Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Jamnagarwalla (No 2) [2023] NSWCATOD 1 Hearing dates: 24 November 2022 Date of orders: 9 January 2023 Decision date: 09 January 2023 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr J Aitken, Senior Member Dr G Albert, Senior Member Honorary Associate Prof P Macneill, General Member Decision: (1) Dr Jamnagarwalla's registration as a medical practitioner is cancelled. (2) Dr Jamnagarwalla may not apply for review of Order 1 under Division 8 of the Health Practitioner Regulation National Law for one year from the date of this decision. (3) Dr Jamnagarwalla's application for a non-publication order is refused. (4) Dr Jamnagarwalla is to pay the costs of the Health Care Complaints Commission as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: HEALTH – Professional registration and discipline –appropriate orders following findings of professional misconduct - non-publication orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Health Practitioner Regulation (New South Wales) Regulation 2016 Health Care Complaints Act 1993 (NSW) Legal Profession Uniform Application Act 2014 (NSW) Cases Cited: Arian v Nguyen [2001] NSWCA 5 Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 HCCC v Simring (Suppression Order) [2010] NSWMT 6 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr A [2012] NSWMT 10 Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120 Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 Health Care Complaints Commission v Gorrell (No 2) [2022] NSWCATOD 62 Health Care Complaints Commission v Jamnagarwalla [2021] NSWCATOD 149 Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Lee v Health Care Complaints Commission [2012] NSWCA 80 NSW Medical Board v Dinakar [2009] NSWMT 8 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Re Dr Than Le, unreported, NSWMT, 20 September 2001 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Texts Cited: Good Medical Practice, A Code of Conduct for Doctors in Australia, July 2009 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Mustafa Jamnagarwalla (Respondent) Representation: Counsel: M Windsor SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law Pty Ltd (Respondent) File Number(s): 2020/00079966 2021/00019531 2021/00181671 Publication restriction: In proceedings 2020/00079966, under s 64 of the Civil and Administrative Tribunal Act 2013, publication of the names of the patients listed in the Schedule to the Complaint is prohibited. In proceedings 2021/00019531, under s 64 of the Civil and Administrative Tribunal Act 2013, publication of the names of the patients listed in the Schedule to the Complaint is prohibited. In proceedings 2021/00181671, under s 64 of the Civil and Administrative Tribunal Act 2013, publication of the names of the patients listed in the Schedule to the Complaint is prohibited. In each of the proceedings, under s 64 of the Civil and Administrative Tribunal Act 2013, publication of the names of the patients listed in Exhibit A8, Notice to Produce Documents under Section 34A(1)(b) of the Health Care Complaints Act 1993 is prohibited. REASONS FOR DECISION Overview 1. After the first stage of these proceedings, we found that Dr Jamnagarwalla had engaged in professional misconduct and unsatisfactory professional conduct. In this second stage we need to decide what orders to make. The Commission submits that we should cancel Dr Jamnagarwalla's registration for between one and two years. Dr Jamnagarwalla urges us to impose conditions on his registration as a medical practitioner including that he not treat female patients. When deciding what orders to make, the protection of the health and safety of the public must be our paramount consideration: Health Practitioner Regulation National Law, s 3A. 2. Dr Jamnagarwalla's professional misconduct falls into three categories. Sexual misconduct, breaching the condition that he only treat female patients and not keeping adequate medical records. For each of these kinds of conduct we have made findings about their seriousness, the degree to which Dr Jamnagarwalla is remorseful or has insight, the extent and effectiveness of any relevant training he has undertaken and his overall character including his honesty. These factors are relevant to the orders we should make. 3. Having made those findings, we have decided to cancel Dr Jamnagarwalla's registration for one year. After that time, Dr Jamnagarwalla may apply to the Tribunal for a review of that order. 4. We will summarise our findings following the Stage 1 hearing and then summarise Dr Jamnagarwalla's personal and employment situation. After setting out the legal principles for determining the orders we should make, we will consider the evidence. When deciding what orders to make relevant factors include the seriousness of the professional misconduct, any insight Dr Jamnagarwalla has demonstrated, the training he has undertaken and his overall character. Tribunal's Stage 1 findings of professional misconduct 1. Our findings are set out in detail in the Stage 1 decision: Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61. In summary, we found that Dr Jamnagarwalla had engaged in the following conduct which, individually, was sufficiently serious to justify suspension or cancellation of his registration. 1. he placed his hand on Patient A's bare upper thigh about 12cm from her vagina; Stage 1 decision at [118] 2. he contravened a condition to which his registration was subject by consulting and/or treating 29 female patients: Stage 1 decision at [284] and [285] 3. he breached the record keeping regulations by keeping no records, or insufficient records, for 21 female patients: Stage 1 decision at [289] and [290]. 