Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Amjadi [2024] NSWCATOD 167 Hearing dates: 11 - 15 March 2024 19 - 22 March 2024 Date of orders: 22 October 2024 Decision date: 22 October 2024 Jurisdiction: Occupational Division Before: Hon M Le Poer Trench ADCJ, Principal Member Dr S Cowap, Senior Member Dr J Newton, Senior Member M Christiansen, General Member Decision: (1) The Respondent is guilty of unsatisfactory professional conduct as described in s 149B(1)(a) and s 139B(1)(b) of the National Law. (2) The Respondent is guilty of professional misconduct as described in s 139E of the National Law. (3) The Parties are each to file and serve their further evidence to support their Stage Two cases within 14 days of the date of this judgement, or such later date as the Tribunal may permit. (4) The Stage Two hearing is listed for 12 and 13 November 2024. (5) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any patient referred to in the proceeding is prohibited. Catchwords: OCCUPATION – medical practitioners – specialist plastic surgeon – guilty of unsatisfactory professional conduct – guilty of professional misconduct - s139(a) of the National Law – competency - sufficient knowledge and skill to practice as a specialist plastic surgeon Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law 2009 (NSW) Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Chief Executive, Queensland Health v Jattan [2010] QSC 92; [2010] QCA 359 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Rejfek v McElroy (1965) 112 CLR 517; [1965] HCA 46 Rich v ASIC (2004) 220 CLR 129; [2004] HCA 42 Sayar v Health Care Complaints Commission [2024] NSWSC 418 Weaver v Law Society of NSW (1979) 142 CLR 201 at 207; [1979] HCA 35 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mahyar Amjadi (Respondent) Representation: Counsel: Mathur R SC (Respondent) Lowson P with Waters M (Applicant) Solicitors: Health care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2023/00024599 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any patient referred to in the proceeding is prohibited. Judgment Introduction 1. This is a proceeding brought by the Health Care Complaints Commission (HCCC) against a plastic surgeon Dr Mahyar Amjadi (the Respondent). The evidence led by the HCCC related to 14 patients who were operated upon by the Respondent. The hearing lasted nine days. Each party thereafter provided extensive written submissions. 2. On the first day of the hearing (11 March 2024) as a preliminary to the matter the Respondent made an application seeking the following order: "That the evidence contained in the Health Care Complaints Commission brief in this matter, being documents under the hand of Dr Harvey Stern, (being signed reports of Dr Harvey Stern), are inadmissible." 1. The HCCC opposed the application. 2. On 14 March 2024 the Tribunal made the following ruling on the preliminary application: "The preliminary application of the Respondent seeking an order that the documents under the hand of Dr Harvey Stern, (being signed reports of Dr Harvey Stern), are inadmissible, is refused. The reasons for the refusal will be published with the decision of the Tribunal on Stage One of the determination." 1. We now provide the reasons for the decision, which we have set out in "Annexure A" hereto. 2. On 14 March 2024, the HCCC sought to tender a supplementary statement of Dr Stern dated 7 March 2024 that application was refused and we provide reasons as set out in "Annexure B" hereto. 3. Each of the parties tendered documents which were accepted by the Tribunal and marked as follows. 4. The HCCC tendered the following documents: 1. Exhibit A1: The HCCC volumes 1 to 10 (excluding documents the subject of successful objection). 2. Exhibit A2: Supplementary documents including the amended Complaint. (Excluding reports of Dr Stern and pages 20 to 68) 3. Exhibit A3: Letter dated 20 September 2022 HCCC to Dr Sanki. 4. Exhibit A4: Article titled Surgical Wound Dehiscence, improving prevention and outcomes. (2018). 5. Exhibit A5: Article "Image Analyzer Study of Skin in Patients with Morbid Obesity and Massive Weight Loss". 6. Exhibit A6: Article titled "Abdominoplasty-Related Nerve Injuries: 2014. 7. Exhibit A7: Article titled "Quality-of-Life Outcomes after Cosmetic Surgery. 8. Exhibit A8: Article titled "Optimal strategies for addressing developmental breast asymmetry and the significance of symmetrical treatment.". 9. Exhibit A9: Letter dated 14 June 2022 from HWL Ebsworth Lawyers to Dr Stern. 10. Exhibit A10: Printout of Respondent's logbook for 2017 (otherwise on USB provided by the Respondent) 11. Exhibit A11: No entry. 12. Exhibit A12: Dr Sanki's patient brochure re Brachioplasty (Arm lift). 13. Exhibit A13: Dr Sanki's brochure re "Thigh Lift". 14. Exhibit A14: 2018 spreadsheet logbook for the Respondent. 15. Exhibit A15: 2019 spreadsheet logbook for the Respondent. 1. The Respondent tendered the following documents. 1. Exhibit R1: Volumes 1 to 13 of documents. 2. Exhibit R2: Correspondence between the Respondent and the Australian Society of Plastic Surgeons August 2016 to August 2019. 3. Exhibit R3: Copy Dr Sanki power point representation of her 2019 logbook. 4. Exhibit R4: Copy Dr Sanki power point representation of her 2020 logbook. 5. Exhibit R5: Copy Dr Sanki power point representation of her July to December 2023 logbook. 6. Exhibit R6: Article titled: "Correlation of Complications of Body Contouring Surgery With Increasing Body Mass Index". July/August 2008. 7. Exhibit R7: Article titled "Complications of Body Contouring Surgery in Postbariatric Patients: A Systematic Review and Meta-Analysis." 2021. 8. Exhibit R8: Letter from Dr Stern to HCCC dated 19 August 2021. 9. Exhibit R9: Document titled "Internal Medical Advice Request" dated 27 February 2020 and generated by the HCCC. 10. Exhibit R10: Copy report by Dr Stern to HCCC dated 18 May 2020 regarding the Respondent. 11. Exhibit R11: Copy Dr Sanki's "Massive weight loss (mwl) surgery" slide show. 12. Exhibit R12: Copy Dr Sanki's consent form for Brachioplasty. 13. Exhibit R13: Copy Dr Sanki's consent form for Thigh Lift. 14. Exhibit R14: Copy Dr Sanki's Plastic Surgery Planner document. 15. Exhibit R15: Copy Statutory Declaration by Patient K dated 30 September 2019. 16. Exhibit R16: Supervision Report Summary by Dr Andre Safvat October 2023 to March 2024. 17. Exhibit R17: Copy of the Respondent's clinical records for Patient M. 18. Exhibit R18: Copy Supervision Reports by Dr Scott Turner. October 2023 to March 2024. 19. Exhibit R19: Further Amended Reply document dated 10 April 2024 and tendered with the consent of the HCCC. This document was prepared by the Respondent in answer to a request made by the Tribunal on the last day of the hearing of Stage 1. 20. Exhibit R20: Supplementary Statement of the Respondent tendered with the consent of the HCCC and dated 10 April 2024. 1. The material which was filed by the HCCC (found in exhibit A1 (10 volumes) and including the supplementary material (found in exhibit A2 (1 volume)) comprised in excess of 6,500 pages. The Respondent's material which was filed, comprised 13 folders and was more than 2,500 pages. In addition, there were numerous further exhibits which we have identified above. The Tribunal also ordered transcripts for the nine days of hearing. We set out those details to acknowledge the enormous quantity of evidence each of the parties' legal representatives were required to be familiar with, and to be able to take the Tribunal to, when the evidence was concluded and written submissions were required. 2. The HCCC moved on its Amended Complaint Document which formed part of exhibit A2. The original Complaint is provided in exhibit A1 volume 1 at page 11. It is necessary for us to refer to the original Complaint document as it sets out the Protective Order sought by the HCCC. That order sought the cancellation of the registration of the Respondent with a non-review period of 3 to 5 years for reinstatement. That outcome sought by the HCCC, clearly indicates the seriousness with which it regards the Complaint. It also set for the Respondent the task of defending such a complaint. The Respondent's defence address's some parts of the Complaint where he admits specific Particulars and that he has been guilty of unsatisfactory professional conduct. Other parts of the Complaint he denies. There are other parts which he does not admit. We will set out where the Respondent makes admissions and where he denies or does not admit a particular complaint or a Particular to a complaint. 3. As will be seen, Complaint One alleges the Respondent is guilty of unsatisfactory professional conduct as described in s139B(a) of the Health Practitioner Regulation National Law 2009 (NSW) (the "National Law") and addresses 20 Particulars which involved six patients who have been given pseudonyms and named as Patients A to F. 4. Complaint Two alleges the Respondent is guilty of unsatisfactory professional conduct as defined in s139B(b) of the National Law. It alleges a contravention of the Health Practitioner Regulation (New South Wales) Regulation 2016 (the "2016 Regulation"). That complaint addresses alleged failings in the making of medical records in relation to Patients A to F. 5. Complaint Three alleges the Respondent is guilty of Professional Misconduct as defined in s139E of the National Law. 6. Complaint Four alleges the Respondent is not competent within the meaning of s139(a) of the National Law to practise as a specialist plastic surgeon. The Particulars to Complaint Four relate to the Respondent's treatment of patients given the pseudonym names Patients G to N (8 in all). 7. The Background to the Complaints is uncontentious and stated as follows: BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a medical practitioner in New South Wales on 10 January 2007. The practitioner holds specialist registration in plastic surgery. The practitioner is also registered as a dental practitioner. The practitioner was first registered as a dental practitioner in New South Wales on 1 July 2001. The practitioner holds a Bachelor of Medicine / Bachelor of Surgery which was obtained from Flinders University in 2006. The practitioner also obtained a Bachelor of Dental Surgery from the University of Sydney in 2006. The practitioner became a Fellow of the Royal Australasian College of Surgeons (Plast) in 2016. Between 2016 and 2019 the practitioner operated at the Wollongong Plastic & Cosmetic Surgery; Westmead Private Hospital and Sydney Private Hospital. In 2016 the practitioner established Luxe Clinic, which is located at 161 New South Head Road, Edgecliff. The practitioner consulted and operated at the Luxe Clinic. 1. The Particulars to Complaint One are: PARTICULARS OF COMPLAINT ONE 1. Between 23 February 2017 and 27 August 2019, the practitioner failed to obtain informed consent from Patients B; D and E to F in relation to the surgeries as set out in Schedule B to the Complaint in circumstances where the practitioner did not outline specific risks associated with each of the patient's surgery. 2. Between 23 February 2017 and 27 August 2019, the practitioner failed to conduct adequate pre-operative assessments of Patients B; C and D A to F who attended the practitioner for consultations on the dates as set out in Schedule C to the Complaint. 3. Between 23 February 2017 and 27 August 2019, the practitioner failed to provide adequate post-operative care to Patients A, B and E following their surgeries as set out in Schedule D to the Complaint Patient A 4. On 21 December 2017 the practitioner performed an insertion of bilateral deltoid implants on Patient A in circumstances where he: (a) did not have the appropriate surgical skill and/or experience to perform the procedure; (b) failed to obtain advice and assistance from a more experienced colleague prior to conducting surgery. 5. On 2 May 2018; 21 June 2019; 25 July 2019 and 4 September 2019, the practitioner performed revision surgeries on Patient A in circumstances where: (a) the practitioner ought reasonably to have formed the opinion not to perform bilateral deltoid implant surgery on Patient A; (b) the practitioner ought reasonably to have formed the opinion the previous revision procedures were failing to achieve the desired outcome for Patient A; (c) the practitioner failed to obtain the advice and assistance of a more experienced colleague at any time. Patient B 6. On 17 May 2018 the practitioner inappropriately performed a bilateral breast lift procedure on Patient B in circumstances where: (a) the practitioner listed the surgery in the hospital records as bilateral breast reduction procedure; (b) the practitioner used the Medicare item numbers for a bilateral breast reduction procedure; (c) the practitioner had previously advised Patient B was not a candidate for any surgery involving skin reduction; (d) the practitioner performed the procedure when Patient B was approximately four months postpartum which is contrary to the clinically accepted practice in relation to any surgical modification to the breast postpartum. 7. On 10 July 2018, the practitioner inappropriately arranged for Patient B to be transferred to another hospital in circumstances where: (a) Patient B had bilateral gluteal wound dehiscence; (b) the transfer put Patient B at greater risk of wound contamination and/ or infection Patient C 8. Between 8 March 2019 and 1 August 2019, the practitioner failed to conduct any physical examination of Patient C prior to Patient C being admitted to Sydney Private Hospital on 1 August 2019 for abdominoplasty surgery. 9. The practitioner failed to obtain informed consent from Patient C in relation to her abdominoplasty procedure within a reasonable time period prior to the day of surgery on 1 August 2019. 10. On 1 August 2019, during the abdominoplasty procedure on Patient C, the liposuction cannula used by the practitioner struck and caused damage to Patient C's pancreas; liver and spleen. Patient D 11. The practitioner failed to obtain informed consent from Patient D within a reasonable time period prior to the day of surgery on the following dates: - 22 August 2018; - 23 October 2018; - 6 August 2019 First Surgery – 22 August 2018 12. Between 27 April 2018 and 22 August 2018, the practitioner failed to conduct any physical examination of Patient D prior to Patient D being admitted to Sydney Private Hospital on 22 August 2018 for a lower back lift procedure including liposuction. Second Surgery – 23 October 2018 13. Prior to performing a bilateral medial thigh lift and bilateral augmentation mammoplasty on Patient D on 23 October 2018, the practitioner failed to conduct any physical examination of Patient D until 22 October 2018, being the day before surgery. . Third Surgery – 6 August 2019 14. Between 8 February 2019 and 6 August 2019, the practitioner failed to conduct a further physical examination on Patient D prior to Patient D being admitted to Sydney Private Hospital on 6 August for revision surgery in relation to Patient D's bilateral medial thigh lift procedure performed on 23 October 2018. Patient E First Surgery 15. On 12 July 2018 the practitioner performed a bilateral brachioplasty procedure on Patient E in circumstances where the practitioner: (a) inappropriately removed excessive tissue from Patient E's right arm; (b) performed circumferential liposuction on Patient E's right arm which was not clinically indicated. 16. On 10 August 2018, the practitioner conducted a post-operative review of Patient E and noted that revision surgery within the axilla may be required but failed to make any plan to review Patient E again in circumstances where: (a) there was a significant difference in healing between the right and left arm; (b) the bilateral brachioplasty surgery on 12 July 2018 was complicated. Second surgery 17. On 11 December 2019 the practitioner inappropriately performed revision scar surgery on Patient E's right arm, in circumstances where scar revision surgery: (a) was not clinically indicated given Patient E's history of poor contour outcome with constriction bands of tension; (b) had a strong possibility of resulting in wound healing complications. Patient F 18. Between 23 February 2017 and 13 July 2017, the practitioner failed to arrange a second pre-operative consultation and assessment of Patient F in relation to a bilateral breast reduction procedure in circumstances where the practitioner failed to: (a) provide an opportunity for Patient F to ask any questions following the first consultation; (b) ensure Patient F understood the nature of the procedure; (c) explain the potential complications to Patient F due to her complex presentation, including the loss of the nipple/areola complex; (d) ascertain whether Patient F had achieved adequate weight loss prior to surgery. 19. The practitioner failed to obtain informed consent from Patient F in relation to her bilateral breast reduction procedure within a reasonable time period prior to surgery which took place on 13 July 2017. 20. On 13 July 2017 the practitioner performed an inappropriate surgery on Patient F, namely bilateral breast reduction, in circumstances where the practitioner: (a) failed to ensure allow an adequate blood supply to the breast tissue supporting the nipple; (b) failed to identify the inadequate bloody supply to the breast tissue. The conduct in any of Particulars of Complaint One are repeated and relied upon in combination as a course of conduct involving conduct amounting to unsatisfactory professional conduct. 1. Complaint Two, alleges the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened a provision of 2016 Regulation. This complaint addresses the Respondent's medical record keeping. 2. The Particulars to Complaint Two are as follows: PARTICULARS OF COMPLAINT TWO 21.For his care of Patients A – F on and between the dates set out in Schedule E to the Complaint, the practitioner failed to document information known to him, relevant to Patient A – F's treatment, contrary to sch 4, cl1(2)(a) of the 2016 Regulation including: (a) results of any physical examination and assessment of Patients A – F; (b) information concerning Patient A – F's medical history; and (c) pre-operative or post-operative images of Patients A – F. 22. For his care of Patients A – F on and between the dates set out in Schedule E to the Complaint, the practitioner failed to document the following information or advice given to Patients A – F in relation to medical procedures proposed by the practitioner, contrary to sch 4, cl 1(3) of the 2016 Regulation: (a) potential risk, complications and side effects of surgery; (b) benefits and advantages of surgery; (c) type of surgery and planned operative procedure proposed; (d) operative techniques; (e) alternatives to treatment; and (f) recovery time and post-operative/after-care treatment. 23. By reason of Particulars 21 and 22 above the practitioner's records for Patients A – F failed to contain sufficient information to allow another medical practitioner to continue management of the patient's case, contrary to Sch 4, cl 3(2) of the 2016 Regulation. 1. Complaint Three alleges the Respondent is guilty of professional misconduct under s 139E of the National Law. The Complaint relies on the Particulars supporting Complaints One and Two. 2. Complaint Four alleges the practitioner is not competent within the meaning of s 139(a) of the National Law in that he lacks the sufficient knowledge and skill to practice as a specialist plastic surgeon. 3. The Background to Complaint Four and the Particulars containing the detail are as follows: BACKGROUND TO COMPLAINT FOUR On 28 June 2019, the Medical Council of NSW ('the Council') held a section 150 hearing in relation to the practitioner. The outcome of the proceedings was no further action being taken. On 24 September 2019, the Council held a s 150 hearing in relation to the practitioner. Conditions were imposed on the practitioner's registration. On 20 December 2019; 18 September 2020; 25 November 2020; 15 July 2021 and 22 July 2022 the Council held s 150 proceedings in relation to the practitioner. On 22 July 2022, the Council varied the conditions on the practitioner's registration. The current conditions on the practitioner's registration include, inter alia: Condition 2 Not to perform any body-contouring surgery. Condition 6 To practice under Category A supervision when performing any cosmetic surgery procedures. Condition 6(a) The Council-approved supervisor must have Specialist Plastic Surgery registration and directly observe the practitioner performing all cosmetic procedure/s. PARTICULARS OF COMPLAINT FOUR Clinical Decision Making 1. Between July 2017 and August 2019 the practitioner's clinical decision making in relation to the care and treatment of Patients G; H; I; J; K; L and N was unsatisfactory. 2. The practitioner's clinical decision making in relation to Patients G; H; I; J; K; L and N did not meet the standards as set out in the following Codes of Conduct: (a) Clause 5.4 RACS Code of Conduct - Maintaining Professional Performance; (i) A surgeon will participate in systems for surveillance, monitoring and reducing risk; (b) Section 5.1 ASPS Code of Conduct – Pre and Post Operative Surgical Care; (i) a member should ensure that "their patients are adequately informed of the nature of the proposed treatment, the likely post­operative course and the possible risks, side effects and complications." (c) Clause 3.10.6 Medical Board of Australia Good Medical Practice, Code of Conduct: (i) reviewing adverse events and implementing changes to reduce the risk of recurrence. Surgical Skill 3. Between July 2017 and August 2019 the practitioner failed to demonstrate satisfactory surgical skill in relation to the surgeries performed on Patients G; H, I; L, M and N on the dates as set out in Annexure F to the Complaint. 4. The practitioner's surgical skill in relation to Patients G; H; I; L; M and N did not meet the standards as set out in the following Codes of Conduct: (a) Clause 1.2 RACS Code of Conduct – Standard of Clinical Practice (i) A surgeon will provide clinical care consistent with the prevailing standards of their specialty (b) Clause 1.9 RACS Code of Conduct – Standard of Clinical Practice (i) A surgeon will manage only those patients whose clinical conditions are within the surgeon's scope of practice, giving consideration to individual training, experience, credentialling and current practice profile Patient Management 5. Between July 2017 and August 2019 the practitioner failed to provide satisfactory overall patient management in relation to the care and treatment of Patients H; J and L. 6. The practitioner's patient management in relation to Patients H; J and L did not meet the standards as set out in the following Codes of Conduct: (a) Clause 1.2 RACS Code of Conduct – Standard of Clinical Practice (i) A surgeon will provide clinical care consistent with the prevailing standards of their specialty (b) Section 2.1 ASPS Code of Conduct – Upholding the Reputation and Standards of the Practice of Plastic Surgery: (i) Members must at all times maintain high standards in their practice of Plastic Surgery. 7. By reason of Particulars 1 – 6 above, the practitioner does not have sufficient knowledge and skill to practice as a specialist plastic surgeon in circumstances where his practice is insufficient in the following practice areas: (a) clinical decision making; (b) surgical skill; (c) patient management; 8. By reason of Particulars of 1 – 20 of Complaint One and Particulars 1 – 7 of Complaint Four above, the practitioner is not currently safe to practise as a specialist plastic surgeon without Category A supervision. 1. The Respondent's Reply document is contained at page 1 of volume 1 of 13 in exhibit R1. That document was accepted into evidence without objection. It is in a format which was the subject of a direction made by us on the last day of the hearing (22 March 2024). The relevant direction made was as follows: "NOTE: The Tribunal has asked the Respondent to provide an amended Reply document which is restricted to containing only answers to the HCCC Amended Complaint document filed 19 February 2024. The Tribunal has requested that the Reply be restricted to terms such as admitted, not admitted, denied or any other such response rather that explanations and other writings which might be expected to be seen in the Respondents statements admitted to evidence, or in other forms of the evidence so far received. The Respondent is requested to provide such document by 12 April 2024. NOTE: The Tribunal notes the Respondent has raised a concern that other information contained in the Reply document dated 19 February 2024 and filed 23 February 2024, should be in evidence and may not be included in the evidence so far received by the Tribunal. Accordingly, the Respondent, if he is to comply with the request of the Tribunal to simplify his reply document, would seek to provide the Tribunal with a further signed statement of the Respondent, to be accepted into evidence, that which incorporates the evidence which has previously been included in the Reply filed 23 February 2024. NOTE: The Respondent will provide the HCCC with a draft of the Reply document which satisfies the Tribunal's above stated request, together with the a draft of a proposed further statement of the Respondent, within 14 days of the date hereof and the HCCC will advise the Respondent within 7 days of receipt of same whether there is any objection to the Tribunal receiving the further statement of the Respondent with his requested amended Reply. In the event of the Respondent providing the Tribunal with the requested Reply document and at the same time a further statement of the Respondent, the documents are to be accompanied with a copy of the correspondence from the HCCC stating it has no objection to the Statement becoming evidence in the Stage One hearing." 1. The requested amended Reply document arose because the Reply document filed on 23 February 2024, is potentially confusing in the way it was set out. 2. The Further Amended Reply document was provided to the Tribunal as requested and is as follows: Further Amended Reply to application for disciplinary findings OCCUPATIONAL DIVISION 1. PARTIES Applicant Health Care Complaints Commission Respondent Dr Mahyar Amjadi 2. REPLY I reply to each of the grounds set out in the application/affidavit as follows: All Complaints I admit the background facts to the complaints. Complaint One I admit that I am guilty of unsatisfactory professional conduct in relation to some aspects of my patient care namely: Patient B – consent and pre-operative care as alleged in Complaint One Particular 1 and 2 Patient C - preoperative care as alleged in Complaint One Particular 2 Patient D - preoperative care as alleged in Complaint One Particular 2 Particulars of Complaint One 1. In answer to Particular 1 to Complaint One: a. In relation to Patients B, D and E regarding surgeries set out in Schedule B to the Complaint I admit that my consent process was deficient in some respects in relation to Patient B and was significantly below the standards expected. b. I admit that my consent process was deficient in some respects in relation to Patient D and Patient E but below rather than significantly below the standards expected. 2. In answer to Particular 2 to Complaint One: a. I admit that I failed to conduct an adequate pre-operative assessment of Patients B, C and D on the dates set out in Schedule C of the Complaint. 3. In answer to Particular 3 to Complaint One: a. I do not admit that I failed to provide adequate post-operative care to Patients A, B and E following their surgeries as set out in Schedule D to the Complaint. Patient A I do not admit Particular 3 Complaint One as it relates to Patient A. With respect to the Particulars 4 and 5 of Complaint One pertaining to Patient A: 4. I admit that I performed an insertion of bilateral deltoid implants but do not admit sub particular (a) for the reasons outlined in my supplementary statement; admit sub particular (b) with explanation as outlined in my supplementary statement. 5. I admit that I did perform surgeries on Patient A on 2 May 2018, 21 June 2019, 25 July 2019 and 4 September 2019 but say as follows with regard to the sub-particulars: a. The surgery on 2 May 2018 was not revision surgery, but first-time surgery for posterior deltoid implants. With regard to the surgery performed 2 May 2018, I do not admit sub-particulars (a), (b) for the reasons outlined in my supplementary statement and admit sub-particular (c). b. With regard to the surgery on 21 June 2019, and 25 July 2019 I admit sub particular (a), (b) and (c) for the reasons outlined in my supplementary statement. c. With regard to the surgery on 4 September 2019 I did not perform 'revision' deltoid implant surgery on 4 September 2019. The surgery on this day was to wash out and drain the seroma that had formed following the deltoid implant surgery. I do not admit sub-particulars (a)-(c). In relation to the express allegation against me in Particular 4 and 5 of Complaint One and responding specifically to the allegations of a lack of surgical skill and/or experience to perform the surgeries or recognition that I was failing technically, I do not admit that was the case or the failure. Patient B In relation to my overall care of Patient B, I admit Particular 1 and 2 of Complaint One. I state that although I did obtain consent from Patient B, my consent process was deficient, and I failed to conduct sufficient pre-operative assessments and planning of Patient B. I admit in this regard that my conduct was significantly below the standards expected in relation to Patient B. I do not admit Particular 3 Complaint One that I failed to provide adequate post operative care as alleged in relation to Patient B. 6. With respect to the Particular's 6 and 7 of Complaint One pertaining to Patient B I deny that I inappropriately performed a bilateral breast lift procedure on Patient B and say that on 17 May 2018 I performed a bilateral breast reduction on Patient B and do not admit that the bilateral breast reduction was inappropriate. I say the following with regard to the sub- particulars: a. I admit I listed the surgery as a bilateral breast reduction procedure because that is the surgery I performed. b. I admit I used the Medicare item numbers for a bilateral breast reduction because that is the surgery I performed. c. I do not admit that I advised Patient B that she was not a candidate for any surgery involving skin reduction in a general sense, but I admit that I did advise her that she was not a candidate for any surgery involving skin reduction until her weight had been stable for at least six months. d. I admit that I performed the surgery when Patient B was approximately four months post-partum and I admit that I should have delayed the surgery until a later date. 7. I admit that I arranged for Patient B to be transferred to another hospital on 10 July 2018 but do not admit that this was inappropriate. In relation to the sub-particulars, I say as follows: a. I admit that Patient B had bilateral wound dehiscence but do not admit that this was a reason not to transfer her to another hospital. b. I do not admit that the transfer put Patient B at greater risk of wound contamination and/or infection and state that any risk was not so great on balance to make it inappropriate for Patient B to be transferred to another hospital in circumstances where transfer was occurring to ensure continuation of care. Patient C In relation to my overall care of Patient C I admit Particular 2 of Complaint One, namely that I failed to conduct an adequate pre-operative assessment in particular that I failed to physically examine Patient C prior to the day of surgery, and I accept that this is significantly below the standards expected. With respect to the Particulars 8 and 10 of Complaint One pertaining to Patient C: 8. I admit that between 8 March 2019 and 1 August 2019 I failed to conduct any physical examination of Patient C prior to Patient C being admitted to Sydney Private Hospital. 9. Removed from Complaint 10. I admit that on 1 August 2019, during Patient C's abdominoplasty procedure, the liposuction cannula caused damage to Patient C's pancreas, liver and spleen. I do not admit that my admission to Particular 10 warrants a finding of a lack of skill and care significantly below the standards. Patient D In relation to Particular 1 of Complaint One as it relates to Patient D I did obtain informed consent however I admit that I failed to outline sufficiently specific risks prior to each surgery and accept in this regard my conduct was below but not significantly below the standards. In relation to Particular 2 Complaint One as it relates to Patient D, I admit that I failed to conduct adequate pre-operative assessments of Patient D prior to surgery as I failed to conduct a physical examination of her prior to the day of each surgery. I admit this was significantly below the standard expected. With respect to the Particulars 12- 14 of Complaint One pertaining to Patient D: 11. Removed from Complaint First Surgery – 22 August 2018 12. I admit that between 27 April 2018 and 22 August 2018 I failed to conduct any physical examination of Patient D prior to Patient D being admitted to Sydney Private Hospital on 22 August 2018 for a lower back lift procedure including liposuction. Second Surgery – 23 October 2018 13. I admit that I failed to conduct a physical examination of Patient D until 22 October 2018, being the day before bilateral medial thigh lift and bilateral augmentation mammoplasty. Third Surgery – 6 August 2019 14. I admit that I did not conduct a further physical examination of Patient D between 8 February 2019 (being the last post operative appointment) and 6 August 2019 (being the date Patient D was admitted to Sydney Private Hospital for revision of the original thigh lift performed 23 October 2018). Patient E In relation to Particular 1 of Complaint One as it relates to Patient E I admit there was a deficiency in outlining specific risks and that my consent process was below but not significantly below the standards expected. In relation to Particular 3 of Complaint One as it relates to Patient E, I do not admit that I failed to provide Patient E with adequate post operative care. With respect to the Particulars 15- 17 of Complaint One pertaining to Patient E. First Surgery 15. I admit that I performed a bilateral brachioplasty procedure on Patient E on 12 July 2018 and respond to the sub-particulars as follows: a. I do not admit that I inappropriately removed excessive tissue from Patient E's right arm. b. I admit that I performed circumferential liposuction on Patient E's right arm but do not admit that this was not clinically indicated. 16. I admit that on 10 August 2018 I formed the view that revision surgery to the axilla may be required for Patient E for the reasons outlined in my supplementary statement. Second Surgery 17. I admit that I performed revision surgery on Patient E's right arm on 11 December 2019 but do not admit that this was inappropriate. I say the following with respect to the sub particulars: a. I do not admit that this revision surgery was not clinically indicated as Patient E was complaining of discomfort in her right arm at the surgical site. b. I do not admit that this revision surgery had a strong possibility of wound healing problems but instead say that Patient E had the usual risk of wound healing problems that are inherent to this surgery. Patient F With respect to the Particulars 18-20 of Complaint One pertaining to Patient F: 18. I deny that I failed to arrange a second pre-operative consultation with Patient F prior to her bilateral breast reduction and say that this second consultation occurred on 30 June 2017. I do not admit sub-particulars (a) and (b) however I do admit sub-particulars (c) and (d). As to Particular 18(c) I admit that I did not warn Patient F that her risk of losing a nipple was greater given the large tubular nature of her breasts. In relation to Particular 18(d), I admit that I did not have a discussion with Patient F regarding the need for adequate weight loss prior to surgery but do not admit that this constitutes a significant failure. 19. I note that Patient F gave informed consent during her consultations with me on 23 February 2017 and confirmed her consent on 30 June 2017 and as a result do not admit that the issue of my consent related to the time between consultation and surgery, but rather the content of the consent process. I repeat that my failure was in the deficiency of the consent process and specific risk of nipple loss in Patient F's case. 20. I admit that I performed bilateral breast reduction surgery on Patient F on 13 July 2017 but deny that this is inappropriate as Patient F was suffering from significant hypermastia that was impacting on her life. a. I do not admit that I failed to ensure an adequate blood supply to the breast tissue supporting the nipple. b. I do not admit that I failed to identify the inadequate blood supply to the breast tissue for the reasons stated above. Complaint Two 21. I admit Particular 21 on the basis that there was not an absence of documentation but rather insufficient information on many occasions to be compliant with the Regulations on every occasion. 22. I admit Particular 22 on the basis that there was not an absence of documentation on the categories particularised but rather insufficient information on many occasions to be compliant with the Regulations on every occasion. 23. I admit Particular 23. Complaint Three I do not admit that I am guilty of professional misconduct. Complaint Four I deny that I am not competent within the meaning of section 139(a)of the National Law. Background With respect to the background to this complaint, it is incorrect to say that the Council held s150 proceedings on 18 September 2020, 15 July 2021 and 22 July 2022 and say that these proceedings were section 150A reviews that I applied for and at the conclusion of those proceedings the Medical Council chose to relax the conditions on my registration. With respect to the background of this complaint it is incorrect to say that the Council held a section 150 proceedings on 25 November 2020 and say that these proceedings were s150C proceedings held by the Medical Council to clarify the current conditions from a monitoring perspective. I admit the balance of the background to this complaint. Clinical decision making 1. I do not admit this particular 2. I do not admit this particular including sub particulars (a) to (c) Surgical skill 3. I do not admit this particular 4. I do not admit this particular Patient management 5. I do not admit this particular 6. I do not admit this particular. 7. I deny this particular. 8. I deny that I am not currently safe to practice as a specialist plastic surgeon. The evidence relied upon by the Applicant HCCC The Report of Dr Stern 1. As set out earlier, the admission of Dr Stern's written evidence was the subject of a preliminary application by the Respondent. We concluded the evidence should be available to the HCCC to seek to rely upon and that we would determine the weight to be given to his evidence, and that of other experts whose evidence will be considered by us, at the conclusion of all the evidence we will receive in this hearing. 2. Dr Stern provided his report across a number of different pages in Exhibit A1. His report addresses different patients, in relation to whom, he was asked to provide his report. 3. His first report addresses Patient A. Prior to addressing the specifics of the complaint relating to the surgery carried out by the Respondent with this patient, Dr Stern addressed a question which asked "In your response to each question, please advise whether (the Respondent's) conduct fell below the standard reasonably expected of a practitioner with equivalent training or experience. If you believe it did, also tell us: 1. What standard should we reasonably expect (i.e. what (the Respondent) should have done)? 2. Was the conduct significantly below the standard? 1. In relation to "what standard should we reasonably expect", Dr Stern provided a lengthy yet instructive insight into the training a plastic surgeon would have received prior to receiving a fellowship. We have noted the following from the report as it appears on page 197 and following in exhibit A1 volume 1 of 10. (a) At the completion of any surgical registrars training in Australia under the specific supervision of the Royal Australasian College of Surgeons, such as the training in the specialty area of and Reconstructive Surgery (PRS) undertaken by (the Respondent), an exhaustive and thorough examination process is carried out by the College, and the examiners must be satisfied regarding the candidates displayed knowledge and judgement. This is a verbal and written examination process, but does not involve the supervision of the candidate carrying out surgical procedures. It is expected that during the preceding five years of training each of which year is broken into 26 month hospital terms, the trainee is taught surgical techniques to be applied to operations, and also taught many actual surgical procedures, which are in every day usage, with variations in the manner that these surgical procedures can be carried out in the hands of different surgical supervisors. It is anticipated that deficiencies of technique are identified by the same supervisors, and they are corrected and if not corrected, then the trainee fails to progress. (b) The difficulty in training in the specialty area of PRS is in the provision of supervised training for cosmetic procedures. As for the most part, these are not carried out in the public hospital system where most training does occur, and that when trainees are rotated through private institutions, the patients do not unreasonably expect that the surgery is being carried out by the consultant with the registrar assisting only. I know that within (the Respondent's) training, he indicates that he was exposed to cosmetic procedures pertaining to major weight loss during one 6-month rotation at Macquarie University Hospital where he assisted a number of consultant surgeons. On completion of his training in Australia, (the Respondent) sort only a limited observer ship for further training and had already taken on hospital appointments in Australia as a consultant surgeon as well as opening a private practice, within six months of completing his training. (c) In response to the specific list of surgical procedures detailed in Appendix A, I would anticipate that the majority of competent recently qualified plastic surgeons in Australia would reasonably and cautiously carry out breast aesthetic surgical procedures, abdominoplasty, liposuction, and perhaps brachioplasty, particularly the breast and abdominal procedures frequently carried out both in the public and private sector as components of breast reconstructive surgery after the management of breast cancer. Similarly, many registrars will be exposed to a sufficient number of Brachioplasty procedures and perhaps carried out some of this surgery under direct supervision during their training. For the remainder of the procedures detailed, it is more likely that a trainee will either not have seen any of the listed procedures, or only assisted at perhaps a very limited number and it is more reasonable to expect that the prudent younger surgeon would assess the patient fully, and then suggest that either the consulting surgeon would arrange for a more senior colleague to assist with the surgery until more experience is gained, or possibly refer the patient to a more senior colleague and ensure that he himself assist that senior colleague in carrying out the procedure. This is the everyday practicality of recognising and working within the limits of one's competence and the provision of safe clinical care where there is any doubt regarding the necessary training and skills to carry out a particular surgical procedure" 1. In relation to the use of Skype for initial consultations with a Plastic Surgeon, Dr Stern said that in 2018 and 2019 it was not common practice for plastic surgeons to undertake consultations via Skype or other electronic media platforms for any form of cosmetic surgery and particularly not for body contouring procedures, especially after major weight loss. Some surgeons will offer this service for patients who live in a remote location, to try to minimise the inconvenience to the patient in arranging surgical procedure. It would be anticipated that this consultation would take place some days prior to the planned surgery, the patient almost certainly remaining in the city in which the surgery is scheduled to occur but having been saved the inconvenience of two trips and disruption to regular life. When the procedure being discussed is purely elective cosmetic procedure, most Plastic Surgeons would view a proper physical examination as being even more critically significant to have occurred on a face-to-face basis, information provided, and a reasonable cooling off period permitted before at least a second consultation before the surgery is carried out. Dr Stern also noted that if consideration is being given to a consultation for a patient in a remote location by an electronic medium it also suggests there is the potential for logistical problems after surgery with the duration of time which the patient can afford to stay in the city in which the surgery has occurred and therefore the manner which appropriate surgical after-care is organised. 2. Dr Stern stated that in all circumstances there should be a minimum of two face-to-face consultations with a reasonable period of time elapsing between these consultations and the final date for surgery. For any surgical procedures to limbs or trunk, including breasts, ideally the patient would remain in Sydney for a minimum of 10 to 14 days following the surgery and any period shorter than this really is a compromise and must be discussed in detail with the patient. Contact with the patient's local medical officer or an affiliated surgeon in a related subspecialty would potentially permit more rapid assessment of the patient if a problem arose, without necessitating the patient urgent travel back to Sydney. Patient A 1. Dr Stern then addressed questions asked of him in relation to the Complaint as it relates to Patient A. 2. Dr Stern asserted that the Respondent implied experience and confidence with the special surgical procedure Patient A required, by stating in communications with Patient A that "I believe I can help" and "I will see if I can source a 2 cm block, but have never tried that size" in relation to the use of deltoid implants, which is what Patient A sought be implanted. Dr Stern opined that it was below standard, but not significantly below, for the Respondent to conduct two separate consultations and proceed to definitive surgical procedure all within the space of eight days for a highly elective cosmetic surgical procedure. Dr Stern opined that the Respondent should have been alerted to be more cautious with proceeding to surgery with this patient given his history of undergoing other cosmetic surgical procedures prior to consulting the Respondent. 3. Dr Stern stated: "I certainly do believe that (the Respondent) should have sought advice and possible assistance from a more experienced plastic surgeon for this procedure not previously undertaken (by him) and overall (I) would view the preoperative consultation and assessment process as being significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". (We note the HCCC amended its Complaint One to withdraw Complaint One Particular 2 which addresses "Failure to conduct adequate pre-operative assessment of Patient A"). This does address Complaint One Particular 4(b) namely "failed to obtain advice and assistance from a more experienced colleague prior to conducting surgery". What is not clear from Dr Stern is whether he regards that aspect of the conduct of the Respondent as being significantly below the standard, or whether his assessment relates to the "overall" meaning of all aspects of the Respondent's interaction and conduct with Patient A. 4. Dr Stern was critical of the Respondent for failing to obtain a second opinion regarding the "ongoing management of Patient A from a senior colleague before further surgery in this area of which he had no expertise." That statement appears to relate to the first procedure carried out on 21 December 2017 and the subject of Complaint One Particular 4(b). It is also applicable to the subsequent procedures undertaken with Patient A and falls within Complaint One Particular 5(c). 5. In relation to Complaint One Particular 5(b) and (c), Dr Stern opined that it was the Respondent's "responsibility to decide not to operate when multiple procedures were failing to achieve the desired outcome for a purely elective procedure. This approach to practice is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 6. In relation to the overall view of the skill of the Respondent required to undertake the procedures which were performed on Patient A, Dr Stern opined: "I believe that (the Responded) did not display appropriate skill, care and judgement as the patient continued to require or desire further surgery for the same problem" that statement is connected to the following words: "this sequence of clinical decision-making and surgery (is) significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" That opinion appears to capture Complaint One Particular 4(a). 7. Overall, Dr Stern supported all of the complaints set out in Complaint One Particulars 4 and 5 and stated all fell within the category of conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 8. Dr Stern also described the Respondent's record keeping for Patient A as significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Not all of Dr Stern's commentary on the Respondent's conduct was negative. He described the surgery performed on Patient A on 2 October 2019 as "extremely appropriate". He also noted that the Respondent's medical records for Patient A improved over the time the patient was receiving ongoing surgery by the Respondent. Patient B 1. Dr Stern provided a report in relation to Patient B 2. This patient is the subject of Complaint One, Particulars 1, 2, 6 and 7. In his further amended Reply, the Respondent admits Particulars 1 and 2 of Complaint One. That is, he admitted he failed to obtain informed consent and he failed to conduct adequate pre-operative assessment. The Respondent stated he did obtain a consent for the procedure however he agrees it did not fulfil the necessary criteria to enable it to be called "informed consent". He admits his conduct was "significantly below the standards expected". The Respondent did not admit Particular 3 of Complaint One, namely that he failed to provide adequate post-operative care to Patient B. 3. In relation to Complaint One Particulars 6 and 7 the Respondent denied he "inappropriately performed a bilateral breast lift on Patient B. He admitted Particular 6(a) saying that the surgery was listed as "bilateral breast reduction" because that is what he said he performed. Likewise, he admitted Particular 6(b) saying he used the Medicare item numbers for bilateral breast reduction because that is what he performed. The Respondent admits Particular 6(c) (that he told Patient B she was not a candidate for skin reduction surgery), however, his admission is in the context of the advice being subject to the additional words "until her weight had been stable for six months." He admits in relation to Particular 6(d) that he performed surgery when Patient B was approximately four months post-partum and he admits he should have delayed her surgery until a later date. 4. Dr Stern was asked to provide his opinion in relation to the conduct of the Respondent in relation to his treatment and care of Patient B. Firstly Dr Stern opined that the record keeping for this patient was significantly below the standard expected. (Complaint Two, failure to document information known to him.) 5. Dr Stern was critical of the Respondent listing the surgery carried out with Patient B as "breast reduction surgery" he stated: "most surgeons would certainly not view this has breast reduction surgery…. but more equivalent to bilateral breast lifting surgery". That statement followed Dr Stern setting out that only 135g of breast tissue was removed from the left breast and 142g from the right breast. Dr Stern opined that the description of the procedure as being "breast reduction surgery" and the using the Medicare item number for "breast reduction surgery" is significantly below the standard expected. He further added: "It should be noted that there are very few circumstances in which breast lifting surgery carries any form of Medicare or Fund cover." It is not clear to us why Dr Stern added that information. 6. Dr Stern confirms that in his opinion the Respondent failed to conduct an adequate pre-operative assessment of Patient B. (Complaint One Particular 2.) He said that failure was significantly below the expected standard. He also confirmed that the consenting of the patient to the procedures to be undertaken was significantly below the expected standard. (Complaint One Particular 1) 7. In relation to Complaint One Particular 7 (inappropriately arranging transfer of Patient B to another hospital, Dr Stern stated that "it is very dubious clinical practise to arrange the transfer of a patient, currently an impatient, with what appeared to have been two large and open surgical wounds to another hospital to undertake that surgical management. This process would undoubtedly put the patient at greater risk of other complications, such as wound contamination or infection and must be viewed as a significant departure from normal clinical practise, significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." Patient C 1. Dr Stern addressed answers to questions asked of him in relation to Patient C. 2. Patient C is the subject of Complaint One, Particulars 2, 8 and 10. 3. In his further amended Reply the Respondent admits he failed to conduct an adequate pre-operative assessment of Patient C as alleged (Particular 2). He admits that failure is significantly below the standard expected. The Respondent admits Complaint One Particular 8 that between 8 March 2019 and 1 August 2019 he failed to conduct any physical examination of Patient C prior to Patient C being admitted to Sydney Private Hospital. The Respondent admits Complaint One Particular 10 that on 1 August 2019, during Patient C's abdominoplasty procedure, the liposuction cannula caused damage to Patient C's pancreas, liver and spleen. (We note the admission does not extend to the Respondent having "struck" Patient C's pancreas, liver and spleen.) The Respondent does not admit that the admission to Particular 10 warrants a finding of a lack of skill and care significantly below the standard. 4. In relation to Patient C, we note the following from the report of Dr Stern. (see page 295 of exhibit A1 volume one of ten.) 5. Dr Stern states that the Respondent's medical notes in relation to Patient C fall significantly below the standard expected, as does the pre-operative assessment of Patient C (Complaint One Particular 2 and Complaint Two) 6. Dr Stern opines that the failure of the Respondent to conduct any physical examination of Patient C prior to her admission to Sydney Private Hospital falls significantly below the expected standard. (Complaint One Particular 8). 7. Dr Stern stated in relation to the adverse events of organ damage for Patient C, which the Respondent admits, "The unquestioned occurrence of these adverse events in association with a purely aesthetic elective procedure demonstrates a level of surgical skill and anatomical understanding which is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." We understand this opinion to answer Complaint One Particular 10. 8. Dr Stern also addressed the nature of the medical records kept by the Respondent for this patient. He described the records as "overall extremely deficient". He said the record making was "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience as the Respondent. (This addresses Complaint Two). Patient D 1. Patient D was the subject of Complaint One, Particulars 1, 2, 12, 13, and 14. She is also the subject of Complaint Two, Particulars 21, 22 and 23. 2. In his Further Amended Reply document, the Respondent admits in relation to Patient D and Complaint One, Particular 1, his conduct in relation to obtaining informed consent from Patient D was below but NOT significantly below the standard expected from him. He admits in relation to Patient D and Particular 2 of Complaint One, that he failed to conduct adequate pre-operative assessments of Patient D prior to surgery as he failed to conduct a physical to conduct a physical examination of her prior to the day of each surgery. He admits that was significantly below the expected standard. 3. The Respondent admits Particulars 12, 13 and 14 of Complaint One. 4. In relation to Patient D, Dr Stern's expert report is set out at page 390 and following of exhibit A1, volume I of 10. He first addresses the Complaint as it relates to the failure to conduct an adequate pre-operative assessment. He stated: "Despite having four months available between initial consultation (via Skype) and first operation, there was no second consultation arranged, so that the initial physical meeting between (the Respondent) and this patient was on the day of planed surgery." Dr Stern opined that such conduct was significantly below the standard reasonably expected both in 2018 and currently. (Complaint One Particular 2) 5. In relation to the obtaining of "informed consent" for the surgery, Dr Stern opined that: "There is no detail recorded regarding his explanations to the patient of the planned surgery nor of the potential complications. This is significantly below the standard reasonably expected". (Complaint One Particular 1). 6. Dr Stern stated further that the notes made by the Respondent do note the intention to forward information sheets to the patient and that the patient does observe that she did receive printed information sheets but with no actual explanation provided by the surgeon, which is below but not significantly below the standard reasonably expected. (Complaint One Particular 1). 7. In relation to the second operation which took place on 12 October 2018, Dr Stern opined that the medical notes taken by the Respondent are significantly below the standard. (Complaint Two) 8. In relation to Complaint One Particular 13 Dr Stern opined that having the only face-to-face consultation being on the day prior to the surgery is an improvement on the arrangements for the first operation, but still a departure from safe clinical practice and significantly below the standard reasonably expected. He was critical of the apparent failure of the Respondent to provide further documentation to the patient in relation to the proposed thigh reduction or the augmentation mammoplasty. If that information was not provided that would be significantly below the standard, or alternatively if it was provided and yet not noted in the medical records, it would still be significantly below the standard (re medical record taking Complaint Two). Dr Stern also said the documentation for the operation performed on 6 August 2019 (revision surgery) was significantly below the standard expected. (Complaint Two). 9. Dr Stern said that in relation to the revisional surgery on 6 August 2019 there is documentation of a consultation having been carried out on 8 February 2019 however, the surgery did not occur until almost 6 months later. There was no further examination of the patient until the day of the surgery and there is no documentation of any discussion regarding particular after-care and potential complications in the circumstance of the patient travelling from interstate and requiring a return journey. The lack of documentation is significantly below the standard reasonably expected. (Complaint Two) Patient E 1. Patient E is the subject of Complaint One Particulars 1, 3, 15, 16, 17, 2. In the Further Amended Reply, the Respondent does not admit Particular 1. He admits there was a deficiency in his outlining specific risks so far as obtaining informed consent was concerned, however that failing was not significantly below the required standard. He does not admit Particular 3. 3. In relation to Particular 15, he does not admit he inappropriately removed excessive tissue from Patient E's right arm. He does not admit the circumferential liposuction he performed on Patient E's right arm was not clinically indicated. 4. The Respondent does not admit Particular 16 in relation to Patient E. 5. In relation to Particular 17, the Respondent does not admit the revision surgery performed on 11 December 2019 was inappropriate. 6. Dr Stern was asked to address the Respondents conduct in relation to Patient E. His report is found in Exhibit A1 volume 1 of 10 at page 489 and following. 7. Dr Stern firstly addressed the medical records relevant to this patient. He said: "The total content of (the Respondent's) consultation specifically pertaining to the actual planned surgery was 'cc, arms, D/Wife PT (patient) re options, needs'. There is no evidence in the patient's medical records with (the Respondent) of any discussion regarding the details of the planned surgery, the management following surgery or the potential complications. This inadequate documentation is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". (Complaint Two) 8. Dr Stern then stated: "Clearly the volume of tissue removed on the right arm was excessive in either circumstance leading to an excessively tight repair, with swelling, mild vascular congestion, and blistering of skin consistent with compromised blood supply to the skin due to the tension." (Particular 15(a)). 9. In relation to the post-operative review on 10 August 2018 Dr Stern could find no evidence of a further specific arrangement to review the patient again despite the significant difference in the pathway to healing on the right side compared to the left. There was a notation only that the patient would contact the Responded if she thought this was necessary after two months. (Particular 16 (a)) 10. In relation to the Respondents pre-operative assessment of this patient Dr Stern was unable to determine whether a proper assessment took place because of the inadequacy of the Respondent's medical record. He said: "This sequence of potentially inadequate pre-operative assessment leading to the poor implementation of an appropriate surgical procedure in the presence of other known risk factors is significantly below the standard reasonably expected." (Complaint Two). It is not clear to us which other Particular this comment might relate to. 11. In relation to the post operative care of this patient Dr Stern was critical of the lack of review for this patient after 10 August 2018. He stated "the lack of further review following only four weeks after a complicated operation would be viewed as significantly below the standard reasonably expected." (Complaint One Particular 3) Patient F 1. This patient is the subject of Complaint One, Particulars 18, 19 and 20. She is also the subject of Complaint Two Particulars 21 and 22. 2. In the Respondent's further Amended Reply he denies he failed to arrange a second preoperative consultation with Patient F prior to her bilateral breast reduction. The second consultation occurred on 30 June 2017. The respondent did not admit Particulars 18(a) and (b) however, he does admit Particular 18(c) and (d). He clearly states his admission of 18(d), however, he does not admit the failure amounts to conduct which is significantly below the standard. It is unclear to us whether his admission to 18(c) is an admission of conduct which is significantly below the standard expected of him, at the time of the procedure in question. 3. In relation to Particular 19 the Respondent does not admit he failed to obtain consent from Patient F. He does admit that there was a failure on his part "in the deficiency of the consent process and specific risk of nipple loss in Patient F's case". We note that if the consent process is deficient in any important aspect of information provided by the Respondent, it has the potential to fail the requirement for "informed consent". 4. The Respondent denies Particular 20 insofar as it asserts he performed an inappropriate surgery. He does not admit Particular 20(a) or (b). 5. Dr Stern was asked to provide his opinion in relation to this patient's surgery as performed by the Respondent. His report is set out in exhibit A1 volume 1 of 10 at page 509. We note the following from that report. 6. Dr Stern said: "There is no documented record of a subsequent consultation between the initial consultation in February 2017 and the patient ultimately proceeding to bilateral breast reduction on 13 July under the care of (the Respondent)." Dr Stern opined that such a failure was significantly below the standard reasonably expected. (It appears to us the Respondent is asserting there was a second consultation however, there is no record of same in the medical record for this patient.) (Particular 18). 7. Dr Stern opined that the medical records for this patient were significantly below the standard reasonably expected. (Complaint Two). 8. In relation to Particular 19, Dr. Stern stated "the only preoperative images appear to have been supplied by the patient and this photography suggests a presentation in which nipple/areola necrosis was always going to be a significant risk, and for a young patient, this should have been the subject of significant discussion and documentation including the provision of alternative technique pathways." This addresses the complaint of lack of informed consent and Dr Stern said this failure is significantly below the standard reasonably expected. (Particular 19). 9. In relation to Particular 20 alleging the Respondent "performed an inappropriate surgery on Patient F", we can find no specific opinion supporting that allegation in the report of Dr Stern. The evidence of the Patients relative to the Complaints (One to Three) (exhibit A2). Patient A 1. Patient A statement 12 June 2020 (Exhibit A1 volume 10 of 10 page 19). 2. In relation to this patient Complaint One Particular 3 alleges that between 23 February 2017 and 27 August 2019 the practitioner failed to provide adequate post-operative care to Patient A. The Respondent does not admit that Particular. Relative to that issue we note the following in the statement of Patient A identified above. Post-Operative care for Patient A 1. Patient A's first surgery (21 December 2017) was at the Bondi Junction Private Hospital. He went home the following day. He said he was told to "take it easy". Patient A said that on 26 December 2017 when he removed the strapping from his wound, he emailed the Respondent photographs and statements of his concern. That concern appears to be largely about appearance. 2. Patient A underwent a third operation on 2 May 2018 and returned home the same day. A fourth surgery occurred on 21 June 2019 and Patient A returned home the same day. Following that operation the Respondent asked Patient A to have an ultrasound of the operation site to ensure there was no haematoma. 3. Patient A underwent a fifth operation on 25 July 2019 at Sydney Private Hospital. He was told to rest and was discharged the following day. He was prescribed antibiotics. On 29 July 2019 Patient A sent the Respondent an email complaining that the antibiotics were making him feel unwell. The Respondent replied the same day advising that Patient A could cease taking the antibiotics. On 1 August 2019 Patient A advised the Respondent by email that his left arm was "more puffy and tight" compared to his right arm. The Respondent replied on 3 August 2019 by email advising Patient A to obtain an ultrasound if the swelling does not improve or if he continued to experience temperatures. On 9 August 2019 Patient A underwent an ultrasound examination in an NSW regional town. Patient A attended upon the Respondent for a post-operative consultation on 23 August 2019. Patient A advised the Respondent of his dissatisfaction with the appearance of his operation site. 4. On 25 August 2019 Patient A advised the Respondent by email that his right shoulder was very painful and swollen. The Respondent replied the same day and said either Patient A's GP or the Respondent needed to be able to "feel" the site (physically examine). On 27 August 2019 Patient A saw his GP. He was prescribed antibiotics and referred for an ultrasound. On 28 August 2019 Patient A and the Respondent exchanged SMS text messages with the Respondent providing medical advice. On 29 August 2019 Patient A sent the Respondent photographs of his shoulder. The Respondent advised the site needed to be drained and asked Patient A to attend Sydney Private Hospital that day or his rooms the following day. On 29 August 2019 Patient A attended a regional hospital in NSW and over a five-day period had fluid drained from his shoulder. The medical practitioner who performed that procedure was in contact with the Respondent. On 3 September 2019 Patient A saw a GP to check his shoulder after it had been drained. At around 4 September 2019 Patient A was unwell and was in phone contact with the Respondent. He informed the Respondent he was seeing his GP at the time. He was seeing his GP rather than the Respondent because he was in an area three hours drive from Sydney. 5. On 4 September 2019 Patient A was admitted to Sydney Private Hospital for revision surgery to his left anterior axilla and a washout of his right anterior axilla. He was discharged on 5 September 2019 his post-operative care was attended to by nursing staff. After the surgery Patient A had a telephone conversation with the Respondent. He was informed that laboratory test all came back negative on infection. On 10 September 2019 Patient A had an SMS conversation with the Respondent advising fluid was "spitting" from his right shoulder. The respondent asked him to attend Sydney Private Hospital. Patient A did attend. He said there was "constant fluid coming out of his wound". The Respondent sent Patient A Home with more gauzes and tape. Patient A believed the Respondent should have taken some further action at that time. He received an email dated 15 September 2019 from the respondent advising none of the wound swabs had grown any bacteria. On 16 September 2019 there was a further SMS, conversation with the Respondent. On 16 September 2019 Patient A set the Respondent a SMS message with an image of his right shoulder. The Respondent replied that Patient A could see him the following day at the Sydney Private Hospital. 6. On 17 September 2019 Patient A attended upon the Respondent who booked him for surgery to remove the exposed implant. On 17 September 2019 Patient was admitted to Sydney Private Hospital for removal of his right deltoid implant and washout. He was discharged the following day with instructions to "take it easy". There were further SMS exchanges with the Respondent on 18 September 2019. The Respondent suggested that Patient A stay overnight in hospital. 7. Between 19 September 2019 and 24 September 2019. There was further SMS contact between Patient A and the respondent. On 27 September 2019 Patient A received an SMS message from the Respondent asking how he was. On 19 September 2019 Patient A sent a photograph of his right shoulder to the Respondent. 