Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hossain [2022] NSWCATOD 31 Hearing dates: 22 and 23 November 2021 Date of orders: 8 March 2022 Decision date: 08 March 2022 Jurisdiction: Occupational Division Before: The Hon T Sheahan ADCJ, Principal Member Dr A Reid, Senior Member Dr C Newberry, Senior Member Honorary Associate Prof P Macneill, General Member Decision: Further to the Tribunal's order of 22 November 2021, pursuant to s 64 of the Civil and Administrative Tribunal Act (NSW) 2013, prohibiting disclosure of the names of persons listed in the Schedule to the Applicant's Amended Complaint dated 19 November 2021, the Tribunal now orders that: (1) The Respondent Dr MD Anwar Hossain's registration be cancelled, pursuant to s 149(c)(1)(b) of the Health Practitioner Regulation National Law (NSW); (2) The Respondent Dr MD Anwar Hossain be precluded, for a period of twelve months from the date of cancellation pursuant to Order (1), from making any application for a review of Order (1); (3) The Respondent Dr MD Anwar Hossain pays the Applicant's costs of these proceedings. Catchwords: HEALTH — professional registration — complaints — medical practitioner found guilty of unsatisfactory professional conduct and professional misconduct — non-publication order — protective orders — costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Arian v Nguyen [2001] NSWCA 5 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151 Health Care Complaints Commission v Perroux [2011] NSWDC 99 Health Care Complaints Commission v Perroux (No 2) [2011] NSWMT 15 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Anwar Hossain (Respondent) Representation: Counsel: R Donnelly (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self-Represented) File Number(s): 2020/00364364 Publication restriction: A non-publication order with respect to the names of the patients set out in the schedule to the Complaint was made on 22 November 2021 REASONS FOR DECISION Introduction 1. The Health Care Complaints Commission (HCCC or the Commission) alleges that Dr MD Anwar Hossain, named in the Complaint as "Dr Anwar Hossain" (the Respondent or Dr Hossain), is guilty of Unsatisfactory Professional Conduct, pursuant to the provisions of s 139B(1)(c) of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. It is firstly alleged that he breached a condition to which his registration was subject, by exceeding the maximum number of patients he was permitted to see per day (namely thirty) on eight occasions between 12 July and 27 September 2019 (Complaint One). 3. In addition, it is alleged (Complaint Two) that Dr Hossain is guilty of improper and unethical conduct, under s 139B(1)(l), in that he provided: 1. False information to Medicare in an attempt to conceal the breach of his conditions of registration, and, 2. Misleading information to a s 150 committee of the Medical Council of New South Wales, in an attempt to justify the breach of his conditions. 1. Thirdly, the HCCC alleges (Complaint Three) that, taken together, those three breaches are sufficiently serious to meet the requirements for a finding by the Tribunal of "professional misconduct" under s 139E, such as to justify suspension or cancellation of Dr Hossain's registration. 2. Mr Roy Donnelly of counsel, appearing for the HCCC, asks this Tribunal to cancel Dr Hossain's registration, under s 149C(1)(b), and impose upon him a twelve-month non-review period, under s 149C(7). The Commission also seeks an order for its costs. 3. The HCCC relies upon an amended complaint filed just prior to our hearing, referring to seventeen patients identified as patients A to Q. 4. Dr Hossain had legal representation during the earlier stages of the matter, but represented himself before us. He submitted himself for cross-examination, and relied upon voluminous written materials to resist the findings and orders sought. All of his written material, despite its repetitive nature, was received by the Tribunal as Ex R1. It included what we accepted as his written submissions. 5. It would appear that Dr Hossain has been experiencing several quite serious health challenges since his professional troubles began. 6. The Commission's documentary evidence comprised a folder of material (Ex A1), Dr Hossain's compliance history (Ex A2), and a Performance Review Panel report dated 29 January 2021 (Ex A3). Complaint One Relevant Background 1. Dr Hossain was born in 1959. He qualified in medicine at the University of Dhaka in 1983, and practised in Bangladesh (for eight years), Iran (ten years), and New Zealand (fourteen years), mostly in general practice, before moving to Australia in 2014, where he was awarded a Fellowship of the Royal Australian College of General Practitioners (RACGP), and relevantly worked at Prestons Medical Centre until 2019, usually seeing fifty to sixty patients per day. 2. His wife is also a general practitioner (GP). 3. Following a Commonwealth Professional Services Review, regarding his work between 1 December 2015 and 30 November 2016, concerns regarding inappropriate prescribing, poor diagnostic skills, and his clinical examination and management of patients, were referred to the HCCC in May 2019, and he was, at about the same time, ordered to repay some $600,000 to Medicare. 