1. The sexual misconduct occurred on 29 November 2018 during a consultation with a 12-year-old girl (Patient A). The girl was with her female cousin, Person A, who was 17 years old. When seated in front of the 12-year-old, and examining her ears with an instrument, Dr Jamnagarwalla placed his left hand on her bare right upper thigh and brushed his left hand down her right leg. We found that conduct to amount to inappropriate behaviour of a sexual nature and to constitute professional misconduct. 2. We also found that Dr Jamnagarwalla breached the condition on his registration that he not treat female patients. The Medical Council imposed that condition two months after the consultation with Patient A. From 24 January 2019 to October 2019, Dr Jamnagarwalla admits that he breached that condition by treating 29 female patients on 33 occasions. He said he was uncertain about the scope of the condition and believed at that time that he could, for example, write prescriptions for female patients if he did not physically examine them. We found that Dr Jamnagarwalla knew what this condition required of him but deliberately attempted to circumvent it. We found that that conduct amounts to professional misconduct. 3. The third category of professional misconduct was Dr Jamnagarwalla's poor record keeping. We found that Dr Jamnagarwalla deliberately failed to record essential information in patients' clinical notes. He did so to give the impression that he had not consulted female patients. We found that conduct to amount to professional misconduct. 4. The Tribunal also found that Dr Jamnagarwalla had engaged in the following unsatisfactory professional conduct: 1. he inappropriately stared at the bare legs of Patient A and Person A and attempted to look up Person A's skirt: Stage 1 decision at [49]; 2. he provided a false medical certificate for a female patient: Stage 1 decision at [239]; and 3. he provided a letter to the Medical Council falsely asserting that eight female patients were male: Stage 1 decision at [246]. Employment and personal circumstances 1. Dr Jamnagarwalla is currently working at the Granville Family Medical Centre on Mondays to Thursdays from 10am to 6pm and on Sundays from 9am to 5pm. He says that on average he sees around two to three patients an hour and occasionally up to four patients an hour. He conducts around 10 telehealth consultations and around 10-15 face to face consultations a day. In addition to Dr Jamnagarwalla, there are two full time equivalent general practitioners working in the practice. There is always at least one other doctor and a registered nurse working whenever he is there. 2. Dr Frederick Leung is one of the principals of the Granville practice. Dr Leung is impressed that patients trust Dr Jamnagarwalla and have re-booked with him. While he has not sat in on any consultations, he has received positive feedback from patients. Dr Leung is hoping that he will be able to continue working at Granville in the long term. Dr Jamnagarwalla says he enjoys working as a general practitioner and would like to continue to do so. 3. Dr Jamnagarwalla's wife and three of his four children live with him at home. One child has various disabilities which require specialist medical treatment and extra support at school. Dr Jamnagarwalla is the only income earner for the family. He regularly sees a GP and his physical health is generally good. Legal principles 1. Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a). The law also provides that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality": National Law, s 3(3)(c). 2. The Court of Appeal has decided that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm. That protection includes deterring all doctors from engaging in similar misconduct and upholding public confidence in the standards of the medical profession: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher JA (Basten JA and Emmett JA agreeing). 3. Dr Jamnagarwalla submits that we should take into account three other matters. The first is the opinion of Dr Craig Lilienthal, an expert witness in the Stage 1 proceedings, about the orders we should make. However, it is not the role of an expert witness to express a view as to what kind of protective orders the Tribunal should make. In any case, Dr Lilienthal only had the information provided to him by Dr Jamnagarwalla's solicitors. He had no information about the ways in which Dr Jamnagarwalla had breached the condition on his registration not to treat female patients. We have not taken his opinion into account in these proceedings. 4. Nor, as urged by Dr Jamnagarwalla, have we decided to follow or take into account the 2 December 2020 decision of the Medical Council in proceedings under s 150C of the National Law. That panel did not hear the evidence that the Tribunal heard in the Stage 1 or the Stage 2 proceedings and was applying a different legal test. 5. Thirdly, we have not given significant weight to Dr Jamnagarwalla's financial situation, his performance at the Granville practice or that, with conditions, he can provide a "limited service to the community" by seeing male patients. These matters are only marginally relevant. Our main focus is the protection of the health and safety of the public. Conduct of a sexual nature Seriousness of conduct 1. The Tribunal found that Dr Jamnagarwalla put his hand on Patient A's upper thigh, about 12 cm from her vagina, for up to eight seconds with no clinical or other innocent reason for doing so, and brushed his hand down her leg. That conduct made Patient A feel extremely uncomfortable, intimidated, and scared and she cried when they left the medical centre. Patient A and Person A were extremely vulnerable because of their age and because they were on their own. 2. The Code of Conduct for doctors provides, that a good doctor-patient partnership requires high standards of professional conduct. This involves: "Recognising that there is a power imbalance in the doctor–patient relationship, and not exploiting patients physically, emotionally, sexually or financially" (Good Medical Practice, A Code of Conduct for Doctors in Australia, July 2009 at 3.2.6. 