Shehata v Director of Proceedings
[2019] NZHC 615
•28 March 2019
NOTE: PUBLICATION OF NAME OF COMPLAINANT PROHIBITED BY S 98 OF THE HEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT
2003
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2018-454-31
[2019] NZHC 615
BETWEEN NASSER SHEHATA
Appellant
AND
THE DIRECTOR OF PROCEEDINGS
Respondent
Hearing: 30 August 2018 Appearances:
W G Manning for Appellant
K M Eckersley and J V Herschell for Respondent
Judgment:
28 March 2019
JUDGMENT OF GRICE J
[1] Dr Shehata is a consultant gynaecologist and obstetrician. The Health Practitioners Disciplinary Tribunal (the Tribunal) found him guilty of professional misconduct under the Health Practitioners Competency Assurance Act 2003 (HPCA Act).1
[2] Dr Shehata appeals the three-month suspension which was part of the penalty imposed on him.2 On 24 April 2018, the Court granted Dr Shehata’s application to stay his suspension pending determination of this appeal.
1 Health Practitioners Competency Assurance Act 2003, s 100(1)(a) and (b).
2 Director of Proceedings v Shehata HPDT 958/MED 17/396D, 16 March 2018.
NASSER SHEHATA v THE DIRECTOR OF PROCEEDINGS [2019] NZHC 615 [28 March 2019]
Background
[3] The factual background is well summarised in the Tribunal decision as follows:3
9.[The patient]4 was referred by her general practitioner to Dr Shehata, the letter referring to [the patient]’s worrying for simple reasons and anxiety and other relevant matters, the clinical problem being “post coital bleeding for … assessment and opinion and management”.
10.[The patient] consulted with Dr Shehata on 17 March 2015 and it was recommended that she have a diagnostic hysteroscopy, dilatation and curettage, an endometrial biopsy and insertion of a Mirena. [The patient] had had an IUD previously and said that she told Dr Shehata that she had not had any problems but did not want another one. A Request for Surgical Treatment/Procedure form was filled in by Dr Shehata. In his Section C in the Procedure to be performed Dr Shehata wrote: “… + Mirena insertion”. The remainder of that form was then completed by [the patient] later, at the time of the procedure and she deleted those words from the form and also wrote the word “Mirena” in the section: “I do/do not give permission for …” Because there was no deletion in the expression that was ambiguous.
11.There was disputed evidence before the Tribunal about the discussions between [the patient] and Dr Shehata concerning the Mirena, and the reasons behind inclusion of insertion of the Mirena on the consent form at a later date, but the Tribunal does not need to resolve those issues. This is because on 4 May 2015 when [the patient] attended for the proposed surgery and while she was in the ward prior to surgery she expressly deleted from the consent form reference to insertion of the Mirena. Dr Shehata acknowledged that [the patient] informed him that day that she did not want to have the Mirena and that she reiterated that when he advised her that what was then proposed would not assist with menorrhagia and iron deficiency.
12.The procedure continued then without incident and without the insertion of the Mirena, and post-operatively Dr Shehata reassured [the patient] that he had not found anything sinister.
13.[The patient] then consulted further with Dr Shehata on 14 July 2015 and at that consultation Dr Shehata told her that he had fitted [the patient] with a Mirena during the surgery. This provoked the response from [the patient] that she hoped this had not been done because it would have been contrary to instructions and [the patient] said Dr Shehata checked his notes and confirmed that she had changed her mind on the day. She said she disputed this as she had not changed her mind as she had never wanted a Mirena. Dr Shehata said that initially he did not have the full in-patient folder but only the operative written and dictated notes and this was the reason for his error.
3 Director of Proceedings v Shehata, above n 2.
4 I have used “the patient” instead of her name throughout to preserve the patient’s anonymity.
14.[The patient] and Dr Shehata then discussed various future options for management of her menorrhagia and this included insertion of a Mirena. No decision was reached and [the patient] said she would consider the matter further. [The patient] then made enquiries about changing her gynaecologist but decided to stay with Dr Shehata. She also decided to have surgery at the same time for her varicose veins so that there would only be one anaesthetic for both procedures. The decision for treatment of the menorrhagia was for Novasure endometrial ablation, a procedure which involves destruction of the endometrium, the lining of the uterus, by thermal energy.
15.[The patient] did not consult face to face with Dr Shehata at all between July 2015 and the date of surgery on 15 December 2015 and decisions were made by email.
16.[The patient] had her surgery on 15 December 2015. This was for both the varicose veins operation and for the treatment by Dr Shehata. [The patient] signed a Request for Surgical Treatment/Procedure form which did include the Novasure endometrial ablation but did not include any reference to a Mirena. This was not done in Dr Shehata’s presence but rather had been filled in by him as to his sections at an earlier date (it being dated 1 December 2015) and the completed and signed by [the patient] in the presence of nursing staff. Dr Shehata said that prior to and up to this incident (with changes having since been made) the sign-in processes did not require signing by the patient and doctor at the same time and consent was not discussed with the patient but rather completed in the ward before the patient came to theatre.
17.After the varicose veins surgery, and while still under anaesthetic, [the patient] had the surgery anticipated by Dr Shehata, namely the diagnostic hysteroscopy and D & C but when Dr Shehata proceeded to the Novasure ablation he experienced difficulty, despite various attempts, to establish a seal on [the patient]’s cervix which he described “incompetent”. Dr Shehata said he tried a number of procedures to seal the cervix but this proved impossible. He decided to abandon the procedure.
18.He did, however, consider what he described as the “only remaining valid option other than waking [the patient] up and doing nothing was to insert a Mirena”. Dr Shehata said he knew that [the patient] had previously had a Mirena and referred in evidence to her having consented to it initially but subsequently declining it on the day of surgery.
19.Dr Shehata said that before inserting the Mirena he
“… stated loudly in theatre that although she might not like the idea of a Mirena it is the only valid option now to treat her bleeding and I will go and explain to her in the recovery room that this will be a temporary measure until we explore further options”.
20.Dr Shehata then inserted the Mirena and [the patient] was transferred to the recovery ward. Dr Shehata explained in his evidence that he
did not go to theatre or start the procedure with the intention of inserting a Mirena. There was no Mirena in the theatre and it had to be sourced from hospital stock. Dr Shehata said that he saw this as the only remaining valid option and genuinely believed that [the patient]
“would be severely disappointed and frustrated if she woke up in recovery and found out that the procedure had failed and nothing else had been tried in keeping with previous discussions”.
