Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rahman v Medical Council of New South Wales [2024] NSWCATOD 145 Hearing dates: 15, 16 and 17 April 2024 Date of orders: 13 September 2024 Decision date: 13 September 2024 Jurisdiction: Occupational Division Before: Acting Judge Levy SC, Principal Member Dr H Chriss, Senior Member Dr L Taoube, Senior Member M Christensen, General Member Decision: (1) Pursuant to s 163(1)(c) of the Health Practitioner Regulation National Law (NSW) 2009, the applicant, Bassel Abdul Rahman, may apply to the Medical Board of Australia for registration to reinstate him to the register of medical practitioners subject to the practice and health conditions listed in the Appendix to these reasons. (2) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) 2009. (3) Pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) 2009, the applicant is to pay the respondent's costs of these proceedings on the ordinary basis as agreed or assessed. Catchwords: OCCUPATIONS – registration of medical practitioners – reinstatement application by deregistered former general practitioner - review of previous findings of unsatisfactory professional conduct and professional misconduct – order for reinstatement subject to conditions for protection of the health and safety of the public Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64(1) Health Practitioner Regulation National Law (NSW), s 3, s 3A, s 3B, s 139B, s 139E, s 149C, s 149E, s 163A, s 163B, s 163C Cases Cited: Ameisen v Medical Council of NSW [2015] NSWCATOD 49 Coe v Health Care Complaints Commission [2013] NSWMT 12 Danaei v Medical Council of New South Wales [2024] NSWCATOD 116 Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 Dawson v Law Society of NSW [1989] NSWCA 58 Evatt v New South Wales Bar Association (NSW Court of Appeal unreported, 12 April 1972) Evatt v New South Wales Bar Association (NSW Court of Appeal unreported, 15 December 1981) Ex Parte Lenehan (1948) 77 CLR 403, 422; [1948] HCA 5 Haber v Health Care Complaint Commission [2018] NSWCATOD 16 Haber v Health Care Complaints Commission [2018] NSWCA 146 Health Care Complaints Commission v Rahman [2021] NSWCATOD 25 Health Care Complaints Commission v Rahman (No 2) [2021] NSWCATOD 65 Health Care Complaints Commission v Rahman [2022] NSWCATOD 98 Health Care Complaints Commission v Rahman (No 2) [2023] NSWCATOD 68 Jan v Health Care Complaints Commission [2021] NSWSC 350 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Ng v Health Care Complaints Commission [2018] NSWCATOD 6 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Re Mansoor Haider Zaidi [2006] NSWMT 6 NSWCATOD 38 South Eastern Sydney Area Health Service v Edmonds [2007] NSWCA 16 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 92 Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Texts Cited: E Brooks, M H Gendel, S R Early, D C Gundersen & J H Shore, "Physician Boundary Violations in a Physician's Health Program: A 19-Year Review" (2012) J Am Acad Psychiatry Law 40(1) Good Medial Practice: A Code of Conduct for Doctors in Australia Category: Principal judgment Parties: Bassel Abdul Rahman (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: Dr P Dwyer SC (Applicant) Mr A Stafford (Respondent) Solicitors: Unsworth Legal (Applicant) Medical Council (NSW) (Respondent) File Number(s): 2023/00339809 & 2023/00339811 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), at the outset of the hearing, the Tribunal made an order to the effect that the disclosure or publication of the name of any patient referred to in the evidence, or the name of any person referred to in the evidence who has made a complaint in respect of the applicant, is prohibited. For the avoidance of doubt this order does not preclude the disclosure or publication of the name of the applicant. REASONS FOR DECISION Non-publication order [1] Introduction [2] – [8] Issues for determination [9] Prior Tribunal decisions involving the applicant [10] - [13] Summary of outcome [14] Jurisdiction [15] Legislative focus [16] Disciplinary background [17] – [51] 28.10.2015 – s150 Hearing [27] – [30] 11.03.2021 – First Tribunal Hearing (Stage One) [31] – [35] 18.05.2021 – Second Tribunal Hearing (Stage Two) [36] – [38] 22.09.2022 - Third Tribunal Hearing (Stage One) [39] – [45] 30.05.2023 – Fourth Tribunal Hearing (Stage Two) [46] – [51] Basis for applicant's claim for reinstatement [52] – [59] Legal principles for considering reinstatement [60] – [61] Evidence overview [62] – [89] Applicant's background circumstances [65] – [74] Remedial efforts [75] – [76] Character references [77] – [83] Treating psychiatrist - Dr Stuart Saker [84] – [90] Expert evidence – Associate Professor Anthony Samuels [91] – [94] Submissions of the parties [95] – [105] Applicant's submissions [96] – [102] Medical Council's submissions [103] – [105] Consideration of issues calling for decision [106] – [137] Credit findings [107] Acknowledgment, reflected insights into prior failings [108] – [112] Health issues [113] – [116] Pursuit of remedial education courses [117] – [118] Risk of re-offending [119] – [125] Conclusions as to reinstatement [126] – [137] Disposition [138] Costs [139] Orders [140] Appendix Non-publication order 1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), at the outset of the hearing, the Tribunal made an order to the effect that the disclosure or publication of the name of any patient referred to in the evidence, or the name of any person referred to in the evidence who has made a complaint in respect of the applicant, is prohibited. For the avoidance of doubt this order does not preclude the disclosure or publication of the name of the applicant. Introduction 1. The delay incurred between the hearing which proceeded on 15, 16 and 17 April 2024 and the delivery of these reasons has been influenced by the untimely receipt of the transcript, a matter that was foreshadowed to the parties: T44.22. 2. By these two consolidated applications numbered 2023/00339811 and 2023/0033980 made to this Tribunal pursuant to s 163B(1)(c) of the Health Practitioner Regulation National Law 2009 (NSW) ("the National Law)", Mr Bassel Abdul Rahman, a deregistered former general medical practitioner, ("the applicant"), seeks a finding that he is now fit to be reinstated to the Register of Medical Practitioners. 3. The application is made against the background of a series of earlier adverse findings regarding the applicant's fitness to practise on account of serious concerns for the health and safety of the public resulting from his egregiously excessive prescribing practices involving Schedule 8 and Schedule 4D drugs and his non-evidence-based treatments involving other medications. 4. On 25 May 2021, the applicant's registration as a medical practitioner was cancelled by order of the NSW Civil and Administrative Tribunal following those adverse regulatory findings which were made at a prior Tribunal hearing. His deregistration was subsequently confirmed on 14 October 2021. 5. The context for those findings was that the applicant had come under adverse regulatory notice because of two essential areas of concern. 6. The first, which came to the notice of the Pharmaceutical Services Unit, was his alarming prescribing practices concerning restricted Schedule 8 and Schedule 4D and other drugs, and his off label prescribing of anabolic steroids. 7. The second, followed the investigation of a complaint concerning his boundary crossing communications and attempts at seeking out-of-office contact with a patient whom he considered to be at risk. Whilst those attempts at patient contact were considered to have been well-intentioned and motivated by considerations of patient welfare, they were naïve, caused the patient needless distress, and placed her at risk of self-harm, a situation that he now recognises in hindsight as having required the pursuit of other options to seek to secure her welfare. Issues for determination 1. The two essential questions to be determined in these proceedings are first, whether the applicant has appropriately acknowledged and satisfactorily demonstrated that he has gained appropriate remedial insights into his past professional shortcomings as aided by his pursuit of appropriate treatment and further education, and if so, then secondly, having regard to the paramount interest of the protection of the health and safety of the public, whether he has satisfied the heavy onus he carries of establishing that the prior adverse Tribunal findings made against him have now been satisfactorily addressed and displaced by his remedial efforts so as to justify an order for his reinstatement to the Register of Medical Practitioners. Prior Tribunal decisions involving the applicant 1. These reasons assume familiarity with a series of four earlier differently constituted Tribunal decisions relating to the applicant. These reasons should be read in conjunction with those decisions, which are identified as follows: 1. Health Care Complaints Commission v Rahman [2021] NSWCATOD 25; 2. Health Care Complaints Commission v Rahman (No 2) [2021] NSWCATOD 65; 3. Health Care Complaints Commission v Rahman [2022] NSWCATOD 98; 4. Health Care Complaints Commission v Rahman (No 2) [2023] NSWCATOD 68. 1. The applicant unquestioningly accepts the validity of the findings recorded in those decisions. He also accepts that if he is to be reinstated, such reinstatement must be subject to a series appropriate conditions imposed to ensure the safety and welfare of the public. 2. In these proceedings we are required to consider the reasons for decision of the previous Tribunals to identify the baseline for exercising the statutory functions governing the application for reinstatement. 