Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Kabir [2021] NSWCATOD 120 Hearing dates: 8 - 9 March 2021 Decision date: 20 August 2021 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Dr V Payne, Senior Member Dr M Cooper, Senior Member D Telford, General Member Decision: Five complaints of unsatisfactory professional conduct and one complaint of professional misconduct have been proven against the respondent. The matter will be listed for further submissions with respect to the issue of what disciplinary orders should be made. (1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the names of the persons and patients listed in the Schedule to the complaints the subject of the application is prohibited. Catchwords: OCCUPATIONS — Medical practitioners — Misconduct and discipline – unsatisfactory professional conduct – professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Reid [2018] NSWCATOD 162 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, 110 ALR 449 R v Falconer [1990] HCA 49; (1990) 171 CLR 30 R v Youssef (1990) 50 A Crim R 1 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Shammi Kabir (Respondent) Representation: Counsel: P Lowson (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Hanna Legal (Respondent) File Number(s): 2019/00337836 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the names of the persons and patients listed in the Schedule to the complaints the subject of the application is prohibited. REASONS FOR DECISION 1. The Health Care Complaints Commission ('the HCCC') filed an application for disciplinary findings and orders in the Tribunal against Dr Kabir, an anaesthetist, on 28 October 2019 ('the application') under the Health Practitioner Regulation National Law (NSW) ('the National Law'). The complaint was amended on 2 March 2021 ('the complaint'). 2. This decision deals with the first stage of the proceedings, which concerns the question of Dr Kabir's culpability for the matters set out in the complaint forming the basis of the HCCC's application. 3. At the hearing of the matter, two volumes of documents were tendered in the HCCC's case. The documents included statements taken in relation to the events which gave rise to these proceedings, documents generated in the course of processes under the National Law initiated by the Medical Council of New South Wales and an expert report of Dr Ann Duggan, an anaesthetist, critiquing aspects of Dr Kabir's conduct. A supplementary statement of Dr Duggan was provided subsequently. A volume of documents was also received in Dr Kabir's case. These documents comprised a statement of Dr Kabir, a report of Professor Alexander McFarlane, a psychiatrist, and a report of Mr Bradley Jones, a forensic psychologist. 4. The hearing took place over two days, and Dr Duggan, Dr Kabir and Professor McFarlane gave oral evidence. Non publication orders 1. The applicant sought a non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) in relation to the persons and patients listed in the Schedule to the complaints the subject of the application. 2. There was no objection to the non-publication order sought. We are satisfied that it is appropriate to make the non-publication order. The persons listed in the Schedule are all persons mentioned in the complaints because Dr Kabir prescribed drugs for them (among other things, in the case of Patient A). Their privacy should be protected. This includes the privacy of Patient A, who is deceased, so as to minimise the causing of distress to her family and friends. The objects of open justice will not be compromised by the non-publication of the names of the persons in the schedule. National Law – Unsatisfactory professional conduct and professional misconduct. 1. The HCCC alleges, in Complaints One to Five, that specified aspects of Dr Kabir's conduct during a period of time from 14 January 2008 until 18 January 2013 amount to unsatisfactory professional conduct under the National Law. In Complaint Six, the HCCC alleges that specified combinations of the conduct alleged, taken together, amount to professional misconduct. 2. The complaints in relation to alleged unsatisfactory professional conduct refer to s 139B(1)(a) and (1)(l) together or s 139B(1)(b) of the National Law. The National Law provides, in s 139B(1)(a), (1)(b) and (1)(l): 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or 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. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Complaint Six alleges professional misconduct under s 139E of the National Law. The National Law provides, in s 139E: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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 suspension or cancellation of the practitioner's registration. The application/complaint and the Reply 1. In the application, the HCCC seeks disciplinary orders against Dr Kabir under s 149A, S 149B and/or s 149C of the National Law. The HCCC also seeks costs. 2. In the complaint forming the basis of the application, the HCCC sets out, by way of background, that Dr Kabir, who is referred to in the complaint as 'the practitioner', was first registered on 5 January 1998, and practised as an anaesthetist from 2002. He was granted fellowship of the Australian and New Zealand College of Anaesthetists in 2007 and, at all material times, was a Visiting Medical Officer at various hospitals and private clinics in Sydney. 3. We will set out the conduct of Dr Kabir alleged in the complaint, together with Dr Kabir's reply to each allegation, followed by our findings. 4. The document referred to as the complaint sets out six individual complaints. 5. The standard of proof which we must apply to the finding of the facts underpinning the complaint is proof on the balance of probabilities. It is also appropriate, in this case, given the nature of the allegations, that we be satisfied that the facts have been proven on the balance of probabilities by cogent and persuasive evidence (see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, 110 ALR 449 at p 449-50, discussing Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336). Most of the alleged facts have been conceded by the respondent. Complaint One 1. By way of background to Complaints One, Two and Three, the following is alleged in the complaint: At all relevant times Patient A was a medical practitioner. In 2004, the practitioner and Patient A first met while both working at the same hospital in Sydney. In 2005 the practitioner and Patient A commenced a close personal relationship. From about 2007 Patient A and the practitioner lived together although at times the practitioner stayed at the home of his parents. Patient A and the practitioner were engaged to be married in 2010. From 2009 to 2012 Patient A was a trainee obstetrician gynaecologist under the Royal Australian College of Obstetrician and Gynaecologists and worked as a surgical assistant in 2012. On 18 January 2013 the practitioner found Patient A unresponsive at their home; Patient A was deceased from acute mixed drug toxicity from an accidental overdose of multiple self-administered drugs. 1. Complaint One alleges the following: The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience: and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 1. The particulars of Complaint One are as follows: 1. From 14 January 2008 to 15 January 2013 the practitioner inappropriately prescribed medicines to Patient A as set out in annexure A in circumstances where: a. the prescribing was contrary to the Medical Council of NSW Guidelines for self-treatment and the treatment of family members ("Guidelines") and the Medical Board of Australia Code of Conduct for Doctors in Australia ("Board Code of Conduct"): b. the prescribing was in response to Patient A's requests and without independently satisfying himself there was a proper clinical basis to prescribe the medications based on his own assessment, examination or investigations, or evidence from Patient A's other treating medical practitioners; c. the practitioner continued to prescribe to Patient A without obtaining Patient A's agreement that she have her own compatible general practitioner ("GP") as her first port of call rather than the practitioner. 2. On 1 June 2012 when Patient A complained to the practitioner of migraines and requested oxycodone, the practitioner acquiesced and prescribed oxycodone without clear indication of benefit to Patient A and without involving a general practitioner or specialist. 3. The practitioner inappropriately prescribed escitalopram on 27 June 2012 and sertraline on 19 October and 14 November 2012 to Patient A in circumstances where the practitioner: a. prescribed antidepressants and anxiolytics for psychiatric conditions which were beyond the scope of the practitioner's expertise and experience; b. did not have adequate rationale to prescribe the medications; c. did not obtain Patient A's agreement that she first be assessed and managed by specialists such as psychiatrists and psychologists; d. did not contact or involve a general practitioner of psychiatrist in Patient A's care and his prescribing. 4. From 2010 while the practitioner was prescribing medications to Patient A as set out in Annexure A, and in the knowledge of the events set out in annexure A1, the practitioner failed to respond appropriately to Patient A's mental health issues in that the practitioner did not: a. (deleted) b. urge Patient A to consult and refer or request her GP refer Patient A to, appropriate professional medical and/or other mental health care, for purposes other than her professional exam preparation; c refuse to prescribe medications to Patient A until she obtained external medical advice and care. d. seek the advice of a colleague, specialist, doctor's health organisation or other organisation as to how best to respond to Patient A's mental health issues. 