Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Adad v Medical Council of New South Wales [2021] NSWCATOD 204 Hearing dates: 23, 24 and 25 June 2021 Date of orders: 15 December 2021 Decision date: 15 December 2021 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Associate Professor N Harris, Senior Member Dr H Haikal-Mukhtar, Senior Member D Telford, General Member Decision: (1) The name of the applicant is changed to Oliver Adad. (2) The application under s 163A of the Health Practitioner Regulation National Law is refused. (3) The applicant is to pay the respondent's costs of the matter, to be agreed or assessed. Catchwords: OCCUPATIONS — Heath practitioners – Application for reinstatement of registration Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Private Health Facilities Act 2007 (NSW) Private Health Facilities Regulation 2010 (repealed) Cases Cited: Asar v Medical Council of NSW [2019] NSWCATOD 132 Health Care Complaints Commission v Athour [2014] NSWCATOD 28 Health Care Complaints Commission v Athour [2016] NSWCATOD 5 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Category: Principal judgment Parties: Oliver Adad (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: J R Young (Applicant) H El-Hage (Respondent) Solicitors: Bellissimo Lawyers (Applicant) Health Professional Councils Authority (Respondent) File Number(s): 2021/00018497 Publication restriction: Nil This Reason for Decision has been amended. Please see the end of the Reason for Decision for details of the amendment. REASONS FOR DECISION 1. Mr Adad was a registered medical practitioner in New South Wales when his registration was cancelled by the Tribunal in Health Care Complaints Commission v Athour [2016] NSWCATOD 5, a decision made on 14 January 2016. There was an order that Mr Adad may not reapply for registration for a period of three years from the date of the decision. 2. In his evidence to the Tribunal in the present matter, Mr Adad said that his name, upon his arrival in Australia in 1988, was Zeki Sagdic. In about 1990, prior to obtaining Australian citizenship, Mr Adad changed his name to Zeitoun Hadodoh. Hadodoh had been the surname in his family until 1935, when Turkish authorities required that it be changed to a Turkish name. In 1991, Mr Adad changed his name to Zeitoun Athour, which, he said, better reflected his Assyrian cultural heritage. He was registered as a medical practitioner, in New South Wales, in 1996, as Zeitoun Athour. Subsequent to his deregistration in 2016, Mr Adad changed his name once more, this time to Oliver Adad. We will refer to the practitioner as Mr Adad throughout this decision, notwithstanding that there will be reference to events which occurred when he was known as Zeitoun Athour. 3. Mr Adad has now applied under s 163B of the Health Practitioner Regulation National Law (NSW) (the National Law) for his registration as a medical practitioner to be reinstated. He made that application in the name Zeitoun Athour, but applied to have the name of the applicant in the proceedings changed to Oliver Adad. The Medical Council of New South Wales (the Council) did not oppose the application for a change of name in the proceedings, and there will be an order changing the name of the applicant in these proceedings to Oliver Adad. 4. The Council is opposed to Mr Adad's application to be reregistered as a medical practitioner. History 1. Mr Adad is of Assyrian heritage and cultural background. He was born in Turkey in 1957 and remained there until 1974. Mr Adad attributes the departure of his family from Turkey to the persecution of Assyrians in that country at that time. Most of Mr Addad's family came to Australia in 1976, but Mr Addad went to West Berlin to live with his sister and her husband. He learned German and studied medicine at the Free University in Berlin. He worked in hospitals as a nursing assistant and obtained a Bachelor of Medicine and Surgery in 1987. 2. Mr Adad came to Australia in 1988. He worked at several hospitals. In 1996, he was registered as a medical practitioner in New South Wales. He moved to Queensland and practised medicine at Townsville General Hospital and MacKay Hospital. In 1998 he moved to Westmead and worked at Fairfield and then at Bankstown Hospital. In 1999, Mr Adad began work as a general practitioner at the Fairfield Chase Medical Centre. Mr Adad was married from 1990 to 2015. He has no children. 3. In about 1999-2000, Mr Adad met the person described as Patient A in the decision in Health Care Complaints Commission v Athour [2016] NSWCATOD 5. We will also refer to that patient as Patient A. The first proceedings before the Tribunal 1. On 11 May 2011, the Council convened a hearing before delegates under s 150 of the National Law in relation to Mr Adad's administration of rapid opioid detoxification treatment in patients' homes and in hotels. The administration of that treatment in those settings was, at the relevant times, unlawful under the Private Health Facilities Act 2007 and the Private Health Facilities Regulation 2010 (repealed). 2. The delegates informed Mr Adad of their decision orally after the hearing and delivered written reasons for the decision on 8 June 2011, in which they made adverse findings against Mr Adad. Seven conditions were imposed upon Mr Adad's registration as a medical practitioner. 3. The matter was referred to the Health Care Complaints Commission ('HCCC') for investigation. Following its investigation, the HCCC brought proceedings against Mr Adad in the Tribunal pursuant to s 149A of the National Law. The proceedings related to Mr Adad's treatment of 14 patients, all of whom were heroin addicts, with rapid opioid detoxification treatment. 4. The HCCC's written submissions in the present matter accurately summarise the relevant findings of the Tribunal in HCCC v Athour [2014] NSWCATOD 28 ('the first Tribunal decision') in the following dot points. The Tribunal found that Mr Adad: • Treated the 14 patients without having adequate training knowledge or experience, • Treated the patients in unlicensed premises (usually their own home), • Failed to ensure that there was an appropriate level of care available to each of the patients in the event of a severe reaction such as basic resuscitation equipment and overnight care, • Failed to ensure that the patients had been opioid free for at least 48 hours before initiating rapid opioid detoxification, • Failed to undertake and/or record a detailed assessment of the drug and alcohol use history of the patients, • Failed to obtain and/or record a detailed medical and psychiatric history of the patients, • In some cases failed adequately to medically assess each of the patients for contraindications to rapid opioid detoxification, • Provided rapid opioid detoxification to one patient with epilepsy without ascertaining and/or recording any information regarding recency of seizures, without undertaking research regarding safety in those circumstances and without seeking advice from specialists, • Failed to conduct or refer patients for a psychological assessment prior to administering rapid opioid detoxification, • Failed to conduct or refer the patients for a psychosocial assessment prior to administering rapid opioid detoxification treatment, • Failed to obtain informed consent from any of the patients, • Failed to provide adequate follow-up care including post-withdrawal management option, • Failed to obtain approval under the relevant legislation to use Naltrexone implants in the treatment of all of the patients, • Inappropriately prescribed MS Contin to 5 patients without the proper authority required for drug dependent persons, contrary to s 28(3) of the Poisons and Therapeutic Goods Act 2008 (NSW). 1. The Tribunal found Mr Adad guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal reprimanded Mr Adad and fined him $10,000. The Tribunal also imposed a series of conditions upon Mr Adad's registration as a medical practitioner, including conditions preventing him from administering rapid opioid detoxification, preventing him from conducting home visits, nursing home visits and hostel visits, providing that he may only practise in a group practice with at least one other medical practitioner always on site, requiring him to obtain the approval of the Council for any change of place of practice, requiring him to nominate a supervisor and to comply with a detailed supervision regime. Mr Adad was also required to undertake specified continuing medical education, including completing a course on Addiction Medicine conducted by the RACP by 14 March 2015, completing the course 'Issues in General Practice Prescribing' conducted at Monash University by 14 March 2015 and completing a course on Medical Ethics conducted at Monash University by 14 March 2015. Mr Adad was required to provide proof to the Council that he had enrolled in, and completed the courses at Monash University, which would be undertaken in distance mode. Mr Adad was also required to submit to an audit or audits of his practice. The Performance Review 1. On 14 March 2014, a Performance Review Panel convened by the Council conducted a performance review of Mr Adad under Part 8, Division 5, Subdivision 4 and Schedule 5B Part 2 of the National Law. 2. The performance review was triggered by two complaints, but went beyond those complaints to assess many aspects of Mr Adad's medical practice, including the adequacy of medical records, history taking, the examination of patients, clinical judgment and prescribing practice. The Performance Review Panel had before it a report from three general practitioners ('the assessors') who conducted an assessment of Mr Adad's professional performance on 26 June 2012. The assessors conducted a general interview and a clinical practice interview with Mr Adad, observed 8 consultations, undertook a record review with a sample of 10 records, and undertook a facilities review. 3. The first triggering complaint was made by the Department of Health and Ageing to the Health Care Complaints Commission on 3 June 2011. It related to a male patient who was living in a nursing home. Mr Adad was informed of the patient's symptoms on 2 January 2011, but Mr Adad was on leave at the time, and said that he would visit on his return on 4 January 2011. Another general practitioner visited the patient, but did not examine the patient's leg. Mr Adad visited the patient on the 4th and 5th of January 2011, and also did not examine the patient's leg. Mr Adad noted that the patient had been commenced on antibiotics for an infected bedsore. Mr Adad believed that time was needed to assess whether the antibiotics were effective, and he prescribed paracetamol for the patient's pain. On 7 January 2011, the patient was admitted to hospital and his leg was amputated on account of a severe diabetic foot infection. Mr Adad told the assessors that he did not examine the patient's leg because he was not advised that it was cold and discoloured. 4. The second triggering complaint was made by a patient, Ms Y, to the Health Care Complaints Commission on 5 July 2011. In August 2008, Ms Y went to see her usual general practitioner and reported lethargy, vomiting and weight loss. The doctor performed a blood test and referred Ms Y to a hospital emergency department, saying that he believed that she was losing blood internally. On 7 August 2008, Ms Y attended the hospital. She was assessed and discharged with a letter. On 9 August 2008, Ms Y consulted Mr Adad, giving him the letter from the hospital. Mr Adad diagnosed an iron deficiency. Ms Y's symptoms continued, and, on 1 September 2009, she was admitted to hospital with a perforated gastric ulcer. Ms Y underwent major surgery and a blood transfusion and suffered significant scarring, ongoing pain and psychological problems. Ms Y said, in her complaint, that she felt let down by both the doctors and the public hospital system. When the assessors spoke to Mr Adad about this complaint, he had no independent recollection of his consultation with Ms Y. 5. In their report to the Performance Review Panel, the assessors said that, from their observations, Mr Adad's examination of patients was unsatisfactory and inadequate. Basic checks were not performed. Mr Adad responded to the Performance Review Panel that the patients were on-going patients, so that some of the omitted checks had been undertaken at previous consultations, or would be undertaken at future consultations. He admitted, however, that he could do more in examinations. 