21.Dr Shehata referred to his awareness of [the patient]’s background of anxiety including concerning general anaesthetic. He said he “genuinely believed this option could save the day for [the patient]”. Dr Shehata wanted to see [the patient] before she was spoken to by others.
22.There were heated exchanges between Dr Shehata and [the patient] and Dr Shehata offered immediately to remove the Mirena which he did.
23.Dr Shehata accepted in evidence that his decision to insert the Mirena without express consent in writing was “an error of judgment”.
24.Dr Shehata’s Progress Notes for 15 December 2015 at 4.30 p.m. include:
“I thought MIRENA might be the best intervention option which would provide [the patient] with relief from the Menorrhagia with the intention of explaining that to her in Recovery and if she is not happy I will Remove it … Obviously [the patient] was furious and Angry as I did not obtain her consent and knowing that she declined that option previously (although she had MIRENA earlier and it was ok)”.
25.In his letter of report to the referring general practitioner dated 15 December 2015 Dr Shehata included reference to the failed ablation attempts. In relation to one opinion he wrote: “However it was not written on the consent form” and in relation to another: “However I did not verbally or formerly discuss that option with [the patient]”. He then continued:
“Logistically I was left with the option of Mirena IUCD system which is now a world wildly [sic] regarded as number 1 option for treatment of menorrhagia and it is reversible easily by pulling out the threads, although she declined it earlier on her first hysteroscopy. I presumed if I explained to her the benefits and reasons why I considered it, she would accept it as an interim possibility and if she is not happy I can easily remove it”.
26.Dr Shehata later wrote a letter dated 5 January 2016 to the gynaecologist that was then consulted by [the patient] and his letter included:
“I discussed with the theatre staff at this stage that although it was not on the consent and [the patient] declined it the first time, if I go and explain to her why I did choose [sic] the Mirena and that it is a temporary measure if she gives it a go, …”.
[4] A Mirena is an interuterine device (IUD) that releases a progestin hormone, that prevents pregnancy, over a five-year period. Dr Shehata acknowledged that he inserted the Mirena without informed consent.
[5] After complaint from the patient to the Health and Disability Commissioner, the Director of Proceedings (the present respondent) brought a charge before the Health Practitioners Disciplinary Tribunal (the Tribunal) under the HCPA Act.
[6] In a decision dated 16 March 2018, the Tribunal found Dr Shehata guilty of professional misconduct. The Tribunal found that this case involved a significant breach of standards. There were two particulars that were found to be proved. The Tribunal summarised the position as follows:5
5. The first [particular] alleged insertion of the Mirena into [the patient]’s uterus without her informed consent with particulars given, namely failure to advise her of risks or benefits, failure to provide her with the opportunity to discuss treatment options, including the Mirena, or ask questions about her treatment options; failure to provide her with an opportunity to refuse or reiterate earlier refusal to be treated by a Mirena; and failure to obtain her consent for insertion of the Mirena. That particular of the Charge was admitted to by Dr Shehata.
6. The second particular alleged insertion of the Mirena into [the patient]’s uterus contrary to what Dr Shehata “knew or ought to have known” of [the patient]’s wishes, with particulars referring to the previous decline of insertion in the May 2015 treatment, discussions with [the patient] at a consultation on 14 July 2015 when she reiterated her wish not to have the Mirena, and the absence of any advice between 14 July 2015 and 15 December 2015 from [the patient] that she had changed her mind about not wanting the Mirena. That particular of the Charge was defended by Dr Shehata. The exact wording of the Charge is set out in the schedule to this decision.
7. The Director called evidence from [the patient] and also from Dr Andrew Murray, an expert with appropriate qualifications and experience. Dr Shehata himself gave evidence but called no other.
5 Director of Proceedings v Shehata, above n 2.
[7] The Tribunal concluded a period of suspension of three months was warranted to indicate the gravity of Dr Shehata’s actions and attitudes. The Tribunal expressly noted that it was regrettable this would impose a burden on his colleagues. In full, the Tribunal imposed the following penalties:
(a)Censure.
(b)A fine of $2,500.
(c)Suspension from practice for a period of three months.
(d)Two conditions upon Dr Shehata resuming practice following his suspension:
(i)For a period of three months Dr Shehata must be supervised at his cost by a supervisor approved by the Medical Council of New Zealand (MCNZ) in consultations and in circumstances where he is seeking the informed consent of a patient; with the supervisor reporting to the MCNZ monthly or otherwise as required by the MCNZ; and
(ii)For a period of three years he comply with any conditions imposed by the MCNZ as a consequence of the competence review assessment process “that has been carried out”.6
(e)An order that he pay $28,400 towards the costs of the Director of Proceedings and of the Tribunal.
[8]Dr Shehata’s application for permanent name suppression was declined.
Scope of appeal
[9] The present appeal is brought under s 106(2)(b) of the HPCA Act. Section 109 of the HCPA Act defines procedure on appeal. An appeal under this Act is expressly
6 At [87.2].
by way of rehearing.7 However, the scope of appeal is restricted, as the HCPA Act requires I must not review any part of the decision or order that is not appealed against.8
[10] Although it is clear that the appeal is by way of rehearing under s 109 of the HCPA Act,9 it is not specified whether it is a general appeal or an appeal against a discretion. As such, Dr Shehata’s first submission was that an appeal of this kind is a general appeal.
[11] The Director of Proceedings (the Director) did not demur. Both parties agree the correct approach is that outlined in Austin Nichols & Co Inc v Stichting Lodestar as follows:10
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[12] I accept that as the appropriate approach here. It has been the approach taken by this Court in a number of earlier decisions of a similar nature including Hart v Auckland Standards Committee (No 1)11 and more recently A v Professional Conduct Committee.12
[13]Therefore, I proceed on the basis:
(a)Dr Shehata bears the burden of showing me why I should differ from the Tribunal’s decision and why it was wrong;13
7 Health Practitioners Competence Assurance Act 2003, s 109(2).
8 Section 109(4).
9 Section 109(2).
10 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141.