1. Patients place their trust in doctors and have a right to expect that examinations and treatment will only be undertaken in their best interests. 2. The Court of Appeal (Gleeson CJ, Meagher JA and Handley JA) provided guidance on how to measure the gravity of professional misconduct in Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638. The gravity of professional misconduct is not to be measured by reference to the worst cases, but the extent to which it departs from the proper standards. . . . Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors and which right thinking members of the profession observe, and expect their colleagues to observe. 1. In the Stage 1 proceedings we accepted expert evidence about the seriousness of Dr Jamnagarwalla's misconduct and found that it was "inappropriate behaviour of a sexual nature". We found that breaching sexual boundaries is always unethical and usually harmful. Sexually touching a 12-year-old girl is extremely serious. The departure from the relevant standard is significant. Degree of insight 1. Dr Jamnagarwalla provided a statement dated 10 October 2022 but chose not to make himself available for cross-examination during the Stage 2 proceedings. We draw no adverse inference from that decision, but the fact that his evidence is untested affects the weight we can give it. 2. At the Stage 1 hearing, Dr Jamnagarwalla said he does not recall any details of the consultation and denied that he engaged in any of the alleged conduct. Dr Jamnagarwalla said to Dr Leung, one of the principals at the Granville practice where he now works, that he could not remember what happened during the consultation and that it was "up to the court to decide". 3. In the Stage 2 proceedings he acknowledges the Tribunal's finding that he placed his hand on Patient A's bare upper thigh and says he is "very sorry Patient A was distressed about her consultation with me and that she felt so uncomfortable about my conduct during the consultation". Remorse for how Patient A felt is a positive sign but has little weight when assessing whether Dr Jamnagarwalla will repeat the conduct. 4. Several of Dr Jamnagarwalla's referees said that Dr Jamnagarwalla was remorseful, but none was specific about the precise behaviour Dr Jamnagarwalla regretted. 5. In 2015, a complaint was made that Dr Jamnagarwalla inappropriately touched an 8-year old girl during a consultation. On 15 January 2015, a condition was imposed on Dr Jamnagarwalla's registration that he not consult, treat, interview or examine any female patient unless a Council approved female chaperone is continuously present. The chaperone condition was removed on 24 November 2015. In 2017 a female patient alleged that Dr Jamnagarwalla made sexually harassing comments to her during a consultation. 6. Neither of those complaints is proven and we make no factual findings about them. However, they are relevant because they make it clear that Dr Jamnagarwalla was on notice of allegations of sexual misconduct and was subjected to a chaperone condition: Health Care Complaints Commission v Gorrell (No 2) [2022] NSWCATOD 62 at [40]. In those circumstances, he must have been acutely aware of the need to maintain appropriate sexual boundaries. Despite that awareness, he crossed those boundaries with Patient A and Person A in 2018. Extent of training 1. On 13 June 2019, seven months after the consultation with Patient A, Dr Jamnagarwalla completed a course with the title "Managing boundary issues for patients with mental health issues". On 29 October 2019, he completed an Avant online training with the title "Chaperones – intimate examinations and cultural sensitivities". 2. The most significant training Dr Jamnagarwalla has undertaken on crossing sexual boundaries took place in October and November 2022. He has completed an individually tailored 10-hour course on "Professional boundaries with a focus on sexual boundaries and misconduct". He says he now has a better understanding of professional boundaries between doctors and patients. He says he understands that "trust is the pillar of any good therapeutic relationship" and any "breach of . . . professional boundary, may be damaging to the patient, possibly causing long term or even permanent psychological harm and trauma". Dr Jamnagarwalla listed some strategies to minimise the risk of boundary violations. 3. The co-ordinator of the course gave the following assessment: I assess that Mustaffa has successfully completed this education on professional boundaries with a specific focus on sexual boundaries and misconduct with me. I assess that the learning he had gained from completing the internet tool in November 2019 has been deepened and extended through this specific education plan. Mustaffa has been reflective of his practice at the time of complaint and since. He has put strategies in place to ensure his professional boundaries are maintained with all patients. 