Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Moussa (No 3) [2022] NSWCATOD 26 Hearing dates: 14 February 2022 Date of orders: 3 March 2022 Decision date: 03 March 2022 Jurisdiction: Occupational Division Before: The Hon D Cowdroy AO QC ADCJ, Principal Member Dr J Fogarty, Senior Member Dr S Sen, Senior Member D Telford, General Member Decision: (1) The registration of the respondent be cancelled pursuant to section 149C(1)(b) of the National Law; (2) The respondent be prevented from providing any health services until re-registration as a health practitioner as provided by section 149C(5)(a) of the National Law; (3) The respondent not make an application for review under Division 8 of the National Law for a period of one year from the date of these orders as provided by section 149C(7) of the National Law; (4) The respondent pay the costs of the applicant of these proceedings as provided by Schedule 5D, Clause 13 of the National Law. (5) Pursuant to section 64 (1) of the Civil and Administrative Tribunal Act 2013, the disclosure and a publication of the names of the patient and the witnesses in these proceedings is prohibited Catchwords: HEALTH – professional registration and discipline – determination of protective measures following findings of unsatisfactory professional conduct and professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Crickitt v Medical Council of NSW (No. 2) [2015] NSWCATOD 115 Director -General, Department of Ageing Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Chamberlain [2017] NSWCATOD 122 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 Health Care Complaints Commission v Echano [2018] NSWCATOD 30 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Khan (No 2) [2019] NSWCATOD 37 Health Care Complaints Commission v Moussa (No. 2) [2021] NSWCATOD 173 Latoudis v Casey (1990) 170 CLR 534 New South Wales Medical Board v Dinakar [2009] NSWMT 8 NSW Bar Association v Meakes [2006] NSWCA 340 Ohn v Walton (1995) 36 NSWLR 77 Prakash v Healthcare Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Roberts v Medical Council of New South Wales [2015] NSWCATOD 35 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Jamal Moussa (Respondent) Representation: Counsel: A Bhasin (Applicant) A Horvath SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2020/00339532 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act, publication of the name of any patient or witnesses other than expert witnesses referred to in these proceedings is prohibited. Judgment 1. The Tribunal has found in its Stage 1 proceedings that the conduct of the respondent as referred to in the Complaint filed on 26 September 2020 constituted both unsatisfactory professional conduct in respect of Complaints One to Four, and professional misconduct as alleged in Complaint Five: see Health Care Complaints Commission v Moussa (No. 2) [2021] NSWCATOD 173. 2. Complaint One and Complaint Two alleged the inappropriate treatment of Patient A by prescribing various drugs. Complaint Two alleged that in respect of Patient A's daughter, the diagnosis of asthma was inappropriate and the prescription of a drug, Symbicort, that was not clinically indicated for a child under 12 years of age. 3. Complaint Three alleged that the respondent was guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law because the respondent engaged in conduct which breached professional boundaries with respect to Patient A. 4. Complaint Four alleged that the respondent was guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law because he failed to keep adequate medical records in relation to his treatment of Patient A, thereby contravening the provisions of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW). 5. Complaint Five alleged the respondent is guilty of professional misconduct within section 139E of the National Law. The particulars are as follows: "PARTICULARS OF COMPLAINT FIVE 1. Complaint Three, Particular 6 is repeated and relied upon individually; 2. Complaints One, Two, Three and Four and the particulars thereof are repeated and relied upon cumulatively." 1. The Tribunal made the following orders (at [155]) of its Stage 1 decision: 1. Finds that the respondent is guilty of unsatisfactory professional conduct with respect to Complaints One, Two, Three and Four; and that the respondent is guilty of professional misconduct arising from the finding referred to in Complaint Three. 2. Directs that the parties approach the Registrar for the allocation of the hearing date to determine the appropriate disciplinary sanction arising from the above findings. Protective Measures 1. Accordingly this hearing (Stage 2) is confined to the issue solely of the protective measures that should be imposed arising from the Tribunal's findings. Pursuant to section 3A of the Health Practitioner Regulation National Law the health and safety of the public is the paramount consideration. 2. Numerous authorities state the principles to be applied in determining the extent of any disability sanctions to be considered. Those are referred to in decisions such as Health Care Complaints Commission v Do [2014] NSWCA 307; Qasim v Health Care Complaints Commission [2015] NSWCA 282; Crickitt v Medical Council of NSW (No. 2) [2015] NSWCATOD 115 at [56]. The object of the protective measures is not to punish the practitioner; rather, the sole purpose of the sanctions which are available to be imposed is to protect the public and to maintain proper professional standards. Submissions of the applicant 1. The applicant submits, relying upon in part, the expert report of Dr Mullins, that the conduct of the respondent in breaching the professional boundaries was wholly unacceptable given that the patient was vulnerable and had come reliant upon the respondent for emotional support. The evidence of Patient A establishes that she had suffered great distress as a result of the respondent's conduct. 