6. The Performance Review Panel tested Mr Adad's clinical skills by discussing with him what his examination would consist of in a number of hypothetical scenarios. In its decision, the Performance Review Panel stated the following conclusion in relation to Mr Adad's examination process: The Panel had several concerns in relation to Dr Athour's assessment of physical health issues, as he was unable to demonstrate an adequate understanding of the examination process. Dr Athour was asked to describe how he would undertake an examination of a patient who requested "a general check up" and matched the profile of Patient 7 (a 53 year old male with obesity, IHD, type 2 diabetes, hyperlipidemia and mood disorder). Dr Athour's approach was unstructured, disorganised and he required regular prompting from the panel. He commenced by saying that he would undertake funduscopy despite earlier stating that he refers diabetic patients to an ophthalmologist for this. Dr Athour was unable to accurately describe how to measure blood pressure, advising the Panel that he would place a cuff over the "cubital fossa" and then place the stethoscope under the cuff. This was the manner noted critically by the assessors during the previous Performance Assessment. Dr Athour needed repeated prompting to list appropriate vital sign review and appeared to find it difficult to explain a neurological examination. He was unsure what reflexes he might check and didn't appear to be sure how he would test for sensation. He did not suggest he would check for power/strength. He required prompting to say that he would undertake a respiratory, cardiovascular or abdominal examination. And even with prompting he omitted important parts of the examination including weight, height, waist measurement and BMI. He did not suggest that he would check JVP, peripheral pulses or for peripheral oedema. Dr Athour's account of his examination technique did not suggest that he routinely undertook general examinations at a standard expected of an experienced general practitioner. This was of concern to the Panel. 1. The assessors found that Mr Adad's history taking was inadequate in that issues which should have been explored with the patient were not raised. It was noted that, perhaps, omitted issues might be dealt with by Mr Adad at future consultations with that patient. 2. The Performance Review Panel found that Mr Adad's history taking was unstructured, and that, as a result, he missed important features of history. The Panel said, in its decision: [Dr Athour] had difficulty taking an adequate history for the review of the stability of a MATOD [Medication Assisted Treatment for Opioid Dependence] patient. While asking patients about their home life, work life and how they felt if they missed a dose, he failed to ask about their drug and alcohol use, or mental wellbeing. Dr Athour did not indicate he would check with the dosing point (pharmacy or clinic) to corroborate their stability, ie missed doses, intoxicated presentations or challenging behaviours. He seemed unaware of some of the issues that might occur with a dose that was too high, for example; daytime somnolence, driving risk, over dose risk and explained that he was concerned about 'sleeping problems' due to nocturnal sleep apnoea. It would appear that he is happy to take a patient's history on face value without validating this. For example, he stated that if a patient came to see him in work clothes he would take that as proof that the patient was working. 1. The assessors were concerned about Mr Adad's prescribing practices. Mr Adad had prescribed olanzapine and mirtazapine to a patient with diabetes and central obesity, without understanding the risks posed to the patient. Subsequent to the assessment, Mr Adad admitted that his prescribing for that patient did not reflect good practice. Mr Adad also prescribed intra-muscular Cilicaine (penicillin) for a patient with mastitis, instead of the usual, lower risk, oral antibiotics. Mr Adad said that he did this because the patient requested the Cilicaine. Mr Adad also prescribed Byetta (exenatide) and Galvumet (vildagliptin + metformin) for a patient with diabetes when that patient's specialist had discontinued those medications for that patient. Mr Adad admitted that he should not have prescribed Byetta for that patient, because that patient needed to reduce his weight. 2. The Performance Review Panel said, in its decision, in relation to Mr Adad's prescribing practices at the time: His prescribing practices remain of concern to the Panel. He discussed prescribing multiple drugs without apparent communication with other prescribers. He was unable to identify what risks might arise for an obese patient prescribed mirtazapine, olanzapine and other narcotics. He had difficulty identifying some addictive behaviours and was unable to explain how a patient might present who was suffering side effects from medicines with the capacity to cause dependence. He was not able to explain what these side effects might be and appeared unable to understand how dependency might present. Dr Athour was unable to adequately identify red flags in relation to doctor shopping and drug seeking behaviour. He appeared to be unaware of the Medicare prescriptions shoppers hotline. He appeared unaware of pharmacy staged supply or supervised dosing for medicines other than [methadone] and buprenorphine for high risk patients. Being unable to identify when a patient may be "doctor shopping", in the context of a practice involving MATOD, is of particular concern. He does not use well-known and readily available prescribing resources such as Therapeutic Guidelines. Around 90% of Dr Athour's patients are on takeaway methadone or buprenorphine (Suboxone). The vast majority of those on methadone takeaways are on 5 takeaways per week, while those on buprenorphine (Suboxone) are on weekend takeaways or double dosing. The NSW guidelines limit methadone take aways to four per week with a maximum of two in a row and while there is latitude to give an individual more take away based on their own personal circumstances, it is unlikely that the majority of methadone patients would need 5 takeaways per week. 1. The conditions imposed upon Mr Adad's registration by the Tribunal in 2014 required him to undertake two courses: the General Practice Prescribing Course and the Ethics Course, both at Monash University. Mr Adad told the Performance Review Panel that he had completed an alternative prescribing course, with the approval of the Council, and that he had enrolled in the Ethics course, but had not completed it. 2. Subsequent to the assessment, and before appearing before the Performance Review Panel, Mr Adad made some changes to his practice. He reduced his patient load, and made improvements in his record keeping, to the extent that his records passed an audit conducted in November 2014. 3. The Performance Review Panel's summary was as follows: … Dr Athour may lack insight into his own difficulties and may be at risk of overconfidently assessing his own abilities. He appears to accept all patients who present for MATOD and rarely refers patients back to Drug and Alcohol Clinics for ongoing methadone prescribing. He is comfortable with his "supportive counselling" approach, which may be inadequate to manage complex trauma and drug dependent patients. In conclusion, Dr Athour predominantly sees patients for MATOD and mental health issues, but he does practise as a general practitioner and would be expected to assess, and manage medical issues in patients of all ages in a competent and safe manner. Dr Athour has certainly improved his medical records and he has adjusted his practice so he can spend more time with individual patients. However, the Panel has concerns about the adequacy of his assessment/examination of patients, including mentally ill and drug dependent patients and his prescribing for patients. It would appear that he is prescribing outside the NSW guidelines for opioid pharmacotherapy and that he has not updated his skills in recent years to reflect changes to the NSW Opioid treatment guidelines. He stated that he is working with a very complex group of people with challenging behaviours and significant trauma, however he has no training in trauma therapy or trauma informed care. The Panel was also concerned about his ability to set consistent boundaries with this group of patients. 1. The outcome of the Performance Review Panel was a finding that Mr Adad's professional performance was unsatisfactory in that the knowledge, skill or judgment possessed and applied by Mr Adad in the practice of medicine was below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Reasons were given on 11 March 2015. 2. The Performance Review Panel imposed further conditions on Mr Adad's registration, in addition to those imposed by the Tribunal in the first proceedings. Mr Adad was required to practise under Category C supervision, and detailed requirements as to the content of that supervision were imposed. Mr Adad was required to complete, within 12 months of 5 June 2015, the Opioid Treatment Accreditation Course organised by the University of Sydney, with proof or enrolment and completion to be provided to the Medical Council of NSW. Mr Adad was also required to complete, within 14 months of 5 June 2015, the Trauma and Mental Health Course organised by the NSW Institute of Psychiatry, again, with proof of enrolment and completion to be provided to the Council. Mr Adad was further required to complete the Pain Treatment and Management Principles course (PAIN5003) organised by the University of Sydney, with proof of enrolment and completion to be provided to the Council. Mr Adad was not to treat any patient with medication assisted treatment of opioid dependency until he had completed the Opioid Treatment Accreditation Course and provided the Council with proof of having done so. 3. The Performance Review Panel also directed that Mr Adad's professional performance be re-assessed at a future date to be determined by the Council. The second proceedings before the Tribunal 1. In 2015, which was the year following the first Tribunal decision, the HCCC filed fresh disciplinary proceedings in respect of Mr Adad in relation to events which were unrelated to the events giving rise to the first Tribunal decision except that they overlapped in time. 2. The proceedings filed in 2015 concerned Patient A, who first consulted Mr Adad as a medical practitioner in about 2000. When Mr Adad moved practices in 2003, Patient A consulted him at his new practice. 3. Mr Adad admitted the disciplinary charge that he prescribed Schedule 8 drugs, including MS Contin (morphine sulphate), and Endone to Patient A from 18 April 2002 to 27 June 2003 without obtaining a thorough history, without a physical examination, without appropriate investigations, without trialling non-narcotic analgesics, without the appropriate clinical review, without the appropriate clinical indication, without recording his rationale and without recognising or taking action with respect to Patient A's drug dependence. 4. Mr Adad further admitted that, from 18 April 2002 to 27 June 2003, he prescribed Schedule 4 and Schedule 4D drugs including Panadeine Forte (codeine phoaphate), Capadex (dextropoxyphene), tramadol, Valium (diazepam), temazepam and oxazepam on multiple occasions, with similar omissions as to his clinical practice as listed in [15] above. In addition, Mr Adad had not sought an authority to prescribe drugs of addiction to Patient A in accordance with s 28 of the Poisons and Therapeutic Goods Act 1966. 