Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Jouda [2022] NSWCATOD 56 Hearing dates: 20 April 2022 Date of orders: 31 May 2022 Decision date: 31 May 2022 Jurisdiction: Occupational Division Before: I R Coleman SC ADCJ, Principal Member Dr J Fogarty, Senior Member Dr C Newberry, Senior Member Ms S Lovorovich, General Member Decision: (1) The Tribunal finds the Respondent guilty of unsatisfactory professional conduct and professional misconduct. (2) The proceedings are to be listed for directions to fix a date for the Stage 2 hearing on a date to be appointed by the Registrar. Catchwords: PROFESSIONS AND TRADES - health care professionals- medical practitioners - where practitioner breached doctor-patient boundaries and knowingly prescribed drugs for patient which were not for patient's use - whether practitioner guilty of professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) NSWLR 630 Health Care Complaints Commission v Saab [2020] NSWCATOD 145 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 King v Health Care Complaints Commission [2011] NSWCA 353 Lucia v Health Care Complaints Commission [2011] NSWCA 99 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Quidwai v Brown [1984] 1 NSWLR 100 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dheyaa Khadim Jouda (Respondent) Representation: Counsel: I Chatterjee (Applicant) M Hutchings (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2021/00075794 Publication restriction: On 11 April 2022 an order was made prohibiting the disclosure or publication of the name of the patient referred to in the decision. REASONS FOR DECISION Introduction 1. By Amended Application filed without objection on 8 April 2022 the Health Care Complaints Commission (the Applicant) complained that Dr Dheyaa Kadhim Jouda (the Respondent) was guilty of professional misconduct pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. By his Amended Reply filed on 11 April 2022, the Respondent admitted a number of the allegations made in the Applicant's complaints, and disputed a limited number of those allegations. The Respondent disputed that, whether admitted or established, the facts alleged by the Applicant supported a finding, or findings, of professional misconduct. 3. In the circumstances, it is appropriate to record at the outset the particular complaints and the Respondent's responses to them, in order to identify the ambit of factual dispute. 4. Prior to the hearing on 20 April 2022, the Tribunal made an order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) prohibiting the disclosure of the identity of the patient of the Respondent whose relationship with the Respondent gave rise to these proceedings. That patient was, and will, uncontroversially, continue to be referred to and known only as "Patient A". Complaint 1 1. This Complaint asserted that the Respondent was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) and/or (l) of the National Law in that the practitioner has: "(i) engaged in conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practice of the profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of the profession." 1. The terms of each of the Applicant's complaints reflect the terms of the statutory provisions upon which they are based. 2. The "background to all complaints" was uncontroversially articulated in the following terms: "The practitioner was first registered as a medical practitioner in New South Wales on 29 May 2013. Between about 9 February 2017 and 7 June 2019, whilst working at the Grafton GP Super Clinic (the Clinic), Grafton, NSW, the practitioner consulted with Patient A. From late 2012, Patient A had experienced psychosis and in 2016 was diagnosed with schizophrenia. Patient A attended the Clinic for treatment by a general practitioner." 1. The particulars of the Complaint alleged that: "1 While engaged in a therapeutic relationship with Patient A, the practitioner failed to maintain appropriate professional boundaries in that he: (a) exchanged his mobile service number with Patient A; and (b) on the dates and times as set out in Schedule B to this Complaint used his mobile service to message or call Patient A on numerous occasions (and up to 50 instances on 13 March 2018) for purposes that were not clinically warranted." 1. Section 139B(1)(a) of the National Law defines "unsatisfactory professional conduct" to include "conduct significantly below reasonable standard - conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of the practitioner's professional is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". 2. Section 139B(1)(l) of the National Law refers to "other improper or unethical conduct" which is defined as "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". 