11 Hart v Auckland Standards Committee (No 1) [2013] NZHC 83, [2013] 3 NZLR 103 at [12].
12 A v Professional Conduct Committee [2018] NZHC 1623 at [4].
13 Austin, Nichols & Co Inc v Stitching Lodestar, above n 10, at [4].
(b)I must decide how much weight I give the Tribunal’s reasoning, but deference must be given where matters such as the appropriateness of actions or treatments or the seriousness of a breach are at issue;14
(c)Where the Tribunal may have had a particular advantage (technical expertise/witness credibility), I may hesitate to conclude its findings of fact or fact and degree were wrong. It is open to me to conclude there is no reason to reject the finding of the Tribunal and therefore the decision stands.15
[14] Otherwise, I bear the responsibility of arriving at my own assessment of merits of this case.16
Approach to penalty
General principles
[15]The penalties available to the Tribunal were:17
(a)Cancellation of registration;
(b)Suspension for a period not exceeding three years;
(c)Imposing conditions on practice for a period not exceeding three years;
(d)Censure;
(e)Imposing a fine not exceeding $30,000.
14 At [5].
15 At [5].
16 At [4].
17 Health Practitioners Competence Assurance Act 2003, s 101.
[16] In Roberts v Professional Conduct Committee, Collins J identified the following eight factors as being relevant whenever the Tribunal is determining an appropriate penalty.18 The penalty must:
(1)most appropriately protect the public and deters others;19
(2)facilitate the Tribunal’s “important” role in setting professional standards;20
(3)punish the practitioner;21
(4)allow for the rehabilitation of the health practitioner;22
(5)promote consistency with penalties in similar cases;23
(6)reflect the seriousness of the misconduct;24
(7)be the least restrictive penalty appropriate in the circumstances;25 and
(8)be, overall, the penalty which is “fair, reasonable and proportionate in the circumstances”.26
[17] In Singh v Director of Proceedings Ellis J, in the context of the choice between deregistration and suspension, noted that the prime consideration in the HCPA Act is the protection of the health and safety of members of the public “by ensuring that health practitioners are competent and fit to practice”.27 That object is primary over any punitive purpose.28 Ellis J considered Collins J’s discussion in Roberts of
18 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354 at [44]–[51].
19 At [44].
20 At [45].
21 At [46].
22 At [47].
23 At [48].
24 At [49].
25 At [50].
26 At [51].
27 Singh v Director of Proceedings [2014] NZHC 2848 at [55].
28 At [55].
penalties that “punish the practitioner”29 as merely accepting that punishment may be an incident of the exercise and acknowledged that “a decision by the Tribunal to impose a fine appears, necessarily, to be punishment-oriented”.30
[18] The Supreme Court has observed the Tribunal is not a criminal tribunal.31 Its purpose is not to punish misbehaviour by medical practitioners but to ensure appropriate standards of conduct in the medical profession.
Tribunal’s approach
[19]When considering the penalty in the present case the Tribunal found:
(a)Dr Shehata’s conduct was a case of a “significant breach of standards”.32
(b)Dr Shehata was “quite aware that [the patient] had not consented to the insertion of the Mirena and further that he knew she did not want this from the earlier exchanges as is evidenced by his own remarks”.33
(c)Dr Shehata had acted in a paternalistic way against the patient’s wishes.34 The Tribunal reiterated Dr Shehata “went ahead and inserted the Mirena contrary to [the patient’s] wishes”.35
(d)Dr Shehata did not impress the Tribunal with the manner in which he gave evidence and did not believe he had learned from the “experience or from the courses that he says that he has undertaken”.36
29 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand, above n 18, at [46].
30 Singh v Director of Proceedings, above n 27, at [57].
31 C v Complaints Assessment Committee [2006] NZSC 48, [2006] 3 NZLR 577 at [102] per McGrath J and Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [97] per Blanchard, Tipping and McGrath JJ.
32 Director of Proceedings v Shehata, above n 2, at [73].
33 At [74].
34 At [63]–[64].
35 At [74].
36 At [74].
(e)Dr Shehata based his defence on his acceptance that the patient did not want the Mirena “but his view that this would be in her best interests”.37
(f)The Tribunal observed “clearly he has not learned from his courses that is simply not the attitude that a gynaecologist or any other health professionals should have”.38
[20] The Tribunal also reviewed the penalties in the Tribunal decisions of Stubbs,39 D,40 A (1)41 and A (2).42 I discuss those cases and the penalties imposed in greater detail later in this decision .43
[21] The Tribunal considered a suspension was inevitable for Dr Shehata. It noted:44
77. The Tribunal has taken those cases into account but is of the view that the message needs to be sent to Dr Shehata and to the profession that the conduct to which the Charge refers is serious and reflects outdated perceptions. It is not for the medical practitioner to decide what is right or not for a patient in the circumstances which prevailed here, namely where there was elective surgery, the patient had earlier expressed direct refusal of the procedure carried out, and there was adequate opportunity to allow her to waken and then make a further informed decision on the subject.
…
80. This is a case which also calls for an order for censure and for an order for payment of a fine of $2,500.00. This censure is a reflection of the Tribunal’s concern about the issues raised by the case and the practitioner’s actions and conduct. The fine is a direct monetary penalty imposed to maintain standards in the profession. This is despite any monetary loss that Dr Shehata may suffer as a consequence of the suspension order or costs that he may incur in complying with the imposed conditions.
37 At [75].
38 At [75].
39 Director of Proceedings v Stubbs HPDT 316/MED 09/113D, 29 July 2010.
40 Director of Proceedings v D HPDT 26/DEN 05/05D, 20 December 2005.
41 Director of Proceedings v A HPDT 114/MED 06/46D, 1 August 2007 [Director of proceedings v A (1)].
42 Director of Proceedings v A HPDT 18/MED 04/01D, 30 September 2005 [Director of proceedings v A (2)].
43 At [57] below.
44 Director of Proceedings v Shehata, above n 2.
Grounds of appeal
[22] Dr Shehata appeals only the Tribunal’s order that he be suspended from practice. The grounds are:
1.In the circumstances the suspension imposed on the Appellant is excessive and/or out of proportion to the Appellant’s offending and/or it is unduly punitive, and/or is neither fair nor reasonable.
2.The suspension is inconsistent with penalties imposed upon health professionals in similar cases.
3.The suspension is not the least restrictive penalty that could reasonably be imposed in the circumstances.
[23]I now turn to each of those grounds in order.
The suspension was excessive, out of proportion, unduly punitive, unfair and/or unreasonable
[24] Dr Shehata’s submissions before me were focussed on the fact that his failures were not sufficiently serious to warrant suspension, he was highly regarded by colleagues, he had an unblemished record, he had undertaken courses and was the subject of a positive Performance Assessment Committee (PAC) review. Dr Shehata submitted the failures could have been appropriately dealt with in other ways than suspension by the Tribunal. Dr Shehata noted:
(a)Suspension is a very serious penalty second only in severity to cancellation from registration.45
(b)Suspension carries with it a loss of income and a visible public professional censure.