2. Further, the applicant states that the conduct of the respondent was compounded by his lack of candour in various accounts given by him of the boundary transgressions given to the NSW Police, the section 150 hearing and investigators. Thirdly, the applicant submits that the respondent has shown no insight or remorse and continues to dispute that he engaged in the boundary violation which the Tribunal found took place between the respondent and Patient A. 3. The wrongful prescribing of Oxycodone and Naxolone, together with antipsychotic Seroquel and later Olazapine in the absence of appropriate assessment of Patient A had the potential to cause the patients confused mental state. The prescribing of drugs to Patient A's daughter was also inappropriate. Such prescribing, and the failure to maintain adequate medical records is in itself serious. 4. For these reasons the applicant seeks orders the following orders: 1. a cancellation of the applicant's registration under section 149C(1)(b) of the National Law; 2. a prohibition order preventing the respondent from providing any health services until registered as a health practitioner (section 149C(5)(a) of the National Law); 3. an order that an application for review under Division 8 of the National Law may not be made for period of three years (section 149C(7) of the National Law). Respondent's submissions 1. The respondent has provided an extensive statement. The statement recites his history as a child when he was born in Lebanon but was relocated to Moscow; then moving to Lithuania where he studied his medical degree. The respondent states he arrived in Australia in 2006. In oral evidence he stated that he had been engaged by an English company to work as a medical practitioner in Australia and had filled several positions, usually working as a medical registrar in emergency services in Rockhampton Hospital (Qld); then Joondalup Hospital (WA) between 2007 and 2011; then on medical call between 2011 and 2015, engaged as a general practitioner between Brisbane and the Gold Coast during which he provided after hours medical services to an after hours medical service known as METCALL; thereafter between 2015 and 2017, he worked in the emergency department at South Gippsland Hospital, providing emergency and general practice services. 2. The respondent commenced work as a general practitioner at the clinic in the North New South Wales coastal town in May 2017. 3. The respondent states that he was dismissed by his employer in approximately October 2021 after the decision was handed down by this Tribunal in its Stage I proceeding. 4. The applicant states that he consulted a psychiatrist in approximately 2018 who recommended a counsellor to the respondent. The respondent then consulted a psychologist, Mr Peter Langsford, in relation to his misconduct and his "mistake in crossing boundaries". He states that he was the subject of great distress at the time which resulted from the fact that he was denied access to his daughter by his estranged wife and that because "people were talking behind my back". The respondent referred to a long history where he had been bullied, from at least the age of 14 when he was assaulted and his sternum was fractured. Thereafter the respondent states that he was "bullied" when he attempted to participate in the Pottsville soccer group. The respondent considered that he was overweight at that time, weighing 100kg. It was not clear to the Tribunal whether the bullying resulted from his lack of performance as a soccer player or for some other reason. 5. The respondent was extensively cross-examined concerning inconsistencies in his statement compared to the evidence which had provided to the section 150 hearing. It was pointed out that at the latter, he testified as to the good relationships he had with other members the practice: in contrast, in his statement, he claimed that he was depressed and lonely and effectively had made no friends in the north coast town where he was working at the time of the complaints. The evidence he provided in his statement was in parts difficult to reconcile with previous evidence he had provided to a hearing convened under s150 of the National Law. 6. In submissions for the respondent, it was contended that the respondent had originated from a very difficult and very different cultural background; that this created numerous challenges both before and after the respondent came to Australia. Counsel for the respondent referred to the fact that the respondent had been assaulted the age of 14; thereafter whilst he was studying medicine having the benefit of a scholarship, it was withdrawn for no known reason. It was asserted that the respondent had a fear of authority. As a consequence, when questioned by the police and the Medical Council, the respondent was tense and nervous when giving his evidence and had given inaccurate testimony because previous authorities had not "been kind" to him, and he had previous unfortunate interactions with the police. 7. Counsel for the respondent also referred to the fact that there were very different social boundaries in various places where he was brought up and where he worked. It was a small community in the north coast town where Patient A lived. As a consequence the respondent was often seen locally at supermarkets and the relationship between patient and friend became confused with his professional obligation to maintain strict boundaries. 