3. By his Amended Reply, the Respondent admitted the particulars of Complaint 1. As the Respondent's learned Counsel clarified at the hearing, the Respondent conceded that the facts thus admitted constituted unsatisfactory professional conduct. Complaint 2 1. This Complaint asserted that the Respondent was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) and/or (l) of the National Law in that the Respondent has: "(i) engaged in conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practice of [sic] profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine." 1. The particulars of the Complaint alleged: "1 While engaged in a therapeutic relationship with Patient A, the practitioner failed to maintain appropriate professional boundaries in that he: (a) suggested at a consultation with Patient A that he and Patient A go for a drink together; (b) in 2018 inappropriately invited Patient A to dinner at his home and cooked dinner for himself and Patient A; (c) on the occasion of the dinner in 2018 at the practitioner's home: (i) drove in his car with Patient A to purchase alcohol; (ii) consumed alcohol with Patient A at his home; (iii) smoked marijuana with Patient A at his home; (iv) discussed his own, and Patient A's, sexuality with Patient A; (d) either following the dinner or on another occasion: (i) told Patient A that if he ever needed to borrow money, he could lend him money; and (ii) on one occasion lent Patient A $400. 2 Redacted. 3 By his conduct outlined in particulars 1 above the practitioner failed to comply with the Medical Board of Australia's requirements as set out [sic] "Good Medical Practice: A Code of Conduct for Doctors in Australia", 4.2.6, 4.6.1, 4.6.2, 4.6.3, 4.9.6." 1. By his Response the Respondent admitted all but the allegation (particular 1(c)(iii)), that he "smoked marijuana with Patient A at his home". The Respondent otherwise admitted the allegations particularised in support of the Complaint, and conceded that the facts thus admitted constituted unsatisfactory professional conduct. Complaint 3 1. This Complaint asserted that the Respondent was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(l) of the National Law in that the Respondent "engaged in improper or unethical conduct relating to the practice or purported practice of profession". 2. The particulars of the Complaint alleged that: "1 The practitioner asked Patient A if he could use Patient A's name to complete a prescription. 2 On 5 February 2019, in a consultation with Patient A the practitioner falsely documented that he prescribed Tenofir/Emtricitabine 300 milligrams; 200mg tablet 1 daily in circumstances where he had not prescribed that medication for Patient A. 3 The practitioner wrote that he had a medical consultation with Patient A on 7 February 2019 in which he purported that he prescribed Patient A Raltegravir 400mg tablet 1 twice a day in circumstances where there was no consultation with Patient A on that date and no such prescription to Patient A." 1. By his Reply, the Respondent admitted the facts alleged by the Applicant in support of this Complaint, and conceded that the facts thus admitted constituted unsatisfactory professional conduct. Complaint 4 1. This Complaint asserted that the Respondent was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(l) of the National Law in that he "engaged in improper or unethical conduct relating to the practice or purported practice of the profession". 2. In support of this Complaint the Applicant alleged that "between 5 February 2019 and 19 August 2019, the practitioner prepared prescriptions in the name of Patient A, in circumstances where the practitioner knew the medication prescribed was not to be used by Patient A" as set out in a table which particularised seven occasions in the period referred to in the particulars, the medication in question, the quantity or repeat of the prescription, the date upon which the prescription was dispensed, the name of the dispensing pharmacy and the city or town where the medication was dispensed. 3. By his Reply the Respondent admitted each of the particulars alleged by the Applicant in support of this complaint, and conceded that the facts thus admitted constituted unsatisfactory professional conduct. Complaint 5 1. This Complaint asserted that the Respondent was guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 2. The particulars of the Complaint alleged that: "1 On 30 July 2019 the practitioner sent a letter to the Health Care Complaints Commission in which the practitioner stated: "I have not sent text messages to [Patient A]. [Patient A] has never attended my private residence …". 2 The content of the practitioner's letter of 30 July 2019 was false in that: (a) the practitioner had sent numerous text messages to Patient A; (b) Patient A had attended the practitioner's home." 1. By his Reply to this Complaint, the Respondent admitted the facts alleged by the Applicant, and conceded that the facts thus admitted constituted unsatisfactory professional conduct. Complaint 6 1. This Complaint asserted that the Respondent was guilty of professional misconduct under s 139E of the National Law in that he had: "(i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration." 1. Section 139E(a) and 139E(b) of the National Law define "professional misconduct" in the terms pleaded by the Applicant in support of this Complaint. 2. The particulars of Complaint 6 repeated and relied "separately and cumulatively" upon the allegations relied upon in support of Complaints 1 to 5 inclusive. 