regulations National Law (ACT) ss 141,   195

Tribunal:                   Ms L. Crebbin – General President

Date of Orders:         4 February 2015         

AUSTRALIAN CAPITAL TERRITORY               )
CIVIL AND ADMINISTRATIVE TRIBUNAL     )          NO:    OR 14/09

RE:THE MEDICAL BOARD OF AUSTRALIA

Applicant

AND:DR NATHEM

AL-NASER

Respondent

CONSENT DECISION PURSUANT TO SECTION 55 OF THE
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2008 (ACT)

Tribunal:                   Ms L. Crebbin – General President

Date of Order:          4 February 2015

Having regard to the application filed in these proceedings, the Respondent’s Statement of Facts and Contentions and the Statement of Agreed Facts attached to and forming part of these conditions and orders, I am satisfied that a decision in the terms agreed by the parties is within the power of the Tribunal and is appropriate for the Tribunal to make. Consent orders are therefore made pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008 as follows:

The Tribunal orders by consent that:

1. The Respondent has engaged in professional misconduct.

2. The Respondent be reprimanded.

3. The Respondent attend and successfully complete the Cognitive Institute’s Intensive Performance and Professionalism Series: Clinical Communication Programme.

4. For a period of 2 years from the date of this order, the Respondent is not to have any actual or perceived role as a supervisor in any practice that he owns, has an interest in or works in. It is noted that ‘supervise’ includes but is not limited to decisions in relation to:

   (a)The professional supervision of employed/contracted medical practitioners;

   (b)The review of any complaints made against employed/contracted medical practitioners;

   (c)The ethical obligations of employed/contracted medical practitioners; and

   (d)Giving advice, guidance or directions to medical practitioners relating to their professional obligations;

   But it does not include decisions in relation to:

   (e)Hiring or terminating employed or contracted medical practitioners;

   (f)The business management of medical practices owned by the Respondent;

   (g)The setting of financial policies and directions to be followed by employed medical practitioners; and

   (h)The financial management of the practice generally.

5. Once condition 4 is recorded on the AHPRA public register, any employer of the Respondent and all medical practitioners at any practice that the Respondent owns or works at may be advised by AHPRA of condition 4.

6. The Medical Board of Australia appoint a mentor for the Respondent within 14 days of the date of these orders, who will have a monthly meeting with the Respondent to discuss any issues of clinical practice, medical ethics and cultural awareness for a period of twelve months.

7. The Applicant authorises the mentor to provide 6 monthly reports to the Medical Board of Australia.

8. The Respondent forward to the mentor, for discussion and remedial action, any complaints made about him by patients of his practice.

9. The review period for condition 4 is 2 years.

10. The review period for conditions 3, 6, 7 and 8 is 6 months.

11. The Respondent is to pay the Applicant’s costs of these proceedings on a party/party basis at the Supreme Court of the ACT scale, in an amount to be agreed or failing agreement, to be assessed by the Tribunal, such costs to be paid within 28 days of agreement or assessment.

The Tribunal notes that order 11 is made under section 195 of the Health Practitioner Regulation National Law (ACT).

........................................

Ms L. Crebbin

General President

In the Australian Capital Territory Civil and Administrative Tribunal

OR 14/09

MEDICAL BOARD OF AUSTRALIA

Applicant

DR NATHEM AL-NASER

Respondent

STATEMENT OF AGREED FACTS

1. Qualification and Registration details

1.1The Respondent commenced his own practice as a General Practitioner on 1 July 1999. He owns and manages the Belconnen Medical Centre and 2 other medical practices.

1.2During the period February to October 2012 the Respondent engaged Dr Maged Khalil at the Belconnen Medical Centre. 

1. Conduct of the Respondent

2.1During the period 24 February 2012 to 29 October 2012 the patient and Dr Maged Khalil engaged in a sexual relationship.  That relationship led to proceedings against Dr Khalil before this Tribunal (OR 13/19).  The Respondent was unaware of this relationship until 29 October 2012. 

2.2On 29 October 2012, the patient requested and attended a consultation with the Respondent and then attended a further five consultations with the Respondent up to and including 25 March 2013.

2.3Each of the 6 consultations between the patient and the Respondent focussed on the relationship that had developed between the patient and Dr Khalil and the effect that relationship had on the patient’s health.

2.4At the 6th and final consultation on 25 March 2013 at the request of the patient, the Respondent prepared a mental health plan for the patient and, at the patient's request, referred her to Dr Eryn Davies, clinical psychologist, for treatment. 

2.5The Respondent treated the patient between 29 October 2012 and 25 March 2013 on 6 occasions and despite the existence of a conflict of interest he did not refer the patient to another medical practitioner for treatment.  The Respondent did not refer the patient to a psychologist until 25 March 2013.

2.6In breach of section 141 of the Health Practitioner Regulation National Law (ACT) the Respondent did not notify the Applicant of Dr Khalil's conduct.

2.7In the course of providing treatment to the patient, the Respondent engaged in physical contact with the patient and made comments of a personal nature regarding the patient's youthfulness, her looks and her similarity to a former girlfriend of the Respondent.  The comments were made in a way which the Respondent thought reflected the context of counselling consultations, however, they were inappropriate, particularly in circumstances where the patient was a victim of a sexual misconduct boundary violation. 

2.8The Respondent did not take any action in relation to Dr Khalil's conduct and allowed Dr Khalil to continue working at the Belconnen Medical Centre until after the matter had been reported to the Applicant by Dr Eryn Davies and the patient.

Steve Webber
A solicitor employed by

Australian Government Solicitor

Solicitor for the  Applicant

 Mark Treffers

MINTER ELLISON

Solicit  Solicitors for the Respondent

D

Date:      4  February 2015

HEARING DETAILS

FILE NUMBER:	OR 14/09
PARTIES, APPLICANT:	Medical Board of Australia
PARTIES, RESPONDENT:	Dr Nathem Al-Naser
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	Mr Webber, Australian Government Solicitor
SOLICITORS FOR RESPONDENT	Mr Treffers, Minter Ellison
TRIBUNAL MEMBERS:	Ms L. Crebbin – General President
DATES OF HEARING:	4/02/2015