Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ghougassian (No 2) [2021] NSWCATOD 217 Hearing dates: 10 December 2021 Date of orders: 24 December 2021 Decision date: 24 December 2021 Jurisdiction: Occupational Division Before: The Hon Cowdroy AO QC ADCJ, Principal Member Dr J Spies, Senior Member Dr S Cowap, Senior Member D Telford, General Member Decision: (1) Under section 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), the Tribunal reprimands the respondent. (2) Under section 149A(1) of the Health Practitioner Regulation National Law, the Tribunal directs that the following Conditions be imposed on the respondent's registration: (a) When seeing patients outside a hospital setting, to not be the sole person on site (that is, when seeing patients the practitioner must ensure that at least a receptionist is present at his rooms/professional suites, although not necessarily in the consultation room) and: (i) advise the Medical Council of NSW (the Council) of all his practice locations within 7 days of commencing work. (ii) provide the Council with the name of his employed receptionist and be required to notify the council of any changes to this; (b) The practitioner not take photographs or video of any patients unless he: (i) obtains and documents in the clinical record written consent for the photographs or videos first; (ii) documents in the clinical record the clinical purpose for and intended use of the photographs or videos. (c) To nominate an experienced registered medical practitioner to act as his professional mentor for approval by the Council in accordance with the Council's "Compliance Policy – Mentoring" (as varied from time to time): (i) The practitioner is to be mentored for a minimum period of 12 months and as subsequently determined by the Council; (ii) The practitioner is to participate in meetings with the mentor on a monthly basis. At each mentoring meeting, the practitioner is to include discussion of the issues highlighted in the Tribunal's decisions, his personal and professional development, and any personal and/or medical practice issues as they arise; (iii) The practitioner is to authorise the mentor to report, in an approved format, to the Council on a quarterly basis; (iv) The practitioner is to authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration. (d) To provide the Medical Council of NSW within six [6] months from the date of this decision with the following: (i) A summary prepared by him of the relevant legislation and guidelines on the keeping of good medical records. This summary must describe the information to be included in a patient record; (ii) An overview of the steps he has taken to ensure that he is creating and keeping good medical records; (iii) A copy of the records of 10 patients who have attended for consultation with him since the date of this decision; (iv) The practitioner is to meet the costs of this condition. (e) The practitioner is to prepare and provide to the Council within six [6] months from the date of this decision the following: (i) The practitioner's documented protocol/policy on facilities available in the practitioner's rooms for patient privacy when undressing and redressing and how patients are informed of these facilities in his practice; (ii) The practitioner's protocol/policy on the use of chaperones in consultation and how patients are informed of this policy in his practice; (iii) The practitioner's protocol/policy for recording patients and how patients are informed of this policy in his practice; (iv) The practitioner's protocol/policy on obtaining information for the treatment and management of patients from their family members and/or friends; (v) The practitioner is to meet the costs of this condition. (3) The appropriate review body for the purpose of a review under sections 163 - 163C of the Health Practitioner Regulation National Law is the Council when the respondent has a principal place of practice in NSW. (4) Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. (5) The respondent is to pay the applicant's costs of these proceedings as provided by clause 13 of Schedule 5D of the Health Practitioner Regulation National Law. Catchwords: HEALTH - professional registration and discipline – imposition of disciplinary sanction following finding of unsatisfactory professional conduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Ghougassian [2021] NSWCATOD 169 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Daniel Ghougassian (Respondent) Representation: Counsel: I Chatterjee (Applicant) A Horvath SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2020/00327196 2021/00089901 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the name of Person X or any patient referred to in these proceedings is prohibited. REASONS FOR DECISION 1. On 29 October 2021, the Tribunal delivered its findings with respect to Stage 1 of these proceedings: see Health Care Complaints Commission v Ghougassian [2021] NSWCATOD 169. The Tribunal found that each of the Complaints One, Two, Three, and Four relating to unsatisfactory professional conduct were established and accordingly stood the matter over for further hearing to consider the appropriate disciplinary sanction. 2. In reaching its decision, the Tribunal was satisfied to the requisite standard of proof, namely to a high degree of satisfaction, that the conduct referred to in the complaints had been established. The test usually applied is that in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; see also the observations of the New South Wales Court of Appeal in Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41. 