8. On 1 October 2019 Patient A attended his GP for a follow-up consultation. On 2 October 2019 Patient A had a pre-operative discussion with the Respondent. On 4 October 2019 Patient A sent the Respondent an email. The Respondent replied the same day. 9. On 6 October 2019 Patient A received an email from the Respondent requesting a face-to-face meeting. Following that email Patient A sent the Respondent a further photograph of his operation site. The Respondent then requested Patient Attend for a consultation in Sydney on 11 October 2019. It was following that consultation that the Respondent informed Patient A that he would no longer be able to perform surgery for Patient A. 10. Patient A was not required for cross-examination by the Respondent in the hearing. The Statement of the Respondent addressing the post operative care of Patient A. 1. The statement of the Respondent is found in exhibit R1 commencing on page 19. At page 23 The Respondent addresses the first operation he conducted with Patient A. That occurred on 21 December 2017. There is nothing which addresses post operative care following this operation. The Respondent next saw Patient A in consultation in his Sydney rooms on 31 January 2018. There is nothing said about post-operative care having been addressed in that consultation. 2. The Respondent then addresses the evidence of Patient A which said that an operation occurred on 10 February 2018, however, the Respondent has no record of such an operation having been performed by him. 3. The Respondent said he next saw Patient A on 14 March 2018 for a review of his most recent surgery. There is nothing specifically said about post-operative care. 4. There was surgery for Patient A with the Respondent on 2 May 2018. There was a post-operative consultation by telehealth on 25 May 2018. The patient described how his wounds were healing. 5. On 14 December 2018, 30 March 2019, 30 April 2019 and 20 May 2019 the Respondent saw Patient A in consultation. There is no reference in the Respondent's statements to these consultations attending to any post-operative care although they each involved discussions about the procedures which had been undertaken, the aesthetic appearance of same and the proposal by the patient to proceed with further operations. 6. On 21 June 2019 Patient A underwent further surgery. His existing implants were removed and new implants trimmed and inserted. There is nothing stated as to planned post-operative care. The Respondent received an email from Patient A on 28 June 2019. There were photographs of Patient A's shoulders which showed asymmetrical presentation. An ultrasound was performed on 1 July 2019. 7. There was a further consultation on 19 July 2019. The surgical wounds had healed well. There were some aesthetic aspects of the presentation of Patient A's shoulders which were discussed. There was a pre-operative telephone call with Patient A on 22 July 2019. On 25 July 2019 there was an operation performed on Patient A at Sydney Private Hospital. No specifics as to post-operative care are referred to in the Respondent's statement in relation to that operation. There was a telephone call on 28 July 2019 to discuss post operative recovery. The Respondent provided advice in relation to the correct way to elevate arms to reduce swelling which Patient A was experiencing. On 29 July 2019 Patient A emailed to ask if he could cease antibiotics. The Respondent informed him he could do so. There was a further email from Patient A on 1 August 2019 reporting post operative discomfort and fever. The Respondent asked that Patient A have an ultrasound of the wound site. On 9 August 2019 the Respondent received the result of the ultrasound. 8. On 23 August 2019 the Respondent saw Patient A in consultation. There were further postoperative presentations which were discussed and further procedures discussed. The Respondent booked Patient A for scar revision. 9. On 30 August 2019 the Respondent was informed Patient A had developed swelling over the right axilla. An ultrasound was ordered. Patient A attended his local hospital to have a seroma drained. The Respondent spoke to the Emergency Department doctors. The Respondent recommended Patient A attend Sydney for a "wash out" of the wound site. 10. On 4 September 2019 the Respondent performed further surgery on Patient A. Nothing is stated about post-operative care for Patient A. 11. On 9 September 2019 the Respondent received an email from Patient A expressing dissatisfaction with the procedure of 4 September. There was also a description by Patient A of his wound and continued discharge. The Respondent gave medical advice. Further communication occurred between 14 and 16 September 2019. This focussed on the wound and continued discharge. On 17 September 2019 Patient A attended for a consultation with the Respondent. Upon examination, the Respondent recommended that the implant be removed. That occurred on 17 September 2019 at Sydney Private Hospital. There is nothing stated about post operative care. The Respondent did speak to Patient A by phone after the surgery as Patient A was unable to attend a face to face consultation with the Respondent. Patient A advised the wound was healing and he was starting to get more movement in his right arm. 12. On 2 October 2019 the Respondent stated he had a "long discussion" with Patient A about "how to manage his situation". On that day the Respondent removed the left implant. That was the final procedure the Respondent performed for Patient A. There is no statement as to post- operative care for Patient A following that procedure. The Respondent advised Patient A he was unable to perform any further surgery for Patient A. The Respondent's evidence addressing Complaint One Particular 4(a) (Did not have the appropriate skill and/or experience to perform the procedure.) 1. The Respondent does not admit the allegation contained in Complaint One Particular 4(a). The allegation addresses both skill and/or experience. He said his reason for not making the admission is contained in his "Supplementary Statement". That description identifies the document which the Respondent tendered on 10 April 2024 accompanying the Further Amended Reply dated 10 April 2024. The Supplementary Statement was given the exhibit number R20. 2. The Respondent in his statement contained in R1 between paragraph 22 and 69 provides his description of his interaction with Patient A and the operations performed. Between paragraph 70 and 73 the Respondent sets out a section which he titled "Reflections on Patient A". In those paragraphs we note the following as it addresses Complaint One Particular 4(a). 3. The Respondent stated that he was very aware of the fact that he had never performed the type of surgery Patient A was requesting. He said he was unable to find a more senior surgeon in Australia who he could discuss the surgery with. The Respondent said "I believed at the time I had performed enough implant surgery and had researched the surgical method enough that the surgery was within my level of expertise. It is accepted practice within plastic surgery that any new procedure is a combination of applying established principles to a new body part or tissue." 4. The Respondent did acknowledge that he would have ensured that the patient was psychologically assisted by an expert prior to any cosmetic surgery being performed, were he to have his time over again. He said: "I had little training in identifying patients with body dysmorphia in medical school or in the training programs I undertook. I have no recollection of receiving any training regarding referring people for psychological evaluation prior to performing cosmetic surgery. I am aware of the new requirement under the guidelines for all patients to have been screened for body dysmorphia using a diagnostic tool." 5. In his Supplementary Statement exhibit R20 we observe the Respondent addresses this Particular 4(a). We note the following from that evidence. 6. The Respondent states: "At the time I performed the surgery I was a Fellow of the Royal Australasian College of Surgeons (FRACS) and had extensive training and experience in relation to the insertion of implants, the principles of which equally applied to the insertion of bilateral deltoid implants. Further I had researched the surgical method to be applied in this implant surgery. Although I had not performed the surgery before I had performed similar surgeries of which the surgical skills are recognised as transferable. It is recognised that a practitioner does not have to have previously been involved in a particular surgery in order to perform it." Particular 4 (b) 1. The Respondent admits Particular 4(b) however, he provides an explanation in exhibit R20, the Supplementary Statement. That explanation is that "the surgery undertaken on Patient A was rare and as at 21 December 2017, I was not aware of any other surgeons located in Australia who had performed this surgery. I researched the surgical technique." Particular 5(a) and (b) 1. 2 May 2018 surgery. 2. In his Further Amended Reply document exhibit R19 the Respondent admits he performed surgeries on Patient A on the dates stated in the Particular 5. In relation to Particular 5(a) the Respondent stated in exhibit R19, the surgery on 2 May 2018 was not revision surgery. He does not admit he ought not to have formed the opinion to perform that surgery. He relied on the additional evidence addressing this Particular which is contained in exhibit R20. There (at paragraph 11) the Respondent set out that the planned surgery was requested by Patient A. He denied he should not have performed the implant surgery (emphasis added). 3. 21 June 2019 and 25 July 2019 surgery. 4. In relation to the surgery on 21 June 2019 and 25 July 2019 the Respondent stated in his Reply document exhibit R19, "I admit submission-Particular (a), (b) and (c) for the reasons outlined in my supplementary Statement (exhibit R20). In exhibit R20 the Respondent set out his view that he should have questioned Patient A's expectations. He should have referred him for psychological assessment to explore the possibility of body dysmorphia. He also agreed he should have formed the opinion that the previous revision procedures were failing to achieve Patient A's desired outcome. 5. 4 September 2019 surgery. 6. The Respondent states he did not perform deltoid implant surgery on this date. Particular 5(c) 1. The Respondent's answer to the suggestion he should have obtained advice and assistance of a more experienced colleague at the time of any of the deltoid implant surgeries he performed with Patient A is that he was unable to find a practitioner with experience in this area of cosmetic surgery, in Australia. He does however admit that he should have sought the advice and assistance of a more experienced colleague on the issue of Patient A's psychological complexities which the Respondent said he did not fully appreciate at that time. 2. By way of a general reply to Particulars 4 and 5, the Respondent in exhibit R20 said he did not accept the outcomes for Patient A arose because of any alleged lack of surgical skill on his part. He does see, with the benefit of hindsight that seeking advice to manage Patient A was required. He also acknowledged that a referral for psychological assessment of Patient A was warranted on 14 December 2018 after Patient A informed the Respondent of his surgery in the US. Overall however, given the absence of training he received and the lack of a relevant guideline for psychological assessment of cosmetic surgery patients at the time of the surgeries he performed with Patient A, his failures in relation to Patient A need to be considered having regard to the conditions which pertained at that time. Patient B 1. This Patient is the subject of Complaint One, Particulars 1, 2, 3, 6 and 7, together with Complaint Two, Particulars 21, 22 and 23. 2. The Respondent in exhibit R19 admits he is guilty of unsatisfactory professional conduct in relation to Complaint One Particulars 1 and 2. He admits his consent process was deficient in some respects in relation to Patient B and was significantly below the standards expected. 3. The Respondent does not admit Particular 3 which alleges he failed to provide adequate post-operative care to Patient B. In relation to Particular 6 the Respondent denies he inappropriately performed a bilateral breast lift procedure on Patient B. He asserts the operation on 17 May 2018 was a bilateral breast reduction operation. He does not admit that operation was inappropriate. In relation to Particular 7 the Respondent admits he arranged for Patient B to be transferred to another hospital on 10 July 2018 however, he does not admit that was inappropriate. In relation to Complaint Two and Patient B, the Respondent admits Particular 21 on the basis that there was insufficient documentation of information on many occasions. He admits Particular 22 on the same basis. He admits Particular 23. 4. The Particulars which are the subject of dispute in relation to Patient B, are made out by the acceptance, or otherwise, of the expert evidence and the evidence of the Respondent, addressing those disputed Particulars. The only Particular which requires consideration of Patient B's evidence is Particular 3. That complaint addresses the adequacy of the post-operative care provided to Patient B, by the Respondent. Evidence of Patient B which addresses post-operative care. 1. Patient B's statement is signed 2 July 2020 and is contained in exhibit A1 volume 10 of 10 at page 171. In her statement, Patient B stated she was a Director of Clinical Services in a Hospital and consequently knew what was standard-care in a hospital. Relative to post-operative care, Patient B says she had a breast lift operation on 17 May 2018. She said: "There were no issues while recovering at the hospital". On 21 May 2018 Patient B received an email from the Respondent's receptionist. The email contained some instruction and advice that a nurse/GP would do her "post-op check". There is nothing further said about that check-up by Patient B. 2. On 7 June 2018 Patient B contacted the Respondent's clinic and spoke to a lady (named) there. Patient B described bleeding around her wound. She sent photos to the Respondent. Patient B said she eventually healed however, she thought it took longer than normal to heal. 3. Patient B underwent further surgery (belt lipectomy and thigh lift) on a day (not specified but identified later as 4 July) in July 2018. The operation was performed at Holroyd Private Hospital. On day five of her hospital stay her dressings were opened to inspect her wounds. On 8 July she was still bleeding from her wounds. She complained to a nurse that she could feel her wound had opened up however until day 5 there had been no observation of her wound. She did not see the Respondent following the operation. On day five post operative she received two bags of blood transfusion. 4. Patient B said she was unhappy with the care she was receiving at Holroyd Hospital and so she rang Westmead Hospital to see if she could gain admission there. Patient B formed the view, based upon her experience in her own employment within a hospital, that she was not receiving appropriate care. 5. Patient B did see the Respondent whilst she was recovering in Holroyd Hospital. The Respondent informed her she required further surgery to her back, "because he took too much skin" from her back. She was transferred to St Luke's Hospital in Darlinghurst to undergo further surgery in two days time. 6. Patient B underwent further surgery at St Luke's Hospital and spent a week in that hospital. Following discharge, she attended an appointment with her GP in relation to concerns about "little holes" on her wound. She contacted the Respondent and saw him. He told her she would need debridement surgery. That surgery was conducted at Westmead Private Hospital. Following the surgery Patient B saw the Respondent who told her he would arrange for a community nurse to attend her house to change the dressings. He told her it could take nine months to heal her wounds. 7. Patient B saw the Respondent at his Wollongong rooms following the last surgery and again on 27 July 2018 for a review. On 28 July 2018 Patient B consulted another plastic surgeon and did not attend upon the Respondent again. 8. We note one of the concerns expressed by Patient B was that she was unaware of the size of the wound holes which were on her buttocks until they were photographed for her by a nurse. The Respondent had not told her of the size or appearance of the holes. The photographs attached to her statement illustrate two large holes which we accept would have been very confronting for Patient B to see. The Respondent's evidence in relation to Patient B Did he provide adequate post-operative care? 1. The Respondent provided in exhibit R1 at page 34 and following (concluding page 40) a lengthy statement in relation to Patient B. Insofar as it addresses Particular 3 and the adequacy of post-operative care, we note the following. 2. Following the first surgery on 17 May 2018 Patient B was discharged from hospital with "discharge instructions". (No detail is provided as to the nature or extent of the discharge instructions.). On 1 June 2018 Patient B attended upon the Respondent for a "check-up". 3. On 8 June 2018 the Respondent received a text message from Patient B advising she was bleeding from her wound. She attended upon her GP who sent her to the emergency department of the local hospital. The Respondent said he was satisfied Patient B was being appropriately cared for by her GP and local hospital. On 12 June 2018 the Respondent had a consultation with Patient B. 4. The second surgery occurred on 3 July 2018. This was a belt lipectomy and groin-only thigh lift. It was performed at Holroyd Private Hospital. Post operatively Patient B developed a haematoma on the right side that required evacuation. The Respondent had Patient B transferred to St Luke's Hospital to undertake further surgery to surgically close her wound. 5. The third surgery occurred at St Luke's Hospital on 11 July 2018. Patient B was discharged home with dressings on 15 July 2018. 6. When at home after discharge Patient B's wounds dehisced. The Respondent recommended further surgery to attend to the wounds. That occurred on 25 July 2018. Following that surgery the Respondent states: "Patient B was reluctant to be re-admitted to hospital for dressing changes. She was also unable to tolerate the dressing changes in the rooms when they were done at Wollongong. She chose to transfer her care to (her GP) and he took over her management. Respondent's evidence in relation to Particular 6 1. This Particular addressed "inappropriate performance of a bilateral breast lift on Patient B". The Respondent denies he performed a bilateral breast lift and stated that on 17 May 2018 he performed a bilateral breast reduction on Patient B. He denies that procedure was inappropriate for Patient B. 2. In his statement in exhibit R1 at page 40, the Respondent sets out his evidence under the heading "Reflections on Patient B". There he stated: "Even though I recognised at the time that Patient B was within her postpartum and therefore not at an optimal point for receiving body contouring surgery, I was persuaded by her requests to have surgery within her desired time frame and compromised on my boundaries as an expert advisor to the patient. With the benefit of hindsight, I should have been firmer in outlining my reasoning for body contouring surgery, not being an appropriate procedure in the immediate postpartum period, as I initially outlined in my letter to her GP." 1. As can be seen from the quoted passage from the Respondent's statement, he has conceded the thrust of Particular 6 of Complaint One (with the exception of whether the surgery was a bilateral breast lift or a bilateral breast reduction and the listing of same in the hospital records and the use of the appropriate Medicare item numbers.). To the extent that it may be necessary, we will address the issue as to the correct classification of the surgery performed. The real issue appears to us to be the performance of breast surgery per se on a female post-partum approximately four months. Respondent's evidence in relation to Particular 7. Was the transfer of Patient B to another hospital inappropriate? 1. The Respondent denies, on balance, that it was inappropriate to transfer Patient B to another hospital for further surgery on 10 July 2018. The Respondent stated in exhibit R20 that he had arranged the transfer to a hospital where he had admitting privileges and would be able to manage her treatment personally. He admits that at that time Patient B had bilateral wound dehiscence however he asserts that was not a reason to refuse transfer. He denies he put Patient B at greater risk of wound contamination which might occur arising from the transfer. He said that it was not such great a risk, on balance (having regard to other relevant matters), where the transfer was occurring to ensure continuation of care. Patient C 1. This Patient is the subject of Complaint One, Particulars: 2, 8 and 10 together with Complaint Two, Particulars 21, 22 and 23. The Respondent in exhibit R19 admits Particulars 2, 8 and 10. In relation to Particular 10 he does not admit the admission warrants a finding of a lack of skill and care significantly below the standards (emphasis added). 2. There is nothing specifically arising from the evidence of Patient C which can assist with any finding required. We have read the statement of Patient C. We particularly noted the following. 3. Patient C was 66 years of age and a working registered nurse, when she underwent an abdominoplasty operation on 1 August 2019 which was performed by the Respondent. She was residing outside Sydney. 4. The Respondent concedes that during the abdominoplasty procedure on 1 August 2019 the liposuction cannula caused damage to Patient C's pancreas, liver and spleen. Patient C reports that when she regained consciousness following the operation, she was "screaming with pain". The nursing staff changed her binder however that did not reduce her pain. She recalls "floating in and out of consciousness". She was taken for x-rays however she was not told what the result was. The Responded informed her she was to be transferred to Royal Prince Alfred Hospital (RPA) by ambulance she was transferred by ambulance and the Responded travelled with her. 5. At RPA she was seen by Dr Sandroussi. She underwent further surgery to ascertain the cause of her pain. In ICU following the further surgery Dr Sandroussi told Patient C that her liver, pancreas and spleen had been damaged. He did not say how that had occurred. She had a large incision wound from her breast to her pubic area. 6. Patient C said that she felt so sick she did not know if she would "make it". Following a few days in ICU she was moved to a ward where she stayed for a week. During the time she was in RPA the Respondent visited her every day. He recommended she return to Sydney Private Hospital to continue her recovery. 7. Whilst in Sydney Private Hospital, Patient C developed an infection. She had a central line inserted to carry antibiotics. She remained in hospital for six weeks. She underwent further operations. She believed she was going to die. She called for her solicitor to make a new will. 8. On 14 September 2019 she was discharged from hospital. Although the Respondent asked her to make a future appointment to see her, she did not do that. She did not want to deal with him anymore. On the day she was discharged she was told she had suffered a "staph infection". 9. She continued to suffer the effects of the operation at least until the time she made her statement on 18 June 2020. She says she is no longer able to work as a nurse as her memory has been impacted by the operations she had. She has resigned her employment and says she is unable to renew her registration as a nurse. She has decided to take legal action against the Respondent. 10. The Respondent's evidence in relation to Patient CIn exhibit R20 the Respondent stated: "I do not admit that my admission to the Particular 10, amounts to conduct that is significantly below the standards as the unfortunate intra operative event, has never occurred before or since and I say does not reflect incompetence or technical deficiencies so as to warrant a finding of a lack of skill and care significantly below the standards. Surgery comes with risks that on occasions, as was the case here, eventuate." 11. In exhibit R1 at page 40, the Respondent sets out his evidence in relation to Patient C. Relative to Particular 10, the Respondent says: "I reviewed Patient C on the ward on the same night (1 August 2019). She complained of minimal abdominal pain. A Chest X-ray performed appeared normal. I considered ruling out an abdominal perforation at the time and ordered an erect chest X-ray to rule out air under the diaphragm, which was not seen. On day one post-procedure, the ward called me to advise that Patient C was complaining of significant abdominal pain. I requested that an urgent CT scan abdomen be performed prior to review and drove into hospital to review her. ..the Radiologist said Patient C had fat stranding around the pancreas suggestive of pancreatitis. The scan showed no bowel obstruction… I arranged a transfer to the closest tertiary hospital and accompanied Patient C to the RPA. and stayed with her until she was seen by the general surgery department medical practitioners at around 2am. I received a call from Dr Sandroussi, upper GI surgeon at RPA on 3 August 2019….he reported a mini laparotomy found she had suffered traumatic pancreatitis. Dr Sandroussi believed that the cannula I had used during abdominoplasty may have struck the pancreas." 1. The Respondent explains that after seven days in RPA he arranged for her to be transported by Taxi to Sydney Private Hospital (SPH) under his care. At SPH Patient C's laparotomy wound became infected… The Respondent took her to theatre to debride the wound and placed a VAC dressing on it. He changed the dressing on the ward until swabs were negative. She then had further surgery to close the wound. The Respondent saw Patient C every day until her discharge. She was also seen by Dr Sandroussi. 2. Under the heading "Reflections on Patient C" the Respondent made some comment. He stated: "The complication that Patient C suffered was significant life-threatening and rare. I did not discuss the possibility of traumatic pancreatitis with her prior to her surgery because I thought that the possibility of such injury to her organs was extremely remote, although this complication was mentioned in the written consent documents that she received and signed prior to surgery. Intra-abdominal injury during liposuction is a very rare but recognised complication. I am aware of instances of it happening in Sydney, but I consider it to be a very rare occurrence." Patient D 1. This Patient is the subject of Complaint One, Particulars: 1, 2, 12, 13 and 14 together with Complaint Two, Particulars 21, 22 and 23. 2. The Respondent in exhibit R19 admits, in relation to Patient D, Particular 2. He admits that conduct was significantly below the expected standard. 3. In relation to Particular 1 the Respondent admits the "informed consent" sought and obtained from Patient D was deficient, however, although it was below the expected standard it was not significantly below the standard. 4. The evidence of Patient D is set out at page 229 of exhibit A1 volume 10 of 10. Given the admissions made by the Respondent, the evidence of Patient D is not controversial or of great assistance in determining the Complaint. However, we have read that statement and note the following. 5. In June 2020 Patient D was 50 years of age. She had, prior to consulting the Respondent undergone surgery (gastric sleeve). A breast lift, a tummy tuck and underarm to elbow skin reduction. Her first contact with the Respondent was in May 2018. She had back lift surgery on 22 August 2018. 6. Following the surgery, which Patient D said went well, she flew home. Soon after arriving home, she developed infection. She observed four "big holes" in the surgery site. There was infection which was treated by her local GP. 7. Patient D engaged the Respondent for a further operation, being a thigh lift and breast implant on 203 October 2018. After the surgery and Patient D had returned home (interstate) she developed four infections on the wound site. The infection was treated in her home area. 8. Patient D undertook a second procedure with the Respondent on 23 October 2018. It was a thigh lift and breast implant. Following discharge she went home, however about 10 to 12 weeks post-operative she started to feel really ill. Her breast was infected. She was told by her local health treater that she had a massive infection in her left breast which she could lose. She was in hospital in her local area for 10 days. 9. When Patient D was able to speak to the Respondent following her discharge from hospital, he informed her the breast implants he had inserted were too big. They were size E. She had requested no bigger than size D. 10. Patient D required revision thigh lift surgery which she undertook with the Respondent on 6 August 2019. The operation "ran smoothly" she said and she stayed in hospital for five days. Following discharge she travelled by air to her home. On that flight her wound started to bleed profusely. She attended her GP who examined the wound and advised the stitches had "burst". She contacted the Respondent who informed her that had occurred because she had not stayed longer in Sydney following the operation. She contacted the Respondent again and he said she should travel to Sydney where he would treat her however, she would need to stay for three weeks. She contacted the Respondent again to ask if he could just replace the failed stitches. He told her that if she could not stay in Sydney for three weeks there would be little use in the healing as the stitches would fail again on the journey home. 11. Patient D then elected to engage a plastic surgeon in her home district. She was treated there with two further operations. 12. Patient D says she has "big lumps everywhere" at the site of her operation. The Respondent's evidence in relation to Patient D 1. The Respondent set out in exhibit R1 at pages 44 to 57 his written evidence in relation to Patient D's complaint. 2. The Respondent set out detail of his correspondence with Patient D. The correspondence commences on 31 August 2018 with Patient D sending the Respondent an email which includes "I would like to thank you for your absolutely beautiful work you have done on me". 3. In relation to the 23 October 2018 operation and the resulting cup size for Patient D, the Respondent said that he inserted a 350cc implant which he estimated would achieve the desired cup size. At the time of the operation the Respondent said he had performed 140 such breast enlargement operations and it was based on that experience that he estimated an implant of 350cc would achieve the cup size Patient D sought. 4. The Respondent said Patient D was discharged from hospital on 31 October 2018 after an uncomplicated recovery. 5. The Respondent received further email correspondence from Patient D on 13 and 14 November 2018. He set that out. She raised concern about swelling in her left breast. He saw her in a Skype consultation on 16 November 2018. She reported she was recovering well. On 19 November 2018 there was a further email from Patient D. There was a follow up consultation on 30 November 2018 with a further one scheduled for 14 December 2018 however Patient D did not attend. 6. The Respondent was informed that between December 2018 and February 2019 Patient D developed mastitis and required hospital treatment. The Respondent was in contact with her treating practitioners during that time. 7. The Respondent sets out detail of further consultations and email exchanges with Patient D before a revision surgery on 6 August 2019. In one of the exchanges on about 23 June 2019 the Respondent stated the following in response to an email from Patient D: "I sincerely hope you are going into this operation with realistic expectations as to what can be achieved with your skin and your massive weight loss history. To be clear, these are the things that you should NOT be expecting: legs of someone who did not have weight and lost it; legs of someone who is younger; tight legs with zero loose skin; reduction in skin outer thighs, knees, carbs, ankles, or anywhere other than inside of your thighs; cosmetic sculpting of your leg; incisions based on your expected location of incisions; invisible scars. Things you should expect are: less skin at the top inside of your thigh. If you are not sure please see my video on what to expect from a thigh operation. Please remember that you had more than 4 litres of liposuction during your initial operation. This is a wedge reduction of skin, it is in no way a cosmetic sculpting operation, and if there is no indication for it, liposuction is not routinely carried out. Groin incisions are not carried out if not indicated. Current consensus amongst weight loss surge specialist is that growing incisions are best avoided. If I do not think it helps, I will not be performing it. If any of these do not match your expectations then surgery will not address your concerns. Looking forward to hearing your thoughts, and let me know if you still want to go ahead." 1. Prior to the operation on 6 August 2019. The Respondent informed Patient D that if he undertakes the procedure she would have to agree to stay in Sydney for at least seven days before flying home. She agreed. 2. On the last day of hospitalisation, 13 August 2019, the Respondent saw Patient D in hospital. She informed him she would be flying home that day. The Respondent "strongly advised against this and told her that if she did that she would be going against medical advice." The next day the Respondent was informed by Patient D's GP that the wound had dehisced on the flight. On 15 August 2019 the Respondent received a text from Patient D asking if he could "stitch her leg back together" if she flew to Sydney. The Respondent replied: "As I mentioned to your GP seeing that you are not willing to stay here until your wounds are healed, there is little point in suturing what will be opened by your travel home " 3. Under the heading "Reflections on Patient D" we note the following in the Respondents statement. "I do note that Patient D developed mastitis a few months after her surgery, but I am unclear as to whether that was a result of my surgery. I do not believe the surgery was a contributing factor and none of Patient D's treating doctors I spoke to suggested to me that the mastitis had been caused by my surgery…… I performed revision surgery for Patient D regarding her thigh lift on 6 August 2019. I was concerned about performing more surgery on her because she had been non-compliant in aspects of her after-care with the thigh lift performed the year prior….. I made it absolutely clear that she had to stay in Sydney for follow up and not to go straight back to Melbourne. I made it clear that this was a condition of me performing the surgery because if she flew home too early it could cause serious issues with her wound and could cause it to open up. When she flew home to Melbourne on the day of her discharge from hospital, this was against my strong medical advice". Patient E 1. This Patient is the subject of Complaint One, Particulars: 1, 3, 15, 16, and 17 together with Complaint Two, Particulars 21, 22 and 23. 2. The Respondent in exhibit R19 admits, in relation to Patient E, Complaint One, Particular 1, although he denies his consent process was significantly below the expected standard. He does not admit Particular 3. Admits the procedure on 12 July 2018 took place. Does not admit Particular 15(a) and Particular 15(b). In relation to Particular 16 he admits he formed the view that revision surgery to the axilla may be required for the reasons set out in exhibit R20. He does not address in his Reply the sub-Particulars 16(a) or 16(b). In relation to Particular 17, he admits the surgery took place on 11 December 2019 but does not admit the surgery was inappropriate. He does not admit sub-Particulars 17(a) or (b). The evidence of Patient E which addresses the Respondent's non-admissions. 1. Patient E's statement is found in exhibit A1 volume 10 of 10 at page 306. In relation to "informed consent" we note the following in her statement. Particular 1 1. Patient E said the Respondent told her in consultation before the first operation she had with him (12 July 2018), that he would remove excess skin from her arms and that the scars would be a thin line from just below her elbow and run up her arm in a zigzag pattern through to her armpit. This was to prevent restriction of movement in her arm from scar tightening, she asked him whether she would require a catheter and he advised her she would not. She did not receive the same documents which she later received in respect of revision surgeries. In her initial consultation the Respondent took some photographs of her arms. He advised that they would be a scar along the back of the arm and this would be numb for sometime and there was potential for some of that to remain numb forever. If I leaned on my elbows on a table it may feel uncomfortable with the scarring and this would likely be forever. The surgery would be day surgery however given the distance she was to travel home he would require her to stay overnight. 2. Patient E states she underwent a second operation on 9 October 2019 with the Respondent at SPH. She makes no statement in relation to pre-action consultation, information received or the signing of a consent document for that operation. 3. In relation to the operation which occurred on 11 December 2019 with the Respondent at SPH, Patient E says: "I recall signing another form at the hospital when I arrived and there was no discussion with (the Respondent) at all around the benefits, risks, adverse outcomes, complications, or alternatives to surgery. I believed that the result would be a faint thin scar-line as originally expected." 4. The complaints set out in Particulars 15 and 17 are addressed primarily by the expert evidence of Dr Stern and Dr Ritz. The Respondent's evidence is also important in relation to these two Particulars. Particular 3. 1. In relation to Particular 3 (post operative care), the procedure on 12 July 2018 is identified in Schedule D to the Complaint. In relation to the post operative care for that procedure we note the following in the Statement of Patient E. 2. Post operatively Patient E was provided with pain medication which she could administer by pressing a button. Her partner took some photographs of her right arm due to her concerns as to how swollen and purple in colour it was and different in appearance to her left arm which had undergone there was also a gaping deep hole at the front of her right shoulder. She was seen by the Responded who told her she would be remaining in hospital for a few more days longer than expected. Her arm continued to swell. The duty doctor examined her and when he held her arm up liquid burst all over her and the duty doctor. She panicked and began to cry thinking that her arm had burst open. The duty doctor explained it was popping blisters from the swelling. She experienced unbearable pain and was administered morphine. Her bandaging remained in place for a further six nights in hospital. On about the third day of her hospitalisation she was unable to locate her pulse and called the Responded who attended and found her pulse. He drew a cross on the bandage to show where her pulse could be checked. Patient E did not see or hear from the respondent again while she was in hospital. She was provided with an envelope which contained two appointment bookings at Wollongong Plastic and Cosmetic surgery clinic for post operation follow-ups. She was discharged from hospital on 17 July 2018. 3. On her first post-operative consultation she did not see the Respondent. She saw a nurse who dressed her blisters. She was told to return in one week to see the Respondent. She attended again a week later and saw the Respondent. He advised her he had trouble closing her arm in the operation and so he had used some non-dissolvable stitches as reinforcement. He instructed the nurse to remove some of those stitches indicating the ones he wished removed. He then left the appointment. She returned to see the Respondent another week later and the nurse removed the remaining stitches. The Respondent told her it was now fine to start massaging her scars. She was told she didn't require any further consultations with the Respondent. The Respondent's written evidence in relation to Patient E and Particulars 1, and 3. 1. In exhibit R20 the Respondent states the following in relation to Particulars 1 and 3. 2. In relation to Particular 1 he says: "I admit that, although I provided Patient E with written information regarding her proposed surgery, including a discussion about risks, I failed to emphasise and adequately warn Patient E of the specific risks involved, particularly healing and recovery time in the context of her massive weight loss." 3. In relation to Particular 3 the Respondent does not admit the Particular. Particular 1 1. In his statement at page 57 (Exhibit R1) the Respondent states the following relative to Particular 1. "On 15 June 2018 I had a further appointment with Patient E to discuss her proposed surgery. I explained and discussed the procedure. As part of the discussion I gave Patient E the opportunity to ask questions of me." 2. On 20 September 2019 the Respondent had a consultation with Patient E. By that stage she had a baby who was nine weeks old. The Respondent examined Patient E and noted she had widened and hypertrophic scars. She indicated that she would like a scar revision. Considering she had just had a baby and needed to be able to hold her baby, the Respondent suggested that he operate on one at a time starting with the left side. Patient E indicated that she would prefer not to have to wait to do the right side and wanted both arms done closer together. Patient E signed a consent form on 26 September 2019. A copy of the consent form is included in the Respondents evidence at Volume 7. Tab iv. 3. As was his usual practice, the Respondent arranged for his nurse to contact Patient on the day prior to her surgery. She explained the pre and post-operative instructions with Patient E and again confirmed the proposed surgery. She also went over some of the risks of the surgery that the Respondent had spoken about with Patient E, during her consultation previously, such as infection, wound breakdown, haematoma and anaesthetic complications. 4. The Respondent said he does not have any consultation notes indicating that he saw Patient E again before her next surgery for scar revision on 11 December 2019. She was sent consent forms for the surgery on 19 November 2019. A copy of the signed consent form is included in the Respondents evidence (misdescribed as volume 21). There was an appointment scheduled for 22 November 2019 however Patient E did not attend. The Respondent noted in the Statement of Patient E she stated the Respondent had told her she did not have to attend that appointment. The Respondent has no recollection of such a conversation and says it would be contrary to his usual practice. 5. Under the heading "Reflections on Patient E", we note the following in the Respondent's statement. "When reflecting on Patient I can see that I did not adequately warn her of the risks of her surgery prior to her consenting to it. I did provide her with detailed written information, but I did not check that she fully understood or make sure that she was mentally and practically prepared if those risks eventuated." Particular 3 1. This particular addresses the adequacy or otherwise of the post-operative care provided by the Respondent for Patient E. The Complaint document identifies the post-operative care following the procedure conducted on 12 July 2018. 2. In his statement in exhibit R1 at pages 57 to 75 the Respondent addresses this Particular 3. At paragraph 150 of his statement, the Respondent outlines the recovery of Patient E from the 12 July 2018 surgery and that it was attended to by close observation and management at hospital. She was discharged on 17 July 2018. The Respondent consulted with Patient E in his rooms on 20 July 2018. He discussed Patient E's recovery and he noted it was more difficult for her than he had hoped. 3. The Respondent saw Patient E again on 27 July 2018. He noted her wounds were healing well and swelling had subsided. There was some residual paraesthesia on her right thumb. There was a further review on 3 August 2018. At that time the Respondent noted her sutures had been removed and her wounds were healing well. 4. There was a text message exchange with Patient E. She advised the Respondent of some infection which had appeared on her wounds. She was taking antibiotics. The Respondent responded requesting Patient E have her GP take a swab for analysis. He also gave advice about wound dressing. He observed photos provided by Patient E. 5. On 10 August 2018 the Respondent saw Patient E for review. Her wounds were healing well. There were no other issues. Pathology showed no evidence of infection. 6. There was a further text messaging with Patient E. She identified discomfort when she moves "in some ways" and wondered if she had "torn something underneath". The Respondent replied and suggested a further appointment in six months time if there is still a continuation of that symptom. 7. Patient E was seen again on 20 September 2019. Patient E sought scar revision for her widened and hypertrophic scars. That was performed on 9 October 2019. The Respondent's written evidence in relation to Patient E and Particulars 15, 16 and 17 1. In relation to the operation on 12 July 2018, the bilateral brachioplasty, the Respondent denies he "inappropriately removed excessive tissue from Patient E's right arm". He denies the procedure he performed of liposuction on Patient E's right arm was not clinically indicated. In support of his case we have noted the following in his statement in exhibit R1 between pages 57 and 75. 2. At paragraph 187, under the heading "Reflections on Patient E" the Respondent stated: "It is a matter for the Tribunal to find whether or not the brachioplasty itself was an issue. At the time I felt that the surgery had been performed to the high level I expected of myself but the recovery time was significantly longer than expected and more complicated than I expected". Patient F 1. This Patient is the subject of Complaint One, Particulars: 18, 19 and 20 together with Complaint Two, Particulars 21, 22 and 23. 2. The Respondent in exhibit R19 the Respondent denies, in relation to Patient F that he failed to arrange a second pre-operative consultation prior to her bilateral breast reduction. He said it took place on 30 June 2017. He does not admit Particular 18(a) and (b) (that he failed to provide an opportunity for Patient F to ask any questions following the first consultation and that he failed to ensure Patient F understood the nature of the procedure). He does admit Particular 18(c) and (d). In relation to Particular 18(c) the Respondent appears to confine his admission to a failure to warn Patient F that her risk of losing a nipple was greater given the large tubular nature of her breasts. In relation to Particular 18(d) the Respondent appears to confine his admission to his not having a discussion with Patient F regarding the need for adequate weight loss prior to surgery but do not admit that this constitutes a significant failure. 3. In relation to Particular 19, which alleges the Respondent failed to obtain informed consent from Patient F in relation to her bilateral breast reduction procedure within a reasonable time period prior to surgery which took place on 13 July 2017, the Respondent, whilst admitting his consent process for Patient F was deficient in relation to the specific risk of nipple loss, does not admit his obtaining of informed consent for this patient was not obtained within a reasonable time period prior to surgery. He states he obtained informed consent in a consultation on 23 February 2017 and again on 30 June 2017. 4. In relation to Particular 20, the Respondent does not admit that he failed to ensure an adequate blood supply to the breast tissue supporting the nipple or that he failed to identify the inadequate blood supply to the breast tissue. Patient F's evidence relative to Particulars 18 and 19. 1. Patient F's statement is set out at page 385 and following in exhibit A1 volume 10 of 10. Her statement is dated 3 March 2021. In paragraph 4 and following she sets out her recollection about her breast reduction surgery with the Respondent in July 2017. She recalled that in late June or early July 2017 she had her first consultation and assessment for possible surgery. She saw the Respondent about a week later after she had been able to access her superannuation to pay for her surgery. At that consultation she was given a booklet about the surgery and paperwork which included the hospital forms. 2. The detail of the complaint in Particular 20 is really to be addressed by the expert evidence and the evidence of the Respondent. 3. Before leaving the statement of Patient F we note that her surgery was on 13 July 2017. On 1 August she was admitted to Auburn Hospital under the Respondent to examine why there was a "rotten smell" emanating from the breast reduction operation site. She was taken to surgery and when she awoke she found both her nipples had been removed. After she had been in hospital for a week she had dressings and sponges removed from her breasts. Whilst in hospital she experienced significant pain during the times nurses were attending to her wounds. After 10 days in hospital she had another operation to close the wounds on each breast. She was then able to be discharged. Following her discharge she continued treatment with her GP which included infection control via antibiotic treatment. The Respondents evidence in relation to Patient F as contained in exhibit R20. 1. The respondent said that he admitted he did not have a discussion with Patient F regarding the need for adequate weight loss prior to surgery but he does not admit that this constitutes a significant failure on his part. He did not discuss weight loss as a patient's BMI is not a contra indicator to breast reduction surgery. He stated: "I accept that a high BMI increases the risks of post-operative complications, but often patients are not able to proceed with their daily activities or weight loss goals without the breast reduction surgery. I have found no literature or guidelines that state that weight loss is a prerequisite for breast reduction surgery." 2. In relation to the "informed consent" which the Respondent said he received from Patient E, he stated: "I note that Patient F gave informed consent during her consultations with me on 23 February 2017 and confirmed her consent on 30 June 2017 and as a result I do not admit that the issue of my consent related to the time between consultation and surgery, but rather the content of the consent process. I repeat that my failure was in the deficiency of the consent process and specific risk of nipple loss in Patient F's case." The evidence of the Respondent in relation to Particulars 18, 19 and 20 (contained in his statement in exhibit R1 Volume 1 at pages 75 to 79). 1. In relation to obtaining informed consent from Patient F the respondent said: "I cannot recall exactly what risks I discussed with Patient F during this initial consultation, but my usual process would be to advise the patient of the risks of bleeding, infection, change of sensation, asymmetry, nipple loss and need for further surgery. She would also have been provided with written information to this effect. I also would have explained the surgery in detail and asked if she had any questions. I note that I have documented in my notes that I discussed the surgery and its risks with Patient F but she wanted to speak to her family before making any decisions." "On 30 June 2017, Patient F attended a second consultation with me where the risks and process of surgery was discussed again. At that consultation she decided to proceed and her surgery was booked for 13 July 2017." "On 14 July 2017, I saw Patient F in my rooms. I noted that her nipples were intact. The right was slightly congested but with good capillary refill there was no haematoma palpable. I was pleased with the result of the surgery and anticipated and uncomplicated recovery and good outcome." "Unfortunately the complications started about a week later on 28 July 2017. On that day Patient F attended my rooms and on examination it was revealed that she had almost complete necrosis of the left nipple and partial necrosis of the right. I discussed the situation with Patient If and what her options were for management. I advised her that, in my view, the best plan of management was debridement followed by a skin graft and nipple reconstruction." 1. The Respondent States that on 31 July 2017 Patient F contacted his practice and said that she had noticed a bad smell coming from her breasts. She was asked to attend fourth with at the Auburn Hospital where the Respondent was working. When patient Arrived at the hospital the Respondent performed an examination of her breasts, it was clear to him that she had a significant infection and urgent surgery was required. On one August 2017 the Respondent performed a debridement of Patient F's bilateral breast wounds. On 8 August 2017 the Responded performed a wound closure on Patient F. On 9 August 2017, Patient F was discharged from hospital with instructions to present to the Respondents rooms for review on 11 August 2017. Patient F attended the Respondents rooms on 11 August 2017, 18 August 2017, 24 August 2017 and 22 September 2017. Complaint Two 1. This Complaint alleges the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2016. 2. The Complaint Two is particularised in Particulars 21, 22 and 23. In relation to Particulars 21 the allegation is that the Respondent failed to document information known to him in relation to Patients A to F between the dates set out in Schedule E to the Complaint. In relation Particular 22 the allegation is that the Respondent failed to document information or advice given to Patients A to F in relation to medical procedures proposed by the Respondent for those patients. There are six specific types of information listed. In relation to Particular 23 the allegation is that the Respondent failed to ensure his records for Patients A to F contained sufficient information to allow another medical practitioner to continue management of the patient's case. The specific part of the Regulation contravened is listed with each of those Particulars. 3. Schedule E to the Complaint is a table of Patient's pseudonyms and dates. Patient A is listed with the dates 13 December 2017 to 13 November 2019. Patient B is listed with the dates 23 March 2018 to 27 July 2018. Patient C is listed with the dates 8 March 2019 to 13 September 2019. Patient D is listed with the dates 27 April 2018 to 13 August 2019. Patient E is listed with the dates 9 March 2018 to 30 January 2020. Patient F is listed with the dates 22 February 2017 to 22 September 2017. 4. In exhibit R19, the Respondent's Reply, he says the following: "Complaint Two. Particular 21. I admit Particular 21 on the basis that there was not an absence of documentation but rather insufficient information on many occasions to be compliant with the Regulations on every occasion. Particular 22. I admit Particular 22 on the basis that there was not an absence of documentation on the categories particularised but rather insufficient information on many occasions to be compliant with the Regulations on every occasion. Particular 23. I admit Particular 23." Complaint Three 1. This complaint alleges the Respondent is guilty of professional misconduct under s.139E of the National Law. To establish this Complaint the HCCC needs to establish that the Respondent either "engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration". The Particulars of the Complaint are Complaints One and Two and the Particulars thereof are relied on individually and cumulatively. 2. The Respondent in exhibit R19 does not admit he is guilty of professional misconduct. Complaint Four 1. This Complaint alleges the Respondent is not competent within the meaning of s139(a) of the National Law, in that he lacks sufficient knowledge and skill to practice as a specialist plastic surgeon. 2. Section 139(a) states 139 Competence to practise health profession [NSW] A person is competent to practise a health professional only if the person: (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language. 1. The fact that the HCCC brings its complaint confined to s 139(a) we accept is because the HCCC does not allege the Respondent does not meet the criteria described in subs (b). 2. Under the heading "Background to Complaint Four" the HCCC has set out the following: On 28 June 2019, the Medical Council of NSW ("the Council") held a section 150 hearing in relation to the practitioner. The outcome of the proceedings was no further action being taken. On 24 September 2019, the Council held a section 150 hearing in relation to the practitioner. Conditions were imposed on the practitioner's registration. On 20 December 2019; 18 September 2020; 25 November 2020; 15 July 2021 and 22 July 2022 the Council held section 150 proceedings in relation to the practitioner. On 22 July 2022, the Council varied the conditions on the practitioner's registration. The current conditions on the practitioner's registration include, inter alia: Condition 2: Not to perform any body-contouring surgery. Condition 6: to practice under Category A supervision when performing any cosmetic surgery procedures. Condition6(a): The Council-approved supervisor must have Specialist Plastic Surgery registration and directly observe the practitioner performing all cosmetic procedures. 1. The Complaint then sets out the Particulars. Clinical Decision Making: (a) Between July 2017 and August 2019 the practitioners clinical decision-making in relation to the care and treatment of Patients G; H; I; J; K; L and N was unsatisfactory. (b) The practitioners clinical decision-making in relation to Patients G; H; I; J; K; L and N did not meet the standards as set out in the following Codes of Conduct: (a) Clause 5.4 RACS Code of Conduct – Maintaining Professional Performance; (i) A surgeon will participate in systems for surveillance, monitoring and reducing risk; (b) Section 5.1 ASPS Code of Conduct – Pre and Post Operative Surgical Care; (i) A member should ensure that "their patients are adequately informed of the nature of the proposed treatment, the likely post – operative course and the possible risks, side-effects and complications." (c) Clause 3.10.6 Medical Board of Australia Good Medical Practice, Code of Conduct: (i) reviewing adverse events and implementing changes to reduce the risk of recurrence. Surgical Skill 1. Between July 2017 and August 2019 the practitioner failed to demonstrate satisfactory surgical skill in relation to the surgeries performed on Patients G; H; I; L; M and N on the dates as set out in Annexure F to the Complaint. 2. The practitioner's surgical school in relation to Patients G; H; I; L; M and N did not meet the standards as sit out in the following Codes of Conduct: (a) Clause 1.2 RACS Code of Conduct – Standard of Clinical Practice. (i) A surgeon will provide clinical care consistent with the prevailing standards of their speciality. (b) Clause 1.9 RACS Code of Conduct – Standard of Clinical Practice. (i) A surgeon will manage only those patients whose clinical conditions are within the surgeons scope of practice, giving consideration to individual training, experience, credentialling and current practice profile. Patient Management 3. Between July 2017 and August 2019 the practitioner failed to provide satisfactory overall patient management in relation to the care and treatment of patients H; J; and L. 4. The practitioners, patient management in relation to Patients H; J and L did not meet the standards and sit out in the following Codes of Conduct: (a) Clause 1.2 RACS Code of Conduct – Standard of Clinical Practice. (i) A surgeon will provide clinical care consistent with the prevailing standards of their speciality. (c) Section 1.2 RACS Code of Conduct – Upholding the Reputation and Standards of the Practice of Plastic Surgery: (i) Members must at all times maintain high standards in their practice of Plastic Surgery. 5. By reason of Particulars 1 to 6 above, the practitioner does not have sufficient knowledge and skill to practice as a specialist plastic surgeon in circumstances where his practice is insufficient in the following practice areas: (a) Clinical decision-making; (b) Surgical skill; (c) Patient management. 6. By reason of Particulars 1 to 20 of Complaint One and Particulars 1 to 7 of Complaint Four the practitioner is not currently safe to practise as a specialist plastic surgeon without Category A supervision. 1. The Respondent addressed Complaint Four in his Reply exhibit R19. He set out the following Reply: Complaint Four I denied that I am not competent within the meaning of section 139(a) of the National Law. 1. Under the heading of "Background" the Respondent stated that the s 150 proceedings which were heard by the Medical Council on 18 September 2020, 15 July 2021 and 22 July 2021 were proceedings under s 150A, being instituted by the Respondent seeking variations to the conditions which had been imposed on his registration. The Respondent also asserted the HCCC were in error to suggest the proceeding before the Medical Council on 25 November 2020 were proceedings conducted under s 150 of the National Law. He asserts the proceeding on that date were s 150C proceedings "held by the Medical Council to clarify the current conditions from a monitoring perspective." 2. Under the heading "Clinical decision making", the Respondent stated he did not admit Particular 1. Likewise, he did not admit any part of Particular 2. 3. Under the heading "Surgical Skill" the Respondent stated he did not admit either Particular 3 or 4. 4. Under the heading "Patient Management" the Respondent stated he did not admit Particulars 5 and 6. He denied Particulars 7 and 8. Complaint Four: The evidence relied upon by the Applicant HCCC The written evidence of Dr Sanki 1. The HCCC relied on the evidence of the patients and on the expert evidence of Dr Sanki. As the Complaint requires an assessment of skills, competency and practise skills, the evidence of greatest weight, relied upon by the HCCC, is that of the expert Dr Sanki. That evidence is found in exhibit A1, Volume 2 of 10, at page 262. Dr Sanki also provided oral evidence which we will address further in this judgment. 2. We first note that no attack on the qualification of Dr Sanki as an expert in the field in which she has given her evidence, is made by the Respondent. Patient G 1. Commencing with Patient G, Dr Sanki reported on Particular 1, which addresses the Respondent's "clinical decision making". We note in her report, Dr Sanki reported on "Clinical decision making and judgment". That difference may or may not be important. If it is addressed by the parties in their submissions, we will return to it. 2. The expert report of Dr Sanki is dated 5 September 2022. That pre-dates the commencement of the proceeding in this Tribunal and also pre-dates the Amended Complaint document filed by the HCCC on 19 February 2024. We have therefore endeavoured to address that evidence of the expert which directly addresses the Particulars of Complaint Four as those Particulars affect each of the identified patients. 3. Dr Sanki stated: "(Patient G) had experienced a massive weight loss of 70 kg following bariatric surgery, but still had a body mass index of 38 (weight 108 kg height 169 cm). Her BMI places her in the "obese" zone and therefore her risks of plastic surgery including wound infection and wound dehiscence were up to 43%. She should have been counselled regarding this risk, she was additionally at risk because of her very high starting BMI." 4. Under the heading "Surgical Skill", Dr Sanki stated: "Patient G's Fleur de Lis Abdominoplasty removed 5.5 kg with 0.5 L of liposuction and the operating time was one hour and 40 minutes. Dr Amjadi did not have a surgical assistant. This operation should take between 3 to 5 hours without a surgical assistant. (Patient G's) brachioplasty was performed in two settings as there was an airway emergency that interrupted the procedure. This is extremely unusual, and I cannot make any further comments based on the hospital paperwork provided her two operations sum to 1.5 hours of operating time and removed 313 g and 214 g of skin with 400cc liposuction. This operation should take about three hours without a surgical assistant. (Patient G) had significant dehiscence of her wound on day two post operatively this is unusual and suggest poor surgical skill in closing her wounds. While axillary flaps are difficult procedures, the failure of the wound to heal properly after Dr Amjadi performed this procedure in February and May 2019, suggest that they were also done with poor planning and technique." 5. Under the heading "Patient management (patient selection, consent, surgical outcomes and complications)" Dr Sanki reports that Patient G had post operative complications from both the surgical procedures. She was re-admitted to Auburn Hospital with a post–abdominoplasty wound infection between 28 July 2018 and 30 July 2018. Dr Sanki stated: "(Patient G) had multiple wound dehiscence and infections of the wound at her right and left axillae. I appreciate that (Patient G) refused admission and had a significant change in her social circumstances that did not allow her to have ideal care. It is commendable that Dr Amjadi did his best to have (Patient G) reviewed by other surgeons, pain specialists, and wound care nurses. Unfortunately, she was not an ideal candidate for surgery (because of her obesity, social situation and poor finances) and may have had an earlier recovery, if she was immediately readmitted for infection control and reconstruction. (Patient G) was left with a chronic wound of her right axilla and chronic pain." 6. In relation to history taking and medical records, Dr Sanki stated that the Respondents initial assessment was very briefly documented with no mention of his examination findings. 7. Doing the best we can, we consider Dr Sanki opined the Respondent's clinical decision making, surgical skill and patient management with Patient G during the times referred to in Particulars 1 to 4 inclusive, was at least, in most respects, unsatisfactory. The Respondents Statement in relation to Patient G (exhibit R1 page 79) 1. The statement so far as it addresses Patient G is 58 pages long. We have noted the following from the Respondent's statement on Patient G and summarised his evidence. 2. The Respondent said he had been told by Patient G that after gastric sleeve surgery in 2011 Patient G had lost over 45kg of weight. Her weight had thereafter been stable for three years. The Respondent considered Patient G to be appropriate for abdominoplasty. He said he explained to Patient G "the basic risks of surgery." Patient G presented for a 2nd consultation on 22 June 2018 where the Respondent again discussed her surgery. Patient G told him in that consultation that she wished to proceed with the surgery. The operation took place on 3 July 2018 and the following day the Respondent reviewed her. She was recovering well. She was discharged from hospital on 9 July 2018. 3. On 20 July 2018 Patient G sent a text message to the Respondent detailing a "big wet patch" on her binder. On 27 and 28 July 2018 there was text messaging between the patient and the Respondent. Patient G advised she was in "a lot of pain". She referred to having seen the Respondent last Friday where a seroma was identified. She had found another seroma which was treated by her GP. Her pain was becoming unbearable and she had taken Endone. The Respondent sent scripts for antibiotics to Patient G's pharmacist. 4. On the evening of 28 July 2028 Patient G was admitted to Mount Druitt Hospital with pain complaint. The Respondent arranged transfer for her to Auburn Hospital. She remained in that hospital until 30 July 2018. 5. On 17 August 2018 the Respondent spoke to Patient G by phone. She was on oral antibiotics. She reported pain. There were swab tests outstanding. On 18 August 2018 Patient G reported by text that she had a staph infection. Patient G reported spreading infection. She reported she was taking Augmentin. 6. The Respondent next saw Patient G on 25 September 2018. In consultation the Respondent noted her wound had healed and she was "back to her usual activities." The Respondent discussed a brachioplasty procedure with Patient G on that day and she confirmed she wished to proceed with that. The Respondent explained the surgery and gave Patient G an opportunity to ask questions. 7. On 4 October 2018 Patient G underwent a bilateral brachioplasty with the Respondent at Holroyd Private Hospital. On 8 October 2018 the Respondent reviewed Patient G and found her to be recovering well. He had planned to review her again in two days prior to discharge. However, on 9 October 2018 the Respondent received a call from the hospital advising that Patient G was seeking discharge. As she was progressing well with her recovery the Respondent agreed she could be discharge. 8. On 11 October 2018 Patient G sent a text message to the Respondent. She had attended her GP who observed the wounds having changed the dressings. Steri strips were applied where the wounds were opening. On 14 October 2018 Patient G reported a "heavy staph infection". The Respondent sought to see her in consultation. An appointment was made. 9. The Respondent saw Patient G on 16 October 2018. Her left arm was healing well. Her right arm had axilla dehiscence. There was further text communication between Patient G and the Respondent on 20 October 2018. Patient G was experiencing significant leaking from her wounds. The Respondent asked her to see him. He did see her on 22 October 2018. He received a further text on 23 October and saw her again on 24 October. 10. On 26 October 2018 the Respondent performed a debridement and clean of the right axilla wound. 11. On 29 October 2018 Patient G sent a text saying the right arm appeared to look better. However, her left arm was now leaking. On 1 November 2018 Patient G reported by text that both arms were leaking. She was in a "fair amount of pain". The Respondent saw Patient G that day. 12. On 2 November 2018 Patient G reported a "big hole" in the back of her right arm. On the same day she reported unbearable pain. She presented to see the Respondent the next day at Auburn Hospital and remained until 6 November. On 4 November 2018 Patient G text messaged the Respondent at 11.11pm to report "horrendous pain". Upon discharge on 6 November 2018 the Respondent arranged home care for Patient G by community nurses. On 8 November 2018 there is a further email from Patient G to the Respondent. He asked her to see him at Auburn Hospital however she was unable to be there. On 12 November 2018 a further text to the Respondent advising "intense burning/stinging pain". The Respondent provided advice. He asked her to see him at Auburn Hospital on the following Wednesday. On 15 and 20 November 2018 there were further text message discussions between the Respondent and Patient G. On 20 November the Respondent asked Patient G to see him the next day. Patient G advised the Respondent she would be travelling to Queensland and would be back the following Tuesday. The Respondent asked her to see him the day after her return. On 26 November, while Patient G was still in Queensland she contacted the Respondent by text to ask for a further script for Endone and also to advise her wounds were leaking badly again. There was a further text on 29 November where Patient G sought advice about symptoms which she thought could be influenza or infection. The Respondent assured her it was not infection in her wounds as he had seen her the day before. 