3. By his Reply, the Respondent made "the same responses to Complaints 1, 2, 3, 4 and 5" as were recorded earlier in his Reply. 4. In view of the Respondent's replies to the particulars of the Applicant's, the only disputed issue of fact is whether, as the Applicant alleges, on an occasion in 2018 at the Respondent's home the Respondent smoked marijuana with Patient A. 5. The Tribunal understands the Respondent to admit unsatisfactory professional conduct as alleged pursuant to each of Complaints 1 to 5 of the Amended Application, but to dispute that, individually or cumulatively, the conduct upon which the Applicant relies, as admitted or established, constitutes professional misconduct. The hearing of the proceedings 1. The Applicant relied upon two volumes of documents appearing behind 54 tabs, which became Exhibit HCCC 1. At the commencement of the hearing, and by agreement between Counsel for the parties, the statements of Patient A appearing behind Tabs 5 and 6a of Exhibit HCCC 1 were replaced by redacted copies of each of those statements. The Tribunal has not viewed the video footage of Patient A which was said to be contained behind Tab 6 of HCCC 1. Patent A was not required for cross-examination on his redacted statements. 2. Consistently with the redaction of parts of Patient A's statements and the abandonment of parts of the Applicant's Complaints, the Tribunal has declined to read paragraphs 6 and 7 of the expert report of Dr Delma Mullins of 22 May 2020, which is found behind Tab 12 of HCCC 1. Dr Mullins was not required for cross-examination on her report of 22 May 2020. 3. To the extent that the Respondent's admissions with respect to the Complaints against him of themselves could not comfortably satisfy the Tribunal that it was appropriate to record findings of unsatisfactory professional conduct with respect to Complaints 1 to 5 of the Applicant's Amended Application, the admissions of primary fact made on behalf of the Respondent provide ample factual underpinning for Dr Mullins' opinion that, in each instance, the conduct of the Respondent complained of, and admitted, was "significantly below what is reasonably expected and invites my strong criticism". 4. Dr Mullins was clearly satisfied the conduct of the Respondent, if established, constituted unsatisfactory professional conduct, as it demonstrated that the judgement possessed, or care exercised, by the practitioner in the practice of the profession was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or was improper or unethical conduct relating to the practice or purported practice of medicine in accordance with s19B(1)(a) and s 139B(1)(l) respectively of the National Law. 5. The Respondent relied upon documents contained in a volume which became Exhibit R1, which comprised his Reply to the Applicant's Amended Complaint, and a statement of the Respondent dated 2 February 2022. The Tribunal also had before it an Affidavit of the Respondent sworn on 29 August 2021, the contents of which do not relate to present matters. 6. Counsel for the Applicant provided comprehensive and helpful written submissions on 11 April 2022. Counsel for the Respondent provided comprehensive and helpful written submissions on 10 April 2022. 7. The Respondent was apparently not in Australia during the hearing of the proceedings, which were uncontroversially heard by audio visual link. The Tribunal was informed that the Respondent had been provided with, and was endeavouring to utilise, a link to the hearing. It appears unlikely that the Respondent was able to listen to the hearing. Ideally, having regard to the significance of the proceedings for the Respondent, he would have been at least able to listen to the proceedings. The Tribunal is comforted by the reality that the Respondent was represented by very experienced and competent Counsel and a leading firm of solicitors in this jurisdiction, who were content for the case to be heard without the Respondent participating, or, presumably, being able to readily provide instructions. 8. The hearing of the proceedings, was by agreement by Counsel, limited to determining whether the Respondent was guilty of professional misconduct, as the Applicant contended, or, as the Respondent contended, guilty of unsatisfactory conduct which, individually or cumulatively, was not of sufficient seriousness to justify a finding of professional misconduct. That approach is consistent with authority and, in circumstances where the Respondent would have been unable to actively participate in a Stage 2 hearing, had there been a single hearing, entirely appropriate in the Tribunal's view (Sudath v Health Care Complaints Commission [2012] NSWCA 171, Lucia v Health Care Complaints Commission [2011] NSWCA 99; King v Health Care Complaints Commission [2011] NSWCA 353). Background facts 1. The Respondent was born on 26 May 1973 and is thus aged 48 years. The Respondent completed his medical studies at the University of Baghdad in 1997 and was first registered in New South Wales in 2014. The Respondent had been permanently resident in Australia since December 2011. 