3. Given the applicant's acknowledgments and concessions relating to the fairness and the appropriateness of the original orders justifying the cancellation of his registration in 2021, these reasons do not require a detailed traversal of the factual basis for those earlier critical findings, as they are not open to question in these proceedings. Summary of outcome 1. Following a consideration of the findings made in the earlier Tribunal hearings, and after reviewing the factual and expert evidence adduced both at those prior hearings and in the present application, having due regard to the safety and the protection of the public, we have determined that the applicant has satisfactorily discharged the heavy onus of proof he carries to justify the reinstatement order he seeks, subject to the imposition of conditions on his practice which are identified in the Appendix to these reasons. Our reasons for those conclusions now follow. Jurisdiction 1. This Tribunal has jurisdiction to hear an application for reinstatement and it may make an order to that effect if such a course is considered appropriate in the circumstances at the time the application is determined having due regard to the overriding and paramount principles identified in the legislation: s 3, s 3A, s 3B,s 163A, s 163B and s 163C of the National Law. Legislative focus 1. The objective focus and the overriding principle guiding the exercise of jurisdiction in this case must be the paramount consideration of the safety and the protection of the health and safety of the public: s 3, s 3A, and s 3B of the National Law. Disciplinary background 1. In summary, the applicant was deregistered following a series of adverse regulatory interactions, on some 22 occasions, between 10 November 2008 and 18 March 2021, where the Medical Council continued to hold concerns over the applicant's fitness to practice. 2. Those regulatory interactions culminated in a series of critical findings made against the applicant concerning deficiencies in his medical record keeping, his excessive and inappropriate prescribing practices relating benzodiazepines, narcotics, hCG, testosterone and other androgens and growth hormones. Those findings were made in relation to an extensive series of patients. Those findings also identified failures on his part to appropriately observe the professional boundary between doctor and patient concerning a vulnerable patient, and related confidentiality obligations. 3. The respondent produced an evidentiary certificate which contained a extracted record comprising the applicant's registration history and disciplinary background: Exhibit "1", pp 780 – 820. 4. Between 4 January 1999 and 1 February 2000, following the applicant's graduation in medicine from the University of New South Wales, he was granted conditional registration as an intern under the differing legislative schemes that prevailed in that period. On 2 February 2000, he was granted unconditional general registration under the since repealed Medical Practice Act 1992 (NSW). Between 1 July 2010 and 25 May 2021, that registration continued pursuant to the provisions of the National Law. 5. Between 25 May 2021 and 25 June 2021, the applicant's registration was cancelled as a result of regulatory intervention. Between 25 June 2021 and 14 October 2021, the applicant was registered again, but with stringent conditions imposed on his practice. The application has remained deregistered since 14 October 2021. 6. The evidentiary certificate shows the relevant dates and the details of the Medical Council's interventions regarding the applicant's practice, which included interviews, performance assessments, and the consideration of conditions of practice. The dates on which those various interventions occurred were as follows: 1. 30 October 2015; 2. 1 December 2015; 3. 31 December 2015; 4. 8 January 2016; 5. 14 March 2017; 6. 19 April 2018; 7. 10 August 2018; 8. 2 April 2019; 9. 19 November 2019; 10. 25 June 2021; 11. 14 October 2021 – deregistration confirmed. 1. In these proceedings, those historical matters form the relevant baseline for the determination we must make. It is sufficient to say of them that prior to the ultimate order for the applicant's deregistration, in the overriding interest of public health and safety, the regulator saw a need to maintain supervisory surveillance of the applicant's registration over a considerable period of time. 2. That included a need for a significant array conditions to be imposed on the applicant's practice, including limits on his prescribing rights. Over time, those conditions varied and ranged from matters concerning his own health, his clinical practice, his record keeping, and his prescribing rights. 3. Following the applicant's deregistration, he was the subject of a further complaint concerning an alleged but unsustained sexual boundary violation involving a vulnerable female patient. After due investigations it was ultimately accepted that at the time of the alleged events, the applicant had genuine concerns over the safety and welfare of that patient, which led him into an error of judgment where he then breached appropriate protocols regarding patient contact and patient confidentiality. 4. In these reasons it is not relevant to recite the full detail of the above interventions as those details were fully considered and assessed at the previous Tribunal hearings after the applicant had attracted regulatory attention. The significant events are as summarised below. 28 October 2015 – s 150 Hearing 1. On 28 October 2015, pursuant to s 150 of the National Law, the Medical Council of New South Wales convened a regulatory hearing concerning the applicant to determine whether in the public interest, it was appropriate to act in accordance with the wide protective and restrictive powers enabled by that provision. 2. On 19 November 2015, that hearing resulted in a series of adverse findings which are summarized as follows: "The Medical Council of NSW received information from the Pharmaceutical Services Unit (PSU) indicating that Dr Rahman had inappropriately prescribed Schedule 8 (S8) and Schedule 4 Appendix D (S4D) [drugs] in spite of previous advice and warnings received from the PSU and the Council. The PSU information also indicated that Dr Rahman had prescribed anabolic-androgenic steroids and zolpidem in excessive doses, supplied somatropin (human growth hormone) to adult patients for an unspecified purpose and self-prescribed S8 drugs and diazepam. The continuing poor quality of Dr Rahman's medical records, an issue that had previously come to the attention of Council in a Performance Assessment in 2011, and about which he had received direct counselling, was noted and commented on adversely by the delegates. The delegates were satisfied that it was appropriate for the protection of the health and safety of person or persons and in the public interest, that conditions should be imposed on Dr Rahman's registration, including restricting him from possessing, supplying, administering or prescribing S8, S4D, somatropin, zolpidem and anabolic-androgenic steroids; to practice under category B supervision; medical records audit and to attend an assessment by a Council appointed psychiatrist." 1. The records show that the applicant has had a chequered compliance history concerning those imposed conditions of practice. Those circumstances attracted severe professional denouncement. 2. Consequent upon those findings, pursuant to s150D of the National Law, the applicant was referred to the Health Care Complaints Commission for investigation. A series of disciplinary hearings and adverse determinations in the Occupational Division of this Tribunal, differently constituted, then followed, as summarized below. 11 March 2021 - First Tribunal Hearing - Stage One 1. On 11 March 2021, after a Stage One hearing, adverse findings of unsatisfactory professional conduct and professional misconduct were recorded against the applicant. 2. Those findings were made in respect of the applicant's inadequate record keeping practices concerning his prescriptions of drugs to 24 patients as well as relating to the appropriateness of his history taking, examinations, clinical plans, investigations, assessments, and clinical decision making in respect of those patients, and the extensive inappropriate prescribing of benzodiazepines, narcotics, hCG, testosterone, androgens, and growth hormones. 3. In some instances, findings were made that the applicant had been grossly overprescribing without adequate explanation or apparent therapeutic reason, thereby raising the spectre of quantities of restricted drugs possibly being diverted illegally into the community. In addition, it was found that the applicant was engaged in selling drugs directly to his patients at a cheaper rate but for profit, in one case involving one patient expending of the order of $49,000 for the supply of synthetic human growth hormone. 4. Further adverse findings were made against the applicant in respect of inappropriate self-prescribing and prescribing for family members. 5. The Tribunal findings were as follows: 1. He had a universally very poor standard of medical record keeping that did not meet the basic criteria required for such records: Health Care Complaints Commission v Rahman [2021] NSWCATOD 25, at paragraphs [158] to [160]; 2. Notwithstanding recurrent interventions and advice from the Medical Council in the period between 2008 and 2009, the applicant aberrantly prescribed medications comprising combinations of opioids, potent benzodiazepines, in quantities far in excess of appropriate clinical practice, and prescribed testosterone, hCG and growth hormones, without adequate clinical assessment or informed patient consent: Health Care Complaints Commission v Rahman [2021], supra, at paragraphs [161] to [163]; 3. He had pursued an entirely inappropriate practice of "off label" prescribing of medications for family members without adequate clinical assessment or appropriate informed consent: Health Care Complaints Commission v Rahman [2021], supra, at paragraph [164]; 4. He had a history of an entirely inappropriate and gross scale of over-prescribing of certain medications, including alprazolam, diazepam, Endone, Lyrica, Tramal, Primoteston, Nexium and Avanza: Health Care Complaints Commission v Rahman [2021], supra, at paragraphs [165] to [166]; 5. He had retained an unexplained supply of residual ampoules of pethidine or morphine at his medical practice which could have been available for possible illegal diversion: Health Care Complaints Commission v Rahman [2021], supra, at paragraph [167]; 6. He ordered significant bulk supplies of somatotropin from a pharmaceutical supplier intended for direct sales to patients for profit, where in one instance, one of his patients was sold 32 vials of synthetic growth hormone for $49,000: Health Care Complaints Commission v Rahman [2021], supra, at paragraph [168]; 7. Contrary to the requirements of Clause 67 of the Therapeutic Goods Regulation 2006 (NSW), he had failed to immediately notify the Ministry of Health of the theft of vials of drugs from his motor vehicle on 21 October 2015: Health Care Complaints Commission v Rahman [2021], supra, at paragraphs [169] to [171]. 