5. From 12 January 2013 to 18 January 2013 the practitioner inappropriately acceded to Patient A's request that he treat her in their home and failed to arrange for her to either be admitted to hospital or assessed at home by a GP or other independent medical practitioner, in circumstances where: a. on 12 January 2013 Patient A was uncomfortable, shivering and had rigors, stated that she could not swallow, complained of muscle aches, had an elevated temperature and low blood pressure; b. the practitioner formed the view that Patient A needed to be treated in hospital; c. the practitioner relied on Patient A's self-diagnosis that she was suffering from a viral condition and his own non-independent medical assessment and physical examination of Patient A when Patient A would have received a more comprehensive assessment and investigations in a hospital setting; d. the practitioner did not seek appropriate advice from a colleague about his decision to treat Patient A at home; e. the practitioner was aware that Patient A would be at home alone for lengthy periods while the practitioner was at work and potentially uncontactable; f. the practitioner failed to arrange for another medical practitioner, health practitioner or other carer to intermittently check on Patient A's condition whilst she was alone at home and report back to the practitioner. 6. From approximately 12 January 2013 to 18 January 2013 while treating Patient A at their home, the practitioner inappropriately: a. inserted a cannula into Patient A's arm and administered IV antibiotics (Cefazolin) to Patient A without a clear clinical indication for administering IV antibiotics to Patient A and in circumstances where the practitioner did not consider Patient A required them; b. prescribed oral Keflex and prescribed Rulide to Patient A on 15 January 2013 without a clear clinical indication for prescribing the antibiotics to Patient A and in circumstances where the practitioner did not consider Patient A required them; c. administered IV paracetamol to Patient A at her request; d. left the intravenous cannula in situ for several days at Patient A's request and beyond when it was clinically necessary and, in doing so, created an infection risk for Patient A; e. left Patient A at home alone with the IV cannula in place when he was concerned or ought to have been concerned that Patient A may have been abusing restricted drugs. 1. Annexure A to the complaint listed the following prescriptions for the following drugs: Omeprazole, twice on 14 January 2008 and once on 12 May 2008. Rosuvastatin on 27 February 2009, 3 April 2009, 15 May 2009, 4 September 2009, 8 January 2010 and 9 May 2011. Cephazolin on 28 January 2010. Oxycodone on 1 June 2012. Propranolol on 22 June 2012. Escitalopram on 27 June 2012. Cephalexin on 6 July 2012. Doxycyline on 6 July 2012 and 30 October 2012. Mianserin on 19 July 2012. Sertraline on 19 October 2012, 14 November 2012 and 4 January 2013. Metronidazole twice on 28 December 2012. Roxithromycin on 15 January 2013. 1. The drugs in [18] are generally prescribed for the following purposes, or are of the following type: 1. Omeprazole is generally prescribed for gastroesophogeal reflux disease. 2. Rosuvastatin is a statin, used to lower levels of cholesterol. 3. Cephazolin is an antibiotic used to treat certain kinds of bacterial infections. 4. Oxycodone is an opioid used to alleviate pain. 5. Propranolol is a beta blocker used to treat high blood pressure. 6. Escitalopram is an anti-depressant. 7. Cephalexin is an antibiotic used to treat certain kinds of bacterial infections. 8. Doxycycline is an antibiotic used to treat certain kinds of bacterial infections. 9. Mianserin is an anti-depressant. 10. Sertraline is an anti-depressant. 11. Metronidazole is an antibiotic used to treat certain kinds of bacterial infections. 12. Roxithromycin is an antibiotic used to treat certain kinds of bacterial infections. 1. Annexure A1 sets out a series of alleged facts. It refers to an incident on 28 October 2010 in which Patient A expressed suicidal ideation and thoughts to some friends by text message. The friends called an ambulance to Patient A's house, but, after discussion, the ambulance officers agreed to leave Patient A in Dr Kabir's care. Annexure A1 also sets out texts from 5 days in 2011 and two days in 2012 (April and May) upon which Patient A sent to Dr Kabir text messages expressing depressed or suicidal ideation and thoughts. Annexure 1 alleges that in or shortly after June 2012, Patient A asked Dr Kabir to provide her with Schedule 8 and Schedule 4D drugs Propofol, Midazolam and Fentanyl for her mental and physical pain. Annexure A1 alleges that Patient A was diagnosed with adjustment disorder and depressed mood in the context of a consultation seeking a medical extension to sit her professional exams. Annexure A1 alleges that Dr Kabir received a text message from Patient A on 18 August 2012, expressing suicidal ideation, that in January 2013 Patient A told Dr Kabir that she had tried cannabis and that in early January 2013 Dr Kabir found Patient A at home holding a syringe with a needle, which, he was concerned, might have contained an illegal substance. Patient A tried to hide the needle from Dr Kabir and refused to explain what she was doing. 2. There is uncontested evidence before us which supports the allegations in Annexure A1, and we do not understand those allegations to have been contested. 3. It is common ground that the professional exams in relation to which Patient A was seeking an extension were the exams offered by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG). Patient A had failed a particular exam on five occasions between May 2010 and January 2013, but she had succeeded in obtaining permission to sit the exam, yet again, later in 2013. It seems that Patient A's repeated failure of the exam, and her interactions with the examiners about those failures adversely affected her mood from time to time between 2010 and 2013. 4. Complaint One particular 1a alleges that the prescribing by Dr Kabir to Patient A was contrary to the Medical Council of New South Wales Guideline for self-treatment and the treatment of family members ('the Guideline') and the Medical Board of Australia Code of Conduct for Doctors in Australia ('the Board Code of Conduct'). 5. The Guideline provides: (Date of publication: 4 October 2011; Version: 5) BACKGROUND The Medical Council of New South Wales is of the view that wherever possible, medical practitioners should avoid treating members of their immediate family, because in these circumstances: • Professional objectivity may be compromised and their judgment may be influenced by the nature of their relationship with the patient; • Medical practitioners may fail to explore sensitive areas when taking a medical history or may fail to perform an appropriate physical examination; • The patient may feel uncomfortable disclosing sensitive information or undergoing a physical examination when the medical practitioner is a family member; • Patient autonomy may be compromised when a medical practitioner treats a member of their family; • The principles of informed consent may not be adhered to when a medical practitioner treats a member of their family. The Council is also of the view that all medical practitioners should have their own, independent General Practitioner and should not initiate treatment for themselves. GUIDELINE The Council endorses the following general principles: 1 All medical practitioners should have their own, independent General Practitioner. 2 It is not advisable for medical practitioners to initiate treatment (including prescribing) for themselves or immediate family members. 3 In emergency situations or isolated settings where there is no help available, medical practitioners may treat themselves or members of their family until another medical practitioner becomes available. 4 It is not advisable for medical practitioners to serve as primary or regular care providers for immediate family members, although there are circumstances in which they may work together with an independent medical practitioner to maintain established treatment. 5 It is not advisable for medical practitioners to issue medical certificates for themselves or members of their family. 6 It is not appropriate for medical practitioners to issue death certificates for members of their family. 1. The Board Code of Conduct provides, at 3.14: Personal relationships Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues. 1. In his Reply, Dr Kabir admitted that his conduct in respect of the particulars of Complaint One constituted unsatisfactory professional conduct. Dr Kabir further pleaded as follows in relation to Complaint One: 1. Particular 1(a) is admitted. 2. In relation to particular 1(b): Dr Kabir admits that the prescribing was (a) in response to requests for treatment by Patient A; (b) undertaken without evidence from other medical practitioners; and (c) often, but not always, in reliance on Patient A's self-assessment of her condition. 