Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sakla [2021] NSWCATOD 97 Hearing dates: 10 and 11 February 2021 and by written submissions dated 8 and 9 March 2021 Date of orders: 21 July 2021 Decision date: 21 July 2021 Jurisdiction: Occupational Division Before: Sheahan ADCJ, Principal Member Dr K Smartt, Senior Member Dr J Aitken, Senior Member Ms R Kusuma, General Member Decision: The Tribunal makes the following orders: Suspension (1) Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) (the National Law), the Tribunal suspends the practitioner's registration for a period of 6 months from the date of this decision. Reprimand (2) Pursuant to s 149A(1)(a) of the National Law, the Tribunal reprimands the practitioner and imposes practice conditions to follow his suspension as detailed in Order (3). Practice conditions (3) Under s 149A(1)(b), (d), (e) and (f) of the National Law, the Tribunal imposes the following conditions on the practitioner's registration and directs that the practitioner is: 1. To practise only in a group practice approved by the Medical Council of New South Wales (the Medical Council) where there are at least two practitioners (including the subject practitioner): (a) where one other practitioner is a registered medical practitioner with a minimum of seven years post-registration experience; (b) where there is always one other registered medical practitioner or staff member on site; 2. To treat no more than 40 patients in any one day; 3. To undergo a Performance Assessment and an audit of his medical records; 4. To nominate an experienced registered medical practitioner to act as his professional mentor for approval by the Medical Council in accordance with the Council's "Compliance Policy – Mentoring" (as varied from time to time): (a) The practitioner is to be mentored for a minimum period of 12 months and as subsequently determined by the Medical Council; (b) The practitioner is to participate in meetings with the mentor on a monthly basis. At each mentoring meeting, the practitioner is to include discussion of the issues highlighted in this decision, his personal and professional development, and any personal and/or medical practice issues as they arise; (c) The practitioner is to authorise the mentor to report, in an approved format, to the Medical Council on a quarterly basis; (d) The practitioner is to authorise the mentor to inform the Medical Council immediately if the mentoring relationship ends, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration; 5. To forward, within 14 days of a change in the nature of his practice, evidence to the Medical Council that he has provided a copy of his conditions to the Principal of the practice in any place that he works; 6. To authorise and consent to any exchange of information between the Medical Council and Medicare Australia for the purpose of monitoring compliance with these conditions; 7. To authorise the Medical Council to exchange information with any current and future persons or organisations at any places where he works as a medical practitioner in Australia concerning any issues arising in relation to compliance with these conditions; 8. To be responsible for any costs associated with meeting these conditions. (4) The conditions in Order (3) may be altered, varied or removed by the Medical Council, and the Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the National Law. (5) Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales so that a review of these conditions may be conducted by the Medical Board of Australia. Catchwords: HEALTH — professional registration and discipline — complaints — medical practitioner found guilty of unsatisfactory professional conduct and professional misconduct — conditions — costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Hanna [2017] NSWCATOD 165 Health Care Complaints Commission v Hanna (No 2) [2017] NSWCATOD 178 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Richter v Walton [1993] NSWCA 233 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Do [2014] NSWCA 307 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ashraf Alfy Badie Sakla (Respondent) Representation: Counsel: I Chatterjee (Applicant) C Jackson (Respondent) Solicitors: Health Care Complaints Commissions (Applicant) Avant Law (Respondent) File Number(s): 2019/00286911 Publication restriction: On 11 October 2019 an order was made under s 64 of the Civil and Administrative Tribunal Act (2013) prohibiting the publication of the name of the patient set out in the schedule to the complaint. REASONS FOR DECISION Introduction 1. The Health Care Complaints Commission (HCCC or the Commission) seeks a range of orders against Dr Ashraf Alfy Badie Sakla (Sakla or the practitioner) in respect of his personal dealings with a female patient of his general practice at Granville, to whom the Tribunal will refer as "Patient A". 2. The original complaint was made by Patient A's husband. 3. The hearing before the Tribunal was originally scheduled to be held in two stages – as occurred, for example, in Health Care Complaints Commission v Hanna [2017] NSWCATOD 165 ("Hanna"); and Health Care Complaints Commission v Hanna (No 2) [2017] NSWCATOD 178. 