8. Findings of unsatisfactory professional conduct and professional misconduct were therefore recorded at paragraphs [172] to [175] of that decision. The proceedings were then adjourned for a second stage hearing for determination of appropriate sanctions and protective orders. 18 May 2021 – Second Tribunal Hearing - Stage Two 1. On 18 May 2021, in Stage Two proceedings, the above Stage One findings resulted in the cancellation of the applicant's registration: Health Care Complaints Commission v Rahman (No 2) [2021] NSWCATOD 65. 2. In paragraphs [53] to [54] of that decision, the adverse findings recorded that the applicant's gross over-prescribing, his practice of purchasing and reselling off-label drugs frequently used on the black market for bodybuilding, his failure to heed regulatory warnings over many years, and his pursuit of novel and unproven hair loss therapies, indicated that he did not adequately comprehend the ethical requirements necessary for appropriate practice and demonstrated a disregard for regulatory authority. Deregistration was the inescapable consequence of those findings. 3. In that decision, the applicant's registration was cancelled and an order was made prohibiting an application for review within 12 months of 25 May 2021 along with a further order that the applicant pay the costs of those proceedings. 2 September 2022 - Third Tribunal Hearing – Stage One 1. On 2 September 2022, a differently constituted Tribunal recorded a further series of adverse findings against the applicant. 2. In summary, those findings concerned the applicant's mismanagement of an adult female patient, referred to as Patient A. Whilst the Tribunal expressed an inclination to accept that the applicant had genuine concerns as to the safety and welfare of that patient following a consultation on 31 March 2018, the finding recorded that he had nevertheless attempted to address those concerns in a most inept and inappropriate manner by the involvement of another patient, Person Z. 3. Furthermore, it was found that the applicant's visit to the workplace of Patient A on 31 March 2018 "seems likely to have been another ill-judged and poorly thought-out attempt to address his concerns" over that patient's well-being: Health Care Complaints Commission v Rahman [2022] NSWCATOD 98, at paragraphs [100] to 126]. 4. Those latter circumstances did not result in any findings of either unsatisfactory professional conduct or professional misconduct, as explained at paragraph [101] of that decision, However, at paragraphs [125]-[126] of that decision, the Tribunal went on to make adverse findings against the applicant concerning unsatisfactory professional conduct and professional misconduct regarding his mismanagement of the Patient A's condition. 5. Those adverse findings were made on the basis that the applicant took what were considered to be seriously improper and unethical steps which breached the standard expected of a medical practitioner. That conduct, which involved excessively frequent telephone calls and text messages to Patient A, visiting her workplace, and breaching the confidentiality of her private information to a third party: Person Z. 6. The applicant's conduct in attempting to contact Patient A was therefore found to be excessive and oppressive, notwithstanding that at the time, he held legitimate concerns about her safety and welfare: Health Care Complaints Commission v Rahman [2022], supra, at paragraph [126]. 7. In that decision, at a time when the applicant was already subject to cancellation orders, at paragraph [126], he was found guilty of unsatisfactory professional conduct and professional misconduct with regard to his "most serious breach of [the patient's] privacy and confidentiality" by his disclosure of patient information to a third party and his excessive and oppressively frequent telephone calls and text messages to the patient under the guise of having concerns for her safety and welfare. 30 May 2023 - Fourth Tribunal Hearing – Stage Two 1. On 30 May 2023, following a hearing before a differently constituted Tribunal, a series of further critical findings were recorded against the applicant. Those findings were intended to operate as general deterrence to warn other practitioners against replication of that conduct as well as being for the protection of the health and safety of members of the public from what were assessed as being the substantial risks posed by the applicant: Health Care Complaints Commission v Rahman (No 2) [2023] NSWCATOD 68. 2. At paragraphs [44] to [48] of that decision, the Tribunal drew attention to the applicant's past aberrant conduct. That conduct was considered to be a valid indicator of probable future problematic behaviour. There is a basis in the literature for that proposition: E Brooks, M H Gendel, S R Early, D C Gundersen & J H Shore, "Physician Boundary Violations in a Physician's Health Program: A 19-Year Review" (2012) J Am Acad Psychiatry Law 40(1) 3. In that decision, it was also noted that, notwithstanding the applicant's expressed intention of improving his professional behaviour, he had in fact failed to appropriately act on warnings he had received from regulatory authorities to bring about relevant and desirable changes to his prescribing practices which had attracted critical adverse findings. 4. In the most recent of those critical findings, it was noted that the circumstances would ordinarily have attracted a further three months of de-registration or preclusion from applying for re-instatement if the applicant was still registered at that time. That was expressed as being "to ensure that [the applicant] reflects seriously and in depth upon the gravity of the behaviour which led to the finding of professional misconduct": Health Care Complaints Commission v Rahman (No 2), supra, at [47] and [51]. 5. In that decision, a finding was also made that if the applicant was currently registered, an order would have been made cancelling that registration and disqualifying him from registration for a period of three months. 6. In these proceedings, the applicant must overcome the significant hurdles that the combined series of those adverse findings represent, as they operate as a denouncement of his fitness to practise. Basis of applicant's claim for reinstatement 1. In these proceedings, now some 3 years after the applicant's deregistration, he unreservedly acknowledges that the adverse historical findings recorded against him as outlined above were entirely justified. 2. Following the applicant's extensive period of deep reflection during those 3-years, he has availed himself of further education, treatment, and support. He claims to have achieved appropriate insights into his past misconduct and has effected relevant changes to his prior deficient attitudes and understanding of what was required of him in the professional setting. He claims those changed circumstances justify his reinstatement to the Register of Medical Practitioners. 3. The applicant's claim for reinstatement was based on his own written and oral evidence given both in the prior and in the current proceedings. In essence, the applicant claims to have relevantly undergone a reformation of his professional flaws such that his earlier professional flaws and deficient insights which led to his deregistration should be seen as being no longer applicable. He claims to have achieved reformation through deep reflection over time, with the benefit of further education, and a more focused awareness of the need for him to maintain appropriate and ethical professional boundaries with patients. 4. The applicant also claims he has a demonstrated commitment to attending upon his treating psychiatrist and of having acquired a better understanding of his own personal vulnerabilities. He points to the evidence of his treating psychiatrist, Dr Stuart Saker, whom he has been seeing for treatment since August 2015. 5. The applicant draws attention to Dr Saker's opinion to the effect that he has now achieved a good understanding of the issues which led to his deregistration. Dr Saker has expressed the view that a repetition by the applicant of the conduct which led to his deregistration, would be unlikely. 6. The applicant also relies on character evidence from Dr Rodney Marks, a general practitioner and former practice associate, which suggests that the applicant would "strive to practice medicine correctly and responsibly", as well as evidence from Mr Zarco Mikulic, a chiropractor and exercise physiologist, who has expressed positive views as to the applicant's diligence, hardworking nature, and an attitude by which he "manages patients appropriately". 7. The applicant places heavy reliance on aspects of the positive predictions within the evidence of Associate Professor Anthony Samuels, the consultant forensic psychiatrist who undertook a medico-legal assessment of him on 24 January 2024 for the purpose of these proceedings at the request of the Health Professional Councils Authority. 