1. In relation to particular 1(c): Admitted and Dr Kabir says further that (a) Patient A refused to consult a GP or other appropriate professional medical professional; and (b) he now believes, but did not at the time appreciate, that that refusal arose from Patient A's mental health issues; (c) if he insisted that Patient A behave otherwise, doing so would (i) create conflict between them, and (ii) diminish his ability to remain informed about and potentially influence her behaviour; but acknowledges that this is a situation that the Guidelines and Code of Conduct referred to in sub-particular 1(a) above were intended to forestall arising. 1. Particular 2 was admitted, and the matters set out in reply to particular 1(c) were repeated. 2. Sub-particulars 3(a), (b) and (d) were admitted, and Dr Kabir said, further, in respect of 3(c) that: (a) in about November 2012, he obtained Patient A's agreement that she be assessed and managed by specialists such as psychiatrists and psychologists (however she never attended); (b) prior to prescribing Escitalopram, was aware that Patient A had consulted Dr Usman Malik, a psychiatrist, and Professor Patsy Tremayne, a psychologist; and (c) repeats his Reply to sub-particular C1.1(c) above. 1. Particulars 4(c) and 4(d) were admitted, but Dr Kabir said further that: (a) he did encourage Patient A and seek to secure her agreement to reflect on her mental health and understand her own condition; (b) he did urge Patient A to consult, and sought to have her accept referral to appropriate professional medical and/or other mental health professionals and to do so for purposes other than her professional exam preparation; and (c) repeats his Reply to particular C.1.1(c) above. 1. Particulars 5(a), (b), (d) and (f) were admitted, and Dr Kabir said further that: (a) in relation to C.1.5(c), he (i) did undertake his own physical examination and medical assessment of Patient A (but acknowledges that his examination and assessment were not of a standard that Patient A would ordinarily receive in hospital or from an appropriately qualified medical practitioner), (ii) believed that Patient A was suffering from a viral condition, (iii) urged Patient A that she be admitted to hospital or see a doctor but she refused, and (iv) wrongly took the view that the only alternative was to treat her at home; and (b) in relation to C.1.5(e), he (i) admits that he was aware that Patient A would be at home alone for lengthy periods while the practitioner was at work; but (ii) denies that he was uncontactable while he was at work. 1. With respect to particular 6, Dr Kabir pleaded as follows: (a) in respect of particular C.1.6(a) (i) admits that he inserted a cannula into Patient A's arm and that he administered IV antibiotic being Cefazolin and that this was inappropriate, (ii) (pleading no longer relevant due to amendment to complaint) (iii) says that he did so because he believed that she might have had a bacterial infection, (iv) says that his belief that she might have had a bacterial infection was based on his own examination and assessment (but acknowledges that his examinations and assessment were not of a standard that Patient A would ordinarily receive in hospital or from an appropriately qualified medical practitioner) and Patient A's self-diagnosis, and (v) says that, during the period of the administration of IV antibiotics, he observed that Patient A's health appeared to improve significantly but that ultimately her health subsequently declined; (b) in respect of particular C.1.6(b) (i) admits that he prescribed oral Keflex and prescribed Rulide to Patient A on or about 15 January 2013 and that this was inappropriate, (ii) says that Patient A did not ultimately take the oral Keflex or Rulide, and (iii) says that his clinical reasons for doing so was his concern that Patient A may have had a bacterial infection and to get Patient A to stop using intravenous antibiotics; (c) admits particulars C.1.6(c) and 6(d); (d) in respect of particular C.1.6(e) (i) admits leaving Patient A at home alone with the IV cannula in place; and (ii) denies that, when he did so, he was concerned that she may have been abusing restricted drugs, but (iii) acknowledges that he should have realised that it was possible that Patient A was abusing drugs at that time; (e) repeats his Reply to particular C.1.5 above. 1. As to Dr Kabir's pleading in relation to particular 1(b) of Complaint One that his prescribing to Patient A in the course of their relationship was "often but not always in reliance on Patient A's self-assessment of her condition", we take the claimed exceptions to be a reference to the following: 1. Dr Kabir's belief that Escitalopram had previously been prescribed to Patient A by a General Practitioner (see transcript p 52), 2. Dr Kabir's belief that a neurologist, Professor Rowe, had started Patient A on Propranolol "and a few other medications" for migraines, and that Patient A "just ran out of the script" (transcript p 54). 1. We accept Dr Kabir's evidence that he held the belief that his prescriptions for Escitalopram and Propranolol followed the prescribing of those drugs for Patient A by another medical practitioner. Notwithstanding that belief, the prescribing of those drugs was still inappropriate and below the standard of professional conduct applicable to him in the circumstances. 2. As to Dr Kabir's pleading with respect to Complaint One particular 1(c), we accept the veracity of the matters pleaded by Dr Kabir in relation to his conduct, both with respect to Complaint One particular 1(c) and with respect to Complaint One particular 2. 3. As to Dr Kabir's pleading with respect to Complaint One particular 3, we accept that, in November 2012, Patient A verbally agreed to be assessed and managed by psychiatrists and psychologists, but never attended. We also accept that, prior to him prescribing Escitalopram to Patient A, Dr Kabir was aware that Patient A had consulted Dr Malik, a psychiatrist and Professor Tremaine, a psychologist. However, we also accept Dr Kabir's evidence, in his statement to the Tribunal, that he referred Patient A to Dr Malik for the sole purpose of obtaining from Dr Malik a letter to support Patient A's application to sit her College exams a sixth time (one of which was not counted). Patient A did not seek treatment from Dr Malik. We note that Patient A's consultation with Professor Tremayne was in 2012. 4. We accept the matters pleaded by Dr Kabir in relation to Complaint One particular 4, particular 5 and particular 6, except that, in relation to the allegation that, from 12 January 2013 to 18 January 2013, after he had inserted the cannula into Patient A's hand and commenced home treatment with intravenous antibiotics and paracetamol, we find that Dr Kabir did go to work for periods of some hours during that time and, as an anaesthetist, would not have been directly contactable at all times whilst he was at work. 5. Bearing in mind those matters pleaded by Dr Kabir and accepted by us in relation to Complaint One, we find and determine that the conduct set out in Complaint One amounts to unsatisfactory professional conduct by Dr Kabir. This conclusion is consistent with the views expressed by Dr Duggan in her evidence and is also consistent with the concessions made by Dr Kabir. 6. Dr Kabir's judgment, and the care he exercised in relation to Patient A in the prescribing set out in particulars 1, 2, 3 and 4 was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct endured for a long period of time and involved the prescribing of drugs which were not within the purview of a specialist anaesthetist to prescribe in the circumstances of Patient A. Dr Kabir also should have declined to prescribe the drugs listed in Complaint One to Patient A on the basis that she was his partner. Agreeing to prescribe led to the situation where Dr Kabir found himself prescribing drugs, such as the anti-depressants, which were beyond the scope of his expertise and experience, and antibiotics and oxycodone, without a clearly articulated indication of the intended benefit to Patient A. 7. Dr Kabir, in his statement, said that he believes that he acceded to Patient A's requests that he prescribed for her to appease her and avoid conflict. He accepted that this motivation in no way justified his conduct. Indeed, it illustrates one of the reasons that a medical practitioner should not prescribe for a family member. 8. Dr Kabir also said that he felt more comfortable prescribing for Patient A because she was also a medical practitioner. Again, he acknowledged that this in no way justified his conduct. We agree. 9. Particular 5 of Complaint One relates to Dr Kabir's decision to treat Patient A at their home from 12 January 2013 to 18 January 2013 in the circumstances set out in particular 5(a) to (f). Particular 6, which relates to the insertion of the cannula, which was left in Patient A for several days, thus creating the risk of infection, and the administration of intra-venous antibiotics and paracetamol, and the prescription of oral antibiotics, also relates to that period of time. 10. Accepting Dr Kabir's pleadings to the extent set out above, we determine that Dr Kabir's conduct as alleged in Complaint One particulars 5 and 6 demonstrated that the judgment possessed and the care exercised by Dr Kabir was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. This is consistent with the views expressed by Dr Duggan in her evidence. 11. Further, Dr Kabir's decision, as set out in Complaint One, to treat Patient A himself, in various ways, over a long period of time, in the face of clear indications that she had mental and physical health problems which were not within the purview of the practice of an anaesthetist, and when she was his partner, was contrary to the Medical Board of Australia's Code of Conduct for Doctors in Australia, particularly clause 3.14, and was also contrary to the Medical Council of NSW Guideline for self-treatment and treating relatives. It was unethical conduct. 