13. On 3 December 2018 Patient G saw the Respondent to obtain a further Endone script. Again that day she text messaged him. On 5 December 2018, 10, 11 and 15 December 2018 further text messages between the Respondent and Patient G. The Respondent requested Patient G see him again during this time. On 17 December 2018 the Respondent saw Patient G in consultation. 14. On 3 January 2019 there was a text exchange. Patient G requested further script and reported on her wounds. The Respondent asked her to see him that day. She reported substantial leaking. Further text of 7 January provided a report from Patient G and a request by the Respondent that he see her. On 9 January Patient G reported she was not well and couldn't attend to see the Respondent. On 12 January Patient G requested a letter from the Respondent. On 16 January Patient G reported she had seen her GP who thought she needed a skin graft. The Respondent asked that she see him. She said it was difficult with the children on holidays. The Respondent suggested she see him as soon as the children go back to school. 15. On 26 January 2019 Patient G text messaged saying she was in "absolute agony". The Respondent requested she see him the next day. However, she told him she could not arrange childcare. On 27 January 2019 a further text from Patient G requesting script for antibiotics and pain killers. 16. On 30 January 2019 the Respondent saw Patient G. Although he has no record of the consultation, it seems from the text messages that he had arranged a further procedure for 7 February 2019. On 1, 3, 5 and 6 February 2019 there was further text exchanges relating to whether Patient G would be well enough for the procedure on 7 February 2019. The email of 6 February set out detail of a major family crisis Patient G found herself in. She also addressed the cost of the procedure set for 7 February. Patient G told the Respondent she will have to pay an excess of $500 to HCF for the procedure. The Respondent told Patient G he would make the payment for her. 17. On 16 February 2019 arrangements were made for Patient G to have her surgery on the following Wednesday. On 20 February 2019 the Respondent performed a flap reconstruction of the axillary defect. Patient G stayed overnight in hospital. There was a follow-up consultation on 27 February 2019. On that evening Patient G sent a text advising the pain in her arm had escalated in intensity. She sought advice. The Respondent gave advice. There were further text messages on 28 February 2019 where the Respondent gave wound care advice. On 2 March 2019 Patient G complained of "so much pain". On 3 March 2019 Patient G advised she was having a wound swab taken. That occurred with her GP who prescribed antibiotics. On 4 March 2019 the Respondent saw Patient G. On 6 March 2019 Patient G sent a photo of her wound with a hole becoming larger. The Respondent gave advice. On 7 March 2019 Patient G advised she was very unwell. She sent photos of her wounds. The Respondent gave advice. On 10 March 2019 further texts and photos passed to the Respondent. He commented that it was looking a lot better. 13 March 2019 text from Patient G seeking new script. 15 March 2019 further text with photo. The Respondent provided a further script. On 24 March 2019 it seems Patient G did not attend her appointment with the Respondent's team at Auburn Hospital to have her wound attended to. She wrote to the Respondent on 25 March 2019 advising that her in-law could not take her. The Respondent answered, clearly frustrated about not being able to heal Patient G's wounds. He wrote: "Me or the team need to see you regularly and if you cannot attend follow up, can't get rest, and have little help at home, keep having to look after pets, and continue to get cold and flu, your body will not heal any wound." Patient G undertook to see the team or the Respondent as he has requested. 18. The Respondent saw Patient G again on 27 March 2019. He had received two text messages from her on 26 March. 19. On 3 and 8 April 2019, there were further text exchanges. The Respondent was to see Patient G again on 9 April 2019, however due to his failing he missed that appointment. On 12 April 2019 the Respondent arranged an Uber transport for Patient G to attend and see him. The Respondent saw Patient G on that day. He closed a wound in the axilla on that day. 20. On 14 April 2019 Patient G reported by text that her wound was weeping green fluid. Patient G saw her GP on 15 April and reported the GP thought the wound looked infected. The GP prescribed antibiotics. On 18 April 2019 Patient G reported she was seeing her GP again. She thought some of the stitches had come out. She sent photos. Further text messages 19 April. The Respondent requests to see Patient G again "soon". On 20 April 2019 the Respondent received a photo from Patient G showing her stitches were opening. On 21 April the Respondent received confirmation Patient G had another staph infection in her wound. On 26 April 2019 a text exchange occurred with Patient G. She unable to make appointment. Further surgery set for 7 May 2019. Further texts 30 April. On 2 May 2019 the respondent had a consultation with Patient G. At that consult the Respondent arranged a second opinion with Dr Paul Curtin. His view was that the likely cause of the continuing wound problems is ongoing tension in the wound. The Respondent planned to bring in new tissue in the form of a local flap to ease tension and enhance vascularity of the chronic wound. That procedure was completed by the Respondent on 2 May 2019. Patient G stayed in hospital overnight. 21. The Respondent received further text messages from Patient G on 3 and 6 May. On 12 May she reported her arm has become progressively more painful. She sent photos to the Respondent. He requested she attend to see him at Auburn clinic. He saw her on 13 May 2019. 22. On 14 May 2019 Patient G sent text with photo of the wound. The Respondent replied. Patient G attended the Auburn clinic on 15 May and sent text to the Respondent. She reported unbearable pain. Further text from Patient G on 16 May. On 17 May the Respondent asked if Patient G was attending the clinic that day. She said she was unable to do so. On 20 May Patient G attended the Auburn Hospital for wound care. On 20 May Patient G texts to ask about her bandage which was coming off. On 21 May 2019 Patient G advised she had contacted the pain clinic and was advised initial consult would be $280 and follow up $152. The first available clinic time was 4 July 2019. She tried Nepean Hospital however the wait was longer there. 2 June 2019 Patient G advises she cannot attend clinic the next day. She did attend on 5 June 2019 at Auburn Hospital. She also attended on 17 and 24 June 2019. 23. On 24 June 2019 Patient G made a text request for advice from the Respondent. 24. On 8 July 2019 Patient G sent text message to arrange consultation with the Respondent. The Respondent replied. 25. On 15 July 2019 Patient G attended Auburn Hospital for outpatient consultation for wound care. On 21 July 2019 Patient G sent text message requesting consultation re her arm. Restricted movement. The Respondent replied. The Respondent saw Patient G on 22 July 2019. 26. On 25 July 2019 the Respondent received a lengthy text from Patient G. She felt the pain clinic was not helping her. She sought advice in relation to new medication. The Respondent replied with advice. On 26 July 2019, the Respondent received a further text from Patient G requesting script. The Respondent replied. On 30 July 2019 the Respondent received a further text from Patient G reporting on wound leaking. The Respondent replied providing advice. On 2 August 2019 the Respondent received a text message from Patient G providing a report on wound discharge. On 4 August 2019 the Respondent received a text message from Patient G advising she attended the nurses clinic. The Respondent replied. On 8 August 2019 the Respondent received a text message from Patient G requesting a script. On the same day the Respondent received another follow up request the same day re the script. On 9 August 2019 the Respondent received a further text re the script. Respondent replied saying script sent. 27. On 18 August 2019 the Respondent received a text message from Patient G advising she could not make the consultation as she was sick with the flu and she requested a script. On 19 August 2019 the Respondent received a further text from Patient G following up on the script request. The Respondent advised that the script had been sent. On 22 August 2019 the Respondent received a text message from Patient G asking a question about the script medication. On 23 August 2019 the Respondent received a follow up text from Patient G re the script. The Respondent replied that he had sent the script. 28. On 26 August 2019, 2 September 2019, 9 September 2019, 16 September 2019, 23 and 30 September 2019, 9, 14 and 21 October 2019, Patient G attended Auburn Hospital for wound care. Respondent noted that during that period the right axilla wound was starting to close up and the infection was resolving. 29. 19 September 2019 Patient G sends a text with photo of wound discharge to Respondent. On 21 October 2019 Patient G reports by text that her arm was seriously painful. Respondent replied and requested a consultation the next day. On 22 October 2019 further text from Patient G. Advised pain better today. Respondent replies. Respondent says he will call Patient G's GP. Consultation arranged for the next day. 23 October 2019 Patient G reports by text things much better. She decides not to attend consultation. Respondent replies. 30. Patient G presented at Auburn Hospital for wound care on 28 October 2019 and 4 November 2019. Wound was resolving at those times. 31. Following those attendances Patient G made a complaint to HCCC about her care with the Respondent. The Respondent determined he should no longer treat her. 32. Under the heading "Reflections on Patient G" the Respondent recorded the following: "I have reflected significantly on Patient G and everything she went through. I cannot identify the cause of the wound dehiscence of her right arm, only that she acquired a significant infection that took a long time to resolve. I can see for my documentation for Patient G was not adequate and my assessment for her as a candidate for this surgery should have been more stringent, with closer attention paid to her social situation and how likely it was that she would be able to receive optimal care if complications arose." 1. We noted in the Respondent's statement addressing Patient G, that on a number of occasions the Respondent conceded he had not made a note of a consultation with Patient G, rather, he knew a consultation must have taken place given the content of the text exchanges. 2. We also note that all the treatment following the brachioplasty operation, provided by the Respondent was funded by himself or not charged for. Patient H 1. Dr Sanki stated that this patient indicated by her presentation that she would have a very high expectation of achieving an excellent outcome from plastic surgery. She said that Dr Amjadi, with the benefit of hindsight, appreciated that the patient had "unrealistic expectations". It appears from the photos provided by the patient that liposuction was not an appropriate recommendation for her lower thighs. Patients after 30 kg weight loss will not do well with thigh liposuction as the skin is too thin and stretched to contract after fat removal. 2. Dr Sanki stated that her opinion was that Patient H was never really a good candidate for a thigh lift or thigh reduction surgery and whether or not this was successfully communicated between her and the surgeon. What can be achieved and the limitations, is perhaps the most problematic feature here. 3. Dr Sanki opined that Patient H did have unrealistic expectations as to what could be achieved with the plastic surgery. She thought that perhaps forced Dr Amjadi to compromise the style of his operation to meet her demands. An experienced surgeon would have pointed out that there was no point in performing an operation if they cannot confidently say there will be an improvement in the patients cosmesis. 4. Dr Sanki opined that Dr Amjadi failed to determine the cause of the patient's post-operative severe pain. Patients with acute nerve pain that require opioids for longer than six weeks post-operatively should be referred to a pain specialist or further investigated. Acute post-operative severe nerve pain that is not relieved by removal of compression wear has the differential diagnosis of damage from surgical transaction, damage from intraoperative compression due to poor patient positioning, or damage from a suture passing through or tightly around the nerve. Dr Sanki stated that Patient H should, alternatively, have had close observation and the use of multimodal analgesia under the supervision of a pain specialist. Her referral to a pain specialist should, ideally, have occurred sooner. 5. Under the heading of "surgical skill" Dr Sanki stated: "The patient should have had a surgical exploration and possible neurolysis of her lateral femoral cutaneous nerve. Her post-operative pain could have been better managed with earlier referral to a pain specialist. 6. Under the "history taking and medical records" Dr Sanki noted the patient had mentioned her husband was not supportive of her decision to have surgery. Dr. Sanki said: "It is imperative to illicit in the initial consultation if the patient has the support of the family/friends to proceed with surgery." The Respondents response to Patient H's complaint as set out in his statement R1 page 137 and following. 1. At page 144 of exhibit R1 the Respondent set out his "Reflections on Patient H". Under that heading we note the following. 2. The Respondent stated: "I have thought a lot about the care I provided to Patient H. It was very unusual that her high pain persisted for so long. I did believe it was related to the pressure garment and would resolve on its own. Unfortunately, Patient H missed a couple of follow-up appointments, so I was not able to examine her properly. However, I did refer her to a pain specialist when the pain persisted. With regard to her expectations, regarding her thigh lift, I was reticent about having a shorter incision, because of the difference in outcomes, but I believed at the time that I had explained those differences to Patient H and she had decided to proceed with the shorter incision against my recommendation. In hindsight, I should have recognised that my recommendation for a longer incision was my recommendation for a reason and I should have refused to perform the surgery with the shorter incision. I believe that this is a part of the overall problem I was having, at the time with having difficulty saying no to patients when they asked for something." 3. Commencing at page 137 of exhibit R1 the Respondent detailed his history of involvement with Patient H, as her plastic surgeon. 4. Patient H was referred to the Respondent following massive weight loss. The Respondent, after meeting with Patient H in consultation and an examination, considered she was suitable for body contouring procedures. He recommended abdominoplasty, thigh lift, brachioplasty and neck lift. He explained those procedures to her. 5. The Respondent had a second consultation with Patient Age about 3 ½ months later to discuss with her possible procedures. She informed him she would like a "tummy tuck", thigh lift, and neck lift in May and to leave her arm, at that stage. On 3 May 2019 Patient H presented for a pre-operative consultation with the Respondent. She had signed the consent form for abdominoplasty. For her thigh surgery she wanted the shortest possible scar. The Respondent told her that a short scar to the mid-thigh or less, will not address the skin around her knees. He advised her that she could have some liposuction as part of the procedure to address the concerns around her knees however, how much skin would retract over the liposuction was not predictable. Patient H emphasised that she did not want a long scar on her thighs. The Respondent said he understood that the result may be different to that which could be achieved with a long incision. 6. On 8 May 2019 Patient H underwent abdominoplasty and bilateral medial thigh skin wedge resection at Sydney Private Hospital. The Respondent reviewed Patient H in hospital on 9, 10, 13 and 14 May 2019. She was discharged on that last occasion. 7. On 16 May 2019 Patient H complained, by text message, of an excruciating amount of pain in her right thigh. The Respondent believes he spoke to her by telephone that same day (but no medical note to that effect). He saw her on 20 May 2019. He prescribed Lyrica and advised pain often caused by posture or garment and was "usually limiting". 8. On 23 May 2019 the Respondent sent a text message to Patient H enquiring about her recovery. She replied that she was still experiencing pain. He assured her it would get better. He spoke by phone to her on 7 June 2019. The Respondent noted Patient H was still taking Lyrica and he informed her the pain should "start to settle down" within four weeks. She indicated she was concerned about the shape of her thighs. Although there was an appointment for 25 June 2019 Patient H failed to attend. 9. On 16 July 2019 the Respondent received a text message from Patient H stating she had pain around her umbilicus. The Respondent replied advising she see her GP and have an ultrasound. Patient G was living outside the Sydney Metropolitan area. 10. A further appointment arranged for 9 August 2019 was cancelled with Patient H advising she would not attend any further appointments. However, she did attend an appointment on 21 November 2019. She raised the following issues with the Respondent: 1. She had a bulge in her superior medial posterior edge incision; 2. That her "devit" (meaning not known) left medial knee was visible when seated; 3. That she could not see any cosmetic improvement in her thighs: 4. That she was still suffering nerve pain, although it was now intermittent instead of constant; and 5. (e) She was concerned about paraesthesia in her right lateral thigh. The Respondent examined Patient H. 1. He referred her to a pain specialist as he determined it was very unusual for her to still be experiencing pain. He also discussed her concern about the presentation of her knees. He reiterated what he had told her before the procedure in relation to her requirement that there be a small incision. He suggested she seek a second opinion as to future management as she was dissatisfied with the outcome. The Respondent had not seen Patient H since that consultation. Patient I 1. Dr Sanki was particularly critical of the Respondent's surgery with this patient. She stated that: "based on (Patient I's) images, it is apparent that she had a small difference (possibly less than or equal to one cup size) volume between her breasts. This is a difficult surgical problem and complete correction of breast volume, shape and nipple areola complex size and shape is impossible. Dr Amjadi only made this point to the patient during her consultation about her revision (December 2017). The disparity in the patient's description of her surgical plan as one stage and Dr Amjadi describing her treatment as always consisting of two stages is concerning and suggest that Dr Amjadi did not properly explain and consent the patient about his plan. The surgical plan is also not consistent with common, accepted management of breast symmetry to make both breasts the size of the preferred breast and to avoid the use of implants if that is the patient preference……A more mature surgeon may have discouraged the patient from having any plastic surgery as she had a minor asymmetry and surgery creates long-term scars. It is concerning that Dr Amadi believes that the final outcome shown in (Patient I's) last photo, is acceptable. This is a result that is well below the standard of a specialist plastic surgeon. The patient is correct in pointing out that her breasts look worse after her plastic surgery. Dr Sanki noted: "She is now left with clearly an unsatisfactory situation with persistent gross a symmetry of the breast and the nipples way too high". 1. Under the hitting "surgical skill", Dr Sanki stated that "Dr Amadi did not construct a good surgical plan to correct (Patient I's) breast a symmetry and appeared to worsen her asymmetry during the surgical revision." 2. Dr Sanki was highly critical of Dr Amjadi's history taking and medical record making for this patient. She pointed out that Patient I was only 19 at the time of her breast operation undertaken by the Respondent. All aspects of her future medical circumstances which might arise from the procedure should have been addressed with the patient. Dr Sanki said it is especially important in a young patient with a lifetime of consequences ahead of her to understand all of the potential consequences of the procedure. Further, Patient I subsequent to the procedures being undertaken with the Respondent had bariatric surgery. Significant weight loss can change the result of her breast surgery. A plastic surgeon should have elicited in their history if the patient's weight is stable and if they are planning to change weight. The Respondents response to Patient I's complaint as set out in his statement R1 page 144 and following. 1. Under the heading "Reflections on Patient I" the Respondent stated his view that Patient I had presented with "significant asymmetry of her breasts (cf. Dr Sanki's view that the difference between the breasts was small.) He also noted she was young. The Respondent stated: "Both of these factors should have alerted me to the fact that I needed to make really sure that she was fully aware of the expected outcomes of her surgery and how much symmetry could reasonably be achieved. In hindsight, I did not achieve this aim. It is a matter for the Tribunal whether or not the outcome of Patient I's surgery was satisfactory. It was my view at the time that the outcome of her surgeries was within the bounds of what could be considered reasonable, noting that she was not happy with it". 2. The Respondent first met Patient I on 20 October 2017 in an initial consultation regarding breast asymmetry. He noted there was clearly asymmetry in the breasts with regard to size. The Respondent told her that she was unlikely to be happy with the results if he only tried a breast lift or breast reduction and that the asymmetry needs to be addressed with implants. He recommended implants on both sides and a breast lift on the left. He was very aware he needed to manage the patient's expectations, regarding surgical outcomes. He stated that she had a significant asymmetry in her breasts before surgery. He advised her perfect symmetry was not possible. Patient I informed him she would have a think about the options. 3. The Respondent had a second consultation with Patient I on 17 November 2017. The Responded reiterated his recommendations from the first consultation he took measurements. Patient I stated she wanted to fit into a "C" cup. Following that consultation in which Patient I gave the Respondent permission to discuss her medical procedures with her mother, the Respondent received an email from Patient I's mother. There was an exchange of emails between them. The last email from Patient I's mother stated: "(Patient I) is going to just do as discussed with lift, nipple moved and small implant and later in life if needed look at implants. Thanks for your advice." 4. On 7 December 2017 the Respondent performed a "right augmentation mammoplasty and left breast lift procedure on Patient I. Patient I was discharged from hospital on 9 December 2017. On 15 December 2017 the Respondent saw Patient I for follow up. On 26 December 2017 there was an email from Patient I's mother. This alerted the Respondent to Patient I's dissatisfaction with outcome of the procedure. The Respondent saw Patient I on 29 December 2017. She expressed concern her breasts were uneven in size. She understood symmetry was not an expected outcome. The Respondent informed her there should be an improvement in the symmetry once she had completed her recovery. Later that day Patient I's mother emailed to outline Patient I's concern. 5. On 16 January 2018 the Respondent received an email from Patient I. She detailed her dissatisfaction with the presentation of her breasts. She said she was still planning to lose weight. The Respondent saw her again on 25 January 2018. The patient accepted the Respondent's recommendation about further remedial surgery. That surgery took place on 8 February 2018. The surgery was "right breast scar revision, right breast reduction and left breast augmentation". She was discharged on 11 February 2018. 6. The Respondent had his practice nurse see Patient I on 16 February 20128. He saw her again on 27 July 2018. Possible IMF revision was discussed in relation to the left breast. Patient I elected to undergo bariatric surgery first. The Respondent has not seen Patient I since that consultation. Patient J 1. With Patient J, under the heading "Clinical decision management and judgment", Dr Sanki stated: This patient "has a background of depression, generalised anxiety disorder and PTSD. It would have been appropriate to have her additionally reviewed by a psychologist to give clearance for her to safely have plastic surgery." 2. Under the heading "Surgical skill", Dr Sanki commented that "It is unusual that seven of the eight patients in this investigation had the same problem." That identified problem was "wound dehiscence". 3. Under the heading "Patient Management" Dr Sanki stated: "Dr Amjadi should have arranged for a specialist plastic surgeon to assist (Patient J) in her post-operative management. It would be customary to request the assistance of a colleague to help manage a patient if they lived too far away for the surgeon to continue their care." 4. We note that what emerges for us from this evidence of Dr Sanki is her opinion that Dr Amjadi was inexperienced at the time of the procedures she was addressing and he should have had a mentor to discuss his cases with (and if he did have a mentor he should have used that connection). Alternatively, he should have refused to undertake procedures where greater experience was required. This appears to address his judgment at that time. The Respondents response to Patient J's complaint as set out in his statement R1 page 150 and following. 1. Appellant page 157 The Respondent set out his "Reflections on Patient J". He stated: "It is unfortunate that Patient J suffered a haematoma and I appreciate how difficult this was for her. I cannot say what the cause of the haematoma was but I did make sure that I was available to assist with management of the complications. What I do understand now is that I should have had Patient J reviewed by a psychologist prior to her surgeries. I know that this had no bearing on the physical outcome of the surgery but with her history of some quite serious mental health issues, this was a patient where I should have had her assist, to make sure she would be able to properly cope with, not only the surgery, but also the difficulties associated with any complications that may arise". 2. The respondents first consultation with Patient J occurred via Skype on 18 May 2018. The patient resided in Queensland. She sought plastic surgery following massive weight loss of over 45 kg. The Responded considered she was suitable for abdominoplasty, lower back lift and buttocks lift. Patient J indicated she would like to proceed with the surgery and she was provided with an information pack regarding the procedure and which contained the consent form for her to sign. She signed the consent on 10 July 2018. 3. On 23 October 2018 the Respondent performed and abdominoplasty on Patient J at Sydney Private Hospital. She was discharged on 30 October 2018. The Respondent saw her again on 5 November 2018 for follow-up. He considered she was safe to fly home to Queensland at that time. 4. On 16 November 2018 there was a further consultation via Skype. Her recovery was progressing as expected and wounds were healing well. Again on 30 November 2018 there was a follow-up consultation. Further reviews in consultation occurred on 14 December 2018 and one February 2019. 5. On 20 May 2019 there was a further consultation via Skype to discuss her next surgery which was lower back lift. They responded advised of the risks and limitations of the surgery and directed her to written information he had supplied prior to her first operation. Patient J said she wished to proceed. On 29 May 2019 the Responded performed a lower back lift. The patient remained in hospital for five nights. She attended to follow up appointment on 7 June 2019 and 14 June 2019 before flying home to Queensland on 15 June 2019. 6. On 21 June 2019, the Respondent received a text message with photos from Patient J. The Respondent telephoned Patient J and provided advice to attend her local hospital. The hospital provided a diagnosis of a seroma which was drained. 7. There were text message exchanges between the Respondent and Patient J on 24, 25, 26, 28, 29 and 30 June, 1, 2, and 5 July 2019 all addressing the presentation of the wound and the requirement for dressings and medications. The Respondent also spoke with the Emergency Department Registrars at Patient J 's local hospital on 22, 23, 27, 28, 29 and 30 June 2019. 8. On 6 July 2019 the Respondent received a text message from Patient J with photos. The photo depicted a large lump on her left hip. She had attended the hospital. She advised she was back at the Emergency Department of her local hospital. The Respondent advised the procedure which was required to drain a large mass of fluid. The Respondent spoke to a Registrar and also a radiologist at the hospital. The report was that there was a haematoma. It was solid and not capable to be drained. The Respondent spoke to Patient J and advised it was very unusual to have a haematoma form after such a long time post-surgery. Between 6 July 2019 and 15 July 2019 there were text message updates from Patient J. The Respondent reviewed the photo's she had sent. 9. On 19 July 2019 Patient J flew to Sydney so the Respondent could manage her treatment himself. The Respondent drained a haematoma and closed a wound. 10. Following a text exchange on 21 July 2019 the Respondent saw Patient J on 24 July 2019. He performed a further procedure to drain a haematoma. Patient J presented again on 26 July 2019 to the Respondent. Following that consult Patient J flew back to Queensland. There were two further Skype consults in August 2019. Patient K 1. Under the heading "Clinical decision making and judgment" Dr Sanki stated: "(Patient K) was a high-risk candidate for body contouring surgery as she appears to have a BMI greater than 35 and weighed 96kg. She should have been counselled that her risk of delayed wound healing and less than satisfactory aesthetic result was high. A significant proportion of her consultation should have been centred on expectation management. Her arms and breasts were both difficult cases and should only have been performed by a very experienced body contouring plastic surgeon." 2. Under the heading of "surgical skill", Dr Sanki described some minor failings in the outcome of the surgery however, overall, she was not overtly critical of the surgical skill used to achieve the results achieved in a clearly difficult candidate patient for body contouring surgery. The Respondents response to Patient K's complaint as set out in his statement R1 page 158 and following. 1. Under the heading "Reflections on Patient K" the Respondent wrote of his surprise to have received a complaint by Patient K. He expressed no regret in relation to any of his surgery performed on Patient K. 2. When he first saw Patient K in April 2018 she had lost 52 kg over a two year period. She had excess skin on her abdomen, arms and breasts. That was impacting her life. At consultation with Patient K the Respondent formed the opinion she was suitable for abdominoplasty, breast reduction and brachioplasty. Following the consult on 4 April 2018 Patient K was emailed written advice about the proposed surgeries. There was also a consent form. Additionally, the Respondent had discussed with Patient K in the consultation, the operation in detail, including explaining risks. On 20 July 2018 the Respondent performed abdominoplasty on Patient K at Holroyd Private Hospital. Patient K remained in hospital until 31 July 2018. During her stay the Respondent reviewed her progress on four occasions. 3. Upon discharge Patient K attended the Respondent's practice rooms and was seen by his practice nurse on 10 August 2018. She contacted the practice rooms again on 17 August 2018 with concerns about her healing. The Respondent saw her on 17 August 2018. There was an issue with her wound at the "T-junction" which needed to be debrided. It was planned for follow-up in four weeks. 4. On 12 October 2018 Patient K presented for follow-up and to discuss breast reduction. That future surgery was discussed. Patient K said she wanted to reduce from an "E cup" to a "D cup". That surgery took place on 2 May 2019. She was discharged on 6 May 2019. The Respondent had seen her during the recovery in hospital. 5. The Respondent saw Patient K in consultation on 27 June, and 9 August 2019. On the latter date Patient K expressed dissatisfaction with the breast symmetry following the operation. Further breast surgery was discussed as well as brachioplasty surgery. She was subsequently provided with information about the operation and a consent form for her signature. 6. On 3 September 2019 the Respondent performed brachioplasty on Patient K. She was discharged on 7 September 2019. On 21 October 2019 Patient K text messaged the Respondent with concern about her wound. The Respondent saw Patient K on 25 October 2019. He observed three suture abscess. He attended to those. 7. The Respondent last saw Patient K on 6 December 2019. 8. The Complaint of Patient K is set out in her statement dated 28 August 2020 and is in exhibit A1 volume 10 of 10 at page 539. That statement does not seem to us to detail a specific complaint. However, on page 565 of volume 10 of 10 her complaint she made to the HCCC on 24 February 2020 is set out and is characterised as a complaint about "Unexpected treatment outcome/complications". She detailed dissatisfaction with her breast asymmetry following the operation and also the scarring on her arms from the brachioplasty. Her complaint was mainly focussed on her belief that the Respondent should have diagnosed her with Lipoedema before her brachioplasty. She was subsequently diagnosed with that by another surgeon. Patient K believed that condition contributed to her poor healing following her brachioplasty. Patient L 1. Under the heading "Clinical decision making and judgment" Dr Sanki opined: "Dr Amjadi does not appear to have counselled (Patient L) about a realistic result and risk of complications for a patient of BMI 35 (weight 84kg, height 153) after massive weight loss. 2. Under the heading "Surgical Skill", Dr Sanki reports: "Patient L required wounds at her arm and breast to be re-sutured while she was still in hospital. This is a very unusual occurrence for a specialist plastic surgeon. Dr. Amjadi admitted to suturing (Patient L's) arms too tightly. Her pain, poor scarring and the unstable nature of her scars are consistent with the wounds being brought together under too much tension". 3. Dr Sanki opined that the "Z plasties" in the axilla placed multiple unnecessary scars in the patients' axillae. Dr Sanki did agree that the post-operative clinical photos taken by the patient show a good result given her starting position. 4. Under the heading "Patient Management" Dr Sanki stated: "Dr Amjadi should have delayed (Patient L's) further surgical procedures (thigh lift and upper back lift) when he could see that her results from her arms were not satisfactory to her." 5. Under the heading "History taking and medical records" Dr Sanki stated: "Patient L has alleged that Dr. Amjadi performed posterior thigh liposuction without her consent. This is correlated by the consent form which does not show reference to revisional surgery to her thighs or liposuction of the thighs…. The hospital consent paperwork mentions '+/- liposuction' (but the body part is not included)." The Respondents response to Patient L's complaint as set out in his statement R1 page 163 and following to page 173. 1. Under the heading "Reflections on Patient L" the Respondent states the following: "On reflection, I should have recognised much earlier that there was an issue with expectations with Patient L. I should have delayed any further surgery once it was clear. She was unhappy with the result of her brachioplasty. On review of the documentation, I can see that Patient L may not have fully understood just how significant her surgeries were going to be and the realistic outcomes of those surgeries. At the time I was reassured by her statements that she did understand these things, but looking back on it now I can see that she did not and I should have assisted her understanding more thoroughly." 2. The Respondent's first consultation with Patient L was 2 November 2018. She had weight loss through diet and exercise (loss of 22 kg). The initial operation was to be abdominoplasty. The Respondent considered her to be suitable for that surgery. He discussed with her detail of the surgery and explained what a reasonable outcome might be. She appeared to understand and asked to proceed. The surgery occurred on 22 November 2018. She recovered in hospital and was discharged 27 November 2018. The Respondent reviewed her whilst she was in hospital. 3. Following the operation the Respondent saw Patient L on 7 December 2018. On 11 December 2018 he received a text from her. She described wound "weeping". The Respondent requested she attend upon him. That occurred on 21 December 2018 after a further text from her reporting infection. She was being treated with antibiotics by her GP. She sent a further text on 26 December 2018 reporting improvement and she stated she will continue to see her GP. 4. On 1 February 2019 the Respondent saw Patient L in consultation. The wound had healed. They discussed brachioplasty and scar revision. The Respondent's staff contacted her on 22 February 2019 for the brachioplasty operation. She was given an opportunity to ask any questions. 5. The Brachioplasty surgery was performed on 26 February 2019. Patient L remained in hospital until 6 March 2019. The Respondent reviewed her while in hospital. She had a small wound dehiscence on her right chest and left axilla. The Respondent denies he told Patient L he had taken too much skin thereby causing the dehiscence. He considered the most likely cause was sudden excessive movement post-surgery. The Respondent closed those wounds in hospital before she was discharged. 6. On 9 March 2019 Patient L reported a problem with her wound. She attended on the Respondent's practice nurse on 13 March 2019. The notes show a small suture abscess. On 15 March 2019 Patient L had a telephone consult with the Respondent and on 29 March 2019 had a consult with the Respondent. Her wounds were almost all healed. Patient L was seen again on 3 May 2019. She was concerned about her scarring. The Respondent suggested steroid treatment. On 24 May 2019 the Respondent performed an intra-lesional injection of Kenacort to an area of scar. There was also a discussion about future surgery. The Respondents notes say the discussion included thigh lift surgery and liposuction to the knees, thighs, lower back and flanks. 7. Patient L was spoken to by the Respondents staff on 5 June 2019 about upcoming thigh lift surgery. That surgery was performed on 19 June 2019. The surgery was a bilateral medial thigh wedge resection. Following the surgery the Respondent notes Patient L "seemed to be in more pain than her previous surgeries". She was discharged on 25 June 2019. 8. On 6 and 11 July 2019 there were text exchanges between the Respondent and Patient L. The text was about another friend of Patient L. The Respondent did see Patient L. The wounds were healed and she was happy with the result. 9. On 12 September 2019 the Respondent performed an upper back lift +/- liposuction on Patient L. She remained in hospital until 18 September 2019. 10. In response to Patient L's statement that she did not consent to liposuction as part of that operation, the Respondent stated: "I am dismayed at this suggestion because liposuction was discussed with Patient L and she signed a consent form to that effect. I would never perform a procedure on a patient that had not consented to it." The Respondent saw Patient L again on 4 October 2019. Further procedures were discussed and no displeasure with the Respondent's conducted surgery was mentioned. 11. On 18 October 2019 the Respondent spoke to Patient L. She was concerned about the appearance of scars on her arms. She had undertaken on course of laser treatment and could not see a difference in her scars. 12. Apart from an email about possible "needling" for her scars she did not present again to the Respondent and lodged a complaint with the HCCC. Patient L's Statement 27 November 2020. 1. Patient L's statement is contained in exhibit A1 volume 10 of 10. At paragraph 47 she sets out her current situation. She stated: "The arm lift surgery has left me with permanent damage. In July this year my underarm was black and my GP sent me for an infection test. My GP advised the wounds for my arms were so tight that any movement I make would open up the scar tissues. So now I am limited to how much I can move my arms. I am now putting more pressure on my right side, so that is now beginning to be quite painful as well." 2. At paragraph 11 of her statement Patient L says that she was happy with her "tummy tuck" operation. 3. On 26 February 2019 Patient L presented for another operation with the Respondent. She said at paragraph 16 of her statement: "On 26 February 2019, Dr Amjad performed the arm lift surgery and removed fat from both my breasts. Before I went into the surgery, I had to sign documents five minutes before the surgery and all I saw was that the surgery was for an arm lift. There was no mention to remove the fat from my breasts or to fix my nipple." 4. After the surgery Patient L had further treatment to her scars. She said the Respondent advised she needed laser treatment. Patient L was told each laser treatment cost $400 and she would need 10 sessions. 5. On 19 June 2019 Patient L had thigh lift surgery with the Respondent. When she saw the Respondent on 7 June 2019, she was given documents to read and sign about the thigh surgery. She said she signed the consent form without reading the documents she had been given. When Patient L was in the operating theatre on that day, she said the Respondent looked at her arms and told her he can do a revised arm lift for her. 6. Following the operation Patient L said she was unable to move. She could not lift her left foot off the ground. She could see extensive bruising down he legs. Her recovery was not good, in part because the hospital staff, she thought, was insufficient. Following discharge, she experienced large swelling of her legs and stayed in bed for a couple of days. She called the Respondent who gave her advice. Her thighs improved after a few weeks however she was disappointed with the way they looked. 7. Patient L's final procedure with the Respondent was for liposuction and a back-lift. That occurred on 12 September 2019. Her recovery in hospital saw her having bleeding from her back and then excessive itching for which she was treated. The itching persisted after she was discharged from hospital. It still occurs from time to time. Patient M 1. Dr Sanki set out the following under the heading of "Surgical Skill". "Patient M's post-operative photos show the following concerning features that are inconsistent with the results expected of a specialist plastic surgeon: asymmetry of scarring between the arms; unnecessary z-plasties in the axillae (this was a technique, popularised by plastic surgeon, Jean-Francois Pascal that has largely been abandoned by body contouring surgeons); numerous wound dehiscences; prominent stitch marks in a wound that is unusually sutured with sub-cuticular and dermal sutures (dissolving stitches under the skin). The brachioplasty took two hours and 17 minutes of operating time. This is inappropriately fast for a surgeon with no surgical assistance." 2. Under the heading of "Patient management", Dr Sanki Notes that Dr. Amjadi stated that it is a common complication of brachioplasty after significant weight loss for there to be unfavourable scarring. However, this patient had more favourable scarring from further procedures with a different plastic surgeon. The Respondents response to Patient M's complaint as set out in his statement R1 page 173 and following. 1. At paragraph 502 of his statement in exhibit R1 the Respondent sets out his "Reflections on Patient M". The Respondent stated: "I have reflected on my treatment of Patient M. Until I received her complaint, I thought she was happy with the result of her surgery. I can see that I really should have seen her in person prior to her surgery rather than only on Skype that would have allowed me to properly examine her, and it is also easier to gauge a patient's understanding of what they are being told in person." 2. The Respondent first met Patient M via a telehealth consultation. She had loose skin following significant weight loss. She lived inter-state. She had remained stable with her weight for 18 months. The Respondent formed the opinion she was suitable for brachioplasty. He explained the surgery in detail including the risks. She was provided with written information about the procedure. On 12 December 2018 she signed the consent form. 3. On 19 March 2019 Patient M underwent brachioplasty surgery at Sydney Private Hospital. She stayed in hospital two days and was seen by the Respondent on each day. She returned to Queensland by plane on 29 March 2019. The Respondent believed it was appropriate for her to travel by plane. 4. On 4 April 2019 Patient M sent a text message advising she had an infection in her wound and was on antibiotics. On 5 April 2019 another text message from Patient M advising her infection has spread down the whole of her arm. The Respondent provided her with advice on wound care. On 8 and 10 April 2019 there was a further text exchange with Patient M. The wound is healing. On 15 April 2019 a text message to show part of the wound area which may need revision. On 17 May 2019 Patient M booked in for scar treatment with the Respondent on 29th May and then "the other treatment" on 31st May 2019. 5. On 31 May 1919 the Respondent carried out a minor revision on Patient M's incision. Patient M did not attend any further appointments. Patient M's Statement. 1. Patient M's statement (dated 26 October 2020) is found in volume 10 of 10 in exhibit A1. Her complaint arises from the aesthetic appearance of her arms post the brachioplasty. She concluded her statement with the following: "Currently my arms are ugly and have bad scarring. I can live with them but the left arm feels like it is pulling a bit when I move it and I am very cautious to show my scars which isn't an ideal outcome, considering I went to remove something that was emotionally affecting me and it was replaced with something else that now emotionally affects me" Patient N 1. Dr Sanki stated that Dr. Amjadi's notes of 13 September 2018 suggest that he was happy for the patient to change between tummy tuck or thigh lift on the day of surgery. This is not appropriate or common practice to allow a patient to change procedures on the day of surgery. It shows that the patient has not been properly prepared for that specific procedure. 2. Dr Sanki's Report notes the conflict between the Respondent's statement in his record of the time taken for the procedure (2.5 hours) as compared to the nurses notes and record which indicates that the abdominoplasty took one hour and 20 minutes which Dr Sanki says is well below the normal duration of 2 to 3 hours. Dr Sanki states that this patient was seen by another plastic surgeon and that practitioner's notes describe the abdominal appearance as being "moth-eaten" with a "flattened umbilicus". The moth-eaten appearance is characteristic of over resection with liposuction or fat necrosis. 3. The Respondents response to Patient N's complaint as set out in his statement R1 page 178 and following. Under the heading "Reflections on Patient N" the Respondent stated: "The fact that Patient N was so unsure about her thigh lift surgery right up until the time of her abdominoplasty, should have caused me to delay both surgeries. The surgeries we were discussing are highly complex surgeries." 4. The Respondent had his first consultation with Patient N on 14 February 2018. She had excess skin following weight loss. The Respondent recommended abdominoplasty and medial thigh lift. Patient N was sent an information pack and consent form. Patient N presented again for a consultation on 11 May 2018. Patient N had decided to go ahead with the abdominoplasty procedure however, she was undecided in relation to the thigh lift. 5. On 13 September 2018 the Respondent performed abdominoplasty on Patient N at Sydney Private Hospital. She remained in hospital until 19 September 2018. The Respondent saw her each day during her hospitalisation. Although Patient N says in her statement that she was in severe pain following the operation, the Respondent did not think it was at a severe level. The hospital records show she refused pain relief in the early stages. 6. On 21 September 2018 Patient N sent a text message about an area of her wound which was concerning her. The Respondent said he or his nurse would call her. There was a further text exchange on 22 September 2018. 7. On 19 October 2018 the Respondent saw Patient N in his rooms. Then on 25 October 2018 the Respondent received a text message from Patient N advising she had very intense pain just under her left rib and towards the centre of her chest. The Respondent replied asking that she have an X-ray and he sent a request form. She confirmed later that day she had undertaken an X-ray. On 26 October 2018 the Respondent advised that the X-ray was clear. There was further exchange of text and advice from the Respondent for Patient N to see her GP about a very sharp pain. The Respondent told her it was unlikely to be related to her surgery. 8. The Respondent saw Patient N again on 9 November 2018. He discussed with Patient N a proposed rhinoplasty operation she had requested. The Respondent advised her the procedure was unlikely to assist her suffering with migraines which was an outcome she was hoping for. The operation was undertaken on 20 November 2018. The Respondent also performed an umbilicus resection. Patient N was discharged the following day. Patient N thereafter attended follow-up consultations with both the Respondent and his practice nurse. He was unaware she was unhappy with his work until he received the complaint lodged by Patient N. Patient N's Statement dated 1 June 2021. 1. Patient N's statement is contained in exhibit A1 volume 10 of 10 at page 764 and following. Her complaint relates to the aesthetic appearance of the procedures the Respondent undertook with her. She alleged he had not explained the risks associated with the procedures they had discussed in the consultation in mid 2018. She said she had not completed the consent form or waivers prior to the surgery. The first surgery was the abdominoplasty in September 2018. Prior to the surgery (on the day of surgery) Patient N was feeling apprehensive about the operation. She spoke to the Respondent as she was being prepared for the procedure. She told the Respondent she had googled the operation the night before and was concerned about the information she received. She said the Respondent advised her not to rely on the internet. He recommended I proceed with the operation. 2. Following the operation Patient N said she was in a lot of pain. She noticed after a few days her wound looked like it was infected. She thought the Respondent and the nurses really didn't take notice of that. Upon discharge she went home to recover. The scars on her stomach became "yucky" and the skin looked abnormal. Over the weeks the scars on her stomach became worse (it seems unsightly). She attended the Respondent's clinic for several weeks almost daily for wound treatment. At about one-month post-surgery the Respondent performed a procedure on her stomach scars and would not tell her what he was doing. 3. Patient N said she experienced excruciating pain post-operatively. She contacted the Respondent. The Respondent requested an X-ray which was clear. The pain lasted for a long time. 4. At a review consultation Patient N told the Respondent she was unhappy about the position of her umbilicus and also the scar appearance on her stomach. He told her he could do a revision of both those areas whilst undertaking a planned rhinoplasty. When Patient N attended for that operation she asked the Respondent how he was proposing to "fix the location" of her umbilicus. She said the Respondent replied, "with magic". Following the surgery Patient N could not see that the Respondent had done any revision surgery to her scars. She said the umbilicus did look "slightly better". The Respondent advised her to wait for a year to see the results re the umbilicus placement. Patient N also records her dissatisfaction with the rhinoplasty operation. Although the nose does look straighter, she has a blocked sensation in her nose and it impacts her breathing. Particulars 7 and 8 to Complaint Four 1. Complaint Four addresses the Respondent's current state of competency. The Particulars 7 and 8 largely address the Respondent's competency in the years 2017 to 2019 and seeks to establish that if he was not competent during that period then, by extension, he is not competent at the date of the hearing before the Tribunal. That is not necessarily an available conclusion. The evidence of Dr Sanki, both written and oral addresses that question. 2. In her report, Dr Sanki was asked to opine whether the Respondent was competent to practise as a specialist plastic surgeon between 2018 and 2019. 3. Dr Sanki opined that: "The most concerning aspect of Dr Amjadi's practice is that he did not modify his technique and patient management to avoid further complications….. He did not learn from his mistakes and did not modify the style of his practice so that he spent more time with each patient preoperatively and intraoperatively." 1. She also stated: "It is not acceptable to recommend procedures to patients when the risk of those procedures outweigh the benefits. Dr. Amjadi would have been aware of his complication rate, and in the situation of (two of his patients) he should have had insight to refer these patients for a second opinion as their clinical problems were not insignificant. In the situation of (two other patients), both patients should have been advised that their outcomes would reflect their high BMI." 1. In relation to the Respondents surgical skill Dr Sanki observed: "all patients (except for one who had breast surgery) suffered from wound dehiscences. This suggests poor suturing techniques, poor patient selection and closure of the wounds under undue tension. Dr Amjadi may have had surgical skills appropriate to a young surgeon, but he took on cases that were far too difficult. As per the RACS Code of Conduct, it is important for a surgeon to be aware of their limitations and to refer patients that would achieve a better outcome with a more experienced surgeon." 1. In relation to patient management, Dr Sankey observed that all the Respondents patients were kept in hospital for a long period of time. She stated: "Massive weight loss patients require a significant amount of time both in their preoperative and post-surgical counselling. Their procedures are time-consuming and cannot be rushed. A massive weight loss body contouring practice is not amenable to profit from high turnover." 1. Under the heading "history taking and medical records" Dr Sanki stated the following: "Dr Amjadi relied upon the provision of thorough consent through his paperwork and efficient practice staff to ensure the paperwork was delivered and signed by email. This was often not signed…… Consent entails a description of expectations of a procedure with minor and major risks. This collection of eight patients in a short space of time indicates that his risk rate of infection, poor scarring, wound dehiscence, poor aesthetic result and revision were in excess of the standard expected of a specialist plastic surgeon. The consent paperwork therefore underplayed the risk of his procedures to his patients". "Dr Amjadi's paperwork explaining his procedures, the consent process and post-operative management was very good. Unfortunately, there is no guarantee that patients will read and appreciate the details of this paperwork unless someone goes through it with them". 1. Dr Sanki was asked to provide her opinion as to whether the Respondent was competent to practise as a specialist plastic surgeon in 2018 until 2019. Dr Sanki provided the following opinion. "Dr Amjadi was not competent to practise as a specialist plastic surgeon based on these eight patients that were managed in 2018–2019…..The Standard of care provided by a specialist plastic surgeon were not met as his complication rate appears to be far higher than that which would be expected of a body contouring surgeon" 2. Dr Sanki also opined that the Respondent's "preoperative patient management failed to properly consent patients about appropriate expectations for their procedures." His "post-operative care failed to appropriately manage his complications". He "failed to identify that his outcomes were not consistent with other specialist plastic surgeons so that he might improve his skills and patient management." 3. Dr Sanki was asked to provide her opinion in relation to the following question. "Please consider Dr Ajmadi's response to each complaint and the evidence provided in his section 150 proceedings and please provide your opinion on whether Dr Amjadi is currently competent to practise as a specialist plastic surgeon?" Dr Sanki provided the following opinion: "He is appropriate to practise as a specialist plastic surgeon under the supervision of his mentors, Dr. Safvat and Dr Turner. He has shown that over the past two years. He has been trying to improve his skills and patient management. My concern is that these eight patients show significant breaches in all aspects of surgical management, history, examination, surgical planning, surgery, post-operative follow-up and practice evaluation. It would not be safe to allow Dr Amjadi to practice at this stage, unsupervised." 4. Dr Sanki's report, above referred to was dated 5 September 2022. At page 272 of exhibit A1 volume two of ten, there is another document (addendum) to the report and that document is dated 7 October 2022. That addendum reiterated portions of her earlier report and added reference to the particular "Codes of Conduct" applicable to a plastic surgeon. In that document we note the following evidence in particular. 5. Dr Sanki opined that the Respondent "has the appropriate training and experience to perform: Brachioplasty, Abdominoplasty, Thigh lifts, Lower back lifts, Purse string buttock lifts, Belt Lipectomy, Wedge excisions and Liposuction. When a person completes a fellowship in plastic surgery under the supervision of the Royal Australasian College of Surgeons, they are appropriately trained and experienced to perform aesthetic plastic surgery procedures." She opined further, however, that the Respondent's "management of these eight patients show a pattern of unsatisfactory behaviour." 6. Additionally, we noted under the heading of "Patient Management" in this document, Dr Sanki included the following: "All patients were charged a minimal surgical fee. It appears many of the patients were drawn to Dr Amjadi through and "Affordable Australian skin removal" Facebook page. I do not know Dr Amjadi's motivations for undercharging for his procedures, hopefully they were altruistic. Unfortunately, the patients did not expect to get a 'minimal' result from the surgery. I have assumed that given Dr Amjadi performed 260 massive weight loss cases in 2018 and 148 massive weight loss cases in 2019, that his practice worked on profitability through numbers. Massive weight loss patients require a significant amount of time both in their preoperative and post-surgical counselling. Their procedures are time-consuming and cannot be rushed. A contouring practice is not amenable to profit from high turnover, and the amounts charged for each patient was simply not compatible with the costs of running a practice with multiple staff in a city location. This method of practice was inconsistent with ASPS Code of conduct part 2.1, which states 'Members must at all times maintain high standards in their practice of Plastic Surgery.'" The Respondent's Statement under the heading "Overall Reflections" 1. We note the following from this part of the Respondent's Statement which is set out at page 184 of exhibit R1. 2. The Respondent stated that it is hard for him to reconcile that "these patients are an accurate representation of my entire practice." He stated he has performed thousands of surgeries in his career and in his working life he was primarily seeing happy patients with good results from their surgeries. (We pause here to note that the Respondent expressed surprise with the complaints made by Patient N and M in that he was not aware they were dissatisfied with their outcomes from surgery until he saw their complaints. We also note with many of the responses made by the Respondent in his Statement, which we have referred to above, do not identify patients directly telling the Respondent they were dissatisfied with the outcomes from their surgery.) 3. The Respondent was concerned that his general competency was being judged based on only 14 patients. 4. At Paragraph 523 of his statement the Respondent set out the following: "I would like to make the following comments about my practice after I opened Luxe Clinic and started working at the Wollongong practice: (a) My recordkeeping at the time I was treating these patients was poor. I did not note down nearly enough information about what went on in the consultations I was having with the patients. This is very clear to me as I have gone through all my records for all of these patients and looked at the way I was writing my records then as opposed to now. The record keeping was deficient. (b) My pre-operative consultations were too brief and I should have recorded more information. Many of these patients should have had measurements taken and recorded, both pre-and post-operative photographs taken by me in consultation, and a physical examination performed. My use of telehealth started because I understood the demographic of my patients and that they could not necessarily come to my practice easily. I wanted to make sure that the service I was providing was accessible. Although telehealth consultations are allowed to be undertaken for initial consultations, I would not use that as an option now. (c) One of my main goals in setting up Luxe Clinic was to bring affordable surgery to those who needed it but could not afford the standard prices. This was my aim because procedures such as body contouring surgery and breast reduction are often unaffordable to patients who would really benefit from them. Although these surgeries are elective, the patients I was seeing had physical issues that were severely impacting their lives. I underestimated how many patients of low financial need were seeking out body contouring surgery. As a result, I took on too high a patient load because I wanted to provide the service, but this at times resulted in substandard care being provided. I have a deep level of shame surrounding my failures as it was never my intention to cause any harm or distress to this patient demographic. My driving force was always to help. (d) Part of my high patient load was patient's coming from interstate. In hindsight, I should not have taken these patients on for such high complex surgeries and I did make the decision to stop seeing them. They had their own set of challenges, such as the difficulties in having face-to-face consultations for either pre or post-operative reviews requiring patients to stay in Sydney following their surgeries for follow-up care, which they were sometimes reluctant to do, or refused to do. (e) Another key issue was my inability to refuse the wishes of my patients. I would hear what they wanted from their surgeries, or how they wanted their surgery to be performed and I would agree to try to work with what they were asking for, even when I had misgivings about it, I have been seeing a psychologist about this issue and this has been something I have learned about myself and that there is an expectation on me, as a doctor, to say no to my patients when they are asking for something that I do not believe is the best option for them. (f) I have also considered the way so many of my patients were using text messages to communicate with me. I have considered this and whether or not it is appropriate. My aim with this was to make sure my patients could contact me at any time if they had a question or an issue. This is something that many patients have told me over the years gave them comfort and security. You can see from the text messages in this matter that I was always responsive to the patients when they contacted me. I understood that it was often difficult for my patients to come, to see me every time they had an issue they needed to communicate with me about. So I allowed this situation to evolve in order to help them. However, I can see that in some cases this led to a situation where the patients were more comfortable communicating by text and it was too long before I could get them into the surgery for a proper assessment and examination (g) I can see that in a few of those patients, particularly the ones undergoing body contouring surgery, that I was approaching the surgeries from a functional point of view and had under-appreciated the importance of the cosmetic appearance to the patient. This is something that I should have elicited from them at an initial consultation but often did not. I was looking at a patient with significant skin excess and noting their issues with their activities of daily living and I was not really hearing about how they also wanted to look nicer and exploring that expectation with them." 1. The Respondent set out his response to some of the expert evidence provided by Dr Stern and Dr Sanki. The Respondent said he "accepted completely the comments made by the experts on the inadequacy of his medical records". He also "accepted that his consent processes were not as detailed as they should have been". Although he "provided detailed written information, he did not go through that with his patients in person in sufficient detail". The Respondent further "accepted that his pre-operative consultations during this period of time (2017 to 2019) did not go through the level of assessment and examination that would have been required for the complexity of some of the surgeries the patients were undergoing. That was particularly applicable to patients having their consultations via Skype." Evidence of Dr Sanki Oral Evidence of Dr Sanki 1. Dr Sanki gave oral evidence on 12,13 and 19 March 2024. We have noted the following evidence of Dr Sanki in particular. 2. There is no challenge to Dr Sanki as an expert witness in the field of plastic surgery. We note that she is engaged only in private practice. She is currently the Vice-President of the Australasian Society of Aesthetic Plastic Surgeons. She commenced practice as a specialist plastic surgeon in 2012. Her particular interest in practice is in body contouring following massive weight loss and pregnancy. 3. Dr Sanki identified her report which was provided to the HCCC. She was then asked to consider her report in relation to Patient G. She confirmed that her estimates for the time operations should have taken for Patient G were based upon the time she would have taken for the same operation and from her knowledge of the time her colleagues would have taken. 4. The HCCC asked Dr Sanki to identify a study she had referenced in her report titled "Surgical wound dehiscence, improving prevention and outcomes" (2018). It was marked as exhibit A4. (Although we were unable to find the reference to this exhibit in the report of Dr Sanki, we accept she relied upon it in relation to her evidence in relation to Patient G in particular.) 5. In relation to her opinion (expressed in relation to Patient H) that liposuction is generally inappropriate after massive weight loss of more than 30kg, Dr Sanki said her opinion was based upon her training, knowledge and experience. She also relied upon a study titled "Image analysis study of the skin in patients with morbid obesity and massive weight loss" (23 January 2015). That document was marked as exhibit A5. Further, in support of her evidence in relation to Patient Husband, Dr Sanki referenced an article titled "Abdominoplasty related nerve injuries" (2014) exhibit A6. 6. Dr Sanki also referred the Tribunal to an article titled "Quality of Life outcomes after Cosmetic Surgery" dated 1998, (marked exhibit A7) in support of her evidence about the imperative requirement for family support for patients undertaking cosmetic surgery (see report on Patient I). 7. In relation to Patient I and breast reduction cosmetic surgery, Dr Sanki supported her own opinion, based upon her training, knowledge and experience, with an article titled: "Optimal strategies for addressing developmental breast asymmetry and others" dated 2023. (exhibit A8) 8. In relation to Patient M, the opinion of Dr Sanki was that the Respondent had taken "short-cuts". She based her opinion on her, training, knowledge and experience. 9. In relation to all of the opinions provided by Dr Sanki she said that her opinions expressed in her report were based upon her own skill, training, knowledge and experience as a plastic surgeon. Cross-examination of Dr Sanki 1. Dr Sanki was cross-examined by the Respondent's Senior Counsel. In that lengthy cross-examination we have noted the following in particular. 2. Dr Sanki was asked about her own surgical logbook in relation to massive weight loss patient procedures which she said she maintains. She said it is an audit document she performs for St. George Hospital every six months. It covers all the hospitals at which she operates. Dr Sanki said she had been undertaking body contouring surgery with massive weight loss patients since 2012. 3. Dr Sanki was asked questions about her own training, (prior to commencing her own practice as a plastic surgeon), in body contouring plastic surgery for massive weight loss patients. 4. When Dr Sanki recommenced her oral evidence on 13 March 2024, counsel for the HCCC was permitted to ask her further questions as part of her evidence in chief. Dr Sanki was asked if she had seen the supervisors' reports which the Respondent had provided. These reports had been generated as part of the conditions placed on the Respondent's registration by the Medical Council. She told the Tribunal she had viewed those reports and also the character references provided by the Respondent as part of his evidence. She was asked if she had changed her opinion in relation to the Respondent's fitness to practice plastic surgery, as expressed by her in her report to the HCCC (now in evidence). She said the supervision reports and references were considered by her very seriously and they did influence her report quite significantly. She said she had seen some reports and references when she prepared her report in 2022. Recently she had been shown further reports from supervisors and references and although those documents did not change her opinions in relation to the cases she had been asked to review, they had changed her opinion about Dr Amjadi 's conditions of practise since those cases and since he has been under supervision. She said: "My current opinion is that his supervisors feel that he is performing to a good standard and therefore he should be allowed to practise body contouring procedures. However, I would suggest that this should still be done with some level of supervision which we would expect of other plastic surgeons, such as the audit process which we started discussing yesterday". 