8. That evidence will be considered after reviewing the applicable legal principles to be applied in cases where reinstatement is sought and setting out an overview of the salient features of the evidence. Legal principles for considering reinstatement 1. The legal principles for considering an application for reinstatement have recently been extensively summarised in the Tribunal decision in Danaei v Medical Council of New South Wales [2024] NSWCATOD 116, at [41] – [53], as follows: "41 The applicant bears the heavy onus of proof to satisfy the Tribunal by clear, solid and substantial evidence, that he has undergone a reformation of his past character flaws which led to his deregistration thereby justifying an order for his reinstatement onto the register of medical practitioners in this jurisdiction. 42 The discharge of that onus of proof cannot be achieved by simply making unsupported assumptions based on flimsy aspirational and platitudinal evidence where the paramount consideration is the safety and protection of the public: s 3A and s 3B of the National Law. The decided cases, which authoritatively explain those requirements are uncontroversial, and are summarised below. 43 The starting point for the Tribunal's consideration of a reinstatement application by a former medical practitioner against whom adverse findings have been made in respect of ethical breaches is to recognise the well-established principle that there is no public interest in forever denying a former practitioner the chance of redemption through reformation of character, if that can be satisfactorily established. 44 On the contrary, the decided cases indicate that the public interest is better served where practitioners who have offended against the accepted standards of practice but are otherwise suitably qualified are afforded a second chance provided reformation has been affirmatively established. 45 The test to be applied in an application for reinstatement is the provision of clear and demonstrative proof of persistence in habits of integrity, uprightness and responsibility: Dawson v Law Society of NSW [1989] NSWCA 58, (at 15.10), following Evatt v New South Wales Bar Association (NSW Court of Appeal unreported, 12 April 1972), which was cited with approval in Evatt v New South Wales Bar Association (NSW Court of Appeal unreported, 15 December 1981); Coe v Health Care Complaints Commission [2013] NSWMT 12, at [23]; Ameisen v Medical Council of NSW [2015] NSWCATOD 49, at [24]. 46 The paramount consideration in an application for reinstatement must be that the privileged status of registration as a medical practitioner should only be afforded to those practitioners who are suitably trained, qualified, and who can be trusted to practice in a competent and ethical manner according to expected standards of practice that are protective of the health and safety of the public. Of relevance to this case, where prior findings of unfitness to practice have been recorded, there is a heavy onus is on the applicant to displace the earlier adverse findings of unfitness and to clearly show that he is no longer unfit: Qasim v Medical Council of New South Wales [2021] NSWCA 173, at [17]-[19]; Jan v Health Care Complaints Commission [2021] NSWSC 350, at [21]. 47 The jurisdictional power to recommend reinstatement is conferred on the Tribunal by the force of the enabling legislation within the National Law. That power does not involve the exercise of a discretion. Instead, it is a power that must "be exercised with the greatest of caution and only upon solid and substantial grounds": Jan v Health Care Complaints Commission [2021] NSWSC 350, at [67], following Ex Parte Lenehan (1948) 77 CLR 403, 422; [1948] HCA 5, as was applied in Ng v Health Care Complaints Commission [2018] NSWCATOD 105, at [27]-[29], and in many other cases. 48 Central to the exercise of that conferred power, when considering an application for reinstatement, the Tribunal must assess the potential for risk to the health and the safety of the public: s 3A and s 3B of the National Law. 49 That assessment is required because studies show that practitioners with a history of prior sexual boundary violations are more likely to commit further sexual boundary violations. Those studies acknowledge the known phenomenon that further violations by such practitioners tend to go underreported for fear of legal retribution: E Brooks, M H Gendel, S R Early, D C Gundersen & J H Shore, "Physician Boundary Violations in a Physician's Health Program: A 19-Year Review" (2012) J Am Acad Psychiatry Law 40(1), 59-66. Accordingly, in this instance, a considered risk assessment is required. 50 The Tribunal's jurisdiction for undertaking those assessments is not punitive in nature. In Re Mansoor Haider Zaidi [2006] NSWMT 6, at [42], the former Medical Tribunal of New South Wales set out a conveniently digested form, a summary of the principles to be applied in applications for reinstatements, as follows: "1. The purpose of the jurisdiction which is exercised by the Tribunal is not for punishment or further punishment of the former practitioner. Instead the Tribunal's jurisdiction is for the protection of the public which deals with medical practitioners on the basis that they are members of an honourable profession who can be expected without reservation to conduct the affairs of their patients with honour and in whom the patients can place unbounded confidence. What is in question in an application for reinstatement to the Medical Register is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence. 2. An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears the onus of proving the case. It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds and as an applicant for reinstatement to the Medical Register he is in a more disadvantageous position than an original applicant. He must in effect displace the decision for deregistration which has been made. That decision involves the judgment that the applicant is probably permanently unfit to have his name on the Register. As a consequence, presumptions of fitness which might arise otherwise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 3. The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the applicant but the Tribunal's assessment of his character, uprightness, honour and trustworthiness. In the case of some offences committed over an extended period with deliberate intent and resulting in serious distress to patients it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the Register. 4. It is not a question of what an applicant has suffered in the past. It is a question of his worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. It is difficult to decide what a man will do in the future and the decision in a particular case is to a greater or lesser extent dependant upon the Tribunal's assessment of the applicant. In making that assessment, it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the Register. An understanding of that may assist the Tribunal to determine what are his standards and his understanding of a practitioner's responsibility, and from this, what he is apt to do in the future. Where what has been done in the past has been sufficient to indicate his probably permanent unfitness the Tribunal will require solid and substantial grounds for the conclusion that his standards have changed, his character has been reformed and that he will act honourably." 51 More recently, those guiding principles have been affirmed, echoed and applied without controversy in other cases: Zepinic v Health Care Complaints Commission [2020] NSWSC 13, at [85], citing the first instance decision of Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 92, at [7]-[8], also citing Haber v Health Care Complaint Commission [2018] NSWCATOD 16, at [12]. 52 In Re Mansoor Haider Zaidi [2006] NSWMT 6, at [42], the ultimate question to be determined was identified as being whether an applicant has established worthiness and reliability for the future practice of medicine, that is, whether the Tribunal can be comfortably satisfied on the balance of probabilities that in the future the applicant will act in conformity with the high standards and privileged responsibilities expected of the medical profession when dealing with the health needs of patients. 53 The latter considerations were unquestioningly applied in reinstatement cases determined by the former Medical Tribunal of NSW. They also apply unquestionably in this Tribunal, which is the successor to that Tribunal." 1. Our consideration of the issues raised in these proceedings will be in accordance with the approach outlined in the above summary of the applicable principles after considering some relevant factual matters within the evidence, as follows. Evidence overview 1. The applicant tendered two bundles of material. The first, comprised a folder containing a series of the applicant's statements and supporting materials (Exhibit "A", Tabs 1-9, pp 63), and the second comprising a series of references and certificates of attainment, and related correspondence, resulting from courses undertaken by the applicant (Exhibit "B"). 2. The evidence bundle tendered by the Medical Council comprised relevant historical records (Exhibit "1", Tabs 1-22, pp 1-829), and some additional policy documents which included the NCAT Expert Witness Code (Exhibits "2"-"4"). 3. The applicant gave oral evidence in addition to his written evidentiary statements. Those materials will be referred to where it becomes relevant to do so. In sequence, it is necessary to review the applicant's background circumstances, his registration history, the remedial efforts he has undertaken since the adverse findings were recorded against him, and the expert evidence tendered in the proceedings. Applicant's background circumstances 1. We have considered a series of the applicant's evidentiary statements (dated 27 April 2020, 4 May 2021, 22 November 2022, and 24 October 2023: Exhibit "B", pp 3 – 16, and the annexures thereto: Exhibit "B", pp 17 – 63), and his supplementary oral evidence. 