4. However, on the eve of the commencement of the stage one hearing on 10 February 2021, the parties agreed on a Statement of Facts ("ASOF" – Ex R2), abandoned much of the scheduled first day and all of the scheduled third day of the appointed hearing, and agreed that the two stages be completed in one hearing day. 5. The Tribunal reserved its decision on 11 February 2021. 6. The parties subsequently filed and submitted, by agreement, both an amended response to the complaint, and an amended and redacted expert report from Dr SC Howle (the original report dated 17 October 2018 was clarified on 6 December 2018, and amended by agreed redactions on 23 February 2021 – Ex A1, tabs 5 to 17). 7. Subsequently, both parties sought leave to rely on Hanna and make submissions on it. Those competing submissions were received respectively on 8 and 9 March 2021. 8. In summary, Sakla sought to rely on Hanna as involving "some strikingly similar circumstances" to the present case, but the Commission sought to distinguish it and rely upon the particular facts of the present case to indicate "what protective orders are appropriate" for Dr Sakla. Agreed Facts 1. For convenience, we now set out in full the ASOF (Ex R2): Professional background 1. Dr Sakla completed his medical education in Cairo, Egypt, graduating with honours in 1984. Dr Sakla has practised in general practice continuously in Australia since 1990. 2. Dr Sakla has been a partner in the Dellwood Medical Centre in South Granville since 1991, and continues to practise there. Context of Misconduct 3. Dr Sakla was the treating GP for Patient A, her husband, and her children from 2016. Consultation of 8 March 2017 4. Patient A consulted with Dr Sakla on 8 March 2017. 5. Dr Sakla's clinical notes of the consultation were inadequate …, in that they did not provide sufficient detail to allow another practitioner to take over Patient A's care; I. In the course of an extended consultation, Patient A disclosed to Dr Sakla that she was experiencing serious family violence and abuse. II. Dr Sakla elicited a comprehensive history of Patient A's disclosures, but recorded only "domestic problems discussed lengthly and advised". III. Dr Sakla took a history of Patient A's sleep patterns, appetite, and any thoughts of self-harm or harm to others, but did not record this history. IV. Dr Sakla noted Patient A's affect, which was normal except when dealing with difficult subject matter, and he observed no obvious weight loss, but did not record these details in his notes. V. Dr Sakla raised the possibility of referring Patient A to a psychologist, but Patient A declined, because, she said, she was concerned her husband would find out. Dr Sakla did not record this detail in his notes. VI. Dr Sakla did not record more detailed notes of this consultation at Patient A's request. Patient A told the Respondent that she was worried her husband would discover them. VII. Notwithstanding Patient A's concerns, Dr Sakla was required to make clinical notes with sufficient detail to allow another doctor to take over Patient A's care. 6. Dr Sakla administered a K10 mental health questionnaire to Patient A, prepared a mental health plan, and provided Patient A with a referral to Ms Deborah Starr, psychologist, on 20 April 2017 … Conduct between March and August 2017 7. Between March and August 2017, Dr Sakla called Patient A approximately 85 times, sent text messages of a personal nature, including photos of himself, provided Patient A with his mobile number, and contacted Patient A while she was on a family holiday in Lebanon. 8. Throughout March 2017 to July 2017, the practitioner failed to maintain proper professional boundaries by engaging in a personal and romantic relationship with Patient A which included: I. Meeting face-to-face outside the practice; II. Hugging; III. Kissing; IV. Meeting in a motel on two occasions. 9. Throughout March 2017 to August 2017 Dr Sakla failed to maintain proper professional boundaries by making inappropriate personal disclosures and sharing information about his marriage, family and social life with Patient A, including disclosing that: a) She was not the only one suffering in this world, he too was also suffering; b) He was unhappy in his marriage, so he could empathise with her and help her; c) He saw her as "the light at the end of the tunnel"; d) His sister had died because her husband was "verbally, emotionally and physically abusive like (Patient A's) husband". 10. Throughout April 2017 to July 2017, the practitioner failed to maintain proper professional boundaries by giving Patient A money, including money to buy perfume and jewellery. The conduct between March and August 2017 breached professional boundaries, and was unsatisfactory professional conduct. 11. By his actions, the practitioner breached professional boundaries with Patient A contrary to the Medical Board of Australia 'Sexual Boundaries: Guidelines for doctors' published 28 October 2011. 