5. When pressed further about her current opinion by the Tribunal, Dr Sanki stated: "That he would be discussing the number of body contouring cases, the number of plastic surgery cases he is doing, his minor complication rate and his major complication rate at regular intervals, and I would suggest a mentorship as he has been experiencing with his supervisors, to continue discussing difficult cases as he is going along". 6. Further, Dr Sanki was asked by the Tribunal members questions designed to elicit a specific unequivocal opinion from her about her view for the necessity for Dr Amjadi to be supervised in body contouring surgery for patients who have achieved massive weight loss. Her evidence was as follows: "SENIOR MEMBER COWAP Q. But your understanding was that supervision meant someone present in the room, the operating theatre, while he does-- A. The surgeon, correct. The surgeon is in the room, I assume operating with him. PRINCIPAL MEMBER LE POER TRENCH Q. And is there any other supervision required in respect of any other type of operation that he might perform? A. No, my understanding is that he is currently allowed to perform rhinoplasties, breast surgeries and skin surgeries, such as skin cancer removal. Q. Is there any other restriction that you understand from reading the material, about him operating on any different type of operation? A. Sorry, your Honour, I may have missed it, but that was my understanding of his restrictions at the moment. Q. Just so that I understand, what you're suggesting now is, that it's no longer necessary for him to be supervised at a level where he has a surgeon in the room with him when he's doing body contouring work? Is that what your recommendation is, or your opinion is? A. My opinion comes based on what his supervisors-- Q. No, I'm just asking you what your opinion is, not what it's based on. A. I find it difficult to answer that question, because it would be something that I would like to discuss with his supervisors, to see if they think that he's appropriate for that. Q. Was there anything that you saw in the supervision reports that suggested to you that he was not appropriate to carry out body contouring work, without a supervisor in the room with him? A. Not from those reports, no." (We note that evidence of the Respondent's supervisors is summarised and assessed by us later in these reasons). 1. Pursuant to a call made by the Respondent's senior counsel, Dr Sanki produced copies of her power point surgical logbooks. The time period was February 2019 to July 2019 as indicated by the title on the three-page document. That document was marked as exhibit R3. 2. The document does not show a year. Dr Sanki said she could not say which year it related to. She was certain it was a six month period. The document set out numbers for the headings "Complications Major" and Complications Minor". Dr Sanki said a "Complication Major" was one which required re-admission, was life-threatening or significantly affected the patients quality of life. A "Complication Minor" is one where complications are managed as out-patients, or did not cause significant harm to the patient. Dr Sanki said she does, with some surgeries, define major and minor complications differently for some other operations. However not for body contouring surgeries in patients with massive weight loss. 3. In relation to exhibit R3 Dr Sanki said that she had only had 3 major complications from 124 procedures. She conceded that she did have patients who suffered minor complications in the period covered by exhibit R3, however, those were not included in the document. Dr Sanki was unable to say how many of the 124 procedures set out in exhibit R3 were performed on patients with massive weight loss. Dr Sanki said that information was not relevant to the presentation she was making. The presentation was to show the number of procedures she was undertaking and to assess her complication rate. 4. Dr Sanki conceded that body contouring procedures in patients with massive weight loss suffer a significant increase in complications both major and minor. Dr Sanki decided she would not operate on patients with a BMI of greater than 35 two years ago. Since that time her non-massive weight loss patients have been in a range of BMI 25 to 30. Prior to that two-year period, Dr Sanki estimated about 10% of her patients had a BMI greater than 35. 5. Dr Sanki was then shown a copy of a document she had provided, on request. She identified the document as a power-point presentation titled Amira NM, 2020, January to July". That document was admitted as exhibit R4. Dr Sanki confirmed the document showed no major complications for any procedure during that period. The last page showed only one minor complication. She recalled the procedure was an augmentation mastopexy. She said there had been a poor aesthetic outcome. She thought it related to 2 patients. Dr Sanki said the patients in this cohort represented in exhibit R4 may still have included patients with greater BMI than 35. 6. Dr Sanki was asked to produce the source document for the information transposed into exhibit R4. She said she could not do that as it named the patients. She was asked to delete the names. She said she did not know how to do that. Although she could print the document and then obliterate the name of the patient, she said it would be very difficult because "it is the production of all the patient files to do that." 7. Dr Sanki agreed that 50% of the abdominoplasty patients referred to in the exhibit R4 were in massive weight loss patients and 100% of the brachioplasty and thigh lift patients would have been massive weight loss patients. She also agreed the document showed no major complications for patients in that category. She did not record minor complications such as small wound dehiscences, stitch sinuses or seroma. 8. Dr Sanki was than shown another document which she had provided. The title on the document was "Amira NM. 2023 July to December". It was marked as exhibit R5. This covered a six-month period. It showed 2 patients with major complications. One patient suffered wound infection and required hospitalisation. There were also 2 major complications arising in patients who developed haematoma following abdominoplasty. Dr Sanki could not be sure all the patients in exhibit R5 had a BMI under 35. There were 146 procedures reported in the document. 9. Dr Sanki estimated that at present time about half of the patients she operates on are massive weight loss patients and the other half would be post-pregnancy patients. 10. In relation to her documentation Dr Sanki said that the consent form, signed by her patients is the same for both patients undergoing surgery following massive weight loss as for patients requiring surgery post-pregnancy. She also provides patient information brochures to her patients. She gives presentations to her patients in a consultation and the presentations differ depending on the proposed surgery. 11. Dr Sanki was asked about an article she provided which is titled "Correlation of Body Contouring Surgery with Increasing Body Mass". The article was marked as exhibit R6. Dr Sanki agreed the article addresses the correlation between increasing BMI in patients and complication rates in those patients. Dr Sanki agreed this article defined "major" and "minor" complications differently to the way Dr Sanki had done in exhibit's R3 to R5. She agreed in exhibit R6 seroma and haematoma are deemed minor complications. Dr Sanki said that haematoma which do not require readmission or re-operation would be rare. 12. A further article titled "Complications of Body Contouring in Post-Bariatric Patients" (2021) was provided by Dr Sanki. That article was marked as exhibit R7. In relation to the content of the article, Dr Sanki agreed that it contends that the overall weighted rate of post-bariatric body contouring surgical complications in all studies was 31.5%. That the most frequent complication was seroma. It addresses the relationship between the weight of the resected tissue and the risk of complication. The article is a review of numerous studies/publications of body-contouring in post-bariatric surgery patients. Dr Sanki said it demonstrates the complications in massive weight loss patients are higher than post-pregnancy. She agreed it reviewed 561 articles and 25 studies. She agreed it showed the "weighted rate of complications was 38.2% for abdominoplasty, 18.3% for breast contouring studies, and 33.1% for extremities. She agreed that extremities would include brachioplasties. 13. Dr Sanki said the take-away message from the meta study is that complications in body contouring patients is 37%. She agreed the study is relevant, however she said it was necessary to understand the study includes minor complications as well as major complications and there can be varying degrees of dehiscence. She did not agree that when operating on post-bariatric patients complications are likely. She said it depends upon the patient. 14. Dr Sanki's attention was taken to a passage in the article contained in exhibit R7. She was asked if she agreed with the authors conclusions. She said the article touches on the fact that we don't really understand why obesity is linked with higher complications. She did not agree with the next section of the conclusions. She said: "Higher weight of tissue removed during contouring procedures definitely has a link with increased wound healing complications, and I would say that agrees with my findings in my own practice….I do agree that we should be aware of how much tissue we are removing, but I would not remove less tissue, and compromise the patient's aesthetic result." Dr Sanki also said: "We can say that patients who are obese are more likely to have higher complications and patients who have a higher weight of tissue are more likely to have complications." 15. The Respondent senior counsel then asked Dr Sanki to look at an article which the Respondent had relied upon, which is found in volume 10 of the Respondents material at page 883. Under the heading of "Results" it states there were 96 patients' procedures analysed. It showed 17.7% as a major complication rate and 44.8% for minor complications. Dr Sanki denied that those complication rates are not reflective of surgical skill. 16. Dr Sanki was asked about the conclusion in the study relating to brachioplasty which demonstrated a 50% complication rate. Dr Sanki said that was an alarming rate however, she did not see a stitch abscess as an alarming complication. It was pointed out that only 5 patients of the 96 patients in the study had stitch abscess. That still left nearly 50% with complications major or minor. Dr Sanki said that was higher than her complication rate for brachioplasty procedures. She acknowledged she had not provided detail of her own major and minor complication rate for brachioplasty procedures. She had provided only the information contained in exhibit's R3, R4 and R5. In a presentation she had delivered to Registrars in 2022 she said that the most significant complication in brachioplasty is hypertrophic scaring. 17. It was put to Dr Sanki that in assessing Dr Amjadi's skill as a surgeon it was necessary to have in mind that the types of studies to which Dr Sanki had been taken in this cross-examination, all of which showed a high level of complication arising from the type of surgery the Respondent was performing. Dr Sanki said: "The things which were concerning about the brachioplasty patients in Dr Amjadi's case series was the severity of patient complications and all patients required or had problems with their Z-plasties...in their axilla and the dehiscence that occurred while the patient was still in hospital and then another dehiscence that was associated with infection. They are an unusual collection of things that I think were preventable." (We note the above comments were particularly addressed at the complications which arose for Patient G). 18. The Respondent took Dr Sanki to volume 9 page 22 of the Respondent's documents, a document titled "Complication rate for 2017 to 2019". Dr Sanki was asked to accept that the document is a compilation of information obtained from the logbooks of the Respondent, and the source documents have been provided to the Tribunal on a USB. Dr Sanki was also asked to have exhibit R7 available for reference. Dr Sanki was also asked to look at an article titled "Complications after lower body contouring surgery due to massive weight loss unaffected by weight loss method" (2018 meta-analysis). (The article is produced in volume 1 page 197 of the Respondent's documents). The article analyses complication rates between two groups of patients with massive weight loss, where one group lost weight as a result of bariatric surgery and the other group lost weight through exercise and diet. 19. It was put that the study showed an overall complication rate of 51% where most complications were minor and superficial wound infections. Dr Sanki agreed. Further it was put the study found that no particular subgroup of massive weight loss patients appeared more prone to complications. Dr Sanki was asked if she accepted those findings. She replied that she did accept what the paper said however she stated she knew of other papers which said the opposite. She was asked if those papers pre-dated the subject 2019 publication. She did not know. (We note that the papers referred to by Dr Sanki, as stating the opposite to the subject paper, were not provided to the Tribunal.) 20. Dr Sanki was taken to the "discussion" portion of the subject study. There, it was pointed out, the authors stated that body contouring after massive weight loss is prone to complications, whereby the proportion of all complications is typically high, reaching up to 70%. Further it stated that the vast majority are minor and in the study more than 75% of the complications were classified as late, that is occurring seven to 30 days post-operatively. 21. Having taken Dr Sanki through the abovementioned studies, the following was asked of her: "And would you agree that, if you have a look at Dr Amjadi's summary of his complication rates, and it is for the years since he has become a consultant, he is not an outlier, is he, in relation to his complication rates in body contouring procedures, based on the literature which we have reviewed to this point in time? Dr Sanki answered "yes". Dr Sanki asked senior counsel for the Respondent if the complication rate for the Respondent's operations, as stated in the summary document she has been provided with, only related to major complications. She was told that it related to all complications major and minor. It was then put: "He is not an outlier is he"? She replied "No". 22. Dr Sanki advised that she was the Chair of education for ASAPS. 23. Dr Sanki was taken to her report in relation to Patient G. (exhibit A1 volume 2 page 262). She was also asked to look at exhibit A4 which is an article titled "World Union of Wound Healing Societies consensus". 24. Dr Sanki agreed that there are circumstances surrounding the home in which a patient is to recover which play a role in the wound healing or failing to heal. Senior Counsel for the Respondent called such factors "social factors". Dr Sanki agreed factors such as caring roles, assistance at home, whether a patient has to lift heavy weights, whether there is a pet in the home, whether a patient who thought they could count on the care of their husband, who is then imprisoned, are all factors which impact on the post-operative healing process. Dr Sanki also agreed that non-compliance with treatment management (which Dr Sanki called "mechanical factors") would impact on wound healing. 25. Dr Sanki was taken to that part of her report which addressed post-operative recovery from the brachioplasty operation which Patient G undertook. Dr Sanki noted significant dehiscence on day 2 post-operatively. She opined it was due to poor surgical skill. In formulating such an opinion she said she had relied upon the patients account and photo's. She was taken to the clinical records for Patient G which are in volume 6 of 10 in exhibit A1. (page 576). She agreed there was nothing in the clinical notes kept by the Holroyd Private Hospital, which indicate any dehiscence on the first or second day post operatively. The same is true for the third day. On the fourth day post-operatively there is a note at 10.30 which states: "steri-strips applied wound, slight opening". On the fifth day Patient G was discharged following her own request. 26. Dr Sanki then agreed that there is no evidence in the clinical notes of "significant dehiscence on day 2 post-operatively". She also agreed there is no evidence in the clinical notes of a significant dehiscence at the time of discharge, some five days post operative. 27. Dr Sanki was then taken to the article which had been marked as exhibit A4. She was asked to read that part which appears under the heading "What Causes Surgical Wound Dehiscence?" She agreed the article states that there are three causes for wound dehiscence. Those are technical, mechanical and disrupted. Dr Sanki agreed that technical addressed issues with the closure of the incision. Suture failure would fall under technical. Dr Sanki confirmed that nowhere does the article say that a wound opening within seven days of surgery, whilst a patient is in hospital, is attributed to lack of surgical skill. 28. Further in exhibit A4 Senior Counsel took Dr Sanki to "point three" under "Technical issues" and noted that in a study of 363 patients with SWD (stitch wound dehiscence) following laparotomy, 8% was attributed to broken sutures and 4% to loose knots. Dr Sanki agreed that suggested 88% was attributed to something else. In relation to wound dehiscence arising from "mechanical" causes, Dr Sanki agreed that would include coughing, sneezing, lifting heavy weights. Dr Sanki also agreed that psychological stress, malnutrition, poor compliance with treatment plans, obesity, local factors, contamination, infection, pets in the home, especially a dog which sleeps on the bed with the patient can all play a role in poor wound healing. 29. In relation to Patient G, it was put that she had a myriad of social factors which were in play for her upon her discharge from hospital following her bilateral brachioplasty operation. Dr Sanki agreed and said she had acknowledged them in her report. Dr Sanki accepted that Patient G had three small children who were all autistic. Following her discharge from hospital her partner was incarcerated for serious offences. She was then alone in her care of her children. She had intermittent care from her mother-in-law. (Dr Sanki did not remember reading that information). She had a dog which slept on her bed. (Dr Sanki did not remember reading that information). She contracted influenza on a number of occasions. Dr Sanki agreed those were all factors which contributed to a failure of her wound dehiscence over a period of months. 30. At the conclusion of the above concessions made by Dr Sanki in relation to Patient G and the surgical skill of the Respondent, she was asked: "does your opinion remain that the wound dehiscence is attributable to, or suggest poor surgical skill enclosing the wounds? Dr Sanki answered: "Yes. May I explain?" She then explained: "I would infer that the Z-plasty flaps were ischaemic, which means that they lacked a good blood supply, predisposing them to dehiscing or falling apart, and that further poor blood supply predisposes them to infection. Her social history was not ideal, her weight and poor finances were not ideal, and hence they also contributed to her protracted recovery and the social history would have been important in this case." 31. Dr Sanki was then asked if she was suggesting that the mode of technique used for the brachioplasty increased the risk of infection? Dr Sanki said "Yes." She was asked to support that with an article or study. Dr Sanki said it was "plastic surgery 101", namely it is a basic proposition studied by all surgeons that a wound which has good blood supply will heal better and is less likely to become infected. She did agree there is currently no one set technique being adopted in bilateral brachioplasty procedures. 32. Dr Sanki was asked about her statement in her report (in relation to Patient G) relating to the revision surgery, where she said: "While the axillary flaps are difficult procedures, the failure of the wound to heal properly after Dr Amjadi performed this procedure in February and May suggest that they were also done with poor planning and technique." She was asked if she had read the Respondent's response to the HCCC in relation to Patient G which is found in Volume 3 at page 170 of the Respondents documents. (A letter of 14 November 2019). There the Respondent informed the HCCC he had sought the advice of Dr Paul Curtin before the procedure. Dr Sanki said she knew of Dr Curtin and said he was a very experienced plastic surgeon. He also suggested to Patient G that she should see Dr Curtin and obtain a second opinion, however, she declined to do so. The Respondent also arranged for Patient G's wound to be reviewed by the specialist wound care nurse and she was further advised to stay in hospital in order to receive the best care, however Patient G declined. Dr Sanki was asked whether, with all that further information she still was of the opinion that Dr Amjadi had a poor planning with respect to the revision surgery. She replied: "The Poor planning refers to planning of an operation.… Your question referred to the planning of the patient care. My reference to poor planning and technique refers to how we plan an operation as a Z-plasty of the axilla, or a flap repair of the axilla, and the execution of that plan." When asked what was it about the plan? Dr Sanki answered: "I don't know, because I couldn't see what Dr Amjadi's plan it was for that operation to assess it, but the point is that it, unfortunately, was unsuccessful." It was then put: "So you infer that it was poor planning, because there is no record of precisely what occurred?" Dr Sanki replied: "I did not see how Dr. Amjadi planned that operation, because I wasn't there." Dr Sanki then confirmed her view that because there was an absence of a record outlining the planning for the operation "the assessment of technique can only be inferred by what happened to the wound afterwards." 33. In relation to her reliance on the outcome of the operation (wound dehiscence and infection) to opine poor planning and technique, Dr Sanki conceded that recurring dehiscence is multifactorial and is not definitive of surgical skill. 34. Dr Sanki was then asked to consider the content of the paper which was marked as exhibit A7. Dr Sanki agreed that although the paper was referred to and tendered in relation to Patient H it was also applicable to Patient G's case. She was asked to look at page 2142 of the paper and the heading "All surgical Interventions". Dr Sanki said she had read the passage referred to and she agreed with the content. She was referred further to the words: "In addition, feelings of hopelessness or perceived lack of social support may alter post-operative coping, thereby decreasing the patient's satisfaction with his or her quality of life and surgical outcomes." 35. Dr Sanki was then asked questions about Patient H. She was taken to volume 10 of exhibit A1 at page 463 and following. She identified a document with the stamp of the Australian Society of Plastic Surgeons contained thereon. She knew the document and she said it would be a good introductory consent document. On 469 is a document titled "Post-surgery introduction: thigh lift." Dr Sanki thought it was quite thorough. She commented on that part of the document headed "Wear your surgical Garment." She told the Tribunal what she tells her patients about wearing the garment post-surgery and how to remove it and how long to have it off during the day to allow the skin to receive some air. She added that advice because of her personal experience arising from her attendance at a M & M meeting early in her career and also from the company who manufactures the garments. 36. At page 478 of Volume 10 of exhibit A1 is the Respondent's consent form for thigh lifts. Dr Sanki had no criticism of that document. Then on page 484 the document contained information about body contouring surgery. Dr Sanki confirmed again she had no criticism of that form. 37. Dr Sanki was then asked about the tender of a document during her oral evidence which was marked exhibit A5. It contained detail of an image analyser study. Dr Sanki confirmed the document marked exhibit A5 had confirmed her opinion that the decision by Dr Amjadi to perform liposuction on Patient H's thigh was not supported by the study. Dr Sanki said that most patients, after 30kg weight loss will not do well with thigh liposuction. 38. It was put to Dr Sanki that the article contained in exhibit A5 does not refer to liposuction at all, a proposition with which she agreed. She agreed it was a study of only 30 patients. Dr Sanki agreed the study states that obesity triggers quite a few dermatological aberrations and that skin quality is impaired with massive weight loss. Dr Sanki agreed the study stated that the conclusion was a hypothesis which is yet to be tested. However, Dr Sanki said she tested the hypothesis four times a week on average and agreed with the hypothesis. 39. It was put that liposuction is routinely performed on massive weight loss patients. Dr Sanki agreed. She said she does not perform liposuction as a separate procedure very frequently. (Her logbook presentations, which we have seen, show 10 such procedures over an 18 month time period.) She did however use liposuction frequently in operations on massive weight loss patients as part of another procedure such as an abdominoplasty operation. She stated however, that was a very different situation to where skin is not removed as was the case with Patient H. 40. Dr Sanki agreed that in relation to her experience with thigh lift procedures, it is limited when compared to abdominoplasties. However, she said that experience is consistent with other plastic surgeons. 41. It was put that Dr Sanki's opinion in relation to the liposuction procedure on Patient H's lower thighs, that the procedure was not appropriate, was "a fairly strong opinion." Dr Sanki defended her opinion saying: "No I don't think it is. My opinion showed the patient does have a big divot there and her skin hasn't contracted well and she does have a poor aesthetic result." 42. In relation to Dr Sanki's criticism of the Respondent failing to identify the source of Patient H's pain, Dr Sanki was asked to look at the clinical notes for Patient H which are set out in exhibit A1 volume 7 at page 177. Dr Sanki agreed the notes establish that Patient H was in hospital from 9 until 14 May 2019. Further she agreed there was no complaint of pain noted. She agreed that Dr Amjadi was first advised of Patient H experiencing pain on 16 May 2019. She had driven for four hours following discharge from hospital. Dr Sanki was asked to read the Respondent's letter to Patient H's GP which sets out his belief that the pain arises from "postures or garments' and in particular "compression from her thigh-pressured garment". Dr Sanki stated that she adhered to her conclusion in her report for this patient and stated: "I hold that Dr. Amjadi failed to determine the cause of the patient's post-operative severe pain because relief of wearing those garments should have got rid of her myalgia paresthetica, and it did not. She has chronic pain. So, I think there was something more going on there." In relation to that opinion, Dr Sanki was asked, given the entry for the letter to the patient's GP occurred on 20 May 2019, was Dr Sanki aware the patient did not attend for follow-up consultations until November 2019 (later in evidence corrected to 7 June 2019). She said she was so aware. 43. Dr Sanki was then taken to exhibit A6, an article titled "Abdominoplasty related Nerve Injuries. A systemic review and treatment options." Dr Sanki agreed the article proposed: "Conservative management is initially appropriate because the pain associated with many nerve injuries will self-resolve with time. Sharing this information with the patient, in addition to validating the cause of his or her pain, may ease the emotional stress and uncertainty that often accompanies chronic pain. In the short term, pharmacological treatment with pain medication, opioid and non-opioid anticonvulsants, tricyclic antidepressants, nerve blocks or steroid injections may also be useful. If pain does not improve in about three months (to a maximum of six months), a change of course is indicated, and it is appropriate to involve a peripheral nerve surgeon to evaluate the patient for surgical management of the pain" Dr Sanki said in response to that quote, "Patient H was in excruciating pain". It was then put that the article stands for the proposition that you adopt a conservative approach consistent with the clinical record of Dr Amjadi of 20 May 2019 for up to six months. Dr Sanki agreed that was so, however, the patient's description of her pain indicated it was an acute condition, which does not respond to conservative treatment. Dr Sanki then stated what she would have done in the circumstance. However, she did note that Dr Amjadi had asked to see Patient H again in one week's time. However, the patient did not return until 7 June 2019. Her next presentation was 21 November 2019. 44. Dr Sanki was then taken to an exchange between Patient H and the Respondent, in relation to which Dr Sanki said she understood why the patient "found it dismissive". We note the email communication showed Patient H saying she was experiencing serious, odd pain around her belly button. Excruciating to stand from sitting, feels like a deep muscular stabbing/burning pain. Dr Amjadi replied saying "Please see your GP for an ultrasound. Unlikely related to the tummy tuck." Clearly Dr Sanki considered the response dismissive. She said she would have provided more reassurance and also asked the patient to attend for further investigation of the pain. 45. The cross-examination excursed into a discussion about whether a plastic surgeon should agree to operate and cause aesthetic changes to a patient who wants the operation while her/his partner opposes or "does not support" the operation. It really did not advance the determination in this case. 46. Dr Sanki was then asked about her report in relation to Patient I. 47. Dr Sanki was asked to look at exhibit A8 being a paper which was titled "Optimal Strategies for addressing developmental breast asymmetry and the significance of symmetrical treatment. A system review." Dr Sanki agreed the conclusion to the paper was that there is no consensus as to how to manage developmental breast asymmetry. Dr Sanki agreed that the study stands for the proposition that there are a whole series of combinations of how one conducts surgery with breast asymmetry. She also agreed that the point of the meta-analysis is to say there is not sufficient data as to which of the various techniques gives the best result. 48. It was pointed out that the study was published in 2023 and reviewed papers published up to 2022. Dr Sanki agreed that was well after the date of the procedure the Respondent performed on the breasts of Patient I, however a number of the papers considered were published prior to 2017. Dr Sanki also said that the study supports her opinion that the best method in a situation such as that faced by Patient I is to make both breasts the size of the preferred breast and to avoid the use of implants if that is the patients preference. She did agree that the wealth of knowledge that now exists in 2023 by virtue of this meta-analysis, was not available to Dr Amjadi in 2017. Dr Sanki said she was using a method of making both breasts the size of the preferred breast and avoiding the use of implants, where possible, in 2017 however, she agreed she had not published her method. She conceded her results were not perfect which reflects her opinion that this is a very difficult area of plastic surgery. 49. Dr Sanki was then asked about her report in relation to Patient J. 50. Dr Sanki agreed she had not made any criticism of Dr Amjadi's surgical skill with this patient. Her criticism was that when the patient developed a seroma and/or a haematoma some six weeks post operatively (and some fat necrosis and wound dehiscence said Dr Sanki), Dr Amjadi did not arrange for a specialist plastic surgeon to assist Patient J in her post-operative management. Patient J was living inter-state. Dr Sanki stated there was a close and supportive plastic surgeon community in Australia. 51. In relation to her last statement of opinion that there was a close and supportive plastic surgeon community of Australia, Dr Sanki was asked about membership of the Australian Society of Plastic Surgeons. She was informed that the Respondent had applied to be admitted as a member of that society after qualifying and becoming a member of the FRACS. Dr Sanki was told the Respondent had been refused membership and the stated reasons shown to Dr Sanki (those reasons being denied by the Respondent). Having read the correspondence between the Respondent and the Board of the ASPS Dr Sanki said she did appreciate why Dr Amjadi was truly put off by that correspondence, however, she thought he could have been able to speak to one of his fellow classmates who knew him from their joint time as trainees. However, if there was no such colleague in Queensland she agreed that would have been a difficult situation for him. 52. Dr Sanki returned to complete her oral evidence on 19 March 2024. Her cross-examination by the Respondent continued. She was first asked about a "Slide Show" document she provided to the HCCC which Dr Sanki showed her patients in furtherance of the consent process for massive weight loss patients. That document was marked as exhibit R11. 53. Dr Sanki said of exhibit R11 that page 14 contains images which show the worst-case scenario and the risk factors which contribute to a higher risk. It was put that the images do not, in fact, show the worst-case scenario. Dr Sanki denied that the image of the wound dehiscence does not represent the worst-case scenario. She said it illustrated the worst she had ever seen. She said that the slide show advised that the risk of major complication in obese patients undertaking body contouring procedures was 43%. 54. In relation to massive weight loss patients who are proposing to undertake body contouring surgery and who are still obese (BMI over 35), Dr Sanki said she tells them that in addition to a 43% chance of major complications they also have a 46% chance of minor complications. 55. On page 41 of the slide show there is information about anticipated scaring. When it was suggested that scarring is best assessed at 12 months post-operative, Dr Sanki agreed and added "they can continue to evolve even after that." She also agreed that scars are at their worst at three months post-operative. 56. Dr Sanki was asked to look at an image contained in exhibit A1, volume 10, page 321. This related to Patient E. Dr Sanki agreed the picture showed a fairly extreme example of "Bat wings". Dr Sanki said, from her experience in her practice, obese patients who have body contouring operations are more likely to be dissatisfied with the aesthetic outcome of the body contouring procedure, because they still look obese. They have had the loose skin removed, however, their appearance is still obese. That dissatisfaction is added to if their scarring is more significant than they had expected. She said it comes back to managing unrealistic expectations in a patient. 57. Dr Sanki was asked by the Tribunal what she does with a patient who she feels is likely to have unrealistic expectations from the procedure being sought. She said she would refuse to operate on that patient. Her decision to do so comes from her experience of having taken patients through the slide show and consent process and then had to deal with unhappy patients who had unrealistic expectations. She said when that happens it is very upsetting both for herself and the patient. 58. Dr Sanki was taken to her own brochure she provides to patients contemplating brachioplasty operations. In that document the following is included: "An arm lift is a great operation for people who do not mind scars on their body or who have no intention of bearing the skin of their arms in public. Otherwise, the scar of an arm lift simply replaces one awful problem, excess skin, with another awful problem (thick, unsightly scar)." Further the consent form for a brachioplasty procedure warns of "poor scarring, including keloid". The consent form also advises the "need for a redo, reoperation or revision is 5 to 15%". Dr Sanki said that figure comes from her own experience. The brochure document on brachioplasty was marked as MFI 5 in the hearing. The consent form for brachioplasty was marked as exhibit R12. 59. Dr Sanki was then shown her own brochure provided to patients contemplating thigh lift. Her attention was taken to page 3 where similar words to those in the brachioplasty brochure, relating to scarring, appeared. 60. Dr Sanki then provided her consent form for thigh lift surgery which was marked as exhibit R13. The thigh lift brochure Dr Sanki provides to patients was marked as MFI 6. 61. Dr Sanki agreed that the consent form requires acknowledgment by the patient that a redo, re-operation and/or revision is likely to occur with 5 to 15% of patients. 62. Dr Sanki was then asked about another of her brochures titled "Plastic Surgery Planner". It is 30 pages in length. The document was marked as exhibit R14. Dr Sanki said the document is provided to all patients requiring aesthetic surgery. It addresses many aspects of surgery and post-surgical recovery. One aspect addressed is "scar management". It states; "At 12 to 18 months, most scars are white as they are avascular and possess fewer blood cells than normal skin."…"Very few scars are invisible". 63. It was put that in none of the photographs of scars seen in relation to Patients "G" to "N" were in the range of being 12 to 18 months post-operative. Dr Sanki said she did not recall any of the photo's being dated. It was then put that the photos were of little utility if they were undated. Dr Sanki did not agree with that. She said: "You can have an indication of what the scar might look like overtime even at an early stage at three months. For example, if it is stretched and wide at three months, it will always stay stretched and wide but it may improve by becoming paler." 64. Dr Sanki was then asked questions about her report in relation to Patient K. 65. Dr Sanki agreed that she made no criticism of the Respondent's surgical skill in relation to Patient K. She agreed she said Patient K had a good aesthetic outcome. She agreed there was no criticism of the Respondent's patient management. She said there was appropriate follow-up. 66. Dr Sanki was asked to look at all the photos of Patient K which are contained in volume 4 of the Respondent's material between pages 75 and 84. Patient K had a brachioplasty, breast reduction and FDL abdominoplasty procedures with Dr Amjadi. Dr Sanki agreed the photo's illustrated that "it was a very difficult starting position". Dr Sanki said the photos illustrate a patient she would decline to operate on unless she was to lose more weight or unless the patient is suffering a serious health issue associated with the excess skin following massive weight loss. In relation to the photos of Patient K's skin folds around her abdomen, Dr Sanki agreed it is probable her skin would cause rubbing and result in rash and/or infection. Dr Sanki stated that her only criticism of Dr Amjadi and his work with Patient K was her feeling that the expectation management was perhaps lacking. (We note that this illustrates perhaps the reason Dr Sanki's major complication rate is comparatively low. If the majority of your work is done with patients who are in a cohort which statistically would be expected to heal without complication, it is reasonable your major complication rate will be lower than that of the surgeon who does not decline the more complex and difficult surgery which falls statistically into a category which produces the highest of major complication rates.) 67. Dr Sanki was then provided with a copy of a Statutory Declaration signed by Patient K. The document was marked as exhibit R15. The content notes Patient K was a registered nurse by occupation. She states that before meeting the Respondent she had undertaken her own research about body contouring surgery. The document then sets out what might reasonably be seen as a glowing report of the Respondent as a surgeon. Dr Sanki was asked, in light of that document, whether it was fair criticism to conclude Dr Amjadi had not managed Patient K's expectations. Dr Sanki said she was relying for her comment, not on that document but rather the document Patient K created when she had a "change of heart". Whilst acknowledging there may have been many reasons for the "change of heart", Dr Sanki though it was about her expectations not being met. 68. Dr Sanki was then asked questions about Patient L. 69. Dr Sanki agreed she had reported that Patient L shows a good result given her starting position. That had been illustrated by the photo's which accompanied her records. Dr Sanki was shown a photo in exhibit A1 volume 8 at page 687. It is a photo of Patient L's under arm. Dr Sanki said that the good result reflected the look of her shape at the abdomen and arms. She had looked at the patient's own photos. (see exhibit A1 volume 10 pages 624 and 625.) Dr Sanki was asked to look at pages 643 to 649 in that same volume. Those pages contained other images of Patient L. Dr Sanki believed she had been shown images of Patient L's abdomen and back as she prepared her report. 70. Dr Sanki was taken to volume 4 page 232 of the Respondent's material. She was asked whether reading that material had refreshed her memory as to why the Respondent had told the HCCC he believed this complaint by Patient L was baseless. She said it had. Dr Sanki was then asked to look at a number of photos of Patient L contained in volume 4 of the Respondent material at page 148. She stated there was no photo of an abdominoplasty operation site. 71. Dr Sanki was taken to page 164 of volume 4 of the Respondent's material where a text message dated 27 September 2019 was set out. Dr Sanki was told that the text post-dates all of the surgery Patient L had with the Respondent. That text is a glowing affirmation of respect and support for the Respondent who was facing his first section 150 hearing. 72. Next Dr Sanki was taken to page 224 in volume 4 to an email 1 October 2019. Again, the email is said to have been sent post all procedures. Again, it is a glowing statement of support for the respondent. The email suggests it is being written on behalf of other patients in addition to Patient L. At the conclusion of the email there is a list of 34 names which Dr Sanki was asked to assume were all patients of Dr Amjadi. The Tribunal was informed that the names were all known to each other because of a Facebook page which was created for patients of Dr Amjadi. The Tribunal was told that Dr Amjadi is not a member of the Facebook page and therefore is not able to comment or post onto it. 73. Dr Sanki agreed that it is very difficult to have body contouring surgery for massive weight loss in the public health system. She said it was through lack of funding. As a consequence, Dr Sanki agreed there is very little opportunity for a registrar to operate with a consultant plastic surgeon in a public hospital. 74. Dr Sanki spoke about the pathway for patients who are obese to deal with loss of weight and body contouring surgery. Whereas patients are able to access superannuation to undertake bariatric surgery, once they lose massive weight, they need to fund their own body contouring surgery. That surgery may involve a number of operations and will cost tens of thousands of dollars. There are few, if any, plastic surgeons who offer body contouring surgery for "no-gap" payment. "No-Gap" cost means the surgeon will undertake the operation and post-operative care of the patient for whatever the private health insurance fund will pay. Dr Sanki told the Tribunal that based upon her own practice costs it is difficult to maintain the practice costs if undertaking "no-gap surgery". 75. Dr Sanki outlined the difficulty experienced by practitioners aiming to take on plastic surgery, in obtaining experience in that area of practice as they undertake general surgical training and training in aesthetic surgery and plastic surgery. 76. Dr Sanki was then asked questions about her report in relation to Patient M. 77. Dr Sanki confirmed she had seen the clinical records for this patient. In relation to Patient M, Dr Sanki confirmed she had given her opinion as "Unnecessary Z-plasties in the axilla." Dr Sanki also stated that Z-Plasty has largely been abandoned in body contouring. She said her authority for that opinion was based on papers which have been produced in the past few years don't refer to it. Also, in 2022 Dr Al Aly in an address to the ASAPS said he had abandoned Z-Plasty for body contouring. Further in relation to her statement that "wounds should be healed and without evidence of ulceration or dehiscence within seven to ten days of surgery", she had relied upon her own experience. 78. In relation to her comment under "Patient Management" about an alarming, or prevailing, complaint in relation to unfavourable scarring, Dr Sanki was asked to look at volume 10 of the Respondent's material at Page 8 where there is an article which addressed "Brachioplasty Outcomes". It (in this 2014 study) was pointed out that 22.9% of brachioplasties result in revision surgery. Of that revision surgery 36.4% was for hypertrophic scarring. The study noted 2 of the procedures had incision patterns described as Z-plasties. It notes that scar widening continues to be a significant complication in brachioplasties. The study concluded that revision rates for brachioplasties remain high. 79. Dr Sanki was then taken to another publication at page 15 of volume 10 of the Respondent's material. In that study it lists complications associated with Brachioplasties and itemises them. Dr Sanki did not take issue with any of the percentage rates of complications set out there. 80. The Tribunal asked Dr Sanki about the study she was being asked to consider at that time in the cross-examination. She agreed it was a meta-analysis report of 27 studies. She was asked whether she considered Meta-analysis reporting of any value as a research tool. She told the Tribunal that in her opinion they have value and she would not discount a study because it was a meta-analysis. (We note this is a completely different view to that of Dr Stern whose oral evidence we also address in this judgement.) 81. It was put to Dr Sanki that the conclusion of the study was that "There is no definitive best method of brachioplasty. The multiplicity of the performed techniques reveals lack of consensus." She agreed that was the conclusion. 82. It was put that the studies just considered, made clear that there are a variety of methods in undertaking a Brachioplasty and that represents the status quo. As such why was Dr Sanki critical of the Respondent using a Z-plasty technique. Dr Sanki said "The variability in technique is not huge. It is not enormous. It is still a long line that runs down the length of the arm. My concern here was that Dr Amjadi was using one technique, which in his hands, as demonstrated by this collection of patience, wasn't working well for him." 83. In Dr Sanki's Report she was asked to provide her opinion on whether Dr Amjadi was competent to practise as a specialist plastic surgeon in 2018 and 2019. She was asked questions about that part of her report. 84. Dr Sanki was asked about her general criticism of Dr Amjadi in her report. In particular she said that he did not learn from his mistakes. In relation to that statement Dr Sanki accepted that the Respondent first learned there may be an issue with poor patient outcomes on 28 June 2019 in a s 150 hearing. Then on 24 September 2019 his attention was drawn to there being a possible issue with his body contouring procedures at a second s 150 hearing. At that point he had restrictions placed on his registration which restrained him from performing any body contouring surgery in relation to abdominoplasty, arm lifts, buttock lifts, liposuction, etc. Dr Sanki agreed that Dr Amjadi 's complication rates as published in his logbooks were within normal rates expected from those surgeries. Dr Sanki was then asked how she could be critical about his surgical skill. 85. Dr Sanki replied: "I think Dr Amjadi should have been able, as a plastic surgeon, to look at his scars and see that they were not as good as they could be as a plastic surgeon." In response to that statement, it was put that Dr Sanki had not provided, with her opinion, any photographs of acceptable scarring in patients undertaking brachioplasty procedures, who were similar in their pre-operation body shape and BMI, to those operated upon by the Respondent and the subject of the complaint now under consideration. Dr Sanki agreed that was so, although she said she had not been asked for any such photographs. 86. Dr Sanki was asked where she had listed, in her presentations of her logbooks, which were presented to the Tribunal, patients exhibiting hypertrophic scars. She said she did not list those because her listing of complications was for major complications which required a patient re-admission to hospital. That was notwithstanding that she agreed statistically 24% of patients undergoing brachioplasty procedures will develop hypertrophic scarring. She agreed the Respondents stated rate of hypertrophic scarring was 25%. 87. It was put that the Respondent's logbook showed he operated on between 220 and 300 patients across two years where the patients were massive weight loss patients. Dr Sanki stated she operated on 150 patients each year and two thirds of those were massive weight loss patients. She conceded however, that the average BMI of her patients was 28. The range in the last 6 months had been BMI 17 to 33. She agreed a good number of those patients were under a BMI of 30. As such she agreed the complexity and the likelihood of complication was lower. 88. Dr Sanki was asked about her opinion that Dr Amjadi's complication rates appear to be far higher than what would be expected. She was asked how she could make such a statement in the absence of having any detail of the number and character of surgeries undertaken by Dr Amjadi in any given period. It was put that if this collection of 8 patients were in a cohort of 400 patients operated on by Dr Amjadi over the two year period under consideration, then that would not be an unusual complication rate. She replied "I think it is unusual that 8 patients put in a complaint with the HCCC." 89. Dr Sanki was asked if she was provided with any evidence showing a connection between the 8 patients or any group of them. She said she was aware that two of the patients shared a Facebook page. She was otherwise not provided with any information about any other connections. 90. Dr Sanki was asked about her statement that she did not know of any other plastic surgeon with the level of complaint she has seen for Dr Amjadi. She was asked if she knew of any other plastic surgeon with the same level of socio-economic patient composition as the Respondent. She said she did not. She said: "To my knowledge there is no other plastic surgeon in Sydney that would offer this surgery at a no-gap price. There were other surgeons in Australia doing that as well but, to my knowledge, not here in Sydney. 91. In reply to a question from the Tribunal members about an overall major complication rate for Dr Amjadi's patients and how few or many might give rise to a complaint to the HCCC, Dr Sanki said: "I was a little bit concerned that this is a tip of the iceberg phenomenon, because I think it takes a lot for patients who come from a vulnerable position to put in a complaint against the doctor who is at a point higher of hierarchy to them." Dr Sanki confirmed she was really addressing power imbalance between the patient and the surgeon. 92. In further answer to a question from the Tribunal about the possibility that the period of 2018 and 2019 provided Dr Amjadi with extensive experience in body contouring surgery and that perhaps 2019 was the end of his major complication rate being higher than anticipated, Dr Sanki answered as follows: "My impression from reading his supervisors reports is that he is doing very well and that the recommendations are that he should be allowed to see and perform not just abdominoplasty, but other body contouring procedures and I take that as a very serious recommendation because I trust my colleagues who have been supervising him for the past four years." 93. Dr Sanki did say she thought it would be good for the Respondent to have ongoing supervision and to have case reviews and chats regularly with the supervising surgeon. 94. A further question from the Tribunal was about the refusal by the Australian Society of Plastic Surgeons to admit Dr Amjadi as a member and whether Dr Sanki considered that refusal meant he suffered in the ability to interrelate and to learn subsequent to his graduation. She replied "Yes". 95. The Tribunal asked Dr Sanki whether, having canvassed all the evidence she has been shown whether she still holds the opinion that the wound dehiscence in this cohort of patients indicates or can be taken as supporting a general comment that he lacks surgical skill? Dr Sanki responded: "I can't say for sure because I have never observed Dr Amjadi's suturing. It implies that and I think the other point I was trying to make was that the patients did not have that expectation of that poor outcome." The Tribunal member pointed out that surgical skill and patient expectation were different. 96. Further the Tribunal asked about Dr Sanki's statement that the Respondent did not learn from his mistakes. It was pointed out to Dr Sanki that not every complication could be called a mistake. The question was then asked: "There is a difference between a complication and a mistake, so I just want to get a sense of how you regard these as being mistakes as opposed to complications that can arise despite things being done in an orthodox manner?" Dr Sanki responded: "I do see your point and again because I was never present in how he was operating, I cannot make a comment about his actual clinical skill and ability. But I think the mistakes here are that he wasn't spending enough time with the patients to explain things to them so that their expectations were set out properly.… The patients all complained that things did not seem that thorough as well and I think unfortunately what that adds up to is that when patients do have problems, they complain, they get upset." 97. The Tribunal further asked Dr Sanki about her recommendation of supervision for the Respondent in the future should he be allowed to undertake body contouring surgery, Dr Sanki had explained to her the different types of supervision which the Tribunal could impose. She informed the Tribunal that the type of supervision she thought was appropriate was the type of supervision where the Respondent was required to meet with his approved supervisor monthly to review his cases and outcomes. The supervisor should be required to provide a report to the Medical Council of NSW. Re-examination of Dr Sanki 1. The HCCC asked some further questions in re-examination. We note the following in particular from that evidence. 2. Dr Sanki confirmed that she has changed her position in relation to her opinion expressed in her report that Dr Amjadi requires supervision in relation to areas of surgery which the complaints relate to. She agreed his medical records should be a focus for supervision. She opined that were he to resume body contouring surgery it would be best for him to have "a slow start". 3. It was suggested to Dr Sanki that the Respondent may find himself again inundated with body contouring patients. However, it seems to us that such an event would only be invited if the Respondent was to resume undertaking "no gap" surgery for patients with a BMI in excess of 30 or 35. In the circumstances the Respondent finds himself in before the Tribunal, such an event is unlikely, however, this is a matter which is best addressed in the Stage Two hearing. 4. Dr Sanki opined that the Tribunal may, if it were appropriate to permit the Respondent to continue practice, limit, by the imposition of a condition on his registration, the number of body contouring surgeries, in massive weight loss patients, the Respondent may undertake, to a weekly limit. She thought four per week would be an appropriate number to recommence his body contouring practice. It was put to her that it would be appropriate for him to be supervised in his body contouring surgical practice. Dr Sanki opined that would be a good suggestion for one or two surgeries as he recommences that practice. 5. It was put to Dr Sanki that she had been informed in cross-examination that the first Dr Amjadi knew of a complaint about his surgery came in June 2019. She was asked if her opinion was to change were she to be told that in October 2018 St Luke's Hospital raised with the Respondent a cluster of complications in six patients. Dr Sanki said that it just confirms what she had suspected, namely that the subject complaints came at the end of a run of problems for the Respondent. 6. In relation to the advantage which would have flowed to Dr Amjadi had he been permitted to become a member of the ASPS, Dr Sanki agreed Dr Amjadi would also obtain a similar benefit from having a relationship with five the plastic surgeons he named in his evidence to the Medical Council in June 2019 (section 150 hearing). 7. Dr Sanki stated that she believed Dr Amjadi would now identify "red flags" in a patient. She believed that has come from his discussions with Dr Turner and Dr Savfat, his supervisors. Dr Stern Evidence in Chief 1. Dr Stern gave evidence about his current areas of practice and told the Tribunal he had practised as a plastic surgeon for 33 years. He was then asked questions about his report which is contained in exhibit A1, volume 1 at page 197. He informed the Tribunal that many of the opinions he has provided are based on his lengthy experience as a plastic surgeon. He was also aware from his association with many other plastic surgeons of their stated practices in various areas of plastic surgery. 2. Dr Stern was asked to confirm his opinions given in different parts of his report were based upon his knowledge and experience. He did so confirm. 3. Dr Stern was asked about his contact with three other medical practitioners in the process of preparing his report. This evidence was given to address matters of weight which the Tribunal might apply to the evidence of Dr Stern. The contact with those other practitioners was the subject of part of the objection made by the Respondent to the admission of Dr Stern's report. 4. In a circumstance where an expert engaged to provide a report, which required the application of his/her expertise to the specific requests to express an opinion, departs from the evidence provided upon which the opinion is sought, and searches out evidence in relation to the same subject from other persons or sources, there is a risk that the experts objectivity may be impacted by others opinions or material which was not the subject of the opinion sought. It is that risk, in the case of the expert opinion provided by Dr Stern, and relied upon by the HCCC, that the Respondent seeks to explore and make submission upon at the conclusion of the receipt by the Tribunal of all of the available and relevant evidence in this case. 5. In relation to Patient C, Dr Stern had been asked to provide his expert opinion in response to specific requests from the HCCC. Patient C had been operated upon by the Respondent and in that process he may have had her peritoneum or another organ, which was not involved in the procedure being undertaken, damaged. In the process of preparing his report in relation to that patient, Dr Stern said he had spoken with another surgeon named Dr Sandroussi. Dr Sandroussi had also operated upon Patient C at a later time to the operation performed by the Respondent. Prior to contacting Dr Sandroussi, Dr Stern said he spoke to the officer at the HCCC who had carriage of this case because Dr Stern said he was "uncertain about what was acceptable practice in preparing reports of this nature for the HCCC". Dr Stern said he asked: "Is it reasonable for me to speak to the surgeon who was involved in that patient's care in my own hospital and just to clarify what he saw; was there no question in his mind that this was caused by the use of a liposuction cannula. That was it, and they said sure". 6. Dr Stern was asked if he also spoke to Dr Hussain during the preparation of his report. Dr Stern was asked if he had spoken to the representative of the HCCC before contacting Dr Hussain. He stated: "Exactly the same individual in the HCCC and (I) clarified to the HCCC that this was not about the clinical complaints. This was actually about the description of Dr Amjadi's training which just seemed inconsistent to me in its description, and I asked whether it was a reasonable thing for me to do to clarify my concerns with the people who were involved." He was asked what the response from the HCCC representative was. Dr Stern said the response had been: "Yes, but it was the recommendation of the HCCC representative that I put those comments in a separate letter." (Should it become necessary we will address that evidence later in these reasons). 7. Dr Stern said that he had also spoken to Dr Papadopoulos. He said he had also spoken to the HCCC representative about being able to speak to Dr Papadopoulos at the same time as he had asked about speaking to Dr Hussain. 8. Dr Stern was asked if he had written to the HCCC in a separate letter to that which was contained his report and he told the Tribunal he had done that. (That action was the subject of a further question from the Tribunal later in the evidence given by Dr Stern) Cross-examination of Dr Stern. 1. Dr Stern acknowledged that he would be regarded as a leader in his field of specialty namely plastic and reconstructive surgery. He agreed he had pioneered a particular aspect of the surgery namely the reconstruction of the sternum by way of absorbable sutures. Dr Stern also agreed he also specialised in breast reconstruction surgery. He thought about half of his practice was in that field of surgery. Dr Stern said he also performs general spectrum body contouring work following massive weight loss. He thought 10% to 20% of his practice would be with that category of patients. 2. In relation to his work as an expert witness, Dr Stern said that he had undertaken the role of an expert witness in medico-legal proceedings. 3. Dr Stern was shown an email, he replied to, received from the HCCC. The email was dated 9 April 2020. In that email Dr Stern confirmed he had stated: "Yes, I'm happy to provide an opinion, and, no, I have no conflict of interest in dealing with a matter concerning Dr Amjadi. I'm very happy to receive any information you wish to send and associated questions to the email address which you used." Dr Stern also agreed that with respect to the confidentiality agreement, which he had been asked by the cross-examiner to assume was forwarded with the 8 April email, he had stated: "I'm happy to do it again, but I've provided all manner of such documentation previously to the HCCC for opinions and formal reports. Let me know if you do need it again or if you have me on file." 4. Dr Stern agreed that he was a "seasoned expert" with respect to writing reports for the Commission and/or giving advice. Dr Stern was asked to look at the document contained on page 189 of volume one of exhibit A1 which he acknowledged was the confidentiality agreement he had signed as part of his engagement as an expert witness in this case. He was asked to read that document onto the record, which he did as follows: "Confidentiality agreement. Number one. I understand that the Health Care Complaints Commission (the Commission) has approved my application to be a peer and/or expert reviewer. I will not disclose any confidential information to any person unless they are identified as an authorised officer of the Commission or I am required to do so by law. I acknowledge that - that - that I may not be compelled in any legal proceedings to give evidence about or produce documents containing any information obtained in the exercise of my role as a peer and/or expert reviewer - numbers - of the Health Care Complaints Act 1993. Confidential information means all information disclosed to me about any matter I have been asked to review, including but not limited to any enquiries made by me in relation to the matter or information disclosed to me in relation to the matter. I understand that in the event I disclose confidential information to persons not identified in this document, a penalty may be imposed under section 99A part 1 of the Act." 1. Dr Stern also confirmed he had received a document "in the past" titled Health Care Complaints Commission Complaints Commission Expert Guidelines". He was shown the document which is set out at page 118 of volume one of exhibit A1. He agreed he had received a copy of that document prior to preparing his reviews and report in relation to Dr Amjadi. He said he had read the document at the time it was provided to him. He was familiar with the document having seen it on an earlier occasions when he had been engaged by the HCCC (ie. in relation to other practitioners). Dr Stern was asked to look at that part of the document titled "What confidentiality issues should I be aware of?" He was asked to read the text appearing under that heading onto the record. He read as follows: "As a health provider, you will already be aware of the need to keep information about particular patient-care confidential. In addition to your professional obligations, there are confidentiality restrictions imposed by the Health Care Complaints Act of 1993. As a reviewer, you are expected to safeguard the confidentiality of complainants, patients and the practitioners involved. The material you are given must not be divulged to other persons, nor can you discuss the complaint with any of the parties involved. In some circumstances, you may, however, discuss the matter with a colleague in a generalised, de-identified and hypothetical way. If you do have such a discussion, you must disclose this in your expert report. On completion of the review, the Commission's Investigation Officer will ask you to return the information provided to you, or to keep it safely until the investigation is concluded." 1. Dr Stern said that he understood it was necessary to keep the identity of the practitioner confidential "In the interests of fairness; so that a colleague's reputation is not damaged, in any unreasonable way, by divulging any information." 2. Dr Stern was then taken to page 127 of volume one of exhibit A1 and shown a document titled "Expert Evidence NCAT Procedural Direction". He recognised the document and said he had received a copy of it prior to writing his report on Dr Amjadi. He was asked to look further in the document where a heading "Experts' Code of Conduct" was set out. He acknowledged he had read that. He agreed that he had adopted the experts code of conduct in relation to each of the six reports he provided for this proceeding. Dr Stern said he understood the operation of that code was to require that: "I am adopting the role of trying to provide whatever knowledge, and understanding, and interpretation, that my professional expertise can bring around a particular matter, and that I should bring those - that understanding to the Court, and it should be in an impartial way, as if I were an oral textbook, who is just providing an opinion or knowledge to help the Court." 3. In answer to a further question about whether Dr Stern had turned his mind to the requirement to act impartially when contacting Dr Hussain and Dr Papadopoulos, Dr Stern said: "I have the impression that your line of questioning is trying to suggest that I have been loose with, and breaching, confidentiality, in speaking with people such as Dr Papadopoulos and Dr Hussain, and I would just like to state that, on both of those occasions, I rang those particular doctors, I asked one question of each of them, without discussing anything about patients' identifying details. I didn't mention the HCCC. I asked one question, of each of those doctors, which pertained to the submitted CV of training that was contained within the HCCC's papers. I asked only, "did Dr Amjadi work for you, at Macquarie University Hospital, doing body contouring procedures.?" That was the one question for each doctor." When checked on that answer, Dr Stern said he was "absolutely certain" that evidence was accurate. 4. The Respondent's counsel then tendered a document which was marked as exhibit R8. It was a copy of a letter from Dr Stern to Anthony Jones at the HCCC dated 19 August 2021. Dr Stern said this letter was in response to the request of the HCCC officer to place the information in a separate letter to Reports he was asked to provide. He also agreed the letter was provided to the HCCC on the same day he provided his report in relation to Patient A, which report was dated 9 August 2021, but provided on 19 August 2021. He also agreed that in that same email he provided the reports he had prepared in relation to Patient B, Patient C, Patient D, Patient E, Patient F. 5. Dr Stern was asked why he had contacted the HCCC officer about making phone calls to Dr Hussain and Dr Papadopoulos. Dr Stern replied: "Because there is a section in the documentation which had been sent to me which was labelled "factual assumptions", and I thought they weren't factual, and at the time, the HCCC was accepting that these were factual assumptions, and so I rang Mr Jones, if it was Mr Jones, and said, if I think that's just not correct, do you want any comment about it? Because, to me, they didn't seem particularly correct." He said it was "the section on the factual assumptions, which pertained to training, were the things I was actually concerned about, and I raised my concerns to the HCCC." 6. Dr Stern said he had spoken to the HCCC officer, now identified as Mr Jones, and: "I asked him how he wanted to do it, and he said, "do you know these people," or words to that effect, and I said, "yes, I can ring them up." So, it was a short phone call in which I raised my concerns, and he asked whether, if I had those concerns, he thought it was reasonable for me - I wasn't going to ring anybody without asking them, and he thought it was reasonable, but he said "whatever you find out, just put it in a separate letter. Don't put it in the reports." 