Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hossain v Medical Council of New South Wales [2024] NSWCATOD 29 Hearing dates: 14 – 15 November 2023 Date of orders: 14 March 2024 Decision date: 14 March 2024 Jurisdiction: Occupational Division Before: The Hon T Sheahan ADCJ, Principal Member Dr E Summers, Senior Member Dr D King, Senior Member R Wellington, General Member Decision: 1. The names of all patients identified in the material before the Tribunal are supressed. 2. The reinstatement application lodged by Anwar Hossain on 31 May 2023 is dismissed. 3. Anwar Hossain is precluded, for a period of twelve months from the date of these orders, from making any further application for reinstatement of his registration. 4. Anwar Hossain is ordered to pay the costs of the Medical Council of New South Wales in respect of his reinstatement application, and these proceedings, unless he applies to the Tribunal within 28 days for a different order as to the Council's costs. Catchwords: HEALTH — non-publication order — application for reinstatement of a general practitioner after deregistration for professional misconduct — refused — impairment — costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 Bahramy v Medical Council of New South Wales [2017] NSWCATOD 146 Briginshaw v Briginshaw (1938) 60 CLR 336 Fryar v Health Care Complaints Commission [2015] NSWCATOD 117 Health Care Complaints Commission v Hossain [2022] NSWCATOD 31 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Vo v Medical Council of NSW [2018] NSWCATOD 18 Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Texts Cited: Nil Category: Principal judgment Parties: Anwar Hossain (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: K Hooper (Respondent) Solicitors: Applicant (Self-Represented) Health Professional Councils Authority (Respondent) File Number(s): 2023/00173844 Publication restriction: The names of all patients identified in the material before the Tribunal are supressed. REASONS FOR DECISION Introduction 1. The applicant, Anwar Hossain (named in earlier proceedings as "MD Anwar Hossain", and now Mr Hossain), practised for many years as a General Practitioner (GP), until his registration was cancelled, on the grounds of "professional misconduct", by this Tribunal on 8 March 2022 (Health Care Complaints Commission ["HCCC"] v Hossain [2022] NSWCATOD 31 ("Hossain No 1")). 2. The 2022 Orders of the Tribunal precluded, for a period of twelve months, any review of that cancellation. The Tribunal stated (at [56]–[58]): "56. We found Dr Hossain's oral evidence and his submissions unreliable and contradictory, and we are not satisfied that he has developed insight into his circumstances. 57. We, therefore, conclude that suspension is an inadequate response to his misconduct, and that we should make the protective orders sought by the HCCC. 58. If Dr Hossain were to seek re-registration in the future, we would recommend he be required to undertake an appropriate cognitive assessment." 1. On 31 May 2023, Mr Hossain sought a review of the cancellation order, by filing a "General Application Form" with this Tribunal. That Application was admitted into evidence before us as Exhibit A3. 2. Essentially, he seeks a reinstatement order pursuant to s 163B of the Health Practitioner Regulation National Law (NSW) (the "National Law"). The Statutory Regime 1. The relevant provisions and applicable principles were summarised by the respondent, the Medical Council of New South Wales (Council), in Annexure A to Exhibit R2, and were not disputed by Mr Hossain. 2. The Tribunal's jurisdiction to consider an application for a reinstatement order is conferred by s 163A and made pursuant to s 163B(1)(c) of the National Law. 3. The "appropriate review body" is this Tribunal: s 163(1)(c). 4. Section 163B provides as follows: 163B POWERS ON REVIEW (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following-- (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order-- (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. 1. A reinstatement order does not have the effect of causing re-registration of a person but permits a person to apply to the National Board, which then decides whether to register that person. The National Board cannot impose conditions that are inconsistent with those imposed or altered by the Tribunal (s 163B(3A)). 2. Section 163C identifies the scope of the Tribunal's review: 163C Inquiry into review application (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division. 