Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Hearing dates: 24 February, 25 Februray 2020 Date of orders: 17 June 2020 Decision date: 17 June 2020 Jurisdiction: Occupational Division Before: A Britton, Principal Member Dr A Downie, Senior Member Dr H Jenkins, Senior Member C Gardiner, General Member Decision: (1) Dr Kesserwani is reprimanded. (2) Pursuant to s 149A of the Health Practitioner Regulation National Law (NSW), for 12 months or such longer period as determined by the Chiropractic Council of NSW (the Council), the following conditions are imposed on Dr Kesserwani's registration: (a) The practitioner is to be mentored for a minimum period of 12 months, and as subsequently determined by the Council in accordance with the Chiropractic Council of NSW's Compliance policy – Mentoring. (b) The practitioner is to submit to random, unannounced audits of every practice where he provides chiropractic services: (i) The audits are to be conducted by persons appointed by the Chiropractic Council of NSW and are to assess and report to the Council on the practitioner's record keeping and file management; (ii) The practitioner will permit the auditors to inspect all patient records and any copy of any patient records, however, they are kept. (iii) The practitioner is to advise the Chiropractic Council of NSW in writing at least seven days prior to changing the nature or place of his practice. (3) While Dr Kesserwani's principal place of practice is NSW, the Chiropractic Council of NSW is the appropriate review body for the purposes of Pt 8, Div 8 of the Health Practitioner Regulation National Law (NSW). Catchwords: PROFESSIONS AND TRADES — whether conduct admitted to be unsatisfactory professional conduct" amounts to "professional misconduct WORDS — meaning of "improper" and "unethical" conduct in s 139(1)(l) of Health Practitioner Regulation National Law (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chen v Health Care Complaints Commission [2017] NSWCA 186 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Duffy v Da Rin [2014] NSWCA 270 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Lee v Health Care Complaints Commission [2012] NSWCA 80 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 Office of Local Government v Toma [2015] NSWCATOD 21 Prakash v Health Care Complaints Commission [2006] NSWCA 153 R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Walid Kesserwani (Respondent) Representation: Counsel: P Atkin (Applicant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2019/00232595 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure and/or publication of the names of Patients A to O is prohibited. REASONS FOR DECISION 1. Between 2014 and 2016, chiropractor, Walid Kesserwani, treated patients using "platelet rich plasma therapy" (PRPT), a therapy which involves injecting a person with their own blood. PRPT involves a three-step process. First, collecting blood from a person using a needle. Second, extracting the plasma-rich component from the collected blood. Third, injecting that component into the person from whom it was collected. Proponents of PRPT believe that it accelerates tissue, ligament and joint repair and is especially useful in the treatment of chronic musculoskeletal conditions. 2. In Australia, PRPT is practised by some sports physicians and radiologists but not by chiropractors. In December 2016, in proceedings conducted under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law), the Chiropractic Council of NSW (the Council) ruled that PRPT falls outside chiropractors' "scope of practice" and imposed several conditions on Dr Kesserwani's registration, including that he not practise PRPT. Dr Kesserwani does not challenge that ruling and accepts that he lacks the training and experience to practise PRPT. 3. After investigating a complaint referred by the Council about Dr Kesserwani, the Health Care Complaints Commission (the Commission) in turn referred a complaint (the Complaint) to the New South Wales Civil and Administrative Tribunal (NCAT). Dr Kesserwani owns and operates two chiropractic practices in the Sydney suburbs of Concord and Penrith. The conduct the subject of this complaint relates solely to the Concord practice, which Dr Kesserwani has owned and operated since 2011. 4. Set out at Annexure A to these reasons, the Complaint consists of four individual complaints. Complaint 1 alleges that PRPT is outside the scope of practice for a chiropractor and Dr Kesserwani lacked the necessary training and experience to treat patients using PRPT. Complaint 2 alleges that Dr Kesserwani failed to obtain informed consent from patients before treating them with PRTP. Complaint 3 alleges that Dr Kesserwani failed to maintain adequate clinical records. Complaint 4 alleges that the conduct the subject of Complaints 1, 2 and 3 amounts to "unsatisfactory professional conduct" and, in addition, "professional misconduct": respectively, ss 139B(1) and 139E of the National Law. Dr Kesserwani admits to the conduct particularised in Complaints 1 and 3 and concedes that the conduct amounts to unsatisfactory professional conduct. However, he denies the conduct particularised in Complaint 2 and disagrees that the admitted conduct amounts to professional misconduct. 5. The key issues we must decide are whether Dr Kesserwani failed to obtain informed consent from patients before administering PRPT, whether the admitted and any proven conduct amounts to professional misconduct and whether the power to suspend Dr Kesserwani's registration should be exercised. 6. For the reasons that follow, we find Complaint 2 not proven and that the conduct particularised by Complaints 1 and 3, amounts to professional misconduct. We have decided not to suspend Dr Kesserwani's registration but to impose a series of conditions on his registration. Complaint 1: administering PRP injections 1. Complaint 1 alleges that PRPT is outside the scope of practice of chiropractors. In addition, it alleges that Dr Kesserwani administered PRPT to 15 named patients on multiple occasions in circumstances where he did not possess: 1. "the expertise required to make proper diagnostic and therapeutic decisions at the relevant level of reasonable competence for PRP intervention which lies wholly outside the training and experience of a chiropractor; and/or 2. the appropriate level of clinical understanding and expertise to undertake the therapy without consultation and direction from an appropriately trained clinician such as a sports medicine specialist or intervention radiologist with the relevant expertise in PRP therapy which he did not seek." 1. Dr Kesserwani admits to Complaint 1. Nonetheless it is necessary to examine the conduct the subject of that complaint because the nature of that conduct is relevant to the question of whether, as contended by the Commission, it amounts to "unethical conduct" and/or "misconduct" within the meaning of ss 139B(1)(l) and 139 of the National Law, respectively. Scope of practice 1. At the request of the Commission, Professor Rodney Bonello prepared a series of reports commenting on the conduct the subject of the Complaint. Professor Bonello is a registered chiropractor. He has practised as a chiropractor for 35 years, has taught at several tertiary institutions and has an impressive record of academic research in the field of chiropractic. 