3. Applying such principles, the Tribunal was satisfied that the unsatisfactory professional conduct, as described in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, was established. However, the conduct did not constitute professional misconduct as defined in section 139E of the Health Practitioner Regulation National Law (NSW) ("the National Law"). Protective orders 1. The paramount consideration of the Tribunal is the health and safety of the public: see section 3A of the National Law. In its consideration, the Tribunal is guided by the principles referred to by the New South Wales Court of Appeal In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] where Meagher JA (with whom Basten and Emmett JJA agreed) said: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. The parties informed the Tribunal that they had reached agreement with respect to the proposed sanction, namely a reprimand, and also all but one of the proposed conditions. The proposed condition in contention is whether the following condition was appropriate: "2. ii not to interview, consult, treat or advise patients under the age of 18 years of age." 1. Such condition was sought by the applicant upon the basis of the observations of the expert, Professor Helen M Dewey, in her report dated 11 October 2019. In such report, Professor Dewey considered that the conduct of the respondent towards Person X was improper and inappropriate in that: "It was improper to rely on a minor, aged 13, to monitor and provide information about her mother's mental health issues. Further, it is my opinion that this placed an unreasonable burden on the shoulders of a 13 year old girl… In my opinion, it was inappropriate to interview [Person X] alone. Dr Ghougassian could have given consideration to interviewing [Person X] along with her father if his purpose was to obtain observations about [her mother] without the influence of [her mother's] presence during the interview. This would have been a reasonable approach if [the mother] provided consent for this to occur. … It is my opinion also, that Dr Ghougassian's behaviour lacks a fundamental understanding of the nature of informed consent and the inequality of the relationship between the doctor and the minor child in this interaction." 1. The applicant also relies upon the findings of the Tribunal which found that the conduct of the respondent in relation to Person X was inappropriate in relation to the taking of photographs and in not obtaining proper consent and that the respondent displayed a lack of awareness. For this reason, the applicant maintains that the disputed condition is necessary. 2. Counsel for the respondent submitted that the respondent explained his conduct and accepted that he should not have taken images without consent; that he has fully reflected upon his conduct and acknowledges that it was inappropriate. Counsel for the respondent also submitted that the conduct in relation to Person X was an isolated case; that the respondent had genuine concern for her welfare; and that the respondent has accepted the criticisms made in the expert report as set out above. Counsel submits that having had 40 years in unblemished practice, such a condition would be unnecessary, unfair and not a proportionate response to a single isolated instance. Findings 1. The Tribunal notes the following: 1. the respondent has provided a statement (undated) for use at this hearing. It records the fact that he has undertaken an extensive ethics course consisting of five workshops; has improved his record keeping; is now acutely aware of the need for consent to be obtained from a patient or a parent in respect of any photographic imaging and to inform the referring general practitioner of the fact that photographic records have been taken; and that he intends to provide any future imaging immediately to the patient or the relative for safe keeping. 2. An Education Program Report prepared by Morrison Consulting and Advisory refers to the content of a program undertaken by the respondent in June and July 2020. The report states that on 1 July 2020, the respondent satisfactorily completed a program of education on the topics of: 1. foundations of professional practice 2. consent 3. ethics 4. professional boundaries 5. medical record keeping. 1. The report states that the respondent: "…participated well throughout the education program. He engaged and contributed fully to the discussions and was keen to reflect his learnings against the complexities and circumstances which gave rise to the complaint. He described in detail the complexities surrounding his patient and the family dynamics, where consideration of his patient's primary carer and dependent child where [sic - were] integral to the medical management of his patient. Dr Ghougassian completed all the written questions in depth and was able to expand on his responses during the structured review of his pre-workshop activities at each face-to-face session. He engaged fully with the program's expert facilitators and demonstrated a willingness to discuss his usual practices in relation to the program topics. Dr Ghougassian demonstrated insight into the concerns about his practice. It was evident that he had reflected at length on the circumstances which gave rise to the complaint. He specifically noted that with his enhanced understanding of the matters explored, if he had engaged by referral, other health practitioners, the outcome could have been quite different. He noted that he felt 'seduced' by the request of the husband (his patient's primary carer) to look after his wife and will guard against such circumstances in the future. Dr Ghougassian identified that historic consent processes were not fully documented and hence not robust and auditable. He acknowledged this gave rise to the regulator's concern that he had not obtained adequate consent for his actions. Dr Ghougassian stated he was unaware of the specific requirements concerning imaging records and the need for signed consent forms being kept securely with the patient records. With regard to professional boundaries, Dr Ghougassian acknowledged that he needed to be more conscious of and reflect on, his strengths and weaknesses in developing a therapeutic relationship with his patients. He identified that he did not maintain boundaries with the patient's family members." 1. The Tribunal notes that the respondent has endeavoured, by undertaking such courses, to address the shortcomings that were found in the Tribunal's decision. The Tribunal notes that the applicant acknowledges that the circumstances surrounding the photographing of Person X occurred in unusual circumstances; that it showed a deep misunderstanding of the respondent in dealing with Person X. The unusual circumstances related to the fact that the respondent was deeply concerned for the welfare of Person X in view of bruising and scratches which he observed on her body, and the fact that such injuries may have been caused by Person X's parent or parents. The applicant submits that such conduct should be addressed. The Tribunal notes that the video recording of Patient B was also inappropriate. 