2. On 3 July 2019, following a notification to the Australian Health Profession Regulation Agency (AHPRA) following upon a complaint by Patient A, the Respondent's registration was suspended by the Medical Council of New South Wales pursuant to s 150 of the National Law on 19 August 2019. The Respondent did not appeal against the suspension decision. His registration expired on 31 October 2019 and has not been renewed since that date. 3. Patient A was born on 19 August 1994 and is now 27 years of age. In his statement of 9 March 2020 (HCCC 1, Tab 5) Patient A set out the circumstances in which he came to be a patient of the Respondent, and his relationship with him thereafter. In his statement of 20 May 2021 (HCCC 1, Tab 6a) Patient A recorded that he had been diagnosed with schizophrenia prior to his first consultation with the Respondent. The Respondent first saw Patient A on 9 October 2017 (HCCC 1, Tab 34, p6). 4. Patient A stated (6) that when he commenced to see the Respondent he was "taking Olanzapine or other relevant medication for my schizophrenia". Patient A alleged (10) that "across several appointments, not just one consultation" the Respondent said to him words to the effect of "We should go for a drink sometime", the first occasion when that occurred being in the "latter half of 2017 or maybe early 2018". Patient A said that when the Respondent asked him this "typically" he "went along with it" and was "just being agreeable" with the Respondent. Patient A stated (11) that the Respondent had told him that he came from Afghanistan, had no friends, and was "lonely" and that he remembered "feeling sorry" for the Respondent. 5. Patient A stated that the Respondent gave him his phone number, but that he had "never asked" for the Respondent's phone number, and that the Respondent "asked for mine" (12). Patient A stated (13) that, at the time he gave the Respondent his phone number he "didn't think much of it", and said "I wanted to be agreeable, and I trusted him as an authority figure and as my doctor. I didn't see any harm in giving him my number". 6. After detailing communications from the Respondent to him (15) "through the SMS service on the phone", "the general gist" of which was "small talk and never about health", Patient A said that the Respondent was contacting him "several times a week". 7. Patient A referred (17-18) to feeling "sorry" for the Respondent, who told him "around mid-2018" that his father had died, and to thinking that the Respondent "may need company at this time". In those circumstances, Patient A accepted one of the Respondent's offers to see him "personally outside of the medical centre". Patient A stated (20) that the Respondent had "asked me over for dinner more than once", the first occasion, he believed, being in early 2018. The first time when Patient A accepted the Respondent's invitation was in late 2018, after the Respondent told Patient A that his father had died, and he "agreed to have dinner with him". 8. Patient A reiterated (24) that the statements made by him that he "did not imagine" the events referred to at paragraphs 12 to 21 of his statement of 9 March 2020 were, and remained true. Much of paragraph 18, and all of paragraphs 19 and 20, of that statement were redacted at the commencement of the hearing of these proceedings, and we have thus had no regard to them. Properly, no inference adverse to Patient A was suggested to arise from the redactions. 9. In the remaining paragraphs of Patient A's first statement, he described in some detail, the Respondent's home, and the meal which the Respondent prepared for him. Patient A referred to the Respondent driving to "Dan Murphy's" and purchasing "some scotch, an expensive brand, Glenfiddich" in a "green bottle", and returning to the Respondent's home where the pair "started to drink the scotch". 10. Patient A alleged (17) that, after dinner, whilst sitting in a covered area at the rear of the Respondent's home, the Respondent said to him "You smoke weed?" to which he replied "sure". Patient A alleged that the Respondent then "went and came back with chat bud (bad quality marijuana). He got me to roll a few joints and we both sat and smoked it. I think we had two joints between us." 11. Patient A alleged (18) in his first statement that the Respondent "started to talk about gay stuff. He was like asking me if I had ever had any gay experiences". Patient A stated that he had responded that, once a "guy tried kissing me and that was it. I didn't like it". The Respondent then stated "I am gay". Patient A stated (21) that he wanted to go home, but had had too much to drink, and ended up sleeping on the lounge at the Respondent's home before leaving the next morning, but unsure whether he briefly saw the Respondent that morning. 12. In his second statement, having reiterated his statement with respect to the events of the night he attended the Respondent's home for dinner and consumed marijuana, Patient A said (25) "I trusted that as my doctor he would not harm me". 