8. Counsel for the respondent submitted that the matters giving rise to these proceedings were confined to one patient, namely Patient A; there was no evidence of inappropriate conduct with any other patient; that Patient A acknowledged she might have fallen in love with the respondent and in effect that the patient sought the respondent's friendship; and that the respondent thought he could help her. The respondent recognised that she had mental health issues; had a "crush" on the respondent and that Patient A was vulnerable. The respondent states that he wanted to help patient A and her daughter. He recognises that providing emotional support was inappropriate and she became dependent upon him, more than as her doctor. He believed that Patient A may have wanted to ruin his reputation when she saw that he had a different companion. 9. The respondent has provided statements which show that the audit conducted by the Medical Council dated 18 August 2021. The audit records that the respondent was fully compliant with the Medical Council's conditions of practice; and was proposing to return to Sydney to take greater care of his mental health. However the respondent had practised satisfactorily with Category C supervision. In addition, an RACGP CPD Triennium Statement recorded that the respondent had carried out several CPD courses between 22 February 2020 and 19 November 2021 and had achieved 132 CPD points. Counsel for the respondent also pointed out that the respondent readily admitted his boundary crossing prior to proceedings being commenced against him. The respondent's statement records that the respondent has provided 20 years of valuable services as a medical practitioner in Australia, and that he has treated more than 100,000 patients. The statement expresses remorse for his conduct. 10. For the above reasons, counsel for the respondent suggested that a reprimand was appropriate; and that if considered necessary, a suspension might be imposed without proceeding to cancellation. Counsel for the respondent emphasised that the respondent had been terminated from his employment in October 2021 and because of visa restrictions, has not been able to work since. 11. According to the Evidentiary Certificate provided by the Australian Health Practitioner Regulation Agency dated 7 May 2021, the respondent was first registered on 19 October 2007 (registered MED 0001641301). His qualifications are recorded as Bachelor of Medicine/Bachelor of Surgery, Kaunas University of Medicine, Lithuania, 2001; AMC Certificate, the Medical Council 2016. Since 18 October 2010 the respondent was provided limited registration (area of need) from that date until 27 March 2015; provisional registration from 11 July 2017 to 3 July 2018; and General registration from 3 July 2018 to the present. 12. Restrictions were imposed upon the practice the applicant in varying periods from 18 October 2010 and thereafter to the present. Observations 1. The paramount consideration for the Tribunal is the requirement contained in section 3A of the National Law namely the protection of the health and safety of the public. Such principle has been comprehensively referred to 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. As such, the future protection of the community must be considered; it is not part of the function of the Tribunal to punish the respondent: see Director -General, Department of Ageing Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. 2. In Health Care Complaints Commission v Dr Della Bruna (2014) NSWCATOD 31, Wright J at [88] summarised the protective principles as follows: "(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2)Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]." 1. Accordingly, the fitness of the respondent practice is the focal issue. In Health Care Complaints Commission v Echano [2018] NSWCATOD 30 at [57] reference is made to the fact that: "The purpose of disciplinary orders is protective: see generally, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637. Orders operate as an indication to the profession generally of the sanctions that will be visited on professional misconduct of the kind identified in a particular case. They play a role in educating doctors and the public generally as to the minimum, expected standards of practice. They serve to protect the public in removing from the profession doctors whose conduct has been dangerous, and placed at risk the safety and welfare of patients. The protection of the health and safety of the public is a paramount consideration: s 3A, National Law. Appropriate disciplinary orders remind other members of the profession of the public interest in the maintenance of high professional standards, emphasise the unacceptability of the particular conduct and serve to maintain confidence in the high standards of the relevant profession: NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA. See also Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA (with whom Basten and Emmett JJA agreed)." 1. In Prakash v Healthcare Complaints Commission [2006] NSWCA 153 at [91], Basten JA observed that the public interest includes "… Indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of practitioners". 2. In NSW Bar Association v Meakes [2006] NSWCA 340, Basten JA observed that the protective purpose (of legislation relating to regulation of professions) was firstly to remove the practitioner from membership of the profession or provide a deterrent against repetition of the conduct by way of reprimand or fine; secondly, it reminded other members of the profession of the importance of maintaining the appropriate professional standard; thirdly, it gave emphasis to the unacceptability of the conduct involved; fourthly, it was directed to the maintenance of public confidence in the standards of the profession as was considered by Meagher JA in Health Care Complaints Commission v Do at [35]. 