12. Dr Kabir's conduct as alleged in Complaint One and as conceded by him and accepted by the Tribunal amounts to unsatisfactory professional conduct, within the meaning of s 139B(1)(a) and (l) of the National Law. Complaint Two 1. Complaint Two alleges the following: The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i engaged in conduct that demonstrates the knowledge, judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level or training or experience; and/or ii engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 1. The particulars of Complaint Two are: 1 In January 2013 the practitioner misappropriated or arranged to be misappropriated by a person or persons unknown, hospital fluid bags from hospitals at which the practitioner worked or at which the practitioner's brother worked, which he used to treat Patient A from 12 to 18 January 2013. 2 The practitioner misappropriated or arranged to be misappropriated by a person or persons unknown, cannulation equipment and/or intravenous antibiotics and paracetamol from hospitals at which the practitioner worked or at which the practitioner's brother worked, which he used to treat Patient A from 12 to 18 January 2013. 3 On 18 January 2013 at about 1700 hours when the practitioner found Patient A unresponsive at their home and after performing CPR on her, the practitioner failed to appropriately respond to the medical emergency in that he: a. failed to call an ambulance or seek any assistance or advice for approximately two hours until 1901 hours; b. the practitioner inappropriately left Patient A at their home and drove away for approximately 90 minutes. 4 On 18 January 2013 after finding Patient A unresponsive the practitioner inappropriately disposed of a cannula and a bag of fluid, in circumstances where Patient A was probably deceased and where the matter may need to be investigated by relevant authorities including the State Coroner. 5 On 18 January 2013 the practitioner misled the police as to what time he found Patient A deceased in their home and his movements and actions in response to that information from about 1700 hours to 1900 hours. 1. In his Reply, Dr Kabir pleaded as follows with respect to Complaint Two: 1. With respect to particular 1: Dr Kabir admits that he so misappropriated and used hospital fluid bags and repeats his Reply to particular C.1.5 above. 1. With respect to particular 2: Dr Kabir admits that he so misappropriated and used cannulation equipment and/or intravenous antibiotics and paracetamol and repeats his Reply to particular C.1.5 above. 1. With respect to particular 3: (a) admits that on 18 January 2013 at about 17:00 hours he found Patient A unresponsive at their home an on examination concluded that she was dead; (b) that he performed CPR on her but was unable to revive her; (c) admits that shortly after performing CPR he left their home and was away for about 90 minutes; (d) admits that he did not call the ambulance until about 1901 hours after he returned to the home; (e) admits that he should have called the ambulance after performing CPR; (f) admits that in the above circumstances he failed to respond appropriately to the medical emergency; and says further in relation to his conduct following his finding of Patient A deceased that (g) he was in a trance like state unable and unwilling to accept what had happened; (h) while away from her he (i) hoped she would call asking where he was and he hoped if he left she might on his return be OK (ii) called her, hoping she would pick up the phone; and (iii) thought he might see her alive walking along the footpath as he drove around; and (i) when he returned home, he again performed CPR, expecting to revive her. 1. With respect to particular 4: Admitted and Dr Kabir repeats paragraphs (g)-(i) of his Reply to particular C.2.3 above. 1. With respect to particular 5: Admitted and Dr Kabir repeats paragraphs (g)-(i) of his Reply to particular C.2.3 above. 1. Dr Kabir pleaded that his conduct, as admitted in respect of the particulars to Complaint Two, constituted unsatisfactory professional conduct. 2. Dr Kabir's evidence was consistent with his pleading in relation to Complaint Two. 3. Professor McFarlane, a psychiatrist, provided a report and gave evidence in Dr Kabir's case. Professor McFarlane has particular expertise in relation to the impact of disasters and post-traumatic stress disorder in the context of mental health. Professor McFarlane interviewed Dr Kabir on 13 April 2017, 4 May 2017 and 6 August 2020. Professor McFarlane prepared a detailed report, which is dated 9 September 2020. In his report, Professor McFarlane said that, in his opinion, on the balance of probabilities, after Dr Kabir discovered Patient A's body, he entered a dissociative state. Professor McFarlane, in oral evidence, said that it was not possible to be precise about the point at which the dissociative state began (transcript p 71). Professor McFarlane further said that the dissociative amnesia suffered by Dr Kabir on 18 January 2013 was 'patchy', meaning that some memories were formed in the period in question, which is the period between Dr Kabir finding Patient A unresponsive at their house and the time of the ambulance arriving after 7pm on that day (transcript p 40, p76). In his report, addressing the period of time immediately after Dr Kabir found Patient A's body, Professor McFarlane said that: In my opinion, the plausible explanation for his [ie Dr Kabir's] inconsistent recall, amnesia, and illogical behaviour on the night of 18th January 2013, is because he developed dissociative amnesia with a related fugue state on discovering his partner, [Patient A's] deceased body. When an individual is in a dissociative state, there is a disruption of the primary function of the brain to integrate perceptual, emotional and memory systems. In essence, there is a fragmentation of awareness and this impacts on the formation of coherent memory of this period of time. 1. In his report, Professor McFarlane said (at pars 95–98): 95. The question then arose as to whether he had developed a pathological mental state on 19th January 2013, in the hours that followed him discovering his deceased fiances body. In his description of his behaviour, it is apparent that he had significant periods of amnesia during that time and also behaved in ways that were illogical. For example, he attempted CPR when he first discovered that [Patient A] was not breathing. He then left the premises and disposed of the drip line and bag that she had attached, and then returned and attempted CPR again. During the period he was out of the house he also tried to call her. This highlights that he acted in a manner that did not rationally appraise the circumstance. 96. Furthermore, his decision to leave the house, whilst seemingly a purposeful act to dispose of the evidence of her intravenous line, did have some qualities of a fugue-like state. To this end he did not behave in a logical manner consistent with what would have been appropriate behaviour in the circumstance. When asked about why he disposed of the drip line and whether he had done this to conceal the nature of the drugs that had been injected, he indicated that there was no point in that because he had informed colleagues and [his] parents that she had a drip line and the neighbour, Nina, was also aware that she had an intravenous line. 97. A critical consideration in this case is whether he had behaved in a purposeful manner to disguise his involvement in his fiance's death, either directly or indirectly. As a medical practitioner who had some training in psychiatry, it would have been possible for him to have explored the forensic angles that could have been considered in the case by examining the relevant literature. I was therefore particularly careful to observe the structure of his responses and the language that he used. I also looked closely for any propensity he may have had to give apparently self-seeking answers to the questions being asked. This was particularly the case in his responses that described his significant uncertainty about his behaviour on the evening of finding his fiances deceased body. 98. His response at times was self-critical with comments like, " ... how could I have been so stupid" or " ... / had no idea what I was thinking". In my opinion, this appeared to be an honest reflection. Equally, Dr Kabir's state of mind had demonstrated a minor degree of perplexity during the first interview when he was asked about the events surrounding his discovery of [Patient A]'s body. The way in which the phenomenon arose was in relation to his difficulties estimating time. In my opinion this difficulty was not contrived. His responses were not as a consequence of direct questioning and this alerted me to the probability that his lack of awareness may have been due to his mental state at the time. In other words, without my questioning about his behaviour, this perplexity would have gone unmentioned. Hence, this reaction in the course of the interview was congruent with the history obtained. 