13. Patient A also stated (27) that he recalled "During a consult in early 2019 Dr Jouda showed me a script and asked me to sign it. I do not recall if the script was blank or whether it had been filled in. I signed the script as he asked. I did not think anything of it at the time. It was just this one signature this one time". 14. Patient A referred (28-29) to the various prescriptions written in his name by the Respondent which were particularised in Complaint 4, and stated (33) that he was never in any of the places on the dates when prescriptions written in his name by the Respondent were dispensed. 15. In his statement (Exhibit R1, Tab 1, second page, third dot point), the Respondent explained why he was not in attendance at the s 150 hearing which resulted in his suspension and stated (dot point 4): "The shock, disappointment, frustration and depression I had was very severe. I returned to Australia as planned, and made an application to the Medical Council to review the conditions but in the meantime AHPRA informed me that my registration had lapsed. The Council could not review the conditions because I was not registered. I have not been registered and not worked since December 19." 1. After setting out further matters with respect to his personal circumstances, under the heading "Patient A", the Respondent set out (at page 4 and following) his version of the relationship. The Respondent stated (page 4, dot point 6) that Patient A was "diagnosed with psychotic schizophrenia with multiple substance abuse", and that his condition "wasn't well controlled by antipsychotic medications". He further stated that Patient A had "several relapses during that time" which, from earlier parts of his statement, is a reference to the time during which the Respondent was Patient A's usual medical practitioner. 2. The Respondent referred to an occasion when he treated Patient A for "lacerated wounds in his face due to fight with twos [sic] guys at the pub in a different State when he was visiting". The Respondent further stated that Patient A was "up and down, and could be struggling with life because of his medical and financial hardship. At other times he was doing okay". 3. Significantly for present purposes, in relation to the night when Patient A attended his home and had dinner, the Respondent did not engage with Patient A's allegations with respect to the consumption of marijuana. In all other respects, the Respondent's statement was essentially consistent with Patient A's version of events. 4. When the Tribunal raised this apparent absence of denial, or dispute, with him during the hearing, learned Counsel for the Respondent, very properly in the Tribunal's view, acknowledged that it would be "open" to the Tribunal to make the finding of fact urged on behalf of the Applicant with respect to the consumption of marijuana on the night Patient A had dinner at the Respondent's home in the circumstances. As is clear from the terms of particular 1(c)(iii) of Complaint 2, no part of the Applicant's case involves a finding that the Respondent supplied the marijuana which was smoked on that evening. 5. In the circumstances, it is unnecessary to say more about the sole disputed issue of fact in the proceedings. The Tribunal is comfortably satisfied by the evidence, and the Respondent's silence, reinforced by the concession, properly made, of learned Counsel for the Respondent, that the Respondent smoked marijuana with Patient A at his home on an occasion in 2018. 6. In relation to "prescriptions", the Respondent admitted Patient A's version of events and (R1, page 6, dot point 1) that he "took advantage of the friendship and took the opportunity for prescriptions" and agreed that he had "exploited our friendship by asking him to do a favour for me". The Respondent then stated (page 6, dot point 2): "The reason why I needed this medicine then is that I had relations with another person, and there is no sexual health clinic in Grafton which could prescribe in a confidential way. I did not feel I could ask any other local doctor. It seemed the easiest way to obtain the medication privately, and I knew it was wrong, that is why when I moved to Brisbane, I started seeing a sexual health doctor for regular check ups and prophylactic treatment. I should always have done this but I did not and I do not have any excuse for using my patient in that way and I am sorry and apologise to him." 1. The expert evidence of Dr Mullins (HCCC 1 Tab 12, p7) records that the prescription for Raltegravir is a medication which "in combination with other antiretroviral agents is indicated for the treatment of human immunodeficiency virus (HIVB-1) infection in adults" and that "Tenofovir/Emtricitabine is effective in reducing the incidence of HIV when taken as pre-exposure prophylaxis, as well as indicated for use as part of combination therapy for HIV". Consideration 1. It is not in doubt that the Applicant bears the onus of proof in these proceedings, and must prove the factual content of its allegations on the balance of probabilities, whether that level of proof has been achieved being assessed having regard to all the relevant evidence before the Tribunal (Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at 52). 