(c)Deregistration and suspension should be confined to serious cases where the Tribunal considers them necessary for public safety.
45 Macdonald v Professional Conduct Committee HC Auckland CIV-2009-404-1516, 10 July 2009 at [96].
Suspension is “imposed primarily, although not exclusively for public protection”.46
[25] Dr Shehata says the offending was not as serious as the Tribunal concluded. Mr Manning, for Dr Shehata, argues that he only made the mistake of inserting the Mirena without informed consent, and that he did not know and ought not to have known that R did not consent to a Mirena. He disagrees with two conclusions the Tribunal made in this regard:
(a)Conclusions about Dr Shehata’s actions (ie that he took a ‘I know best’ approach to the patient); and
(b)Conclusions about Dr Shehata (ie he had not learned from his courses or from his mistake).
[26]I will approach both of these arguments in order.
Dr Shehata’s actions
[27] Dr Shehata acknowledges he had admitted the first particular and that he did not obtain the written consent of the patient to the insertion of the Mirena. He argues that at no stage, however, did he accept he had known the patient did not want the Mirena.
[28] Nevertheless, Dr Shehata recognised a tension in his evidence. On the one hand that he did not know of the patient’s absolute decline of the Mirena option. On the other the evidence indicated that in theatre he knew the only available options were to wake the patient and ask or go ahead and insert the Mirena. Dr Shehata said he inserted the Mirena after stating loudly that although she might not like the idea it was the only valid option and he would explain that to her in the recovery room and that it was temporary.
46 Peter Skegg and Ron Paterson (eds) Health Law in New Zealand (Thomson Reuters, Wellington, 2015) at 984.
[29] The Tribunal found that Dr Shehata failed to obtain the patient’s informed consent before the carrying out the insertion of the Mirena and he knew she did not consent. It found this was a serious failing in the circumstances. The Tribunal said:47
74. The Tribunal has found that Dr Shehata was quite aware that [the patient] had not consented to the insertion of the Mirena and further that he knew she did not want this from the earlier exchanges as is evidenced by his own remarks at the time and other evidence referred to. In the paternalistic way mentioned earlier in this decision, Dr Shehata nevertheless went ahead and inserted the Mirena contrary to [the patient]’s wishes. The Tribunal was not impressed by the manner in which Dr Shehata gave his evidence which indicated a poor communication ability and lack of clarity. Dr Shehata’s giving of evidence at the hearing and the submission on his behalf showed the Tribunal that Dr Shehata has not learned from the experience or from the courses that he says he has undertaken.
75. His whole defence was based on his acceptance of his knowledge that [the patient] did not want the Mirena but his view that this would be in her best interests nevertheless. Clearly he has not learned from his courses that that is simply not the attitude that a gynaecologist or any other health professionals should have.
….
77. The Tribunal has taken those cases into account but is of the view that the message needs to be sent to Dr Shehata and to the profession that the conduct to which the Charge refers is serious and reflects outdated perceptions. It is not for the medical practitioner to decide what is right or not for a patient in the circumstances which prevailed here, namely where there was elective surgery, the patient had earlier expressed direct refusal of the procedure carried out, and there was adequate opportunity to allow her to waken and then make a further informed decision on the subject.
78. It is the Tribunal’s conclusion that this inevitably calls for a period of suspension and that is 3 months. Such a penalty is the only way for Dr Shehata to understand the gravity of what has occurred and his attitudes. It will give him a chance to reflect on the matter and take any advice or counselling that he needs to. It may be regrettable that this may impose further burden on Dr Shehata’s colleagues, but the function of the Tribunal is to maintain standards in the profession and to protect the public and this can only be done by way of the suspension. The adequacy of provision of medical services in a community may be a factor to be taken into account but should not be a determinative in whether or not to suspend.
47 Director of Proceedings v Shehata, above n 2.
[30] Mr Manning took issue with the Tribunal’s reference to Dr Shehata’s defence being based on the acceptance of his knowledge there was no consent but that he nevertheless inserted the Mirena in the patient’s best interests.48
[31] This was a finding open to the Tribunal. The Tribunal heard his explanations. Dr Shehata admitted the patient had not consented but did not regard this as absolute. He considered the insertion could have been a second or third option if the primary treatment failed. Dr Shehata’s evidence was inconsistent and in parts confusing. The Tribunal concluded he knew or should have known the patient did not give consent. There was ample evidence on which to reach this conclusion. I also note the Tribunal’s conclusions on liability are not under appeal.49
Conclusions about Dr Shehata
[32] Dr Shehata argued that the Tribunal made inferences based on his poor performance as a witness relating to his lack of understanding of the principles of informed consent. He challenged these inferences as going too far.
[33] Dr Shehata also alleges that the Tribunal came to a much more serious conclusion than they should have because it did not consider:
(a)his continuing education;
(b)the PAC report; and
(c)his unblemished record.
Dr Shehata’s credibility
[34] The Tribunal was unimpressed with Dr Shehata’s evidence and the manner in which he gave it. It made findings against him as to credibility. The Tribunal said in the oral summary of its decision on liability delivered shortly after the completion of the evidence:
48 At [75].
49 Health Practitioners Competence Assurance Act 2003, s 109(4).
Insofar as there has been any conflict in evidence that is relevant to matters of fact in issue, the Tribunal prefers the evidence of [the patient] over that of Dr Shehata. There are a number of reasons why which will be mentioned in the written decision, but demeanour is one thing but not the only thing. The more important matter perhaps is consistency and [the patient]’s evidence is consistent with what she had written in her complaint to the Health and Disability Commissioner and it’s consistent with all of the other written material and evidence that there is before the Tribunal. Dr Shehata’s evidence in itself in his written statement has some inconsistencies, but more particularly what he said in evidence under cross-examination and otherwise was inconsistent with the written statement and inconsistent in itself. As an example, there is a denial by Dr Shehata of his knowledge of [the patient]’s wish not to have the Mirena, but on the other hand his express evidence that he acknowledged that he did this contrary to her wishes because he thought it was in her best interests and questions of that kind.