4. On reference from the HCCC, the Medical Council of New South Wales held a s 150 hearing on 10 July 2019, which imposed protective orders on Dr Hossain's practice, including an order for him to work only under Category B supervision, and an order that he treat no more than thirty patients per day (Ex A1, tab 21 – see full suite of conditions at pp 16-18). 5. The supervisor he himself nominated (Dr Nahid Majumdar) withdrew from supervision of Dr Hossain on 1 October 2019 (Ex A1, tabs 12 and 13), due to concerns about Dr Hossain's clinical skills (Ex A1, tab 11, p 2), and about his alleged "dishonest activities" in recording having seen, on 30 September 2019, three patients who had in fact not attended the Practice that day. 6. On investigation, the HCCC confronted Dr Hossain with the data now underpinning Complaint One (Ex A1, tab 17), and he admitted that breach at a s 150 hearing held on 4 November 2019. He stated, however, that the offending cases were "emergency presentations" but he also admitted recording seeing three patients on 30 September 2019, to avoid being caught having exceeded thirty patients on an earlier date (probably 28 September 2019 – Ex A1, tab 7, at pp 19-25 and 32-34). 7. He now concedes that this action was deliberate, in order to disguise his breach of the condition. 8. The November 2019 s 150 hearing suspended Dr Hossain and referred the matter to the HCCC (Ex A1, tab 8). Dr Hossain applied for a review of that decision, and a s 150A hearing on 20 January 2020 lifted the suspension, and allowed him to resume practice under conditions substantially equivalent to those imposed in July 2019 (Ex A1, tabs 4 and 5). He says his suspension was in effect from 2 October 2019 to 5 April 2020, but an end date of 29 January 2020 is established by a certificate from the Australian Health Practitioner Regulation Agency (AHPRA – Ex A1, tab 2). 9. On 20 December 2020, the HCCC commenced these proceedings (Ex A1, tab 1). 10. On 29 January 2021, a Performance Review Panel (PRP) determined that Dr Hossain's performance was "unsatisfactory" (Ex A3, pp 7 and 9), in that it was "below the standard reasonably expected of a practitioner of an equivalent level of training or experience". The Panel imposed conditions limiting Schedule 8 prescribing, and requiring Category C supervision and training in communication and pain management (Ex A3, pp 9-11). 11. The Panel noted (Ex A3, p 7) Dr Hossain's failure to take up the specific recommendations of the July 2019 s 150 Panel. The PRP report (Ex A3) was issued on 9 February 2021, and the report on Dr Hossain's compliance with it, as at 19 November 2021 (included in Ex A2), shows his compliance to be not entirely satisfactory. The Respondent's Case 1. Dr Hossain says that before he came to Australia, unfamiliar with its Federal and Medicare systems, his professional record had been unblemished for some thirty eight years, and this Tribunal has no evidence to the contrary prior to his prescribing complaint dated 2017. 2. He asserts his honesty, and, where accused of lying, claims he was only "speculating". 3. He relies on generally favourable reports from his "mentor for learning", Dr MD Eftekharuddin, and his recent supervisor, Dr Samir Michael, and discounts the earlier withdrawal of his former supervisor, Dr Majumdar, as a case of "professional jealousy". 4. His materials (in Ex R1) include relevant records of his attendance at CPD courses and events in 2020-2021, and information about his health problems, eg, a report from his cardiologist, Dr Tuan Nguyen, dated 30 August 2021. 5. In fairness, we note that Exhibit R1 includes some material unfavourable to Dr Hossain's case, and that, in his "submission" emailed to the HCCC on 2 November 2021, he acknowledged "the error of my judgments", took "full responsibility for those without any argument", and said he was "truly apologetic and sorry" for all the actions to which the present Complaints refer. Commentary 1. We note the Respondent's admissions at the s 150 hearing (Ex A1, tab 7, pp 19-20) about exceeding the "thirty per day" condition, and we accept the HCCC's submission (par 15(v)) that while only one offending case (patient H on 13 August 2019) might be accepted as "urgent", the clinical notes regarding it "do not support that the presentation was an emergency… " (Ex A1, tab 43). 2. We also reject for lack of supportive evidence: 1. The Respondent's attempts to shift the blame for these exceedances to administrative and clinical staff, and, 2. His contention that some exceedances, especially by five patients on 12 July 2019, ought be excused because of some delay in official notification of the restrictions, meaning there was no time for him to re-schedule his patients. Finding 1. Accordingly, we find Complaint One proven. Complaint Two 1. The HCCC submits (par 26) that Particular One of Complaint Two, namely that Dr Hossain provided false and/or misleading information to Medicare regarding three consultations he alleged took place on 30 September 2019, in order to conceal his exceedance of the thirty patient condition, is made out, because: 1. He admitted its factual basis at the s 150 hearing on 4 November 2019 (Ex A1, tab 7, pp 32-34); 2. He has applied for Medicare to adjust his claim for those patients (Ex A1, tab 52); and, 3. He has admitted the Particular in his reply filed in these proceedings. 