1. This training was comprehensive and relatively intensive. Overall character and honesty 1. Dr Jamnagarwalla provided five character references, four from doctors at the Rouse Hill practice where he worked for over ten years and one from a doctor in the Granville practice where he has been working for a couple of months. Each referee was given a copy of the Tribunal's Stage 1 decision and said that they had read it. 2. Dr Praveen Devineni is the Medical Director at the Rouse Hill practice. According to him, Dr Jamnagarwalla is a very popular GP and well respected by his colleagues and patients. Dr Devineni spoke to Dr Jamnagarwalla after the Tribunal handed down the Stage 1 decision and said he was "very distressed about the whole process and expressed genuine remorse for his behaviour". However, we do not know what behaviour Dr Devineni was referring to. 3. Dr Gemma Beegan is a long-standing colleague and friend of Dr Jamnagarwalla. She attested to his "responsible" character, "good ethical beliefs" and "strong moral judgment". She said that, as a friend, she has been aware of the difficulties in Dr Jamnagarwalla's personal life and the impact that has had on his ability to face these complaints. She also reported that he was "very regretful that he did not act correctly within the constraints placed upon his practice by the HCCC and in the reporting of these violations to the HCCC". We assume this is a reference to breaching the condition not to treat female patients. 4. Dr Schindler, a fellow doctor at the Rouse Hill practice, said that Dr Jamnagarwalla has "always displayed a good moral standard and attitude" to him. Another fellow doctor and friend, Dr Mohammed Zahid Akhtar, has known Dr Jamnagarwalla for eight years. In his estimation, Dr Jamnagarwalla has "always conducted himself with utmost respect for others and with an expectation of the highest standards for himself, both personally and professionally". 5. In contrast to the opinions expressed in these reports, in the Stage 1 proceedings the Tribunal found that Dr Jamnagarwalla provided the following false information. He wrote a false medical certificate purporting that he had examined Patient B when he had not. Dr Jamnagarwalla also wrote a false letter responding to the Council stating that various female patients were male. The Tribunal found this to be an "obvious and significant mistake" and concluded that Dr Jamnagarwalla "gave grossly inadequate consideration to the questions he was asked". 6. Dr Jamnagarwalla asserted that he did not know that prescribing medication to stop Patient R's menstruation was "treatment", but the Tribunal found that he knew at the time of the consultation that it was treatment. 7. Dr Jamnagarwalla denied that the reason he made no other records and did not bill Patient G was that he was trying to hide the fact that he was seeing a female patient, but the Tribunal found "that is exactly what Dr Jamnagarwalla was attempting to do." 8. Another example relates to the condition on Dr Jamnagarwalla's registration that if he treated a female patient in an emergency situation, he must contact the Medical Council within 24 hours. At the Stage 1 hearing, Dr Jamnagarwalla asserted that he "totally forgot" to contact the Medical Council after providing emergency treatment to a female patient but the Tribunal found that the conditions must have been fresh in his mind and that he was aware of his obligations. 9. Dr Jamnagarwalla also attempted to give the impression that he had an independent recollection of some events when he did not. He asserted that he had a clear recollection when he wrote his statement that Patient B was not present, but the Tribunal found that he "attempted to reconstruct events". Dr Jamnagarwalla told the Council that he provided the script to Patient C's husband then told the Tribunal that she attended with her son. The Tribunal found that he "gave the impression that he had an independent recollection of this consultation when he did not." 10. Dr Jamnagarwalla told the Council that Patient E "had script done only" then told the Tribunal the patient attended with her husband. We found the "inconsistency reflects adversely on his credit." Dr Jamnagarwalla denied that he told the Council he "had script reprinted" to convey to the Council that there was no interaction with Patient Q, but the Tribunal found that he was attempting to convey the impression to the Council that she had not attended in person, regardless of whether he remembered whether she had attended or not, and that such conduct "reflects adversely" on his credibility. 11. Dr Jamnagarwalla asserted that he was taking the conditions seriously, but the Tribunal found that he was not. We found that Dr Jamnagarwalla's "evidence changed significantly during the course of the hearing" by claiming for the first time in cross-examination that the conditions were uncertain or cloudy and there were some "grey areas". 12. We accept that Dr Jamnagarwalla is a popular GP and is respected by many of his colleagues and patients. However, the numerous examples of dishonesty and gross carelessness are inconsistent with the character references Dr Jamnagarwalla has provided. Considering Dr Jamnagarwalla's proven dishonesty, we give the character references limited weight. Summary and conclusion 1. Sexually touching a 12-year-old girl is extremely serious. The departure from the relevant standard is significant. Remorse for how Patient A felt has little weight. Because of the two previous complaints, Dr Jamnagarwalla must have been acutely aware of the need to maintain appropriate sexual boundaries when he crossed those boundaries with Patient A in 2018. 