5. Mr Adad admitted that he inappropriately prescribed a combination of Schedule 8 and Schedule 4D drugs in excessive quantities to Patient A from 18 April 2002 to 27 June 2003 in circumstances where he failed to properly investigate the cause of Patient A's pain, he failed to refer her to a rheumatologist or a pain specialist, he failed to conduct a thorough mental health review of Patient A or to seek psychiatric advice, he failed to enquire as to whether Patient A was drug seeking or was receiving prescriptions from another practitioner, he failed to develop a long term management plan to prevent Patient A from becoming drug dependent and he failed to adequately follow up investigations and referrals. 6. Mr Adad further admitted in the 2015 proceedings that he began a personal and sexual relationship with Patient A in the latter half of 2002 which continued until about March 2004, when Mr Adad went to Turkey. 7. Mr Adad admitted that his sexual relationship with Patient A continued from 2005 to 2013, although less intensively than from 2002 to 2004. 8. The Tribunal which heard the 2015 proceedings found that Mr Adad continued prescribing drugs to Patient A from 2005 to July 2013, but it was not able to say which drugs, with the exception of Zyprexa (olanzapine), which was admitted. 9. Mr Adad admitted giving several thousand dollars to Patient A during the period from 2005 to July 2013. 10. In the same period of time, Mr Adad also breached professional boundaries by paying Patient A's enrolment fee in June 2007, giving Patient A a substantial sum to buy a car, giving Patient A a substantial sum to pay for an abdominoplasty, accepting gifts from Patient A, attending a concert with Patient A on 3 October 2012 and visiting Patient A during her admission to a Mental Health Unit on at least two occasions in 2010. 11. Mr Adad admitted failing to keep adequate medical records in relation to Patient A from 18 April 2002 to 27 June 2003 and from 2005 to 2014. 12. The Tribunal determined that Mr Adad was guilty of unsatisfactory professional conduct on two counts, and that, cumulatively, his conduct amounted to unprofessional conduct. 13. The outcome of the 2015 proceedings was that Mr Adad's registration as a medical practitioner was cancelled, and he was barred from reapplying for registration for three years from the date of the Tribunal's decision, which was 14 January 2016 (see Health Care Complaints Commission v Athour [2016] NSWCATOD 5 ('the second Tribunal decision')). Mr Adad's application for reinstatement 1. Mr Adad has applied for reinstatement, citing the following grounds for his application: 1. On 14 January 2016 the Tribunal made Orders including that the Applicant's registration was cancelled and that the Applicant could not apply for registration for a period of 3 years from 14 January 2016 being up to 14 January 2019. 2. The Applicant is a fit and proper person for registration and would, if reinstated as a medical practitioner be able to practise his profession competently and safely. 3. The Applicant has such insight into the circumstances of his conduct which lead to the [cancellation] decision as to make it extremely unlikely that such conduct or any adverse conduct would be repeated. 4. The Applicant accepts that prior to [cancellation] that: a) He engaged in an inappropriate relationship with a patient and that such relationships are entirely inappropriate; b) That the fault in relation to entering and maintaining this relationship was his; c) There is always an intrinsic power imbalance between doctor and patient; d) The boundaries of the doctor/patient relationship must at all times be maintained; and e) That he engaged in improper and reprehensible prescribing of medications with the patient with whom he was having a sexual relationship which contributed to the patient's drug dependency. 5. The conduct of the Applicant since the cancelation decision has been exemplary and has included assisting displaced persons in Turkey from war torn regions from Syria, the Assyrian people, Kurdish people and other displaced persons. 6. The Applicant's Application for reinstatement has widespread community support and a large number of persons of diverse backgrounds and professional status are willing to provide statements of support and if necessary evidence. 7. The Applicant has undertaken psychiatric and psychological treatment. In relation to the psychiatric treatment he was treated for a relatively short period with an anti-depressant which had a significant beneficial effect and was able to be discontinued. The psychiatrist was satisfied that the applicant was not in need of any further psychiatric treatment. 8. The Applicant has engaged in continuing medical education and has attended courses and online sessions and he has also continued to read widely on medical subjects. 9. The Applicant is 63 years of age and wishes to use his undoubted medical talents for the good of his local community in the Fairfield/Liverpool area. 10. A medical practice with surgeries at Liverpool and Fairfield is willing to employ the Applicant as a medical practitioner if he is reinstated as a medical practitioner. 11. The Applicant has reflected upon his own personality traits and deficiencies and has addressed his prior reluctance to seek assistance from others including professional assistance when necessary or when he is feeling stressed. 12. The Tribunal previously noted the Applicant's potential contribution to disadvantaged communities by way of his ability to speak many languages and to have cultural affinity for particular disadvantaged ethnic populations. This potential contribution is demonstrated in the wide and diverse references and in the pursuits of the Applicant since cancelation. The Applicable law 1. The National Law, in s 163A, provides, among other things, for the making of an application to the Tribunal for a review by a person in relation to whom a cancellation order has been made. Mr Adad has sought a review of the cancellation order made by the Tribunal on 14 January 2016. 2. The function of the Tribunal when undertaking an inquiry in response to an application under s 163A of the National Law is elucidated in s 163C of the National Law: 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division. 1. The powers of the Tribunal after undertaking a review are set out in s 163B of the National Law: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order— (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 1. Sections 163A, 163B and 163C of the National Law are New South Wales provisions of the National Law. The National Law provides, in s 3A: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note— This section is an additional New South Wales provision. 1. The task of the Tribunal, and the task of an applicant for review under s 163A of the National Law was considered by the Court of Appeal in Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [17]-[21]. Brereton JA, with whom Bell P and Emmett AJA agreed, said: 17. In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. [8] In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, [9] the paramount consideration being the protection of the health and safety of the public. [10] 18. The position of an applicant for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness. [11] An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession. [12] 19. Thus the essential task of an applicant for reinstatement is to show that he or she is no longer unfit. In this case, given that the sole basis of the appellant's deregistration was lack of competence by reason of an impairment, what the appellant had to demonstrate was that she was no longer unfit by reason of an impairment of such a nature and degree as impaired her mental capacity to practise. On that issue, she bore the onus of proof. The 2020 Tribunal's decision 20. In the decision under appeal, the 2020 Tribunal reiterated that it was not its function to reconsider the circumstances which led to the cancellation of the applicant's registration. [13] The Tribunal referred to Asar v Medical Council of New South Wales, in which the Tribunal had said: [14] "It is not the function of this Tribunal to revisit the conduct which led to the cancellation of the applicant's registration. The Tribunal proceeds upon the basis that the 2016 Tribunal found that the applicant was not a fit and proper person to practise medicine. The issue before this Tribunal is whether it is satisfied, upon the evidence now before it, that the circumstances which led to the cancellation no longer prevail and that the health and public safety of the community are protected in accordance with the requirements of section 3A of the National Law. That is, the Tribunal is required to assess whether or not the deficiencies in the applicant's character have been remedied. As was stated in In Re Jason Martin [2010] NSWMT 13 at page 8: [I]t is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future"." 21. Thus, the Tribunal correctly identified that it must be satisfied that the appellant is now "a proper person" to be registered, against the background of the finding of the 2014 Tribunal that she was not, by reason of lack of competence for want of sufficient medical capacity or knowledge and skill to practise by reason of her alleged psychiatric disorder. 1. Mr Adad's registration was cancelled by the Tribunal after the second Tribunal hearing after the Tribunal determined that his continuing practice would constitute a risk to the health and safety of the public. (see HCCC v Athour [2016] NSWCATOD 5 at [71]). That determination was made after deficiencies were identified in the following areas of Mr Adad's practice, as set out above at [31]-[40], and these are therefore the areas Mr Adad needs to address: * Prescribing practices * Level of clinical skill * Record keeping * Boundaries * Ethics * Insight Is Mr Adad now a fit and proper person to be registered as a medical practitioner? Mr Adad's case 1. As we have said, the onus is on Mr Adad to prove on the balance of probabilities that he is now a fit and proper person to be registered as a medical practitioner. 2. Mr Adad relied on his own statement and oral evidence, a report of Dr Younan, a psychiatrist, dated 10 November 2020 and Dr Younan's oral evidence, a report of Mr Hooper dated 21 December 2020 and Mr Hooper's oral evidence and 34 'testimonials' from people who know Mr Adad. 3. In his written statement, Mr Adad emphasises his empathy and his interest in treating people who are affected by trauma. 4. Mr Adad said, in his written statement, that he now knows that he: … transgressed by having a sexual relationship with a patient. I know that I should have immediately ceased treating her. 1. The better insight would have been that he should not have embarked on the sexual relationship in the first place, and Mr Adad did say, in evidence, that he regretted embarking on the relationship. He also said, in oral evidence, that he knew throughout the 13 years of his relationship with Patient A that it was wrong (see transcript p 45). 2. In his written statement, Mr Adad acknowledged that there is a power imbalance between a doctor and a patient. He acknowledged that he had been slow to understand that he was responsible for his conduct in beginning the sexual relationship, and therefore responsible for the fear of exposure which, in his mind, prevented him from ending the relationship. Mr Adad accepted that, in the past, he had thought of himself as the victim of the relationship, but now sees that he was the victim of his own misconduct. 3. Mr Adad admitted that his actions caused Patient A actual harm, because she became addicted to medication he provided for her. 4. Mr Adad accepts, in his written statement, that the Tribunal's observation in its decision in 2016 that he exhibited a propensity for conflict avoidance, passivity and procrastination were correct at the time, but said that he also has positive character traits, including not regarding himself as being 'of a higher station than my patients' and not being egotistical. 