2. The principles identified in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 apply, that is, the Tribunal must be mindful of the nature and seriousness of the allegation to be proved with the result that the Tribunal must be "comfortably satisfied" or feel an "actual persuasion" that the allegations of the Applicant are made out on the balance of probabilities. 3. Notwithstanding the admissions made by the Respondent with respect to all but one of the allegations of fact levelled against him, the Tribunal has carefully evaluated the evidence which has been identified earlier in these reasons. In all the circumstances, the Tribunal is comfortably satisfied that the allegations of fact which underpin each of Complaints 1 to 5 in the Applicant's Amended Application are established. It is then necessary to consider what is the major, and probably sole controversy of substance in the proceedings, that being whether the unsatisfactory professional conduct of the Respondent constitutes professional misconduct. Whether the Respondent is guilty of unsatisfactory professional conduct 1. The term "unsatisfactory professional conduct" is defined in s 139B of the National Law as, relevantly for present purposes: "(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following- (a) conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; (l) any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession." 1. Learned Counsel for the Applicant submitted that the terms "improper" and "unethical" conduct are not defined in the National Law and should be given their ordinary meaning in the context in which they appear in the legislation (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355). The Tribunal agrees with that contention. 2. The Applicant relied upon the unchallenged expert opinion evidence of Dr Mullins (HCCC 1, Tab 12) in support of its contention that the Tribunal could be comfortably satisfied that the conduct of the Respondent alleged by it, and found established by the Tribunal, constituted unsatisfactory professional conduct. 3. Learned Counsel for the Respondent was necessarily constrained in the submissions which he could make with respect to his client's asserted unsatisfactory professional conduct in view of the factual matters which the Respondent admitted, or, with respect to the consumption of marijuana, did not effectively dispute. 4. Counsel for the Respondent referred (13) the Tribunal to the decision in Health Care Complaints Commission v Saab [2020] NSWCATOD 145, at [650] where the Tribunal endorsed what had previously been said in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 with respect to the evidentiary requirements for a finding of unsatisfactory professional conduct. 5. The Tribunal said in Amalakumar ([25] [26]): "[25] Determining whether the "knowledge, skill or judgement" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such. [26] In disciplinary proceedings in relation to s139B(1)(l) of the National Law, the determination of the question as to whether "any other improper or unethical conduct relating to the practice … of the practitioner's profession" has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct." 1. The Tribunal is comfortably satisfied that the conduct complained of by the Applicant, and found to have been established to the requisite standard of proof, satisfies the statutory requirements for finding unsatisfactory professional conduct. The unchallenged opinion evidence of Dr Mullins provides an abundant evidentiary foundation for finding that the conduct of the Respondent fell substantially below "the proper standards". The findings of primary fact recorded earlier in these reasons provide an ample foundation for Dr Mullins' opinions (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705). 2. The Respondent's "phone contact" with Patient A (Complaint 1) was considered by Dr Mullins to be "contrary to the practice of maintaining professional boundaries", particularly in circumstances where there was "no information in the medical records of consultations provided that would justify an exception to this requirement". Dr Mullins said of the Respondent's conduct in text messaging Patient A during the course of a therapeutic relationship that Patient that A's medical records did not reveal any "urgent medical care" which required a need for the Respondent to contact him, and that the frequency of such contact was excessive, with 33 messages on 11 March 2018 and 49 messages on 13 March 2018 (HCCC 1, Tab12, p3-4). 