1. We accept that HCCC submission, and note that Dr Hossain claimed in his application to Medicare merely that the three patients were "billed by mistake" (Ex A1, tab 52, p 2). 2. Particular Two alleges that Dr Hossain provided misleading information to the Panel in the 4 November 2019 s 150 proceedings, in that he alleged that the patients in excess of thirty were "emergency" cases. 3. His allegations in that respect find no support in his evidence to that s 150 hearing, nor in the clinical notes for the offending consultations, and we accept the HCCC submission (par 28(iii)) that, while one presentation may have been "urgent", none was a genuine "emergency", and there was no basis for the Respondent's stated belief that he saw all excess patients because they were emergencies. Findings 1. Accordingly, we find Complaint Two proven, and we are satisfied that the Respondent's conduct in respect of Complaints One and Two amounts to Unsatisfactory Professional Conduct. 2. The Court of Appeal has said, eg, in Prakash v Health Care Complaints Commission [2006] NSWCA 153 (Prakash), at [45], that conditions imposed on a practitioner's registration "must be scrupulously observed", and "repeated wilful breaches" of them will be found to be "most serious". 3. In the present case, we are satisfied that Dr Hossain failed to take responsibility to ensure that he met his conditions, and that on at least some occasions he knowingly breached them: s 139B(1)(c). 4. Section 139B(1)(l) uses the terms "unethical" and "improper", but the National Law does not define them. This Tribunal, eg, in Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151, at [56], gives those terms their normal dictionary meaning. 5. We are satisfied, in the present case, that the intentional provision of false and misleading information, both (1) to Medicare regarding the three consultations, to conceal Dr Hossain's breach of his registration conditions, and (2) to a s 150 committee, to mitigate that breach, constitutes improper and unethical conduct. Complaint Three – Misconduct 1. Suspension or de-registration are available to this Tribunal only if it is satisfied that such conduct as we have found unsatisfactory, improper, or unethical, when considered together, is so serious as to amount to "professional misconduct": see Chen v Health Care Complaints Commission [2017] NSWCA 186, at [20]; Health Care Complaints Commission v Perroux [2011] NSWDC 99, at [18]. 2. The HCCC specifically asks (submissions, par 38) this Tribunal to take the incidences of unsatisfactory conduct together, i.e. the eight breaches of conditions, and the two cases of providing false information. 3. The HCCC relies on the following (submissions, par 38): 1. The breaches are repeated; 2. The first breach of eight occurred immediately after the s 150 hearing, and the breaches continued until Dr Hossain was reported by his then supervisor on 1 October 2019; 3. No clinical justification has been established for his seeing those additional patients; 4. Dr Hossain "took active steps to conceal further breaches by falsely recording the dates of three of his consultations on a day when he had seen less (sic) patients"; 5. The relevant statements were intentionally misleading; 6. "The Respondent has shown no regard for the protective nature of the conditions and… may have placed patients at risk of harm. His primary concerns were to avoid discovery of his breaches, and to attempt to mitigate their seriousness by further misrepresentations". Finding 1. We determine that the Respondent's conduct is of sufficient seriousness to justify our finding that it amounts to professional misconduct. Orders? 1. We turn, therefore, to the question of appropriate protective orders. 2. Section 3A of the National Law requires the paramount consideration for the Tribunal is the protection of the health and safety of the public, rather than the punishment of the Respondent: see Prakash, at [91], per Basten JA. 3. The caselaw in this area adds to that paramount consideration (HCCC submissions, par 43) the need to: 1. Ensure maintenance of the high standards of the profession; 2. Deter not only the practitioner involved, but others "who may stray from the appropriate standards"; and, 3. Emphasise the unacceptability of the conduct involved. 1. Both parties made both written and oral submissions. HCCC's Submissions 1. The HCCC adopts (in 2021) the finding of the July 2019 s 150 Panel (Ex A1, tab 21, p 13) that, overall, Dr Hossain lacks the "necessary standard of practice, knowledge, and understanding to ensure the public's health and safety is protected", and has since developed little insight or regard as to the reasons for the conditions, and no concern for the potential impact of their breach. 2. The behaviour that first brought Dr Hossain to the adverse notice of the authorities occurred in 2015-2016, relatively soon after he moved to Australia, and he soon incurred a serious repayment obligation to Medicare. 