1. As the Council annexure notes, the review to be undertaken by this Tribunal is to determine the appropriateness of the time of the review of the Order concerned. It is not a review of the previous decision itself, nor of the correctness of any findings made at the time of that decision. The Tribunal's task does not involve a re-examination of the applicant's conduct at the time of the previous hearing, but it will have regard to the Tribunal's previous findings in assessing whether or not deficiencies have been remedied: see Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 ("Bahramy No 1"), at [84]. 2. All complaints made against the applicant are relevant to the review. 3. The Tribunal's task under ss 163A, 163B and 163C was summarised in Bahramy v Medical Council of New South Wales [2017] NSWCATOD 146 ("Bahramy No 2"). The Tribunal held (at [50]) that the issue for determination was: "…whether the applicant, since the [previous] decision, has demonstrated change such as to establish that the applicant has now overcome the shortcomings referred to in the [previous] decision. The onus of doing so rests upon the applicant. Further, the factual background of the applicant is a necessary consideration." See also Zepinic v Health Care Complaints Commission [2020] NSWSC 13, at [85], and the cases cited therein, and Qasim v Medical Council of New South Wales [2021] NSWCA 173 ("Qasim"), at [17]–[19]. 1. Section 3A of the National Law requires the protection of the health and safety of the public to be the paramount consideration, and the Tribunal is to have regard to the objectives and guiding principles of the National Law (see ss 3, 3A and 4) in determining the appropriateness of the orders made on 8 March 2022. 2. As the Tribunal's task is to consider the appropriateness of the cancellation order at the time of the review, it is relevant to consider the statutory basis for the making of the cancellation order, i.e., s 149C(1). 3. The onus of demonstrating that a reinstatement order should be made rests on the applicant, on the balance of probabilities, to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336). See again: Bahramy No 2, at [50]. 4. As the Tribunal observed in Vo v Medical Council of NSW [2018] NSWCATOD 18 ("Vo"), at [15]–[16]: "…a finer judgment is required in relation to an applicant for re-entry than the one required by a registration authority in relation to a new entrant… The issue will be whether he or she can be trusted to practise in future with integrity, not to present any appreciable risk of repeating the misconduct that gave rise to cancellation, to practise in an ethical manner and not abuse the trust or safety of patients." The Present Hearing 1. Mr Hossain appeared for himself, and relied upon extensive (and often repetitive) written materials, but essentially upon: 1. A written submission dated 23 June 2023, with attachments (Ex A1 – including a CV); 2. A further written submission and attachments, dated 31 October 2023 (Ex A2); 3. A revised version of his submission dated 31 October 2023 (Ex A4 – see original version in Ex R7, rather than Ex A2); 4. His own oral evidence and submissions; and 5. Oral evidence from Dr Rashid Ahmed, who was his approved supervisor, and is now his GP. (Dr Ahmed also authored two documents in evidence – a reference dated 28 February 2023, in Exhibit A3, and a report dated 31 October 2023, in Exhibit A2). 1. The respondent Council was represented by Ms K Hooper of counsel, and relied upon: 1. A comprehensive bundle of documents, filed on 29 September 2023 (Ex R1); 2. Additional documents, comprising written submissions and the annexure setting out relevant legislation, authorities and legal principles (Ex R2); 3. A supplementary report (to one in Exhibit R1) from Dr Kasey Metcalf, clinical neuropsychologist, dated 9 November 2023 (Ex R3); 4. A supplementary report (also to one in Exhibit R1) from Dr Anthony Samuels, consultant psychiatrist, dated 13 November 2023 (Ex R4); 5. A copy of the amended Complaint by the HCCC, dated 19 November 2021, upon which the Tribunal adjudicated in its cancellation decision, (Hossain No 1) (Ex R5); 6. A copy of the Medical Council's appointment of Dr Ahmed as Mr Hossain's supervisor, dated 11 January 2022, with attachments, including supervision reports (Ex R6); and 7. An affidavit dated 14 November 2023 from Ms Hooper's instructing solicitor, Liam James Collingwood, with annexures (Ex R7). 