5. Mr Adad said that he went to Turkey in 2017 and returned to Sydney in 'late 2019'. He said that, from 2017 to 2019, he believed that he would never seek to return to medical practice. His intention was to remain in Turkey and teach at a monastery. In his written statement, he said that, during his visit to Turkey, he went to refugee camps on the Syrian-Turkish border where there were 'tens of thousands of refugees'. Mr Adad said that his role 'was to act as a kind of counsellor to traumatised people' when at the refugee camp. He also said that he taught at a school within a monastery in Midyat, Turkey. He said that he taught 12 to 17 year old children 'to read and write and I provided strategies on how to think and solve problems'. He said that he did this for 3 months in each of 2017, 2018 and 2019. 6. Mr Adad said that he saw Dr Younan in 2020, and that Dr Younan helped him with the depression he was experiencing arising from his feelings of guilt. Mr Adad said, in his written statement, that Mr Hooper, a psychologist, also helped him with 'my feelings of guilt and to accept what had transpired with patient A'. 7. In relation to the first Tribunal proceedings, Mr Adad said, in his written statement, that he now understands the importance of using medical procedures and treatments which are widely accepted practice. 8. In his written statement, at paragraphs 73 and 74, Mr Adad said: 73 While I previously thought that I had qualities which helped me deal with addicted and addictive people, I now realise that my personal attributes and in particular my empathy make me best suited in dealing with vulnerable and isolated people of non-English speaking backgrounds. 74 When one is dealing as a medical practitioner with vulnerable people, one has very special responsibilities to that patient who will rely on the medical practitioner and may see the practitioner as a friend. I now totally understand the boundaries of the doctor/patient relationship and would never compromise that relationship. 1. In his written statement, Mr Adad said that he undertook a course in Ethics at the University of Sydney in 2019, beginning in April 2019 and finished online from Turkey, in June 2019. The name of the course was listed in an annexure to his statement as 'Introduction to Ethical Reasoning'. In his oral evidence, it became clear that this was a general Ethics course, and not a specifically targeted medical ethics course. It was not the course that he was required to complete by the Tribunal in 2014. Mr Adad said that he could not remember the topics studied in this course. He could not remember much about the subject matter, either (see transcript p 40-41). 2. The annexure to Mr Adad's statement is an eleven page list of online courses which Mr Adad says that he completed in 2020 and 2021. 3. In cross-examination, Mr Adad was asked about the account he gave of his relationship with Patient A to Dr Ventura, who examined him for the purpose of providing a report to the Tribunal. Dr Ventura said, in her report dated 14 April 2021, that Mr Adad told her that he had had a sexual relationship with Patient A beginning in 2000, and that he had ended the relationship in 2002. Dr Ventura questioned him further (having read the second Tribunal decision), and Mr Adad told her that what happened after 2002 'was not important'. Mr Adad was asked about this aspect of his interview by Dr Ventura (transcript p 16-18): Q. At the time that you attended to meet with her you understood that she had been instructed by the Medical Council to prepare a report for this matter, correct? A. Yes correct. Q. In the course of the meeting with her she asked you questions? A. Yes she did. Q. You understood that she was asking questions for the purposes of obtaining information to assist in the preparation of that report, correct? A. Yes, correct. Q. You provided various answers to her questions, correct? A. I did. Q. Do you say you were truthful in answering the questions that Dr Ventura asked of you? A. Yes. Q. In the course of you providing answers to Dr Ventura you told her certain things about, for example, the contact that you had with Patient A, correct? A. Yes. Q. In para 6 of Dr Ventura's report she says that you told her that you tried to separate Patient A in 2002 and that this is when the relationship ended? A. At that I was thinking at time of the time period was 2002 was until 2002 was more frequent but after 2002 it wasn't that frequency but it doesn't matter that's was wrong. Each time you get contact with the patient it's new beginning and that's should be accepted this way and I couldn't express properly and that's what happening at that time. Q. You told various-- A. Also this language problem that when we say this connection in our culture means occasional, very occasional one in blue moon that you see that person is still disconnection but if you see them then more frequent that is different and this expression it's called in English interference, mistakes that can happen and that's I think led to this issue, misunderstanding. Q. I just want to be clear if I may please Mr Adad you told Dr Ventura that the relationship with Patient A ended in 2002, correct? A. No it didn't end in 2002 but until that 2002 was very frequent. I tried to stop it but couldn't stop it and but it wasn't as frequent as it was in the past. Before 2002 was very frequent but after it wasn't frequent. Q. I'm asking you about what Dr Ventura says you told her and I'll just repeat the question. Dr Ventura says that you told her that the relationship with Patient A ended in 2002, that's what you told Dr Ventura, correct? A. I thought it should be accepted 2002. DEPUTY PRESIDENT COLE Q. Stop Mr Adad, you're not being asked about the relationship at the moment, you're being asked about what you told Dr Ventura about the relationship, you concede that that's a different concept can't you? A. Yes. Q. Can you focus very particularly on exactly the question that you're asked and answer exactly the question you're asked? A. Yes. DEPUTY PRESIDENT COLE: Sorry Mr El-Hage can I ask you to repeat that question please. EL-HAGE: Of course, Deputy President. Q. . You told Dr Ventura that the relationship with Patient A ended in 2002. That's correct, isn't it? DEPUTY PRESIDENT COLE Q. It's correct that you told her that? A. Yes. EL-HAGE Q. You also told Dr Ventura that you stopped - I withdraw that. By reference to the relationship with Patient A you told Dr Ventura that you stopped in 2002. That's correct, isn't it? YOUNG: I object to that question, it's not clear. DEPUTY PRESIDENT COLE: Seems pretty clear to me. Mr Young, what's not clear about it? YOUNG: Well, if it's being put that he said something to Dr Ventura, what he said should be put. DEPUTY PRESIDENT COLE: Mr El-Hage, do you want to just rephrase that slightly? EL-HAGE Q. You told Dr Ventura that in 2002 you stopped the relationship with Patient A, correct? A. I explained that was - 2002 was the cut-off point but it continued of course. DEPUTY PRESIDENT COLE Q. So again, Mr Adad, you are being asked what you told Dr Ventura. Did you tell her that your relationship with Patient A stopped in 2002? A. No, I didn't, I said to her it was 2002 was that is the cut-off but after 2002 was not so frequent, very very - on very occasion that's happened and 2002 was stopped, that's what I told her and she accepted that 2002 stopped, yes. EL-HAGE Q. When you say that in 2002 that was the cut-off for you, what do you mean, Mr Adad? A. I didn't see her frequently and I just wasn't seeing - ask her to see another practitioner and she did, yes. Q. After 2002 you continued to have sexual encounters with Patient A, correct? A,. It's correct, yes. Q. And that continued up until 2013, correct? A. That's correct, yes. Q. And after 2002 you maintained a relationship with Patient A, correct? A. Yes. Q. So when you told Dr Ventura that the relationship ended in 2002, that was not correct? A. Wasn't correct because it was cut-off time that is the frequency was meant to be, yes. Q. When you refer to frequency, are you referring to the frequency of seeing the patient? A. Seeing the patient and of course then later on sexual relations. 1. In her report, Dr Ventura said the following: 26. I asked Mr Athour whether he had ever had any work related difficulties or complaints to the medical board in the past. He insisted he had never been in trouble before the complaint of sexual boundary violation. It was only after I asked the same questions three times that he admitted that he may have had some trouble prescribing naloxone and he had to pay a $10,000 fine. He insisted that this was the only other occasion. Dr Athour told me that there had never been any complaints or issues about his clinical skills or practice. The documentation available to me clearly contradicts this statement. 1. In cross-examination, Mr Adad was asked about what he had said to Dr Ventura about complaints against him in the past, and the following exchange took place at pages 21 to 22: Q. In the course of her discussions with you Dr Ventura also asked you questions about any complaints that had been made against you in the past, correct? A. I was thinking regarding this patient and that's why I didn't see to answer until she prompted me and then I explained that what happened, yes. Q. When you say she prompted you what did she say to prompt you? A. She said beside this issue and beside this issue then of course I understood that it was in the past plus that there were other issues of course yes, accepting that one yes. Q. Dr Ventura prompted you by saying besides this issue that is the Patient A issue, yes? A. Yes. Q. You told her that aside from the Patient A issue you had been in trouble for prescribing Naloxone and had to pay a $10,000 fine, correct? A. Yes related to Naloxone implant, it is not prescribing, it is insertion into the patient's..(not transcribable)..that's the case then Naloxone ongoing care for the patient yes. Q. You told her about a $10,000 fine, correct? A. No I didn't. Q. Go to para 26 please of Dr Ventura's report? A. Yes. Q. Do you see in the second sentence that she says that you told her you may have had some trouble by prescribing Naloxone and had to pay a $10,000 fine, do you see that? A. I never spoke about this 10,000 fine, never ever. Q. Are you suggesting Dr Ventura manufactured the $10,000? A. Sure. DEPUTY PRESIDENT COLE Q. You're saying are you Mr Adad that Dr Ventura has made that up? A. She should write their report and that's what might be..(not transcribable)..in the report of - the judgment that I paid 10,000 yes. Q. So when she says in para 26 that you told her that you had to pay a $10,000 fine you're saying that she has invented the idea that you told her that? A. I didn't explain about 10,000 fine I said there was a complaint and I was in trouble because of the Naloxone implant, yes. Q. Where do you say she got the $10,000 fine idea from? A. I think from the previous judgment. YOUNG: I do object to this in that it is not clear at all that Dr Ventura is even saying that he said he had to pay a 10,000 fine. The sentence reads "It was only after I asked the same question three times that he admitted that he may have had some trouble by prescribing Naloxone and had to pay a $10,000 fine. It's not clear that she's saying at all there that he said anything about the $10,000 fine, she's talking about an issue. DEPUTY PRESIDENT COLE: I'm asking him to explain where that came from, that $10,000 fine. WITNESS: Some previous judgment. DEPUTY PRESIDENT COLE Q. You say you didn't mention it? A. No, I didn't mention. 1. Upon being shown Dr Ventura's notes, which record the figure of $10,000, Mr Adad admitted that he may have mentioned it. He said he could not recollect the conversation at all (transcript p 23 line 50). Eventually, he said that he had thought that Dr Ventura was referring only to Patient A when asking whether he had had any complaints in the past. We find this implausible. 