The way in which Dr Shehata gave his evidence was singularly unconvincing to the Tribunal. It was long, it was verbose, it had to be brought to an end many times by the Tribunal, and indeed under objection from counsel, and that made it not only confusing but also indicated to the Tribunal that Dr Shehata does not have a clear and succinct understanding of the issues or of the way of expressing them, and the Tribunal, it has concluded that that may have been a factor in his communications with [the patient]. Indeed there are times when the Tribunal concluded that Dr Shehata was not listening, either to the questions that were being asked or to the things that he was being told by the Tribunal to do and answer in the way in which he was to answer. So that indicated too that perhaps there was a failure to listen to [the patient] at the times she was consulting with him.
[35] The Tribunal followed up that oral advice with a written decision which went into more detail about the evidence it accepted. It preferred the evidence of the patient where there was a conflict. It found Dr Shehata knew that the patient did not want the Mirena and that he put it in regardless of her wishes. The Tribunal summarised its findings as follows:50
64. At the time of the hearing the Tribunal expressed it this way:
“The final matter of concern to the Tribunal is that at the time of the procedure the evidence is clear that Dr Shehata knew that [the patient] did not want to have the Mirena. The reasons why she did not are singularly irrelevant because it’s her choice, but despite knowing that she did not want to have that he decided in a paternalistic and patronising manner that it might be in her best interests to have that and not to have a further sedation for the purpose of insertion later and he proceeded to do what he thought was best for her rather than what she had expressly said she wanted or didn’t want. He said that he wanted to get to … consult with her after surgery before other staff had spoken to her so that he could persuade her that what had been done was in her best interests, and he made
50 Director of Proceedings v Shehata, above n 2.
the decision that if things turned difficult for him or for [the patient], he would simply extract it, which he did”.
[36] In matters such as credibility, the expertise of the Tribunal is particularly important. Simon France J said in A v Professional Conduct Committee said:51
[5] The decision under appeal follows the hearing of evidence at which the Tribunal had the opportunity to observe the witnesses. Here also the Tribunal is an expert body and deference is appropriate in terms of its judgments on matters such as the appropriateness of actions and treatments, and the seriousness of any breach. The Court obviously is not expert in such matters, although this should not be overstated both because there will be evidence on the point and the legislation, by virtue of making this a general appeal, confers that appellate task on the Court.
…
The expertise of the Tribunal
[17] It is well established that a specialist tribunal may, and indeed is expected to, assess the evidence using its professional knowledge and experience.52 Mr Wilson provided various examples of where courts have recognised the role of the Tribunal’s expertise:53
(a)assessing and evaluating the seriousness of the conduct the subject of the complaint;
(b)formulating standards of appropriate conduct for practitioners; and
(c)making value judgments or conclusions about whether particular conduct brings discredit to the profession.
[37] The Tribunal’s finding is also consistent with Dr Shehata’s earlier explanations about the incident:54
24.Dr Shehata's Progress Notes for 15 December 2015 at 4.30 p.m. include:
“I thought MIRENA might be the best intervention option which would provide [the patient] with relief from the Menorrhagia with the intention of explaining that to her in Recovery and if she is not happy I will Remove it … Obviously [the patient] was furious and Angry as I did not obtain her consent and knowing that she declined that option previously (although she had MIRENA earlier and it was ok)”.
51 A v Professional Conduct Committee [2018] NZHC 1623.
52 Imbeau v Dental Council of New Zealand HC Rotorua AP40/98, 4 February 1999 at 16.
53 These are sufficiently indisputable to not require citation of authority.
54 Director of Proceedings v Shehata, above n 2.
25.In his letter of report to the referring general practitioner dated 15 December 2015 Dr Shehata included reference to the failed ablation attempts. In relation to one option he wrote: “However it was not written on the consent form” and in relation to another: “However I did not verbally or formerly discuss that option with [the patient]”. He then continued:
“Logistically I was left with the option of Mirena IUCD system which is now a world wildly [sic] regarded as number 1 option for treatment of menorrhagia and it is reversible easily by pulling out the threads, although she declined it earlier on her first hysteroscopy. I presumed if I explained to her the benefits and reasons why I considered it, she would accept it as an interim possibility and if she is not happy I can easily remove it”.
26.Dr Shehata’s later wrote a letter dated letter dated 5 January 2016 to the gynaecologist that was then consulted by [the patient] and his letter included:
“I discussed with the theatre staff at this stage that although it was not on the consent and [the patient] declined it the first time, if I go and explain to her why I did choose [sic] the Mirena and that it is a temporary measure if she gives it a go, …[sic]”.
[38] The Tribunal was entitled to reach the conclusions that it did on Dr Shehata’s credibility.
[39] Mr Manning submitted that Dr Shehata’s “poor performance” in cross- examination was due to being under stress facing the charges and English not being his first language.
[40] Mr Manning acknowledged the Tribunal did recognise this factor. Therefore, the Tribunal saw and heard Dr Shehata with that in mind. While English might not be his first language Dr Shehata had worked in an English-speaking environment for many years and in any event was represented throughout by counsel.
[41] I accept the Tribunal’s conclusions and am of the view that the Tribunal made no error in characterising Dr Shehata’s failure as knowingly inserting the Mirena without the patient’s consent and that this was a very serious failure.
Continuing education
[42] Mr Manning submitted that the Tribunal failed to properly consider the further education that Dr Shehata had undertaken since the incident. In particular, he said, Dr Shehata had educated himself about informed consent by:
(a)An eight hour one on one training session on shared decision-making and informed consent.
(b)An interactive three-hour training session designed against the background of the Health and Disability Commissioner report, to address the Code of Rights, informed consent, emergency situations, issues at the time of delivery, and health information privacy.
(c)Attendance at a continuing professional development presentation at Crest Hospital about informed consent.
(d)The completion of a five-day University of Otago course Health Systems Law Intensive.
[43] In addition, Mr Manning submitted the Tribunal made no reference in its decision to the four written references from senior medical practitioners in support of Dr Shehata. They had known him for many years and described Dr Shehata’s practice and ethics in positive terms.
[44] The Tribunal was not required to list the material it considered. I am satisfied it did consider all the material, including the references. It said in its oral decision on penalty immediately after the hearing and submissions covering these points:
The Tribunal has taken the submissions of counsel and the information provided by Dr Shehata into account carefully …
[45] In relation to the education and continuing education undertaken by Dr Shehata, the Tribunal indicated it was aware of the extent of Dr Shehata’s efforts. It said:55
55 Director of Proceedings v Shehata, above n 2.
67. The submissions referred to comparable cases which have been taken into account. Some of the “aggravating” features referred to by the Director are essentially aspects of the Charge as found made out but there is also the noted anxiety on [the patient]’s part. Mitigating features acknowledged by the Director included statements of concern expressed by Dr Shehata (which the Director said called into question his true insight) and Dr Shehata’s acceptance of liability for the first particular of the Charge. The Director acknowledged the courses that Dr Shehata had taken following the events to educate himself on informed consent procedures, Dr Shehata’s co-operation with the MCNZ in its review of his practice, and an apology that Dr Shehata made to [the patient] on the day after the events in question.