12. By his actions, Dr Sakla engaged in unsatisfactory professional conduct within the meaning of section 139E of the [Health Practitioner Regulation] National Law [(NSW) ("the National Law")], and his conduct was a breach of section[s] 139B(1)(a), and 139B(1)(l) of the National Law. Dr Sakla's response after the complaint was made 13. Dr Sakla made detailed admissions of the above facts at his section 150 hearing on 22 November 2017, admitted his conduct was unsatisfactory, and acknowledged that it was damaging to Patient A … 14. Dr Sakla made detailed admissions in his response to the HCCC on 1 December 2017, in which he again acknowledged the damage done to Patient A, and apologised to her … 15. Dr Sakla acknowledges that Patient A was a vulnerable patient, acknowledges that he crossed sexual boundaries, and acknowledges that his conduct was significantly below the standard accepted, and that it was unethical. Oral Evidence 1. In view of the ASOF, the only witness to give oral evidence at the hearing before the Tribunal was the respondent, Dr Sakla. Documentary Exhibits 1. Patient A presently resides in Lebanon, and the Tribunal had the benefit of two written statements from her – the first, dated 3 November 2017 (Ex A1, tab 4), somewhat qualified by the second, dated 19 November 2019 (Ex A2) – both of which predated the ASOF. 2. Each party tendered folders of its primary material (Ex A1 and R1 respectively), and the respondent also relied on some character references (Ex R3), and various certificates (Ex R4) indicating the respondent's completion of three "CPD" courses, all on 8 January 2019. 3. The references (in Ex R3) all date from early 2020, and came from a 30-year colleague in Dr Sakla's practice (Dr Peter Kenny), another practitioner (Dr Farid Nassif), Dr Sakla's nephew (Mr Timothy Ghaly), and a patient (Mr Freddy Mikhael). 4. All the references speak highly of Dr Sakla, especially regarding his conscientious care of his patients, how "out of character" the subject allegations are, and how insightful and remorseful Dr Sakla is now in respect of his subject conduct. 5. The expert, Dr Howle, is a Tamworth general practitioner (GP) of 43 years standing. His report, as clarified and redacted, remains comprehensive and compelling. It is replete with assessments of Dr Sakla's behaviour as "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct, … so [inviting] strong criticism". Submissions For the HCCC 1. The HCCC, through its counsel, Mr Chatterjee, presses both its complaints against Dr Sakla, based on the Health Practitioner Regulation National Law (NSW) (the National Law), namely that he is guilty of both: 1. unsatisfactory professional conduct (s 139B(1)(a) and/or (l)); and 2. professional misconduct (s 139E). 1. In its amended form, Complaint One is largely admitted, on the basis of the ASOF. Sakla concedes that the conduct constituting Complaint One is "unsatisfactory" in the context of s 139B(1) in that it: (a) demonstrated that the knowledge, skill or judgment possessed, or care exercised, by the respondent in the practice of his profession was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s 139B(1)(a)); and (b) amounted to improper or unethical conduct relating to the practice or purported practice of the practitioner's profession (s 139B(1)(l)). 1. In so far as Complaint Two requires a finding of professional misconduct, the Tribunal must determine that Sakla's contraventions, "considered as a whole, are of a sufficiently serious nature to justify suspension or de-registration": per Basten JA in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, at [67]. 2. The HCCC submits to that effect. As it says (in its written submissions at par 6): "… Not only did Dr Sakla engage in a relationship with a patient, but he did so in circumstances where she was plainly vulnerable. On the information available to Dr Sakla, Patient A was in a physically, emotionally and verbally abusive relationship. It would appear she had concerns for her safety and welfare. The abuse was such as to affect her mental health, …" 1. Sakla's relationship with Patient A (par 7): "… not only was a violation of the doctor/patient relationship and an abuse of the inherent power imbalance relationship but raised the risk of harm to Patient A from her partner, who on the material available to Dr Sakla was controlling and jealous." 1. The relationship subsisted for approximately five months (between March and July 2017), and ceased only when it became clearly known to Patient A's husband. It involved multiple meetings and other contact which had no therapeutic purpose, the giving of gifts and money, and physical intimacy, short of sexual intercourse (about which Sakla, however, admits "fantasising" – Ex A1, tab 25, p 5, line 12). 2. Throughout the relevant period, Sakla remained the "primary" GP for Patient A's husband and children. 3. Sakla also accepts that he inappropriately used Patient A as a "source of emotional support for himself" as he dealt with a number of personal and family issues of his own (submissions, par 10). 