2. Neither the Chiropractor Board of Australia, the Council nor the professional associations representing chiropractors in Australia define the scope of practice of chiropractors. Nonetheless, in Professor Bonello's view, for the following reasons PRPT lies wholly outside the training and experience of chiropractors. First, none of the tertiary institutions offering courses in chiropractic include PRPT in their syllabus. Nor do any of those institutions or the professional organisations representing chiropractors, support PRPT being used by chiropractors. Second, chiropractic is based on the use of non-invasive, hands-on, physical therapy. In contrast, PRPT is an invasive form of therapy. Third, PRPT is not a form of therapy used in chiropractic practice or osteopathy and physiotherapy, its two most closely related health professions. To his knowledge, Dr Kesserwani is the only chiropractor to have practised PRPT in Australia. Professor Bonello's on-line enquiries and enquiries of colleagues have not revealed any chiropractor advertising PRPT in Australia. According to Professor Bonello, one of the reasons chiropractors, physiotherapists and osteopaths do not perform PRPT is because it is required to be applied to the site of musculoskeletal tissue damage which is often a deeply placed lesion necessitating needle placement under guidance of medical imaging. Modified form of PRPT practised by Dr Kesserwani 1. Professor Bonello explained that the principle underlying PRP therapy is that the plasma-rich component of blood that is reinjected into the patient contains valuable healing factors which accelerate tissue repair. According to Professor Bonello, research reveals that while PRPT has enjoyed "mixed success", it appears to be a helpful therapy in the treatment of sports-related musculoskeletal injuries. 2. Dr Kesserwani claims that he used a modified form of PRPT and inserted short needles into the tissue layer between the skin and the muscle (a subcutaneous injection), at the "trigger point", the part of the body where a person experiences symptoms of an injury, not the injured part of the body. In contrast, as explained by Professor Bonello, in PRPT deep injections are inserted at the site of injury. According to Professor Bonello, this modified form of PRPT, is untested and is not in keeping with the basic principle of PRPT, that is, injecting "healing factors" to the injury site. Dr Kesserwani's expertise to make proper diagnostic and therapeutic decisions for PRPT 1. Dr Kesserwani holds a master's degree in chiropractic, bachelor degrees in medical science and chiropractic and has completed several short courses of some relevance to the practice of PRPT, including in venepuncture and infection control. Before commencing PRPT, he completed in-service training provided by Device Technologies, the distributor of the PRPT equipment he purchased for use in his practice. 2. According to Professor Bonello, Dr Kesserwani lacked the skill to determine which patients might be amenable to PRPT, pointing out that Dr Kesserwani's training and experience was largely in the area of musculoskeletal assessment. In Professor Bonello's view, the expertise required to make proper diagnostic and therapeutic decisions at a reasonable level of competence for PRPT lies wholly outside the training and experience of chiropractors, even where, as in Dr Kesserwani's case, they hold tertiary qualifications in chiropractic and medical science and are trained in the use of acupuncture and venepuncture. Dr Kesserwani's level of clinical understanding and expertise to undertake PRPT 1. In Professor Bonello's view, Dr Kesserwani lacked sufficient clinical understanding and expertise to undertake PRPT therapy, either acting independently or under the guidance of a medical practitioner. 2. Professor Bonello explained that the risks of PRPT include introducing infectious agents and damaging healthy structures of the body as a result of injecting blood into patients. The type of potential damage which might result from the latter ranges from the relatively trivial, such as local bleeding or bruising, to damage of a more serious nature, such as nerve damage or lung puncture. According to Professor Bonello, Dr Kesserwani's use of subcutaneous injections largely avoided the risk of needle damage being inflicted on healthy tissue. However, in his opinion, Dr Kesserwani had not undertaken the necessary training in surgical anatomy to give injections safely. According to Professor Bonello, tissue location by needle is "foreign to the chiropractor". In his view, Dr Kesserwani's training did not cover "all aspects of the use of injectables" and his training in acupuncture, dry needling etc. was not a substitute for the training needed to give injections in PRPT. In addition, according to Professor Bonello, neither the theoretical nor practical training given to chiropractors covered responding to an adverse reaction by a patient to an injection. In his view that type of training would need to be delivered in a medical teaching environment, such as a teaching hospital. 3. In Professor Bonello's view, Dr Kesserwani's did not have the appropriate qualifications or expertise to undertake and minimise the risks of PRPT. Does the conduct particularised in Complaint 1 amount to "unethical conduct"? 1. Complaint 1 alleges that the conduct particularised in that complaint amounts to "unsatisfactory professional conduct" specifically "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession": s 139(1)(l) of the National Law. Dr Kesserwani agrees that the admitted conduct amounts to "improper conduct" but disputes that it can also be characterised as "unethical conduct". To amount to "unsatisfactory professional conduct" under s 139(1)(l) the Commission need not establish that the particularised conduct is both improper and unethical. However, we will consider the question of whether the impugned conduct can be characterised as unethical, in addition to improper, because that may be relevant to the evaluation of whether the conduct is of a "sufficiently serious" nature to justify suspension or cancellation of Dr Kesserwani's registration and what protective orders should be made. 2. Dr Kesserwani contends that unethical conduct connotes a deliberate departure from ethical standards. He claims that in practising PRPT, he did not knowingly act outside his scope of practice. He claims that after hearing about PRPT from a patient who extolled its virtues, he consulted the literature and found that it carried few risks and was especially useful in the treatment of chronic tendon pain, joint pain, rotator cuff tears and some forms of arthritis. He claims from the outset he disclosed that he was a chiropractor to the representatives of Device Technologies. He stated that he assumed that Device Technologies had been approved by the Therapeutic Goods Administration to supply PRPT equipment within Australia, and therefore its representatives, would have informed him if it was impermissible for chiropractors to practise PRPT. 3. The Commission contends that even if subjectively Dr Kesserwani thought that by practising PRPT he was acting within his scope of practice, viewed objectively his conduct was both improper and unethical because any reasonable scrutiny of the procedures it involved, would reveal that it involves clinical considerations and training outside the scope of practice. In addition, the Commission points out that Dr Kesserwani failed to make even cursory efforts to consult with either the Council, any professional organisation representing chiropractors or his professional indemnity insurer to determine whether PRPT was a permissible practice. Consideration 1. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30]. 2. The Macquarie Dictionary offers several definitions of both words which include: Improper 2. not in accordance with propriety of behaviour, manners, etc: improper conduct. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 1. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. 1. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 (Boland DCJ presiding) at [53]. 2. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 3. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances. 4. The Chiropractic Board of Australia has issued a Code of Conduct for Chiropractors under s 39 of the National Law (the Code of Conduct). In these reasons, all references to the Code are to the March 2014 version, which was in force for most of the period covered by the Complaint. The Code of Conduct touches on the "scope of practice" issue, stating at [1.2]: All practitioners have a responsibility to recognise and work within the limits of their competence, scope and areas of practice. 1. Here, as conceded by Dr Kesserwani he practised outside his scope of practice and furthermore lacked the necessary training and expertise to safely practise PRPT. In our view he contravened the Code of Conduct. While we accept that Dr Kesserwani did not deliberately set out to do so, his actions in embarking in the practice of PRPT, in circumstances where he failed to make any enquiries of any regulatory body or professional organisation representing chiropractors and in circumstances where as pointed out by Professor Bonello, PRPT was not being practised by chiropractors or taught in recognised training institutions, in our view his actions were reckless. Conclusion 1. We find that the conduct particularised in Complaint 1, amounts to both unethical and improper conduct within the meaning of s 139(1)(l) of the National Law. Complaint 3: maintaining adequate clinical notes 1. Complaint 3 concerns Dr Kesserwani's failure to maintain adequate clinical notes. 2. As noted, Dr Kesserwani admits each of the four particulars of this complaint. Obligation to maintain adequate clinical records 1. The Code of Conduct states that chiropractors have a professional responsibility to be familiar with and to apply the guidance contained in the Code: Code of Conduct at [1.1]. It states that "maintaining a high level of professional competence and conduct is essential for the good practice of the profession": at [2.2]. The Code defines good practice to include "maintaining adequate records": at [2.2(d)]. The Code at [9.4] gives guidance as to good practice in relation to health records management: Health records Maintaining clear, appropriate, factual, objective and accurate health records is essential for the continuing good care of patients. Detailed guidance on this matter is available in the Guidelines for clinical recordkeeping for chiropractors published by the National Board. Chiropractors should be aware of relevant state and territory legislation in relation to health records management. Good practice involves: a) keeping accurate, up-to-date, contemporaneous and legible records that report relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management details in a form that can be understood by other health practitioners … d) ensuring that records contain sufficient information to allow another chiropractor to continue the management of the patient and to facilitate continuity of chiropractic care e) making records at the time of events or as soon as possible afterwards and including a record of every patient consultation … Dr Kesserwani's practice in relation to clinical records 1. The clinical records the subject of Complaint 3 were produced by Dr Kesserwani in answer to a request by the Commission. 2. According to Dr Kesserwani, throughout the period of the Complaint it was his practice to either dictate notes or to make handwritten notes during or after each patient consultation. He claimed that it was not until the Commission's investigation of the Complaint, that he learnt that administrative staff employed by his practice had not been, as required, routinely entering those notes into patients' electronic files. 3. Since October 2011, Lyn Maresca has been employed at Dr Kesserwani's Concord practice, initially as the Practice Manager and since 2017, as a receptionist. She corroborated Dr Kesserwani's claim that throughout her employment, staff were required to enter Dr Kesserwani's notes into patients' electronic records. She claimed usually staff would allow the notes and associated records to build up and then enter them in batches, when time permitted. However, she claimed that because of work pressure and, from 2013, her own health and related personal issues, this did not routinely occur. She claims that when the backlog became overwhelming, Dr Kesserwani's notes together with other medical records and consent forms would be placed and stored away, with the intention that they would be entered into patient files when time permitted, which it seldom did. She claimed that some stored documents were damaged by water during renovations to the practice, as she recalled, in about 2016. Conclusion 1. The clinical notes the subject of Complaint 3 were inadequate in a number of material respects. First, the pro-forma questionnaire used to record the clinical history of 15 patients (Patients A to O), omitted critical details, such as the history of the patient's presenting condition. Second, the notes of all but one of the 15 patients (Patient E) contain insufficient details of physical examinations undertaken by Dr Kesserwani: Particular 1(b). Third, the notes of 11 of the 15 patients fail to record Dr Kesserwani's clinical assessment of the patient: Particular 1(c). Finally, there is no, or inadequate, documentation evidencing that Patients B, E, F, H, I or K consented to the treatment recorded as being given by Dr Kesserwani: Particular 1(d). 2. Whether, as claimed by Dr Kesserwani, the failure to maintain adequate clinical notes as particularised by Complaint 3 was attributable in part or whole to failings by administrative staff, is not to the point. As Dr Kesserwani properly acknowledges, he bore responsibility for maintaining adequate clinical records. 3. Dr Kesserwani properly concedes that the conduct particularised in Complaint 3 amounts to "unsatisfactory professional conduct" within the meaning of s 139B(1)(a) of the National Law, that is conduct "that demonstrates the … care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". Complaint 2: obtaining informed consent to treatment 1. Complaint 2 alleges that Dr Kesserwani failed to obtain informed consent from six patients before undertaking treatment: Particulars 1, 2 and 3. In addition, it alleges that over an 18-month period, Dr Kesserwani failed to conduct an "appropriate clinical assessment" of Patient C: Particular 4. Dr Kesserwani denies each of these four particulars. 2. The Commission bears the burden of proving, on the balance of probabilities, the matters particularised in Complaint 2. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences, the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities. 