1. In cross-examination, the following exchange took place between Ms Lowson and Professor McFarlane at p 78–79: Q. … Now Dr Kabir had, would you accept this, that he had a number of things that would cause him to panic when he found [Patient A] deceased including the following. Firstly that he had misappropriated intravenous antibiotics from hospitals on two separate occasions prior to her death, he had involved his brother who was a colorectal surgeon in misappropriating bags of IV fluid from a hospital, he had inserted the cannula into [Patient A]'s arm or hand and he had realised upon finding her deceased that this was the portal by which she had probably caused her own death. He had inserted the cannula in circumstances where a few days earlier he had seen [Patient A] with a syringe and he had been concerned that she might be injecting illegal drugs. He inserted the cannula in circumstances where he knew that he had seen bruises consistent with other entry points on her arm and with all of those upon finding her body he was no doubt painfully aware that he had engaged in a number of behaviours in the previous few days that would put at risk his, and potentially his brother's well respected and well remunerated careers. That's all the case isn't it? A. Yes. Q. And in addition, on a personal level, he would have been aware that he had personally failed [Patient A], I'm not saying that that is correct as a matter of objective fact but it would've been likely that he would have felt that upon finding her deceased? A. Yes. Q. And that ultimately at that point in time he didn't know whether she had committed suicide or accidentally overdosed but that ultimately the circumstances of her death would have conveyed to him that he had in some way failed to provide the support that she needed within the terms of their relationship? A. They are all probable circumstance. Q. In your report you say that you had considered the possibility of panic in response to all of those traumatic thoughts. Can I ask you why ultimately you excluded panic and adopted amnesia/dissociative view as the cause for him leaving the apartment and disposing of the cannula and IV line? A. So there are essentially, if I could just clarify your point, there are two possibilities here, one is that he panics in a rational way, he leaves the apartment to try and dispose of the evidence and he is fully cognisant of his circumstance, he isn't amnesic, he's behaving in a purposeful way, so that's one possibility. The second possibility obviously is that he returns home, he does panic, but that leads to dissociative response that then impairs his judgment and leads to the events that followed that are well documented. It's my opinion there is sufficient evidence, particularly in his statement to the police, about him being amnesic during that period of time. So, you know, I think either way he obviously would have been extremely distressed, he may have made all of the assessments and had all the concerns that you refer to but they led to this dissociative response, in my opinion. Now that's assuming that he was not manufacturing the difficulties remembering at the time of the police assessment and that he was honestly reflecting on his state of mind at that time. Q. In terms of the first option that you've just identified, the panic but the rational response, is it possible that the degree of panic and perhaps even trauma involved in recognising all of the things that I've just put to you as being likely in his mind when he found [Patient A] deceased, that that panic, that trauma in and of itself could have caused the amnesic response in his answers to questions with the police that night? A. Sorry I'm not quite sure what you're excluding when you say "all of those things" because he comes and finds his partner dead, so that in that circumstance plus the other factors that you set out, they are sufficient to make somebody dissociate. I mean that's the whole premise of my opinion. Q. Yes I understand that Professor McFarlane but what I'm obviously looking at is the possibility that Dr Kabir panicked, engaged in rational behaviour in leaving to dispose of the IV line, chose not to engage or in a state of panic did not engage in the rational behaviour of dialling triple 0 and that that is not inconsistent with him subsequently having some memory loss when he attended at the police station later that evening or early morning the following day? A. Well as I've said it's difficult to be precise about when the dissociative response began but I think the important issue here is his bewilderment, his ‑ I mean one of the things that's dissociative fugue describes is bewildered wandering and in my opinion his attempts to dispose of the IV line and the bag are not rational acts particularly for a medical practitioner and I suspect that even if he had put all the propositions to himself that you have set out he would know if he was to minimise the consequence to himself he would not remove the bag because it is so apparent and so obvious that it had been there, so to remove them is a further piece of evidence of his lack of judgment at the time which is one of the reasons why, particularly in the context of all the other information about what transpired in the following two hours I think is consistent with him being in a dissociative state at that time. 1. We accept Professor McFarlane's opinion that Dr Kabir experienced 'patchy' (in the sense of being non-continuous and intermittent) dissociative amnesia with related fugue state from time to time between the time when he arrived home on 18 January 2013 at about 5pm and found Patient A and the arrival of the ambulance slightly more than two hours later. 2. With respect to particulars 1 and 2 of Complaint Two, the conduct alleged has been proven and conceded. The conduct was improper and unethical and clearly amounts to unsatisfactory professional conduct under s 139B(1)(l) of the National Law. 3. We find, on the balance of probabilities, and it is admitted, that Dr Kabir conducted himself in the manner alleged in Complaint Two, particulars 3, 4 and 5. 4. As we have said Dr Kabir, in his Reply, admits the allegations in all of the particulars of Complaint Two. He further admits that they constitute unsatisfactory professional conduct, as alleged. 5. Dr Kabir did not expressly plead automatism or involuntariness. It was not argued in his case that his dissociative amnesia and related fugue state prevented him from forming the state of mind required to prove any of the allegations in Complaint Two. 6. It is not altogether clear what use was sought to be made of Professor McFarlane's evidence in Dr Kabir's case. In the written submissions in Dr Kabir's case, the following was submitted: The dissociative amnesia fugue is not mitigation. It goes to whether the conduct can be characterised as sufficiently serious to constitute professional misconduct. Consideration of the application of the evidence of dissociative amnesia and related fugue state. 1. We have accepted Professor McFarlane's opinion that Dr Kabir experienced 'patchy' (ie, non-continuous, intermittent) dissociative amnesia with related fugue state from time to time between 5pm and 7pm on 18 January 2013. 2. We have not been referred to any directly applicable legal authority as to the manner in which this evidence should be applied in our consideration of the issue of whether Dr Kabir is culpable with respect to Complaint Two, particulars 3, 4 and 5. 3. The issue of whether dissociative amnesia with related fugue state affects a person's culpability has most commonly arisen in criminal law, where it is framed as an issue of voluntariness, going to the question of whether the defendant possessed the requisite state of mind for the commission of the offence alleged against him/her. When a defendant who adduces credible evidence raising a reasonable doubt that his/her actions were the result of an involuntary reaction of a sane mind, then the prosecution must prove beyond reasonable doubt that the acts which constitute the alleged offence were performed, by that defendant, voluntarily. The prosecution may not rely upon the usual presumption that an act performed by a person who is apparently conscious is willed or done voluntarily (see R v Falconer [1990] HCA 49; (1990) 171 CLR 30 at [9] per Mason CJ, Brennan and McHugh JJ). 4. Although disciplinary proceedings share some common features with criminal proceedings, they are not criminal proceedings (see Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 at [135] ('Grygiel (TA)'). 5. The principal purpose of disciplinary proceedings is the protection of the public. Disciplinary sanctions are not punitive, but, rather, are protective (see Health Care Complaints Commission v Reid [2018] NSWCATOD 162). 6. The standard of proof applicable in disciplinary proceedings is proof on the balance of probabilities. In appropriate cases, such as where conduct is alleged which could form the basis of a serious criminal charge, the Briginshaw principal is applied, so that the evidence relied upon to meet the standard of proof must be cogent and persuasive (see Briginshaw v Briginshaw (1938) 60 CLR 336 as described in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, and see also Grygiel (TA) at [128], [129] and [135]). 7. In criminal proceedings (other than for a strict liability offence), where a dissociative state with related fugue is found to have deprived the defendant of voluntariness whilst he/she was performing the acts comprising the offence alleged, the defendant is entitled to be acquitted outright because he/she lacked the requisite mental element for the crime charged. This is usually referred to as 'sane automatism' (see R v Youssef (1990) 50 A Crim R 1 at p 3). 