7. The transcript of the hearing on 14 March 2024 then states the following: "Q. Why did you feel that the most appropriate way forward, for you, was to start engaging in that type of investigation, as compared to, as the impartial expert, delegating it to the investigating body? A. Because I understand the system, and they do not. Q. What do you mean by that? A. I was a supervisor of surgical training in New South Wales for 14 years. I was chairman of the Board of Plastic and Reconstructive Surgery, for the Royal Australasian College of Surgeons, which is the body which is in charge of plastic surgical training in Australia. On the basis of that knowledge, I was looking at the statements about training, and I recognised the inconsistencies about them. I didn't believe that someone who didn't live in that world was actually going to see those inconsistencies. They were going to accept it on its face value, and that bothered me. Q. What about turning to Dr Amjadi's statements themselves, which you had at hand, to see whether or not the factual assumptions document given to you by the commission was, in fact, accurate, as compared to turning to the practitioner himself and his statements, which you did have? A. I'm not sure I understand that question. Q. Do you recall having Dr Amjadi's reply statements, when you were doing your reviews and peer review reports? Do you have a memory of that now? A. Do you mean Dr Amjadi's statements about his training, or Dr Amjadi's statements about the cases? Q. Both. A. Yes, I had them, and I read them closely. Q. And the section 150 evidence? A. If I had it available, I read every page." 1. Dr Stern was then taken to the content of his letter now exhibit R8. There he confirmed he had written: "One of the consultant surgeons for whom he claims to have worked in doing these cases, is Dr Gazi Hussain, who cannot recall Dr Amjadi ever assisting him at Macquarie University Hospital and by coincidence, was a senior council member of ASPS, and later, president of the society, and would be pleased to discuss Dr Amjadi's applications, and their refusal." 2. Because it is an important issue in the hearing, we include the following further extract from the transcript of 14 March 2024: Q. Do you accept for me that, Dr Stern, what that on the face of it suggests, is that your conversation with Dr Hussain was far more involved than simply an inquiry, "was Dr Amjadi training under you at Macquarie University Hospital", and went further, disclosing Dr Amjadi's identity, and a discussion in relation to why his applications with the ASPS - which stands for Australian Society of Plastic Surgeons, Australasian Society of Plastic Surgeons, correct? A. Australian Society of Plastic Surgeons. Q. Your conversation went further. A. I asked one question, but as we've seen here today, plastic surgeons sometimes find it very hard to give very short answers, and Dr Hussain was actually annoyed at this suggestion, and he went on in his answer, and so, I did not curtail his answer. Q. There was a discussion, not a single question and a single answer was there? A. I asked one question, which is what I said previously. I asked one question. I did not mention anything about these hearings. I asked simply, "did Dr Amjadi work for you at Macquarie University Hospital?" And the reply was more than one word. If you want to call that a discussion, it's a discussion. Q. And it just so happens is it, that when you phone Dr Papadopoulos-- A. Yes. Q. --your second line of inquiry, that by coincidence, the same thing happened again. Dr Papadopoulos is also a recent past president of the Australian Society of Aesthetic Plastic Surgeons ,and similarly would be pleased to discuss his lack of involvement in Dr Amjadi's training. A. I asked the one question. Dr Papadopoulos assured me he'd never worked at Macquarie University Hospital, and he was more than happy to be contacted. So, that was one question. Q. So, there was a long, involved answer, to your one question. A. There was a long, involved answer from Dr Hussain, who had that role. There was a very short answer, in fact, from Dr Papadopoulos. Q. Do you see the danger there, Dr Stern, in then being put forward as an independent impartial peer reviewer, namely, that as a result of those conversations, it would be fair to say, wouldn't it, that your mind has been contaminated, with respect to information extraneous to the materials supplied to you by the Commission. OBJECTION. FORM. QUESTION NOT PRESSED. Q. I'll put it as, do you agree or disagree? A. That— Q. Your mind is contaminated. A. No. I think that I'm fairly capable of impartiality in examining clinical material. I'm also capable of looking at other factual, or supposedly factual, documents, and identifying problems with them, and that the clarification of those documents does not have to have anything to with evaluation of clinical circumstances. So, no, I don't think that I have been, or had been at the time, in any way polluted or contaminated, in my capacity to be impartial about the evaluation of clinical circumstances. 1. Dr Stern was then asked about another conversation he had conducted with Mr Jones about a further discussion Dr Stern had undertaken with Dr Sandroussi. Dr Stern had referred to the conversation he had with Dr Sandroussi in his report. Dr Stern said he had spoken to Dr Sandroussi in circumstances where: "I read the wording of the instructions to me, in terms of confidentiality, and that I was supposed to, if I thought that it was going to be of value, basically, to talk to somebody else who could shed light on a particular clinical issue, that I should check that with the HCCC, and he said, in that case, I have to put it in the report, and so I put it in the report." 2. Dr Stern was shown a document and asked if he recognised it as a statement. He agreed the statement was dated 7 March 2024. He recognised the signature at the bottom of the statement. He agreed he recognised the words printed on the document as: "exhibited to this statement, and marked HS1, is a bundle of documents pertaining to my clinical assessment reports, that relate to seven patients that I understand, are subjects of the complaint currently brought for the New South Wales Civil and Administrative Tribunal." He agreed he then attached annexures A and B". Dr Stern confirmed the annexures had been sent to him in the previous week and were copies of his reports. 3. Dr Stern agreed that between 15 April 2020 and 19 August 2021 he had provided a total of 11 assessment advices and/or reports, in relation to patients under the care of the Respondent. 4. Dr Stern was asked if on 14 June 2022 (just under a year after he had been engaged by the HCCC for this proceeding) he accepted a letter of instruction from HWL Ebsworth, who were acting as Dr Amjadi's defence team, to prepare a report in relation to discrete issues. He said he had. 5. Dr Stern denied he had not disclosed to HWL Ebsworth his engagement by the HCCC in this proceeding. He said HWL Ebsworth had asked him if he had prepared a report in relation to the patient who was the subject of the report they were seeking. 6. Dr Stern was shown a document on page 515 of volume 1 of exhibit A1. He recognised the document as a copy of an email from Anthony Jones (HCCC) to him dated 30 July 2021. The email requested an expert's report. It attached 69 documents including 3 transcripts and/or decisions of the Medical Council in relation to section 150 hearings. Dr Stern was asked if he had read those three transcripts which related to patients identified as Patient A to Patient F. He said: "No. In fact, what I would have done having received six very large folders of paper - I would have flicked through those and had them available and known that they were there and only actually come back to read them in any detail if the questions that were being requested pertaining to any of the clinical reports meant that I needed to have understood them or if there were questions specifically relating to those transcripts." 1. Dr Stern was then asked: "Q. So when you gave evidence yesterday that you did read every document you were given, what were you referring to? A. I would say I was reading in greater and lesser detail. So when I was faced with six very large folders of paper, I would actually be focusing far more on those parts that were actually relevant to the questions that I was being asked." 1. Dr Stern was asked whether he felt that Dr Amjadi's training or responses with respect to training or placement was a relevant consideration in relation to the reports he had been engaged to prepare. He was asked if he had read any of Dr Amjadi 's oral evidence before the Medical Council with respect to matters pertaining to his training and/or placements, before he had telephoned Mr Jones (this call was referred to earlier in this cross-examination and was to the effect that Dr Stern had contacted Mr Jones to ask if he should/could make a further investigation as to the accuracy of the HCCC assumptions relating to Dr Amjadi's training and placements). He could not recall, however he recalled reading about that matter of training and placement in the assumptions the HCCC had asked he rely upon in preparing his report. 2. Dr Stern was asked to read pages 289 and 290 of volume 1 of exhibit A1 being a copy of the transcript of the evidence of Dr Amjadi given to the Medical Council in a s 150 hearing dated 24 September 2019. He said he may have flicked through the transcript in the preparation of his report. The following then appears on the transcript. "Q. Going back to page 289, Professor Ayres asked Dr Amjadi specifically, "So who were the particular surgeons that taught you those skills," and that's in reference to training with massive weight loss correction surgery. You agree? A. Yes. Correct. Q. Dr Amjadi replies, "It's mainly Steven Merten that taught me." Correct? A. Yes. Q. This is in the context of Macquarie University Hospital. Correct? A. Yes. Q. Professor Ayres says yes, and Dr Amjadi says, "Before him, there was Tim Papadopoulos at Nepean." A. Yes. Q. He goes on to say, "And during Macquarie with Steve Merten. And there was Mark Kohout did some weight loss surgery. And Gazi Hussain did some." Do you see that? A. I do. Q. So having read that, it's correct to say, isn't it, that Dr Amjadi's evidence was that the person at Macquarie University Hospital who taught him wasn't Dr Gazi Hussain but it was, in fact, mainly Steve Merten that taught him? A. That is what this evidence says, yes. Q. You never made a phone call through to Steve Merten, did you? A. Steve Merton's name did not come up in the material that was supplied to the HCCC. Q. Did you think given you felt the material in that assumption letter was of such significance that you made phone calls asking whether you should make inquiries in an identified manner that before doing that it would be best to come to the source material, namely the evidence of Dr Amjadi on point? A. I was basing my - I was given factual assumptions and the factual assumptions pertained to Dr Amjadi's training. I assumed that the factual assumptions were complete if I was assuming them. Q. But they were of such significance in your mind that they resulted in you making a phone call to inquire whether you should do further investigations. Correct? A. Correct. They - they were the reason I made a phone call-- Q. Did you - sorry, I didn't mean to cut you off. A. No, no. That's fine. So I - I think that had - see, I don't know the - the manner in which the factual assumptions are collated. If they actually are factual assumptions which come from the respondent or whether they are factual assumptions which were in some way summarised from other material I don't know. They're sent to me as factual assumptions. And had they said Steve Merten, I may well have asked the HCCC may I speak to Steve Merten as well. But they didn't have his name." 1. It was then put to Dr Stern that the Respondent has never suggested that he had done any training with Tim Papadopoulos at Macquarie University Hospital. That question was objected to. There was legal argument in the absence of the witness. The witness then returned and the following was put to him by the Respondent's senior counsel: "Dr Stern, the passages of the section 150 hearing that I've taken you to. I'd ask you to assume that that information is consistent with the balance of material you were provided with, other than your factual assumptions, namely that your factual assumptions are wrong." Dr Stern replied: "Okay". 1. During the legal argument the HCCC made clear that it was not part of the case they bring to the Tribunal that the Respondent had been untruthful to the HCCC or the Medical Council about his training and placements. 2. The Respondent's counsel then put the following and we record here Dr Stern's response: "Q. It's fair to say, isn't it, Dr Stern, that after you made your phone calls you were left with an impression that Dr Amjadi was not an honest historian with respect to his training, expertise and supervision? A. Yes, that's fair. Q. It would be fair to say, wouldn't it, that when you form a view that a practitioner may not be honest it runs the danger of infecting your opinion overall about his conduct? A. No, I don't accept that. The - just a yes/no answer or a paragraph? Q. Why? Why do you not accept that as a fair proposition? A. Because I take my role in providing an expert report as being based mainly on the behaviour that is displayed in the clinical records of the case that I'm being asked to look at. I'm sure that there are some people who have significant deficiencies in their training, but they manage with surgical skills to actually carry out certain procedures very well, and I may never actually see their records. So the training is one aspect of what I'm looking at, and that was why I raise it as a separate question with the HCCC. But I think that my evaluation of the clinical material which was supplied to me was based on the - the behaviour which was actually displayed in that material." 1. Dr Stern was asked about the use of the words: "I'd like to clarify some issues of terminology which Dr Amjadi appears to confuse either intentionally or accidentally." (see exhibit R8 page 1). These words were used in reference to Dr Amjadi's experience and training as set out in the "assumed facts" provided by the HCCC. It was put that Dr Stern had used the word "intentional" to raise a concern in relation to Dr Amjadi's character and truthfulness. Dr Stern denied that and said: "Not his truthfulness. The accuracy of the description of the work he had done to further his training in the latter half of 2016." 2. Dr Stern was asked to read part of the evidence given by Dr Amjadi to the Medical Council as part of the s 150 proceeding set out at page 15 of volume 6 of exhibit A1. Having read that evidence, he agreed that there was nothing unorthodox about the training there described. 3. Dr Stern was then asked: "Q. Had you been provided with that information as to his training and coupled with his actual evidence in relation to placements and who he worked under at Macquarie University Hospital, do you say it wouldn't have given you any cause to make follow-up investigations or phone calls?" A. No, I think that my response would have been had the factual assumptions also contained Steve Merten's name I would have rung Steve Merten as well or I would have asked for permission to ring Steve Merten as well because of the variability of the Macquarie job. So I think that I would have had exactly the same response. I just would have been making more phone calls of exactly the same nature. Q. But what you wouldn't have been left with is an impression that there was some degree of dishonesty by Dr Amjadi in his description as to his training, placement or supervisor? A. If - had I rung Steve Merten and Steve Merten said he was in my theatre all the time, then yes. That would have changed my view completely." 1. Dr Stern was asked whether he had in his mind, the content of the six signed reports he had sent to the HCCC in August 2021, when he had the conversation with HWL Ebsworth in June 2022. He replied: "No", and when asked why not he said: "A. I'm asked on occasion to pass an opinion on a particular matter. And when I approach the information which is given to me, I think of it as being incumbent on me to start with a clean brain and that I'm not supposed to be carrying any retained knowledge, likes, dislikes, preferences or anything else about the practitioner on whom I'm being asked to pass an opinion in this particular instance. The plastic surgical world is small and so I look at each lot of information that I'm provided independently as if that is the only information I'm being asked to judge. So there are a number of doctors on whom I may have passed - I may have produced reports in more than one civil case, civil instance. And I'd like to think that each one of them got a fair hearing and a fair report." 2. Dr Stern was then cross-examined in relation to the report he had provided in relation to Patient E. The report (titled "Internal medical advice") was dated 18 May 2020. Dr Stern agreed that he had provided an expert report on Patient E dated 11 August 2021. Dr Stern was asked to accept that the advice given on Patient E dated 18 May 2020 was only the second advice he had given in relation to Dr Amjadi. He did accept that. He was then provided with the information about the material he had been provided with by the HCCC in order to provide his advice in relation to Patient E. The letter dated 27 February 2020 (start date) and documents attached was marked as exhibit R9. The report/advice provided by Dr Stern in relation to Patient E, and dated 18 May 2020 was marked as exhibit R10. 3. Dr Stern accepted that in his report of 2021 in relation to Patient E he was more critical of Dr Amjadi than in the earlier 2020 advice. He accepted that the only additional document he received in relation to Patient E when he was asked to prepare his 2021 report in relation to that patient, was a copy of HCCC statement of Patient E. 4. In relation to the advice document provided by Dr Stern on Patient E (exhibit R10) Dr Stern was asked if he "stands by" the content of the 2nd paragraph of that advice. He answered: "And paragraph 2 saying that the complications which occurred are all routinely listed with any surgical literature?... Yeah, absolutely." 5. In relation to his statement in exhibit R10 relating to "the patient experienced asymmetry" he was asked: "Do you stand by the opinion there with respect to "all of which are potentially recognised complications with this form of surgery and are listed in that document"? And that's in reference to Dr Amjadi's patient brochure and consent form." Dr Stern answered: "Yes". 6. Dr Stern agreed that in exhibit R10, he stated his opinion that he was satisfied Dr Amjadi's post-operative care was adequate and appropriate once the complications were suspected". He agreed that in his 2021 report on Patient E he had expressed an opinion that Dr Amjadi's post-operative care of Patient E was "erratic". 7. Dr Stern agreed that at the time he prepared the advice (exhibit R10) and the date he provided his 2021 report in relation to Patient E he did not have a copy of Dr Amjadi's logbooks. He still had not received a copy of those logbooks at the date of the hearing. 8. Dr Stern was asked if he had read a copy of Dr Amjadi's statement for this proceeding (see volume 1 of exhibit A1 page 22). He said he had not. (Note the transcript provides two different answers from Dr Stern in relation to whether he had seen Dr Amjadi's statement. His answer may be that he had seen that document). He said he had not seen a spread sheet with information drawn from his logbooks. He was shown that document. He was asked to look at the document and then asked to agree the listing of complication rates "do not make Dr Amjadi an outlier with respect to these types of procedures and what the literature says with respect to the high complication rates?" Dr Stern answered as follows: "A. The only information I have here is complication rate. So it doesn't actually document whether we're talking a minor complication— Q. Both. A. --major complication, multiple operations. Those sorts of things. One would hope that even in major weight loss patients that you're averaging 10% or less complication rates, including everything. And so in some areas of these surgeries, absolutely, well within the confines of what you would expect to be normal. The other problem with the information provided is I don't know how it was collected. I don't know what the reliability of an interstate patient comes back to - sorry - coming back to be recorded as a complication or whether they fall into a category of lost to follow up. And so I - I can't comment just simply on the basis of the word complication rate. But with all of those provisos as to what information I don't have, they're not terrible. But there are some which are actually fairly notable." 1. Dr Stern was asked to read the "Summary" on page 197 of volume 1 of exhibit R1 (an article). He was then asked to read the content of Table 2 of the article. He was then asked to read the second last page of the article following the words "Body contouring after massive weight loss". Dr Stern agreed that showed a much higher complication rate than he was advocating is acceptable or "normally expected" however, he said: "Well, my response to that is that if I had 96 complications in 80 patients in my practice in Sydney I wouldn't have much of a practice. That's - that's a lot. So I - I accept this is a published article and this is their - they've, you know, ordered themselves well. But that's not my experience of major weight loss body contouring surgery in Australia." 2. Dr Stern was provided with a copy of exhibit R7. This is a copy of a meta study of complication rates in body contouring operations on patients who are post-bariatric surgery patients. The article is a study of 561 articles and 25 studies. Dr Stern's attention was taken to that part of the article which stated: "The overall weighted rate of post-bariatric body contouring surgical complications in all studies was 31.5%". In his answers Dr Stern made clear he did not give weight to the findings of meta studies in his field of speciality. He gave his reasons for that approach. When it was pointed out that the article was published in Aesthetic Plastic Surgery Journal he said he could not criticise the journal for publishing a meta-analysis, however he made clear it was of no value to him. He said he derives benefit from attending meetings/conferences and hearing from other surgeons about their approach to specific aspects of surgery. 3. Dr Stern was shown a copy of the report of Dr Ritz. He said he had seen it before and agreed with some of his opinions and disagreed with other opinions he had expressed. He said that nothing he had read in that report made him change his own opinion on the same subject. 4. Dr Stern was asked about his report in relation to Patient A and in particular his opinion that a minimum of two face to face consultations are required with reasonable time elapsing between consultations and final surgery. He was asked if he was aware of the guidelines in place in 2016 (the time the procedures with Patient A were carried out). He replied; "I am aware of their laxity". 5. He was asked: "Q. When we assess standards of a practitioner, do you agree that a fair approach is to assess those standards against the guidelines in place at the relevant time? A. No. I think my role is to tell you what most competent and ethical surgeons were trying to do at that time. So I did my surgical training in the 1980s and from the time I was doing my training, the messages that were being drummed into me were, you don't do significant surgery and especially not significant elective surgery, and you don't do major reconstructive procedures which aren't elective without two consultations. And the world changes, and so Skype didn't exist in those days and neither did FaceTime or any other means of electronically assessing a patient, and so certainly practices have to adapt according to what the different sort of practices are in society at the time. But the belief that you need to see a patient twice before you undertake a completely elective procedure is something which has been around, and so I'm going to pass on in my opinions, I'm going to say this is what was accepted practice at the time. And if it doesn't exactly accord with what the minimum practice, which the medical board might be talking about at the time, that's not my opinion. My opinion is this is what was regularly carried out practice at the time." 1. When put to him that he was being unfair to the Respondent by requiring him to comply with an unwritten standard approach, Dr Stern denied that and in a rather long answer concluded by saying he was looking to a standard that most plastic surgeons adopt. 2. The provision of the Medical Board of Australia's guideline of 2016 to practitioners who perform cosmetic, medical and surgical procedures in Australia, was read to Dr Stern. He responded with the following: "I can accept that there are two messages being sent. What I would point out again is I hope a registrar in surgical training to a particular vocation is actually going to be far more influenced by what they're told on a daily basis in their workplace by 40 or 50 different surgeons rather than the bare requirements of the Medical Board's minimum standard. I can't speak for all 40 or 50 of the surgeons that Dr Amjadi may have worked for because I don't know what messages they will propose, but the people with whom I work at the multiple hospitals at which I have worked, all take a pretty uniform approach. And so my expectation is that's what most registrars actually get told. And if that suggests a higher standard of behaviour is expected, then that's not a bad thing." 3. We note that evidence was given by the Respondent during the hearing, that in one section of his training, the Respondent had actually worked under Dr Stern as a Registrar at Concord Hospital. 4. Dr Stern was then asked by a Tribunal member a question to which he gave the following answer: Q. Sir, with the trainees you were discussing, the consultations you've been asked about, where do they take place? The consultations before the operation, where do they take place? A. Almost all of them are in the - for this kind of surgery, almost all of them will be in the surgeon's private office. Q. And the trainees are present while the surgeon has that consultation; are they? A. No, they're not. Q. Well, how do they know about it? A. Because we then spend 10 to 12 hours of a day in operating theatres with the registrars, and we talk about everything. We talk about sport, we talk about politics and we talk a lot about surgical practice. Q. Will they appear in the hospital notes, for example, the two consultations? A. No, not at all. Q. So they wouldn't glean it from looking at the hospital notes? A. No. Q. Do they have access to the hospital notes? A. The registrars would? Q. Yes. A. Yes, but these consultation records will be in the surgeon's office records, their private records, and the surgical training - for want of a better description - it's an apprenticeship. And so you're actually trying to inculcate a particular behaviour in the trainees. Q. Sure, but the trainee would not have access to the private records of the consultant. A. Not in most circumstances." 1. Dr Stern agreed that one of the deficiencies in the training of plastic surgeons is that they are mostly not present for consultations before the surgery takes place. Sometimes they are not permitted by the patient to be present for "mark-ups". All patients have to consent to a registrar being present during their procedure. 2. Dr Stern stated that the 2023 guideline produced by the Medical Board of Australia for registered medical practitioners performing cosmetic surgical procedures is a better guideline than that of 2016. He acknowledged that although the version was created after a Senate inquiry it still only requires two consultations prior to surgery and that only one needs to be face to face. He also set out his practice in relation to patients who need to travel from remote regions. He invariably required the first consultation to be in person. He preferred the second consultation to also be in person if reasonably attainable. He provided his reasons. In providing his reasons Dr Stern stated that he regarded himself as a "picky surgeon". He was then asked the following: "Q. When the Tribunal comes to assess standards, and the standards of Dr Amjadi's care and treatment of patients, wouldn't it be fair to say that a reliable reference source is the guidelines and caution should be exercised with the perfect, picky, eminent surgeon's opinion ruling the day? A. I think that it's very reasonable to use the guideline. I think that anyone, picky surgeon or not, should view what you can achieve on Skype as opposed to what you can achieve face-to-face because that's a statement of the obvious. 1. In relation to Dr Stern's stated opinion in his report that a stay of 10 to 14 days post-surgery is a requirement for body contouring patients (massive weight loss or otherwise), Dr Stern conceded that a 10 to 14 day stay in Sydney post-surgery was the ideal. However, he conceded that socio-economic factors do play a role in assessing that time. The fact that a patient comes from interstate or regional NSW also will play a role in assessing what period a patient is asked to stay in Sydney. He also agreed that it is common that many of the massive weight loss patients come from a low socio-economic demographic. Consequently, Dr Stern agreed that allowing a patient to return home prior to the expiry of the 10 to 14 day period, in some circumstances, is within standard. He said: "Yes, I think that is true with a proviso that if you know that's happening, you would, in the best practice, you would want to make sure you know who's looking after them in that more remote location, given they're still within an unhealed surgical period of time." 2. Dr Stern also conceded that if a patient decides to discharge themselves from hospital against advice, you cannot prevent that. The same is true, Dr Stern conceded, of a patient who decides to transport him/herself by air contrary to advice from the surgeon, that cannot be prevented. 3. Dr Stern also conceded that if a patient is referred to him from a known practitioner, that is one whom Dr Stern knows and can trust, the information set out in a referral letter will also influence whether he would insist on a first consultation being in person where that patient is from interstate or a remote locality. 4. Dr Stern was then asked about his report in relation to Patient A. He was asked why his report does not use the term "body dysmorphia" in relation to that patient. Dr Stern agreed that Patient A was a patient who over time, disclosed an individual, that on the face of it, has body dysmorphia. And although the Respondent can be criticised for failing to recognise that aspect of Patient A, Dr Stern opined that he should have assessed that at the time of the initial assessment. He did say however, that he thought body dysmorphic syndrome is a difficult diagnosis, unless it is extreme for the average surgical practitioner to reliably diagnose. He said: "I think that the warning signals were probably there right from the start, but certainly there were lots of instances along the way where you would start to say, I shouldn't be doing more procedures." 5. As the cross-examination of Dr Stern progressed, he was prepared to make more concessions than he had done in the earlier stages of the cross-examination. This was particularly noticeable in the concessions sought in relation to his report on Patient A. We formed the view that such concessions were appropriate and properly given. 6. Dr Stern conceded that although the guidelines for cosmetic surgery now include, since 2023, a requirement for surgeons to assess if a patient may have a psychological condition such as body dysmorphic disorder, that was not the requirement of the guidelines in 2011 to 2016 when the Respondent undertook his training. 7. Dr Stern was then asked questions about his report in relation to Patient B. He was taken to his criticism of the Respondent for describing the procedure he performed as a beast reduction (and using the corresponding Medicare number) when Dr Stern opined that what had been performed was a breast lift. Breast lift procedures do not have a Medicare payment number. Further, Dr Stern had referred to an American insurance requirement of 240 grams of breast tissue to be removed to be described as a breast reduction. 8. Dr Stern agreed that the consent form signed by Patient B described the procedure as a breast reduction plus or minus implants. He conceded that Medicare does not mandate the amount of tissue which is required to be removed to constitute a breast reduction and to be able to claim against that Medicare item number. He conceded his experience with an American insurance company was in 1990 or 1991. It was that experience which informed his view about the amount of tissue to be removed in order to fulfil the description of "breast reduction". He said there is still a limit in the USA however it varies from insurer to insurer. He conceded that for Australia he could not identify a teaching manual or textbook which identified an amount if tissue which would need to be removed to be described as a breast reduction. With all that conceded Dr Stern was asked whether he should temper his criticism of the Respondent in relation to the description of the subject procedure as a breast reduction. Dr Stern responded: "I believe that a registrar who has been through five years of training would usually understand what qualifies as a bilateral breast reduction. So I would accept that 135 grams or 140 grams may reasonably constitute a breast-reduction in a breast asymmetry case, for example, or in a patient who is of a particular build. But calling it a bilateral breast structure, two sides with those amounts of tissue, I don't know how much criticism you want me to temper. So I still believe that that's a breast lift to me." 9. In relation to the cross-examination about his report for Patient B, we consider Dr Stern, although making a number of concessions, ultimately did not make the concession which we considered was reasonably sought and which we consider could properly, in our view, have been given. The same is true in relation to his opinion that the transfer of Patient B to St Lukes Hospital, was significantly below the expected standard applicable to the Respondent. 10. Dr Stern was then asked about his criticism of the Respondent for transferring Patient B from one hospital to another post-surgery. His criticism appeared under the heading "The surgical management". Dr Stern was asked to assume the following facts: 1. "Patient B was so unhappy with her admission at Holroyd Hospital that she rang Westmead, because she is by occupation, a clinical nurse director. 2. She then made contact with Dr Amjadi. He became aware of her grievances at Holroyd, and it's for that reason that he moved her to St Luke's Hospital. And hasn't used Holroyd for a number of reasons since." 1. Dr Stern was asked: "Is that really dubious?" (We note Dr Stern had used the term "dubious" which prompted the question.) He answered: I think that if I were in that same position, I would probably be trying to do what - if I knew that I was going to be trying to transfer the patient to satisfy their grievances with a particular hospital, which can certainly occur, I'd probably try and get the wounds closed first, rather than transferring a patient with open wounds from one hospital to another, and try to convince the patient that this is in her best interests. And if it means doing the case that night after finishing work somewhere else and the patient having to go to theatre that night, if it can be arranged, and then being transferred the next day, I view that as being preferable. I think that the grievances with the institution at which she was currently hospitalised shouldn't be ignored, and I think that that circumstance - it certainly makes it more understandable. But surgically you'd still not want to be transferring a patient with two large wounds." 2. Dr Stern was asked if he still maintained the transfer was a significant departure from the standard. He said: "It's a significant departure in as much as I have never heard of any other surgeon in my gossip network ever having done that as a way of looking after it. So to me, that's a significant departure." 3. Having raised the concept of gossip amongst plastic surgeons, Dr Stern was asked the following: "Just in terms of the gossipy world of surgeons, it's fair to say, isn't it, that you had heard gossip of Dr Amjadi before you were asked to write reports in relation to him by the HCCC? Namely, revision surgery of his patients?". Dr Stern answered: "My - the main thing - yes, I had heard of complications. I work at Royal Prince Alfred Hospital, which is the closest training teaching hospital to hospitals where Dr Amjadi has worked, and so if a - if a complication under the care of a plastic surgeon elsewhere comes into the hospital, the admitting team will always ask us to be around in case they don't understand something about the surgery that's been done. And so, we'll just know about it." 1. We note the concession that Dr Stern had been told about "complications arising from the Respondent's surgery before he was asked to write reports for the HCCC for this hearing. Any implications which might arise from that disclosure we will consider when we address the weight to be given to the evidence of Dr Stern and the other experts who have given evidence in this hearing. 2. Dr Stern stated he was unaware that for the last four years Dr Amjadi has been under direct supervision by two plastic and reconstructive surgeons, which has involved their direct observation. He had been present to observe their body contouring surgery in massive weight loss patients and then had their direct observation and assistance to various procedures over that four-year period. He was unaware that the supervisors had to be approved persons by the Medical Council of NSW. 3. Dr Stern was asked about his evidence that there is a small pool of plastic surgeons in NSW. He estimated there were less than 100. He was asked by a Tribunal member if the other plastic surgeons held the same qualifications as he did. He said: "People with the same letters after their name, yes. But I think that's, if I asked you the same question about legal practitioners, I suspect that you might feel the same way." This was clearly a statement of his opinion as to his own qualities as a plastic surgeon and a disparaging regard for some of the 100. No further detail was provided. 4. In answer to questions from the Tribunal members, Dr Stern said he had been providing medico-legal reports in civil litigation matters since about 2000. He first provided a report to the HCCC about 5 to 8 years ago. 5. In relation to the reports Dr Stern had provided in relation to the Respondent he told the Tribunal he regarded those reports as "fair and balanced". 6. Dr Stern was then asked questions about "the standard" he applied in the making of his report, in terms of whether a particular operation performed by the Respondent was at, or below, or substantially below, that standard. We here set out that evidence: Q. You were required to address the standard, whether it was significantly below or above, and I'm wondering whether you think that the standard you apply might be too high? A. I asked myself that same question in different words when - so I submitted these reports, and I didn't use that specific wording because I didn't realise how exacting they wanted the format to be, and that was when the ACCC sent me a redacted report as an example, and then I reworked the report, and I asked myself for the criticisms that were - that were apparent to me, whether they were below or significantly below, and what I really used in my own mind was how much I felt that the particular deviation from what I believed to be the standard, how much that deviation impacted on the patient's final outcome, how much it necessitated re-operation. And if I thought that the - the deviation from the norm, that I could see, impacted significantly on that patient's outcome, and definitely if it meant they needed to have further surgery that was difficult, in particular, then I thought that was significantly below. Everyone has complications, everyone has to do re-operations of some kind, revisional surgery, but that was the framework within which I was trying to judge that kind of word standard." 1. Dr Stern was then asked questions by the Tribunal which addressed a matter which had been raised, in part, by the Respondent in the preliminary application which went to the admissibility of Dr Stern's report in this matter. That is the weight which the Tribunal is able to give the part or all of Dr Stern's report. We here set that evidence out, as it is a major issue to be determined by us. Q. Across that span of time that you've been providing reports for what you understood to be, at least potentially, court cases, you've been aware of the requirement to be open, and fair, and balanced in your reporting? A. Yes, I have. Q. I ask you that because Ms Mathur asked you some questions about getting in contact with Dr Papadopoulos, Dr Desain, I think, and a third-- A. Dr Sandroussi. Q. Yes, and you were concerned about that before you did it, weren't you? A. Yes, I was. Q. And for that reason, you contacted the HCCC and you spoke to, I think you told us, a Mr Jones? A. I believe it was Mr Jones; I can't remember who it was. It was whoever the person was who was looking after this matter at the time, and given the correspondence that I saw from myself to Mr Jones, I'm assuming it was Mr Jones. Q. But you understood you were speaking to somebody who had authority to speak to you in the HCCC? A. Correct. Q. When you spoke about being able to speak to these other practitioners, you were told to put that in a separate letter? A. I was told to put, so that - I drew the distinction between Dr Sandroussi who the - an upper GIT, so upper gastrointestinal tract surgeon with particular laparoscopic expertise, and he looked after one of the patients at my own hospital who had been transferred from Sydney Private. The other two doctors were plastic surgeons. The question that I wish to ask the two plastic surgeons were specifically about training and that was the issue where I was advised, "put that in a separate letter because that's not part of your report about any one of these six patients", and then I was told that in terms of discussing Dr Sandroussi's findings at laparoscopic surgery, if I was getting that information from another source, Dr Sandroussi, I should name that source in my report. Q. I wanted to ask you, the fact that you were being told to put this in another letter, outside of your reports-- A. Yes. Q. --did that not give you pause for thought about the process of preparing the report? A. I think that I can characterise my involvement with the legal structure around medical issues as being elemental toward naive, and I just do as I'm told. And so that's what I was asked to do, and that's what I did. Q. Looking at it today, you having been questioned about the whole thing, what is your view of that today? A. If we say that the purpose of all of the hearings that we're doing are to determine safety in practice, then I think that the - the desire to contact those people, I believe, would still have been there, based on my suspicions around the factual assumptions as I had seen them. I would have been delighted, had I contacted the HCCC, and they said, "Oh no, don't worry, we're going to speak to those doctors," I would have been very happy. And then I wouldn't have. Same with Dr Sandroussi. So in a way, I view my role in providing the report as being, still, I am a conduit to technical knowledge around this area of surgery that the HCCC doesn't have, and it's the same if it's a civil case. I am a conduit to a certain knowledge, and so I'll provide that knowledge in whatever format I'm asked to provide it in. Do I regret it on the base of the fact that I'm actually here, opening my mouth for the first time that I've ever had to in 33 years of surgical practice? I've had my moments, you know, but that's the way it is. Q. If the same thing happened again today, do you think you'd do it, or not? A. Do the - ring the HCCC and ask them? Q. No, not that bit. A. Yes. Q. Go and speak to the doctors, knowing that you're required to put in a separate letter, rather than in the report you're preparing? A. My understanding always is that anything which I put on paper which pertains to this issue is going to be open for disclosure anyway, so I don't think that that would worry me. I think that I could - I could see the logic that he was giving me for where this information was supposed to go. I could see the logic of what he was saying, so I didn't have any particular concerns. If someone asked me to do the same thing tomorrow, if I raised a similar concern, and they said me, "Do this," would I then say, "I did that once before, and I ended up in an NCAT hearing, and I spent hours answering the questions about why I did it that way," yeah, I'd probably ask that question as well." 1. Senior Member Dr Newton, a now retired plastic surgeon asked Dr Stern a series of questions which the Tribunal found helpful. We here record those questions and answers: "Q. Dr Stern, just a couple of simple things. You've used some descriptive language regarding Dr Amjadi's competency. We have to consider things in view of whether he has sufficient knowledge and skill to practice as a specialist plastic surgeon. A specialist plastic surgeon does more than weight loss surgery; is that correct? A. Absolutely. Q. The proceedings have been weighted primarily to weight loss surgery. You have suggested various levels of competence throughout the hearing. Would you be prepared to say that, overall, there is a level that you would attach to Dr Amjadi's performance? Meaning at, below, or above, that required as a standard to practice. A. I have only ever been asked to provide opinions - I'm thinking as I'm saying this - I think the only opinions I have provided have been surrounding body contouring surgery in major weight loss patients. So I haven't been provided with any suggestion or evidence that other aspects of his plastic surgical practice are in any way deficient. So, I don't have - other than the fact that he has satisfied the examiners for Fellowship of the Royal Australasian College of Surgeons, which is a fairly exacting standard of knowledge, and he satisfied his surgical supervisors over five years, that his technical skills on display at that time and his manner of dealing with patients was, certainly, at least adequate, to allow him to progress. I've got no evidence in front of me to say that other aspects of his speciality practice are anything other than exemplary. Q. In relation then to the weight loss surgery, would you be prepared to say at, above or below the respective perceptual matrix? A. I'd say that in the time period in question below. Q. So that's a very specific response. And to go from that, that was immediately following his certification as a plastic surgeon by one year, and it is now at least three years past. Given the "overall picture" and given perhaps some information that's come to light regarding potential for supervision, are the standards potentially improvable with Dr Amjadi as an individual? A. I suppose the answer to that is that if someone has surgical skills and judgement to carry out all of the other aspects of plastic surgery to which they turn their hand, then one would hope that with appropriate care and attention, they would then be able to apply those same standards to the content of body contouring surgery after major weight loss. And that then comes down to issues of supervision and a willingness to change behaviour in the way certain things were being done. 1. The HCCC then conducted a re-examination of Dr Stern. We noted the following in particular from that evidence. 2. Dr Stern was asked about his contact with two plastic surgeons Dr Papadopoulos and Dr Hussain to check the facts relating to Dr Amjadi which he was asked to assume as background to the questions he was then asked to provide his professional opinion on. He had been asked by senior counsel for Dr Amjadi if he had spoken to Dr Merten, a plastic surgeon with whom Dr Amjadi stated he had worked with during his training period. Dr Stern had told the Tribunal that had he known of Dr Merten's involvement with the training he would have been able to contact him to check on the background facts he had been asked to assume were correct. 3. Dr Stern was asked to look at page 515 of volume 1 of 10 of exhibit A1 where there is an email from Mr Jones of the HCCC to Dr Stern. That email, dated 30 July 2021, attaches the "Factual Assumptions" document which had, in part raised Dr Stern's concern as to its' veracity. On the 2nd page of that document is a heading "Dr Amjadi's Background". That then extends to the 3rd page of the document. There the 3rd paragraph (page 518 of volume 1 of 10 of exhibit A1) states as follows: "Dr Amjadi has no post fellowship training in body contouring surgery after massive weight loss. His particular training in massive weight loss surgery has mainly been at Macquarie University Hospital. His experience there was gained largely by observing consultant surgeons. Dr Tim Papadopoulos, Dr Steven Merten, Dr Mark Kahout, and Dr Gazi Hussain, to whom he was attached at Macquarie Hospital." 1. Having been shown a copy of a document which was clearly provided to him by the HCCC as part of the engagement as an expert witness required to prepare a report for the HCCC, Dr Stern was asked: "Q. You will see there that in fact-- A. Dr Merton. Yes, quite right. Q. Are you able to explain that inconsistency in your evidence to the tribunal? A. No, I'm not actually certain that, on - in hindsight, whether this was the only set of papers that actually had Dr Amjadi's background training listed in it, but no, I'd perhaps actually even thought that I'll just ring two, and Dr Papadopoulos and Dr Hussain are, of those four doctors, the people who, over years, I would have the most contact with." 1. Dr Stern was shown a copy of the letter from HWL Ebsworth to himself dated 14 June 2022. The letter was tendered and marked as exhibit A9. The letter made clear it was not requiring an opinion on liability issues relating to the craftmanship of the surgeon, rather it sought Dr Stern examine the patient (Patient G in the present proceeding) and provide answers to the questions which were posed. Dr Stern was asked by counsel for the HCCC to tell the Tribunal what he understood by the words "please do not comment on liability issues". He answered as follows: "A. Again, I - I preface my following too long answer with my lack of knowledge about the world of - the world of law in relation to medicine. I have the impression that, when these matters arise, the legal team may get more than one report, and probably do get more than one report, from a specialist in a particular area, and I don't know why, but I very rarely get asked any questions about liability. I almost always get these kinds of requests, which are, see the patient the way they are now, answer our questions about where do we go from here, and is this a reversible situation? Can it be recovered? If it's going to be recovered, what's going to be involved and how much is it going to cost? And that I'm assuming they've got some other plastic surgeon who is looking at all the other information and coming down to questions of liability." 1. Dr Stern was then asked about the report he prepared in relation to Patient E. He had, prior to that report provided to the HCCC an "internal medical advice". In the cross-examination of Dr Stern, in relation to his report on Patient E, had not stated in his report that he had provided an earlier medical advice to the HCCC. Between the two documents (the medical advice and the report) Dr Stern had changed his stated opinion in some respects. He was asked what consideration he had given to the earlier medical advice at the time he prepared his report on that patient. He told the Tribunal he had not re-read his earlier advice at the time he prepared his report rather he had "started from scratch". 2. A document being a printout of Dr Amjadi's logbook for 2017, was tendered and marked as exhibit A10. That document formed part of a larger document which was tendered by the Respondent in a USB and in spread sheet format for each year of his surgery the printed portion of the USB was shown to Dr Stern and he was asked whether the form of the logbook was consistent with what he would expect to see as a plastic surgeons logbook. He said it was. He said however, that he was struck by the first three pages of the logbook recording no complications. He said: "I think that I would be very pleased with my own practice if I had that few complications for that number of cases over that time period. It's very good." Statement of the Respondent 1. The written statement of the Respondent was admitted to evidence and is contained in volume 1 at page 11. When the Respondent gave his oral evidence he affirmed that the content of the statement was true. 2. We have noted the following, in particular from that statement. 3. The Respondent is a registered plastic and reconstructive surgeon. He is also a registered dentist. He graduated in dentistry in 2000 and medicine in 2006. He is a fellow of the Royal Australasian College of Surgeons FRACS (Plast). He gained fellowship in 2016. He trained in plastic surgery at Liverpool, Prince of Wales and Macquarie University hospitals. He also did training at the Melanoma Institute of Australia. 4. In 2016 he took up a position as a part time Staff Specialist Plastic Surgeon at Westmead and Auburn Hospitals. He held those appointments until 2022. He was also during that period employed as a locum Visiting Medical Officer at The Canberra Hospital as a Specialist Plastic Surgeon. Additionally in 2016 he observed at Beautiful Korea Hospital in Seoul and also observed in Taipei. 5. During his training he performed two abdominoplasties, with his mentor scrubbed. He also assisted with 37 abdominoplasties (the majority performed during his rotation through Macquarie University Hospital). He also assisted with three brachioplasties, three thigh lifts, thirty liposuction procedures. He also performed two liposuction procedures with his mentor scrubbed. He performed three breast augmentation procedures with his mentor scrubbed and assisted with another 69 such procedures. He observed another seven. He performed two breast reduction/mastopexy procedures with his mentor scrubbed on eleven occasions, as the primary surgeon on two occasions (with his mentor available), on four occasions with his mentor available and he assisted on 76 occasions. 6. In 2016 the Respondent opened his private practice. He ceased private practice in July 2021. His ambition in private practice was to provide cost effective and affordable plastic and reconstructive surgery services. He particularly had a concern for patients who had experienced massive weight loss. 7. The Respondent applied for membership of the Australian Plastic Surgeon Association (APSA) on three occasions. He was rejected on each occasion. He sought to join that association to take advantage of the networking and mentoring opportunities available. 8. The Respondent attached a copy of his curriculum vitae to his statement. 9. The patients who are the subject of the HCCC Complaint were all patients treated by the Respondent between 2017 and 2019 at one of two clinics. Those clinics were Wollongong Plastic and Cosmetic Surgery and Luxe Clinic, being a clinic that the Respondent closed in July 2021. 10. In relation to the patients, the subject of the Complaint, the Respondent has provided responses to each complaint, and those responses are included in the material relied upon by the HCCC. 11. Following the opening of the Respondents private practice, he quickly built-up work in the body contouring cohort of patients. By 2019, the majority of his practice involved complex, high-risk surgeries on patients who were susceptible to complications. 12. In June 2019, the respondent attended his first s 150 hearing with the Medical Council of New South Wales. By that time, he had performed 1285 surgeries involving over 1000 patients, including 684 body contouring or cosmetic procedures. 13. During the period of practice, prior to June 2019, some of the Respondents patients suffered complications. The Respondent said he was responsive when that occurred. Each patient had his mobile phone number. 14. The Respondent stated his complication rate in both 2018 and 2019 was approximately 10 to 15%. He did not consider that unacceptable. 15. The Respondent set out his pre-operative care and consent process. That included the following: 1. Patients made contact with the Respondent with a referral from their General Practitioner. 2. There was an initial consultation by Skype or in person. Some patients were from interstate or remote areas. 3. During the first consultation, the Respondent would discuss the patient's medical and surgical history. He would discuss their needs and expectations. Many patients had a history of significant surgery and had conducted their own research. He would discuss their needs and expectations. Many patients had a history of significant surgery and had conducted their own research. 4. The Respondent conducted a physical examination of the patient. If the first consultation was held by Skype, the Respondent would review the photographs. He had asked the patient to provide him by email and discuss them with the patient. The Respondent would then discuss with the patient, the surgeries which might be appropriate for them. Patients with massive weight loss would require more than one surgery to deal with the excess skin. His aim was to limit surgeries to a maximum six hours of general anaesthetic and avoid operating on upper and lower limbs in the same surgical event. 5. The Respondent discussed the risks associated with the surgery with the patient. For massive weight loss patients, the Respondent explained there was a 50% chance of wound problems and healing difficulties, unfavourable, scarring, recurrence of skin, laxity, minor infections, haematomas, and seromas. 6. The Respondent used photographs to explain the procedures and possible complications. He provided coloured information pamphlets. 7. Following the initial consultation, the Respondent would send to each patient an information pack. This included detailed information sheets. It also included the patient consent form and financial consent documents outlining the costs. During the second consultation, the patient returned the consent documents and was given an opportunity to ask further questions. 8. On the day prior to surgery and on the day of surgery, the Respondents practice nurse would contact the patients to go through the consent again. 1. On occasion, the Respondent would have a patient, who had a good understanding of the procedure they are seeking, sign the consent form on the day of the consultation. That occurred in relation to patients seen by the Respondent at his Wollongong clinic. 2. The Respondent in 2018 began to amend the body contouring consent form to better address the risks of abdominoplasty, a lift, and built lipectomy, separately. In 2019, the Respondent amended his consent process again, so that each procedure had a different consent form. 3. The Respondent said: "I realise now that my process, as explained, ran the risk of the patient, not reading any of the information I provided to them, and therefore, not properly understanding the risks of surgery when they signed their consent form." 4. The Respondent then addressed the complaints in relation to each of the six patients named in the Complaint. We will address his response in relation to each patient as we consider his reply to each of the particulars of Complaints One, Two and Three. We will also consider his evidence in relation to the patients the subject of Complaint Four as we consider his Reply to that complaint. 5. At paragraph 521 of his statement, the Respondent addresses matters under the heading "Overall Reflections". Under that heading, we noted the following. 6. The Respondent submitted that the patients who have been identified in the Complaint brought by the HCCC against him, are not a representation of the entirety of his practice. He said he had performed thousands of surgeries and primarily was seeing happy patients with good results from their surgeries. 7. The Respondent concedes that his recordkeeping at the time he commenced his practice was poor. The inadequacy of his records has become very clear to him as he has reviewed the records for the patients, the subject of the Complaint. 8. The Respondent also concedes his pre-operative consultations were too brief, and he should have recorded more information in his medical records. Many of his patients should have had measurements taken and recorded, both pre and post operative photographs should have been taken by him and he should have undertaken physical examinations. 9. Although the respondent used tele-health consultations with his patients who were located remotely or interstate, he said he would not do that again. 10. The Respondent says that he now understands he took on too high a patient load when he commenced his practice, because he wanted to provide a service to patients of low financial need, who were seeking body contouring surgery. He stated "I have a deep level of shame surrounding my failures, as it was never my intention to cause any harm or distress to this patient demographic. My driving force was always to help." He also now understands that he should not have accepted a high patient load coming from interstate. Those patients had their own set of challenges, such as the difficulties in having face-to-face consultations and post operative reviews, which required them to stay in Sydney. Some of those patients were reluctant to do that or simply refused to stay in Sydney for post operative care. 11. The Respondent also recognises his inability to refuse the requests of his patients for surgery in the period to which the Complaint relates. He said he would agree to perform surgery as requested, even where he had misgivings about it. He has been seeing a psychologist about that issue and has learnt that there is an expectation on him as a doctor to say "no" when they ask for a particular surgery which he does not believe is the best option for them. 12. In considering the complaints against him, the Respondent has also considered the way he permitted so many of his patients to send text messages as communication with him. Although his aim was to make himself accessible to his patients, he can now see that, in some cases, patients became more comfortable, communicating by text, and developed reluctance to attend his surgery for proper assessment and examination. Further, he said he was concentrating on achieving practical outcomes for his patients, and in some circumstances, he was missing the requirement of the patient to "look nicer". 13. The respondent provided comments on the evidence of the experts called by the HCCC. We will address those comments, where necessary, as we address each of the Complaints and the evidence of the experts in relation to same. 14. The respondent provided evidence of his employment/work since his first appearance in a s 150, hearing in June 2019. He said that the first hearing was followed by another in September 2019. He determined to use the criticisms that had been made of him in those hearings to completely overhaul his practice. There were conditions placed on his practice arising from those hearings. 15. The respondent commenced working with two experienced supervisors, Dr Scott Turner and Dr Andre Safvat. He also voluntarily engaged with a mentor, Dr Howard de Torres. He has also been able to assist in body contouring surgeries with other plastic surgeons. In addition he has undertaken a significant number of educational courses in both 2020 and 2021. He set those out in his statement. As a result of the supervision and the educational endeavours undertaken by him. He said he had made considerable changes to his pre-operative processes and consent processes. 16. The Respondent stated that he is a competent practitioner. He said "I am not the same surgeon that I was when I treated these patients." He said he accepts he made mistakes, and that some of his patients suffered due to those mistakes. He understands he still needs supervision for body contouring surgery with patients who have undergone massive weight loss. The Report of Dr Ritz 1. Dr Ritz is an expert witness called by the Respondent. He provided his report which is undated, however, it follows the request by Avant Law that he provide his report. That request is dated 23 October 2023. 2. Dr Ritz provided his curriculum vitae ("CV") which is included in Volume Seven of the respondent's evidence (exhibit R1). Although there is no challenge to his expertise or qualification to be accepted as an expert in his field of medicine, we have noted the following from his CV. 3. Having graduated from the Witwatersrand University, South Africa in 1982 with a M.B. B. Ch., he continued postgraduate study in plastic and reconstructive surgery. He became a fellow (with distinction) at the College in South Africa in 1990. He gained his FRACS membership in 1990 and RACS in 1998. Between 1992 and 1995, he was the head of the Department of Plastic and Reconstructive Surgery and Paediatric Bernard Unit, Baragwanath Hospital, South Africa. 4. In 1997, Dr Ritz became a senior Registrar with the Austin and Repatriation Medical Centre for Plastic and Reconstructive Surgery, completing the Fellowship for RACS in Plastic Surgery. From 1998, until the present time he has been in private practice. He is a director of the Melbourne Institute of Plastic Surgery. From the year 2000 to the present time, he holds a position as Henry Senior Lecturer in Surgery at the Alfred Hospital (Monash University). He has published and presented extensively in Australia and overseas. 5. Dr Ritz was asked a number of specific questions by the Respondent's lawyer. We will detail those questions and also specify which of the Complaints and Particulars are being addressed. 6. In relation to Patient A, Dr Ritz was asked: "In relation to the insertion of bilateral, deltoid implants on Patient A on 21 December 2017. Can you comment on whether Dr Amjadi had the appropriate surgical skills and/or experience to perform the procedure?" (This addresses Complaint One Particular 4(a).) 7. Dr Ritz answered this question by referring to the Respondents training and qualification at the time the surgery was performed. He noted the Respondents admission that he had not undertaken this procedure before, and Dr Ritz opined that it would be advisable and appropriate for the Respondent to have read the available literature about this procedure, and possibly discussed it with colleagues. Dr Ritz noted the difficulty in obtaining advice from colleagues as the procedure is very rarely done, in Australia. 8. Dr Ritz noted that it is "obviously not good practice to have no measurements or sizing to discuss the shape of the implants. The patient was advised that (the Responded) had not done this procedure before, and still proceeded. Just because he had not done the procedure before, doesn't mean he could not do it. This surgery was satisfactory." (emphasis added). (We note the inference arising from Dr Ritz' answer is that the Respondent did have the appropriate surgical skill and/or experience to perform the procedure.) 9. The Respondent's solicitor then asked Dr Ritz: "In relation to the insertion of bilateral deltoid implants on Patient A's on 21 December 2017, do you believe that there was a requirement for (the Respondent) to obtain advice and assistance from a more experienced colleague prior to conducting surgery?" (This addresses Complaint One Particular 4 (b)) 10. Dr Ritz, as he had stated earlier noted, stated there were very few surgeons who had carried out that type of surgery in Australia. He stated that most of the information in relation to the procedure is found in the literature from American surgeons. In that literature, a surgeon can read how the procedure is performed, and proceed with it if he has the confidence to do so. Dr Ritz noted "During the pre-planning of this procedure, there are no photographs or measurements to understand whether the pre-planning was adequate." (We note that Dr Ritz did not precisely answer the question asked of him. The inference from his reply is that if there had been an experienced surgeon to consult, it would have been recommended.) 11. Dr Ritz was asked: "On 2 May 2018; 21 June 2019; 25 July 2019 and 4 September 2019, the practitioner performed revision surgeries on Patient A. (This addresses Complaint One Particular 5(a)) In your opinion should (the Respondent) have formed the opinion, not to perform bilateral deltoid implant surgery on Patient A?" 12. Dr Ritz answered by stating that the patient had undergone multiple surgical procedures prior to the subject revision surgery. He stated: "Certainly the opinion could be that this patient was not a suitable candidate for further surgery." He then stated: the patient "may have required deltoid implant surgery from a clinical point of view." (We note the inference that if the patient did have a need for the surgery "from a clinical point of view, then it was appropriate for the Respondent to have decided the proceeding should be undertaken.) 13. The next question asked was: "In your opinion should (the Respondent) have formed the opinion the previous revision procedures were failing to achieve the desired outcome for Patient A?" (This addresses Complaint One Particular 5(b)) 1. Dr Ritz did not specifically answer this question. He opined that at some stage in the continuing surgery the Respondent would have reached a realisation that the procedures were not achieving the desired outcome. Dr Ritz then spoke of the increased risk of infection and seroma. He said there was no evidence the Respondent had sought advice, from an experienced colleague in relation to potential infectious disease complications. (We note the inference is that at some point the Respondent should have reconsidered continuing with procedures sought by Patient A. He should have sought advice in relation to infection arising in the procedures being sought by Patient A). 2. The next question is: "In your opinion should (the Respondent) have obtained the advice and assistance of a more experienced colleague at any time, and if so, why?" (This addresses Complaint One Particular 5(c)). 3. Dr Ritz gave a definitive response to this question. He stated: "I think (the Respondent) should have sought the advice of a more experienced colleague, not only about this procedure, but about the fact, he was failing to achieve the desired outcome and there were multiple procedures. It is advisable to at least have sort some counsel". 