3. The authorities have cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 at [1]. Particulars 1, 2 and 3 The obligation to obtain informed consent 1. The parties agree that before undertaking treatment a chiropractor is required to obtain informed consent from the patient. The Code of Conduct explains that "Informed consent is a person's voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved": at [3.5]. The Code states that "good practice" in relation to obtaining informed consent means: 1. providing information to patients in a way they can understand before asking for their consent 2. providing an explanation of the treatment/care recommended, its likely duration, expected benefits and cost, any alternative(s) to the proposed care, their relative risks/benefits, as well as the likely consequences of no care 3. obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment/care (this may not be possible in an emergency) or involving patients in teaching or research, including providing information on material risks 4. consent being freely given, without coercion or pressure 5. advising patients, when referring a patient for investigation or treatment/ care, that there may be additional costs, which they may wish to clarify before proceeding 6. … 7. … 8. documenting consent appropriately, including considering the need for written consent for procedures that may result in serious injury or death. Professor Bonello's opinion about the consent forms used by Dr Kesserwani 1. At the request of the Commission, Professor Bonello reviewed the consent forms used in Dr Kesserwani's practice between January 2011 and September 2015. Professor Bonello identified three different forms apparently used to obtain consent for regular chiropractic care and a supplementary form, apparently used to obtain consent to PRPT. 2. Version 1 of the general consent form contained information of a general nature of the risks associated with chiropractic and potential alternatives to chiropractic. In addition, it contained information, again of a general nature, of the risks of "Biomesotherapy/Biopuncture/PRP Treatment". 3. Version 2, headed "New Patient Form", contained a series of questions relating to the patients' medical history and any previous treatment a. Immediately above a place for the patient's signature, was the statement "I hereby consent and give my permission to the health practitioner (Chiropractor, Podiatrist Exercise Physiologist, Massage Therapist, and Dermatologist) to administer and perform such procedures upon me as the medical practitioner deems necessary". 4. Version 3 consisted of half a page of fine print describing the risks associated with chiropractic in general, together with some information on potential alternatives to chiropractic treatment. 5. In Professor Bonello's opinion, Versions 1 and 3 satisfied the minimum requirements of gaining reasonably informed consent for general chiropractic treatment. He pointed out that Version 2 purports to authorise treatments requested by a medical practitioner yet appears to have been used where the patient had not been referred by a medical practitioner. In addition, he noted that Version 2 contained no information on the risks associated with chiropractic treatment, did not refer to any specific issues relating to the individual patient, nor did it note the diagnosis made or the treatment recommended by Dr Kesserwani. 6. The form apparently used to obtain patient consent to PRPT was headed "PRP Patient Checklist". That form asked the patient whether they had any of 37 listed conditions or any other condition. That was followed by a description of PRPT and an outline of its associated risks. In Professor Bonello's opinion that form satisfied the minimum requirement for gaining informed consent. However, as all of the PRP Patient Checklists reviewed by Professor Bonello were unsigned, in his view none could be said to evidence informed consent. In cross examination, Professor Bonello agreed with the proposition that the Code did not require a practitioner toobtain written consent to proposed treatment. In addition, he agreed that the existence of a completed consent form was not the sole determinant of whether the patient had given informed consent to the proposed treatment. Further, he agreed with the proposition that without knowing what verbal and/or written information had been given to the patient, it was not possible to properly assess whether or not they had informed consent to the proposed treatment. Particular 1 of Complaint 2 1. This particular alleges: The practitioner failed to obtain informed consent for proposed treatment for the following patients on the following dates in that he used a pro forma consent form which did not include information such as the diagnosis or treatment recommended, or the risks associated with the recommended treatment: (a) Patient E on 11 February 2014; (b) Patient F on 28 July 2014; (c) Patient H on 10 March 2014; (d) Patient I on 1 February 2014. 1. Included in the records produced by Dr Kesserwani to the Commission, were dated Version 2 consent forms signed by Patients E, F, H and I and an unsigned PRP Patient Checklist. Each of the consultations the subject of this particular appear to be initial consultations. 2. In a letter dated 23 May 2018 prepared by his lawyers in response to questions asked by the Commission, Dr Kesserwani claimed he employed the following procedure to obtain consent from new patients to treatment: 1. "On arrival of a new patient, a patient form is presented for completion of patient details and relevant history. Attached to that form is a consent form, which outlines all adverse reactions to all treatments that can be provided. 2. Once in the practice room and prior to treatment, further verbal explanation on all risks and procedural treatments are discussed in length, to further put the patient at ease and to ensure they have an understanding of the risks and procedural treatments involved. The patient is then asked to sign the form. 3. If PRP were to be administered, it was never administered on the same day as the patient's initial consultation. It was a requirement for my client to discuss PRP with the patient and to have them go away and think about it as a modality. If a patient enquired about the PRP treatment and all other treatment protocols had been exhausted, subject to all proper testing, then and only then, would a patient be booked in for PRP. Generally, the appointment would be scheduled in for a week later, to provide the patient with further time to think about it and gave them an opportunity to cancel at any time if need be. PRP had a separate procedure as it takes longer to perform including setting up the required equipment. On the day of administrating PRP, patients are asked if they are sure they want to proceed with the treatment. A due diligence checklist is then completed, to again assess whether or not the patient complies and is capable of proceeding." 1. According to Dr Kesserwani, during the initial consultation which would generally run for about 45 minutes, his usual practice was to perform a thorough physical examination of the patient, take a detailed history, examine any available medical reports and imaging studies and then discuss with the patient his provisional diagnosis and his view of the best management plan and treatment options. He claimed that during that and any subsequent consultation he explained in detail any proposed treatment, asked the patient whether they consented to that treatment and emphasised that they were free to decline that treatment. He claimed that he then asked the patient to sign a consent form, and if PRPT was proposed, a specific form. 2. Dr Kesserwani claimed that the use of consent forms was a "standardised procedure". He claims that the reason he was unable to locate any consent forms relating to the treatment the subject of Particulars 1, 2 and 3, was because of administrative shortcomings within his practice and the destruction of documents during the renovation to his practice. 