2. The general tenor of that evidence is that the applicant has conceded and admitted that his prior poor professional conduct and shortcomings which led to his deregistration as having been well below the expected standard. He has expressed deep sorrow for damaging the reputation of the medical profession by his conduct. He has stated that he has carefully reviewed the adverse findings made against him. He has expressed remorse and contrition over his prior conduct, he has undertaken appropriate further educational courses and has appropriately reflected on his prior professional flaws and shortcomings. He now sees how he had naively placed his patients in potential danger as a result of his inappropriate professional conduct. 3. In addition, he points to the significant adverse impact his deregistration has had on his family. He does not raise this for the purpose of seeking sympathetic consideration, as that would be contrary to principle, but instead, he refers to this factor as a powerful reason for not allowing himself to repeat his past professional misconduct. 4. Specifically, he essentially stated that: 1. He has carefully reviewed each of the four adverse Tribunal decisions concerning his professional conduct; 2. He has expressed remorse for that conduct; 3. He has reflected on his professional mistakes, and if reinstated, he does not seek the authority to prescribe Schedule 8 and Schedule 4D drugs; 4. He has paid a dear personal price for his conduct and has delayed making an early application for reinstatement during his period of reflection and remediation, during which time he has kept his medical reading and education current within the permissible access limits that prevail because of his deregistration. 5. He believes he has much to offer as a reinstated general practitioner given the lessons he has learnt, and if reinstated, he would seek to pursue conventional general practice guided by and reliant upon contemporaneous guidelines. 1. For context, it is relevant to briefly outline something of the applicant's professional and personal history, and his family situation. He is aged 49 years. He is in a stable marriage and has three children, one if whom is an adult, and two are minors. 2. In 1999, the applicant obtained his medical degrees from the University of New South Wales. After completing his obligatory medical internship and working as a resident medical officer at Wollongong and Concord Hospitals, he pursued training as a general practitioner. In 2005, this resulted in his accreditation as a Fellow of the Royal Australian College of General Practitioners. He worked in general practice, first at a practice in Chester Hill for seven years, then at a general practice in Bankstown for four years, and then at a general practice in Miranda from 2016 until his deregistration. 3. Whilst working at Bankstown, the applicant was seriously injured following an axe attack carried out by an angry and disturbed patient. He developed a post-traumatic stress disorder ("PTSD") as a consequence of that attack. He attributed his failure to heed warnings from the PSU over his prescribing practices to an impaired mental state relating to his consequential and untreated PTSD. In those events, he had inappropriately self-prescribed Endone. 4. It was also a matter of concern that the applicant had ever considered it appropriate to issue prescriptions for himself and for family members. In relation to those matters, his records were found to have been deficient. 5. The applicant has described himself as having been "unassertive" and avoidant of conflict with patients. He proffered this as an explanation for his past tendency to give in to patient demands for prescriptions, which ultimately led to disciplinary complaints over his impugned prescribing practices involving Schedule 8 and Schedule 4D opiates, testosterone, benzodiazepines and, and other drugs which were misused. 6. The applicant has maintained his professional relationship with Dr Saker, and he continues to take prescribed medication, and he has appropriate treatment for his auto-immune illness. That latter condition does not interfere with his current work and there is no suggestion that it would interfere with his ability to work if he were permitted to return to practice medicine. Remedial efforts 1. After the applicant was precluded from continuing in medical practice he has been working full time in his brother's building company as a project manager. Whilst deregistered, he has nevertheless been undertaking some professional development courses that were available to him and he has been reading appropriate medical journals. He has also undertaken some courses concerning ethics and Schedule 8 and related prescribing issues. 2. The annexures to the applicant's evidentiary statements provide evidence of his participation in a range of educational courses concerning ethics in health care, practical solutions to patient boundary issues, a course on mental health run by the Black Dog Institute, and a CPD course in managing anxiety. The certificates relating to the latter two courses pre-dated his deregistration. The applicant has also read and studied the Medical Board / AHPRA publication entitled: Good Medical Practice: A Code of onduct for Doctors in Australia, 2020. All medical practitioners are presumed to be familiar with the content of that Code. Character references 1. We have considered the unsigned and undated character references from Dr Rodney Marks, a general practitioner who practises in the treatment of skin cancer both in New Zealand an in Australia. Dr Marks provided that reference in response to a request from the applicant's solicitor on 29 August 2023: Exhibit "B", pp 56 – 60. In this context, little weight can be given to such unsigned correspondence, especially where Dr Marks stated that his interactions with the applicant have been purely social. 2. We have also considered an unsigned character reference dated 5 September 2023 from Mr Zarko Mikulic, an exercise physiologist and chiropractor, who has known the applicant in the professional context since 2016, where they have co-managed long-term patients with chronic musculoskeletal problems: Exhibit "B", p 63. 3. Whilst Mr Mikulic has expressed the opinion that the applicant has managed patients with chronic musculoskeletal problems "very adequately with minimal analgesia", that opinion runs contrary to the objective facts as recorded the earlier Tribunal decisions. Mr Mikulic's opinion which stated that the applicant was "a very diligent and hard-working doctor, who cares [for] and manages patients appropriately" cannot be given much probative weight in light of the previous Tribunal findings and where the context for those opinions remains largely unexplained. 4. We have also considered the evidence of Mr Brett Hudson, a co-owner and practice manager of the Miranda Medical Practice where the applicant last worked before his deregistration. Mr Hudson, who holds tertiary qualifications in commerce, finance and accounting, has known the applicant since 2016. His description indicates that the Miranda Medial Practice is a relatively large enterprise where many general practitioners work and where the applicant had a significant patient following and was well regarded. He provided a written reference for use in these proceedings: Exhibit "B", pp 51 – 52. He also gave oral evidence. 5. Mr Hudson's evidence was partly observational and partly aspirational, as follows: 1. He observed that the applicant's aberrant conduct had occurred before he practised at the Miranda Medical Practice; 2. He observed that the applicant was a knowledgeable and hardworking practitioner who was strongly committed to patient care, was well respected by his colleagues, had participated in continuing professional development, and had abided by his practice conditions during his tenure at the Miranda Medical Practice; 3. He observed that whilst working at the at the Miranda Medical Practice the applicant conducted himself in a professional manner to the highest level, and he expressed his impression that the applicant was sincerely regretful over his past professional shortcomings, which he believed to have been "one-off incident"; 4. With knowledge of the details of the adverse prior Tribunal decisions, based on his knowledge of the applicant, he is prepared to take the applicant in again and assist him to return to practice at the Miranda Medical Practice, where he described having a framework in place to ensure the applicant would be well supported and mentored by senior experiences general practitioners in an accredited setting. 1. On a first reading we held reservations about an aspect of Mr Hudson's written evidence where he said he believed the prior adverse Tribunal decisions were based on "a one-off incident", which was plainly an understatement. 2. We therefore requested that Mr Hudson provide oral evidence to explain aspects of his written evidence, and we found that evidence to be impressive and it explained matters of concern to our satisfaction. We accept that Mr Hudson has been sufficiently aware of the factual basis of the prior adverse findings against the applicant. His evidence has been significantly influential on our ultimate findings, as will be explained in our consideration of the issues calling for decision with particular regard to the assessment of the potential risk to public health and safety if the applicant were to be reinstated to practice. Treating psychiatrist – Dr Stuart Saker 1. We have considered a letter dated 1 September 2023 in brief terms, from Dr Stuart Saker, the applicant's treating psychiatrist since 31 August 2015, where the pattern of consultations has been approximately 3 monthly: Exhibit "B", pp 55 – 56. 2. Dr Saker expressed a series of views as follows: 1. The applicant has been diagnosed with PTSD and depressed mood following an axe attack upon him at his work, and for which he takes antidepressant medication; 2. The applicant's "prescribing errors" and "poor decision making" occurred at a time when he had untreated PTSD, and he was being subjected to patient threats if he did not provide Schedule 8 prescriptions; 3. The applicant has "a very good understanding of the issues raised in these proceedings"; 4. The applicant "has complied with treatment and is very well and therefore unlikely to repeat the conduct which has been alleged and admitted"; 5. The applicant " … should return to practice in a safe environment with appropriate supervision. He is much safer now that he is on appropriate treatment. In terms of conditions I think ongoing treatment and supervision would be sufficient". 