4. The HCCC acknowledges that Sakla was mildly depressed at the relevant time, but it describes his conduct (submissions, par 11) as an "egregious breach of trust", and invites consideration of various comments made by the Court of Appeal during the 1990s: see Richter v Walton [1993] NSWCA 233, at 8-9, and Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. The Tribunal agrees that those pronouncements, as detailed in the submissions but not repeated here, are still apposite today. 5. Clearly Sakla was a major target of Patient A's concerns about her circumstances, and so was in a particularly privileged position. 6. The HCCC seeks a suspension of Sakla's registration for 6 to 12 months, plus a reprimand, and the imposition of a range of practice conditions for at least 12 months after Sakla returns to practice following his suspension (see submissions, pars 14-15). For the Respondent 1. Mr Jackson's submissions on Sakla's behalf, in response to the HCCC, acknowledge that the primary focus of the Tribunal must be the protection of the public, rather than punishment of Sakla for his failures in this one case. 2. He made full and frank admissions in his s 150 hearing, soon after the complaints, and demonstrated insight into the errors in his behaviour, and the harm he had caused Patient A (see transcript included in Ex A1, tab 25, eg pp 3, 5, 14, and 15). 3. No conditions were imposed upon him after the s 150 proceedings, and no issues or complaints have arisen in the more than three years that have passed since his offending behaviour. 4. His depression, and anger, about issues in his family life, caused a temporary lapse of judgment, resulting in a temporary disregarding of his ethical principles. 5. Accepting advice, he set out to be a better person, and a better doctor, alert to relevant warning signs. 6. He has demonstrated his remorse for Patient A and her children, and is well supported by his family, his practice colleagues, and his referees. 7. Mr Jackson also relied upon the supportive comments made by Dr Susan Messner, in her very balanced assessment of Sakla dated 17 December 2019 (Ex R2, tab 3, pp 5-6), to support his submission that, despite a finding of misconduct being open on the evidence, the Tribunal should not go beyond a reprimand, and the ordering of 12 months' mentoring and additional domestic violence education; it should neither suspend Sakla, nor impose any other conditions upon his registration. Discussion 1. We accept Mr Jackson's submission that our primary focus must be public protection, and not personal punishment, but we do have to consider the need for general deterrence of members of the medical profession, apart from specific deterrence of an offender who intends to continue in the profession. 2. As the Court of Appeal observed in Health Care Complaints Commission v Do [2014] NSWCA 307, at [35]: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. As Mr Chatterjee put it (submissions, pars 21 and 23): "The question for this Tribunal is not simply whether this doctor will again engage in this conduct… Suspension… acts as both a specific and general deterrent and protects the public by reinforcing high professional standards and denouncing transgressions and will maintain public confidence in the medical profession". 1. We also accept the position taken by the HCCC, in the submissions it made regarding Hanna, namely that we must decide the orders to be made in this case on the basis of its own facts, which can be distinguished in many respects from those in Hanna. We do not find the two cases "strikingly similar" in any relevant respects. 2. Personal circumstances involving Sakla's wife and his mother at the relevant time would appear to have aggravated his predisposition to depression at that time, and rendered him vulnerable to his romantic attraction to Patient A, when he genuinely wanted to help her through her own challenges. 3. Nonetheless, after 28 years of almost unblemished practice as a GP (but see Ex A1, tab 25, pp 10-1, and tab 26, p 2, regarding some events which occurred in the period 2002 to 2007), Sakla consciously disregarded his professional and ethical obligations not to form a personal relationship with a vulnerable patient, 20 years his junior, at a time when he continued to treat her family. 4. We also note that he: 1. was at the time seeing far too many patients on a regular basis – up to 60 per day; 2. conceded at the s 150 hearing that he was, at the relevant time, not "completely aware" of the Medical Board of Australia's Code of Conduct and/or its "Guidelines for Doctors on Sexual Boundaries" (see Ex A1, tab 26, pp 3-4); 3. admits that (unlike Dr Hanna) he failed to record adequately important matters about his dealings with Patient A; and 4. does not admit any inadequacy in his care of Patient A (but we note that he brought no evidence to refute such an allegation). 1. In his submission to the HCCC, dated 1 December 2017, Sakla said (Ex A1, tab 19, p 2) that his contact with Patient A gave him support and happiness "at a terrible time". He thought he was providing support for her, but she was really providing support for him "at a time of great need". He said: "It was obviously entirely inappropriate and the worst thing for her… [T]he ramifications once her husband became aware of our relationship would have been devastating. I was the cause of that and I am truly sorry". 