3. Dr Kesserwani's claim that during the initial consultation the patient was only asked to sign the consent form after he had informed them of his diagnosis and treatment proposal was contradicted by Ms Mercera, who claims that before going into the treatment room new patients were asked to complete and to return to her a "New Patient form" (Version 2). In re-examination, she stated that she was less confident about that recollection and the practice may have been that the patient took the form into the treatment room when they saw Dr Kesserwani. Patient F 1. There are no clinical notes of the subject consultation with Patient F on 28 July 2014. Indeed, the only evidence that Patient F attended the practice on that day is the consent form itself. In the absence of any material revealing whether treatment was provided or proposed to be provided on 28 July 2014, it is not possible to determine whether Dr Kesserwani did or did not obtain informed consent from Patient F. Patient E 1. The clinical notes for the subject consultation on 11 February 2014 are reasonably detailed, describing Patient E's presenting problem as "right shoulder pain". Listed under the heading "Treatment" are: Shoulder mobilisation, ICE, TENS machine, Dry needling deltoid, supraspinatus, biceps and levator scapular, exercises have been given to the patient to continue at home. 2. The notes go on to record that Patient E asked about PRPT, Dr Kesserwani outlined its risks and benefits and recorded "conservative treatment will be trialled first". Patient H 1. The clinical notes for the subject consultation on 10 March 2014 consist of the following entry: Pain around upper cervical region, Cx adjustment, Acupuncture, STW, Heat cream applied. Patient I 1. The clinical notes for the subject consultation on 1 February 2014 consist of the following entry: Lower back stiffens with referral of symptoms across sacral region – suspected SIJ, Cupping, SIJ adjustment, Lx adjustment, Trigger point release, TENS, Stretches. Did Dr Kesserwani obtain informed consent for the treatment given to Patients E, H and I during the subject consultations? 1. There is nothing in the clinical notes of Patients E, H and I to indicate that Dr Kesserwani discussed the form of treatment which was recorded as given during their respective subject consultations. The only record of any discussion about treatment is the record made in respect of Patient E which refers to future treatment. 2. We agree with Professor Bonello that the Version 2 consent form is demonstrably inadequate and could not be said to demonstrate that the patient gave informed consent. In addition, Ms Mercera's evidence casts doubt on Dr Kesserwani's claim that patients were not asked to sign those forms until after he had undertaken an initial assessment and outlined his provisional diagnosis and his view of treatment options. 3. However, as Professor Bonello concedes, of itself the absence of documentation is not determinative. Whether Patients E, H and I gave informed consent to the treatment they received at their respective initial consultation turns on whether Dr Kesserwani's claim about his "usual practice" can be accepted. 4. That claim is apparently consistent with the claim made by eight patients in statutory declarations and which Dr Kesserwani provided to the Commission. Those declarations were provided to Professor Bonello but not to the Tribunal. In his report of 25 June 2018, Professor Bonello recorded that each of the eight patients declared that they recalled a "consent process being given". That evidence falls well short of establishing that Dr Kesserwani obtained informed consent from the eight patients, less still Patients E, F H and I, who were not among that group. Nonetheless, it is generally corroborative of his claim about his "usual practice". 5. Dr Kesserwani is not an independent witness and has an interest in persuading the Tribunal that his usual practice was always followed during an initial consultation. Nonetheless, in circumstances where Dr Kesserwani's claim is uncontradicted by direct evidence (neither party obtained a statement from Patients F, H and I and Patient E is now deceased), is not implausible, and there is some albeit not especially persuasive supporting evidence, we find the available material to be insufficient to support a conclusion that Dr Kesserwani failed to obtain informed consent from Patients E, H and I. 6. Particular 1 is not proven. Particular 2 and 3 of Complaint 2 1. These particulars allege that Dr Kesserwani failed to obtain informed consent from Patients B and K before performing any treatment during their respective initial and subsequent consultations. Patient B 1. The records produced to the Commission by Dr Kesserwani include Patient B's clinical notes and an undated and unsigned PRP Patient Checklist in his name. The clinical notes record Patient B: consulting with Dr Kesserwani on 15 occasions between 19 October 2012 and 10 January 2017 and being given PRP injections on 4 and 17 July 2016. In addition, the notes record Dr Kesserwani discussing PRPT at each of the consultations on 4 and 17 July 2016 and the consultation immediately before PRPT was commenced. The notes contain little detail of what was discussed. For example, the entry for the consultation on 4 July 2016 records "patient has been given the risks and benefits". 2. PRPT was but one of several types of treatments recorded as being given to Patient B between October 2012 and January 2017. The notes record that he received acupuncture, dry needling, shoulder mobilisation and several other types of treatment. Apart from the reference to PRPT, the notes contain no reference to Dr Kesserwani discussing with or giving Patient B information about treatments. Patient K 1. The records which Dr Kesserwani produced to the Commission in relation to Patient K, include clinical notes for the period 22 October 2012 to 21 February 2017 (88 consultations), an unsigned and undated PRP patient checklist and a signed but undated Version 1 consent form. The clinical notes record Patient K receiving PRPT on 7 June 2016 and 29 June 2016. In addition, they record Dr Kesserwani discussing PRPT with Patient K on 7 June 2016 and the consultation which immediately preceded it, some 12 months earlier. Similar to the notes made in relation to Patient B, the notes contain little detail about the information Dr Kesserwani gave Patient K about PRPT. Nor do they contain any mention of Dr Kesserwani discussing with or obtaining consent to treat Patient K with the other forms of treatment he received between 2012 and 2017. Consideration 1. To find Particulars 2 and/ or 3 proven we must be satisfied that Dr Kesserwani failed to obtain informed consent from Patient B or Patient K, before performing any treatment during their respective initial and subsequent consultations. 2. The issues raised by these particulars are much the same as those raised by Particular 1. Again, the available documentary material could not be said to evidence that either patient gave informed consent. In each case the PRP Patient Checklist was unsigned and undated. No general consent form was produced in relation to Patient B. The form produced in relation to Patient K, while of a type Professor Bonello considered adequate, was unsigned. 3. We accept the claim made by Ms Maresca that from 2013, if time did not permit to scan completed consent forms on to the patient file, those forms were placed in boxes to be scanned at some later date, which did not always occur. In addition, we accept her claim that some of those stored documents were destroyed. Nonetheless, given that over five years Patients B and Patients K attended 15 and 88 consultations, respectively, we think it highly improbable that if Dr Kesserwani's "usual practice" was as claimed to provide patients with a tailored consent form on each occasion a new form of treatment was carried out, that only three consent forms could be located within his practice. The more likely explanation is that the "usual practice" was not always followed. 