4. Dr Ritz was asked: "Was the post operative care following surgery on Patient A adequate?" (This addresses Complaint One Particular 3) 5. Dr Ritz opined "The post operative care following surgery on Patient A was reasonable with antibiotic and wound care". Dr Ritz pointed out that the majority of the after operative care was carried out by Patient A's GP, in a different State to NSW. It was thereby out of the Respondent's capacity to care. 6. Dr Ritz was then asked this very important question: "If you have found, there was any failure by (The Respondent) in relation to the conduct alleged in Complaint, One Particulars, 1 to 5 as it relates to Patient A, please indicate whether you consider the failure in each respect is within the standards expected, below the standards expected, or whether you consider that (the Respondent's) failures, demonstrate knowledge, skills, judgement, or care in the practice of medicine that is significantly below the standards reasonably expected of a practitioner of an equivalent level of training and experience?" (This addresses the whole of Complaint One Particulars 1 to 5 as they relate to Patient A) 7. The response to this question is: "The preoperative assessment, although he advised the patient of his inexperience in this procedure, because there is not enough information in the pre-operative assessment in regards to measurements and photographs, that would fall below the standards. The surgeries themselves do not appear to have been done poorly. Implants can rotate however, because the preoperative assessment was that it was not enough and he went back and put two further implants in, I think we would have to say that the main failure here is the preoperative assessment, as well as understanding that the expectations of this patient were not being realised. At some point the counsel from another practitioner would have been useful during this process, and certainly the issue here is the continuation of this problem with six surgeries and a decision could have possibly been made earlier as to the progression. Therefore, after all this, I would say that this actually falls below the standards of the surgery, and we have explained the limitations." (We have assumed from this answer that Dr Ritz did not opine that the conduct was "significantly below the standard".) 8. In relation to Patient B Dr Ritz was asked the following questions. 1. "In relation to the performance of a bilateral breast lift procedure on Patient B on 17 May 2018, assuming the Commission proves the following conduct occurred, was there anything inappropriate in Dr Amjadi: (This addresses Complaint One Particular 6.) 1. Listing the surgery in the hospital records as a bilateral breast reduction procedure? (Complaint One Particular 6(a)) 2. Using the Medicare item numbers for a bilateral breast reduction procedure? (Complaint One Particular 6(b)) 3. Previously advising Patient B was not a candidate for any surgery involving skin reduction? (Complaint One Particular 6(c)) 4. Performing the procedure when Patient B was approximately four months postpartum?" (Complaint One Particular 6(d)) 1. Dr Ritz opined in relation to the item (a) above that: "This was a breast reduction procedure even though the amounts excised were not large. However, there is no actual value assigned to the breast reduction item number." 2. In relation to item (b) above, Dr Ritz stated: "There is no stipulation as to how much tissue must be excised (to qualify as a breast reduction). 135gs and 142gs were removed from each breast and so it could be recorded as a breast reduction. Using Medicare numbers for this procedure would be appropriate. However, they were large breasts and a Breast Reduction would typically remove more." 3. In his answer to (c) above Dr Ritz stated: Both breast reduction and mastopexy involve excision of skin and therefore this assessment is incorrect and definitely falls below the standard. 4. With item (d) above, Dr Ritz opined: "This could be below the standard of care. If the patient was still very early on in the post-breast-feeding phase, they have an increased risk of infection and complications in the breast as well as not achieving the best outcome in terms of shape and size. 5. We note from the answer to the questions addressing Complaint A Particular 6, Dr Ritz does not form a definitive conclusion. Subject to the further information suggested by him in relation to the patient, it could amount to conduct below the standard. He does not opine it could be significantly below the standard. 1. On 10 July 2018, Patient B was transferred to another hospital. Assuming the Commission proves the following occurred, was there anything inappropriate in (the Respondent) transferring the patient given: (Complaint One Particular 7) 1. Patient B had bilateral gluteal wound dehiscence and it is alleged that this placed Patient B at a greater risk of contamination and/or infection. (Complaint One Particular 7(a)) 2. Did (the Respondent) obtain informed consent, if the Commission proves that (the Respondent) did not outline specific risks associated (and particularised) with the patient's surgery? (Complaint One Particular 1) 3. Was the pre-operative assessment of Patient B on every occasion appropriate? (Complaint One Particular 2) 4. Was the post operative care following surgery on Patient B adequate? (Complaint One Particular 3) 5. Was any of the conduct in relation to Patient B significantly below the standard expected. 1. Dr Ritz addressed (a) above as follows: The transfer was "most likely because (the Respondent) could look after the patient. It would not place the patient at greater risk of contamination or infection, if the wounds were dressed, and she was moved in a medical way." 1. Dr Ritz then addressed (b) above and stated: "The informed consent appears to be lacking. Certainly, there is no evidence of proper informed consent, outlining the risks associated with the particular surgery that the patient was having and the fact that the patient did have a complication like haematoma was not in the risks nor the wound dehiscence. We have to assume that the patient was given an information brochure which outlined the risks as per their practice, but if not, this falls significantly below the standard." 1. In relation to paragraph (c) above, Dr Ritz opined: "The preoperative assessment on every occasion was lacking. There were no measurements, no preoperative plan, and no listing of the risk factors, and this falls significantly below the standard". 1. In relation to paragraph (d) above, Dr Ritz opined this was within the standard expected. 2. In relation to paragraph (e) above Dr Ritz stated: "The Area which is mostly lacking was the preoperative assessment of this patient and the preoperative planning of the patient which appears to be significantly below the standards expected." 1. In relation to Patient C Dr Ritz was asked the following questions: 1. Did (the Respondent) obtain informed consent? If the Commission proves that (the Respondent) did not outline specific risks associated (unparticularised), with Patient C's surgery? (This was Complaint One Particular 9 however it was removed from the HCCC amended Complaint) 2. Was the preoperative assessment of Patient C on every occasion appropriate? In considering the question, it should be based on an assumption that the Commission can prove that between 8 March 2019 and 1 August 2019, (the Respondent) did not conduct any physical examination of Patient C prior to Patient C being admitted to Sydney Private Hospital on 1 August 2019 for a abdominoplasty surgery; And that during surgery on 1 August 2019, during the abdominoplasty procedure on Patient C, the liposuction cannula used by the practitioner, struck and caused damage to Patient C's pancreas; liver and spleen. ((Complaint One Particular 8 and 10) 1. In relation to paragraph (2) above, we note the question does not precisely connect with Complaint One Particular 8. That Particular asserts the conduct with Patient C was that the Respondent "failed to conduct any physical examination of Patient C prior to Patient C being admitted to Sydney Private Hospital on 1 August 2019 for abdominoplasty surgery." 2. Dr Ritz answered paragraph (2) above with a lengthy explanation having opined that the conduct of the Respondent was significantly below the standard expected of him. He referred to the fact that the preoperative assessment was done initially on a phone call, which is very difficult to do. (no possible physical examination). "The actual physical examination appears to have been done immediately preoperatively, although photographs were taken beforehand. (The preoperative assessment of this patient, having been done on the telephone). Only on the day of surgery (was a physical examination conducted by the Respondent), although it can be argued, it could be within the standards at some point, it specifically falls below the standards for this type of surgery, and the preoperative assessment still needs to be done before the patient agrees to the surgery. The complication of piercing the peritoneum, the pancreas and liver is very rare. It has been described in the surgical literature, and it is not a specific complication that is always discussed with every patient, and certainly is a complication that everyone tries to prevent. It is a technical issue and the main concern, here is that the peritoneum was not breached once, but on multiple occasions. That is a surgical misadventure." 1. The questions asked of Dr Ritz then moved to Patient D. The questions for this patient are: 1. (Is it below the standard) if between 27 April 2018 and 22 August 2018 (the Respondent) did not conduct any physical examination of Patient D prior to Patient D being admitted to Sydney Private Hospital on 22 August 2018, for a lower back lift procedure, including liposuction? (Complaint One Particular 12) 2. (Is it below the Standard) if prior to performing a bilateral, medial, thigh lift and bilateral augmentation mammoplasty on Patient D on 23 October 2018, the Respondent failed to conduct any physical examination of Patient D until 22 October 2018, being the day before surgery. (Complaint One Particular 13) 3. (Is it below the Standard) if between 8 February 2019 and 6 August 2019, the Respondent failed to conduct a further physical examination on Patient D prior to Patient D being admitted to Sydney Private Hospital on 6 August for revision surgery in relation to Patient D's bilateral medial thigh lift procedure performed on 23 October 2018. (Complaint One Particular 14) 4. If the Respondent failed in any aspect of his conduct, outlined above, relating to Patient D, please indicate whether the failure in each respect is within or below the expected standards and if below is it significantly below the standards reasonably expected of a practitioner of an equivalent level of training and experience which the Respondent had. 5. Did (the Respondent) obtain informed consent? If he did not, outline the specific risks associated with the patient's surgery. [For this question please see the consent booklet in relation to the thigh lift procedure, signed by Patient D, with specific risks set out (page 550 of the material). Also, in relation to the revision thigh lift procedure, there is a record of a telephone consultation from 5 August 2019 that states "risks and potential complications discussed in great detail" with no further detail recorded.] (Complaint One Particular 1) 6. Was the pre-operative assessment of Patient D on every occasion appropriate? (Complaint One Particular 2) 7. If the Respondent failed in any aspect of his conduct, relating to Patient D and to either the obtaining of informed consent or the pre-operative assessment, please indicate whether the failure in each respect is within or below the expected standards and if below is it significantly below the standards reasonably expected of a practitioner of an equivalent level of training and experience which the Respondent had. 1. Dr Ritz provided his answers to the questions posed by the Respondent's lawyer. He stated "There is no evidence in the medical notes to support any physical examination conducted by (the Respondent), between 27 April 2018 and 22 August 2018. We have to assume the patient was given an information brochure from the practice. Prior to performing a bilateral medial thigh lift and bilateral augmentation mammoplasty on Patient D on 23 October 2018. The respondent did not conduct any physical examination of Patient D until 22 October 2018, the day before surgery. Further, between 8 February 2019 and 6 August 2019, the Respondent did not conduct a further physical examination of Patient D prior to the patient being admitted to Sydney Private Hospital on 6 August for revision surgery in relation to the bilateral medial thigh lift performed on 23 October 2018. Dr. Ritz opined that the conduct of the Respondent in this respect is significantly below the standard reasonably expected. 2. In relation to the Respondent obtaining informed consent from Patient D Dr Ritz stated: "There is evidence that information relating to the specific risks of the procedures was provided to the patient, evidenced by signed and witnessed informed consent information booklets, but it is unclear how specific the information provided was. For the first operation the information provided is not specific to the proposed back lift. There is a specific consent for the back lift surgery however the risks section of this document is blank." 1. Dr Ritz stated that the pre-operative assessment on every occasion in relation to Patient D is inadequate and falls significantly below the standard expected of a practitioner of similar training and experience. 2. In relation to Patient E, Dr Ritz was asked: 1. Did (the Respondent) obtain informed consent in relation to the procedures he performed with this patient by failing to outline to the patient the specific risks associated with the surgery? (Complaint One Particular 1) 2. Was the post operative care following surgery on Patient E adequate? (Complaint One Particular 3) 3. In relation to the first surgery on Patient E on 12 July 2018 where (the Respondent) performed a bilateral brachioplasty procedure on Patient E, was (the Respondent's) surgery appropriate regarding the amount of tissue removed from Patient E's right arm? (Complaint One Particular 15(a)) 4. Was performing circumferential liposuction on Patient E's right arm, clinically indicated? (Complaint One Particular 15(b)) 5. In relation to the post-operative review on 10 August 2018 Patient E, where revision surgery within the axilla was discussed and an indication that it may be required, what is your opinion regarding the allegation that revision surgery was contemplated but there was no plan in place to review patient E again in circumstances as alleged that: 1. There was a significant difference in healing between the right and left arm; (Complaint One Particular 16(a)) 2. The bilateral brachioplasty surgery on 12 July 2018 was complicated? (Complaint One Particular 16(b)) 3. … 4. … 5. … 6. Was undertaking revision scar surgery appropriate on Patient E's right arm (11 December 2019) (Complaint One Particular 17) 7. Was revision scar surgery clinically indicated if Patient E had a history of poor contour outcome with construction bands of tension? (Complaint One Particular 17(a)) 8. Was there a strong possibility that revision scar surgery would result in wound healing complications? (Complaint One Particular 17(b)) 9. Please indicate if you consider any aspect of the conduct of (the Respondent) outlined above in relation to Patient E was below or significantly below the standards reasonably expected all they practitioner of an equivalent level of training and experience. 1. Dr Ritz answered the questions asked in relation to Patient E with the following, which we have summarised. 1. Paragraph 92(a): The consent form and consent information, which is in the file, he's not dated nor signed. It is very difficult to know if these risks were outlined. There is a consent form from the hospital which has been signed. The informed consent information, which is in the file, is not signed and is not dated. The consultation note from 9 March 2018 and 15 June 2018, preoperatively, does mention the patient's weight, that she is a smoker, but there is no mention of specific risks and measurements and as there are no photographs it is not possible to make an assessment of whether the right arm and the left arm were equal, the same, or otherwise and whether there was any surgical differences required. 2. Paragraph 92(b): The post-operative care, although at times intermittent, was adequate. (We note that Dr Ritz was critical in relation to the preoperative assessment which he said was not appropriate because there were no measurements taken or photographs.) 3. Paragraph 92(c): It is very difficult to understand the amounts of tissue removed. There is obviously more tissue removed on the right side than the left but not understanding whether there was an initial asymmetry, it is difficult to understand why that would be done as well as the liposuction which is often done if too much tissue has been removed. 4. Paragraph 92(d): The circumferential liposuction is often performed if closure is not easily obtained but this was not mentioned preoperatively. 5. Paragraph 92(e)(a): There is no exact understanding of where the surgery crossed the axilla because there is no description of the surgical planning but where it crosses the axilla it can be tight sometimes requiring a release or even a Z-plasty. There was obviously a difference between the right and left arm because more tissue was taken from the right arm than the left but the healing was different and resulted in different scar problems left and right. 6. Paragraph 92(e)(b): There is no mention that the bilateral brachioplasty was complicated. The operative notes do not indicate anything specific at all. However, liposuction was used on the right arm and not on the left arm. 7. Paragraph 92(f): Revision surgery can be appropriate, although I have not seen the photos to understand what was required. 8. Paragraph 92(g): It is difficult for me to make a comment regarding the poor outcome with construction bands because this does happen with brachioplasty. 9. Paragraph 92(h): Revisional scar surgery usually heals with proper preplanning that should not require wound healing complications although, these surgeries can result in that due to too much tension. 10. Paragraph 92(i): The pre-operative assessment of this patient falls below the standards expected. The surgery itself falls below the standard because we cannot understand why more was taken from one arm then the other, which can occur if the preoperative markings and assessment expect the one arm to have more taken than the other. There were no measurements taken. The complications of brachioplasty can include scar revision and release of an axillary scar or adhesion so this would be something that can occur and would need to be advised preoperatively. 1. Dr Ritz was asked questions in relation to Patient F. The questions are as follows: 1. Was there any failure by (the Responded) in not providing Patient F with a second preoperative consultation in relation to a bilateral breast reduction procedure between 23 February 2017 and 13 July 2017 if it is established that the Respondent failed to: (Complaint One Particular 18) 1. provide an opportunity for Patient F to ask any questions following the first consultation; (Complaint One Particular 18(a)) 2. Ensure Patient F understood the nature of the procedure; (Complaint One Particular 18(b)) 3. Explain the potential complications to Patient F due to her complex presentation, including the loss of the nipple/areola complex; (Complaint One Particular 18(c)) 4. Ascertain whether Patient F had achieved adequate weight loss prior to surgery? (Complaint One Particular 18(d)) 1. Did the Respondent obtain informed consent prior to surgery on 13 July 2017 if he did not outline specific risks associated with the surgery? (Complaint One Particular 19) 2. Was the time period for obtaining informed consent prior to the 13 July 2017 bilateral breast reduction procedure reasonable? (Complaint One Particular 19) 3. Was the surgery on 13 July 2017 appropriate on Patient F and what is your opinion regarding the blood supply to the breast tissue supporting the nipple? (Complaint One Particular 20 (a)) 4. If you assume it is proved that there was an inadequate flow to the breast tissue and (the Respondent) failed to identify the inadequate blood supply to the breast tissue on 13 July 2017, what is your opinion regarding the standard of care delivered? (Complaint One Particular 20(b)) 5. In relation to the conduct of the Responded described in relation to Patient F above please indicate whether you consider the failure in each respect is within the standards expected, below the standards expected or is significantly below the standards reasonably expected of a practitioner of an equivalent level of training and experience? 1. Dr Ritz gave answers to each of the questions asked in relation to Patient F which we summarise, or quote, as follows: 1. Paragraph 94(1)(a): "There is a failure to provide Patient F with a second preoperative consultation especially when you see the photographs of this patient you realise it requires a second consultation. There is inadequate documentation at the first consultation. There was a second consultation which is very brief and just says "discussed risks of BBR, happy to proceed". 2. Paragraph 94(1)(b): "It is uncertain whether the patient understood the procedure and potential complications because one of the obvious direct complications would have been loss of nipple areola complex." 3. Paragraph 94(1)(c): "Looking at the photograph provided, this patient had a very long breast with an obvious risk of blood supply issues to the nipple areola complex." 4. Paragraph 94(1)(d): "Patient F needed to achieve a certain adequate weight loss prior to surgery or at least have attempted to and it is difficult to know anything about this as she was obviously of a high BMI." 5. Paragraph 94(2): Dr Ritz stated that he had to assume Patient F was given the information pack prior to surgery and was advised of the risks. 6. Paragraph 94(3): Dr Ritz stated there was a period of four months between consultation one and consultation two, which is an adequate amount of time. After the second consultation there was a two-week break and so that is reasonable. 7. Paragraph 94(4): "This surgery needed to be discussed in some detail. Different techniques have been employed for this type of patient. Loss of the nipple areola complex is a significant risk and in some of these cases a nipple areola graft would have been more appropriate in order to achieve a reasonable outcome." 8. Paragraph 94(5): "It is difficult to change the outcome once a surgery is performed and is inadequate. Blood flow to the nipple areola complex is identified. The flaps once designed and cut cannot really be changed however, if inadequate blood flow was seen at the time of surgery, you could convert this to a free nipple graft. The notes show there was capillary refill and so it is difficult to know how they would continue. Loss of the nipple areola complex would have occurred following the initial surgery but due to the blood flow there is no evidence of any photographs other than nipple pricking and capillary refill." 9. Paragraph 94(6): "The pre-operative assessment, measurements and decision-making for this patient falls below the standards. The post-operative care is reasonable for this type of problem but complications in this particular patient should be anticipated." 1. In relation to Complaint Two, which alleges unsatisfactory professional conduct as specified in s 139B(1)(b) of the National Law. In particular it alleges failure of the Respondent in relation to the making of medical records for the Patients A to F. The Respondent has admitted Particular 23 of Complaint Two, namely that his records for Patients A to F failed to contain sufficient information to allow another medical practitioner to continue management of the patients. He admits Particulars 21 and 22 of Complaint Two, however, he qualifies that admission by stating that it was not a case where he had no record for a patient, rather it was a case of his having included insufficient information in many of the records. Dr Risk stated in his report in relation to Complaint Two the following: "The failure to document matters, in particular the preoperative assessment, documentation of risks and measurements taken for these patients is below the standards expected of a surgeon." 2. Dr Ritz was not asked to address any opinion in relation to Complaint Three, which complaint alleges the conduct of the Respondent amounts to guilt in relation to s. 139E of the National Law, namely Professional Misconduct. 3. Dr Ritz was asked to provide his opinion in relation to questions asked arising from Complaint Four. 4. Dr Ritz was asked the following questions. 1. Was (the Respondent's) clinical decision-making in relation to patients G, H, I, J, K, L, and N, unsatisfactory as alleged? Please provide reasons. (Complaint Four Particular 1 and 2) 2. Did (the Respondent) fail to demonstrate sufficient surgical skills as alleged in relation to surgeries performed on Patients G, H, I, L, M and N on the dates as sit out in annexure F to the Complaint? (Complaint Four Particular 3 and 4) 3. Did (the Respondent) fail to provide satisfactory overall patient management in relation to the care and treatment of patients H, J and L? (Complaint Four Particular 5 and 6) 4. If you find any of the above alleged failures exist, were they to such a degree so as to render (the Respondent) not competent to practice as a specialist plastic surgeon based on lack of sufficient knowledge and skill? (Complaint Four Particular 7) 5. Based on the clinical files you have reviewed, in addition to all other material contained in the brief of evidence relating to (the Respondent) current practice in Volume two tabs 74 to 77 as well as the upscaling demonstrated in the three section 150A application that we have provided to you in your opinion is (the Respondent) currently safe to practise without category supervision? (Complaint Four Particular 7) 6. In answering all of the above questions please indicate any limitations (if any) that an absence of post operative photos after wound healing has on any surgeons ability to comment on surgical skills. 1. Dr Ritz answered the questions raised by the Respondent's solicitor in relation to Complaint Four. We have quoted and/or summarised his responses as follows. These responses correspond with the questions listed above. 1. Paragraph 99(1): Dr Ritz opined that the Respondent's decision making in relation to Patients G, H, I, K, L and N "is not always unsatisfactory as some of the patients achieved a reasonable result". "His pre-operative notes are not detailed enough….some patients who had a very large BMI needed to understand that outcomes could be less than satisfactory. …Many patients required re-excision and the surgical plan needed to be set out in a little more detail. Overall many of these patients had wound healing issues." 2. Paragraph 99(2): Dr Ritz opined that "many patients achieved an outcome that for the large major weight loss patients were still an improvement however, their journey was the problem. There were patients who required their arms to be re-sutured and the surgical skills are there but sometimes there may be a lack of complete insight into each individual patient and understanding skin tension and closure of the wounds." 3. Paragraph 99(3): Dr Ritz opined that: "In all instances the Respondent contacted and kept in contact with the patients through their post operative problems….however, the initial patient management, assessment and note taking is quite rudimentary and does not discuss specifics….Giving out a patient form with multiple risks which in many instances was not signed, is not a satisfactory attempt at informing a patient…the doctor needs to discuss the issues with the patient band have the patient initial or sign the form." 4. Paragraph 99(4): Dr Ritz stated: "(The Respondent) appears to have some skill as a specialist plastic surgeon….his assessment needs to be improved…he would be better served at this time with some supervision and re-education before he would be allowed to perform the surgery." 5. Paragraph 99(5): Dr Ritz said: "No. Based on the clinical files, there were many complications and problems. In most instances, based on poor assessment and possible skill….He would be able to practice but would require supervision." 6. Paragraph 99(6): Dr Ritz said: "It would be nice to see preoperative and post operative results in all these cases to allow us to make adequate assessments….You need proper pre and post operative photographs taken in a controlled photographic environment. Oral Evidence of Dr Ritz 1. Dr Ritz gave oral evidence on 21 March 2024. We here set out those parts of his oral evidence which we particularly noted as being relevant to our determination. 2. In his evidence in chief Dr Ritz was asked about his report, page 18 under the heading Question 5. He had been asked whether in his opinion, Dr Amjadi can practise without Category A supervision. Counsel then asked Dr Ritz if, when he answered that question, he knew what Category A supervision entailed. He said he did not fully appreciate what it required and he said he now does understand and he wished to revise his report by providing his opinion that Dr Amjadi could operate without supervision however, he considered mentoring is required for his preoperative and note taking work. He then said: "I read through what he has done up to now, I think he has made an effort to re-educate himself in many of those aspects." 3. Cross Examination of Dr RitzDr Ritz said that since preparing his report in 2023 he has received further material from the Respondent including his assessment of each case, the subject of complaint, and also copies of reference letters. He had also received information about the education the Respondent has undertaken "during this period of time." 4. The HCCC asked Dr Ritz about some of his opinions in relation to conduct of the Respondent which Dr Ritz opined was below standard but not significantly below. The first question was about his response to question 8 (page 155 of exhibit R1 volume 7). There he had said: "The preoperative assessment, although he advised the patient of his inexperience, because there is not enough information, would fall below the standards." He was asked how he differentiated between below and significantly below the standard. Summarising his response, he said: "So I understand that surgery can be performed if you've never done it before. We can read the literature. It's based on principles. What I found lacking was there were no preoperative assessment, no measurements and no decision made as to what the size of the implant would be. And the other side of it is when you go back on the history of that patient, that patient had some red flags. The patient had had multiple other surgeries, you know, the patient needed more assessment preoperatively……It's more the preoperative assessment, documentation and giving the patient an understanding, a realistic expectation and outcome." 5. The HCCC counsel attempted to have Dr Ritz say how he judged whether conduct of the Respondent was below standard as opposed to substantially below standard. His answer appeared to us to be that the Respondent undertook many of the actions a plastic surgeon can be expected to undertake in a procedure such as that with Patient A, however, Dr Ritz identified inadequacies in a few areas. He said: "So where he's below the standard is in his initial preoperative assessment, with no measurements. And, further on, consulting with a second surgeon, I mean, that is the ideal. It's not always pertinent because many of the surgeons today do not have that experience of deltoid implants. But where he could have benefitted was maybe to discuss it with another surgeon, just on the basis of should he have not continued at a certain point." 6. The HCCC then asked Dr Ritz about his report in relation to the Respondent's conduct with Patient C. There Dr Ritz had written: "It is a technical issue and the main concern here is that the peritoneum was not breached once but on multiple occasions. This is the surgical misadventure." The HCCC pointed out that Dr Ritz had not expressed an opinion as to whether the conduct was below or substantially below the standard. Dr Ritz said that in his opinion it fell significantly below the standard. 7. Dr Ritz was then asked about his report in relation to the conduct of the Respondent in his care of Patient D. He was asked what it was about the Respondent's conduct in that case that gave rise to the expressed opinion by Dr Ritz that the conduct of the Respondent was substantially below the standard. Dr Ritz said: "I think the main reason why I felt this was below the, significantly below the standard was because the patient was not seen until the day of surgery. And the decisions were made on the day of surgery, and subsequently ended up with some complications. And the patient wasn't really prepared and hadn't been adequately assessed beforehand for the possibility of complications." 8. In relation to question of "informed consent" in relation to the surgery performed on Patient D. Dr Ritz was asked if he found there was informed consent or not. He answered by being critical of the documentation provided to the patient which he said was general in its statement of risk. He was unable to see any evidence that the Respondent had checked to see if Patient D had read and comprehended the material provided to her. He was further critical of the fact that the patient was not seen face to face until the day of the surgery. He was therefore unable to reach a conclusion that informed consent had been obtained from Patient D for her surgery. He opined that such a failure fell significantly below the standard. He said: "I think the main reason why I felt this was below the, significantly below the standard was because the patient was not seen until the day of surgery. And the decisions were made on the day of surgery, and subsequently ended up with some complications. And the patient wasn't really prepared and hadn't been adequately assessed beforehand for the possibility of complications." He also said: "I just think that we need to understand that post-bariatric patients have specific problems. They are often not well nourished. Even though they look thin, they're not well nourished. They don't heal the same. They have poor skin quality. And so they need a specific discussion before surgery." 9. In his answer to the HCCC about the reason the massive weight loss patients need to have specific information about their procedures and the outcomes/possible/probable risks, Dr Ritz said: "There are a number of reasons as I've said to you, they are malnourished patients. They may look thin but they often have deficiencies of proteins, arginine, lysine. They're often iron deficient. They often don't feel as well. Their skin quality is different. It doesn't have as much elasticity. They don't heal as well. So there is not a lot in the literature today about the malnourishment of these patients and the preoperative nutrition. But we assume that these patients have a normal diet and that they will heal. I think there is a higher incidence of wound breakdown in these patients. The literature reports anything from 30% to 60% of wound breakdown. It doesn't have to be dramatic, but I would normally warn all my patients that they may have some wound issues. I don't think it's unusual to get wound issues in post-bariatric patients. If you never, ever get them, I would argue you just don't do enough surgery, because these patients do have underlying factors." 1. Dr Ritz told us that with the number of massive weight loss patients Dr Amjadi was operating on, as shown in his logbooks, was significant and as such it would be expected there would be wound healing problems (complications). 2. Dr Ritz was asked to accept that Dr Amjadi completed his fellowship in 2016 and in February 2017 operated on Patient F. A complication from that operation was that Patient F lost a nipple. Dr Stern had opined the loss arose because of loss of blood flow during the operation coupled with infection post operatively. Given that this occurred in the first year of private practice for the Respondent Dr Ritz was asked if he thought it was a "red flag" event. Dr Ritz did not think so. 3. It was put that in December 2017 Dr Amjadi operated on Patient L for a breast lift and augmentation. It was put that this was the third operation performed by the Respondent in his first year of practice which gave rise to a complaint. Dr Ritz was asked if that pointed to a "red flag" in relation to the Respondent's practise at that time. Dr Ritz said he did not think it did. He said: "I think a lot of the decisions that were made when these patients come from interstate are very very complex decisions, because it's not about the surgery anymore. It's about the follow-up care. But I think that a young surgeon going out into practice will get a varied amount of varied cases and I do think that they would try and look at each case and see if they can, you know, if that is a suitable case." He also said: "I'm sure that the initial patient load is more, is more difficult to manage. Experience does make things easier." 1. Dr Ritz was asked about future mentoring for Dr Amjadi. He said that would be recommended it in relation to massive weight loss surgery. He said: "When I read through some of the courses and that he spent some time with Dr Aly, I think he has already undertaken some of that education, but I think these cases are obviously challenging and I think in any event if you said to him today that he could go back and do them, I think he would be well advised to just take each case through with what I would call a mentor. It's about the measurements, the assessment, the suitability of some of these patients for the surgery. So I don't think it's on every bit of surgery because I don't think that he's surgically incompetent. If you look at the number of cases he's done, there have to be happy patients out there and that means that he can operate but he needed some, some education and some understanding of the, the complications of these patients. Post-bariatric patients are a specific subset of the population. They're not like hand surgery, and I think that he would be a better surgeon today." 1. Dr Ritz was pressed to be definitive about his opinion on future supervision of Dr Amjadi in his practise in relation to massive weight loss surgery. The HCCC asked: "When you say that it may be a good idea, or it would be good, would you put it as high as really those kinds of preoperative consultations, that is, where he consults with another plastic surgeon after he has seen a patient and discusses what he has seen and what he intends to do, that that is a condition that should be attached to at least a period of time or a number of surgeries if he were to regain his practice in this area?" Dr Ritz responded: "Well I think that would be, I actually think that would be the correct thing, because I think he can operate, I think he would be able to, and I think it would be, it would help him as well that he took a case, showed a picture of a breast reduction and just said this is my plan, this is what I intend to do." 1. In his re-examination Dr Ritz was asked about his evidence in relation to Patient F. He was asked if he had access to Patient F clinical notes, which he said he did. He then added: "That just looking at the photograph, you can immediately see this patient has got very large pendulous breasts and the highest, you know, number one complication risk here would be nipple necrosis because the nipple has to move a long distance and so that would be, you know, that's something which I think is, is definitely a, a preoperative discussion." 1. The Tribunal members asked Dr Ritz some questions. Senior Member Newton asked Dr Ritz what experience a first year practitioner in plastic surgery would have "to be able to appreciate nipple ischemia, ischemia is a word that means lack of blood supply for everybody else, and therefore be able to make a decision to change to a free graft operation which might have been an appropriate move in the hands of a more experienced surgeon?" Dr Ritz opined that as there is very little exposure to the type of breast surgery Dr Amjadi performed on Patient F, in the public hospital system where plastic surgeons are trained. The same was true in relation to the procedure of "free nipple grafting". 2. In relation to his recommendation about future massive weight loss surgery Dr D was asked: "It seems that you might be suggesting a preoperative second opinion for massive weight loss patients in the case of Dr Amjadi. Would that be a simplified way of describing that?" Dr Ritz answered: "It would be, but I wouldn't be sending the patient to have another consultation. I would just be asking Dr Amjadi to take each case before surgery and discussing the relevant possibilities to go forward. I think to subject the patient to another consultation just for their purpose, would be complicated and expensive." 3. The Principal Member asked Dr Ritz about his practice in post-bariatric surgery. He asked if Dr Ritz set a limit in relation to a patient's BMI, above which limit Dr Ritz would not operate. Dr Ritz said he did not set such a limit. He said: "I think the BMI doesn't work for these patients, because what really works is have they had significant weight loss. I have, you know, if you look at a patient I operated on this week, he started at a hundred and, I think 180 kilograms, he went down to 127 kilograms with bariatric surgery. If you measured his height and his weight, he'd still have a high BMI and yet he's basically just got, you know, lots and lots of excess skin. So I try to look at a patient holistically. Many of these patients have had a journey where they've lost, you know, that's a significant weight loss, he's lost over 50 kilograms, so it is significant. I don't think the BMI on its own is, is, is enough. I think the complications for me, the biggest negative is smoking. Obviously if they've got a medical history there is, you know, a complication, for example diabetics, I don't not operate on diabetics, but we do, you know, think carefully. If patients have, are anaemic we want to make sure that they are medically well, so they might need iron and so forth. But then again, there is also the mental side and the psychological assessment of these patients, and some of these patients you know, may not, may not be suitable and we try as much as we can to assess these patients." There were other aspects of the patients presentation or history which played a role in patient selection for Dr Ritz. 4. Dr Ritz was also reminded that at the time the complaints being considered by the Tribunal were triggered by surgeries, Dr Amjadi was performing "no gap surgery" for patients with hospital cover insurance". Dr Ritz was asked whether, in the State where he practises (Victoria) if he had knowledge of any plastic surgeon similarly conducting massive weight loss surgery funded by "no-gap". He said he was unaware of any such surgery taking place. The Respondent's Statement under the heading "Overall Reflections" 1. We have set out earlier in this judgment what the Respondent had stated under this heading. Oral Evidence of Dr Amjadi 1. Dr Amjadi was asked questions which formed part of his evidence-in-chief. He was then cross-examined. We noted the following in particular from his oral evidence. 2. The Respondent was asked a series of questions about how the logbooks on the USB were created. He was shown exhibit A10 which is a physical copy of his 2017 spread sheet logbook. In the early part of the recorded logbook, as set out in exhibit A10, the Respondent said he had not set out precisely what his role was in each case. He was always present. In some he was the lead surgeon, in others he was an assistant surgeon and in others he was supervising registrars who were performing less complex surgery. 3. The Respondent was then referred to his oral evidence given in June 2019 before the Medical Council delegates (s 150 hearing). He was reminded that he had told the Medical Council delegates he had assisted Dr Sandercoe at Norwest Private Hospital in 2017. He agreed that there was not any entries in exhibit A10 to confirm that. The Respondent appeared surprised and said it must have been in 2016 that he undertook that work. He agreed he had also told the delegates in that s 150 hearing that he had assisted Dr Teston at both St George and Kareena Private Hospitals. That surgery was not massive weight loss surgery. He agreed that he could only see one operation referred to in his 2017 logbook, identified as taking place at St George Private Hospital. He could not see any operation noted as taking place at Kareena Private Hospital. He said it was most unlikely that he had not recorded an operation in his logbook. He thought the probable answer was that the operations actually took place in 2016. 4. The Respondent was then shown a copy of a transcript of his oral evidence before the Medical Council delegates (another s 150 hearing). The date of the hearing was 24 September 2019. 5. The Respondent was asked to clarify how his rotation of four weeks at Macquarie University Hospital was conducted, during his training period. He explained that he followed a number of plastic surgeons to different hospitals and operating facilities during that four week block. He said it was during 2014. He agreed that he had named (in the September 2019 s 150 hearing) Dr Steve Merten as the main surgeon who he had followed who undertook massive weight loss surgery. Prior to the Macquarie University Hospital rotation, the Respondent said he had been at Nepean Private Hospital with Dr Tim Papadopoulos. He said he had also observed Dr Mark Kohout performing massive weight loss surgery at Hunters Hill Private Hospital. He also was with Dr Gazi Hussain when he operated on massive weight loss patients at the Brisbane Waters Private Hospital. 6. When the Respondent commenced his private practice in late 2016 he planned to review his complication rate every six months to see that he was achieving a complication rate which was in keeping with the complication rates he was observing from medical journals which address aesthetic plastic surgery. He kept a diary (day to a page) and recorded all his operations in that diary. He would thereafter transpose that information into a spread sheet which became his operation logbook. He mostly did that on a monthly basis. His plan was to include in his diary if a patient, whilst in hospital following an operation, developed a complication. He could not say that recording occurred 100% of the time. If a complication occurred post hospitalisation the Respondent said he would record that in his diary also. If he had not made that note he usually remembered such a complication as he was writing up his logbook monthly. 7. The Respondent said he still keeps his records in the same manner. 8. The transcript of the evidence given by the Respondent before the Medical Council delegates on 28 June 2019 and the reasons for the decision given following that hearing, were shown to the Respondent. In the decision it was recorded that the Respondent had told the delegates that "in relation to CPD recertification requirements for practice audits, Dr Amjadi had said he had an annual dinner with Dr Sackelariou and Dr De Torres where they discussed their case numbers". It was then put to the Respondent that he had told this Tribunal he was doing it more frequently with Dr De Torres and Dr Sackelariou. The Respondent agreed and said that Dr Barnett, one of the delegates on that section 150 hearing in June 2019, had told him he needed to do it more regularly (meaning frequency). The Respondent said he had asked Dr Barnett on the day of the hearing, if Dr Barnett could give him some assistance. 9. The Respondent agreed that shortly after 8 July 2019 he received a copy of the decision of the delegates of the Medical Council. That decision set out a number of dot point recommendations for the Respondent. One of those was that the Respondent develop a supportive and trusted peer network for seeking second opinions when required. 10. Dr Amjadi agreed that he had told the Medical Council in the June 2019 s 150 hearing that he had access to Dr Paul Curtin, Dr De Torres and Dr Thomas Lam. Dr Amjadi also said he had asked Dr Papadopoulos, if he could bring his numbers for a formal audit to the Westmead Private Hospital morbidity and mortality meeting even though Dr Amjadi was not operating at that hospital. However, although Dr Papadopoulos had agreed to that the first meeting was not scheduled until October 2019 and in September 2019 the Medical Council imposed conditions on Dr Amjadi's registration. Dr Amjadi also stated he had approached Dr Sackelario for assistance as he had experience in massive weight loss body contouring procedures, however, by early 2019 Dr Sackelariou had ceased operating as had Dr De Torres. It was following those events Dr Amjadi had approached Dr Papadopoulos and asked about joining the M & M meetings at Westmead Private Hospital. 11. When asked whether he had sought any other peer support, Dr Amjadi said that during the 2018 and 2019 period he had attended meetings and listened to presentations. In July 2019 he attended a two-week surgical training course in Switzerland, with one of the world leaders in weight loss contouring surgery, namely Dr Pascal. He had also attended a course conducted by Dr Aly, on-line, as there were covid travel restrictions. Dr Amjadi would like to undertake the Dr Ali course in America. 12. In relation to the creation of his logbooks, the Respondent said that in a period between July and September 2019 his logbooks had been written up, by his receptionist from his diary entries each Friday, however, after September 2019 that changed. (We note the evidence is unclear as to whether the Respondent's receptionist continued to write up the logbook weekly from the Respondents diary notes or that the Respondent created the entries in his logbooks. See page 54 of the Transcript 20/3/24) 13. The HCCC tendered hard copies of the Respondents logbook for 2018 (Exhibit A14) and the 2019 logbook (exhibit A15). Those documents are printouts from the USB stick which had been tendered by the Respondent. 14. The Respondent was taken to exhibit A1 volume 10 of 10 page 21 being documents relating to Patient A. There in Patient A's statement he said he had returned to Dr Amjadi for revision surgery on 10 February 2018. However, there was no entry in the Respondent's logbook for 2018 corresponding with that date. The Respondent agreed and said he had no record of such an operation with Patient A on that date. (We understood Dr Amjadi to be saying the operation did not take place on that date) 15. The Respondent was then asked about a procedure for Patient A on 14 March 2018. He agreed that it was a revision operation however, it had not been noted as such in his logbook. He also agreed that an operation on Patient A performed on 21 June 2019 should have been noted as revision surgery. The same is true of an operation on Patient A performed on 25 July 2019. In relation to the criticism of his record set out in his logbook, the Respondent said it was clear to him that the operations, referred to above for Patient A, were revision operations and that he never intended that the logbook would be read by others. He agreed however, that his logbook recordings for operations on Patient A on 17 September 2019 and 2 October 2019 where complications were noted was a better form of practice. The Respondent said that if he was presenting to a meeting of his peers his operation data, it would be presented in a different form to that contained in his logbook. It would be a presentation in the same form as Dr Sanki had provided in her evidence. Further he was confident he would remember completely all the details relating to Patient A's operations as that was the only patient he had ever operated upon inserting the particular types of implants Patient A had required. 16. The Respondent was then asked about Patient G, who developed an infection post discharge from hospital. He was asked if he would normally record that as a complication in the spreadsheet. He said that he would. He agreed she had been re-admitted to hospital on 26 July 2018, about two weeks after her surgery. The Respondent agreed that although the infection occurred well after the procedure on 3 July 2018, he would normally note the infection as a complication as against the 3 July operation. He said that complication which required re-admission to hospital for a procedure he would see as a major complication. He agreed that the entry for Patient G for 3 July should have recorded a post-discharge infection. 17. The Respondent was asked about a number of patients who underwent scar revision surgery. He was asked if he included those surgeries as complications. He said he did try to include revision surgeries as complications. He conceded he could have missed identifying a scar revision as a complication in his logbook. 18. The Respondent agreed that his logbooks showed for 2018 having undertaken 45 brachioplasties and in 2019 (up to September of that year) 24 brachioplasties. He was then taken to his evidence before the Medical Council in a s 150 hearing where he estimated, as at 15 July 2021 he had only performed five brachioplasties in the last ten months or so. He was asked to explain the difference between his evidence given on 15 July 2021 and the record in his 2019 logbook which he agreed would not have extended beyond September in that year. Having stated the logbook was correct when stating 24 brachioplasties for 2019 (presuming more than five before 15 July 2021), his only explanation was that "If operations go smoothly and I don't have problems, obviously put in the context of everything else that I was doing, I thought there wasn't that many." 19. The Respondent said that the operation he had the most complications with were abdominoplasties. He said the majority of his operations (until the conditions were imposed) were abdominoplasties. With the benefit of hindsight he thought that his processes for capturing data was less than ideal. He considered that being a sole practitioner had left him isolated and he was planning to share rooms with Dr Turner, a colleague in the future. He thought that would provide him with the opportunity to consult. 20. The HCCC counsel asked the Respondent about his expressed difficulty in being able to undertake surgeries which his conditions required be performed under direct supervision of an approved supervisor. The Respondent set out that difficulty. Consequently, if the outcome of this proceeding was that the Respondent was required to undertake a specific number of body contouring operations in the presence of his supervisor, it might take years to be able to achieve that specific number of operations. Over the last five years he has tried to assist other surgeons, who are not his named supervisors, in order to maintain his skills. 21. If the Respondent has his supervisor supervise an operation he has to pay $2,000 to the supervisor for an afternoon session. If he assists other surgeons he is not paid. The Respondent has had his supervisor observe him operating on different procedures on approximately ten occasions over the last four years. 22. The Respondent had Dr Turner supervise a number of cosmetic surgeries which the Respondent performed for existing patients. Once those surgeries had completed he ceased undertaking cosmetic surgeries because he could not afford the insurance premiums for that category of surgery. That cessation occurred at the end of 2021. 23. The HCCC counsel informed the Respondent she was proposing to ask him some questions arising from his evidence given before the delegates of the Medical Council in s 150 hearings so far as that evidence addressed what she understood to be concessions/admissions given in relation to some of the Particulars attending the complaints under consideration in this hearing. The questions commenced in relation to the hearing conducted on 28 June 2019. The Respondent was asked whether at that date he acknowledges that his knowledge in terms of managing patient expectations was inadequate. He said that he considers his understanding, at that time, of what a patient expectation is and what patient expectation entails was inadequate in relation to the particular type of surgery he was being asked about, in that hearing. He said he was being asked about reconstructive surgery. He then went on to say: "I can very adequately manage patient's expectations in terms of the functionality, but what I was lacking is expectations in terms of aesthetics and their cosmetic outcome and I, I treated those patients as, I would have any reconstructive patient's and I ignored the fact that there's a significant cosmetic component to it." 24. The Respondent was asked about his expressed views on the necessity for a second consultation with patients before a body contouring operation. He had said that he had been routinely undertaking a second consultation, or requesting patients attend for a second consultation, however, often they did not attend for that 2nd consultation. However, he has changed his position in the last three of four years. He said: "I've done a few breast reductions and, you know, elective things that have come through my door and I've tried to do at least three consultations because, and what Dr Stern said, if somebody comes to me, and everybody comes to you these days, that they have researched the surgery and have asked their friends and they've been on Google and Facebook and have watched videos and everything, and if somebody says I know everything there is to know, then I tend to now take the approach and say can you, you know, please tell me what it is so I can hear it from you." 1. He was then asked: "No, I'm talking about major weight loss. He answered: "--I'm quite happy to, for this group of patients I think when I was Dr Stern's registrar I used to say, "take your time and make it beautiful" and I think that should apply to preoperative care, like you should take your time, see them as many times as you need to, I don't think there should be a number limit to it, but you know at, at least two, at least two or three times." 1. When asked by the Tribunal members when he had been Dr Stern's Registrar, he said that had occurred in 2013 and when he was at Concorde Hospital. (See Transcript 20 March 2024 at pages 83 and 84). 2. The Respondent said he now understands the necessity to communicate to patients, all of the matters which need to be communicated irrespective of the patients stated knowledge of those matters. 3. The s 150A transcript from 18 September 2020 was drawn to the attention of the Respondent. He was asked about the following evidence he gave: "I was going back through my medical records and my consent forms and it was a difficult thing for me to see in hindsight just how inadequate my processes were compared to the expected standard." He said he was talking about the patients who had complained and the notes he had recorded for those patients. Then the following exchange is recorded: "Q. And then you go on to describe one operation that you had done and you say at line 30, "It was a minor operation but I felt like I spent hours preparing before the consultation. We did three pre-op consultations with the patient. The surgery itself takes less than an hour, but Scott was there with me, he gave me the nuances and pointers on doing the surgery, I did it meticulously." And then at line 41 you say, "And I felt that that is the way that I should be doing an operation and it made me realise that there was no possible way that I could do that in the way that I was running my practice before. I just didn't have the time to prepare the patient and myself for the operations and I didn't have the capacity to look after them afterwards." Do you see that? A. Yes. Q. Is that a reflection on the number of patients that you were seeing, or the difficulties of the surgeries, or is it a combination of matters that you can tell the Tribunal about that you're reflecting on there? A. I think the most significant thing was that I was spread out too thin, so I was, so in 2018, so 2017 I think my practice was basically quiet, I just started and then towards the end of 2017, I did one or two of these abdominoplasties for weight loss patients at Wollongong, people that I had seen for other skin cancers and things beforehand, and, and they sort of spread the word and in 2018 I got sort of inundated with patients. But at the time, so for 2018 for example, I was operating in Shellharbour, Wollongong, Manly Waters, St Lukes, Holroyd, Westmead, probably seven hospitals and I was consulting, I was still going to Canberra, I was still consulting at Wollongong, Westmead, Edgecliff, Holroyd, and I was still junior and I didn't have, so everything went, if everything went according to plan it would be fine, but if somebody had a complication I just could not be around for them. I didn't have, I was just spread too thinly across and I spent 2018 sort of trying to contract everything back and by sort of, by mid-2019 I was only operating in two hospitals, I was only consulting out of one place, but I think, and you know, I raised my fees and I tried to limit my patients and tried to fix things up, but I think by that stage, I had a number of unhappy patients from 2018 that I had to deal with." 1. In some of his evidence in s 150 hearings the Respondent had referred to having engaged in personal counselling. He told the Tribunal he is still engaged in counselling on a monthly basis. He found and continues to find counselling helpful. 2. The cross-examination of the Respondent spread across two days and was continued on 21 March 2024. 3. The Respondent acknowledged that his note keeping in the patient's records during the 2018 and 2019 period were inadequate to permit another practitioner to be able to take over the carriage of a patient in the absence of the Respondent. He had used abbreviations and codes to tell him what he needed to remember for an operation (for example). 4. The Respondent was asked if prior to the June 2019 section 150 hearing before the Medical Council delegates, he had read and implemented the 2016 Guidelines. He said he had. He said: "So the things that the guidelines talked about specifically at the time was try to have, for cosmetic surgery, try to have two preoperative consultations, try to have at least seven days gap between the consultation and surgery and then there were, I think there were points about trying to get patient's local GP involved in the care, even though they don't usually come with a referral from the GP. And then there were amended guidelines later on about what procedures can be done in the rooms and what should be done in a hospital." 1. The Respondent agreed that the first and second s 150 hearings caused him to reconsider how he was dealing with interstate patients. In the pre-operative care he agreed that the failure to see the patient at the first or at least at the second consultation was wrong. He agreed that he failed to conduct a physical examination of either Patient C or Patient D in pre-admission in-person consultations. (We note in some cases due to distance from Sydney, consultations were conducted via the Skype medium.) 2. The Respondent was reminded that he had denied his post operative care of interstate patients was not at the relevant standard. He agreed that when those patients were discharged from hospital they were discharged into the care of their GP's. Although he expected to see the patients again at 12 months post operative, he kept no record of how many patients actually returned for that 12 month consultation. He said very few actually return. He does not charge for a 12 month consultation, post-operative. 3. In relation to Patient C the Respondent agreed there was no urgency to Patient C having the procedure he performed. He could have deferred the operation until Patient C attended to have a face to face consultation with him. He also said that although the consent document for Patient C in the records before the Tribunal consisted of the signature page only, she had been sent the entirety of the consent document. He said when a patient made an appointment to see him his receptionist would send the patient a questionnaire together with a request for documents. The Respondent said he would view those documents before the first consultation took place. 4. In relation to the consent process for Patient C the Respondent was asked as follows: Q. You don't, do you have an independent recall now that during the Skype consultation you took her through the informed consent documentation? A. That, that wasn't my usual practice at the time. I would go through the procedure I was going to do and go through the risks and things based on what I could recall personally, what was my usual practice of talking to patients about. Q. So is it more likely that when you say in paragraph 96 that you arranged for the practice to send to patient C the usual forms, that was after the Skype consultation? A. That would be more likely, yeah. Q. And in terms of the Skype consultation, do you have an independent recall now that you showed (Patient C) any photos? A. We're talking about six years ago. I don't recall her specific consultation, to be honest. Q. Was it your usual practice with Skype consultations to have photographs ready for each possible operation that might be decided upon at that initial Skype consultation? A. No. I had a set of photographs to show patients but from my memory I didn't use that for Skype consultation." 1. The Respondent agreed that the first face to face contact he had with Patient C was on the morning of her surgery. 2. In relation to the recommendations made by the delegates of the Medical Council in the release of their judgment, the Respondent said he implemented the recommendation that he "improve and be consistent in ensuring adequate face-to-face consultations and consent processes with all his patients, particularly those from interstate" in relation to new patients with whom he consulted after that date. The Respondent conceded he should have applied that recommendation to existing patients at the time of the recommendations. There were three or four he should have reviewed to ensure adequate pre-operative face-to-face consultation well before surgery. 3. The Respondent was shown a document titled "Applicants Admission Analysis". That document is said to be an aid memoire. It was marked for identification as MFI 7. He was also shown a copy of the Applicants Amended Complaint which is located in exhibit A2. He was also handed a copy of his Reply document which is the first document in exhibit R1, volume 1 of 13. 4. The Respondent was asked questions about his Amended Reply document in relation to Complaint One, Particular 5(b). This related to Patient A and surgery on 21 June 2019 and 25 July 2019. He had denied that the surgery referred to in Particular 5 was revision surgery as stated in the Particular. He said that surgery was conducted on 2 May 2018 and involved a further and additional surgery as requested by Patient A. The questioning about Particular 5 of Complaint One then proceeded as follows: Q. Let me put it to you in the terms, just to avoid this debate, Dr Amjadi, on 2 May 2018 it is alleged that you performed a revision surgery on patient A. First of all you say it's not a revision surgery. That's right, isn't it? A. Well, that's semantics, but yeah, yes. Q. And the further allegation is that it's in circumstances where you failed to obtain the advice and assistance of a more experienced colleague at any time. You don't accept that there was any need for you as at 2 May 2018 to obtain the advice and assistance of a more experienced colleague. Is that right? A. I don't accept that there was a more experienced colleague. There wasn't anyone doing this surgery. Q. But if I take you to your response under B, your reply, if I take you directly for the time being to C, in there you say, "In respect of the June and July 2019 revision surgeries, I can now see that seeking advice regarding a patient who is potentially presenting with body dysmorphia was required." Do you see that? A. Yes. Q. So in respect of those two dates, in relation to the particular that you, in relation to those two surgeries, first of all you accept that they were both revision surgeries in June and July 2019? A. I believe so, yes. Q. And in relation to C do you accept that you failed to obtain the advice and assistance of a more experienced colleague when you should have done so? A. "Yeah, it's in my reply in point 3 of 5C." 1. The Respondent was asked about some of his responses to the HCCC's letters of complaint which were sent to the Respondent. The first patient to be considered was Patient E. The Respondent's response to the HCCC letter is set out in volume 1 of 10 in Exhibit A1 at page 493. 2. The Respondent was asked about a procedure which he undertook for Patient E and whether it was revision surgery. He said he thought the outcome from the first surgery was satisfactory however Patient E wanted the scarring reduced. He undertook the operation at no cost to Patient E. Patient E had been a no-gap patient for her first operation. 3. The Respondent was asked about the document which had been marked MFI8. This document was shown to Dr Turner during his cross-examination. The Respondent was asked to identify what the document was. He said it was a list of procedures involving body-contouring procedures he had been involved with. Members of the Tribunal then asked the Respondent questions. 1. Senior Member Dr John Newton asked the Respondent about how, if at all, his practice has changed since the time of the procedures which gave rise to the complaints. He asked: "Have you changed your technique in, firstly, your criteria for classifying patients?" The Respondent asked: "Do you mean selecting patients?" Dr Newton said: "Yes". The Respondent gave the following answer: A. Yeah. So that's - that's been the - probably the longest discussions that I've had with the two supervisors was about selection. It's - it's something that I've tried to give a lot of thought to over the years. And I've tried to sort of systematise this sort of thinking in my head to make it a bit easier for myself as I see the patient. So I - and I've had help from Scott and getting pre‑consultation forms that helps sort of systematise my thinking. So I divide up the patient's criteria into their medical conditions, their social situation, the finance situation and then what is their chief complaint. And then try to get an idea from each of those categories as to whether they are suitable for what they are actually asking for. And then what - and then there is a second process in my mind as to, is what they are asking for matches what I think I can achieve and if - if - if there is a tick in all those boxes and then, what they are asking for is matches what I achieve is what I - I would consider a suitable patient. So it's a much more systematised and sort of vigorous process of selecting the patient. 