1. Significantly, we did not have the opportunity of exploring with Dr Saker the question of what if any contribution to the applicant's offending conduct was influenced by underlying personality issues. That question emerged from the evidence of Associate Professor Samuels. 2. We consider the letter from Dr Saker, on its own, to be in the nature of clinical historical correspondence. Insofar as he has expressed the above opinions, we place little persuasive weight on them because those sweeping statements were largely unreasoned. Statements by experts that simply invoke sweeping statements in the form of unsupported ipse dixit reasoning or oracular pronouncements do not provide a proper basis for acceptance of expert evidence because such opinions are untestable, and therefore should carry little weight: Makita (Australia) Pty Ltd v Sprowles, supra, at [59], [83] - [87], [93]; South Eastern Sydney Area Health Service v Edmonds [2007] NSWCA 16, at [130] – [131], following Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34, at 39 – 40. 3. In addition to those general law considerations concerning the acceptability of opinion evidence, in this Tribunal, the assessment of the reliability of expert opinions must also be guided by the degree to which those opinions are compliant with the well-understood procedural requirement of being appropriately reasoned, including by adequate identification of the basal assumptions for such opinions: NCAT Procedural Direction 3, clauses 19(c) and (d). 4. That commentary should not be read as a criticism of Dr Saker because, as is evident from the letter of request sent by the applicant's solicitor on 29 August 2023 (Exhibit "B", pp 53 – 54), Dr Saker was not provided with a copy of the NCAT Expert Witness Code of Conduct Code, where paragraph 19(c) and 19(d) of that Code requires an expert to set out reasons and assumptions for the opinions expressed. There is little doubt that an expert of Dr Saker's calibre would have approached the task of providing opinions differently if appropriately instructed with that Code. 5. Accordingly, having due regard to the required public interest, little weight can be given to Dr Saker's views as to the likely safety of the applicant on a return to practice. That issue requires a more detailed analysis. For that, we turn to the opinions of Associate Professor Samuels. Expert evidence – Associate Professor Anthony Samuels 1. On 24 January 2024, Associate Professor Anthony Samuels assessed the applicant's mental status at the request of the Health Professional Councils Authority and prepared an expert report of that assessment on the same day: Exhibit "B", Tab 20, pp 764-776. 2. Associate Professor Samuels described the applicant as pleasant, co-operative, with a reactive affect, and euthymic mood. He noted that the applicant's history of post traumatic symptoms has settled, and that he was no longer experienced intrusive thoughts, nightmares, or recollections of the precipitating events for his PTSD. He found no evidence of hypervigilance or avoidant behaviour. 3. Associate Professor Samuels was asked a series of questions on 9 topics of relevance to these proceedings, which he addressed in the following terms: 1. The applicant has continued to consult his psychiatrist, Dr Saker, since he was deregistered, and he has continued to take medications as prescribed; 2. In 5 relevant respects, the applicant has demonstrated appropriate insight into the events which led to his deregistration, as follows: 1. First, he is clear that he should not have prescribed opiates as freely as he did; 2. Secondly, he realises that his prescribing of anabolic steroids was inappropriate and not evidence-based; 3. Thirdly, he is aware that he should not have prescribed medications to himself and to family members; 4. Fourthly, knowing that he has made those prescribing errors, on a return to practice he is content to have restrictions placed on his prescribing rights for Schedule 4D and Schedule 8 drugs as he has learnt how to work with alternative methods to address pain related patient presentations; 5. Fifthly, noting his concerns over patient welfare, he is regretful that he made an error in seeking out-of-office contact with his female patient as he did, and that in doing so he had breached that patient's confidentiality, by speaking about her to a third person, another patient; 1. The applicant was euthymic, without present evidence of any active post traumatic symptoms, there was no evidence of substance abuse issues, he recognises that his past failures regarding acceding to inappropriate patient demands for medication, and his past failures to heed PSU warnings were due to his non-assertiveness and difficulty in setting limits when patients made prescription demands upon him; 2. The applicant's PTSD was in remission, and he did not show any convincing signs of a personality disorder or any other psychiatric disorder. The applicant's past judgment errors involving prescribing failures and difficulty setting limits with patients seem to have occurred when he was suffering from PTSD, and that factor "may well have been impacting [on] his judgment and leading him to engage in avoidant behaviours which could have contributed at least in part to some prescribing issues". Those factors led to the recommendation that the applicant continue to see Dr Saker at agreed frequencies and continue to take prescribed medications as directed to monitor for such factors. 3. Associate Professor Samuels was reasonably confident that the applicant's adverse regulatory experiences had been salutary him, with the consequence that professional boundaries would be maintained, he would be accepting supervision from a senior doctor, and he would ensure his mental stability by continuing to see Dr Saker; 4. The applicant has made it clear to Associate Professor Samuels that he will not be prescribing Schedule 4D and Schedule 8 medications again; 5. The only reservation Associate Professor Samuel expressed was with regard to the brief report of Dr Saker, which suggested the applicant was ready to return to practice despite the past history of PTSD and an Adjustment Disorder, was that the report did not comment in detail on the applicant's current mental state or a longer term treatment plan; 6. Associate Professor Samuels noted the possibility that the applicant's return to a medical environment could be triggering for his underlying PTSD. Consequently, he stressed the importance of the applicant maintaining contact with Dr Saker, and that he take prescribed medications for as long as is required; 7. Provided the applicant agreed not to prescribe S4D and S8 medications, and providing he continue to see Dr Saker and takes medications as prescribed, from a psychiatric perspective, he saw no clear need for the applicant to be subjected to any urine drug testing or hair screening following a return to medical practice. 1. When explored, the oral evidence of Associate Professor Samuels was not materially different to the views he expressed in his written report. Submissions of the parties 1. The parties made written and oral submissions. Applicant's submissions 1. The applicant recognises that he carries the heavy onus of persuading the Tribunal that he is presently fit to practise, albeit with conditions aimed at the protection of the health and the safety of the public. 2. In his final submissions, the applicant accepted the prior criticisms and deficiencies with regard to his excessive and inappropriate prescribing practices, his poor record keeping, and his past inability to resist pressure from patients for inappropriate prescriptions. Whilst he considered those problems were in part influenced by his PTSD condition, he has accepted personal responsibility for those professional failings. 3. The applicant submitted that the appropriate conclusions to be drawn from the evidence is that he has undergone a sufficient redemptive reformation of his professional flaws, and that through treatment and further education, he has acquired relevant insights into his previous professional failings such that he should be afforded a second chance because he is now a fit and proper person to be reinstated to the practise of his former profession. 4. The array of evidence relied upon by the applicant, in addition to his own testimony, which was tested by extensive questioning, requires a consideration of the extent to which he has pursued further ethical and professional education, his committed approach to his psychiatric treatment, and a consideration of character-related evidence from Dr Marks, his general practitioner colleague in his former practice, together with the evidence of Mr Hudson, the practice manager and co-owner of that practice, and a chiropractor / exercise physiologist who has known him for some time. 5. The applicant's submissions also drew upon his 3-year enforced period of deep reflection whilst deregistered. He submitted that he has learned the required the lessons. He submitted that the insights he has gained in that time have led to a commitment on his part not to repeat the conduct which led his deregistration. 6. For acceptance, that submission relies upon the assessment of a number of extrinsic factors, such as the applicant's pursuit of further education, his pursuit of psychiatric treatment to maintain his good health, and the expert opinion of Associate Professor Samuels, as earlier described. 7. Notably, the applicant's submissions are founded upon a pragmatic acceptance of a need for stringent conditions to be imposed on his future practice aimed at ensuring the protection of the health and the safety of the public. Medical Council's submissions 1. The Medical Council has taken the position that it neither consents to nor opposes the application for reinstatement, but in taking that position, it took the opportunity to test aspects of the evidence in support of the application. The Medical Council also took an active role in advocating for the imposition of particular protective conditions in the event of a reinstatement. 