2. Under cross-examination, Mr Adad admitted that he had not told Dr Ventura about the Performance Review Panel, even in response to her direct question about previous complaints. The following exchange took place, at p 31-33: Q. And you didn't tell her even after she prompted you to give her information about complaints or issues relating to your practice other than patient A? A. Yes. Q. And you didn't do that because you didn't want to discuss these things with her? A. Yeah I didn't want to discuss with her. Q. And why is that? A. Because there are..(not transcribable)..not to discuss this issue first, that's why I didn't mention to her. DEPUTY PRESIDENT COLE: I'm sorry I didn't hear that Mr Adad what are you saying? Q. I went there not because of this findings, I went because of the judgment of 2016 that's why I didn't discuss this. Q. Even though you understood that she wanted to know about anything prior to 2016? A. It was about that time..(not transcribable)... Q. Answer my question, you decided not to tell her about anything to do with matters to do with your clinical practice prior to 2016 even though you knew that she wanted to know. You understood that-- A. She wanted this or not I wasn't sure and that's why I didn't mention to her. Q. Well she asked you for it didn't she? A. She did ask about prior complaints yes. Q. But you can conclude from that that she wanted to know about prior complaints, can't you? A. No, yes I can see yes. EL-HAGE: Q. You also told us a little while ago now that you were also aware that in answering Dr Ventura's question that you would provide her with an honest answer correct? A. Yes. Q. And when she asked you about whether or not you have been the subject of complaints or work related issues other than patient A you did not provide her with an honest answer correct? A. Partial yes. Q. You did not provide her with an honest answer correct? A. I think it was partial because I mentioned about the malpractice on the implant issue and that's but not this once-- Q. Well you decided not to tell her about the 2014 tribunal decision or the 2015 panel assessment correct? A. I did explain about the 2014 but not about the final findings. Q. And is it the case that you thought in your mind you did not want to tell her about the 2015 performance review panel assessment because, sorry I withdraw that. In your mind you thought that by not telling her about the performance review panel in 2015, that would possibly lead to a more favourable report to you, correct? A. More favourable to me, can you repeat please. Q. Sure. When you were discussing, when you were meeting with Dr Ventura and she was asking you questions about complaint you thought that the less you tell her the better for you, correct? A. I didn't think at all at the time. Q. You weren't thinking at all or you weren't thinking about the proposition I just put to you? A. I wasn't thinking at all at that time I was concentrating about one issue and that was in my mind and that's why I didn't..(not transcribable)..I heard about these findings. Q. Do you now, sitting here now today do you accept that you were not, that you did not answer Dr Ventura's questions about prior complaints in an honest manner? A. Yes, now I understand and I accept this. 1. In cross-examination, Mr Adad was taken to the decision of the Tribunal in the second Tribunal proceedings, where the Tribunal sets out in detail the deficiencies in Mr Adad's medical care of Patient A, ultimately describing it as 'reckless and harmful'. Mr Adad was asked why he had not addressed the issues in relation to his medical care of Patient A in his statement for this Tribunal. Mr Adad said that it was in the past, and he can't change it, but that he had said that he had 'changed completely' and would not do it again. Mr Adad pointed to a paragraph of his statement in which he said, among other things: I also felt that in making the mistake of commencing a relationship with Patient A that I had at the time prescribed medication to her not based on a proper assessment of her medical needs and placed myself at great risk in my profession. I made decisions that had irreversible and serious consequences to Patient A, but also to myself which has cost me my livelihood and the ability to practise as a medical doctor. 1. Mr Adad was asked whether he had completed the courses which were the subject of the conditions imposed upon his registration by the Performance Review Panel. Mr Adad was vague about the courses that he had been required to take and about the question as to whether he had taken them. He said that he could not recollect enrolling in the course (transcript p 53). Ultimately, the Council produced a certificate recognising that Mr Adad had completed the Opioid Treatment Accreditation Course referred to in condition 15 imposed by the Performance Review Panel. 2. Mr Adad said that he had no recollection in relation to enrolling or attending the Pain Treatment and Management Principles course offered by the University of Sydney, which was the subject of a further requirement imposed by condition by the Performance Review Panel (see transcript, p.55). The Council received no evidence of enrolment or completion of this course, and none was produced by Mr Adad. 3. There is no documentary evidence before us of Mr Adad enrolling in or completing the course in Trauma and Mental Health required by the Performance Review Panel condition, or a Medical Ethics course, as required by a condition imposed by the first Tribunal. In relation to the Trauma and Mental Health course, the following exchange took place between Judge Cole and Mr Adad in the course of his oral evidence (transcript p 54-55): Q. Did you enrol in that course? A. I did attend that course, yes, I know but whether I completed I don't know. Q. Stop. Just answer the question, did you enrol in the course? A. I think I did attend that course but I-- Q. Listen, I'm asking you if you enrolled, that's not the same question as whether you attended. Did you enrol? A. If I attending means I was enrolled that's but I'm not sure whether I was - honestly to say, I didn't go so far to 2015 issues, no. Q. So you can't recall whether you-- A. I cannot recall, no. Q. Listening, just listening to the question. You can't recall whether you contacted the New South Wales Institute of Psychiatry and enquired about enrolling in that course? A. No I cannot recall this, yes, that's true. Q. Right, and you can't recall whether or not you attended the course? A. Yes. Q. You can't, and you can't-- A. I cannot recall, yes. Q. --you can't recall whether or not you completed the course? A. Yes, I cannot recall this, no. Q. Looking at 16A? A. Yes. Q. Same issue as before? A. Yes. Q. You were required within six months of 5 June 2015 to provide evidence to the Medical Council of New South Wales of your enrolment in the trauma and mental health course organised by the New South Wales Institute of Psychiatry. Did you provide evidence to the Medical Council of that enrolment? A. I didn't do that, I missed this one completely. Q. Thank you. Looking now at 17? A. Yes. Q. You were required to complete within seven months of 5 June 2015 the course pain treatment and management principles organised by the University of Sydney, a particular course with a particular course number? A. Yes. Q. Did you enrol in that course? A. Again, I cannot remember anything about this. Q. Anything at all, you can't recall anything? A. No, I cannot recall anything. Q. So it's possible that you just didn't address the requirements whatsoever? A. Possible, yes, possible. 1. In response to questions from Professor Harris, Mr Adad acknowledged that, although he knows that antidepressants, once prescribed, should be continued for at least six months, he took himself off the antidepressant prescribed to him by Dr Younan after three months, only speaking to Dr Younan about this decision after he had stopped the medication. 2. Professor Harris asked Mr Adad what he had learned from the courses he said he had done on opiate use disorder, and specifically asked him whether there are any other opiate replacement medications, apart from methadone. Mr Adad replied incorrectly with 'naloxone', and was asked if there was anything else, to which he replied 'No'. Mr Adad did not mention Suboxone, a combination of buprenorphine and naloxone, which is widely used as an opiate replacement medication, having been placed on the Pharmaceutical Benefits Scheme in 2011. We infer that he is either unaware of it, or it did not come to mind when the question was asked. 3. In his statement, Mr Adad said that he did not think that it would be necessary for him to have a supervisor if he was re-registered, though he said that he would abide by such a condition. 4. Mr Hooper, a psychologist, provided a two page report dated 21 December 2020. Mr Hooper said that Mr Adad was referred to him on 15 February 2020, and that he had been attending monthly psychological counselling sessions since that time. Mr Hooper said that Mr Adad had given him the second Tribunal decision. Mr Hooper expressed the view, in his report, that Mr Adad had insight and remorse in relation to his decisions concerning Patient A. Mr Hooper said, in his report: [Mr Adad] discussed with me the critical privilege and importance of caring for vulnerable people in need of help within the community. This appears to be in the forefront of his mind and should dominate his way of thinking into the future. 1. Mr Hooper expressed the view that Mr Adad was 'a changed man' and could now conduct himself with 'great conviction and discipline'. 2. In his oral evidence, Mr Hooper said that he had used a cognitive behaviour therapy approach to Mr Adad to help him deal with depression which had arisen from the stress Mr Adad had been experiencing for a long time. Mr Hooper was helping Mr Adad to find ways to better manage his mental health. 3. In cross-examination, Mr Hooper said that he had not been given a copy of the first Tribunal decision or the decision of the Performance Review Panel, although he was aware that there had been an issue to do with rapid opioid detoxification in 2014. 4. Mr Hooper said that he thought that Mr Adad continued the relationship with Patient A because he really thought that he was helping her, and also because he felt threatened that Patient A would report him to the disciplinary authorities should he stop the relationship. 5. Mr Hooper was asked what safeguards he had developed with Mr Adad to assist with the issues which arose in relation to Patient A and he said (transcript p 73): Q. Have you, together with him, developed any safeguards that he might put into place to assist with dealing with the type of circumstances that arose in connection with patient A? A. Definitely, yeah, definitely. That's a big focus of therapy, yes. Q. And what are those? A. Oh, proper boundary settings, reflective practices as I said before, you know, many things, sort of personal relationships, emotional regulation is a big one for him, assertive communication, being able to manage stress, being able to slow down, not being so reactive to things, developing strategies, having - I know as a psychologist a couple of the group things I do is like group supervision and individual supervision, having maybe a mentor, having a supervisor that he can talk to about issues that continually come up in his clinical practice, yeah. Q. And have you in the course of these discussions explored scenarios where patients might act in a particular way and what he might do in response? A. Yeah, definitely. We talked about, a lot about projection. I've worked with a lot of clients and it's - there can be some personality disorders that are quite prevalent and amongst his cohort of traumatised or drug-seeking clients as well so looking at that, looking at certain mental health diagnosis, looking at ways to manage, to manage your own emotions, to develop resistance against projection of certain emotions that come across with some patients or clients. Q. Now, Mr Hooper, have you been provided with a report of Dr Antonella Ventura dated 14 April 2021? A. No, I haven't, no. 1. In response to questions from Professor Harris, Mr Hooper said that he experienced some communication problems with Mr Adad, but assumed that they had to do with language. He agreed that he did not assess Mr Adad for a cognitive impairment. 