[46] However, the Tribunal having heard from Dr Shehata, was of the view he had not learnt from these courses:56
74. … In the paternalistic way mentioned earlier in this decision, Dr Shehata nevertheless went ahead and inserted the Mirena contrary to [the patient]’s wishes. … Dr Shehata’s giving of evidence at the hearing and the submission son his behalf showed the Tribunal that Dr Shehata has not learned from the experience or from the courses that he says he has undertaken.
75. … Clearly he has not learned from his courses that that is simply not the attitude that a gynaecologist or any other health professionals should have.
[47] The material presented to the Tribunal did not provide much detail about the composition of the courses. But regardless, the courses and continuing education undertaken by Dr Shehata are only inputs. The Tribunal had the opportunity of hearing and seeing Dr Shehata. It came to the view that he had not sufficiently learnt from these inputs. It was entitled to reach its conclusion as it had actually heard from and observed Dr Shehata. It was also of the view that Dr Shehata did not have the appropriate attitude, despite his attendances at the courses.57
The PAC report
[48] Dr Shehata refers to the report of the PAC dated 5 January 2018 as being “compelling”. It was received by the Medical Council shortly after that date. The PAC concluded that Dr Shehata was performing at an acceptable level for a doctor registered and working within the vocational scope of obstetrics and gynaecology. I was advised in submissions that no further action was taken by the Medical Council based on that report.
56 Director of Proceedings v Shehata, above n 2.
57 At [78].
[49] Dr Shehata submitted that of particular relevance was a record review of case notes he had provided to PAC. The relevant case review was based on Dr Shehata’s operation notes. The notes record that Dr Shehata had not undertaken a removal or biopsy of a cyst discovered while the patient was having surgery for a planned laparoscopic sterilisation. The notes recorded that Dr Shehata would not take either of those steps as there was no consent, and there was no emergency or direct threat to the patient’s life. Dr Shehata’s notes indicated he would rather discuss the findings with the woman afterwards and deal with the cyst later if she so wished. The PAC competence review took place between 20 November 2017 and 1 December 2017. However, the date of the relevant operation notes, or of the surgery to which they related, was not noted.
[50] In relation to the record reviews, the PAC report concluded that overall Dr Shehata’s notes were clear and appropriate for a Fellow of the Royal College of Obstetricians and Gynaecologists (RANZCOG).
[51] The case note review in the PAC report was not of an observation by committee members, but rather a desktop review of Dr Shehata’s own case notes. As I have indicated, the Tribunal saw and heard him and were of the view he still did not understand informed consent properly and his attitude caused it concern. It was also of the view that Dr Shehata communicated with a lack of clarity and he had not learned from the experience, nor did he have the appropriate attitude expected of a gynaecologist or other health professional.58
[52] The PAC report, the feedback and conclusions of that report were specifically brought to the Tribunal’s attention in the course of submissions as to penalty by Dr Shehata’s counsel at the Tribunal hearing. The chair reassured Dr Shehata that the material was to hand and had been looked at carefully.
[53] The Tribunal was entitled to come to its view. I place considerable weight on that view in the circumstances and agree with it. The Tribunal did not err in its conclusion.
58 At [74]–[75].
Dr Shehata’s background and record
[54] Dr Shehata’s unblemished record over 30 years of practice was expressly brought to the Tribunal’s attention. There was no indication that the Tribunal did not take that into account.
[55] Nevertheless, regardless of Dr Shehata’s record, the references, his course attendance and the PAC report, the Tribunal remained of the view that the case was serious and Dr Shehata’s knowledge as to informed consent and attitude remained deficient: 59
73. The Tribunal regards this as a case of significant breach of standards. [The patient] had made her position quite clear at the earlier consultations concerning the insertion of the Mirena. She had deleted that from the first Request for Treatment/Procedure form (although there is some arguable ambiguity about the “do/do not” entry in that form).
74. The Tribunal has found that Dr Shehata was quite aware that [the patient] had not consented to the insertion of the Mirena and further that he knew she did not want this from the earlier exchanges as is evidenced by his own remarks at the time and other evidence referred to. In the paternalistic way mentioned earlier in this decision, Dr Shehata nevertheless went ahead and inserted the Mirena contrary to [the patient]’s wishes. The Tribunal was not impressed by the manner in which Dr Shehata gave his evidence which indicated a poor communication ability and lack of clarity. Dr Shehata’s giving of evidence at the hearing and the submission son his behalf showed the Tribunal that Dr Shehata has not learned from the experience or from the courses that he says he has undertaken.
75. His whole defence was based on his acceptance of his knowledge that [the patient] did not want the Mirena but his view that this would be in her best interests nevertheless. Clearly he has not learned from his courses that that is simply not the attitude that a gynaecologist or any other health professionals should have.
[56] That was a conclusion open to the Tribunal. I do not consider it erred in that respect.
The suspension is inconsistent with penalties imposed in similar cases
[57] Dr Shehata argued that the three-month suspension imposed on him was inconsistent with the penalties imposed in other similar cases. It is difficult to make
59 Director of Proceedings v Shehata, above n 2.
comparisons between cases as they are each fact specific. However, the main point emphasised by Dr Shehata was that suspension was not imposed in any of these cases he referred to. I summarise those cases and the penalties as follows:
(a)A (1):60 the practitioner faced a charge made up of three particulars, one of which was failure to provide the patient enough information on mammoplasty upon which to base informed consent. The practitioner failed to re-educate and did not do well on a competency review.
Penalty: censure, supervision for three years, a limitation of practice, further education, further competency testing, $5,000 fine, six months of conditions on practice, costs and no name suppression.
(b)D:61 the practitioner faced a charge with two particulars. These were failure to advise the patient of risks of treatment leading to failure to gain informed consent and a failure to keep adequate records of history and treatment. The patient was misled into thinking procedure would work when it did not. The practitioner was given credit for his history, and it was at the lower end of culpability. Re-education had been undertaken and the disciplinary process was lesson a in itself.
Penalty: censure, costs, voluntary undertaking to restrict practice and no name suppression.