3. Dr Mullins suggested that "With the power imbalance, inherent with the Doctor patient relationship and with (Patient A) undergoing psychological treatment, there is a risk of significant harm to the patient", and that although the content of the messages was unable to be accessed, the frequency of contact in itself has the potential of harm to the patient. Essentially for those reasons, Dr Mullins was of the opinion that the Respondent's conduct breached s 139B(1)(a) and (l) of the National Law. 4. With respect to Complaint 2 (HCCC 1, Tab 12, p5), and remembering that, by reason of the redactions in Patient A's 2020 and 2021 statements, the foundation for some of Dr Mullins' opinions dissolved, Dr Mullins considered that "professional boundaries are not maintained when Dr Jouda is encouraging social contact, with inviting [Patient A] to "go for a drink sometime", inviting Patient A to his house for dinner being a "specific encouragement of social interaction" by which the Respondent "is pursuing a relationship, and acting contrary to the professional boundaries". That opinion is in no way dependent upon any matter alleged in Patient A's original statements, upon which Dr Mullins relied, which was redacted. 5. With respect to the provision of alcohol (the alleged provision to Patient A of cannabis having been withdrawn) Dr Mullins recorded, accurately, that the Respondent was aware of Patient A's medical and psychiatric history at the time, and was specifically aware of Patient A's "psychiatric illness of drug induced psychosis and schizophrenia for which he continues to require medication" (HCCC 1, Tab 12, p5). 6. Dr Mullins referred to the Respondent's referral letter to a psychologist on 17 January 2019, in which the Respondent stated that Patient A's "psychotic episodes are always triggered by alcohol and drugs, such as cocaine, MDAN, and cannabis". Dr Mullins observed that "both alcohol and cannabis have the potential to cause significant medical and psychiatric illness, particularly with [Patient A's] conditions and consequence vulnerability". For those reasons Dr Mullins was satisfied that the Respondent's conduct fell significantly below the requisite standard. We accept that opinion evidence and the basis of it. 7. With respect to Complaints 3 and 4, which involved the Respondent using Patient A's name to complete prescriptions, the factual allegations in support of which the Respondent has not denied and which are amply evidenced in any event, Dr Mullins stated (HCCC 1, Tab 12, p6) that "Writing a false prescription is not ethical or honest, and contrary to the expected code" of practice. 8. We earlier referred to the relevant parts of Dr Mullins' expert report in relation to these issues. For the reasons there stated by Dr Mullins, we are comfortably satisfied that the conduct of the Respondent identified in Complaints 3 and 4 constitutes unsatisfactory professional conduct. 9. The Respondent admitted Complaint 5, which involves untruthful statements to the Applicant on 30 July 2019. As Dr Mullins recorded (HCCC 1, Tab 12, p3), as recently as 11 days before writing that letter, the Respondent left messages on Patient A's telephone. The conduct of the Respondent, which he admits, in our view comfortably satisfies the requirements for a finding of unsatisfactory professional conduct, and was conduct which was incompatible with the standards expected of a medical practitioner, and particularly so with a patient in Patient A's circumstances. 10. Under the heading "Any other comments" (HCCC 1, Tab 12, p 9) with respect to the Respondent's "conduct towards and/or care and treatment" of Patient A which she considered relevant, Dr Mullins referred to the fact that Patient A was "suffering from a mental illness and needs good medical care from his GP", had a "history of drug induced psychosis in 2014", that the Respondent's own consultation notes of 6 February 2018 recorded that the "main issue is anxiety attacks", and that Patient A "has suicidal thoughts but keeps ignoring them". Significantly, the Respondent recorded, in consultation notes on 21 August 2018 and 17 January 2019 the deterioration of Patient A's mental state being triggered by the use of excess alcohol and cannabis. Dr Mullins also referred to the fact that Patient A "was also identified as heterosexual in his patient summary" and "significantly younger than Dr Jouda, being 21 years his senior". 11. The evidence establishes that the Respondent was in a position of trust with respect to Patient A, a person he knew to be vulnerable, and abused that trust in the various ways revealed by the evidence before the Tribunal. In all the circumstances, we are comfortably satisfied that the facts admitted and/or established to the requisite standard constitute unsatisfactory professional conduct pursuant to Complaints 1 to 5 of the Applicant's Amended Application. Whether the Respondent is guilty of professional misconduct 1. Section 139E of the National Law contains a definition of "professional misconduct" and provides: "139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration." 1. The Applicant submitted that the Tribunal would be comfortably satisfied that the proven unsatisfactory professional conduct of the Respondent would satisfy the Tribunal to the requisite standard that the Respondent was guilty of professional misconduct. In support of that submission, the Applicant relied upon authority, including Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. 2. In Health Care Complaints Commission v Litchfield (1997) NSWLR 630 at [638] the Court of Appeal said that the "gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal". There is no suggestion that Dr Mullins' opinions were not informed by the "proper standards". 