1. All the exhibits listed above were admitted without objection from the opposing side, and oral evidence was given before us by Mr Hossain, Dr Samuels, and Dr Metcalf, all in person, and by Dr Ahmed (on the telephone). 2. An order was made on day one supressing the names of all patients identified in the material. 3. The Council opposes Mr Hossain's application on the basis that he bears the onus of showing, and has not shown, that he is a fit and proper person – at least at the present time – to be re-registered. 4. Further, Council submits that he has not demonstrated that he has undertaken any intervention to address his (denied) "impairment", defined by s 5 of the National Law in terms of "likely" detrimental effect on capacity to practise his profession. See again: Qasim. 5. The Council alleges that Mr Hossain's cognitive assessment result is poor, that he has "significant cognitive impairment", likely a major neurocognitive disorder, that he cannot function safely as a GP "in any capacity", and that he lacks insight into these shortcomings. 6. The Council also seeks its costs of the proceedings and the imposition of a further "preclusion period" of at least twelve months. Mr Hossain and His Case 1. The applicant's "relevant background" is set out in Hossain No 1 (at [10]–[25]), including his admissions and regrets at the time of that hearing. Since that earlier Tribunal decision, he has become an Australian citizen (see Certificate in Ex A1). 2. We also note that he and his GP wife have three adult children, the youngest of whom lives with them, and that he has not told his children that his registration has been cancelled. 3. In the earlier Tribunal proceedings he claimed (see Hossain No 1, at [21]) that "… his professional record had been unblemished for some thirty-eight years" prior to a complaint here in NSW in 2017, and that the Tribunal at the time of the hearing in November 2021 had "no evidence to the contrary" (see Mr Hossain's oral evidence 23 November 2021, at Ex R1, tab 2, p 76, line 46, to p 79, line 1, and p 113, lines 16-20). 4. Mr Hossain gave permission for the relevant information to be provided to the respondent Council (see Ex R1, tab 24), so this Tribunal now has evidence that his professional record in his ten years of practice in New Zealand, 2004 to 2014, was certainly not unblemished. Deficiencies were identified in New Zealand from 2009, he underwent performance assessments there in 2010 and 2013, and various conditions, including supervision and a limitation on the number of patients seen in a day, were imposed on him until April 2013. 5. He moved to Australia in 2014 (and was first registered in NSW on 17 February 2014 – Ex R1, p 334). He first came to adverse notice here in 2015/2016, including as to overclaiming on Medicare (all of which money he has now repaid). 6. When confronted in the present hearing with the deficiencies in his evidence to this Tribunal's earlier hearing, he conceded only that he had made "mistakes", and he apologised. We also acknowledge that copies of two New Zealand performance assessment reports were included in his own evidentiary materials before us (in Ex A2), and that the later one noted "considerable improvement" since the earlier one. 7. Exhibit R1 includes a large volume of documentation regarding complaints in NSW between April 2017 and December 2019 (tabs 4-14), and various assessments and hearings between July 2019 and February 2021 (tabs 15-20), culminating in conditions being imposed from 12 July 2019, his suspension from 4 November 2019 to 21 January 2020, and then reimposition of conditions, and, finally, in the earlier successful cancellation proceedings in this Tribunal (see details in tab 23). 8. In recent years, Mr Hossain's health has deteriorated quite seriously despite his abstention from alcohol and tobacco. He is under constant monitoring and treatment, and much medical evidence is included in the material he has placed before us (especially in Ex A2). There are continuing concerns about his heart – he had a stent inserted in 2018, and a pacemaker in 2020 – and he has been diagnosed with type 2 diabetes, reflux, hypertension, hyperlipidaemia, and hypercholesterolaemia. 9. Apart from providing a professional and character reference in February 2023 (in Ex A3), his now GP, and former supervisor, Dr Rashid Ahmed, provided a medical report on Mr Hossain in October 2023 (in Ex A2), and gave oral evidence at this second hearing. 