2. The Medical Council's submissions traversed the uncontroversial statutory framework for the consideration of the application for reinstatement, as well as highlighting the details of the baseline factual matters and observations which led to the previous Tribunal decisions concerning the applicant's unsatisfactory professional conduct and professional misconduct which led to his deregistration. 3. Whilst the Medical Council has taken the position of neither consenting to nor opposing the application for reinstatement, in the public interest it argued for stringent conditions to be imposed on the applicant in the event of his reinstatement. Consideration and determination of issues calling for decision 1. Our consideration of the issues raised in this application for reinstatement deal with the applicant's credit as a witness, his acknowledgments, reflections and insights into his past misconduct, his health issues, his attention to remedial education, the risk of him re-offending if reinstated, and our conclusion as to whether the evidence of his present circumstances reliably displace the effect of the earlier Tribunal decisions such that overall, he should be considered to be suitable for reinstatement, and if so, on what conditions. Credit findings 1. The applicant answered questions in cross-examination with candour, although some of his answers tended to stray from the point. In that regard, we have made allowances for the applicant's nervousness on account of the seriousness of the occasion and what was at stake for him. It was not suggested that any of his answers or explanations were untruthful or lacked credibility. We accept that he did his best to truthfully answer the questions that were put to him. None of his evidence was inherently improbable or the subject of contradiction. Acknowledgment, reflections and insight into prior professional failings 1. Whilst on one level it is concerning that the applicant acknowledged that in the past, he had knowingly prescribed drugs which required a specialist authorisation and he could not adequately explain why he had in fact done so without such authorisation (T37.1 – T38.44), to his credit he did not seek to dissemble or rationalise that inexcusable prescribing practice. 2. In oral evidence, properly, as was expected of him, the applicant made a series of concessions concerning his prior professional shortcomings as follows: 1. He was previously not adequately prepared for the challenges of metropolitan practice having undertaken his training on country towns: T71.36 - T71.42; 2. He acknowledged his prior deficient insight into his earlier ill-advised and harmful prescribing practices: T 29.8 – T29.26; 3. He acknowledged what amounted to the rash and wrongful if not reckless practice of non-specialist prescribing of large quantities of synthetic human growth hormone as a means of treating an overweight patient without properly going into literature or the clinical guidelines on that subject before prescribing the drug: T45 – T46; T49.40; 4. He acknowledged that in the past he has lacked appropriate insight into compliance issues (T51.23; T51.50; T52.2; T52.46) including in relation to prescribing Schedule 4 and Schedule 8 drugs to himself (T54.31) and to family members without appropriate informed consent (T53.33 – T 53.43; T54.28) and he acknowledged that good medical practice required avoiding self-prescribing: T55.26; T56.4; 5. He had previously shown a disregard for authority (T70.9) despite having been given well-meaning professional advice which he ought to have taken but did not take because he was "ill-equipped" at the time, and he was experiencing difficulty in "dealing with everything": T69.25; 6. He unreservedly accepted that his extensive prior practice of prescribing benzodiazepines, human growth hormones and other drugs had been far in excess of appropriate clinical practice and harmful, and "terrible": T23.48; T25.46 – T27.19; T28.20; T34.25; 7. He had been naive and had given little thought to the possibility that the drugs he was ill-advisedly prescribing might end up being diverted into black market community distribution (T24.5 – T25.5 T31.16) and he should have known better at the time (T 25.18) and this "big" error has taught him a valuable lesson: T25.42; 8. He had acted inappropriately and in an ill-judged manner in his attempts to follow-up Patent A to address his concerns for her safety and he accepted all the criticisms of his approach in that regard: T2.35; T3.46 – T5.34; T8.45 – T9.18. He candidly answered awkward questions in cross-examination and accepted the criticisms of his mishandling of that patient: T20.35 – T22.49; 9. He needed to be more assertive in assisting patients to be weaned off the use of benzodiazepines (T73.10) and regretted not being able to be more alert and assertive in avoiding conflicts with demanding drug seeking patients 30.1 – T30.30; 10. He agreed that his re-entry into practise would require a slow re-engagement over the course of some months starting with part-time practise initially seeing fewer patients: T17.20 – T18.15; 11. He accepts that having been away from practice for a significant period of deregistration, he will require supervision was required by the Medical Council; T10.8; T11.40; T12.25; T12.40; T16.38; 12. He had no intention or wish to seek to prescribe Schedule 8 and Schedule 4D drugs as he has identified other ways treating patients presenting with pain and anxiety issues (T2.7 – T2.20; T7.26; T30.40:T35.25 – T35.42;) and if a patient urgency were to arise requiring such prescriptions, he envisages that he would have adequate access to appropriate collegiate assistance to manage such problems: T7.44; T19.30; 13. He stated that there was "just no way" he would go back to his old prescribing habits: T74.43; 14. He considers that he will not be at risk of again falling foul by mis-prescribing drugs of addiction because, if reinstated he envisages that he will not be able to prescribe such drugs, even for patients undergoing palliative treatment, to avoid recurrence of past Schedule 8 and Schedule 4D prescribing problems, even in acute situations: T25.41; T33.29; T35.12; T35.49 – T36.2; T39.5; T50.35; T64.48 – T65.30; T65.35 – T66.9; T66.35. 1. We accept that those acknowledgments, which were palpably uncomfortable for the applicant to make, were made sincerely, with embarrassment, and with remorse over the enormity of his prior professional wrongdoings. 2. In our assessment, in making those acknowledgments, the applicant has demonstrated appropriate insight into his prior professional shortcomings which led to his deregistration. 3. We accept that appropriately, whilst the applicant has been deregistered, he has deeply reflected on his prior misconduct: T7.9 – T7.16. T8.24. He spoke with passion about the prospect of resuming general practice: T20.1 – T20.9. The detail and the context of that evidence persuades us that he is committed to the proper practise of his profession if he were to be reinstated. Health issues 1. We accept the applicant's evidence that his past inability to deal with aggressive patients was in part due to his non-assertiveness, and also in part due to his PTSD condition which followed an axe attack upon him by an angry patient at a former practice. We accept that although that experience had psychologically overwhelmed him for a time, that condition has now been appropriately treated and is in relative remission: T7.20. 2. We note that the applicant accepts that he should continue to see his psychiatrist at appropriate intervals and take prescribed medication (T13.1) and that he should also maintain appropriate treatment for his underlying auto-immune condition (T13.5), which of itself would not interfere with the practice of his profession. 3. It is apparent from the evidence that the applicant now leads a more balanced lifestyle focussed on matters of well-being and family life: T20.21 – T20.31. He has a general practitioner whom he regularly consults for his own health issues and stated there is now no need for him to self-prescribe: T58.7 – T58.20. He continues to see a psychiatrist with whom he has rapport and he feels comfortable to discuss with him matters of insight, appropriate prescribing, and his health issues (T61.16 – T61.42), and he takes his prescribed psychotropic medication which he finds beneficial: T62.25 - T62.31; 4. The fact that the applicant's PTSD is in manageable remission and remains the subject of appropriate consultations and review suggests that the applicant has no adverse health conditions that would at present contraindicate him being considered for reinstatement, although any reinstatement would have to be subject to appropriate health conditions to allow for appropriate management of possible future relapses in his mental health. We are guided and reinforced in that conclusion by the evidence of Associate Professor Samuels. Pursuit of remedial educational courses 1. We accept that to the extent the applicant was able, as a result of the restricted scope for attending courses due to his deregistration, he has extensively pursued appropriate remedial educational courses: T1 - T5; T7.12. We are comfortably satisfied that he has learned appropriate lessons from those courses: T9.41. He has made appropriate arrangements to try to keep up to date by reading relevant professional journals and to attend available courses (T13.48 - T15.24; T19.45) and he has undertaken and benefitted from appropriate courses in the ethics of medical practice: T59.24. 