1. Dr Newton asked: "Following on from that, in the same period, 2017 to 2024, has your recordkeeping changed?" The Respondents answered: "Recordkeeping is - so short answer is yes. The - the recordkeeping has changed in a number of ways, in that, in the first way, a lot of electronic aids have been added so things that - I think Dr Ritz mentioned as well, but there are systems now that I try to use for the patient, gets an electronic reminder they have to go online and read something and then there's an electronic record that they've read it and that that's also attached to video or an animation of a procedure that they can watch. And then, that's - that's done before they come for the second consultation, so they're - then we can talk about that. The documentation is moved sort of from sort of freehand things that I would jot down in the limited time that I had, into a more a proforma that I can tick or fill out and it would remind myself of the questions that I have to ask as I go through. And also, it's become more comprehensive, so I'm more conscious of including phone calls and emails and things and all of those things in - in a record of the patient's file so I don't have to rely on my memory with what's - what's happened and that's one of the major things that I think I came across in these things. So the - the document mentioned, in particular, has been helped both by relying on the things that my colleagues are using, so trying to use their formulas and formats for streamlining, documenting things and also relying on the support the American Society provides in giving out procedure specific consent processes and documents that I can use. 1. Dr Newton then asked the following questions of the Respondent. We include the replies to those questions. Q. Does that proforma include a section for complications? A. So those proformas are for consultation things. It's medical history, cosmetic history, breast history. There is a different one for each type of consultation. As far as recording the consultations that I'm - I am - I'm relying on the fact at the moment that I'm in such a supervisor environment that - that the complications are recorded by the hospitals, by my supervisors, by my colleagues. And the method of recording complications is - is still a reliance on me writing them down in my own logbook. But that's reinforced by the fact that that logbook is - is reviewed externally by multiple people. Q. Now, with respect to photography, has your practice changed, pre and post‑operative photography? A. So my - I mean it - it's not really relevant to my current practice, but my intention is - so - so for example, the handful of cases that I have done in sort of breast reductions, abdominoplasties, that I've done in the past two, three years, tried to be more conscious of transferring the photographs to the electronic records as soon as they're done so they're not sit on a camera and then get accidentally deleted and taking photographs on regular intervals, both for patient records and also for what we were talking before, so I would have it - something to show the next patient, that how the wound looks in one week and six weeks and three months and six months. So I've - I've tried to be a bit more vigilant and making sure that photographs are in them in my tick box and every time they come for their follow-up consultation. Q. So would I surmise that you're presuming to set up a photograph circumstance within your rooms where clinical and repeatable standard photographs are able to be taken? A. Yeah. I've - I've - I've - I've had that set up initially just - it's just being reminded to use it, was - that was the problem and adding that - adding that process of photography to a tick box and you know, check - checklists that I can make sure that it's done every time the patient comes in, is - is the more important thing in my practice. Q. Just a couple of slightly less, what's the word, analytical questions, but why did you choose one of the most difficult arenas of plastic surgery to become such a large part of your early career? A. Yeah. I've - I've asked my question that a lot. So - so it all started because of the - the theatres. It was Patient I, who is one of the patients. Yeah. I did an abdominoplasty on her Patient I's mother and she was the person and then I did that no-gap or non - non-gap I think and it was her that spread the word. And I was at Wollongong at a time and I was only doing - this is 2017 - I only did a handful of these cases and it was fine. And I think it - it expanded beyond what I anticipated and I didn't have time to come out for breath and by the time I contracted myself into a manageable number of hospitals and the manageable locations, these - there were a lot of unhappy - well, there would be enough unhappy to raise their voices. But I - I think the main thing was with - I mean, starting with Patient I's mother and the other couple that I did in - in Wollongong, I just felt like there was nobody else doing this kind of thing for these people. And I mean, in hindsight, I see why nobody else does it, but it's - I felt like it was a group that had no access to this kind of care. I don't - I never set out intending that this would be my practice, I don't - that wasn't the plan. It's - but I, you know, certainly I ended up doing a lot of - a lot more than anybody, you know, after ten years, has ever done. Q. So it was an evolutionary process. You alluded to something which I was going to ask about, you said that you felt in the early days that you were spread too thinly and you just alluded then to the fact that you were working at several hospitals and you've now narrowed that down. A. Yep. Q. You were working at seven hospitals in 2017. A. Yes. Q. Did that cause compromise in your ability to cover patients, number one? This is a two-part question, I'm sorry. And the level of education that the hospital staff was able to obtain to look after your patients? A. So in - for example, in 2017, I was - I had sort of an operating list in one of these hospitals, one every - one day every four weeks, one every six weeks. And I wasn't busy enough, so I had the time to go around and see everybody. That same number of practices which is not sustainable in 2018, when suddenly things got busy. And I feel like not - it was - not only I - I wasn't allowed - I wasn't able to attend all of those places. If somebody had to stay in for ten days extra, it was difficult for me to be able to attend them every day as I - felt like I should be. Q. This is the post-surgery care? A. Yeah. And also there's the other fact that a lot of these places were sort of smaller hospitals or day surgeries or places that I'd originally picked anticipating that my bulk of my work as a starting surgeon is going to be skin cancers and hand surgeries and small things. And when I did this body‑contouring surgery in those hospitals, I realised the hospital is actually - even the operating theatre is equipped, but the ward is not equipped to deal with that patient afterwards. The nurses don't have any expertise to get the patient up and get them walking, there's no physio on the ward, there's no doctor covering the hospital. And gradually I sort of narrowed myself down to the two hospitals that I felt like had enough facilities to care for these patients after that. And I think there was two aspects. I was spread too thin and the hospitals, as I found out later, they're not all equal. 1. Dr Newton asked the following further questions: Q. Mahyar, you've been criticised for the duration for which you kept some patients in hospital. As a clinician, what did you base your duration of stay on? Was it an accepted standard or was it the clinical need? A. The duration of stay was on the advice of Dr De Torres. He - he gave me a few examples of the - the abdominoplasties is done and they send them home the next day or day after and then, because they had two weeks off work at home, they started painting their house and moving the furniture and then come back with a seroma. And he advised me to - he said, "If you can keep them in hospital for a week, that way someone cooks the food and someone looks after them and they can walk around." And I took his advice. On the - on the balance of things, it - it depends if the patient is - has enough social support at home, obviously, they're better off at home. But I - I also see the other side that if - if they're feeling well and they've gone home and they suddenly have this four weeks of leave, it's very tempting to get into the shed and fix the things up that you have been thinking - trying to do for - for a while. And if you don't have that support around you and people that can tell you that - you need to rest and stay home, it's probably safer to be in hospital. Q. So the last question. You've expressed in this meeting that you have been having counselling regarding the effect that this episode at the time in 2017, 18 and 19, has had on you. Has that been a benefit and has it restored confidence or what has it restored for you, I should say? A. I think counselling, in general, I mean, it's ongoing and it's still happening. And the counselling, in general, apart from the fact that I've tried to restored my relationship. But counselling, in general, lets me look back at the reasons why I make decisions the way I do and try to find - to help me find sort of instances when my decision-making can be compromised because of, you know, my - whatever I've gone through. And try to catch myself or - from making the same decisions again, stopping myself from putting myself into that position where I can be compromised. Or making - essentially getting into a position where I know myself well enough to say: "This is what's happening now and I would normally, for example, say yes to this situation, but it's going to be difficult for me to say no, so I'm just going to say, can we just get back to this and talk about this later in a couple of days when I can catch up." So I think the point of the counselling has been, in my case, mostly emotional and just general maturity and getting to a point of self-awareness when I know why I'm making decisions that I'm making and what are the patterns of poor decision-making that I have done, not just in my clinical position, but even in my - my whole life and how do I get myself out of those patterns so they're not repeated. 1. Senior Member Dr Cowap asked the Respondent: "Do you think in the past you had a problem saying no to patients who were seeking surgery? 2. The Respondent denied that he had financial pressures which could have contributed to him undertaking operations which he thought otherwise he should have refused. He did have difficulty saying no to patients who had a good result from a procedure and yet wanted something better (e.g. smaller scars). He agreed he felt susceptible to pressure from his patients. 3. The Respondent was asked if he felt he could now resist that patient pressure to have an operation which the Respondent considered was unnecessary or not sufficiently necessary to enable them to function. The Respondent explained that through his counsellor's guidance he has been equipped with tools to address that pressure. He said: "And I really feel like, when it comes to clinical care, the best tool for me is the fact that I have one-on-one consultation. So it's not - it's not just that she - the patient has to consent to what's happening, I feel like I need to consent to what's happening as well. And then they - when we meet up at the first time, I say: "Well, you know, you've going to get an email, there's going to be some links, have a read, watch the video and then I'm going to have a look at your photos and then we'll have another chat in a few weeks' time." And that gives you at least an opportunity to psych myself up, actually, if I wanted to say no, I'll have the thinking to say." 1. The Respondent was asked: "So you'd say that you have spent time on those issues of resisting pressure, saying no, and that you have, you know, learnt a number of tools that help you?" He replied: "Definitely." 2. Dr Cowap asked the Respondent: "Has anything else helped you apart from that, instituting a delay before you give your consent to the operation as you put it, which I think is quite a good way? Is there anything else that you've instituted or any other tools other than that kind of delay that's helped you, not being pushed into things?" The Respondent replied: "There's - there's also sort of awareness of, I mean, which just comes with experience of the type of patient that's in front of you. And I think that also comes with - if you're - if I'm aware all the time of what I'm doing and what I'm deciding, so for example, skin cancer surgeries are high volume, sort of thing, because it's a short procedure, you can do, you know, eight to ten in a day. So I - I see those people, I see a lot more people than I would normally for abdominoplasty, for example, on one day. And I try to exercise the same sort of a mental selection process because of certain personality types and certain, you know, socioeconomic backgrounds or certain medical backgrounds that I would say, you know, if he came to me for a tummy tuck, would I - would I do that? I think that prolonged exposure to a great number of patients over a number of years gives you an ability to read the patient, which you don't have if - when you started, you just don't have that exposure to a number of people that you can say somebody comes in and you can think, like what Scott was talking about, red flags that you can think, probably, this - this is not a good candidate for cosmetic." 1. The Respondent was asked to explain an answer he had given in evidence regarding the type of supervision which could be set as a condition against his registration. The Respondent had said that if he was required to perform a specific number of body-contouring operations under supervision he may never complete that supervision. His answer was as follows: "Well, having - having restrictions on your registration has effects that go far beyond those intended consequences. So regardless of what the restriction is, I can't hold any academic positions, I can't be employed by government. I can be employed by the defence force. I can't have any job in any insurance companies. I can't - sort of, other things to do with banks and finances that are affected by conditions. But if - and I can't - most important thing is that I can't get any accreditation in a new hospital. That's regardless of what - what the condition is. So as - over the past four years, the Medical Council has gradually reduced the restrictions. I think it was some time last year, that allowed me to do abdominoplasties and liposuction under supervision. Whereas, because without misleading the public, I can't advertise for that kind of thing. I'm relying on my existing patients if somebody comes and say, "Can you do a tummy tuck?", because they already know my situation, then - then I can say yes. So in the past, I think eight or nine months since this restriction was removed, I've had two patients. I don't see that changing so if the - if - if say, you know, you have to do, say, five of each of those procedures, I don't see that ever - ever happening." 1. Dr Amjadi was asked about his prior working relationship with Dr Stern. The following exchange is recorded in the Transcript: Q. With Dr Stern, you told us that you had worked with Dr Stern before, is that right? A. Yes. He was the consultant at Concord in 2013. Q. And what did that involve? How often were you working with him in 2013? A. I think he had an operating list every - probably once a month. So I would be in the theatre when him - when he was operating. Q. And that rotation was six months with him? A. Yes. Q. So six, approximately six occasions during that time? A. Yeah. Q. Did you only see him when he came for his list? A. Yes. And then I would - I would see his patients on the ward and I would call him about their progress. Q. So he did the list once a month, his patients remained in hospital as they repaired, you supervised the repair, is that right? A. Yeah. Q. And did you report to him on everything or just if there was complications or how-- A. No, he wants to know everything. Q. So how did you do the report? A. I called him in the morning after the ward round. Q. So he does his list once a month and the patients that he operated on, how long did they stay in hospital? Was it a week? Was it mainly during the following week or was it longer? What was the-- A. Yeah. So he did mostly breast reconstruction after skin - breast cancer surgery. And so, depending on the type of reconstruction that he did, patients would stay anything between four to ten days. Q. And on most of those days, you'd be calling him at some time to report in, is that right? A. Every day." 1. The Respondent was re-examined by his senior counsel. 2. The Respondent was asked further questions about his work with Dr Stern. He said that Dr Stern was not his supervisor for that rotation at Concord Hospital, however, he said: "So the supervisor report, … each term has a supervisor and that supervisor writes his report with consultation with every consultant that I have been with, but he (Dr Stern) was not the supervisor of that term. 3. In relation to the monthly body-contouring log the Respondent confirmed that information was provided to the Medical Council by him. 4. Dr Amjadi was shown the document constituting exhibit R2. He identified that this was the document the APSP alleged he had falsely advertised he was a Fellow. The Respondent said he had passed the relevant Fellowship exams in March or April 2015. He was certified as a Fellow of the Royal Australasian College of Surgeons in August of 2016. In a letter on 15 September 2016 the ASPS alleged the Respondent had breached advertising guidelines. 5. The Respondent confirmed that the ASPS had rejected his application for membership on the basis that he was associated with the National Cosmetics and Plastic Surgery Conference in 2017. The Respondent said that his alleged association with the conference was unknown to him at that time. He made enquiries of other doctors said to be involved in the conference and they also denied any knowledge of it. The Respondent wrote to the ASPS advising he had no association or involvement with the conference. He did not hear anything further from the ASPS. 6. The Respondent was then further cross-examined by the HCCC counsel. 7. The Respondent confirmed that becoming a member of the Australian Society of Plastic Surgeons (ASPS) was important to him. By the time he was permitted to apply again in May 2019 he had conditions on his registration. He did apply for membership in July 2019 however he was not accepted. The letter did not say why he was rejected however the Respondent suspects the ASPS would not admit a practitioner with conditions on his registration. Written Evidence of Dr Paul Curtin 1. Dr Curtin had signed a reference for the Respondent which was admitted to evidence at page 5 of volume 9 of exhibit R1. 2. The reference is dated 12 October 2023. Dr Curtin first met the Respondent in January 2014 when the Respondent commenced a six-month rotation at Westmead Hospital as an advanced trainee in plastic surgery. In 2016 Dr Curtin worked with the Respondent at Auburn Hospital. They worked in a plastics surgery clinic where there were about 90 patients per week. 3. Dr Curtin observed the Respondent in the operating suite at Auburn Hospital and discussed cases with him. Dr Curtin provided a supportive reference for the Respondent setting out his professional relationship with the Respondent since 2014. He stated: "For the past seven years I have enjoyed a friendly but professional relationship with Dr Amjadi. Since resigning my public hospital appointments last year I have seen him once or twice only. I found him to be diligent, hard-working and knowledgeable in the outpatient clinic setting. He had a polite and gentle manner with patients, and never seemed to get disturbed by the difficulties and frustrations that can accompany public hospital practice. The NCAT list of 14 problem cases that Dr Amjadi accumulated in the first three years of his private practice comes as something of a surprise to me. There is no doubt cosmetic surgery of the type featured in those cases is technically challenging for the young surgeon who has just finished training. The five year accredited training program he completed usually provides a sound basis for embarking on this type of work, because the trainee inevitably encounters a wide range of surgical complications during the training program, and these always end up as the subject of considerable discussion. One learns to be careful and to be conservative when attempting anything that's unfamiliar. I have not had the opportunity of working with Dr Amjadi on any cosmetic cases similar to those found on the NCAT list, so why a thoughtful and careful person like Dr Amjadi has had so many problems is a mystery to me." Oral evidence of Dr Paul Curtin. 1. Dr Curtin was cross-examined by the HCCC. We note the following from his oral evidence. 2. The clinic work performed by the Respondent at Auburn Hospital in 2016 was largely hand surgery. He said that the Respondent did not do "a lot of" surgery at the Auburn clinic when he started there. Towards the end of his time in 2022 he was operating more regularly. 3. Dr Curtin said that he was aware that the Respondent had conditions placed on his registration in 2019 however he could not recall when he learnt of that. Dr Curtin recalled that the Respondent had brought one of his patients to see Dr Curtin for a second opinion. It was a female with a wound in the axilla. 4. The Tribunal members asked Dr Curtin some questions. He was asked: Q…you said that when you became aware of the complaints that Dr Amjadi was facing in this Tribunal, or in the, in the proceeding which was developing, you said, "a couple of the patients or complaints were a surprise to me." Why were they a surprise to you? A. Because I had formed the, an opinion about Dr Amjadi that he was a careful and cautious surgeon and the sorts of problems that were emerging in those complaints did not fit that, the picture that I had of Dr Amjadi. I, look, I, I've read the NCAT information about the complaints. There's very little detail about what the actual problems were that Dr Amjadi was dealing with and why he had these surgical failures, so I, I'm not quite sure what went wrong for him, that's, that's what I'm saying. But that's, as I said, why I was surprised because these results were very disturbing and, and all in a fairly short space of time. I, I, because you know, when one starts out in cosmetic surgery practice, after you've finished training, usually it's best to take a very conservative stance and to proceed slowly and carefully and it doesn't seem to have been what happened with Dr Amjadi. Written evidence of Dr Howard De Torres. 1. Dr De Torres provided a letter of support (dated 16 October 2023) to the Respondent which is found at page 1 of volume 9 of 13 of exhibit R1. In that letter we noted the following in particular. 2. Dr De Torres has known the Respondent since 2016. He has been provided with a copy of the HCCC Complaint document filed with the Tribunal. 3. Dr De Torres has been practising Plastic Surgery since 1978. He has conducted a practice in Sydney since 1983. In December 2018 when Dr De Torres retired, he gave his then practice to the Respondent. Dr De Torres worked with the Respondent at the Sydney private Hospital in Ashfield. He observed Dr Amjadi operate and considered his technique to be meticulous and careful. Dr Amjadi also assisted Dr De Torres on three occasions. One occasion was an abdominoplasty operation; another was a facelift and another a rhinoplasty. 4. The balance of the letter was a glowing recommendation of Dr Amjadi as a plastic surgeon and as to his personal qualities. Oral evidence of Dr De Torres. (See page 3 Trans 22/3/24). 1. Dr De Torres was cross-examined by counsel for the HCCC. 2. He had not discussed with Dr Amjadi details of the Complaint now being prosecuted in this hearing. He understood from a document he has been shown that Dr Amjadi admits a number of the complaints made against him. 3. Dr De Torres has been meeting with the Respondent for journal discussions on approximately monthly frequency for years. Other practitioners also attended. 4. In about 2016 Dr De Torres lost his practice rooms and moved in to share rooms with the Respondent. He was there until the end of December 2018 when he retired. Although he cannot remember it, Dr De Torres said he may well have assisted the Respondent with an audit of his practice in late 2018 or early 2019. In 2019 the Respondent had told Dr De Torres he was before the Medical Council for a hearing and asked if Dr De Torres would agree to be his supervisor. Dr De Torres said he agreed to do that. Written evidence of Dr Scott John Turner 1. The letter of support for Dr Amjadi, written by Dr Turner, is set out in volume 9 page 15 of exhibit R1. In that letter dated 14 February 2024 Dr Turner stated the following which we have noted in particular. 2. Dr Turner is a Specialist Plastic Surgeon. He had been provided with a copy of the HCCC Complaint document. He has known the Respondent since 2010. 3. In 2020 Dr Amjadi asked Dr Turner to become his primary supervisor. Dr Turner became the Respondents primary supervisor in April 2020. Since that time, he has had weekly contact with Dr Amjadi to discuss his progress. Dr Turner is unaware of any non-compliance by Dr Amjadi with his conditions as set by the Medical Council. 4. Dr Turner said that during the time he has known Dr Amjadi he has been receptive to feedback on his limitations and willing to learn. He has found the Respondent to be a competent and caring surgeon during the times he has assisted Dr Turner in theatres. As his supervisor, Dr Turner has discussed thoroughly a range of topics from patient selection, clinical documentation, formal consent process, surgical techniques and appropriate post-surgical care. 5. Dr Turner completed his letter with the following: "I am entirely satisfied that Dr Amjadi is aware of the limitations he possessed as a newly qualified Plastic Surgeon in performing cosmetic surgery and now has a much broader scope of knowledge and skills to offer patients a safe and effective range of cosmetic procedures if he wishes to provide those services in the future. So, I am supportive of his restrictions being removed by the Medical Council." 1. In addition to the above documentary evidence, Dr Turner had been a supervisor for the Respondent. His reports for the period April 2020 to May 2022 are contained in exhibit R1 volume 8 commencing at page 205. Additionally, later reports are contained in exhibit R18 and cover the period October 2023 to March 2024. 2. We have read the supervision reports contained in the evidence before us and we accept they show a satisfactory compliance with the conditions imposed by the Medical Council. The reports were also the subject of evidence given by Dr Sanki, which we have set out above. Oral evidence of Dr Turner (page 13 Trans 22/3/24) 1. Dr Turner was required for cross-examination. We note the following in particular from his oral evidence. 2. Dr Turner confirmed he had recently seen the Reply document filed by the Respondent in this hearing. He has also seen the lengthy statement which the Respondent tendered in this hearing. 3. Over the four-year period he has been the Respondent's supervisor he has discussed the individual cases which gave rise to the complaints. He has provided the Respondent with copies of the documents he uses in consultations. He has observed him, by assisting in operations conducted by the Respondent. During those operations Dr Turner said he discussed with the Respondent how he marks up for a procedure, how to select suitable patients for particular operations and like subjects. 4. Dr Turner has offered the Respondent the opportunity to share rooms with him. Dr Turner spoke of the common problems for young Plastic Surgeons setting up a practice. He said: "I think, you know, there's a fundamental failure in the way junior plastic surgeons transition. Pretty much, all of us finish, we set up our own shop and have to reinvent the wheel. I think, yeah, I suppose there's, you know, if people are joined and had group practices and shared knowledge it would probably - some of these things wouldn't occur." 1. In his evidence Dr Turner addressed the pitfalls which present themselves to newly qualified plastic surgeons setting up a practice and having to master all aspects of practice at once. He also spoke of the limitations on training for a plastic surgeon. He spoke of only seeing a procedure in the operation theatre. Not having any exposure to initial consultations and the manner in which established practitioners conduct those consultations or manage their practice in all of its aspects. 2. Dr Turner was asked whether the Respondent should be subject to supervision should he choose in the future to undertake body-contouring surgery with massive weight loss patients. Dr Turner said he did not think that was necessary. He said: I think "he has reflected on what's happened in the past and his processes now would be a lot more vigorous in, you know, clinical documentation and assessment of patients, in reflecting, you know, more suitable candidates. So I think, you know, if he decided to start doing those cases again, he'd be a lot more particular on who - which patients he accepted to take on. And those ones that might be difficult, he may, you know, I would - I would expect he might then refer onto a senior colleague or get a second surgeon to help out or - you know, I don't see any reason why, in the future, he couldn't competently do body contouring again." 1. In answer to a question from the Tribunal Dr Turner told us that if the conditions were removed from Dr Amjadi's registration, he was confident he would operate and practice at a standard we would accept. He further said: "I find him of good character, and you know, I have all confidence that he's learnt from this process and you know, in retrospective you look back and go, 'You know, well, I could have done things a lot better.'" 1. In further questioning from the Tribunal members, Dr Turner told us: "I think his clinical judgment is sound…So the procedures that he selected for the patients were appropriate for the patients. They're just a group of patients that notoriously have high, sort of, wound-healing problems. And in, you know, and my opinion is, if his clinical documentation and consent processes and clinical practices were all really sound and tight and any of these incidents occurred in isolation, these would be, you know, not great for patients, but non-issues. You know, any surgeon of any experience, whether it's two or three years out or 30 years out that have a high-volume body-lift practice, on a monthly basis, will be having a patient coming back with a small wound dehiscence or poor scarring and that's just part and parcel of doing post-weight-loss surgery." 1. In re-examination Dr Turner was asked about showing patients photographs of what scarring may look like after an operation. He was asked: "How many months after surgery do you think gives a fair and accurate representation as to outcome?" He said 12 months. In massive weight loss patient surgery, it could be 18 months. He agreed that photos of scarring prior to that time, may not represent a probable outcome. He said scars will look their worst at two to three months. 2. One Tribunal member asked Dr Turner: "Would you have any concerns about Dr Amjadi's ability to say no in the right circumstances at the moment?" He replied: "No". Written evidence of Dr Andre Safvat 1. Dr Safvat provided a letter of support for the Respondent. That letter is contained in exhibit R1 volume 9 page 17. In that letter we noted the following in particular. 2. The letter is dated 6 December 2023. Dr Safvat had been provided with a copy of the Application and Complaint the HCCC was pursuing against the Respondent in this Tribunal hearing. He also knew the conditions which the Medical Council had imposed against the registration of the Respondent. In 2020 the Respondent had asked Dr Safvat to become his supervisor. On 30 March 2020 Dr Safvat received confirmation from the Medical Council of his appointment as supervisor. Since then there have been at least monthly meetings between the Respondent and Dr Safvat. The Respondent has also assisted Dr Safvat with breast reduction and body contouring operations. Dr Safvat wrote a formal report for the Respondent every month. 3. Between early 2020 and October 2023 the Respondent assisted Dr Safvat with 22 breast reduction surgeries and 38 body contouring surgeries including liposuction. Those operations involved 24 massive weight loss patients. Dr Safvat also assisted the Respondent in late 2023 on three cases where he was the primary surgeon. Two of those operations were abdominoplasties and one rhinoplasty. 4. Dr Safvat opined that "Dr Amjadi has matured significantly in (the area of critical thinking and decision making) and has demonstrated that his clinical judgment on patient assessment and management has improved and is now at the level of any other plastic surgeon I have worked with. We have also discussed what are the cases that he should refuse and not operate on as well as the steps to take to minimise complications." 5. The supervision reports from Dr Safvat for the period October 2023 to March 2024 were marked as an exhibit R 16. The earlier supervision reports for May 2020 to June 2022 are contained in exhibit R1 volume 8 commencing at page 1 in that volume. We have read the supervision reports contained in the evidence before us and we accept they show a satisfactory compliance with the conditions imposed by the Medical Council. The reports were also the subject of evidence given by Dr Sanki, which we have set out above. Oral evidence of Dr Safvat 1. Dr Safvat gave oral evidence on 19 March 2024. We have noted the following in particular from his oral evidence. 2. Dr Safvat provide details of his surgeries and the appointments he holds with Hospitals. He is a Fellow of the Royal Australasian College of Surgeons. He was approved as a supervisor for the Respondent by the Medical Council of NSW. His supervision reports for October 2023 to March 2024 were tendered as exhibit R16. We have read those reports. 3. Dr Safvat was cross-examined by the HCCC counsel. 4. Dr Safvat has read the Complaint document which the HCCC moves on in this hearing. He is "vaguely aware" the Respondent had made certain admissions. When he received detail of the complaints made against the Respondent he went through those with the Respondent. 5. Dr Safvat has had the Respondent assist him in operations. The Respondent had not been present for initial consultations with Dr Safvat's patients. He had been present on the day of the operation. The Respondent has not been involved with the after care of patients except where Dr Safvat was away and the Respondent was covering for him with post operative care. 6. In his monthly meetings with the Respondent one topic that was discussed is the obtaining of informed consent. In two cases where the Respondent was the primary surgeon, Dr Safvat had asked him about the consent process and about his pre-operative assessment. Dr Safvat did not observe the consultations between the Respondent and those patients. In meetings Dr Safvat has discussed with the Respondent the need for physical examination of a patient as part of the pre-operative preparedness. 7. Dr Safvat was asked about the necessity for future supervision of the Respondent in the massive weight loss category of patients. The counsel asked Dr Safvat about the evidence Dr Sanki had given about that matter as follows: "(Dr Sanki) she has expressed an opinion that some degree of direct supervision of major weight loss body contouring surgery would be appropriate, to begin with and that some ongoing monthly meetings where there is a review of all of Dr Amjadi's patient load occurring, in her view, is appropriate, rather than him being let loose without any conditions at all. She didn't use the word let "loose". You've said possibly restrict conditions, possibly no conditions. There's quite a big gap between the two. Are you able to talk a bit more about that, based on your observations and supervision of Dr Amjadi? Dr Safvat responded: "I think Dr Sanki's opinion is not unreasonable." 1. In re-examination Dr Safat said he thought the supervision would be for a very short while and that he have a monthly review of his cases. He thought supervision for two or three months would suffice. Dr Safvat considered that direct observation of the surgery of Dr Amjadi in massive weight loss cases was not absolutely necessary. If there is to be direct supervision, then it would need to be for five or six cases ideally. Letter of support from Dr Richard Barnett 17 October 2023. 1. The letter is contained in email format and is contained in exhibit R1 volume 8 page 9. We have read the report and do not include further detail other than to note the penultimate paragraph is as follows: "I am left with the same impression that I initially gained. That is of a young surgeon with insight into his problems and who is trying to improve his skills to be able to return to practise". 1. It is to be recalled that Dr Barnett first came to know the Respondent when Dr Barnett was sitting as a delegate of the Medical Council of NSW on a section 150 hearing into the conduct of the Respondent. Letter of support from Dr Al Aly 1. Dr Aly provide a letter of support for the Respondent dated 12 October 2023. We have read that letter which advises that Dr Aly operates as a Professor of Plastic Surgery in the USA. In 2020 and 2021 the Respondent undertook a tailored program of instruction in many aspects of plastic surgery. Dr Aly concluded his letter with the following: "My impression of Dr Amjadi's character is again limited to mostly my online sessions. I think anybody who takes the time from their practice and time away from their social life to spend time dedicated to extra education is obviously interested in learning. Dr. Amjadi certainly demonstrated and eagerness to learn, was inquisitive and active in the learning process and demonstrated a good fund of knowledge in the areas of plastic surgery that we discussed…. I found no indications of any red flags that worried me during our time together" Submissions of the parties 1. The Tribunal wishes to acknowledge the assistance which it has received from the parties in the submissions which each has provided. Each submission demonstrates extensive work presented in a logical and helpful manner. The HCCC primary submission is 60 pages in length. The Respondent's submission is 137 pages. Whilst the Tribunal will not repeat the parties' submissions in full, we will refer to specific portions as we consider each submission. Submission of the HCCC 1. The HCCC commenced its submission with the following: "At the conclusion of the hearing the presiding member directed the parties to provide submissions specifically on the following matters:- (a) The weight to be given to Dr Stern's reports in light of the preliminary matter, namely the respondent's application on 11 March 2024 to exclude Dr Stern's reports, and his evidence that he had worked with Dr Amjadi (b) the extent to which particulars admitted or found proven, individually or cumulatively, are sufficient to support a finding of professional misconduct. Each of the above matters are considered later in these submissions, after the analysis of each of the Particulars to Complaint One, and of Complaint Two." 1. The HCCC then submitted that the Tribunal will be confident in reaching a finding of professional misconduct in this case because of the following: "(a.) a series of admissions from the respondent that he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law; (b) a series of partial admissions from the respondent where he admits that he has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and (c) the expert opinion evidence that the respondent engaged in conduct which fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. Before turning to make the findings in relation to the Complaint and the Particulars thereto, we will address the question of the weight to be given to the expert evidence of Dr Stern, Dr Sanki and Dr Ritz. The weight to be given to the experts' evidence 1. In the submission of the Respondent, his senior counsel provided an overview of legal principle. The submission is as follows: LEGAL PRINCIPLE: STANDARD OF PROOF 33. The Commission bears the onus of proof of each complaint in these proceedings. In Sayar v Health Care Complaints Commission [2024] NSWSC 418, Campbell J (at [95]) described this as 'so obvious as to go without saying'. 34. At the outset, it is necessary to consider what standard of proof is appropriate in these proceedings. The issue "is no mere matter of words: it is a matter of critical substance" (Rejfek v McElroy (1965) 112 CLR 517; [1965] HCA 46 at [11]). 35. Professional disciplinary proceedings are neither wholly civil nor wholly criminal in nature: they are "sui generis" (Weaver v Law Society of NSW (1979) 142 CLR 201 at 207; [1979] HCA 35 at [13]). They are unique and in a class of their own. They are often characterised as "protective" rather than "punitive". But where orders sought against the practitioner are for suspension or cancellation of his or her right to practice, such proceedings are properly characterised as penal (Chief Executive, Queensland Health v Jattan [2010] QSC 92; [2010] QCA 359, [16]). In characterising the proceedings as penal, the Queensland Supreme Court followed dicta contained in the High Court's judgment in Rich v ASIC (2004) 220 CLR 129; [2004] HCA 42. Rich, which is obviously binding on this Tribunal – and directly apposite (at [35]): That it may be possible to characterise proceedings as having a purpose of protecting the public is not determinative. And to begin the inquiry from a priori classification of proceedings as either protective or penal invites error. It invites error primarily because the classification adopted assumes mutual exclusivity of the categories chosen when they are not, and because the classification is itself unstable. To assume mutual exclusivity of the categories is to fall into the same kind of error as was identified in the constitutional context in Actors and Announcers Equity Association v Fontana Films Pty Ltd. Just as a law may bear several characters, a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted. That a proceeding may bear several characters does not deny that it bears each of those characters. 36. This Tribunal must have regard to the decision of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, and to the body of superior court authority in New South Wales in which Briginshaw has been considered and applied in professional disciplinary matters. 37. Briginshaw is longstanding authority for the proposition that in civil proceedings, where proof of a fact is required on the balance of probabilities, "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality." (per Dixon J at 352-3). Dixon J, who delivered the seminal judgment, continued: But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (emphasis added) 38. The highlighted portions of the passage above are to emphasise that in this case, the Commission alleges both professional misconduct and incompetence generally (Complaint Three and Four). If either of those Complaints were proved the orders available to this Tribunal include cancellation of Dr Amjadi's registration with a non-review period. Namely, the consequences could not be more severe. The Tribunal has the power to take away Dr Amjadi's livelihood. The consequences are to remove a fully trained Fellow of the Royal Australasian College of Surgeons from practise and service to the community. The onus of proof on the Commission, in those circumstances, are substantial. 39. It is precisely for these reasons that Rich J in the decision of Briginshaw observed: 'The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion'. 40. There is Full Court authority in New South Wales for the proposition that the standard of proof to be applied in medical disciplinary proceedings is either "reasonable satisfaction" or "comfortable satisfaction". Furthermore, and critically for present purposes, one of those authorities, Re Anderson and the Medical Practitioners Act (1967) 85 WN (NSW) 558, stands explicitly for the proposition that the "reasonable satisfaction" test involves, in professional disciplinary proceedings, the application of a third, intermediate standard of proof. In Re Anderson, Asprey JA said at 587: Where there is any question of misconduct in a professional sense, that should not be regarded as established on a mere balance of probabilities. 41. In Re Evatt; Ex Parte NSW Bar Association (1967) 67 SR (NSW) 236, the Full Court (at 238) expressed the legal position this way: Reference in the authorities to the clarity of the proof required when so serious a matter as the misconduct (as here alleged) of a member of the Bar is to be found, is an acknowledgement that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. 42. For all these reasons, the position pertaining to the Tribunal in these proceedings is best stated by J.R.S. Forbes in his authoritative textbook Justice in Tribunals (2019), where he advances the following proposition: [C]learly the standard of proof in a tribunal dealing with a serious matter should be higher than a mere balance of probabilities. … In practice "reasonable satisfaction" is a variable standard that rises as issues become more serious, the consequences of an adverse finding more onerous, and allegations inherently less probable. 43. In short, the Tribunal in these proceedings must, at a minimum: a. bear in mind that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the allegation to be proved. 1. We have had regard to the content of the above submission in the determination of this proceeding. Weight to be given to the evidence of Dr Stern, Dr Sanki and Dr Ritz. 1. As set out earlier, their remains an issue as to the weight the Tribunal might give to the evidence of Dr Stern. 2. In this judgment we have set out a significant volume of evidence which is relevant to this determination of weight. 3. Each of the parties have provided written submission in relation to the evidence of Dr Stern and the weight to be given to it. 4. The HCCC addressed the issue of weight in its' submission in reply. In that submission we note in particular the following. 5. The HCCC submitted that the Respondent's submissions in relation to the Tribunal refusing to give weight to the evidence of Dr Stern should fail. It submits that the Respondent should not be accepted as an expert in this hearing. 6. The HCCC included an extract from the transcript of Dr Stern's oral evidence stating: "the exchange between Counsel for the respondent and Dr Stern reveals a robust defence to the allegations against him and a sound understanding of his impartiality." 1. The extract is as follows: 14 March 2024 Q. Last week you signed a supplementary statement, Dr Stern. A. Yes. Q. Isn't it the case that you adopt the expert code of conduct in each and every one of your six reports? A. Certainly, I do. Q. And when you adopt it, in your mind, what is it that you're adopting? A. I am adopting the role of trying to provide whatever knowledge, and understanding, and interpretation, that my professional expertise can bring around a particular matter, and that I should bring those - that understanding to the Court, and it should be in an impartial way, as if I were an oral textbook, who is just providing an opinion or knowledge to help the Court. Q. In terms of the requirement for impartiality, did you turn your mind to the issue, or the connection between, impartiality being best served by complying with the earlier guideline, namely, not discussing the issue of-- Q. Do you see any relationship between being able to conduct yourself impartially, and not discussing a colleague in an identified manner with others? A. Yes. Can I answer that question as more than a yes? PRINCIPAL MEMBER LE POER TRENCH: You'll probably have some more questions about it. Q. What would you like to add, Dr Stern? A. I have the impression that your line of questioning is trying to suggest that I have been loose with, and breaching, confidentiality, in speaking with people such as Dr Papadopoulos and Dr Hussain, and I would just like to state that, on both of those occasions, I rang those particular doctors, I asked one question of each of them, without discussing anything about patients' identifying details. I didn't mention the HCCC. I asked one question, of each of those doctors, which pertained to the submitted CV of training that was contained within the HCCC's papers. I asked only, "did Dr Amjadi work for you, at Macquarie University Hospital, doing body contouring procedures.?" That was the one question for each doctor. Q. Do you see the danger there, Dr Stern, in then being put forward as an independent impartial peer reviewer, namely, that as a result of those conversations, it would be fair to say, wouldn't it, that your mind has been contaminated, with respect to information extraneous to the materials supplied to you by the Commission. OBJECTION. FORM. QUESTION NOT PRESSED. Q. I'll put it as, do you agree or disagree? A. That-- Q. Your mind is contaminated. A. No. I think that I'm fairly capable of impartiality in examining clinical material. I'm also capable of looking at other factual, or supposedly factual, documents, and identifying problems with them, and that the clarification of those documents does not have to have anything to with evaluation of clinical circumstances. So, no, I don't think that I have been, or had been at the time, in any way polluted or contaminated, in my capacity to be impartial about the evaluation of clinical circumstances. (emphasis added) Q. Do you still maintain that it was a significant departure? I appreciate that it may not be best practice or ideal practice, but a significant departure? A. It's a significant departure in as much as I have never heard of any other surgeon in my gossip network ever having done that as a way of looking after it. So to me, that's a significant departure. Q. But as a peer review expert of impartiality-- (emphasis added) A. Yes. Q. We don't rely on gossip, do we, Dr Stern? A. We don't rely on gossip, but we live in a very small world. So we live in a very small pool in Sydney, and so we hear about things that happen elsewhere to our colleagues, and how they responded to them. We hear about things like that, and we actually learn from them, as well as gossip about them. But the - the reality is that I have never heard of any other surgeon transferring a patient with open wounds from being in one hospital to another. Q. Just in terms of the gossipy world of surgeons, it's fair to say, isn't it, that you had heard gossip of Dr Amjadi before you were asked to write reports in relation to him by the HCCC? Namely, revision surgery of his patients. A. My - the main thing - yes, I had heard of complications. I work at Royal Prince Alfred Hospital, which is the closest training teaching hospital to hospitals where Dr Amjadi has worked, and so if a - if a complication under the care of a plastic surgeon elsewhere comes into the hospital, the admitting team will always ask us to be around in case they don't understand something about the surgery that's been done. And so, we'll just know about it. 1. The HCCC submitted: "Plainly, there is very little by way of challenge to Dr Stern's impartiality in any of the extracted transcript." 1. The HCCC challenged the attack on Dr Stern's impartiality arising from his embarking on an investigation in relation to the Respondent's stated training. The submission is: "The respondent continues the challenge to Dr Stern's integrity by alleging that Dr Stern had undertaken "an investigation"1 of the respondent before preparing his expert reports. Dr Stern was clear that he had received a set of factual assumptions from the applicant as part of his instructions to prepare his expert reports [1] and that within those assumptions are notes that the respondent gained experience with Dr Tim Papadopolous and Dr Gazi Hussain "to whom he was attached at Macquarie Hospital". [2] The allegation of an "investigation", and the subtext that Dr Stern was on a personal mission to undo the respondent, is not borne out." 1. Continuing on with the submission relating to the alleged "investigation" undertaken by Dr Stern the HCCC submitted: "Dr Stern did not conduct "an investigation". The applicant rejects that Dr Stern's conduct in this regard was in any way improper for the following reasons: (a) First, Dr Stern, having identified anomalies in the respondent's training as set out in the Factual Assumptions, did not simply pick up the phone and start making enquiries outside the scope of his retainer. Instead, he properly sought the guidance of the applicant, and followed that guidance by supplying the information in a separate letter. Dr Stern sought permission from the applicant to approach both doctors. [3] (b) Second, Dr Stern contacted the doctors and asked them one question: "was Dr Amjadi training with you at Macquarie University Hospital". [4] Dr Stern made enquiries about the respondent's training in the most discrete manner possible, and without adverting to the complaints against Dr Amjadi, his retainer to provide expert evidence about those complaints, or disclosing the identity of any complainants or any other information that was available to him only through the retainer. Under repeated cross-examination Dr Stern was clear and consistently maintained that he asked Dr Hussain and Dr Papadopolous a single question. [5] (c) Third, Dr Stern's question to Drs Hussain and Papadopolous was prompted by the fact that he understood the training system better than the applicant who had supplied the factual assumptions. In relation to Dr Stern's evidence cited at paragraph 50 of the Respondent's Submissions, the evidence was immediately followed by this exchange:- Q. What do you mean by that? A. I was a supervisor of surgical training in New South Wales for 14 years. I was chairman of the Board of Plastic and Reconstructive Surgery, for the Royal Australasian College of Surgeons, which is the body which is in charge of plastic surgical training in Australia. On the basis of that knowledge, I was looking at the statements about training, and I recognised the inconsistencies about them. I didn't believe that someone who didn't live in that world was actually going to see those inconsistencies. They were going to accept it on its face value, and that bothered me. (d) Fourth, at the direction and suggestion of the applicant, Dr Stern committed his findings to a separate letter. It is of note that the quote at paragraph 53 of the Respondent's Submissions has italicised words that are not italicised in the transcript. The respondent's evident intention is to suggest that the direction to Dr Stern to put this information in a separate document was not only inherently wrong, but that Dr Stern was a willing participant in the wrongdoing. This is plainly a mischaracterisation at best. (e) Fifth, the applicant itself disclosed the Dr Stern's letter to the respondent; it certainly did not use it in the prosecution of the complaint. 1. The HCCC responded to the submission of the Respondent that Dr Stern had referred to a "gossip network" among the small number of plastic surgeons working in NSW. It submitted: "The Tribunal is entitled to reject the submission that Dr Stern's views are inaptly influenced by a "gossip network". Where the size of the medical specialist cohort is small – as here – the chance that an expert retained by the applicant has pre-existing knowledge of a health practitioner the subject of one or more complaints is increased. This was also the case here. The fact that an expert has pre-existing knowledge of a colleague, even adverse pre-existing knowledge of a colleague, does not have the effect of automatically rendering an expert impartial or of impugning that expert's ability to provide expert opinion about the conduct of that colleague. To the extent that more than the simple fact of prior knowledge is needed to establish a lack of impartiality, the respondent has come nowhere near to establishing same." 1. In relation to the submission that Dr Stern had been influenced in his report by a conclusion he had reached that the Respondent was a dishonest historian, the HCCC submitted: "Dr Stern agreed with Counsel for the respondent that he had "an impression that Dr Amjadi was not an honest historian with respect to his training, expertise and supervision", [6] but did not accept that such an impression "runs the danger of infecting your opinion overall about his conduct?". [7] Dr Stern's evidence was that: [8] He denied that his mind was contaminated; He stated that he was "fairly capable of impartiality in examining clinical material"; He was also capable of identifying problems with other factual documents and clarifying them without affecting the evaluation of clinical circumstances; He viewed his role being based mainly on the behaviour that was displayed in the clinical records; and His evaluation of the clinical material was based on the behaviour which was actually displayed in the clinical material itself. It is not axiomatic that Dr Stern forming an adverse view about the veracity of the respondent's asserted training history affects Dr Stern's expert opinion about the respondent's clinical skills. It is not available to the respondent to make that submission in circumstances where any limited attempt by the respondent to cross-examine Dr Stern in this regard was not accepted by the witness, and no other basis has been established. The respondent simply has not made out the contention that the opinions expressed by Dr Stern of the respondent's clinical skills had been wrongly influenced by the so-called contamination of his mind by information prejudicial to the respondent." 1. The HCCC then answers the Respondent's challenges to the evidence of Dr Stern on the basis that the evidence of Dr Ritz is to be preferred. It submitted: "The fact that another expert may use a different or alternative basis to reach their opinion does not create a standard methodology to which all experts must adhere. The fact that guidelines existed as to the number of consultations which were required does not invalidate Dr Stern's opinion that the regular and standard practice in his area was to carry out two consultations." 1. The Respondent's submission in relation to the position/view of Dr Stern in relation to meta-analysis publications was also challenged by the HCCC. It submitted: "Dr Stern's opinion on meta-analysis was given in cross-examination where he took the time to explain the shortcomings in the use of such studies. [9] Dr Stern choosing not to use such studies as basis for his opinion does not undermine his opinions." 1. The HCCC took issue with the submission of the Respondent which sought to define the words "significantly below". It submitted: "Further in paragraph 178, the respondent's suggestion that the Tribunal adopts a meaning for "significantly below" that accords with English law, being "incompetence or negligence of a high degree", must be rejected. 2. Dr Stern gave his opinion as to where the respondent fell below the standard based upon his unchallenged expertise in the field of plastic surgery and his three decades of experience in training and practising in the field. The Tribunal has no basis upon which to reject Dr Stern's findings, particularly in the absence of evidence to the contrary from the respondent's own expert. It is not available to the respondent to fix the deficiencies in his own expert evidence and seek to challenge Dr Stern's evidence by way of pure submission which lacks an evidentiary basis and where the source of the evidence is hearsay. 3. Some of the HCCC submissions in Reply we consider address matters which are best addressed by us in Stage 2. The Respondent's submission 1. The Respondent submits: "It is the respondent's primary position that the evidence of Dr Stern should be approached with extreme caution for two primary reasons- first, questions regarding his integrity and secondly, his idiosyncratic approach to assessing 'standards of care'. Turning to the first, prior to the substantive hearing of this matter, the respondent made an application to exclude the reports of Dr Stern in relation to Patients A-F. This application was on the basis that Dr Stern breached his obligations of confidentiality, displayed a lack of impartiality in his reports, and, subsequent to being engaged by the Commission and giving adverse opinions against the conduct of the respondent regarding multiple patients, Dr Stern provided an advice to the respondent's legal representatives in a different jurisdiction, in circumstances where he failed to disclose his prior engagement by the Commission. The Respondent's objection was not upheld, and the reports of Dr Stern were admitted and the above issues of lack of impartiality were ventilated in the substantive hearing before the full Tribunal." 1. In response to the submission by the HCCC that some of the opinions of Dr Stern were not specifically challenged, the Respondent submits such a submission overlooks the application of the Respondent to exclude all of his evidence and because of that the Tribunal should understand that the whole of his evidence is under challenge. 2. At real issue in the hearing was the reason why Dr Stern made independent enquiries of other plastic surgeons known to him. One area of enquiry related to the history of Dr Amjadi's training which the HCCC asked Dr Stern to assume was correct. In relation to that enquiry the Respondent submitted: "The fact that Dr Stern asserts that he made his independent enquiries with permission from the Commission obfuscates the real issue for consideration as to Dr Sterns conduct contrary to the express terms of the confidentiality agreement – namely why? Why was Dr Stern so 'invested' to make his own independent enquiries? Dr Stern gave evidence that he made the enquiries as he believed that the respondent was not honest as to his training and experience.43 Dr Stern acknowledged under cross-examination that the respondent had never said in the sec 150 proceedings that he had trained with Dr Papadopoulos at Macquarie University Hospital and that he simply accepted the factual assumptions and only 'flicked through' Dr Amjadi's evidence before the section 150 delegates." 1. The Respondent submitted: "When Dr Stern called Dr Hussain, Dr Papadopoulus and Dr Sandroussi the overwhelming inference is that he knew well that there was a very real possibility that the 'gossip network' that he gives evidence of, would come into play and he would receive 'intel' outside the terms of his letter of engagement. Dr Stern presented as indifferent to that real potentiality. Dr Stern gave evidence that after speaking to Dr Hussain and Dr Papadopoulos, he was left with an impression that the respondent was not an honest historian regarding his training, expertise and supervision.48 However he denied that this view ran the danger of infecting his opinion overall about the respondent's conduct." 1. As a consequence of the investigation conducted by Dr Stern the Respondent submitted: "By undertaking his own investigations on prejudicial matters irrelevant to his report, Dr Stern clearly did not behave as an independent expert witness. It is not possible to accept his assertions that the information he obtained because of his investigations did not influence his opinions – especially in light of his own admission that his investigations led him to form the view the respondent was being dishonest about his training." 1. The Respondent made a submission in relation to what he said was an apparent "idiosyncratic approach" to what was an acceptable standard for practitioners. The Respondent provided this example: "For example, in support of one of his conclusions in respect of Patient B, he referred to the practices of his 'gossip network' in determining an acceptable standard for the transfer of the patient." The Respondent said Dr Stern also had a view of meta-analysis publications which was different to that of the HCCC expert Dr. Sanki. The Respondent submitted: "He didn't accept the reliability of a meta-analysis of complication rates of body contouring surgery in post-bariatric patients.54 Instead, he stated that his personal approach was to attend meetings and find out names of surgeons who 'other surgeons were speaking of respectfully', then to 'purchase every book I could find that was actually published by one of those two or three respected individuals and made a point of attending meetings where they were presenting'." 2. The Respondent further submitted: "It is submitted that Dr Stern's opinion of a 'reasonable standard' is different to what that standard actually was at the time of the procedures. For example, Dr Stern was asked in cross-examination about the Medical Board of Australia guideline for cosmetic surgical procedures that was in place at the time of Patient A's surgery. "57…This guideline requires a seven day cooling off period between a patient's first consultation and their surgery, but does not require a second consultation to be held. 58 However, Dr Stern disagreed that a practitioner's standards should be assessed against the guidelines in place at the relevant time. 59 Instead, he stated that it was the 'regularly carried out practice' at the time to hold two consultations. 60 He conceded, however, that the consequence of this was that there are two different messages being sent to the profession. 61 In relation to guidelines, Dr Ritz's expert opinion was clear, namely "I don't think we take them lightly. I think these are Medical Board, I, look, maybe I misunderstand the distinction but certainly for me they are rules that we follow……... I follow them religiously because I believe that, you know, that the way we have to do things today." 1. In relation to the standard to which Dr Stern was to make his opinion the Respondent submitted: "Dr Stern was asked by the Tribunal whether 'the standard you apply might be too high?' 70 Dr Stern responded that in determining whether something was below or significantly below standard, he considered 'how much that deviation impacted on the patient's final outcome, how much it necessitated reoperation….if it meant they needed to have further surgery that was difficult…then I thought that was significantly below.' 71 The problem with this approach is that it judges the standard of conduct by its effect, not by whether the action itself was deficient. Further, the extensive body of literature attached to these submissions (Annexure A) makes plain that revision surgery or 'reoperation' is an expected outcome/complication in body contouring of massive weight loss patients. Although Dr Stern dismisses metanalyses as a useful tool, the profession has not dismissed such reviews and in fact the reviews are routinely published in peer reviewed journals of repute." The Tribunal's decision on the weight to be given to Dr Stern's evidence. 1. Dr Stern presented as a confident and proud expert witness. He agreed he would be regarded as a leader in his field of medicine. He has clearly been sought out by the HCCC as an expert witness whose credentials could not be reasonably challenged. He told the Tribunal of his experience as an expert witness in the area of civil litigation. That experience, which we understand to be extensive, had never involved his being required to be examined in a court or tribunal, on the content of an expert opinion he had provided. 2. Although having been very aware of the requirements of an expert witness in the Tribunal in the preparation of a report and in the giving of an opinion, he did not appear to understand how much the Tribunal relies upon the impartial expert evidence he provides. An example of that lack of apparent understanding is seen in his conduct in contacting other specialist plastic surgeons in an investigation of his own, which was provoked by a concern the Respondent was either mistakenly inaccurately representing the history of his involvement/tuition as a trainee plastic surgeon at Macquarie University Hospital or he was being deliberately deceptive. In that case he contacted Dr Hussain and also Dr Papadopoulos. Before doing so he contacted an officer in the HCCC office and sought permission, having stated the reason he wanted to contact those other plastic surgeons. We address that matter further hereafter. 3. Further, Dr Stern spoke to Dr Sandroussi, a surgeon who had operated on one of the Respondent's patients, following a procedure he had undertaken with the Respondent, in order to ascertain if the operation performed by Dr Sandroussi was to repair damage occasioned at the hands of the Respondent during his operation on the patient. 4. In both instances, Dr Stern was aware the conduct he was about to undertake, was not specifically required by the HCCC in its' engagement of him to write the report. As such he contacted the HCCC officer with whom he had been corresponding to seek permission. In relation to his request to contact Dr Sandroussi he was given permission to contact and asked to set out the detail of the contact in his report to the HCCC. He did that. 5. In the case of his request to contact Dr Hussain and Dr Papadopoulos, he was given permission to contact both those colleagues, however, he was told not to include detail of the contact or the information obtained in the report, rather he was to provide that in a separate document to the HCCC. That is what he did. 6. What is surprising to us is that Dr Stern did not apparently question why that last direction had been made. That is particularly so in the circumstance that it was contrary to the HCCC Expert Guidelines which Dr Stern was well acquainted with. It should have suggested to him that there might be something irregular, underhanded or simply unfair to the Respondent, about such an approach. However, it did not. 7. Dr Stern was cross-examined about his conversations with Dr Hussain and Dr Papadopoulos. His response to the probe into those conversations was: "I have the impression that your line of questioning is trying to suggest that I have been loose with, and breaching, confidentiality, in speaking with people such as Dr Papadopoulos and Dr Hussain, and I would just like to state that, on both of those occasions, I rang those particular doctors, I asked one question of each of them, without discussing anything about patients' identifying details. I didn't mention the HCCC. I asked one question, of each of those doctors, which pertained to the submitted CV of training that was contained within the HCCC's papers. I asked only, "Did Dr Amjadi work for you, at Macquarie University Hospital, doing body contouring procedures.?" That was the one question for each doctor." When checked on that answer, Dr Stern said he was "absolutely certain" that evidence was accurate. 8. We have set out at length, in this judgment, evidence from Dr Stern about his conversation with each of Dr Hussain and Dr Papadopoulos. He told us of additional information which each of those practitioners provided him with. He denied that the information may have or did contaminate his mind so that it interfered with his role as an "independent impartial peer reviewer". 9. The evidence about the Respondent's training established that the factual assumptions investigated by Dr Stern were incorrect. The HCCC properly informed the Tribunal that it was no part of the case it brings against the Respondent that he had been untruthful about his training and placements. 10. At the conclusion of the cross-examination of Dr Stern about his investigation the following was put and answered by him. "Q. It's fair to say, isn't it, Dr Stern, that after you made your phone calls you were left with an impression that Dr Amjadi was not an honest historian with respect to his training, expertise and supervision? A. Yes, that's fair. Q. It would be fair to say, wouldn't it, that when you form a view that a practitioner may not be honest it runs the danger of infecting your opinion overall about his conduct? A. No, I don't accept that. The - just a yes/no answer or a paragraph? Q. Why? Why do you not accept that as a fair proposition? A. Because I take my role in providing an expert report as being based mainly on the behaviour that is displayed in the clinical records of the case that I'm being asked to look at. I'm sure that there are some people who have significant deficiencies in their training, but they manage with surgical skills to actually carry out certain procedures very well, and I may never actually see their records. So the training is one aspect of what I'm looking at, and that was why I raise it as a separate question with the HCCC. But I think that my evaluation of the clinical material which was supplied to me was based on the - the behaviour which was actually displayed in that material." 