10. Dr Ahmed has been Mr Hossain's GP only since September 2023. He opined that Mr Hossain is stressed, but mentally stable, with no psychiatric diagnosis, and that he is medically and physically fit to resume practice with supervision, and/or in a multi-member setting. On a "K10" mood disorder test, Mr Hossain scored 10/50, as against an average of 27.1. Dr Ahmed sent him to various other practitioners for assessment with the following results: No "evidence of his memory or his cognition problem", only "minor clinically insignificant changes in blood", and "no evidence of dementia… or any neurocognitive disorder…". His "MSE" score was 30/30 (a later "ACE" was 90/100). Dr Ahmed observed that Mr Hossain has no family history of dementia or cognitive problems/disorder, and opined that he is a compliant patient, with "good" medical knowledge, "no physical or mental impairment", and "no depression". 11. Along with Dr Ahmed's own material, Mr Hossain presented reports from various doctors and psychologists, namely Abul Mamun, Muzahid Hassan, Tuan L Nguyen, Reshinie Akmeemana, Mohammed Dowla, Shafiq Shirin, and Victor Mansberg, none of whom gave oral evidence. Only Dr Mansberg expresses any reservations about Mr Hossain, noting (19 October 2023) that his brain scan "may indicate early frontotemporal dementia". 12. The Council made Drs Samuels and Metcalf available for cross-examination and Mr Hossain cross-examined them quite aggressively. He became very emotional during his own oral evidence, and displayed a poor memory for details of some important events. 13. The Tribunal is satisfied that he has tried to undertake substantial professional study during his deregistration, that he is sincere in his desire to return to medical practice, that he took seriously this Tribunal's suggestion about cognitive testing, and that he has genuine remorse for his wrongdoing. He insists he is happy to work in a group practice setting, and under supervision, and on conditions, if re-registered. The Case Against Re-registration 1. The Council submits that, on all the evidence presented to the Tribunal on Mr Hossain's reinstatement application, we would not be satisfied that such an order would be either appropriate, or consistent with our duty to protect the health and safety of the public at this time, as Mr Hossain has not provided "any evidence [demonstrating] he has undertaken any intervention to address his impairment". 2. For the purpose of these proceedings, the Council arranged for its own cognitive assessment of the applicant. It retained, and called to give oral evidence before us, both Dr Samuels (a consultant forensic psychiatrist) and Dr Metcalf (a consultant neuropsychologist). Both are recognised eminent practitioners in their respective fields, with extensive relevant experience, and are well known to this Tribunal. As noted above, they were closely cross examined by Mr Hossain. 3. Dr Samuels produced two detailed reports, the first on 27 July 2023 (Ex R1, tab 25, which included his CV at pp 365-70), and the second on 13 November 2023 (Ex R4). Dr Metcalf's reports are dated 19 September 2023 (Ex R1, tab 27, with CV at pp 399-401), and 9 November 2023 (Ex R3). 4. Dr Samuels opined that Mr Hossain lacks the "higher order of thinking" that doctors need in all their work, and needed more extensive neuropsychological testing such as performed by Dr Metcalf. Dr Metcalf was worried that Mr Hossain's medical issues (heart and diabetes etc) are "risk factors" for his cognition, and require treatment. 5. As already noted, the Council's expert witnesses were closely cross-examined by Mr Hossain, but the strength of their evidence was not dented in any way by that cross-examination. They were sympathetic to his plight, but cast doubt on his claim that he has adjusted well to any "deficits". Both questioned the level of Mr Hossain's insight into the issues which brought about his deregistration, and into the extent of his cognitive impairment. 6. Dr Metcalf concluded that Mr Hossain "suffers a significant cognitive impairment within the meaning of the National Law" (submissions 38), i.e., "a clear cognitive impairment across multiple domains" (Ex R1, tab 27, p 396 at 8.3), and she held "significant concerns with his capacity to function safely as a GP in any capacity" (Ex R1, tab 27, p 395 at 7.6), and "significant concerns that he would be unable to adhere to his conditions..." (p 397 at 8.8). 