2. Participation in recent comprehensive training on sexual boundaries is a positive step. It is possible that Dr Jamnagarwalla has gained some insight and developed some strategies which will mean that he is less likely to engage in such behaviour again. However, his evidence about that could not be tested because Dr Jamnagarwalla did not make himself available for cross-examination. Given the seriousness of Dr Jamnagarwalla's proven conduct, the fact that he was on notice of similar complaints, and his proven dishonesty, he is a risk to the health and safety of the public. Specifically, that risk is that he will engage in similar conduct in the future. Non-compliance with conditions on registration Seriousness of conduct 1. We found that Dr Jamnagarwalla breached the condition on his registration that he not treat female patients. At the Stage 1 hearing, Dr Jamnagarwalla denied knowing at the time that he was in breach of that condition. The Tribunal found not only that he had breached the condition but that he knew what the condition required of him and deliberately attempted to circumvent it. We have provided some examples of the deceit and poor record keeping in which Dr Jamnagarwalla engaged to hide the fact that he was treating female patients. We found that conduct amounted to professional misconduct. 2. The seriousness of this conduct is not affected by the fact that the Council amended the condition in February 2020. The Council added the words "including prescribe to" to avoid any confusion. However, we do not understand the Council's decision to amend the condition to be a concession that the condition was confusing or unclear. As the Council delegates wrote in the decision amending the condition, ". . . in prescribing to a patient, there can be no doubt that he is indeed 'treating' the patient as the act of prescribing a medication is often the apotheosis of treatment". In the delegates' view, it was not credible that Dr Jamnagarwalla really thought that providing prescriptions was not treatment. However, "for abundant clarity" the panel amended the condition. 3. Dr Jamnagarwalla breached the condition on 33 occasions over a period of nearly 10 months. Those breaches were deliberate. 4. The breaches led to Dr Jamnagarwalla engaging in what we found to be extremely poor clinical practice. For example, Dr Jamnagarwalla conceded that he had no reason for failing to refer Patient Q to a specialist and the result was a "poor consultation". He also conceded that his usual practice would be to use a stethoscope to check the patient's chest and back and to perform various other checks but for Patient AC, he just provided the prescription for antibiotics. When prescribing medication, even for ongoing treatment, a practitioner is expected to assess the ongoing need for it, the efficacy of the current approach and to screen for issues with its use. Abrogation of that responsibility puts patients and the community at risk. 5. We adopt the often-cited statement of the Medical Tribunal in Re Dr Than LE made on 20 September 2001 at page 46, paragraph 95: Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, 'containing as it does a grave criticism of the standard of the practitioner's conduct'. 1. The Council imposed the condition because of well-founded concerns about the safety, not only of children, but of females of any age. Despite those concerns, Dr Jamnagarwalla continued to provide medical services and write prescriptions for some female patients. The breaches were deliberate and repeated. We regard them as very serious. Degree of insight 1. Dr Jamnagarwalla accepts that he breached the conditions on his registration on a number of occasions and deeply regrets those breaches. He says he understands why he has conditions on his registration and why it is so important that he strictly complies with all those conditions. He also says that he had not spent sufficient time to make sure that he fully understands how to strictly comply with conditions. He says he now fully understands the conditions and knows that it is his responsibility to comply with them. 2. Since working in the Granville practice, Dr Jamnagarwalla says he is complying with the conditions on his registration that he not see female patients. Evidence from two doctors at the practice (Dr Leung and Dr Nguyen) and the practice manager (Ms Huang) support Dr Jamnagarwalla's own evidence about that. 3. Despite Dr Jamnagarwalla apparently complying with the condition that he not treat female patients since working at the Granville practice, he admits breaching another condition on his registration. That condition is "to practise only in a practice approved by the Medical Council of NSW where there is always at least one other registered medical practitioner on site". Dr Jamnagarwalla admits he did not receive approval from the Council before commencing practice at Granville. He worked there between July 2022 and 24 August 2022. However, as the following chronology reveals, there were some extenuating circumstances. 4. On 17 June 2022, two weeks after the Tribunal's Stage 1 decision, Dr Jamnagarwalla stopped working at the Rouse Hill practice. On 28 June 2022, he emailed Mr Kalra, his monitoring officer at the Medical Council, asking him to note the change of practice location from Rouse Hill to Granville. He included the name of the Granville practice manager and the fact that he had forwarded his current conditions. He says he did not get a reply to that email. 5. On 28 June 2022, Dr Jamnagarwalla asked the then practice manager at the Granville practice, Dr Maria Nguyen, to sign a copy of a letter from the Medical Council which attached a list of the conditions on his registration. Dr Nguyen signed the conditions. Dr Jamnagarwalla assumed that he could continue working. 