2. The following exchange took place between Professor Harris and Mr Hooper (see transcript p 78): Q. Okay. You've mentioned the importance of insight and judgment here and that being one of the focuses of what you've worked upon what insights do you think he's developed? A. I think there's a tendency to, you know, to sort of blame other people for issues that have occurred, maybe that she was trying to manipulate the situation to get prescribed these drugs or whatever but he's really demonstrated a lot of to me especially this level of sort of remorse that he has and a level of shame and, well, guilt about the incident, you know, he talks about he was just a child, he had no control over his thinking, over his actions, sorry, but then he goes on to talk about how it's actually, it's affected his objectivity when prescribing medication or providing medical care and this level of relationships can form a level of dependencies on each which really affects her level of care as well, yeah, and it's about - and trust issues too, he's really coming to the understanding that she's a lady with lots of, she's quite vulnerable as well so, yeah, those sort of things. 1. Mr Hooper was asked by Professor Harris if he thought that the obtaining of a character reference from a patient was a breach of the doctor/patient boundary, and Mr Hooper said that he thought that it was, and that he would not ask a patient of his for a reference (transcript p 80). In response to further questioning on the topic by Judge Cole, Mr Hooper said that, if Mr Adad had obtained references from patients, this would give Mr Hooper some concerns about what Mr Adad had learned about boundaries and violating boundaries. 2. General Member Telford and Mr Hooper had the following exchange (see transcript, p 81) Q. I think you said earlier that he recognised, he came to recognise that Patient A was a vulnerable patient and part of his rationale for staying with her was not wanting to do her any more harm? A. Mm mm. DEPUTY PRESIDENT COLE: You need to answer in a word Mr Hooper for the transcript rather than just making a noise. WITNESS: Right okay, okay, so he didn't want to do any more harm in terms of terminating the relationship, you know he wanted to - he kept saying to me look she was a very - you know she was a really - she was a person that needed a lot, I felt really in a way empathetic and sorry for her, she needed, you know she needed you know I wanted to help her to get away from particular relationships, I wanted her to make you know a life for herself. I wanted her to get an education. So you know it was more about him feeling like - I don't know it's more like a saviour or somebody to - someone to provide or provide an element of support, ongoing support yeah. 1. It was plain that Mr Hooper's report was simply an account of his treatment of Mr Adad, which was limited in scope. Mr Hooper had not been asked to make an assessment of whether Mr Adad had addressed the issues which caused his registration as a medical practitioner to be cancelled, and nor did he attempt such an assessment. He had not been given sufficient information to do so. 2. Dr Younan provided a one and a half page report dated 10 November 2020, and gave oral evidence. 3. As his treating psychiatrist, Dr Younan assessed Mr Adad's mental state on 9 March 2020 and diagnosed him as suffering from clinical depression. Dr Younan prescribed , an anti-depressant. Dr Younan said that, in treatment, he tried to 'alleviate [Mr Adad's] sense of guilt that was the main reason for his depression'. Dr Younan said that Mr Adad responded well to treatment. Dr Younan said, in his report: We also discussed the critical importance of caring for vulnerable patients. I am confident that this is now in the forefront of his mind and it will dominate his way of thinking in the future. 1. Dr Younan, in his report, also said: Dr Athour is a changed man and I believe that he is fit to return to practice [sic] in the medical profession. He will conduct himself with great conviction, discipline and more importantly with a healthy frame of mind. 1. The similarities in excerpts of the reports of Mr Hooper and Dr Younan are curious. Similar wording to the passages reproduced in [75], [76], [87] and [88] above appear also in some of the testimonials. 2. In cross-examination, Dr Younan expressed the view that Mr Adad had difficulty expressing himself in English. He said that he sometimes used Arabic words when clarifying matters with Mr Adad. 3. Dr Younan said that he thought Mr Adad kept contradicting himself because of anxiety. Dr Younan thought that Mr Adad might have lied to Dr Ventura about his relationship with Patient A ending in 2002 out of embarrassment. 4. Dr Younan had read the second Tribunal decision, but not the first Tribunal decision. He had not seen the decision of the Performance Review Panel. 5. In cross-examination, Dr Younan said: I'll just mention something if you'll bear with me. The visit was simply to treat his depression. He was not referred to me to investigate what was behind what he committed. I'm simply concentrating on a man in front of me suffering from depression, unable to sleep at night proper, what can I do for him. So probing into his past was very superficial. 1. Dr Younan said that, when he expressed the view that Mr Adad was fit to return to the medical profession he based that upon his assessment of Mr Adad and his regret, and Dr Younan's view that Mr Adad's motive was to help the patient, but he did it in the wrong way. 2. Dr Younan said (transcript p 95): '…I faced this problem myself for those who need Valium and keep asking for it and out of my sympathy to them in some cases I have to accept, so sometimes and this was certainly the case with Dr Oliver. Feeling for the patients he sacrificed the regulations in order to help them." 1. Later, Dr Younan further explained that statement, saying that he did not mean that he would do something wrong, but that he would give the patient the medication on the proviso that the patient did not use it regularly. 2. Dr Younan said that he thought Mr Adad had learned from his experience with Patient A because of the loss of his wife, his finances and his job, which should give him 'deep insights not to do that in the future'. 3. As we have said, Mr Adad provided us with numerous testimonials, all of which we have read and taken into account. It is clear that Mr Adad has the support of many people, from different walks of life, who think very highly of him. The testimonials support Mr Adad's assertion that he is an empathetic person who has a strong desire to do good in his community. The HCCC's case 1. Dr Ventura was the only witness called in the HCCC's case. Dr Ventura gave evidence as an expert witness. She has never treated Mr Adad. 2. Dr Ventura provided a comprehensive report, dated 14 April 2021, which was written on the basis of a single interview with Mr Adad conducted on 14 April 2021 over about one hour and twenty minutes. Dr Ventura's handwritten notes of the interview were also in evidence. 3. In her report, Dr Ventura noted that Mr Adad gave her misleading answers in relation to several topics. He said, in the interview, that his sexual relationship with Patient A ended in 2002, but, on further questioning by Dr Ventura, admitted that he kept having sex with Patient A until 2013. As set out above at [64]–[66], Mr Adad, in the interview, also lied to Dr Ventura in relation to the question of whether he had experienced any work related difficulties or complaints to the Council in the past. The account of Mr Adad's time in Turkey from 2017 to 2019 given to Dr Ventura differed somewhat from the account of that time given to the Tribunal by Mr Adad. 4. Dr Ventura, in her report, recounted the following exchange with Mr Adad at the interview: Dr Athour told me that if he is reinstated he would like to work as a general practitioner in Liverpool. He told me that there will be another doctor at the practice. He told me that his aim is not to fall for the same mistakes. He explained that he has to be able to say no, "when a patient wants a relationship, I say no". He told me that he now knows that he should not sleep with a patient. He then listed a number of ethical principles that he learned during his course. When I asked him how they applied to his situation with Patient A, he was unable to answer the question. When I asked him what has changed in himself in order to be confident that the unethical behaviour would not repeat itself, he replied "I just have to say no". I asked Dr Athour about his attitude towards supervision, should he be allowed to practice [sic] medicine again. He told me that he does not believe that he needs supervision. He told me that if he gets into trouble he will be able to speak to "people" himself. He told me that the reason why he believed that he did not need supervisions was because it was up to him to say no to a patient who asks for sex. 1. Dr Ventura expressed the opinion that Mr Adad does not suffer from a mental disorder and his actions were not the result of a psychiatric impairment. Dr Ventura expressed the opinion that Mr Adad's insight into the actions which led to his deregistration was 'very limited and superficial'. 2. Dr Ventura, in her report, said that if Mr Adad were to be reregistered, he should not be working with vulnerable populations and with patients that he is likely to interact with on a social basis. Mr Adad told Dr Ventura that he meets many of his former and potential future patients at the various multi-cultural clubs that he attends. Dr Ventura considered that this put him at risk of future boundary violations. 3. Dr Ventura was very concerned that Mr Adad did not believe that he needed supervision, because she thought that made it less likely that he would report any difficulties that he was experiencing to a supervisor. 4. In oral evidence, Dr Ventura was asked whether she had any reservations about Mr Adad's ability to communicate in English. She said (transcript p 115): Not at all, he was a very sophisticated historian and particularly in the use of his English language. 1. In the cross-examination of Dr Ventura, the following exchange took place (transcript p 126): Q. Well, why would he need supervision in relation to the matters that led to his cancellation if he had insight into those matters? A. He doesn't have insight into vulnerability. I mean, let me be very clear, every single doctor is taught in medical school and repeatedly if they undergo any kind of continuing professional education that it is wrong to sleep with a patient, every doctor has the intellectual knowledge that that is wrong and therefore Dr Athour telling me that he knows that it is wrong to sleep with a patient and he would never do it again does not satisfy me that he has real insight into why he did what he did. What he did was driven by his own vulnerability. After all he knew that he wasn't supposed to sleep with a patient and he did. He now tells me that he knows that he's not supposed to be sleeping with a patient but what has changed? So in order to do that we need to understand whether he's actually identified his own vulnerabilities which he has not. What made him be so vulnerable to breach boundaries which have been ingrained in medical training and he's never explored them and he has no insight that perhaps he's someone who can breach those boundaries, why does he breach those boundaries, and, you know, if he's been anywhere near any kind of professional development he would need to know that mentoring and supervision are often protective of boundary breach because you can discuss them with your supervisor. The fact that he tells me that he doesn't think it's necessary but he would abide by it worries me because of course it's up to him to reveal where he's having some difficulties and if he doesn't think he's having any difficulties because he does not require supervision he's unlikely to raise difficulties with the person who is likely to be supervising him. He's playing lip service to the process rather than having true insight. Cognitive Assessment 1. Mr Adad's evidence was difficult to follow from time to time. He exhibited a tendency to change his answer when questioning was persistent. Some of his answers were very difficult to understand. We were concerned at his inability to remember quite significant events, such as his attendance, in person, at a course. We were also concerned that our impression of Mr Adad was at odds with Dr Ventura's impression, in that she found him to be a sophisticated historian, with good use of English. For these reasons, we gave Mr Adad the opportunity to obtain and provide us with a report of a cognitive assessment, should he wish to do so. Mr Adad took up our offer, and a report of Mr Schreiner, a clinical and forensic psychologist, was subsequently provided, dated 17 July 2021. 