2. With the acknowledgement by the applicant that the circumstances were unusual, the Tribunal considers that the inclusion of the condition which it seeks may operate to create a stigma adverse to the respondent which would be unjustified. The Tribunal accepts the submission of counsel for the respondent that such a condition could operate in a manner which is disproportionate to the findings of the Tribunal, and unfairly prejudice the respondent in his future practice. Further, the Tribunal considers that the complaints against the respondent result from the respondent's lack of understanding of the sensitivities when consulting with young persons, especially if it is necessary for the patient to partly undress for examination, and for making a photographic record for clinical purposes. Specifically, the Tribunal records that it found no sinister nor intentionally improper motive in the respondent's conduct which has brought about the complaint. 3. The Medical Council of NSW's section 224 evidentiary certificate sets out the following: "1. From 2 March 1983 to 4 September 1984 Dr Daniel Ghougassian was first granted conditional registration as a medical practitioner in New South Wales on 2 March 1983 under the now repealed Medical Practice Act 1992 and he remained so registered until 4 September 1984 2. From 5 September 1984 to 30 June 2010 Dr Daniel Ghougassian was first granted general registration as a medical practitioner in New South Wales on 5 September 1984 under the now repealed Medical Practice Act 1992 and he remained so registered until 30 June 2010 Dr Ghougassian's registration was not subject to any conditions in the period 5 September 1984 to 30 June 2010." 1. The respondent has been in practice for more than 40 years without blemish. Further, the Tribunal notes the reference provided by Dr Roy G Beran which testifies as to the standing of the respondent as a medical practitioner. 2. In view of the above, the Tribunal has confidence that the health and safety of the public, which is the Tribunal's first consideration, will be met by the conditions proposed but that the condition prohibiting the respondent from treating patients under the age of 18 years is not necessary. The respondent has demonstrated now his awareness and has taken courses to address his shortcomings and to provide him with greater insight. Further, the Tribunal is mindful that the respondent has been suspended since May 2020, and that in this period the respondent has undertaken courses relating to ethics and consent, and will have been able to reflect upon the shortcomings of his conduct. 3. The respondent has agreed to pay the applicant's costs of these proceedings. In accordance with the principle in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] – [46], and as provided by clause 13 of Schedule 5D of the National Law, the Tribunal will make such order. Orders 1. Under section 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), the Tribunal reprimands the respondent. 2. Under section 149A(1) of the Health Practitioner Regulation National Law, the Tribunal directs that the following Conditions be imposed on the respondent's registration: 1. When seeing patients outside a hospital setting, to not be the sole person on site (that is, when seeing patients the practitioner must ensure that at least a receptionist is present at his rooms/professional suites, although not necessarily in the consultation room) and: 1. advise the Medical Council of NSW (the Council) of all his practice locations within 7 days of commencing work. 2. provide the Council with the name of his employed receptionist and be required to notify the Council of any changes to this. 1. The practitioner not take photographs or video of any patients unless he: 1. obtains and documents in the clinical record written consent for the photographs or videos first; 2. documents in the clinical record the clinical purpose for and intended use of the photographs or videos. 1. To nominate an experienced registered medical practitioner to act as his professional mentor for approval by the Council in accordance with the Council's "Compliance Policy – Mentoring" (as varied from time to time): 1. The practitioner is to be mentored for a minimum period of 12 months and as subsequently determined by the Council; 2. The practitioner is to participate in meetings with the mentor on a monthly basis. At each mentoring meeting, the practitioner is to include discussion of the issues highlighted in the Tribunal's decisions, his personal and professional development, and any personal and/or medical practice issues as they arise; 3. The practitioner is to authorise the mentor to report, in an approved format, to the Council on a quarterly basis; 4. The practitioner is to authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration. 1. To provide the Council within six [6] months from the date of this decision with the following: 1. A summary prepared by him of the relevant legislation and guidelines on the keeping of good medical records. This summary must describe the information to be included in a patient record; 2. An overview of the steps he has taken to ensure that he is creating and keeping good medical records; 3. A copy of the records of 10 patients who have attended for consultation with him since the date of this decision; 4. The practitioner is to meet the costs of this condition. 1. The practitioner is to prepare and provide to the Council within six [6] months from the date of this decision the following: 1. The practitioner's documented protocol/policy on facilities available in the practitioner's rooms for patient privacy when undressing and redressing and how patients are informed of these facilities in his practice; 2. The practitioner's protocol/policy on the use of chaperones in consultation and how patients are informed of this policy in his practice; 3. The practitioner's protocol/policy for recording patients and how patients are informed of this policy in his practice; 4. The practitioner's protocol/policy on obtaining information for the treatment and management of patients from their family members and/or friends; 5. The practitioner is to meet the costs of this condition. 1. The appropriate review body for the purpose of a review under sections 163 – 163C of the Health Practitioner Regulation National Law is the Council when the respondent has a principal place of practice in NSW. 2. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. 3. The respondent is to pay the applicant's costs of these proceedings as provided by clause 13 of Schedule 5D of the Health Practitioner Regulation National Law. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 December 2021