6. On 24 August 2022, Ms Miri Paniora emailed Dr Jamnagarwalla asking him what date he stopped working at the Rouse Hill practice. Dr Jamnagarwalla wrote back saying that he had sent an email to Mr Kalra at the end of June 2022 and was not sure why it was not in their records. The Council's response was that Mr Kalra had left the Council in January 2022. On the same day Mr Paniora told Dr Jamnagarwalla that he would need to stop working until the Council's delegate had decided whether to approve his new employment. Dr Jamnagarwalla stopped working at the Granville practice on 24 August 2022. 7. On 5 September 2022, Dr Jamnagarwalla apologised to the Council for not seeking pre-approval for the change of practice. He said he did not read the explanatory notes for that condition before starting work at Granville. Dr Jamnagarwalla explained the reason for this failure: When the current conditions were imposed, I was asked to show the conditions to the previous practice manager [at Rouse Hill] who simply signed the conditions and I continued working. I did not have to wait for approval at that time. This time when I got an opportunity to change practice, I had it ingrained in my mind that I can work as long as I do not see female patients, do not practice/get rostered alone and submit to an audit. Unfortunately, my current practice manager [at Granville] did not forward the letter herself to the medical council and my email to Mac Karla did not go through before commencement of practice. (Words in square brackets added.) 1. On 21 September 2022, the Medical Council advised Dr Jamnagarwalla that he had breached the condition about seeking pre-approval to change employment and must ensure strict compliance with the conditions at all times. On the same date, the Council approved Dr Jamnagarwalla to work at the Granville Family Medical Centre. 2. Dr Leung's evidence was that Dr Jamnagarwalla had made a "careless mistake" in not getting approval from the Council before starting to work at the Granville practice. He apologised to Dr Leung. 3. We are satisfied that Dr Jamnagarwalla did email Mr Kalra at the Medical Council with the details of his new employment before starting to work there. While he did not formally apply for approval of his new workplace, he told the Medical Council that he was changing jobs and the Medical Council subsequently approved that change. We find that Dr Jamnagarwalla did not properly read, or did not properly understand, that condition before he started working at Granville. This lapse demonstrates that Dr Jamnagarwalla is still not scrupulously complying with the conditions on his registration, however, it was not a deliberate breach. Overall character and honesty 1. We repeat the findings we made above about Dr Jamnagarwalla's overall character and honesty. Summary and conclusion 1. Deliberate and repeated non-compliance with conditions on a practitioner's registration is very serious. It is especially serious in this case because the condition is designed to protect the public from sexual misconduct. Dr Jamnagarwalla was previously subject to a chaperone condition so he should have been acutely aware that he must comply with them scrupulously. 2. Dr Jamnagarwalla admits that he breached the conditions, but not that he did so deliberately. We found otherwise. Dr Jamnagarwalla has assured the Tribunal that he now fully understands the conditions and that it is his responsibility to comply with them. That evidence is re-assuring but the weight we can give it is limited because Dr Jamnagarwalla did not make himself available for cross-examination. Inadequate medical records Seriousness of conduct 1. In the Stage 1 proceedings we found that Dr Jamnagarwalla did not make and keep a record with all the information listed in Cl 1(2) to Schedule 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016. We found that the record keeping failures involved several examples of not recording any history, examination, or management plan whatsoever. For one patient, Dr Jamnagarwalla admitted that he deliberately failed to record essential information in the patient's clinical notes to give the impression that he had not consulted the patient who was female. In several cases, there was no record of the diagnosis or treatment of a patient. 2. We went on to find that where Dr Jamnagarwalla did record prescriptions, he can only surmise as to why he prescribed certain medications. We noted that the seriousness of these deliberate omissions was obvious. At [288] we concluded that: Any doctor taking over that treatment could only guess as to the reason for the script and whether any diagnosis that was made justified the medication prescribed. 1. We regarded the wholesale failures of Dr Jamnagarwalla's record keeping to be serious enough on their own to amount to professional misconduct. Degree of insight 1. Dr Jamnagarwalla conceded that he stopped recording detailed information in the clinical notes of female patients after the conditions were imposed and that that was poor clinical practice. For at least one omission, he conceded that he did so deliberately to give the impression that he had not consulted the patient. Extent of training 1. Dr Jamnagarwalla outlined the steps he had taken to comply with record keeping regulations. He has completed a course in medical records and is now including more information in the clinical notes. On 11 May 2021, the Medical Council conducted an audit of his medical records. The auditor concluded that his medical records were consistent with the required standards for good medical record keeping and comply with the conditions on his registration. He has taken the auditor's advice about recording more information about a patient's family and social history. Dr Leung's evidence was that Dr Jamnagarwalla's clinical competence and record keeping meet current standards. Overall character and honesty 1. We repeat the findings we made above about Dr Jamnagarwalla's overall character and honesty. Summary and conclusion 1. Dr Jamnagarwalla admits that he did not make adequate records and that, at least on occasions, that was deliberate. He did so to avoid the Council finding out that he had breached the condition not to see female patients. Deliberately failing to make adequate records for a patient's consultation is very serious. 