2. In summary, Mr Schreiner said, in his report, that he had tested Mr Adad and found that he was not suffering from any form of cognitive impairment. However, Mr Schreiner found that Mr Adad, at the time that he was tested, was experiencing a current episode of a Major Depressive Disorder of moderate intensity. Mr Schreiner's opinion was that Mr Adad's depression was affecting his processing speed, as depression tends to reduce or impair attention and concentration. Has Mr Adad discharged his onus of proof? 1. As we have set out above at [47], our task in this matter is to determine the appropriateness of an order reinstating the applicant, as at the date of hearing of the application. In making that assessment, we bear in mind the objective and guiding principle set out in s 3A of the National Law (see [46]). 2. We bear in mind that the presumption of fitness does not operate, and that the onus is on Mr Adad to demonstrate that he can be trusted to practise medicine in a way which conforms to the professional standards expected of a general practitioner. He must demonstrate that he presents no risk to the safety of the public and the confidence of the public in the profession of medicine (see Qasim referred to above at [47]). 3. It is not our function to reassess the conduct which led to Mr Adad's deregistration. Rather, we must consider whether the circumstances and the deficiencies in the applicant's character, which led to that conduct, have changed or been remedied (see Asar v Medical Council of NSW [2019] NSWCATOD 132 cited at [47], quoted in Qasim, above). 4. We have set out, above, at [48], the areas which Mr Adad needed to address in seeking to be re-registered. We will deal with each of those areas below. Prescribing practices 1. Mr Adad said, in his statement, that he had realised, in the context of the events relating to rapid opioid detoxification treatment which led to the first Tribunal decision in 2014, that he should not engage in any medical procedure or treatment unless it is widely accepted in the medical profession. 2. In 2015, Mr Adad completed the Opioid Treatment and Accreditation Course conducted by the University of Sydney. This course was the subject of a condition imposed by the Performance Review Panel on 11 March 2015. 3. While we acknowledge Mr Adad's endeavour to complete many courses that may prepare him to resume practice, none of the on-line courses on the list annexed to Mr Adad's statement were courses required of him by the Tribunal or the Performance Review Panel, and most did not address the identified flaws in his practice. 4. Notwithstanding the completion of the course in 2015, Mr Adad was unable to recall, when giving evidence, attending the course, though he did have some memory of his placement. His omission to nominate Suboxone as an opioid replacement medication (see [73] above) tends to indicate that he did not absorb all of the information provided in the course. 5. The following exchange took place in the cross-examination of Mr Adad (transcript p 34, beginning at line 13): Q. You say that your failure to maintain the professional doctor/patient boundary was the principal issue in the 2016 decision? A. Yes, yes. Q. Wasn't the level of clinical care that you administered to Patient A also an issue? A. It was, yes. Yes. I admit that it was, yes, and I accept it, and I know it wasn't right. Q. Do you have the 2016 decision in front of you? A. Yes. Q. If you go to paragraph 14 of that decision? A. Yes. Q. Do you see that the Tribunal there records that over a long period you prescribed drugs of addiction to Patient A without thorough history, without appropriate physical examination, without appropriate clinical indications, without recording your rationale for doing so, do you see that? A. Yes. Q. Do you see that the Tribunal also made note of the fact that you failed to properly investigate the cause of Patient A's pain? A. Correct, yes. Q. And you didn't conduct a mental health review? A. Yes. Q. And you didn't develop a long-term management plan to ensure that Patient A did not become drug dependent? A. Yeah. Q. If you go to paragraphs 48 and 49 on the decision, do you have those? A. Yes. Q. Do you see that there the Tribunal states that your treatment of Patient A was unsatisfactory? A. Yes. Q. And at paragraph 49 the Tribunal stated that not only were your practices harmful and inappropriate, you conducted medical management of the patient without clinical assessment, note-keeping diagnostic formulation and a management plan? A. Correct, yes. Q. And in paragraph 50 the Tribunal also took the view that the standard of care that you administered to Patient A was both reckless and harmful, do you see that? A. Yes. Q. Those were also important issues, weren't they, in the Tribunal's mind in 2016? A. They are important issues. I don't dispute they are very important and I think when I allowed I will never ever do it again. I will take proper history, do the examination, and accordingly deal with the patient. That is I changed completely and I agree with them at time it wasn't properly. I don't dispute that is right. I think it is really important, this is not saying that I'm belittling them, they are important, and I know they are very important, yes. Q. Did you think that these were very important issues at the time you prepared your statement in this matter? A. Yeah, they were important, really very important. But it was in the past, the past you cannot bring it back, so I couldn't do anything, it changed at the time, yes I agree. I should have..(break in recording)..and that's why I change what's happening it was. Q. At the time you prepared your statement in this matter were you - or these issues that I just took you to in the 2016 decision, they were important? A. Very important, yes, I agree with them, yes. Q. Do you mention and address these matters in your statement? A. I think I did explain that I changed completely, yes. Q. Sorry, could you repeat that, please? A. I think that I explained that I changed completely and if I am permitted to practice then I will never ever do these things again, I will take proper steps‑by‑step dealing with the patient, yes. Q. Where in your statement that you prepared for this matter that you address the matters in paragraphs 48, 49 and 50 of the 2016 decision that I just took you to? A. I think I did them very brief, shortly, just one second. Q. Are you still looking, Mr Adad? A. Yeah, I do, I do, yes. Realise that at paragraph 69, yes. Q. Is that where you state-- A. Yes, yes. Q. You prescribed medication to her not based on proper assessment of her medical needs and placed myself at greater risk in my profession? A. Correct, yes, yes. Q. That's only one aspect of the matters that I took you to, correct? A. Yes correct, yes. Q. And there's nothing else that you can point to in your statement which is in any way - that in any way addresses the parts of the Tribunal decision 2016 particularly at paras 48, 49 and 50 that I took you to, correct? A. Yes. 1. The prescribing issues identified by the Tribunal in 2016 in relation to Patient A have only been addressed to a limited extent by Mr Adad. He agrees that his prescribing practices with respect to Patient A were wrong and simply asserts that he has 'changed completely' and will not prescribe in that manner again. He has not explored in any depth what it was that caused him to prescribe to Patient A as he did, beyond saying that he thought that he was helping her and also that he knew it was wrong. He has not explained in any detail what insights or information he has gained which have brought about his asserted change, and nor has he given any detailed explanation of the asserted change itself. 2. There is no evidence that Mr Adad has taken any specific steps to remedy the defects in his prescribing practices identified by the Performance Review Panel (see [21] above). Level of Clinical Skill 1. Mr Adad provided a long list of on-line courses he said that he had completed from March 2020 to May 2021. Those on-line courses consist of reading over a topic and then answering some questions. Each course takes about an hour and relates to a specific medical condition (see transcript p 46 line 23). Mr Adad ceased to practise medicine in January of 2016. From 2017 to 2019, he travelled, thinking that he would not seek to return to the practice of medicine. For this reason, he did not pursue any further education until March 2020, when he reconsidered his position. 2. Of the three courses Mr Adad was required by the Performance Review Panel to complete, he has completed one of them, namely the Opioid Treatment Accreditation Course at the University of Sydney. He cannot recall attending the coursework and has some memory of the placement. He has failed to attend the Trauma and Mental Health Course conducted by the NSW Institute of Psychiatry and the Pain Treatment and Management Principles conducted by the University of Sydney, which were also the subject of conditions imposed by the Tribunal in 2014. There were almost two years between the imposition of those conditions and the cancellation of Mr Adad's registration. 3. Apart from his own statement that he undertook the brief, online courses listed in the annexure to his statement, Mr Adad has put forward no evidence that he has addressed the clinical deficiencies that the Tribunal, in 2016, identified in his practice or those identified by the Performance Review Panel in 2015. 4. We are concerned about Mr Adad's failure to comply with the conditions imposed by the Tribunal in 2014, and with the conditions imposed by the Performance Review Panel, because that failure tends to indicate that he has not engaged with the purpose of requirements imposed in the context of the regulatory system. It is not a matter of ticking a box to get to the next stage; conditions are imposed requiring that a course be completed so that a medical practitioner engages with the course, and attends to, absorbs and remembers the information provided in the course to the extent that the medical practitioner can then confidently apply it in their future practice. Record Keeping 1. We note that an audit of Mr Adad's records conducted in November 2014, found that Mr Adad's record keeping had improved, apparently in response to the criticism of his record keeping in the report of the assessors to the Performance Review Panel. 2. The issues with respect to Mr Adad's failure to keep records in relation to much of the medical treatment and advice he gave to Patient A all arose prior to that audit in November 2014. Those issues did not relate to any lack of understanding on Mr Adad's part as to what standard of record keeping was required. 