(c)A (2):62 the practitioner faced a charge with three particulars. One was failure to provide enough information about laparoscopy before it was undertaken so there was no informed consent. All three particulars were admitted. It was a fundamental error.
Penalty: censure, costs, two years of oversight conditions, no name suppression. No fine because of hard financial times.
60 Director of Proceedings v A (1) HPDT 114/MED 06/46D, 1 August 2007
61 Director of Proceedings v D HPDT 26/DEN 05/05D, 20 December 2005.
62 Director of Proceedings v A (2) HPDT 18/MED 04/01D, 30 September 2005.
[58] Dr Shehata also placed considerable emphasis on Stubbs.63 In that case the patient had consented to gastric bypass. However, after anaesthesia the surgeon became aware that the risk of death from surgery had increased from one per cent to around 20 per cent due to liver issues. This increased risk was not known earlier nor was the patient advised of it at the time the informed consent was given. Nevertheless, the surgeon continued with the surgery. The charge was based on proceeding with the surgery in the knowledge the patient did not know the high risk and did not consent to surgery in light of the high risk, as well as failures to document the care of patient. Dr Stubbs had also had seven complaints over seven years.64 Dr Stubbs was fined
$20,000, ordered to pay 50 per cent of the costs, censure, stringent 18-month oversight by a mentor and an audit of medical practice.
[59] Before me, the Director emphasised that it was difficult to compare cases because they each turned on their own circumstances. For instance, in the case of Stubbs, the patient had consented before the anaesthetic was administered to a procedure. Therefore, it was not a case of proceeding in circumstances where consent had been absolutely declined, but rather where there was an inadequacy of information provided at the time of the consent.
[60] The conduct by Dr Shehata in this case was more serious in one significant respect, than any of the above cases. Dr Shehata was faced with an absolute lack of consent. The Tribunal found Dr Shehata knew of the lack of consent when he undertook the insertion. He nevertheless proceeded in what was described as a “paternalistic” way.65 In his submissions on appeal Dr Shehata contrasts the insertion of a Mirena with procedures which are death threatening, as for instance in Stubbs. While Dr Shehata was careful to emphasise that he was in no way sanctioning the insertion of a Mirena, he submitted the procedure was able to be easily reversed and was not life threatening. It was his submission that on the scale of possible outcomes it was at the lower end.
63 Director of Proceedings v Stubbs, above n 39. The patient died three weeks later from liver failure but there was no attribution to surgery.
64 Ten years earlier Dr Stubbs had been the subject of another disciplinary finding relating to informed consent.
65 Director of Proceedings v Shehata, above n 2, at [64] and [74].
[61] However, faced with the lack of consent, Dr Shehata’s actions were very serious indeed. It breached a fundamental legal and ethical principle of medical practice and overrode the critical protection afforded to health consumers when undergoing medical treatment particularly when under general anaesthetic.
[62] Not only is the insertion of a Mirena, without consent, a serious violation of the patient’s right to consent or refuse medical treatment, it was a device which released hormones into the patient’s body. Dr Shehata in his evidence indicated that many women have a Mirena without problems and the amount of hormone involved is low. This might provide some added insight into the reason why Dr Shehata considered it was appropriate to insert the Mirena without the patient’s consent.
[63] Dr Shehata acknowledged under cross-examination that the insertion of the Mirena had been wrong however he appeared unable to acknowledge or accept, notwithstanding the contradictions in his own evidence, the unreasonableness of his assertion that the patient had provided a quasi-form of consent to the Mirena as a second or third option if the consented procedure did not work. She did not. Dr Shehata showed lack of sufficient understanding of the fundamental principles of informed consent.
Health and Disciplinary Commissioner reports
[64] Mr Manning also referred to three Health and Disability Commissioner (HDC) reports in which the Commissioner had refrained from referring the practitioner to the Director of Proceedings with a view to prosecution before the Tribunal.
[65] I am of the view it is not possible to make comparisons between the opinions or reports from the HDC that have not been the subject of a referral to the Director. The process and objectives of these reports, under the Health and Disability Commissioner Act 1994, are entirely different to decisions of the Tribunal under the HPCA Act. To even attempt to consider those reports would be fraught with difficulty. The full circumstances and background are not contained in the reports. They are not intended to be of precedent value in relation to matters of a disciplinary nature before the Tribunal. I find the HDC reports of no assistance in the circumstances.
The suspension is not the least restrictive penalty
[66] Mr Manning submitted that while it was not unreasonable that the Tribunal should signal to Dr Shehata and the profession at large how seriously it regarded the misconduct, it was not necessary to do so by imposing a period of suspension. The Tribunal’s failure to impose the least restrictive penalty is an error of law and principle.66
[67] In support of that submission Dr Shehata said that, without his wanting to diminish the physical and emotional insult to the patient, it was important to note that:
(a)The insertion of a Mirena was at the lower scale of invasive procedures compared to, by way of example, the gastric bypass surgery undertaken by Dr Stubbs.67
(b)There was no significant surgical or complication risk attendant on the insertion.
(c)The Mirena could be reversed easily, which was done, without anaesthetic.
[68] First, I again observe that the insertion of a foreign object which secretes hormones which restrict fertility in a woman’s body without consent is a serious violation. The patient in this case gave evidence that she considered it was a violation and outlined the effects on her which included heightened anxiety about surgical procedures. It is difficult to compare the seriousness of invasive procedures between cases. They are entirely fact dependent. However, even if this were at the lower range the Tribunal considered that the fact that Dr Shehata carried out the procedure when he knew of the patient’s lack of consent made the breach significant. The Tribunal specifically noted that with this knowledge, Dr Shehata’s view that the Mirena was in her best interests was not an appropriate attitude a gynaecologist or any other health
66 Peter Skegg and Ron Paterson (eds) Health Law in New Zealand (Thomson Reuters, Wellington, 2015) at 983, citing Patel v Dentists Disciplinary Tribunal (HC) Auckland AP77/02, 8 October 2002 at [31] and Roberts v Professional Conduct Committee of the Nursing Council of New Zealand, above n 18, at [55]–[57].
67 Director of Proceedings v Stubbs, above n 39.
professional to have.68 There was sufficient evidence before the Tribunal to come to the conclusion it did when it balanced all the relevant factors on penalty. I defer to and concur with the Tribunal’s views in that regard.