2. The audit and the evidence of Dr Leung supports Dr Jamnagarwalla's evidence that he is currently complying with the statutory record keeping requirements. What orders are the Commission and Dr Jamnagarwalla seeking? 1. The Commission seeks cancellation of Dr Jamnagarwalla's registration and that he may not apply for a review of that order for between 1-2 years: National Law, s 149C(7). 2. Dr Jamnagarwalla submits that his registration should not be cancelled or suspended and that the public interest will be sufficiently protected by making his registration subject to the same conditions to which he is currently subject. Those conditions are that: 1. He is not to consult, examine, treat including prescribe to or perform any procedures on any female. a. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. b. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 2. To practise only in a practice approved by the Medical Council of NSW where there is always at least one other registered medical practitioner on site. 3. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: a. The audit is to be held within 6 months from 10 February 2020 and subsequently as required by the Council b. The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. The auditor(s) should pay particular attention to: prescribing the gender of the patient c. to authorise the auditor(s) to provide the Council with a report on their findings. d. To meet all costs associated with the audit(s) and any subsequent reports. 1. The remaining conditions relate to certain obligations to notify the Medical Council and to consent to exchanges of information for the purpose of monitoring compliance with the conditions. Overall conclusion 1. The breaches of the conditions on Dr Jamnagarwalla's registration and the record keeping failures are not serious enough, by themselves or in combination, to suspend or cancel Dr Jamnagarwalla's registration. 2. In relation to the proven sexual misconduct, we have concluded there is a risk that Dr Jamnagarwalla will engage in similar conduct in the future. Dr Jamnagarwalla submits that any risk of that kind can be removed by imposing a condition on his registration that he not treat female patients. Such a condition, assuming compliance, will lessen the opportunity for Dr Jamnagarwalla to repeat the same kind of conduct we found him to have engaged in with Patient A. But, in our view, it is not sufficient. The protection of the health and safety of the public includes deterring other health practitioners from engaging in similar misconduct. It also includes upholding public confidence in the standards of the medical profession: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher JA (Basten JA and Emmett JA agreeing). 3. Dr Jamnagarwalla's proven conduct in relation to a 12-year-old girl in a vulnerable situation is abhorrent to community standards and expectations. Dr Jamnagarwalla has breached the trust of the entire community, not just women. The community is likely to perceive that the Tribunal is not serious about stamping out this kind of behaviour if Dr Jamnagarwalla is allowed to continue to treat male patients. 4. The Tribunal has the power to select the length of the non-review period. We consider that a period of 1 year is necessary because a lengthy non review period signals to the profession and the public the seriousness of the proven conduct. Application for non-publication order Basis for the application 1. Dr Jamnagarwalla applied for an order that disclosure of his name is prohibited except to the parties, their legal representatives and to any other person where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings. After applying for this order at the beginning of the Stage 2 hearing, Dr Jamnagarwalla amended the application so that it also applied to the Stage 1 proceedings. A decision in those proceedings was published, without restriction, on 15 June 2022. The Commission opposed the application both in its original and in its amended form. 2. Dr Jamnagarwalla set out the reason for the application in his statement of 23 November 2022. Those reasons relate to the effect of the publication of the Stage 1 decision on members of Dr Jamnagarwalla's immediate family, especially his wife and his youngest child. Dr Jamnagarwalla noticed the demeanour of his wife and children changing around the time of the Stage 1 decision. His wife told him she felt ashamed and embarrassed by the case. His youngest child heard about the case from friends at school and when she accessed the internet, she saw reports of the case. She was reluctant to attend social gatherings or see her friends for several weeks after publication of the Stage 1 decision. Dr Jamnagarwalla is concerned that publication of the Stage 2 decision will cause further shame, embarrassment and upset. It may even mean that they need to move from the area in which they are currently living. The legal test 1. The Tribunal is generally obliged to publish decisions about complaints which have been proved or admitted in whole or in part. That is done via the NSW Caselaw website; National Law, s 165M(4) and Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 at [71]. However, the Tribunal does have power under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order prohibiting the disclosure of Dr Jamnagarwalla's name. There is a similar provision in cl 7 Schedule 5D of the Health Practitioner Regulation National Law (the National Law). The test under that provision is whether it is "appropriate in the particular circumstances of the case". 