7. Based on their reports and evidence, the Council submits (Ex R5) that Mr Hossain "suffers from a significant cognitive impairment, likely a Major Neurocognitive Disorder (DSM-VTR)", raising "a significant concern about [his] capacity to function safely as a general practitioner in any capacity". 8. The submission continues: "5. …The applicant is, it is submitted suffering from a mental impairment which is likely to detrimentally affect his capacity to practise as a medical practitioner. 6. Further, the evidence before the Tribunal would not permit it to be satisfied that the applicant has insight into – including a comprehension of – the shortcomings in his practice as general practitioner identified by previous decision-makers, and that he has taken sufficiently focused and intensive remedial action to overcome the identified shortcomings. 7. The Tribunal could not be confident that if it were to grant a reinstatement order subject to conditions, the applicant would fully comprehend and would comply with those conditions." 1. While Mr Hossain attacked Drs Samuels and Metcalf and their evidence, he called no oral expert evidence in response, despite the Council's invitation to do so (submissions 41). Consideration 1. The Tribunal considers that Mr Hossain's position on re-registration appears weaker than it was when resisting deregistration, and repeats the comments made by the earlier Panel at paragraphs [56]–[58] of Hossain No 1 (quoted at [2] above). 2. He does not appear to comprehend the totality of adverse matters identified by prior decision-makers, including this Tribunal in Hossain No 1, and, on the evidence before us, we cannot be satisfied that he has insight, and has "reformed" since he lost his registration. 3. We acknowledge that he has undertaken self-directed study, much of it pre-dating Hossain No 1, but the evidence suggests that it is at such a high level of generality as to be of no real assistance to his cause. 4. Dr Ahmed's opinion that Mr Hossain's "hard work and extensive studies and discussion with experienced colleagues" have "overcome the initial shortcomings and difficulties" (letter 28 February 2023 in Ex A3) is submitted by the Council (submissions 45) to be "dismissive of the gravity of the findings of previous decision-makers". We respectfully reject that opinion. 5. The comments in other letters Mr Hossain relies upon reveal little or no awareness of those findings on the part of their authors. 6. We prefer and accept the evidence of Drs Samuels and Metcalf, and find the evidence of Mr Hossain and Dr Ahmed unpersuasive. Conclusion 1. We conclude that Mr Hossain's present application should be dismissed, and that a further non-review period should be imposed. 2. The Council recommends that that period should be a "minimum of twelve months" (submissions 49). Given Mr Hossain's age, we consider twelve months to be appropriate. 3. During that period, we would hope Mr Hossain would give serious consideration to the evidence and recommendations of Drs Samuels and Metcalf. Costs 1. The Council seeks an order for its costs, and relies upon clause 13(1) of Schedule 5D to the National Law. 2. It also relies upon three decisions (submissions footnote 17) which were not argued orally before us – Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49, at [90]–[92], Fryar v Health Care Complaints Commission [2015] NSWCATOD 117, at [103]–[106], and Vo, at [141]–[144]. See also Hossain No 1, at [59]–[63]. 3. Prima facie we are satisfied that the costs order sought is appropriate, but Mr Hossain is entitled to be heard on the question of costs, and we will, therefore, make a self-enforcing order, allowing him some time to seek a hearing on costs. Orders 1. The orders of the Tribunal will, therefore, be: 1. The names of all patients identified in the material before the Tribunal are supressed; 2. The reinstatement application lodged by Anwar Hossain on 31 May 2023 is dismissed; 3. Anwar Hossain is precluded, for a period of twelve months from the date of these orders, from making any further application for reinstatement of his registration; and 4. Anwar Hossain is ordered to pay the costs of the Medical Council of New South Wales in respect of his reinstatement application, and these proceedings, unless he applies to the Tribunal within 28 days for a different order as to the Council's costs. ********** 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: 14 March 2024