3. The HCCC invites the Tribunal to conclude (submissions, par 46): " … (vi) The Respondent has a pattern of conduct of noncompliance and attempts at deception of regulatory authorities. The past conduct of the Respondent, along with the recent breach of his conditions and subsequent conduct to conceal the breach with Medicare and mislead the Medical Council regarding the breaches, raise serious concern as to the Respondent's likelihood to comply with future conditions. (vii) The Respondent's performance has been found unsatisfactory by a Performance Review Panel on 29 January 2021. Conditions have been imposed on the basis of that finding. In cross-examination the Respondent showed little regard and arguably outright contempt for the opinions of the Performance Review Panel and its assessment of his Schedule 8 prescribing knowledge. He therefore lacks insight into his own clinical deficiencies. (viii) The Respondent lacked insight into his own responsibility to ensure compliance with his conditions demonstrated by his repeated references to administrative staff not ensuring he did not breach his patient numbers". 1. The HCCC written submissions continue (pars 47 and 49): "47 All of the above indicate that the Respondent is likely to pose a significant risk if allowed to continue practising. The imposition of conditions is not likely to mitigate the risk to the public because of: (i) The Respondent's past history of noncompliance with conditions; (ii) The Respondent's past history of attempted deception of regulatory authorities; and (iii) The Respondent's lack of insight into his deficiencies and personal responsibility for compliance… … 49 It is submitted that the cancellation of the Respondent's registration is the only outcome that will provide proper protection of the health and safety of the public, as well as bring home to the Respondent the seriousness of his conduct and act as a sufficient deterrent for future breaches." Respondent's Submissions 1. From his opening statement to this Tribunal at the hearing, Dr Hossain was apologetic and claimed to have learned lessons. 2. He now concedes that he was "slack" in observing the conditions imposed on his registration, in that he did not take adequate steps to ensure that he kept within the prescribed patient quota, but he denies intentionally misleading the authorities. He says he was confused and not dishonest. 3. He professes that he genuinely believed the cases involved in his exceedances of the thirty patient limit were "acute situations" or "emergency presentations", and he apologises to the authorities and this Tribunal for overstepping the limit. 4. He asserts severe financial hardship, compounded by his recent health issues, which he attributes to the stress of events culminating in the present proceedings. In this respect, we note that he has been repaying his almost $600,000 debt to Medicare at the rate of approximately $20,000 every five weeks. 5. He now admits to "major errors of judgement", and says he is "truly sorry", and he seeks credit for his continuing role as a "frontline Covid fighter", despite the potential risks the pandemic poses for him. 6. He relies upon his record as an efficient, knowledgeable, and caring GP, who has mended his ways, and apologised, after adjusting to a very unfamiliar regulatory environment. Consideration 1. We found Dr Hossain's oral evidence and his submissions unreliable and contradictory, and we are not satisfied that he has developed insight into his circumstances. 2. We, therefore, conclude that suspension is an inadequate response to his misconduct, and that we should make the protective orders sought by the HCCC. 3. If Dr Hossain were to seek re-registration in the future, we would recommend he be required to undertake an appropriate cognitive assessment. Costs 1. The HCCC seeks an order for costs under Schedule 5D clause 13 of the National Law. 2. The principles to be applied to the question of costs are well established. 3. Costs orders are compensatory, not punitive, in character, and generally "follow the event", unless there is some sort of disentitling conduct on the part of the successful party to proceedings: see, eg, Arian v Nguyen [2001] NSWCA 5, at [36]. 4. An unsuccessful party's impecuniosity "is generally no reason to deny a successful complainant a favourable costs order": see Health Care Complaints Commission v Dr Perroux (No 2) [2011] NSWMT 15, at [10]. 5. We note Dr Hossain's submissions regarding his "struggling" financial position, but we see no grounds upon which we should decline to order costs in favour of HCCC in the present case. Orders 1. Further to the Tribunal's order of 22 November 2021, pursuant to s 64 of the Civil and Administrative Tribunal Act (NSW) 2013, prohibiting disclosure of the names of persons listed in the Schedule to the Applicant's Amended Complaint dated 19 November 2021, the Tribunal now orders that: 1. The Respondent Dr MD Anwar Hossain's registration be cancelled, pursuant to s 149(c)(1)(b) of the Health Practitioner Regulation National Law (NSW); 2. The Respondent Dr MD Anwar Hossain be precluded, for a period of twelve months from the date of cancellation pursuant to Order (1), from making any application for a review of Order (1); 3. The Respondent Dr MD Anwar Hossain pays the Applicant's costs of these proceedings. ********** 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: 08 March 2022