2. Dr Jamnagarwalla accepts that the principles of 'open justice apply to proceedings under the NCAT Act and the National Law': Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 at [9]. Consistent with that principle, the name of a person who is the subject of disciplinary proceedings is expected to be disclosed unless there is good reason for making a non-publication order. 3. When considering whether to make a non-publication order, the health and safety of the public must be the paramount consideration: National Law, s 3A; Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 at [91]. The public has a right to know whether a practitioner had been charged with a disciplinary offence and the outcome of the proceedings: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [25]. It is inherent in the protection of the public that information is available to a potential patient who wishes to enquire whether a health practitioner has been the subject of disciplinary proceedings: HCCC v Simring (Suppression Order) [2010] NSWMT 6 at [8]. Conclusion 1. I have decided not to make a non-publication order for three reasons. Firstly, Dr Jamnagarwalla's name was disclosed in an adjournment decision published on 10 September 2021 and in the Stage 1 decision on 15 June 2022: Health Care Complaints Commission v Jamnagarwalla [2021] NSWCATOD 149; Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61. The Stage 1 decision has been available on several websites including the Commission's website: Health Care Complaints Act 1993 (NSW), s 94B. Even if Dr Jamnagarwalla's name is anonymised now his identity is already publicly known and could easily be detected by anyone sufficiently interested in the case: Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 at [54]. 2. The risk that publication will have further negative impacts on Dr Jamnagarwalla's family members is unfortunate and concerning. But it is unavoidable that disciplinary proceedings may cause practitioners shame and embarrassment and impact on their family relationships: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [16]. Publication of the practitioner's name may also cause embarrassment and upset to their immediate family. We accept that that has happened in this case and that Dr Jamnagarwalla wishes to protect his family, as best he can, from further distress. 3. As the Tribunal held in a similar legislative context in Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [45]): The risk of reasonably foreseeable negative impacts upon the Respondent's family from disclosure, such as embarrassment, and negative social impacts, would not, by themselves, be sufficient reason to make a non-disclosure order. They are factors to be weighed in consideration of the issue, but they do not weigh heavily. 1. Expert evidence of much more serious effects on mental health, including risk of suicide for the practitioner or a family member, have been held to justify a non-publication order: Health Care Complaints Commission v Dr A [2012] NSWMT 10 at [28] and Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120 at [104]. 2. As to Dr Jamnagarwalla's evidence that the family may move to another area, that evidence falls short of any serious risk to physical or mental health which might justify a non-publication order. 3. Thirdly, but less significantly, there was no evidence that Dr Jamnagarwalla had told his children about these proceedings or offered them any assistance such as professional counselling. Those kinds of steps may have helped lessen the embarrassment and upset they have undoubtedly felt. (See Health Care Complaints Commission v Vo [2014] NSWCATOD 127 at [186]). Costs 1. The Commission applies for its costs. Dr Jamnagarwalla did not oppose a costs order. 2. Under Schedule 5D, clause 13 of the Health Practitioner Regulation National Law (NSW) (National Law), the Tribunal has the power to require the Commission, a registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another. The presumption is that a successful party is entitled to its costs: NSW Medical Board v Dinakar [2009] NSWMT 8; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67]. The onus is on the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]. Because costs are intended to compensate the successful party, the general rule will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: Arian v Nguyen [2001] NSWCA 5 at [36]; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40] and [69]. Orders 1. Dr Jamnagarwalla's registration as a medical practitioner is cancelled. 2. Dr Jamnagarwalla may not apply for review of Order 1 under Division 8 of the National Law for one year from the date of this decision. 3. Dr Jamnagarwalla's application for a non-publication order is refused. 4. Dr Jamnagarwalla is to pay the costs of the Health Care Complaints Commission as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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: 09 January 2023