8. It seems to us that the evidence of Professor McFarlane as to the intermittent dissociative amnesia with related fugue state which is sought to be relied upon by Dr Kabir in this matter should be applied in a manner which is analogous to the way in which it would be applied in criminal proceedings, making adjustments for the difference in standard of proof. 9. The definitions of unsatisfactory professional conduct and professional misconduct in the National Law, which are set out at [8] and [9] above, necessarily imply the requirement of a mental element in that they deal with questions of knowledge, skill, judgment and improper and unethical conduct. It can hardly have been intended, by the National Law, that disciplinary proceedings would be appropriate in relation to involuntary conduct, particularly as the National Law provides for a separate system to deal with impaired practitioners (see the National Law Part 8 Division 4). 10. The issue of intermittent sane automatism having been raised by Professor McFarlane's evidence, the question for the Tribunal is whether Dr Kabir's conduct, as alleged in Complaint Two particulars 3, 4 and 5, occurred in circumstances where Dr Kabir possessed the requisite mental element; in other words, whether he voluntarily conducted himself in the manner alleged. 11. We reject the submission in Dr Kabir's case that the issue of the dissociative amnesia with related fugue state 'goes to whether the conduct can be characterised as sufficiently serious to constitute professional misconduct'. Each incident of Dr Kabir's conduct was either voluntary or involuntary. There is no middle ground. 12. It was argued on behalf of the HCCC, partly in reliance upon the evidence of Professor McFarlane set out above at [47], that the dissociative amnesia with related fugue state experienced by Dr Kabir intermittently from 5pm to 7pm on 18 January 2013 was the product, not only of the shock he suffered when he arrived home, but also of the guilt he felt arising from his own actions in setting up the 'home hospital' and inserting a cannula into Patient A's hand. In those circumstances, it was submitted, the Tribunal should not find that the actions alleged in Complaint Two particulars 3, 4 and 5 are mitigated by the dissociative amnesia with related fugue state. We have rejected the idea that the intermittent dissociated amnesia with related fugue state can be used as a mitigating factor at all. The HCCC's argument misconceives the use to which Professor McFarlane's evidence may be put. The cause of the dissociative amnesia with related fugue state is not a relevant matter. 13. By analogy with criminal law, we are obliged to consider whether Complaint Two, particulars 3, 4 and 5 have been made out on the balance of probabilities or whether, on all of the evidence, we find that Dr Kabir acted involuntarily when he conducted himself in the manner alleged in those particulars. 14. Dealing first with Complaint Two, particular 4, we turn to the question of how Dr Kabir's intermittent dissociative amnesia and related fugue state affected his removal and disposal of the cannula and the fluid bag on 18 January 2013. That action involved a number of steps, being the removal of the cannula from Patient A's hand, the unhooking of the fluid bag from the bedroom door and the disposal of both items away from the house. It was not a series of actions characteristic of an amnesic state or a fugue state. In his statement to the Tribunal, at par 159 – 165, Dr Kabir says; 159. I recall arriving home in the late afternoon, finding [Patient A] unresponsive and performing CPR on her. I don't know how long I did this for. I found that she was not responsive and realised that she had died. I recall removing the cannula from her arm and taking it from the apartment. I recall leaving my building in my car and driving around for a period, during which I disposed of the items that I had taken from the apartment. 160. I did not call an ambulance or seek any assistance or advice for [approximately] two hours after finding [Patient A] and that I should have. 161. I believed that [Patient A] was already deceased upon my arrival home that that there was nothing that could be done to save her. I should have called for help regardless. 162. I left [Patient A] at our home and drove away and that it was inappropriate for me to do so [sic]. I do not recall for how long I was away but I do not deny that it was approximately 90 minutes. 163. After finding [Patient A] unresponsive, I removed a cannula and a bag of fluid from our unit and disposed of them. 164. I do not recall where I disposed of the items. I believe I put them in a rubbish bin but I cannot be certain of this. 165. Again, I do not know or understand why I did this. I believe one reason is because I was trying to protect [Patient A's] reputation and legacy. I believe that I was in shock and in a 'trance'-like state. I believe that I did not want to accept what had happened. I just wanted to get out of there and get in my car and drive. During that time, I think I called her, hoping she would pick up the phone. I was hoping she would call me asking where I am. I hoped if I left she might be OK when I returned. I thought I might see her alive walking along the footpath as I drove around. I also spoke to my architect, Daryl Neil. 1. Dr Kabir's recall of his action in removing the cannula from Patient A's hand, and his report of removing the cannula and a bag of fluid from the unit is not consistent with him being in a amnesic or fugue state as he performed those actions. We find, on the basis of his statement, that, at the time that he performed those actions, on the balance of probabilities, and applying the Briginshaw principle, he was acting voluntarily and intended to remove the items for the purpose of disposing of them away from the unit, which he then did. He may have been in an amnesic state by the time he put the items in a rubbish bin. That element is not necessary to establish the gravamen of particular 4 of Complaint Two. 2. In relation to Dr Kabir's failure to call an ambulance shortly after his first attempt at the resuscitation of Patient A, his statement, at paragraph 160-161, implies that he recalls forming the belief that Patient A had passed away by the time he arrived home, so that there was 'nothing that could have been done to save her'. We have found that Dr Kabir was not in an amnesic or fugue state when he removed the cannula from Patient A's hand. His decision making, although affected by his emotional state, was not so impaired that his actions were involuntary. The fact that Dr Kabir, between 5pm and 7pm, suffered intermittently from a dissociative amnesia with related fugue state means that from time to time during that period, he was not suffering from that affliction. One such time was when he removed the cannula from Patient A's hand, and another may have been when he had a telephone conversation with his architect as he drove. It follows that there were times at which he could have called an ambulance. On the balance of probabilities, applying the Briginshaw principle, we find that Dr Kabir experienced periods, from 5pm to 7pm on 18 January 2013, when he was not suffering from dissociative amnesia or a fugue state when he could have called an ambulance. 3. Complaint Two particular 3b alleges that Dr Kabir inappropriately left Patient A at their home and drove away for 90 minutes. Flight from a scene and aimless wandering are hallmarks of dissociative amnesia with related fugue state. We do not consider that this aspect of the complaint has been established on the balance of probabilities. The act of fleeing is likely to have been involuntary. Much of the wandering is likely also to have been involuntary. 4. In relation to Dr Kabir's misleading of the police as they attempted to take his statement, we are satisfied, on the evidence of Professor McFarlane, that this was a direct result of the incomplete ('patchy') formation of memories of the period between 5pm and 7pm on 18 January 2013 in Dr Kabir's mind, on account of his dissociative amnesia. Dr Kabir could not retrieve memories which had not formed in his brain, and he was therefore unable to give a consistent, linear account of his movements when he was interviewed. We do not consider that particular 5 of Complaint Two has been established on the balance of probabilities. 5. Complaint Two, particular 5, only includes allegations that Dr Kabir misled the police as to the time at which he found Patient A, and as to his movements and actions from 5pm to 7pm on 18 January 2013. In its written submissions, the HCCC alleged that Dr Kabir misled the police, on 19 January 2013, about a series of other matters. Those matters are not the subject of any complaint, and we will not deal with them. 6. Complaint Two amounts to a single allegation of unsatisfactory professional conduct. Notwithstanding that particular 3b and particular 5 have not been established, the balance of the allegations which have been proven are sufficient to constitute unsatisfactory professional conduct. Complaint Three 1. Complaint Three alleges the following: The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: i. contravened a provision of the Health Practitioner Regulation (New South Wales) 2010 (repealed) ("the 2010 Regulations"). 1. The particulars of Complaint Three are as follows: 1. The practitioner failed to maintain any clinical records for his care and treatment of Patient A from 2008 - 2013, contrary to clause 7(1) of the 2010 Regulation. 2. The practitioner failed to maintain any clinical records for his care and treatment of Patient A from 12 January 2013 – 18 January 2013 at the practitioner's home, contrary to clause 7(1) of the 2010 Regulation. 