1. In his defence, we accept that he has been frank, forthcoming and remorseful in his dealings with the authorities, and this Tribunal, and responsive to advice that he seek appropriate professional help, including from a psychiatrist. Regrettably, the late decision to convert these proceedings from two-stage to single-stage left the Tribunal without the benefit of any report or evidence from Sakla's treating psychiatrist, Dr Chan, leaving us with the evidence of only Dr Messner, who was engaged for the purposes of these proceedings. 2. We do, however, accept Dr Messner's evidence, and her optimism for Sakla's future, even though we find his retraining efforts so far, as evidenced by Ex R4, highly inadequate. 3. While there is cause for optimism that Sakla will not repeat his offending behaviour against a voluntary patient, there remains a need for public deterrence. Conclusion 1. We accept the expert evidence and opinions of Dr Howle, and have concluded that Sakla's conduct amounts to professional misconduct. 2. We have decided that he should be reprimanded, and that his registration should be suspended for six months. 3. On his return to practice, after suspension, his registration should be subject to a range of practice conditions, largely along the lines of those proposed in the Commission's written submissions (at par 15.3), for a period of 12 months. Costs 1. In its written submissions (par 32), the Commission sought to be heard further on costs. In the absence of any submissions as yet from the parties, the Tribunal is of the preliminary view that the respondent Sakla should pay the Commission's costs. Orders 1. The Tribunal makes the following orders: Suspension 1. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) (the National Law), the Tribunal suspends the practitioner's registration for a period of 6 months from the date of this decision. Reprimand 1. Pursuant to s 149A(1)(a) of the National Law, the Tribunal reprimands the practitioner and imposes practice conditions to follow his suspension as detailed in Order (3). Practice conditions 1. Under s 149A(1)(b), (d), (e) and (f) of the National Law, the Tribunal imposes the following conditions on the practitioner's registration and directs that the practitioner is: 1. To practise only in a group practice approved by the Medical Council of New South Wales (the Medical Council) where there are at least two practitioners (including the subject practitioner): (a) where one other practitioner is a registered medical practitioner with a minimum of seven years post-registration experience; (b) where there is always one other registered medical practitioner or staff member on site; 2. To treat no more than 40 patients in any one day; 3. To undergo a Performance Assessment and an audit of his medical records; 4. To nominate an experienced registered medical practitioner to act as his professional mentor for approval by the Medical Council in accordance with the Council's "Compliance Policy – Mentoring" (as varied from time to time): (a) The practitioner is to be mentored for a minimum period of 12 months and as subsequently determined by the Medical Council; (b) The practitioner is to participate in meetings with the mentor on a monthly basis. At each mentoring meeting, the practitioner is to include discussion of the issues highlighted in this decision, his personal and professional development, and any personal and/or medical practice issues as they arise; (c) The practitioner is to authorise the mentor to report, in an approved format, to the Medical Council on a quarterly basis; (d) The practitioner is to authorise the mentor to inform the Medical Council immediately if the mentoring relationship ends, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration; 5. To forward, within 14 days of a change in the nature of his practice, evidence to the Medical Council that he has provided a copy of his conditions to the Principal of the practice in any place that he works; 6. To authorise and consent to any exchange of information between the Medical Council and Medicare Australia for the purpose of monitoring compliance with these conditions; 7. To authorise the Medical Council to exchange information with any current and future persons or organisations at any places where he works as a medical practitioner in Australia concerning any issues arising in relation to compliance with these conditions; 8. To be responsible for any costs associated with meeting these conditions. 1. The conditions in Order (3) may be altered, varied or removed by the Medical Council, and the Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the National Law. 2. Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales so that a review of these conditions may be conducted by the Medical Board of Australia. ********** 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: 21 July 2021