2. We accept the sincerity of the applicant's evidence that he now feels he is better equipped to deal with aggressive patients inappropriately seeking drugs: T8.7 – T8.15. Risk of re-offending 1. The applicant was cross-examined on the vagueness of some of his answers to questions about his past conduct: T64.4. In light of that line of questioning he was given the opportunity to more clearly explain himself, as follows: "HIS HONOUR Q. Would you agree with that proposition? A. Well, it's vague because I already said, I've explained that, what I think was incorrect so I mean, if something is incorrect and I've admitted it, it doesn't mean it's vague. I did admit. I mean, there was contributing factors but I still take ownership of what I did was wrong so I mean, trying to explain why it is wrong if there's, you know, if there's no valid reason doesn't mean it's vague. It's just that I'm admitting that what I did was wrong. STAFFORD Q. If the Tribunal accepts that your PTSD and auto immune condition contributed to the prescribing conduct, isn't the Tribunal left with the situation where they haven't had a clear explanation from you for why you engaged in the prescribing conduct? A. I don't understand what you're trying to say. Like, you're trying to say that it did contribute or it didn't contribute? HIS HONOUR Q. I think what is being put in essence is this that this is your opportunity to give as clear an explanation as you can for your prescribing conduct and the next step would be to relate that to why things would be different in the future? A. I mean, I suppose the first step is obviously admitting that what you done was wrong which I've already done in the past and I'm doing again now so I do realise that my prescribing was grossly over the top and dangerous. Now, in terms of me having those other conditions, they obviously didn't help. You know, the PTSD didn't help, my immune condition with the pain and everything didn't help but I've been getting treated for those conditions and everything is obviously well under control. I've got a specialist that I'm seeing and my only basically answer is to say that moving forward, obviously there's no chance of anything, any repetition of what happened in the past based on the fact that I believe, you know, given the fact that I've already been, I mean, five or six years where I haven't needed to prescribe and I've been compliant and I've, you know, I've been a good part of the practice. Everyone else, I get along with everyone else in the practice and I've been complying with, you know, seeing the specialist with treatment and there's absolutely no reason for anyone to think otherwise for the future. I think the last five or six years I've shown that, that that's a thing of the past and I 100% believe that I'm reformed and that no mistakes will ever be made again. [Emphasis added] [T64.5 – T64.46] 1. We consider the emphasised portion of that last answer was given within sincerity. In our assessment that evidence reflected the applicant's appropriate insight into his past professional wrongdoings. 2. We consider the import of that highlighted answer provides a measure of deterrent reassurance, which suggests that such conduct is unlikely to recur as the applicant has paid a high personal price to get to this point. We accept as credible his evidence that there is "just no way" he would revert to his old prescribing habits: T74.43. 3. We are reinforced in that view not only by the applicant's recurrent statements to that effect as cited at sub- paragraphs (11) to (13) of paragraph [109] above wherein he has stated he has no intention or wish to again prescribe Schedule 8 and Schedule 4D drugs, but also by his statements to Associate Professor Samuels was noted in his report (in his answers to a series of questions here identified as questions 5, 7, and 9), where he recorded that the applicant has made it clear that he will not be prescribing Schedule 8 or Schedule 4D drugs again: Exhibit "A", p764. 4. Associate Professor Samuels described the applicant's stated attitude on that point to be a very sensible position for him to take in the circumstances. Our conclusion on fitness for reinstatement has been considerably influenced by that evidence. 5. As foreshadowed at paragraph [83] above, we found the evidence given by Mr Hudson to be both persuasive and influential on the question of whether or not on reinstatement the applicant would pose a significant risk to public health and safety. His evidence persuades us that any such risk would be satisfactorily met and mitigated by the applicant practising in a supported and mentored environment where the conditions placed on his practice, notably prescribing conditions, would not materially disadvantage patients. 6. That evidence, and the Evidence of Associate Professor Samuels, relevantly favours reinstatement. Conclusion as to reinstatement 1. We find that the process of the series of Tribunal hearings to this point and the underlying events which based the proceedings have had a salutary deterrent effect on the applicant. 2. As is evident from the citations referred to at paragraphs [109] and [110] above, the recurrent theme in the applicant's evidence is that in the future he does not envisage or indeed wish being placed in the position of needing to prescribe Schedule 8 and Schedule 4D drugs of addiction. 3. The applicant's evidence in that regard represented a candid acknowledgment not only of his past professional misdeeds, but it also acknowledged the risk of his vulnerability to relapse into inappropriate prescribing practices. His stated position in that regard pragmatically reflects the view expressed by the previous Tribunal finding which considered that the applicant's past aberrant conduct could be seen to be a valid indicator of probable future problematic behaviour. 4. By implication, in giving evidence to the effect that he does not envisage prescribing Schedule 8 and Schedule 4D drugs, he necessarily accepts that a conditional reinstatement would mean he would be engaging in a restricted form of medical practice. 5. That said, it appears that, if necessary, any of his future patients who might be in need of treatment with such medications from time to time , for example, patients with chronic pain or needing palliative care, would not be materially disadvantaged because he would be working in a group practice where, without undue inconvenience, any such patients could be appropriately managed with the input of other licensed practitioners in the practice where he expects to work. 6. In those circumstances, given the applicant would not have the authority to prescribe Schedule 8 and Schedule 4D drugs, having due regard to the overriding consideration of the safety and the welfare of the public, we are persuaded that there would be no appreciable risk of the applicant repeating his prior prescribing misconduct because, by virtue of the conditions imposed on his practice, he would be precluded from prescribing Schedule 8 and Schedule 4D drugs of addiction. 7. We consider that latter consideration serves to tip the balance in favour of reinstatement of the applicant on the question of the potential risk to the health and safety of the public because he will not be able to prescribe those drugs. 8. Were the position to be otherwise, that is, if the applicant was seeking unconditional reinstatement, in light of his past history of prescribing misconduct, and his past proven underlying vulnerability to exploitation by demanding and aggressive drug seeking patents, and given the history of the need for extensive past regulatory interventions as outlined at paragraphs [17] to [23] above, we would have significant reservations about him being unconditionally reinstated. In those circumstances the balance would be tipped the other way, in favour of non-reinstatement. 9. Our acceptance of the applicant's evidence of not wanting to be able to prescribe Schedule 8 and Schedule 4D drugs of addiction, and the imposition of a condition on his practice to that effect removes a substantial layer of concern over the potential threat to public health and safety. 10. To that extent, and on that basis, we are persuaded that the gravity of the previous baseline in the form of prior critical Tribunal findings is now displaced in favour of conditional reinstatement, subject to conditions. 11. In conclusion, having examined the applicant's written and oral evidence, the expert evidence, and the evidence of the treating practitioners, applying the required legal criteria, including the paramount consideration of the health and safety of the public, we find that the applicant has discharged the heavy onus he carries and has justified his claim to a second chance order to facilitate his reinstatement onto the register of medical practitioners, subject to his adherence to the limitations and the conditions identified in the Appendix to these reasons, as may be varied from time to time if the Medical Council were to consider a such course to be appropriate. 12. The applicant must realise from the course that these proceedings have taken, a third chance is a less likely outcome. Disposition 1. We will therefore make an order to facilitate the applicant's reinstatement on the conditions identified in the Appendix to these reasons. Costs 1. The respondent was required to actively participate in these proceedings and was entitled to test the applicant's evidence and make submissions in the public interest. It follows that the respondent's costs incurred in that regard should be paid by the applicant on the ordinary basis, as agreed or assessed. Orders 1. We make the following orders: 1. Pursuant to s 163(1)(c) of the Health Practitioner Regulation National Law (NSW) 2009, the applicant, Bassel Abdul Rahman, may apply to the Medical Board of Australia for registration to reinstate him to the register of medical practitioners subject to the practice and health conditions listed in the Appendix to these reasons. 2. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) 2009. 3. Pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) 2009, the applicant is to pay the respondent's costs of these proceedings on the ordinary basis as agreed or assessed. ********** APPENDIX (126549, pdf) 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: 13 September 2024