3. It is probable that Mr Adad would be capable of keeping adequate medical records were he readmitted to practice. Ethics, Insight and Boundaries 1. In his case, Mr Adad focussed on the issues arising from his sexual relationship with Patient A, and how he would avoid those issues arising in the future. In his mind, that relationship seemed to be the principal thing that he needed to address in his application to be re-registered. It was clear, in his interaction with Dr Ventura, that Mr Adad believed that an examination of his fitness to practise should largely be confined to addressing the issues inherent in the most intense period of his relationship with Patient A, from 2000 to 2003. His solution to those issues was to simply say no when he found himself attracted to a patient, or when a patient indicated that they were looking for a relationship with him (see [102] above). 2. Senior Member Haikal Mukhtar and Mr Adad had the following exchange during Mr Adad's evidence (transcript p 44 line 25): Q. Mr Adad, you have had a relationship with patient A for some 13 years, is that right? A. That's right. Q. I believe you have had time to reflect on it, is that right? A. That's right, yes. Q. What in your opinion, what led you to be in that situation? A. It was my own actually reckless behaviour. When I reflect back it was my own mistakes. I shouldn't get involved and I shouldn't cross the boundary and that's what led to these issues. Q. But what do you think caused you to engage in that reckless behaviour? A. At that time I wasn't thinking clearly. I cannot answer properly what that caused at that time to be so reckless. I cannot answer that one, I don't know. Q. So looking at the present why do you think you will not engage in similar behaviour if the situation arises? A. Because I know my boundary and I know my limitation and in case if such things happen I have to terminate, I know I have to terminate doctor/patient relationship and just refer the patient to other medical practitioner or to other doctors which I cannot see any more the patients. Q. So, Mr Adad, at the time throughout the 13 years did you have any awareness or knowledge of your professional responsibilities as a doctor? A. Yes, I did but I was afraid and that fear led to this issue yes. Q. So what were you afraid of? A. I was afraid of reporting myself and I was aware that is not the right issue or stand that I did so that was ashamed as well included, yes, I felt very ashamed for I shouldn't do it, what I did, yeah. Q. So for the whole time you were aware that it was a wrongdoing, you know, throughout the 13 years were you aware it was wrong what you were doing? A. Yes, I was aware, yes. Q. And you say you did not do anything about it because you were ashamed? A. And afraid that I will be deregistered, that was my main problem at that time, yes. Q. Okay, were you at the time, did you think of how it affected the patient? A. I wasn't reflecting on the patient but now after deregistration I reflected that on myself and how it affected the patient, very much so, yes. Q. All right, so I understand why you continued the relationship because you were ashamed to be discovered and you were scared of being deregistered? A. Yes. Q. But in the first place what do you think led you to do it to start with? A. I think at the time - I think I cannot answer properly why I did, I am always asking why I did this one, probably overwhelming of sexual desire. I cannot answer properly really but now when I look back I should know, I am aware that I shouldn't do and I am able to say no to anything like this happening. Q. If you were allowed to go back to practice and you were in a similar situation what safeguards have you got in place not to engage in similar behaviour? A. First of all I had my, enough of my punishment. I punished myself by doing this and secondly I know if such feeling arises that at that time to terminate doctor/patient relationships before it goes out of control. Q. Okay, did you at any time during the 13 years discuss this relationship with any peer or mentor or anyone who could assist you? A. No. Q. Did you get any support or any help? A. No, I felt too much ashamed about it and I wasn't open to anybody. Q. But, Mr Adad, what do you think is the impact of such relationship on a patient? A. Yeah, first of all you make the patient dependent on you and secondly because there is no objectivity we cannot treat the patient properly and this is when they, the patient, and the patient become more and more attached to me it's just not the right way to deal with patients' issues. Q. Anything else? A. Yeah, I think I do, my doctor/patient relationship I do more harm than any good at all, yeah, and I am aware about it. At that time I was really blind. Q. So, sir, exactly what harm do you think you can do to the patient, of such patient, the patient who is vulnerable like patient A, what harm? A. Yeah, the harm is to make the patient dependent, give the patient what she wants because then become more feared and digging a hole into the area and so giving in what she wants rather than treat the patient properly and that is causing more harm and of course the medication that I prescribed her wasn't right for the patient, to the patient, it could kill the patient I know now when I reflecting back 1. In that exchange, Mr Adad eventually identified that it was an overwhelming sexual desire that caused him to embark upon the relationship with Patient A, and that he continued the relationship because of shame, and the fear of being deregistered, despite being fully aware that it was wrong to do so. He understands that he should have avoided entering into a relationship with her and is resolved to refuse to do so with any future patient should the question arise. As Dr Ventura pointed out, Mr Adad knew that having a sexual relationship with a patient was wrong, but he did it anyway. He also knew that prescribing to Patient A without proper examination or diagnosis, and without keeping proper records was wrong, but he did those things anyway also. 2. We accept Dr Ventura's evidence. She gave her evidence clearly and confidently, and her notes related to her report in a way that was wholly legible to us. We reject the criticisms made of her process on behalf of Mr Adad. 3. Dr Ventura's evidence was the evidence of an objective expert psychiatrist. Where Dr Ventura's evidence differs from Mr Adad's, we prefer Dr Ventura's evidence. Mr Adad was clearly not frank with Dr Ventura and sought to limit the compass of her questions of him. When giving evidence, Mr Adad exhibited difficulties with his memory which concerned us to the extent that we offered him the opportunity to obtain a cognitive assessment. Mr Adad also exhibited difficulties addressing questions which went beyond the limits of what he considered the Tribunal's enquiry ought principally to be about, namely, whether he could resist entering into a sexual relationship with a patient in the future. Those difficulties went beyond the effect of English being one of the secondary languages Mr Adad speaks. 4. Dr Younan's evidence was necessarily limited in scope, as his contact with Mr Adad was solely in the context of treating Mr Adad for depression. Dr Younan was not given comprehensive knowledge of Mr Adad's professional history. He was not an objective expert witness who had assessed Mr Adad in a holistic way in the knowledge of his entire history. Mr Hooper was similarly limited. Where Dr Ventura's evidence conflicts with the evidence of Dr Younan or Mr Hooper, we prefer Dr Ventura's evidence. 5. Mr Adad said, in his written statement, at paragraph 73: While I previously thought that I had qualities which helped me deal with addicted and addictive people, I now realise that my personal attributes and in particular my empathy make me best suited in dealing with vulnerable and isolated people of non-English speaking backgrounds. 1. Clearly, Mr Adad has a strong desire to help 'vulnerable and isolated people'. In her report, Dr Ventura said (p 6 paragraph 35): Should [Mr Adad] be restored to the register, I am of the view that he should not be working with vulnerable populations and with patients that he is likely to interact with on a social basis. [Mr Adad] told me that he meets many of his ex-patients and potential future patients at the various multicultural clubs that he attends. This potentially puts him at risk of further boundary violations. It is imperative that [Mr Adad] receives regular and independent supervision. A major concern of mine is that [Mr Adad] does not acknowledge his own need of supervision and therefore is less likely to report difficulties that he may be experiencing to a supervisor. These would limit the usefulness of supervision on preventing future inappropriate behaviours. 1. We agree that Mr Adad still lacks insight into those aspects of his character which contributed to the circumstances which led to his deregistration. We acknowledge that he seems to have moved from the position of blaming Patient A for the sexual relationship, so that he now takes some responsibility for it, acknowledging that in the doctor/patient relationship, the doctor is in a powerful position which must not be abused. However, whilst he acknowledged, after extensive probing, that the motivation for his engagement in a sexual relationship with Patient A was an overwhelming sexual desire, at no stage, in his therapeutic relationship with his psychologist or psychiatrist, did he identify or explore this issue or seek help to manage it in the future. Our concern is that Mr Adad has not yet examined what it is about his character, or way of thinking, which caused him to enter into the relationship with Patient A, remain in that relationship for 13 years, and breach sexual and professional boundaries during that relationship. 2. We are further concerned, in that context, by Mr Adad's wish to deal, in the future, with 'vulnerable and isolated people of non-English speaking backgrounds'. It is important that a medical practitioner use the status and trust that registration confers solely for the purpose of practising medicine in an ethical manner. Registration as a medical practitioner must not be used as a starting point for non-medical incursions into the lives of patients. Beyond making referrals to appropriate services, where indicated, a medical practitioner must not operate as a social worker or as a charity in relation to their patients. Conclusion 1. Mr Adad has not satisfied us, on the balance of probabilities, that he is now a fit and proper person to hold registration as a medical practitioner. Mr Adad has not demonstrated that he has understood and addressed the deficiencies in his prescribing practices and level of clinical skill which were revealed in the Tribunal decision of 2016, and which arose against the background of the previous Tribunal decision and the findings of the Performance Review Panel. Mr Adad needs to address those deficiencies with targeted, in depth education from an educator of high academic standing, such as a university. 2. Mr Adad has failed to demonstrate that he has fully understood why his actions, as set out in the Tribunal decision of 2016, constituted unsatisfactory professional conduct and professional misconduct. He has failed to demonstrate that he has identified and addressed those aspects of his character and his way of thinking that led him to breach professional boundaries in such an egregious manner over such a long period of time. Until such time as he does so, we cannot be satisfied that he would not pose a risk to the public were he to practice as a medical practitioner. Order 1. We make the following orders: 1. The name of the applicant is changed to Oliver Adad. 2. The application under s 163A of the Health Practitioner Regulation National Law is refused. 3. The applicant is to pay the respondent's costs of the matter, to be agreed or assessed. ********** 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 20 December 2021 - Paragraph 47 - quote amended from [17]-[19] to [17]-[21]. Quote paragraphs 18 and 19 added. 21 December 2021 - Paragraph 47 reinstated 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 December 2021