1. Dr Kabir, in his Reply, pleaded as follows with respect to Complaint Three: Dr Kabir admits that his conduct as admitted in respect of the particulars to Complaint Three constituted unsatisfactory professional conduct. Each of these particulars is admitted and Dr Kabir says further that this contravention of clause 7(1) of the 2010 Regulations was a consequence of his failure, contrary to the import of the Guidelines and Code of Conduct referred to in the Particular C.1.1(a) to see Patient A as a patient rather than someone with whom he was in a close personal relationship. 1. Clause 7(1) and (2) of the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) provided as follows: 7 Records relating to patients (1) A medical practitioner or medical corporation must, in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or medical corporation. (2) A contravention of subsection (1) by a medical practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. 1. Dr Duggan, in her report of 3 January 2018, said, after referring to the prescribing Dr Kabir engaged in for Patient A, the referral to Dr Malik and a psychologist, the provision by him of care for Patient A at home, involving intravenous fluid therapy, intravenous paracetamol and intravenous antibiotics over 6 days: …No records were kept by Dr Kabir of the care that he provided to [Patient A] during this time. There are no records of any histories taken, any examinations, differential diagnoses, investigations, observation or monitoring, or treatments given. The medical records are without doubt very valuable for continuity of patient care and for communication among health care workers, however they are also an important record that can be examined if the appropriateness and adequacy of a patient's healthcare is questioned by the patient, the hospital or legally. 1. The allegations in Complaint Three have been established, and are admitted. They constitute unsatisfactory professional conduct under s 139B(1)(b) of the National Law. Complaint Four 1. Complaint Four alleges the following: The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law in that the practitioner has: i engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Background to Complaint Three Patient B and Patient C were close family members of the practitioner. 1. The particulars of Complaint Four are as follows: 1. From 14 September 2010 – 30 August 2016 the practitioner inappropriately prescribed the medications set out in annexure B to Patient B: a. contrary to the Guidelines and the Board Code of Conduct; b. at Patient B's request and without refusing to prescribe and counselling her against the practitioner prescribing the medications in place of her general practitioner; c. without communicating with Patient B's general practitioners or specialists. 2. From 12 May 2014 to 9 March 2015 the practitioner inappropriately prescribed the medications set out in annexure C to Patient C: a. contrary to the Guidelines and the Board Code of Conduct; b. at Patient C's request and without refusing to prescribe and counselling him against the practitioner prescribing the medications in place of his general practitioner. c. without communicating with Patient C's general practitioners or specialists. 3. In his written response to the Commission dated 3 October 2017 the practitioner stated that he had prescribed to Patient B and Patient C from 2013 when that information was incorrect and misleading. 1. The medication in Annexure B and Annexure C to the complaint included a wide range of medications. There is no suggestion that any of the medications were not appropriate to be prescribed to Patient B or Patient C. The issue is that both of those persons were close family members of Dr Kabir. 2. Dr Kabir's evidence was to the effect that two entries in Annexure B in relation to Patient B, which recorded that he prescribed Sertraline, an anti-depressant, to Patient B, in August 2012 and September 2012, were unlikely to be correct because he had no recollection of Patient B ever being on anti-depressants. We accept that evidence. We will disregard those two prescriptions. 3. The relevant provisions of the Guideline and Code of Conduct referred to in Complaint Four are quoted above at [23]-[25]. 4. In his Reply, Dr Kabir admitted each of the particulars of Complaint Four and said further, in relation to particular 3: … and Dr Kabir says further that he did not in the above response intend to mislead the Commission and that the error occurred because he was relying on a PBS Patient Summary for Patient B which he had obtained, which only included the records from 1 October 2012 onwards. 1. We determine that the conduct alleged in Complaint Four has been proven and is admitted by Dr Kabir. The conduct in Complaint Four is unsatisfactory professional conduct under s 139B(1)(a), in that Dr Kabir's conduct demonstrated that the judgment possessed and the care exercised in these incidents of his practice were significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The fact that Dr Kabir relied upon an incomplete record when communicating with the HCCC is not exculpatory, but is an instance of carelessness by him. The conduct admitted also constitutes improper conduct under s 139B(1)(l) of the National Law. 2. In her report of 13 June 2019, Dr Duggan noted that the prescribing by Dr Kabir for Patients B and C took place over some years. This is particularly so in relation to Patient B. Dr Duggan said: A patient's primary care provider or a physician in conjunction with the former most appropriately manages a patient's chronic medical conditions long-term. These practitioners are optimally trained and experienced in this area, unlike anaesthetists. Further they are best able to monitor the efficacy of the treatment, the progress of the medical condition and record any complications of the disease and side effects of therapy. Their care may include investigations and medical referrals. [Patient B and C's] doctor may not have comprehensively seen [them] for long periods of time because they were being treated intermittently over several years by [a family member, Dr Kabir], so the continuity of their medical care may have been compromised. … …Further there was no documentation of any assessments, management plans of investigations that were conducted. Nor did he ever discuss [Patient B or C's] care with their general practitioners to confirm prescribed medication and doses, to discuss ongoing management of and assessment of complications of their chronic medical conditions; nor did he ever discuss or define with [Patient B or C's] general practitioners what role he should play in their overall care. Dr Kabir failed in my opinion to appreciate the very important role the general practitioner plays in the long-term management of the healthcare of [Patients B and C]. The medical treatment of [Patients B and C] by Dr Kabir was inappropriate and avoidable. Complaint Five 1. Complaint Five is as follows: The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: i contravened a provision of the 2010 Regulation. 1. The particulars of Complaint Five are as follows: 1. The practitioner failed to maintain any clinical records for his care and treatment of Patient B from 14 September 2010 to 30 August 2016 contrary to clause 7(1) of the 2010 Regulation. 2. The practitioner failed to maintain any clinical records for his care and treatment of Patient C from 12 May 2014 to 9 March 2015 contrary to clause 7(1) of the 2010 Regulation. 1. In his reply, Dr Kabir said, in relation to Complaint Five: Each of these particulars is admitted and Dr Kabir says further that his contravention of cl.7(1) of the Regulation was a consequence of his failure, contrary to the import of the Guidelines and Code of Conduct referred to in Particulars C.1.1(a), to see either of Patients B and C as a patient rather than as family. 1. We find that Dr Kabir failed to maintain records as set out in Complaint Five. That conduct constitutes unsatisfactory professional conduct under s 139B(1)(b) of the National Law. Complaint Six 1. Complaint Six is as follows: The practitioner is guilty of professional misconduct under s 139E of the National Law in that he: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounts to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration. 1. The particulars of Complaint Six are as follows: 1. Complaint/s One and Two and the particulars thereof are repeated and relied upon individually. 2. Particulars 1, 2, 3, 4 and 5 of Complaint Two justify a finding of professional misconduct. 3. Complaint/s One, Two Three, Four and Five and the particulars thereof are repeated and relied upon cumulatively. 1. In his Reply, Dr Kabir pleaded as follows: 1. Dr Kabir denies that Complaints One and Two, as alleged or admitted, establish professional misconduct. 2. Dr Kabir denies that Particulars 1 to 5 of Complaint Two, as alleged or admitted, establish professional misconduct. 3. Dr Kabir denies the Particulars to Complaints Two to Four, as alleged or admitted, relied upon cumulatively establish professional misconduct. 