3. The Applicant submitted (31-34) that each of Complaints 2, 3 and 4 was "objectively serious enough" to constitute professional misconduct. In support of that contention the Applicant referred to the circumstances surrounding what necessarily became, on the evidence which was ultimately presented to the Tribunal at the hearing, "condoning" marijuana use by, and supplying to and condoning the consumption of excessive quantities of alcohol by his vulnerable patient, in view of the Respondent's undoubted knowledge at that time of Patient A's medical and psychiatric history, his current issues, and the potential exacerbation of the health of Patient A if he were to consume alcohol to excess, or consume cannabis. 4. The Applicant submitted (33) that Patient A was "plainly vulnerable" for the various reasons asserted by the Applicant and recorded by Dr Mullins in her expert report. The evidence amply supports so finding, and finding that the Respondent knew that at all relevant times. 5. With respect to Complaints 3 and 4, which related to falsely documenting attendances with Patient A and obtaining prescriptions for his own use in the name of Patient A, the Applicant submitted (35) that the Respondent's conduct was a "plain abuse" of his "privileges as a prescribing doctor and grossly unethical". It was further submitted, significantly in our view, that the conduct of the Respondent "resulted in false information in [Patient A's] medical history that might have resulted in prejudice and stigma, and could have affected future treatment to him". 6. Learned Counsel for the Respondent referred the Tribunal to the Judgment of Basten JA at [19] [20] in Chen v Health Care Complaints Commission [2017] NSWCA 186 in which His Honour said: "[19] The term "professional misconduct" does not have a specific meaning, it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience … and … any other improper or unethical conduct relating to the practice of the practitioner's profession. [20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgement made by the Tribunal." 1. Counsel also relied upon the statement by Priestley JA in Quidwai v Brown [1984] 1 NSWLR 100 at [105] that, to constitute professional misconduct, the conduct the subject of the complaint must be of such a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence. Although pre-dating the commencement of the National Law, and the definitions within it by reference to which the Respondent's conduct falls to be evaluated, his Honour's judgment is instructive with respect to the expression "significantly below the standard reasonably expected" in s 139B(1)(a), and the expression "improper or unethical conduct relating to the practice of medicine" in s 139B(1)(l) of the National Law. 2. Not insignificantly, and consistently with her expert report with respect to each of Complaints 1 to 5, Dr Mullins recorded not only that the conduct of the Respondent was significantly below what was reasonably expected, enlivening s 139B(1)(a), but additionally, "invites my strong criticism" as "improper or unethical" conduct enlivening s 139B(1)(l) of the National Law. There is, properly, no suggestion that Dr Mullins is other than a medical practitioner of good repute and competence. 3. We are comfortably satisfied that Complaints 2, 3 and 4 "standing on their own" are objectively sufficiently serious to constitute professional misconduct. 4. The nature and extent of the breach of boundary issues, with a vulnerable patient, in circumstances involving significant power imbalances and serious breaches of trust, emerging with respect to Complaint 2, in our view elevate the Respondent's unsatisfactory professional conduct to the level required to constitute professional misconduct. 5. Complaints 3 and 4 involve conscious, dishonest and deceptive conduct which, as Dr Mullins observed, and the Applicant submitted, was not only a gross violation of the Respondent's privileged position as a medical practitioner, but may have adverse consequences for Patient A. We are comfortably satisfied that "standing on their own" the evidence justifies finding the Respondent guilty of professional misconduct pursuant to Complaints 3 and 4. 6. If we are wrong in finding professional misconduct with respect to Complaints 2, 3 and 4 "standing on their own", we are comfortably satisfied that, cumulatively, the conduct of the Respondent which has been established pursuant to Complaints 1 to 5 is sufficiently serious to justify finding the Respondent guilty of professional misconduct. Conclusion 1. For the reasons we have recorded, the Tribunal is comfortably satisfied that the Respondent is guilty of professional misconduct. Orders 1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct and professional misconduct. 2. The proceedings are to be listed for directions to fix a date for the Stage 2 hearing on a date to be appointed by the Registrar. ********** 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: 31 May 2022