3. In Health Care Complaints Commission v Khan (No 2) [2019] NSWCATOD 37 at [46] the Tribunal, referring to a decision relating to conduct of Local Councillors said: "The question of fitness to practise medicine involves the question of whether the impugned conduct was improper or unethical: that is, "viewed objectively, would [it] be regarded by reasonable persons as falling below the standards of conduct to be expected…in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both…": see Office of Local Government v Toma [2016] NSWCATOD 21. See also the observations of French CJ in Parker v Comptroller-General of Customs [2009] 83 ALJR 494; [2009] HCA 7 in which his Honour provided the ordinary meanings of "improper" as being "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, in erroneous, wrong", as was referred to in Health Care Complaints Commission v Liu [2016] NSWCATOD 133. The Tribunal must determine whether the misconduct is "sufficiently serious" to justify an order (where professional misconduct is found): see Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186." 1. The Tribunal must determine whether the misconduct is "sufficiently serious" to justify an order (where professional misconduct is found): see Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186. That enquiry necessitates an assessment of the conduct to determine whether the respondent "is a suitable person to hold registration": see Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72]-[73]. The Tribunal must be satisfied that the practitioner possesses "the high standards of moral rectitude required of a medical practitioner": see Roberts v Medical Council of New South Wales [2015] NSWCATOD 35. 2. A submission was made on behalf of the respondent that Patient A is the only patient affected by the conduct of the respondent. However, this was not regarded as a fact requiring special consideration in Health Care Complaints Commission v Chamberlain [2017] NSWCATOD 122 at [41]. 3. The conduct of the respondent was directed at a lonely, vulnerable patient who had revealed to the respondent a prior sexual assault. Even though the professional relationship came to an end, the respondent continued to exercise power over the patient after the relationship ended. Whilst the Tribunal accepts that the respondent may have initially felt sorry for Patient A and wished to assist her, the respondent should have been placed on notice of the dangerous situation that was developing when the practice directed him not to consult with Patient A again. Whilst he did not do so, the friendship between the two of them developed more closely. It was as a result of this friendship that the boundaries were crossed. There is evidence that the respondent sought psychological counselling. The Tribunal has not been provided with any report of a psychologist or psychiatrist which might have provided some insight into the respondent's conduct, and whether the respondent really has any insight into his conduct. The Tribunal is not satisfied that the respondent does have such insight. 4. The Tribunal also notes the other findings made in relation to record keeping and the prescribing for Patient A and for Patient A's daughter. Such conduct would warrant a reprimand or similar sanction. However, the boundary crossing is a serious issue. The Tribunal must be satisfied that the protection of the public is maintained, and for this reason it considers it is necessary for the respondent's registration to be cancelled and that the respondent be not permitted to apply for reregistration for a period of one year. Costs 1. The applicant has applied for an order that the cost of the proceedings be paid by the respondent. The respondent does not make any observations or submissions in reply. Pursuant to the power provided by Schedule 5D, clause 13 of the National Law, the Tribunal may order a party to pay the costs of another party. The New South Wales Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] has confirmed that as a general rule, costs of proceedings before the Tribunal should follow the result: see also New South Wales Medical Board v Dinakar [2009] NSWMT 8; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67]. It should also be observed that an order for costs is not intended to punish another party; rather the sole purpose is to compensate the other party for its costs: see Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ; see also Ohn v Walton (1995) 36 NSWLR 77. Orders 1. The Tribunal orders that: 1. The registration of the respondent be cancelled pursuant to section 149C(1)(b) of the National Law; 2. The respondent be prevented from providing any health services until re-registration as a health practitioner as provided by section 149C(5)(a) of the National Law; 3. The respondent not make an application for review under Division 8 of the National Law for a period of one year from the date of these orders as provided by section 149C(7) of the National Law; 4. The respondent pay the costs of the applicant of these proceedings as provided by Schedule 5D, Clause 13 of the National Law. 5. Pursuant to section 64 (1) of the Civil and Administrative Tribunal Act 2013, the disclosure and a publication of the names of the patient and the witnesses in these proceedings is prohibited ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 03 March 2022