4. Nonetheless, we are left with Dr Kesserwani's uncontradicted claim that before giving any new form of treatment, he verbally informed the patient about the nature of that treatment, its associated risks and obtained their consent to that treatment. For largely the same reasons given in relation to Particular 1, we are not satisfied that Dr Kesserwani failed to obtain informed consent from Patients B or Patients K, before performing any treatment during their respective initial and subsequent consultations. Particular 4 of Complaint 2 1. Particular 4 alleges: Between 17 October 2014 and 24 April 2017, the practitioner failed to conduct an appropriate clinical assessment on Patient C on the dates outlined in Schedule C to the Complaint in that no physical examination was undertaken including palpation or making observational findings in circumstances where Patient C's presenting problem was pain in her right shoulder. 1. The clinical records produced to the Commission by Dr Kesserwani record that Patient C consulted with him on 45 occasions between October 2014 and April 2017. 2. In his report dated 29 March 2018, Professor Bonello commented on the clinical records of the 15 patients the Commission had asked him to review: D. Clinical assessment (decision making) No diagnosis appears to be independently recorded by Dr Kesserwani, although his testing and the medical imaging reports typically support the diagnosis reported by the patient at the initial visit. Best practice is that a chiropractor specifies a working diagnosis and outline a treatment plan. That does not appear to have been the case in Dr Kesserwani's management of patients. It is a reasonable expectation that chiropractors exercise independent judgement in diagnosing patients and either confirm a prior diagnosis or establish a new one. However, Dr Kesserwani's treatments (apart from the use of PRP) appear to be reasonably justified. Therefore, it is my professional opinion that Dr Kesserwani's clinical decision-making is adequate but the record of clinical assessment which supports his decision-making is inadequate. This failure of record keeping is a moderate departure from competent practice. It is below what is reasonably expected of a practitioner with an equivalent level of training or experience as Dr Kesserwani at the time of the events in question. This departure from standard is significantly below acceptable standards but does not invite my strong criticism. 1. With respect to Patient C, Professor Bonello wrote: Because of the paucity of the clinical records it is impossible to determine if the clinical decision-making is adequate in this case. The record of clinical assessment is inadequate for most consultations, not indicating physical examination, palpation or observational findings. Therefore, the clinical assessment is inadequate. Clinical assessment prior to the delivery of PRP treatments, however, is competent. Overall, this is significantly below the acceptable standard but does not invite my strong criticism. 1. While there can be no argument that the records of Dr Kesserwani's clinical assessment of Patient K are demonstrably inadequate, it could not be said as alleged by Particular 4 that those records reveal "no physical examination was undertaken including palpations or making observational findings" in respect of each of Patient C's 45 consultations with Dr Kesserwani. A review of the records reveal that Dr Kesserwani sometimes recorded having undertaken a physical examination of Patient K. For example, "shoulder abduction now at 50 degrees until pain commences" (24 November 2014); "increase in shoulder ROM [range of movement]-abd-55" (5 December 2014); "ROM of shoulder still at 130 degrees flexion and abduction at 95" (24 April 2015); "ROM: abduction at 60 degrees; Muscle testing: supraspinatus (2/5), biceps tendon (3/5)" (3 July 2015); "ROM: abduction at 85-90 degrees (great improvement), muscle testing: supraspinatus (4/5), biceps tendon (4/5)" (4 September 2015). 2. While, as the extract above reveals, Professor Bonello is extremely critical of Dr Kesserwani's clinical record keeping, he did not go so far as to state that the clinical assessment undertaken for each consultation was inadequate. Rather, in his view they were mostly inadequate. 3. In these proceedings, in answer to Professor Bonello's criticism that missing from most patient records was any indication that a general physical examination of the spine, safety testing or palpation and provocation testing, had been undertaken, Dr Kesserwani insisted that he routinely performed such tests. They were "second nature". He conceded however that he often failed to make a record of those tests. 4. Patient C was one of the eight patients who provided statutory declarations at the request of Dr Kesserwani (see [63] above). Professor Bonello's summary of Patient C's declaration stated that Patient C declared that "a history was taken, testing performed, progress monitored and a consent progress undertaken". While not qualified to comment on whether the tests performed were appropriate, nonetheless Patient C's claim that testing was performed is corroborative of Dr Kesserwani's claim that it was his usual practice. 5. Particular 4 as formulated requires that we be satisfied that on each of Patient's C's 45 consultations between October 2014 and April 2017, Dr Kesserwani failed to conduct an "appropriate clinical assessment in that no physical examination was undertaken including palpation or making observational findings". The available material does not support that finding. Conclusion 1. Complaint 2 is not proven. Does the conduct particularised in Complaint 1 and 3 amount to professional misconduct? 1. Determining whether the conduct the subject of Complaints 1 and 3, individually or considered together, amounts to professional misconduct within the meaning of s 139E of the National Law requires that we evaluate whether that conduct is "sufficiently serious to justify suspension or cancellation" of Dr Kesserwani's registration: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]. In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, in referring to the definition of professional misconduct in the now repealed Medical Practice Act 1992 (NSW), which is in similar but not identical terms to the definition contained in the National Law, Basten JA emphasised that the definition of professional misconduct is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made: [67]. 2. In evaluating whether the subject conduct is of a sufficiently serious nature to justify suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the conduct, any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. 3. While accepting that the conduct particularised in Complaints 1 and 3 was serious, Dr Kesserwani submits that it was not of a sufficiently serious nature to justify suspension or cancellation of his registration. With respect to Complaint 1, he asserts that at all times he was motivated to offer patients what he sincerely believed to be an appropriate and effective form of treatment, especially for those with chronic conditions which had not responded to conservative treatment. Dr Kesserwani acknowledges that it was remiss of him not to have consulted with the Council or one of the professional organisations representing chiropractors. However, he claims it was never his intention to deliberately flout the rules. In support he contends that at the time practising PRPT was something of a grey area, as evidenced by the fact none of the medical practitioners who referred patients to him for treatment questioned whether it was permissible for a chiropractor to use PRPT and nor did any of the NSW Public Health Unit officers, who visited his practice on 14 November 2016 in response to the initiating complaint. 