[69] Dr Shehata suggests that the $2,500 fine imposed on him was at the lower end of the range. The maximum fine available is $30,000. Dr Shehata suggested a censure and a higher fine would send the same message both to him and the profession at large. It was therefore unnecessary to resort to a suspension to send that message. A large costs award may be taken into account as appropriating other elements of the penalty including length of suspension.69 However in this case the Tribunal did consider the possible options for penalty. 70 It said:
71. The available penalties for the Tribunal are cancellation of registration; suspension for a period not exceeding 3 years; imposition of conditions on practice for a period not exceeding 3 years; censure; and an order for fine.
72. The considerations required are to fix a penalty which most appropriately protects the public; emphasis on the important role of setting professional standards; rehabilitation; comparability with other penalties imposed in similar circumstances; assessing the spectrum of sentencing options to try to ensure that the maximum penalties are reserved for the worst offenders; imposition of a penalty which is the least restrictive that may reasonably be imposed; and, above all one which is fair, reasonable and proportionate in the circumstances.
[70] The Tribunal noted the suspension was not to “punish” Dr Shehata but to deter him and the wider profession from conduct of this type, to maintain professional standards, to hold Dr Shehata accountable and to provide him with a period of reflection. It reviewed the cases I have referred to above. Having done that it commented:71
77. The Tribunal has taken those cases into account but is of the view that the message needs to be sent to Dr Shehata and to the profession that the conduct to which the Charge refers is serious and reflects outdated perceptions. It is not for the medical practitioner to decide what is right or not for a patient in the circumstances which prevailed here, namely where there was elective surgery, the patient had earlier expressed direct refusal of the
68 Director of Proceedings v Shehata, above n 2, at [75].
69 Macdonald v Professional Conduct Committee HC Auckland CIV-2009-404-1516, 10 July 2009 at [98]–[101]; in Macdonald the initial suspension period of nine months was reduced to five months based on the size of the costs award. Dr Macdonald was required to pay $100,000 in costs.
70 Director of Proceedings v Shehata, above n 2 (footnotes omitted).
71 (Emphasis added).
procedure carried out, and there was adequate opportunity to allow her to waken and then make a further informed decision on the subject.
78. It is the Tribunal’s conclusion that this inevitably calls for a period of suspension and that is 3 months. Such a penalty is the only way for Dr Shehata to understand the gravity of what has occurred and his attitudes. It will give him a chance to reflect on the matter and take any advice or counselling that he needs to. It may be regrettable that this may impose further burden on Dr Shehata’s colleagues, but the function of the Tribunal is to maintain standards in the profession and to protect the public and this can only be done by way of the suspension. The adequacy of provision of medical services in a community may be a factor to be taken into account but should not be a determinative in whether or not to suspend.
[71]As Lang J noted in Macdonald v Professional Conduct Committee:72
[87] … Members of the medical profession must know that, if they engage in conduct of the type that Dr Macdonald engaged in, the consequences will be serious. The penalty to be imposed on her must, therefore, be designed to protect the public by enforcing the standards that medical practitioners must adhere to. I consider that a penalty comprising censure, a modest fine and the imposition of conditions would send entirely the wrong message to the profession.
[72]Lang J noted when considering the period of suspension appropriate:73
[94] It is now well recognised that in any criminal justice system the Tribunal responsible for sentencing offenders must adopt a consistent and even-handed approach to its task. The same principle applies, with appropriate modifications, in the context of professional disciplinary proceedings such as the present. Such an approach is vital if the integrity of the process is to be maintained. It operates to prevent any perception by those who come into contact with the system that they have been dealt with on a basis that is disproportionately harsh or lenient in comparison with the approach taken in other like cases.
[73] As with the case of Macdonald, the Tribunal considered that it would have been sending the wrong message to the profession to impose a penalty of only a censure, a fine, and the imposition of conditions on Dr Shehata.
[74] In the present case the Tribunal found the offending occurred when the practitioner knew of the lack of informed consent. The gravity of the offending, as found by the Tribunal, merited the imposition of a short period of suspension of three months which it considered was at the lower end of the range of the maximum possible
72 Macdonald v Professional Conduct Committee, above n 69, at [87].
73 At [94]. Counsel did not undertake a detailed analysis of lengths of suspension here.
period of three years. The other penalties imposed were tailored to take into account the suspension, including a fine that the appellant acknowledged was at the light end of the range.74 Even if the fine was substantially increased it would not send the message to Dr Shehata and the profession that the Tribunal considered was necessary.
[75] I also note an assessment of the Roberts factors supports the imposition of the suspension as the appropriate penalty.75 First, suspension most appropriately protects the public and deters others as it identifies the conduct as serious and reflects outdated perceptions. Secondly, the ability to impose a suspension is appropriate here in light of the Tribunal’s role in setting professional standards and in punishing Dr Shehata. Thirdly, the Tribunal identified suspension as allowing Dr Shehata a chance to reflect and take advice or counselling,76 which can be viewed as rehabilitative actions. Fourthly, having reviewed the case law above, the imposition of the three months’ suspension is consistent in the circumstances. Fifthly, as I have discussed above, the misconduct in the present case was seen as serious in light of the lack of insight demonstrated by Dr Shehata and a short suspension appropriately reflects that seriousness. Sixthly, as correctly identified by the Tribunal, a short period suspension is the least restrictive penalty available in light of the charge, lack of insight, paternalism and outdated attitude highlighted by this misconduct. Finally, the penalty is fair, reasonable and proportionate in the circumstances.77 It is apparent from the Tribunal’s decision here that it did carefully assess all the issues, as outlined in the body of this decision, and found a significant breach of standards had occurred. Dr Shehata’s lack of insight and attitude inevitability led to a short period of suspension. The Tribunal was able to form its own views on these matters, having seen and heard Dr Shehata give evidence. It also considered the effects of suspension on him, his family and colleagues. In those circumstances I consider the penalty is fair, reasonable and proportionate in the circumstances.
74 At [97]–[98] and [108].
75 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand, above n 18, at [44]–[51].
76 Director of Proceedings v Shehata, above n 2, at [78].
77 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand, above n 18, at [51].
Conclusion
[76] The grounds of appeal are not made out. The Tribunal made no error in relation to imposing the penalty of three months suspension on Dr Shehata. I agree with its decision.
[77]The appeal is dismissed. The orders of the Tribunal are confirmed.
Costs
[78] If counsel are unable to agree on costs, submissions should be filed in the usual manner:
(a)The respondent’s submissions to be filed on or before 8 April 2019;
(b)The appellant’s submissions to be filed on or before 12 April 2019;
(c)Any reply on or before 17 April 2019.
Grice J
Solicitors:
Health Professional Legal Services Ltd, Auckland
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