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]-[20] Basten J said: 19. The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. … 1. Mr Bradley Jones, a forensic psychologist, assessed Dr Kabir over two sessions in person and one telephone meeting, all in 2020. In his report of 11 September 2020, Mr Jones made an assessment of Dr Kabir's personality and gave his opinion as to the part played by certain of Dr Kabir's personality traits in his prescribing and treatment of Patient A. 2. In relation to Dr Kabir's personality, Mr Jones said that his assessment included the use of a variety of personality, functional and risk assessment instruments. Mr Jones said (among other things) at par 26 - 27: With respect to personality style and traits Dr Kabir appears to be a warm and affectionate person who enjoys the company of others. He is unassuming and may prefer letting others do the talking. He can be leisurely and relaxed in tempo though not necessarily lazy or sluggish. He appears to have a vivid imagination and enjoys daydreaming but may prefer to stick with the 'tried and true'. Dr Kabir may tend to defer to others and is likely to be meek, obliging and submissive, unassertive and self-effacing. He tends to have a lower opinion of his abilities and may feel unprepared and is likely to deliberate and think things through before acting. With regard to validity of testing protocols indicated he presented as very well-adjusted and his reported level of psychological adjustment is rare in the general population. However testing also indicated he did not engage in deception when assessed. 1. In relation to Dr Kabir's prescribing for Patient A, Mr Jones said that it was likely that Dr Kabir's personality traits of a lack of assertiveness and submissiveness, together with his tendency to defer to others and his general tendency to be obliging, left him vulnerable to acquiesce to Patient A's requests that he prescribe for her. Mr Jones said at par 49 - 50: Dr Kabir's reportage of the relationship depicts one in which a power imbalance developed where, in the circumstance [Patient A] was unwilling to accept advice from Dr Kabir to seek psychiatric/psychological assistance or attend her general practitioner. Dr Kabir acquiesced to her requests and potential demand for medicated help. Dr Kabir indicated that once he acquiesced the first few occasions, this became the 'expected behaviour' by [Patient A]. On occasions when he voiced discontent and encouraged her to attend her general practitioner, she was adamant she would not attend her general practitioner and insistent he provide prescriptions. Dr Kabir expressed he felt if he withdrew support from [Patient A] or had sought medical assistance on behalf of [Patient A], such action would have jeopardised their relationship. It is notable that Dr Kabir was candid in accepting that he believes that the fact that [Patient A] had been a medical practitioner likely played a role in his decision to acquiesce and prescribe medications to her. As [Patient A] had completed medical training he, at times, inherently assumed she had formed a medical professional view as to the medication she was requesting and accepted her input as to appropriateness of medication. 1. Concerning Dr Kabir's facilitation of the treatment of Patient A at home from 12 to 18 January 2013, Mr Jones said that, whilst Dr Kabir's personality traits played a part in that situation arising, it also indicates that his relationship with Patient A had become dysfunctional. In relation to the home treatment of Patient A, Mr Jones said at par 68 - 70: …Dr Kabir indicated he "felt trapped in having to treat' [Patient A], as to not treat her resulted in emotional distress and upset of [Patient A]. The relationship mechanics and Dr Kabir's eventual capitulation to [Patient A's] need/demand to be treated at home is consistent with extended period of dysfunctionality that results in capitulation of a partner to the needs and demands of the more powerful partner. I note Dr Duggan's comments that Dr Kabir demonstrated "poor judgment when he agreed to treat her at home, when he himself felt she should have been hospitalised…Dr Kabir said that he instituted treatment in the home as [Patient A] refused to go to hospital and refused to have an ambulance attend". and "He [Dr Kabir] should have used his best judgment as a doctor who is a partner and refused to accept her diagnosis to treat her at home and to treat her with antibiotics when he himself questioned the value." I concur with Dr Duggan's summation of Dr Kabir's decisions but would also add these decisions were made on the background of a sense of helplessness and hopelessness with his inability to have [Patient A] attend hospital. As previously expressed, Dr Kabir's personality traits of being meek, obliging, submissive and unassertive are most likely to have been prevalent and heightened during this period and whilst he had his own belief of how [Patient A] should be treated (hospitalisation) he continued to 'follow' [Patient A's] requests and demands for treatment. 1. Doing the best we can to interpret Complaint Six, it seems that Complaint One and Two are each individually alleged to constitute professional misconduct. Particular 2 of Complaint Six, which alleges that all of the particulars of Complaint Two justify a finding of professional misconduct, seems to us to overlap entirely with particular 1 of Complaint Six. Particular 3 then alleges, either in the alternative to particular 1 or in addition to particular 1, that Complaints One, Two, Three, Four and Five, cumulatively, constitute professional misconduct. There is a degree of overlap in particulars 1 and 3 of Complaint Six, in that, if the accusation of professional misconduct in particular 1 is made out, then the accusation in particular 3 must also succeed. Was the unsatisfactory professional conduct alleged in Complaint One of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration? 1. The evidence indicates that Dr Kabir's conduct over a period of about five years, from January 2008 to January 2013, beginning with prescribing for Patient A (which continued for years) and progressing to setting up and supervising a 'home hospital' for her, was at least partly a product of his character traits of being meek, obliging, submissive and unassertive. Patient A was the dominant party in the relationship, and Dr Kabir prioritised his unwillingness to jeopardise their relationship, or to escalate conflict with Patient A, over his obligations as a medical practitioner. He allowed himself to be drawn, over time, into assuming the role as her primary medical provider, against his better judgment and contrary to Patient A's best interests. We determine that Dr Kabir's conduct in this regard was a type of conduct which is sufficiently serious to warrant suspension or cancellation of registration as a medical practitioner. Further, it was conduct arising from the character traits of Dr Kabir discussed by Mr Jones, which, in context, functioned as defects of character. The conduct alleged in Complaint One, and admitted by Dr Kabir, was professional misconduct. Was the unsatisfactory professional conduct alleged in Complaint Two of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration? 1. To summarise, the conduct alleged in Complaint Two includes the misappropriation of hospital fluid bags, cannulation equipment and intravenous antibiotics and paracetamol, used to treat Patient A from 12 January 2013 to 18 January 2013, from a hospital or hospitals. It also includes Dr Kabir's failure to call an ambulance for two hours after finding Patient A unresponsive on 18 January 2013. We have found that Dr Kabir's driving away from the home, and much of his driving around for the succeeding 90 minutes, was involuntary, so those allegations cannot be included. Further, it includes his removal and disposal of a cannula and a bag of fluid in circumstances where Patient A was probably deceased and the matter was likely to be investigated, including by the Coroner. The misleading of the police by Dr Kabir as to the time that he found Patient A and his movements and actions from 5pm to 7pm on 18 January 2013 has been found to have been a product of his intermittent dissociative amnesia and related fugue state, and therefore those allegations will not be taken into account. 2. We determine that the misappropriation of hospital equipment and medication, coupled with the removal and disposal of the cannula and fluid bag, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and therefore constitute professional misconduct. Again, the misappropriation arose partly from Dr Kabir's personality traits as described above, which functioned as defects of character in this context. The failure to call an ambulance adds to the seriousness of the professional misconduct. 3. As we have said, particular 3 of Complaint Six overlaps with particular 1 in such a way that we need not consider it separately. 4. Complaint Six amounts to a single allegation of professional misconduct, despite the way the particulars were drafted. Our findings in relation to Complaint Six must therefore amount to a single finding of professional misconduct. Summary and conclusion 1. We have found Dr Kabir guilty of unsatisfactory professional conduct in relation to those allegations in Complaints One to Five of the complaint that we have found to have been proven. 2. We have found Dr Kabir guilty of professional misconduct in relation to certain elements of Complaint Six of the complaint set out above at [103]. 3. The matter will be listed for submissions in relation to the question of what disciplinary orders should be made. Order 1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the names of the persons and patients listed in the Schedule to the complaints the subject of the application is prohibited. ********** 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 Amendments 23 March 2022 - Order added. 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: 23 March 2022