4. With respect to Complaint 3, Dr Kesserwani contends that his actions were not deliberate and were the result of poor management practices. He claims that once brought to his attention, he took immediate action and invested heavily to rectify the problems. In addition, he points out that while Professor Bonello was critical of his record keeping, he was not particularly harsh in his criticism, pointing out that poor record keeping was "widespread within the profession". 5. We accept Dr Kesserwani's claim that he did not practise PRPT in the knowledge that it was outside the scope of practice of chiropractic. While his subjective belief is a mitigating factor, nonetheless his actions in engaging in PRP therapy without proper training or experience had the potential to put at risk patient health and safety. In our view, that conduct is of a sufficiently serious nature to justify cancellation or suspension of Dr Kesserwani's registration. 6. The conduct the subject of Complaint 3 is also of a serious nature. For a lengthy period, Dr Kesserwani failed to maintain adequate records. The problem was systemic within his practice. That, as Professor Bonello points out, Dr Kesserwani may not be alone in maintaining grossly inadequate clinical records does not detract from the objective seriousness of his failings. Like the conduct the subject of Complaint 1, it had the potential to put patient health and safety at risk. In our view it is of a sufficiently serious nature to justify cancellation or suspension of Dr Kesserwani's registration. 7. The conduct the subject of Complaints 1 and 3 considered individually and together amounts to professional misconduct under s 139E of the National Law. Should disciplinary orders be made? 1. Where, as here, a complaint made under the National Law is admitted, the Tribunal may exercise any of the powers in Sub-div 6, Div 3 of Pt 8 of the National Law. They include the powers to caution, reprimand and to impose conditions on a practitioner's registration. Where, as here, the Tribunal is satisfied that a practitioner is guilty of professional misconduct it may suspend or cancel the practitioner's registration: s 149C(1) of the National Law. 2. In exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 3. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order". 4. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA stated at [20] that in making protective orders, the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. Submissions about appropriate disciplinary orders 1. The parties agree that the power to impose conditions on Dr Kesserwani's registration ought to be exercised, specifically that: (i) for a period of at least 12 months he submit to random, unannounced audits of each practice where he provides chiropractic services, and (ii) he receive mentoring for a period as determined by the Council. However, they disagree about whether, as proposed by the Commission, Dr Kesserwani's registration should be suspended for three months. 2. The Commission contends that a suspension order is appropriate because it will serve to denounce the conduct found to amount to professional conduct and signal to the profession the importance of practising within their scope of practice and maintaining adequate clinical records, citing in support the comments of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) at [34]-[39]. 3. Dr Kesserwani disagrees. He submits for the following reasons that the more appropriate order is the issue of a reprimand together with the imposition on his registration of the conditions proposed by the Commission. 4. First, following advice received by the Council on 14 November 2016 he immediately stopped using PRPT and has never questioned or challenged the Council's decision. He claims that he has learnt a powerful lesson and is determined to ensure that he will never again practise outside the scope of his profession. He claims that he is now "extremely nervous", so much so that rather than use any new form of therapy, he will refer the patient out. He claims to now acknowledge that his actions in using PRPT, even in the modified form he used, potentially put patients at risk. 5. Second, he contends that in early 2017 he implemented a series of reforms within the practice. These include hiring an experienced practice manager and additional support staff, firing and demoting a number of staff members found to have contributed to the record-keeping shortcomings identified by the Commission, commissioning external consultants to review and audit his practice, implementing the recommendations of those reviews, regularly conducting internal audits and, since October 2017, working with a mentor, an experienced and well respected chiropractor, to cement these reforms. He claims his practice is now "significantly different" to the one investigated by the Commission in 2017 and there is now a collective understanding among everyone working at the practice that "excellent patient care … requires high level administrative and operational support". Conclusion 1. Relevant to the exercise of the discretion to suspend Dr Kesserwani's registration is whether there is a real and material risk that the offending conduct will be repeated. 2. Dr Kesserwani's claim that since early 2017 he has taken active and effective steps to address the record-keeping problem within his practice is unchallenged and is accepted by us. The imposition of the proposed audit conditions agreed by the parties provides an additional safeguard. 3. For a range of reasons, including commercial self-interest it is likely in the future, that as claimed, Dr Kesserwani will take an extremely cautious approach to using any form of therapy which does not fall squarely within his scope of practice. 4. Nonetheless, as Meagher JA explained in Do at [34]-[39], in formulating disciplinary orders we must have regard not only to risk of the admitted conduct being repeated but also the public interest served by denouncing that conduct and signalling to the profession its unacceptability. 5. The real issue is whether a suspension, as opposed to a reprimand, adequately serves to denounce Dr Kesserwani's conduct. A reprimand is self-evidently a "lighter" disciplinary measure than suspension. 6. There is no doubt that Dr Kesserwani's conduct ought to be denounced. These proceedings are, in effect, denunciatory. An order to issue Dr Kesserwani with a reprimand, which will appear on the public record of his registration maintained by the Australian Health Practitioner Regulation Agency, also serves to denounce his conduct. While in exercising the power to make disciplinary orders, the protection of the health and safety of the public is the paramount consideration, nonetheless the form of order must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom measures are imposed). In our view, the orders proposed by Dr Kesserwani serve to denounce his conduct and, in addition, take into account the objective and subjective features of this case. In addition, they take into account that four and a half years have now passed since the Council imposed a series of conditions on Dr Kesserwani's registration with which he has fully complied. Review body 1. The parties agree that while Dr Kesserwani's principal place of practice is NSW, the Chiropractic Council of NSW is the appropriate review body for the purposes of Pt 8, Div 8 of the National Law. Costs 1. If the parties are unable to agree on the issue of costs, they may apply to the Tribunal within 28 days of these reasons for an order for costs. That application must be accompanied by brief submissions in support together with the view of the applicant party as to whether, as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW), that application can adequately be dealt with on the basis of written submissions without holding a hearing. Orders 1. Dr Kesserwani is reprimanded. 2. Pursuant to s 149A of the Health Practitioner Regulation National Law (NSW), for 12 months or such longer period as determined by the Chiropractic Council of NSW (the Council), the following conditions are imposed on Dr Kesserwani's registration: 1. The practitioner is to be mentored for a minimum period of 12 months, and as subsequently determined by the Council in accordance with the Chiropractic Council of NSW's Compliance policy – Mentoring. 2. The practitioner is to submit to random, unannounced audits of every practice where he provides chiropractic services: 1. The audits are to be conducted by persons appointed by the Chiropractic Council of NSW and are to assess and report to the Council on the practitioner's record keeping and file management; 2. The practitioner will permit the auditors to inspect all patient records and any copy of any patient records, however, they are kept. 3. The practitioner is to advise the Chiropractic Council of NSW in writing at least seven days prior to changing the nature or place of his practice. 1. While Dr Kesserwani's principal place of practice is NSW, the Chiropractic Council of NSW is the appropriate review body for the purposes of Pt 8, Div 8 of the Health Practitioner Regulation National Law (NSW). Annexure A IN THE CIVIL AND ADMINISTRATIVE NO. Of TRIBUNAL OF NEW SOUTH WALES OCCUPATIONAL DIVISION HEALTH PRACTITIONER DIVISION LIST (Chiropractic) In the matter of Dr Walid Kesserwani, a person registered under the Health Practitioner Regulation National Law (NSW) The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Chiropractic Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Walid Kesserwani of [Address removed] ("the practitioner") being a Chiropractor registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of Chiropractic. BACKGROUND TO COMPLAINT ONE The practitioner was first registered in NSW on 17 December 2007. The practitioner owns and operates two chiropractic practices called 'Medisport Clinic' located in Concord, NSW which he has owned since 2011 and Penrith, NSW which he has owned since 2016. At all relevant times to this Complaint, the practitioner treated each patient at Medisport Clinic, Concord NSW. On 23 November 2016, proceedings under s150 of the National Law were convened and conditions were imposed on Dr Kesserwani's registration, one of which prohibited him from injecting a person with any substance, including, but not limited to, platelet enriched plasma injections or autologous blood injections. PARTICULARS OF COMPLAINT ONE 1. Between 2014 and 2016 the practitioner provided treatment and services outside the scope of practice for a chiropractor in that he administered Platelet Rich Plasma therapy ('PRP') injections to Patients A – O on the dates as outlined in Schedule B to the Complaint in circumstances where the practitioner did not possess: (a) the expertise required to make proper diagnostic and therapeutic decisions at the relevant level of reasonable competence for PRP intervention which lies wholly outside the training and experience of a chiropractor; and/or (b) the appropriate level of clinical understanding and expertise to undertake the therapy without consultation and direction from an appropriately trained clinician such as a sports medicine specialist or intervention radiologist with the relevant expertise in PRP therapy which he did not seek. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed by the practitioner in the practice of chiropractic is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. BACKGROUND TO COMPLAINT TWO The background to Complaint One is repeated. PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to obtain informed consent for proposed treatment for the following patients on the following dates in that he used a pro forma consent form which did not include information such as the diagnosis or treatment recommended or the risks associated with the recommended treatment: (a) Patient E on 11 February 2014; (b) Patient F on 28 July 2014; (c) Patient H on 10 March 2014; (d) Patient I on 1 February 2014. 2. The practitioner failed to obtain informed consent prior to performing any treatment on Patient B on his first consultation with the practitioner on 10 October 2012, or any other subsequent consultations. 3. The practitioner failed to obtain informed consent prior to performing any treatment on Patient K on his first consultation with the practitioner on 22 October 2012, or any other subsequent consultations. 4. Between 17 October 2014 and 24 April 2017, the practitioner failed to conduct an appropriate clinical assessment on Patient C on the dates outlined in Schedule C to the Complaint in that no physical examination was undertaken including palpation or making observational findings in circumstances where Patient C's presenting problem was pain in her right shoulder. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge and skill possessed by the practitioner in the practice of chiropractic is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. BACKGROUND TO COMPLAINT THREE The background to Complaint One is repeated. PARTICULARS OF COMPLAINT THREE 1. The practitioner failed to maintain adequate clinical notes in relation to Patients A to O the patients as set out below in that he: (a) in relation to Patients A to O used a pro forma sheet to take a clinical history which omitted important factors that are essential for appropriate clinical notes, including: i. prior history of the presenting condition; ii. distribution and radiation of pain and other symptoms; iii. precise nature of the pain; iv. aggravating factors; v. alleviating factors; vi. relevant family history; vii. psychosocial history; viii. success or otherwise of previous treatments. (b) failed to record sufficient detail in the physical examination notes in relation to Patients A to D and F to O (inclusive); (c) failed to adequately record his clinical assessment of each patient in relation to the each treatment the treatment on the dates as set out in Schedule D to the Complaint; (d) failed to provide, obtain and document adequate informed consent in relation to Patients B, E, F, H, I and K. COMPLAINT FOUR is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT FOUR The background to Complaint One is repeated. PARTICULARS OF COMPLAINT FOUR 1. Complaint One, Particular 1 is repeated and relied upon individually. 2. Complaint Two, Particulars 1, 2 and 3 are repeated and relied upon individually. 3. Complaints 1 – 4 and the Particulars thereof are repeated and relied upon cumulatively. [Schedules A, B and C of the Complaint have not been reproduced in these reasons because they disclose the identity of the patients the subject of the Complaint.] ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2020