1. Dr Stern also stated that had he been provided with the accurate information about the Respondent's training whilst at Macquarie University Hospital, he would still have contacted Dr Steve Merten. It was then put: "Q. But what you wouldn't have been left with is an impression that there was some degree of dishonesty by Dr Amjadi in his description as to his training, placement or supervisor? A. If - had I rung Steve Merten and Steve Merten said he was in my theatre all the time, then yes. That would have changed my view completely." 1. The outcome of his enquiry with Dr Hussain and Dr Papadopoulos was, we are satisfied, that Dr Stern understood or held a belief that Dr Amjadi had misrepresented an aspect of his training. That is, it raised a concern about Dr Amjadi's honesty and integrity. Had that excursion by Dr Stern into verifying or otherwise the training history of the Respondent, which the HCCC had asked him to presume was accurate, not been revealed during the hearing before us, a personal view which Dr Stern may have held about the integrity of Dr Amjadi, would not have been disclosed. Nor would Dr Stern have been provided with the evidence to demonstrate any such opinion, held by him, about Dr Amjadi's honesty and integrity, was entirely misplaced. 2. We make clear here we are satisfied the Respondent had not misrepresented his training whilst attached to the Macquarie University Hospital. However, Dr Stern did not know that until the hearing before us. 3. We have formed the view that Dr Stern did not deliberately engage in any conduct which he considered irregular in relation to the task he undertook as an expert witness engaged for this proceeding. He ought to have known, as an experienced expert witness, that engaging in his own investigation had the potential to lead him into forming a view of the Respondent which may have been wrong and which then may have coloured the real work he had been engaged to perform as an expert. 4. We also have a concern about the view Dr Stern expressed that he was complying with the confidentiality requirements of an expert witness. Dr Stern told us of the small and close-knit circle of plastic surgeons in. NSW. As such, for him to think that either Dr Papadopoulos and/or Dr Hussain would have no idea why Dr Stern would be enquiring about the training g history of the Respondent without Dr Stern telling them the reason for his enquiry, was, we think, naïve. 5. In his oral evidence Dr Stern was asked about the complication rate disclosed in the spread sheet drawn from the Respondents logbooks and stating his complication rate. Dr Stern was told the figures in the document were for both major and minor complications. Dr Stern said: "One would hope that even in major weight loss patients that you're averaging 10% or less complication rates, including everything." We refer to that evidence because it appears to us to be in contrast to the evidence of Dr Sanki as to the complication rates experienced with massive weight loss patients. The fact that Dr Stern sees as standard a significantly lower complication rate to that of Dr Sanki and the articles and publications she was taken to, raises a concern that Dr Stern was not providing his expert opinions which had regard to the "level of training or experience" which the Respondent had at the time of the procedures the subject of the Complaints before us. 6. Dr Stern was challenged about his stated: "One would hope that even in major weight loss patients that you're averaging 10% or less complication rates, including everything." He was taken to a published journal article which showed a far greater complication rate to that he stated was expected. In response to that evidence he said: "Well, my response to that is that if I had 96 complications in 80 patients in my practice in Sydney I wouldn't have much of a practice. That's - that's a lot. So I - I accept this is a published article and this is their - they've, you know, ordered themselves well. But that's not my experience of major weight loss body contouring surgery in Australia." 7. Again, when taken to a study (exhibit R7) of 561 articles and 25 studies which showed an overall weighted rate of post-bariatric body contouring surgical complications in all studies was 31.5%, Dr Stern dismissed the relevance of that document because it was a "meta-study". We note the contrast in the approach of Dr Sanki to information contained in meta studies. 8. Dr Stern was asked about the relevance of applicable guidelines to the assessment of a standard for the Respondent to be assessed against when giving his expert opinion. He disagreed with the proposition that it was fair to the Respondent to judge his conduct against the guidelines in place at the time of the procedures undertaken. He did however, at least partially change his view about the guidelines in subsequent evidence he gave. There he described himself as a "picky surgeon" when answering questions about the guidelines set for plastic surgeons by the Medical Board of Australia and the requirement for face to face consultations. Following that self-description, he was asked: "Q. When the Tribunal comes to assess standards, and the standards of Dr Amjadi's care and treatment of patients, wouldn't it be fair to say that a reliable reference source is the guidelines and caution should be exercised with the perfect, picky, eminent surgeon's opinion ruling the day? A. I think that it's very reasonable to use the guideline. I think that anyone, picky surgeon or not, should view what you can achieve on Skype as opposed to what you can achieve face-to-face because that's a statement of the obvious." 1. To the surprise of the Tribunal, during the cross-examination of the Respondent, the Tribunal was informed that the Respondent had been Dr Stern's registrar for a period of six months, during 2013 at Concord Hospital. That evidence was not the subject of objection nor challenge. Dr Stern had not informed the Tribunal, or so far as the evidence discloses, the HCCC that he had that historical and possibly relevant connection with the Respondent. In the cross-examination of Dr Stern that relationship was not traversed. The question remains what, if anything, is the significance of that evidence in relation to the weight which the Tribunal should or may give to Dr Stern's evidence. 2. At page 50 of Transcript of 22 March 2024 the Respondent answered some questions about his working with Dr Stern whilst a Registrar at Concord Hospital, where Dr Stern was a VMO and undertook a surgical list once per month. The Respondent was at Concord Hospital for a six-month rotation as part of his advanced training (in 2013) and observed Dr Stern operating and then supervised the care of his patients post operatively. That involved him reporting by phone to Dr Stern each morning whilst Dr Stern's patients remained in hospital recovering. 3. Although it may seem unusual that Dr Stern did not raise that contact in his reports or his oral evidence, we have assumed he had not remembered the events. It was not put to Dr Stern that he had worked with the Respondent at Concord Hospital and so we do not know what his response to such would have been. In any event we draw no adverse conclusion in relation to the failure of Dr Stern to disclose his earlier working relationship with the Respondent. Most importantly, the evidence from the Respondent does not suggest that he assisted in operations conducted by Dr Stern or alternatively that Dr Stern had observed the Respondent's surgical skill, or otherwise, in any circumstance prior to Dr Stern being engaged to undertake a report for the HCCC in this proceeding. 4. We have been able to read and hear the evidence of three expert witnesses in this matter. Those witnesses were engaged by the parties to provide expert reports and give evidence before the Tribunal. We have also heard the evidence of other Plastic Surgeons who have been supervisors of the Respondent since 2020 or otherwise have given evidence in support of the Respondent. We have therefore had the opportunity to consider the content of that evidence and the manner in which those experts gave oral evidence. 5. In relation to the evidence of Dr Stern we have had evidence which differed at times to the expert evidence of Dr Ritz. We have also had the benefit of seeing the manner in which Dr Sanki gave her oral evidence. We have been able to observe the ability of each of those witnesses to make concessions, or otherwise, where it was reasonable for them to have made concessions. We have concluded that there were occasions where we considered it was reasonable for Dr Stern to make a concession sought of him and he failed to do so. On one occasion although he refused to make the concession sought, he did eventually do so. 6. All of the above has led us to the following conclusion in relation to the weight to be applied to the evidence of Dr Stern. 7. The expert witnesses, Dr Stern and Dr Ritz were required to give their opinions on the conduct of the Respondent as prescribed by s 139B(1)(a) of the National Law. That required an opinion as to whether the particular conduct of the Respondent being addressed in the report was "conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 8. The evidence before us has many references to the evidence of the expert witnesses addressing the circumstances where they opined the Respondent should have called upon the advice or assistance of a "more experienced practitioner" in relation to a particular procedure he conducted with one of the relevant patients, or where advice was required in relation to one aspect of the procedure proposed to be undertaken. Clearly that suggests the Respondent was, at the time of the procedures he performed on the patients the subject of this Complaint, not a practitioner of an equivalent level of training or experience as the experts called to give evidence in this proceeding. It is therefore not appropriate, helpful or fair, in those circumstances to judge his conduct on that same level. 9. We have concerns that the standard or level of conduct which the Respondent was required to have at the times of each procedure the subject of these complaints, in the period between 2017 and 2019, was applied by Dr Stern at too high a level and in fact at a standard which he applied to himself at the time of writing his report and in giving his oral evidence. 10. In relation to the evidence of both Dr Sanki and Dr Risk we do not hold such a concern. 11. What flows from our view of Dr Stern's evidence is that we may at times, in this judgment and when making the necessary findings, prefer the evidence of Dr Ritz and/or Dr Sanki to that of Dr Stern. We do not conclude that no weight should be given to the entirety of Dr Stern's evidence. Indeed, as the HCCC points out, the Respondent has relied upon some of his evidence to re-enforce a point he is making. There will be findings we make where we have accepted the evidence of Dr Stern. The evidence of Dr Ritz. 1. Although in some instances we were left not knowing exactly whether Dr Ritz was opining that the Respondent's conduct was either below or significantly below the standard applicable to the Respondent, we considered he had a better feel for the standard at which the conduct of the Respondent should be assessed for the purpose of this proceeding. We found him a reliable witness. The evidence of Dr Sanki 1. Dr Sanki presented as a very knowledgeable and forthright witness. We were very impressed with her evidence. She was able to make concessions where properly called for and we find gave a balanced opinion. She did not present as having any ill will towards the Respondent and showed sympathy for the some of the circumstances he found himself in during the relevant period. She thought he would have benefited had he been accepted as a member of the Australian Society of Plastic Surgeons. She modified her view of the Respondent's competence as a plastic surgeon between the 2018/2019 period and the date of the hearing. The Findings 1. In the findings we are required to make, we are either finding the HCCC has established a fact or a Particular or it has failed to establish the conduct Particularised was conduct of the Respondent that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine which is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or expertise. 2. When we make a finding which describes the Respondent's conduct being below or significantly below the standard expected, it is an abbreviation of the words set out in the preceding paragraph. 3. Further, in these findings we may determine to apply less weight to the expert opinions relied upon by each of the parties. Where we do so, we have had regard to the decisions we have made when we considered the weight to be given to the opinion of Dr Stern, Dr Sanki and Dr Ritz. 4. The HCCC provided a submission, as directed by the Tribunal, dated 30 June 2024. The Respondent provided his submission, as directed, and that was dated 2 August 2024. It is these two submissions, which are principally addressed, hereafter. 5. The HCCC provided a Submission in Reply, as directed by the Tribunal which is dated 30 August 2024. We have referred to that submission hereafter where we have considered the points raised are of significance and have not been addressed earlier or considered by us as part of our own findings. Without wishing to be critical of the HCCC, we have not addressed submissions which we considered unnecessary to address because they state the obvious, are argumentative or otherwise do not need to be addressed. 6. The submission of 30 August 2024 largely addresses the attack made by the Respondent on the weight to be applied by the Tribunal to the evidence of Dr Stern. We have addressed the question of the weight to be applied to Dr Stern's evidence in a separate portion of this judgment. Complaint One: Is the Respondent guilty of unsatisfactory professional conduct under s. 139B(1)(a)? Complaint One Particular 1 1. The Particular is: "Between February 2017 and 27 August 2019, the practitioner failed to obtain informed consent from Patients B, D and E in relation to the surgeries as set out in Schedule B to the Complaint in circumstances where the practitioner did not outline specific risks associated with each of the patient's surgery." (Schedule B, to the amended Complaint lists the particular surgeries to which the Particular 1 relates.) 1. The Respondent's Amended Reply (exhibit R19) in relation to Particular 1 stated: I admit that I am guilty of unsatisfactory professional conduct in relation to some aspects of my patient care namely: Patient B – consent and pre-operative care as alleged in Complaint One Particular 1. 1. In answer to Particular 1 to Complaint One: a. In relation to Patients B, D and E regarding surgeries set out in Schedule B to the Complaint I admit that my consent process was deficient in some respects in relation to Patient B and was significantly below the standards expected. b. I admit that my consent process was deficient in some respects in relation to Patient D and Patient E but below rather than significantly below the standards expected. Tribunal finding on Particular 1 Patient B 1. We are satisfied on the evidence of the Respondent, Dr Stern and Dr Ritz that the HCCC has established Particular 1 in relation to Patient B. We find the Respondent failed to obtain informed consent from Patient B in relation to the surgeries set out in Schedule B to the HCCC Complaint. This is not a finding that the Respondent failed to obtain any consent, rather it is a finding that he failed to do sufficient to satisfy us the consent given by Patient B was "informed consent". Part of the opinion provided by Dr Stern emphasised the inadequacy of the record keeping of the Respondent. That inhibited the ability of Dr Stern to be able to see what information the Respondent had provided to Patient B before each surgery and what opportunity Patient B had to ask questions of the Respondent together with the oral information the Respondent gave to Patient B about the proposed operation. The Respondent's conduct was significantly below the expected standard applicable to him. Further, it is to be remembered that in Schedule B to the Complaint One, there were two occasions on which the Respondent was required to obtain informed consent and his admission and our finding of conduct significantly below the expected standard applicable to the Respondent at that time, applies to each occasion. Patient D 1. The Respondent does not admit he failed to obtain informed consent for the operations performed on Patient D, as listed in Schedule B to the Complaint, in a manner which is significantly below the expected standard. 2. The evidence of Dr Stern is that there is no detail recorded regarding the Respondents explanations to the patient of the planned surgery nor of the potential complications. It was thus impossible to determine whether informed consent was obtained. 3. Dr Ritz said: In relation to the Respondent obtaining informed consent from Patient D, "there is evidence that information relating to the specific risks of the procedures was provided to the patient, evidenced by signed and witnessed informed consent information booklets, but it is unclear how specific the information provided was. For the first operation the information provided is not specific to the proposed back lift. There is a specific consent for the back lift surgery however the risks section of this document is blank." 4. In the Respondent's statement we noted: "The Respondent discussed the risks associated with the surgery with the patient. For massive weight loss patients, the Respondent explained there was a 50% chance of wound problems and healing difficulties, unfavourable, scarring, recurrence of skin, laxity, minor infections, haematomas, and seromas. The Respondent used photographs to explain the procedures and possible complications. He provided coloured information pamphlets." The Respondent said: "I realise now that my process, as explained, ran the risk of the patient, not reading any of the information I provided to them, and therefore, not properly understanding the risks of surgery when they signed their consent form." 5. In the submission of the HCCC the following is stated re Patient D and Particular 1: "There is no suggestion that the respondent was able to give expert opinion on the particulars of the complaints against him. In the premises, any conclusions or pronouncement by the respondent with respect to whether his conduct was below or significantly below any standard set out in the National Law ought to be ignored by the Tribunal. The admission in respect of Patient D is further expanded on, with the respondent admitting that he: …failed to outline sufficiently specific risks prior to each surgery and accept in this regard my conduct was below but not significantly below the standards. I did raise with Patient D multiple times the need for her to remain in Sydney to both address and avoid any potential post operative complications, which involved a direct discussion about risk factors relevant to wound dehiscence and care. [10] " The respondent gave evidence that some 3 months prior to the first surgery, Patient D signed two consent forms and that "[i]information regarding the risks of each surgery was contained within these consent forms". [11] No evidence is given by the respondent as to the circumstances in which the consent forms were provided to Patient D whose address was in Hopetoun Park, Victoria [12] and whose initial consultation was conducted via Skype. [13] In circumstances where there is no evidence from the respondent that he discussed the contents of the consent forms with Patient D, the Tribunal ought to find that he did not. In cross examination, the respondent also agreed that in respect of Patient D, his conduct fell significantly below the standard as he failed to have a physical examination of Patient D until she presented to the hospital for surgery. [14] The Applicant's expert evidence The dates of surgery for Patient D are 22 August 2018, 23 October 2018 and 6 August 2019. [15] In respect of the surgery on 22 August 2018, the expert opinion of Dr Stern notes that the initial consultation with Patient D took place on Skype on 27 April 2018. Dr Stern found that in initial consultation notes recorded by the respondent: "There is no detail recorded regarding his explanations to the patient of the planned surgery nor of the potential complications. This is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." [16] In respect of the second operation on Patient D, a bilateral medial thigh lift and bilateral augmentation mammoplasty on 23 October 2018, Dr Stern finds in relation to a consultation on 12 October 2018: "In Dr Amjadi's clinical notes there is no record of him having explained the nature of either of the planned operative procedures and indeed there is no mention at all of the word 'thigh'. There is no record of Dr Amjadi having explained different techniques involved in breast augmentation, the benefits or drawbacks of different styles of implants, different surfaces, or which particular tissue plane he would recommend for the placement of the implants. This lack of documentation or information discussed is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Again, there is no record of discussion of potential complications or the required after care." [17] In respect of a further consultation on 19 October 2018, there is no record whether the consultation with Patient D was even conducted by the respondent and there is no record of the respondent outlining specific risks of the surgery. [18] A face-to-face consultation appears to have taken place with Patient D the day before the 23 October 2018 surgery. Dr Stern's report notes in respect of this surgery that: "The obtaining of informed consent regarding any surgical procedure involves the provision of detail regarding the technique of the surgery, the anticipated outcomes, the limitations of any surgery to achieve particular outcomes which may have been expected, and the potential complications. There is no documentation that I can identify within Dr Amjadi's records that any of this information was transmitted to the patient for either the thigh reduction or the augmentation mammoplasty and this is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." [19] In respect of the third surgery undertaken by the respondent on Patient D on 6 August 2019, Dr Stern notes that: "…again, there is no documentation of any discussion regarding particular after-care, and potential complications, particularly for a patient travelling from interstate for the surgery, and who was always going to have to sit either in an aeroplane, train, or car to return home. This lack of documentation is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." [20] Dr Stern's report on Patient D was not challenged by the respondent in cross-examination. The Respondent's expert evidence The respondent's expert, Dr Ritz, notes in respect of Patient D, that information relating to the specific risks of procedures were provided to Patient D which is evidenced by signed and witnessed informed consent booklets "but it is unclear how the specific information was provided." [21] In cross-examination, when asked whether there had been a failure to obtain informed consent from Patient D, Dr Ritz gave the following evidence: "Well, all I had was a, a note that the patient had been given a document about the complications. The problem with that is that the patient lived at a, you know, at a distance. They, whether they read the documents or not is very difficult to prove. And they're also not as specific as you need. The document that I subsequently found was a procedure booklet that was quite broad and covered all different types of body contouring. And it was not specific, for example, for the back lift, which is difficult because some of those procedures are not always done and not always, you know, in a mainstream booklet. However, because the patient was only seen sort of on the day, it's very difficult to know if the patient had informed consent." [22] When further asked whether if there had been a failure to obtain informed consent, would that fall below or significantly below, Dr Ritz said: Well, to me that's significantly below because you need, you need the patient to understand the procedure. And in this case – and it may be better in the future because now it is, by law, a requirement to meet the patient face-to-face at least a week before surgery decisions are made. In this case, it wasn't by law and so the patient was consulted at a distance. And the only time the patient was seen face-to-face was at the time of surgery. [23] 1. The HCCC then submitted: The Tribunal ought to uphold Complaint One, Particular 1 in relation to Patient D in circumstances where: 1. the respondent admits that his conduct fell below the standard required by the National Law; and 2. the objective evidence reviewed by Dr Stern shows that the respondent failed to outline specific risks associated with each of Patient D's surgeries; and 3. the respondent's expert gave evidence that: 1. it was very difficult to know that Patient D had informed consent; and 2. in circumstances where Patient D was not seen face-to-face the consent obtained by the respondent was "not acceptable today" [24] and fell significantly below the standard prescribed under the National Law. In the Respondent's submission Particular 1 for Patient D. 1. The following is extracted from a portion of the Respondent's submission where the Respondent has relied upon the same evidence referred to in the submission of the Applicant, we will not repeat that: "Patient D's statement of complaint needs to be viewed with extreme caution in light of the following objective evidence. On 28 August 2018 after Patient D's first surgery, she emailed Dr Amjadi stating: "My GP wanted to see me this afternoon. She was very happy with my surgery. She said no sign of infection, a very nice cut/clean. A great job she said. Kind regards". [25] Three days later Patient D wrote "I would like to thank you for your absolutely beautiful work you have done on me… I am over the moon happy .. I've sent you some photos, I just had a shower. Also on my tummy after tummy tuck Dr Nicholl left a pocket she called it and said I should get it fixed (loose skin). Could you please fix it with my thighs op…..?" [26] On 23 June 2019, ten and eight months after Patients D's first and second surgery she sent an email to Dr Amjadi stating: "I am over the moon happy with my body that you and Dr Nicholl Andrews have done. Just a bit more work on my legs now, to stop them rubbing and infections. Here are my before photos and now. Tummy and bottom, breast lift and breast implants. I am one very grateful woman, extremely happy as you can see in my last photo. Kind regards" [27] The clinical records of Dr Amjadi repeatedly record that Patient D was 'very happy'. Patient D asserts Dr Amjadi stated it "was okay to fly home". [28] This is inconsistent with the medical records of Dr Amjadi which record on 13 August 2019 "Patient again refusing advice to stay in Sydney for follow up". [29] On 15 August 2019, after Patient D's revision thigh surgery Dr Amjadi sends this text message after Patient D insisted she would return to Melbourne, "I saw your wound on the morning of your departure and you didn't have any open areas .. as I mentioned to your GP seeing as you are not willing to stay here until your wounds are healed there is little point in suturing what will be opened by your travel home". [30] Proof In his report dated 9 August 2021 regarding Patient D, the relevant aspects of Dr Stern's criticism as it pertains to the express Particulars alleged is a failure of pre-operative physical examination of Patient D which Dr Stern found was significantly below the standard reasonably expected. Dr Amjadi accepts this degree of failure. (We note this relates to Particular 2) Many of Dr Stern's criticism then relate to absent information from the clinical records. [Exh A1 Vol 1/10, Tab 18, p 390-391]. Many of Dr Stern's criticism then relate to absent information from the clinical records [31] Dr Stern opined that although Patient D received printed information sheets pertaining to consent from the respondent, this was (according to her) not accompanied by any explanation and he found this to be below, but not significantly below the standards expected. [32] Dr Stern pertinently opined that: a. The wound healing complications after the initial surgery resolved quite quickly and the photographs supplied by Patient D show a reasonable outcome. Dr Stern exercised a "reasonable level of skill, care and judgement" in carrying out the surgery. [33] b. There is "no obvious deficiency" regarding the respondent's post-operative care of Patient D following the second surgery. c. The complication which developed for the respondent "may have occurred even in circumstances where the surgery was carried out with all due care and attention and the early management of this complication whilst the patient remained in Sydney was extremely appropriate." [34] The complications do not of themselves "suggest a deficiency in the performance of the surgery". [35] In his expert report, Dr Ritz opined the following in relation to Patient D "There is no evidence in the medical notes to support any physical examination prior to the back lift procedure. This falls significantly below the standards reasonably expected, [36] an opinion he maintained in oral evidence' and as a result the 'pre-operative assessment on each occasion is inadequate and falls significantly below the standard. This is due to the extremely limited evidence of physical examination, no record of any preoperative measurements, and deficient operation notes. [37] Dr Amjadi's evidence in relation to Patient D is as follows: a. Patient D's first consultation was via Skype on 27 April 2018. They discussed her medical and surgical history and her current physical condition, including the negative impact of her excess skin from massive weight loss. The respondent explained she could be assisted by an abdominoplasty, lower back lift, and thigh lift. He explained these would have to be done separately with the back lift first. [38] 11 days later, on 8 May 2018, Patient D signed two consent forms: One for her abdominoplasty, liposuction, thigh lift and body lift, the second for breast augmentation. The consent forms outlined the risks of each surgery. [39] b. On 22 August 2018, Patient D's lower back lift was performed. From 24 August to 31 August 2018, Patient D sent emails and SMS messages to the respondent indicating her satisfaction with the surgery, which are in part outlined above. [40] c. At Patient D's post-operative assessment on 12 October 2018, she requested that the respondent perform a breast augmentation at the same time as her thigh lift surgery. This was discussed further at a consultation on 19 October 2018. Patient D wanted textured round implants to increase her cup size from a small C to a large D. [41] d. On 23 October 2018, the respondent performed a bilateral augmentation mammoplasty and bilateral medial thigh lift. She was discharged on 31 October 2018. [42] . A further consultation in November 2018 indicated that her wounds were healing well, swelling had subsided, and she was happy with the result [43] e. The respondent examined Patient D again on 8 February 2019. He determined she would likely need revision surgery for her thighs involving groin incision. The Respondent indicated that he was not comfortable performing surgery on her if she was intending to return immediately to Melbourne, and Patient D agreed to remain in Sydney following the further thigh surgery. [44] f. Between 20 June 2019 and 23 June 2019, the respondent and Patient D had an email exchange where he clearly tried to manage Patient D's expectations for the thigh revision surgery. This email exchange is extracted at paragraph 130 of the respondent's statement. [45] On 23 July 2019, Patient D signed a consent form for the revision thigh lift. [46] g. On 5 August 2019, Patient D informed the respondent's staff that she would not stay in Sydney following surgery. Patient D's surgery was performed on 6 August 2019. The respondent informed her that if he was going to perform surgery on her, she would need to agree to wait at least seven days before flying. It was recorded in his operation report that she agreed to stay 'after discharge from hospital until wounds all healed and cleared by me to return home.' [47] Dr Amjadi states that if he had known that Patient D would fly home straight after discharge he would not have agreed to perform the revision surgery. [48] h. On 7 August 2019, the respondent saw Patient D for review. She advised that she was going to return to Melbourne on discharge. The respondent reminded her that his serious medical advice was to stay in Sydney for follow up, and that was the basis he had agreed to do surgery. [49] i. Patient D was discharged on 13 August 2019. She insisted she would be returning to Melbourne and the respondent strongly advised against it. [50] j. On 14 August 2019, the respondent was informed that Patient D's wound had dehisced on the flight home. Patient D asked him if he could stitch her wound back together. The respondent refused, given her refusal to stay in Sydney following surgery. On 16 August 2019, the respondent's staff informed Patient D that he would like her to return to Sydney for treatment of her wound dehiscence, but she would have to stay in Sydney for the duration of her treatment. Patient D decided to seek follow up elsewhere. [51] The respondent accepts that it would have been prudent to examine Patient D in person before the day of the abdominoplasty. [52] Dr Amjadi highlights that Patient D's version of events that she provided to the Tribunal are very different to the positive feedback she gave the respondent following her initial surgery, which suggested an uncomplicated recovery. [53] Submissions Dr Amjadi admits his failure to examine Patient D pre-operatively was a significant failure on his behalf. This supports a finding of proof of Particulars 12, 13, and 14, noting further the agreed expert opinion of Dr Stern and Dr Ritz regarding the degree of failure. Particular 2 is largely a repetition of the same facts underpinning Particulars 12, 13 and 14 and is largely duplicitous as a result. As to Particular 1, an allegation of a failure to obtain informed consent based on specific risks (unparticularised) not being discussed, the Commission's own expert Dr Stern does not place the consent process in this case as falling significantly below the standards expected, noting the signed consent forms and information sheets provided the patient. Dr Ritz forms no opinion on the issue based on an absence of information in the clinical records. Such evidence does not, as the Commission implies, support a finding of proof (AWS [25]), but rather makes Dr Ritz's opinion neutral. Patient D acknowledged in her complaint that she was given information sheets which outlined the risks of the surgery and nowhere in her complaint or statement does she assert that she did not read the documents or that she did not appreciate the risks involved in her surgery. The Commission shifts the onus onto Dr Amjadi stating that he provides no evidence that he did discuss the risks (AWS [13]) which ignores that Patient D never asserts that he did not or that she felt she was not properly informed as to material risks. It is also the respondent's unchallenged evidence that Patient D ignored his medical advice in flying home following surgery. The respondent's admitted failure of 'sufficiency' in the consent process does not mean he did not obtain informed consent. His failure to discuss specific complications with her is, in the respondent's submission, below (consistent with Dr Stern's opinion) but not significantly below the standard. The Commission had failed to prove Particular 1 to the requisite standard. (emphasis added) Tribunals Finding Particular 1 Patient D, operations 22 August 2018, 23 October 2018 and 6 August 2019. 1. Applying the relevant standard of proof, we find that the Respondent probably did not undertake all that was necessary to obtain a fully informed consent from Patient D to the procedures she underwent with him. At the very least, the Respondent is severely disadvantaged in this finding by his failure to make proper and sufficient notes in the medical records he was required to create and keep at the time of his consultations with Patient D. 2. However, this is not a case where no action was taken to obtain informed consent. We accept that the Respondent caused Patient D to be provided with information, in a generalised form which would be applicable to all and different forms of body contouring surgery for massive weight loss patients. The provision of the documents containing the information about proposed operations, without any further detailed discussion with the patient to ensure she understood the risks and that she had realistic expectations of the outcome of the surgery, was we accept, a failure in the process expected of plastic surgeons, with their patients, prior to any such body contouring surgery. 3. We accept the opinion of Dr Stern on this Particular 1 and with this Patient D, and we find that the Respondent's conduct in attempting to fulfill the requirement to obtain informed consent from Patient D before her operations, was, for some of his consultations with her below the expected standard but not significantly below that standard. That conclusion is based more on our uncertainty about whether Dr Stern was on occasions addressing his opinion to the medical records of the Respondent than to the question of whether he had obtained informed consent from Patient D. 4. However, Dr Stern was highly critical of the conduct of the Respondent in relation to the obtaining of informed consent for the operation on 23 October 2018. He stated in his report: "Again, having the only face-to-face consultation being on the day prior to the surgery is an improvement on the arrangements for the first operation, but still a departure from safe clinical practice and significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The obtaining of informed consent, regarding any surgical procedure involves the provision of detail regarding the technique of surgery, the anticipated outcomes, the limitations of any surgery to achieve particular outcomes which may have been expected, and the potential complications. There is no documentation that I can identify within Dr Amjadi's Records that any of this information was transmitted to the patient for either the thigh reduction or the augmentation mammoplasty and this is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." (Exhibit A1 Volume 1 page 292.) 1. As we have said, part of the Respondent's attack on the evidence of Dr Stern on Particular 1 Patient D, is that his opinion on a number of instances addresses lack of documentation and therefore is an opinion which is more apposite to Complaint Two (the inadequacy of medical record making). However, in the extract of his evidence we have cited in the preceding paragraph, he is very clearly addressing the failure to obtain informed consent and in that instant he clearly finds the conduct of the Respondent was significantly below the expected standard for the Respondent at that time. We accept the opinion of Dr Stern in relation to this Particular on the issue of informed consent. 2. We note there is no evidence given by the Respondent which addresses the specific risks of the proposed procedure on 23 October 2018. In part he is unable to truthfully give such evidence because he made no specific notes about the conversations he had with Patient D prior to the operation. 3. We find therefore that the Respondent did, at least in relation to the operation he performed on 23 October 2018, fail to obtain informed consent from Patient D and that conduct was a departure from safe clinical practice and significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Patient E 1. The Respondent admits the consent process for Patient E was deficient however he does not admit it was significantly below the standard expected. The Respondent conducted three operations for Patient E on the dates set out in Schedule B to the Complaint. The first was Bilateral brachioplasty and the other two were scar revision surgery. 2. In exhibit R20, the Respondent's supplementary statement, he said in relation to Particular 1: "I admit that, although I provided Patient E with written information regarding her proposed surgery, including a discussion about risks, I failed to emphasise and adequately warn Patient Of the specific risks involved, particularly wound healing and recovery time in the context of her massive weight loss." 1. The evidence of Dr Stern in his report, once again criticised the adequacy of the Respondents record making and noted there was no record of any discussion regarding the planned surgery, the management following surgery or the potential complications. Further Dr Stern noted a record that Patient E was "a regular smoker" however, there is no note of specific warnings about cessation and the increased risk it posed in the proposed surgery and healing. 2. As set out herein, the evidence of Dr Ritz on this issue is at paragraph 92(a) of his report: "The consent form and consent information, which is in the file, is not dated nor signed. It is very difficult to know if these risks were outlined. There is a consent form from the hospital which has been signed. The informed consent information, which is in the file, is not signed and is not dated. The consultation note from 9 March 2018 and 15 June 2018, preoperatively, does mention the patient's weight, that she is a smoker, but there is no mention of specific risks and measurements and as there are no photographs it is not possible to make an assessment of whether the right arm and the left arm were equal, the same, or otherwise and whether there was any surgical differences required." 1. The HCCC submits: "The Tribunal ought to uphold Complaint One, Particular 1 in relation to Patient E in circumstances where: 1. the respondent admits he failed to emphasis and adequately warn Patient E of the specific risks involved; and 2. the objective evidence reviewed by Dr Stern shows that the respondent failed to outline specific risks associated with Patient E's surgeries, particularly given the respondent's notes reflected that Patient E was a smoker; and 3. the respondent's expert gave evidence that it was very difficult to know if specific risks were outlined to the patient and at best all he could do was 'assume the patient was given an information brochure'". 1. The submission of the Respondent collectively addresses the Particulars which relate to procedures involving Patient E. In relation to Particular 1 relating to failure to obtain informed consent, we note the following in the submission presented. 2. The Respondent detailed the evidence relied upon in relation to Particular 1. There was then this submission: "In respect of Particular 1, the respondent's unchallenged evidence was that he held two consultations with Patient E before the first surgery, where they discussed the surgery and she had the opportunity to ask questions. In the circumstances, the respondent submits that the Tribunal would find that the respondent's consent process was below but not significantly below the standards. Consent forms were signed but the full file was not produced on subpoena from Wollongong Plastic and Cosmetic Surgery, and Dr Amjadi is unable, through no fault of his own, to produce corroborating evidence." Finding on Particular 1 for Patient E 1. We find in the balance of probabilities that the Respondent failed to obtain informed consent from Patient E for the procedures itemised in Schedule B to the Complaint. We accept the submission of the Respondent that the Respondents failure to fully explain orally to Patient E represented a less than adequate provision of information to establish clear and adequate informed consent when combined with adequate and appropriate written information about a proposed plastic surgery procedure which included identified risks and detail as to expectations the patient should have of the final appearance of wound sites. 2. We find that informed consent either occurs or does not occur based on the level and extent of information provided to the patient, both in documentary and oral form, and the surgeon being satisfied that the patient has sufficient understanding of the proposed operation, the proposed outcomes, the expectations of appearance and mobility, which are reasonable in the circumstances. That the patient has been given adequate opportunity to ask questions and consider the responses of the surgeon and the documentary material which has been provided. (Note: we are not here seeking to determine a definitive statement of the requirements to be fulfilled in order to achieve informed consent in each and every medical procedure.) 3. Whilst being cognisant of the disadvantage flowing to the Respondent because the notes he did make for Patient E were not produced by his former Wollongong rooms, we are satisfied that at least for one of the operations the Respondent performed for Patient E he failed to obtain an informed consent and that conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Complaint One Particular 2 1. This Particular states: "Between 23 February 2017 and 27 August 2019, the practitioner failed to conduct adequate pre-operative assessments of Patients B, C and D who attended the practitioner for consultations on the dates as set out in Schedule C to the Complaint." 1. The Respondent admits this Particular in relation to Patient B, Patient C and Patient D. The Respondent's expert Dr Ritz opined the pre-operative assessments for Patient B on the subject dates was lacking. 2. The HCCC submits that: "Where the respondent has admitted the conduct complained of and his own expert finds his conduct fell significantly below the standards set by the National Law, the Tribunal can comfortably find that Complaint One, Particular 2 is made out with respect to Patient B." 1. In relation to Patient B, Dr Ritz stated: "The preoperative assessment on every occasion was lacking. There were no measurements, no preoperative plan, and no listing of the risk factors, and this falls significantly below the standard." 1. In relation to Patient C Dr Ritz stated: "He referred to the fact that the preoperative assessment was done initially on a phone call, which is very difficult to do. (no possible physical examination). The actual physical examination appears to have been done immediately preoperatively, although photographs were taken beforehand." Further he said: "the preoperative assessment still needs to be done before the patient agrees to the surgery." 1. In relation to Patient D, Dr Ritz stated: "The pre-operative assessment on every occasion in relation to Patient D is in adequate and falls significantly below the standard expected of a practitioner of similar training and experience. 1. The Respondent in his submission concedes this Particular is made out. It flows from that submission that the conduct should be found to be significantly below the standard. Tribunal finding on Particular 2 Patient B, C and D 1. We are satisfied that the HCCC has established this Particular and we find the Respondent, between 23 February 2017 and 27 August 2019, failed to conduct adequate pre-operative assessments of Patients B, C and D who attended the practitioner for consultations on the dates as set out in Schedule C to the Complaint. Complaint One Particular 3 1. This Particular states: "Between 23 February 2017 and 27 August 2019, the practitioner failed to provide adequate post-operative care to Patient A, Patient B and Patient E following their surgeries as set out in Schedule D to the Complaint." 1. The Respondent does not admit this Particular. Patient A 1. The HCCC in its submission stated the following: "As a general comment on standards or post-operative care, in cross-examination, Dr Stern gave evidence that allowing a person to return home within 10 to 14 days of surgery was within standards: With a proviso that if you know that's happening, you would, in the best practice, you would want to make sure you know who's looking after them in that more remote location, given they're still within an unhealed surgical period of time. [54] " 1. The HCCC submitted that Dr Stern was not cross-examined on the post-operative care of Patient A. We respectfully disagree with that assertion. 2. In relation to Dr Stern's evidence in support of this Particular and Patient A we conclude the weight to be attached to that evidence should be limited. This arises out of a consideration of fairness and what appeared to be a lack of ability to appropriately concede that which we thought should reasonably have been conceded. (We note however, as can be seen below, Dr Stern did finally soften his position). That conclusion arises from the cross-examination of Dr Stern in relation to his stated opinions on the Patient A procedures and care by the Respondent. 3. As we have set out in these reasons, Dr Stern was asked the following questions and provided the following responses. (We apologise for having to repeat content which we have already set out in these reasons however it is necessary to address this issue) Q. "When we assess standards of a practitioner, do you agree that a fair approach is to assess those standards against the guidelines in place at the relevant time? A. No. I think my role is to tell you what most competent and ethical surgeons were trying to do at that time. So I did my surgical training in the 1980s and from the time I was doing my training, the messages that were being drummed into me were, you don't do significant surgery and especially not significant elective surgery, and you don't do major reconstructive procedures which aren't elective without two consultations. And the world changes, and so Skype didn't exist in those days and neither did FaceTime or any other means of electronically assessing a patient, and so certainly practices have to adapt according to what the different sort of practices are in society at the time. But the belief that you need to see a patient twice before you undertake a completely elective procedure is something which has been around, and so I'm going to pass on in my opinions, I'm going to say this is what was accepted practice at the time. And if it doesn't exactly accord with what the minimum practice, which the medical board might be talking about at the time, that's not my opinion. My opinion is this is what was regularly carried out practice at the time." 1. When put to him that he was being unfair to the Respondent by requiring him to comply with an unwritten standard approach, Dr Stern denied that and in a rather long answer concluded by saying he was looking to a standard that most plastic surgeons adopt. 2. The provision of the Medical Board of Australia's guideline of 2016 to practitioners who perform cosmetic, medical and surgical procedures in Australia, was read to Dr Stern. He responded with the following: "A. I can accept that there are two messages being sent. What I would point out again is I hope a registrar in surgical training to a particular vocation is actually going to be far more influenced by what they're told on a daily basis in their workplace by 40 or 50 different surgeons rather than the bare requirements of the Medical Board's minimum standard. I can't speak for all 40 or 50 of the surgeons that Dr Amjadi may have worked for because I don't know what messages they will propose, but the people with whom I work at the multiple hospitals at which I have worked, all take a pretty uniform approach. And so my expectation is that's what most registrars actually get told. And if that suggests a higher standard of behaviour is expected, then that's not a bad thing." 1. Dr Stern was then asked by a Tribunal member a question to which he gave the following answer: Q. Sir, with the trainees you were discussing, the consultations you've been asked about, where do they take place? The consultations before the operation, where do they take place? A. Almost all of them are in the - for this kind of surgery, almost all of them will be in the surgeon's private office. Q. And the trainees are present while the surgeon has that consultation; are they? A. No, they're not. Q. Well, how do they know about it? A. Because we then spend 10 to 12 hours of a day in operating theatres with the registrars, and we talk about everything. We talk about sport, we talk about politics and we talk a lot about surgical practice. Q. Will they appear in the hospital notes, for example, the two consultations? A. No, not at all. Q. So they wouldn't glean it from looking at the hospital notes? A. No. Q. Do they have access to the hospital notes? A. The registrars would? Q. Yes. A. Yes, but these consultation records will be in the surgeon's office records, their private records, and the surgical training - for want of a better description - it's an apprenticeship. And so you're actually trying to inculcate a particular behaviour in the trainees. Q. Sure, but the trainee would not have access to the private records of the consultant. A. Not in most circumstances." 1. Dr Stern agreed that one of the deficiencies in the training of plastic surgeons is that they are mostly not present for consultations before the surgery takes place. Sometimes they are not permitted by the patient to be present for "mark-ups". All patients have to consent to a registrar being present during their procedure. 2. Dr Stern stated that the 2023 guideline produced by the Medical Board of Australia for registered medical practitioners performing cosmetic surgical procedures is a better guideline than that of 2016. He acknowledged that although the version was created after a Senate inquiry it still only requires two consultations prior to surgery and that only one needs to be face to face. He also set out his practice in relation to patients who need to travel from remote regions. He invariably required the first consultation to be in person. He preferred the second consultation to also be in person if reasonably attainable. He provided his reasons. In providing his reasons Dr Stern stated that he regarded himself as a "picky surgeon". He was then asked the following: "Q. When the Tribunal comes to assess standards, and the standards of Dr Amjadi's care and treatment of patients, wouldn't it be fair to say that a reliable reference source is the guidelines and caution should be exercised with the perfect, picky, eminent surgeon's opinion ruling the day? A. I think that it's very reasonable to use the guideline. I think that anyone, picky surgeon or not, should view what you can achieve on Skype as opposed to what you can achieve face-to-face because that's a statement of the obvious. 1. In relation to Dr Stern's stated opinion in his report that a stay of 10 to 14 days post-surgery is a requirement for body contouring patients (massive weight loss or otherwise), Dr Stern conceded that a 10 to 14 day stay in Sydney post-surgery was the ideal. However, he conceded that socio-economic factors do play a role in assessing that time. The fact that a patient comes from interstate of regional NSW also will play a role in assessing what period a patient is asked to stay in Sydney. He also agreed that it is common that many of the massive weight loss patients come from a low socio-economic demographic. Consequently, Dr Stern agreed that allowing a patient to return home prior to the expiry of the 10 to 14 day period, in some circumstances, is within standard. He said: "Yes, I think that is true with a proviso that if you know that's happening, you would, in the best practice, you would want to make sure you know who's looking after them in that more remote location, given they're still within an unhealed surgical period of time." 1. Dr Stern also conceded that if a patient decides to discharge themselves from hospital against advice, you cannot prevent that. The same is true, Dr Stern conceded, of a patient who decides to transport him/herself by air contrary to advice from the surgeon, that cannot be prevented. 2. Dr Stern also conceded that if a patient is referred to him from a known practitioner, and where Dr Stern understands he can trust the information set out in a referral letter, then that will also influence whether he would insist on a first consultation being in person, where that patient is from interstate, or a remote locality. 3. The HCCC referred to the evidence of Dr Ritz and cited the words "it is very difficult to understand fully how good the care was". This was in circumstances where Patient A did not live locally. 4. The HCCC then urged the Tribunal to "In circumstances where the respondent did not display appropriate skill and judgement and Patient A continued to require further surgeries, the Tribunal ought to uphold Complaint One, Particular 3 with respect to Patient A." That submission really suggests that to make a decision the Tribunal firstly needs to consider Particulars 4 and 5 to Complaint One and, if the Tribunal finds those Particulars established to the level of showing care significantly below the standard, then axiomatically, Particular 3 will be established. The submission of the Respondent 1. The Respondent in his submission addressed the evidence of Dr Ritz and the range of Particulars in Complaint One and Complaint Two reflecting the care of Patient A. We note, and include, the following submission from the Respondent. "79. In his statement dated 20 July 2023, Dr Ritz, the expert called by the respondent, offered the following opinions regarding Patient A: a. He disagreed with Dr Stern's assertion that it was not common practice to hold a skype consultation. [55] b. Dr Stern's claim that a patient should stay for 10-14 days post surgery 'is very arbitrary'. [56] c. The respondent had the appropriate skill and experience to perform the insertion of bilateral deltoid implants on Patient A, even though he hadn't performed it previously. However, it would have been appropriate to read some literature about the procedure and possibly discuss it with colleagues beforehand. This would have been difficult as few surgeons in Australia perform this surgery. [57] d. The implant surgery was satisfactory and at the standard required. [58] e. A calf block was a reasonable implant to use, given the lack of deltoid implants. [59] f. The respondent would have had to form the opinion that the multiple revision procedures were failing to achieve the desired outcome, and at some point, the decision had to be made whether to cease the procedures. The respondent should have sought the advice of a more experienced colleague. [60] His failure to do so fell below the standards. [61] g. Post-operative care was reasonable. [62] Dr Stern's assertion that the respondent should accompany the patient to get a second opinion 'would cloud the opinion given as it should be done independently and objectively'. [63] 80. Dr Ritz did not deviate from his opinions during cross examination and maintained that Dr Amjadi had the requisite technical skills to perform the surgery and the decision to continue with revision surgery was below but not significantly below the standards. Dr Ritz oral evidence was "Well, first of all, the fact that he [Dr Amjadi] admitted that he had not done the procedure is not unusual in plastic surgery. Plastic surgery is based on a skill set of principles." 96 Dr Ritz further reiterated that he did not find that the respondents 'preoperative care' was lacking, but rather his preoperative assessment (failure to take measurements); assessment of the patient's expectations and documentation. [64] Further Dr Ritz said that its very difficult to know when is the right time to make that judgement call of no more surgery." [65] 81. Dr Amjadi's evidence regarding his care and treatment of Patient A is as follows: a. Patient A first contacted him on 7 December 2017 to enquire about surgery for deltoid implants. The respondent felt he was able to assist, as he had been trained that plastic surgery procedures are 'principle based'. That is, if he was capable of performing one type of body implant surgery, then it was within his scope of practice to apply the same principles to other body parts. [66] b. The respondent met with Patient A in person for his initial consultation on 13 December 2017. Patient A had a referral from his general practitioner. At the initial consultation, Patient A displayed a sound knowledge of the procedure, and had researched it extensively. [67] c. The respondent performed a physical examination on Patient A, which suggested that he was an eligible candidate for the operation. The respondent wrote to Patient A's general practitioner to advise he had explained the various treatment options and potential risks, and that Patient A had requested to proceed with his surgery. [68] d. The respondent saw Patient A for a follow-up consultation on 15 December 2017. The Respondent explained to Patient A that he had never performed this surgery before. This was recorded in his consulting notes.102 The Respondent provided a detailed explanation of the surgery including the different types of implants available. He discussed the possible risks of surgery, the limitations of surgery and Patient A's expectations. [69] e. The respondent was aware of the need to screen patients for psychological issues including body dysmorphia. Following the consultation on 15 December 2017, the respondent was confident that Patient A was psychologically fit to undergo the surgery. Following this second consultation, the respondent and Patient A had a series of email exchanges related to the type of implant that would be used. [70] g. The deltoid implant procedure took place on 21 December 2017, using silicone block implants carved to shape. On 26 December 2016, Patient A told the respondent he was disappointed with the results of his surgery, particularly the projection of the implants. In response, the respondent arranged a consultation with Patient A on 31 January 2018. Following this consultation, Patient A decided on further surgery to replace his silicone block implants with calf implants. [71] h. Following the second surgery, Patient A emailed the respondent on 15 February 2018 and 21 February 2018 expressing his satisfaction. At a review on 14 March 2018, Patient A expressed that he was happy with his deltoid implants and was considering posterior deltoid implants. [72] i. On 2 May 2018, Patient A underwent surgery for posterior deltoid implants and nose bilateral alar reduction. On 25 May 2018, the respondent had a telehealth consultation with Patient A. Patient A expressed that his wounds were healing well, and that he was happy with his nose and deltoids. [73] j. On 14 December 2018, 16 January 2019, 30 March 2019, 30 April 2019, and 20 May 2019, the respondent had further consultations with Patient A where they discussed further surgical procedures that Patient A was considering. On 21 June 2019, Patient A underwent further revision surgery, whereby the deltoid implants were removed and replaced with custom implants. This surgery had been discussed on 30 April 2019 and 20 May 2019, and Patient A signed the consent form on the day of surgery. [74] k. On 28 June 2019, Patient A emailed photographs of his shoulders to the respondent, suggesting they were asymmetrical. The respondent had a further consultation with Patient A on 19 July 2019. They discussed the options to address the asymmetry and decided to add further implants. The respondent explained the risks of the surgery to Patient A and he signed a consent form. [75] l. On 22 July 2019, the respondent had a preoperative phone call with patient A, where they discussed the surgery in detail including risks and expected outcomes. The further surgery took place on 25 July 2019. [76] m. Between 28 July 2019 and 30 August 2019, Patient A raised concerns with the most recent surgery including that his left arm was tight and puffy. He developed swelling over the right axilla. An ultrasound confirmed a seroma. The respondent determined that a formal wash out was required. On 1 September 2019, Patient A had a consultation with the respondent. He explained the surgery to him and the complications. Patient A signed a consent form. [77] n. On 4 September 2019, the respondent performed surgery on Patient A, which involved a wash-out and drainage of a seroma. [78] o. Between 9 September 2019 and 16 September 2019, Patient A expressed concerns about fluid leaking from his wound. He was examined by the respondent in a further consultation on 17 September 2019. The Respondent determined that the right anterior deltoid implant was exposed. He recommended that the implant be removed. Patient A agreed and signed a consent form. [79] p. On the same day (17 September 2019), the respondent performed surgery to remove the implant. Following the surgery, the respondent followed up with Patient A by phone. He indicated that the wound was healing well. [80] q. By this stage, the respondent was concerned about the impact of repeated surgeries on Patient A's mental and physical health. Due to the asymmetry caused by the removal on 17 September 2019, he recommended the removal of the left implant. Patient A agreed with this, and this occurred on 2 October 2019. [81] r. Following this final surgery, it appeared to the respondent that Patient A was going to request further surgery. Due to his concerns for Patient A's mental health, he determined to stop treating him. Noting that any further surgeries would be more complex due to the previous operations, the respondent recommended that Patient A's care be transferred to a more senior surgeon. [82] Upon reflection and with the benefit of hindsight, Dr Amjadi says that he would have ensured that Patient A was psychologically assessed, given his previous aesthetic surgeries. At that time the respondent had little training in identifying patients with body dysmorphia. However, the respondent is now aware of the new guidelines, which were not in place at the time of the surgery, that require all patients to be screened for body dysmorphia using a diagnostic tool. [83] 1. The Respondent then submitted in relation to Particular 3 as follows: "83. In relation to Particular 3 of Complaint One (post-operative care), the evidence of Dr Stern, even taken at its highest, is not sufficient to establish this Particular as it relates to Patient A. Indeed, as previously stated, the Commission has not offered any evidence that is capable of establishing this particular as it relates to Patient A, save for Dr Stern's assertion that the respondent should have accompanied Patient A to receive a second opinion. In the respondent's submission, the Tribunal would reject that opinion as both unreasonable and one which is insufficient to establish the Particular. While the respondent is not required to prove anything, the Tribunal would prefer the evidence of Dr Ritz. Dr Ritz found that the respondent's post-operative care of Patient A was reasonable and that Dr Stern's suggestion that he should have accompanied Patient A to a second opinion would cloud the independence of that second opinion.118 It follows that the Commission has not established Particular 3 as it relates to Patient A." Finding in relation to Complaint One Particular 3 for Patient A. 1. We are unable to agree with the HCCC that should we find either Particular 4 or Particular 5 established in relation to Patient A it would establish Particular 3 in relation to Patient A. 2. Patient A was a "one off" patient for the Respondent. There is no evidence to suggest the Respondent has undertaken similar procedures on any other patient. The Respondent's first contact with Patient A was in early December 2017. The Respondent had commenced his private practice in 2016. He initially opened a practice where he was the only practitioner. Over time other plastic surgeons began to share his rooms at the LUXE Clinic. 3. Patient A was living interstate and accordingly a significant amount of the patient's post-operative care was undertaken by Patient A's GP. The post-operative care to be considered by the Tribunal therefore relates to the care administered to Patient A whilst he was in hospital and while he remained in Sydney, following each procedure. It also extends to being satisfied Patient A had in place an adequate plan for medical supervision of the healing of his wounds. 4. We have set out in these reasons extensive summaries and quotes from the evidence of both Patient A and the Respondent in relation to all the procedures, consultations and communications which occurred. That evidence satisfies us that the Respondent reacted appropriately to the post operative communications from Patient A. In some cases, the Respondent offered advice, in other cases he offered and provided direct care including further operations. In one case he spoke to and provided advice to a doctor in a regional town in NSW who was caring for Patient A following one of the operations. 5. Implicit in the criticism of the Respondent by both Dr Stern and the HCCC is that the Respondent should not have undertaken any of the operations he performed on Patient A as he had never before carried out any of that type of operation and he did not consult a more experienced plastic surgeon in relation to the operations. Further, the operations were largely completed in a day and Patient A was released to travel interstate the same day, or the next. Ultimately the Respondent concluded Patient A suffered from body dysmorphia and concluded that he should not have operated on him at all or alternatively not to the extent he did. 6. As submitted by the Respondent, Dr Stern does not appear to level any specific criticism of the post-operative care of Patient A by the Respondent. If Dr Stern's opinion that a patient should stay, either in hospital or in close proximity to the surgeons' clinic, for 10 to 14 days post-surgery, was intended to apply to Patient A then that is met by Dr Ritz, statement that such an assertion is "arbitrary". In the submission of the HCCC it was stated: "As a general comment on standards or post-operative care, in cross-examination, Dr Stern gave evidence that allowing a person to return home within 10 to 14 days of surgery was within standards: "with a proviso that if you know that's happening, you would, in the best practice, you would want to make sure you know who's looking after them in that more remote location, given they're still within an unhealed surgical period of time. [84] " 7. Such a requirement by a plastic surgeon, must be considered in the context of the subject patients' circumstance including, the nature of the operation undertaken, the financial resources of the patient, the other needs of the patient, the availability of suitable medical care in a regional or interstate place where the patient lives or will recuperate following the surgery. 8. Ultimately the Tribunal has to be satisfied that the HCCC has established the case it proceeds with, and in relation to this Particular 3 and Patient A, we are not satisfied the HCCC has established the conduct of the Respondent in the post-operative care of Patient A was significantly below the expected standard. Other aspects of the Complaint in relation to Patient A are the subject of findings to be made by us. To the extent that we make findings, as sought by the HCCC in relation to those other Particulars addressing the care given to Patient A by the Respondent, we do not see that such findings would mean the post-operative care of Patient A would necessarily also need to then be made as sought by the HCCC. Patient B and Particular 3. Failure to provide adequate post-operative Care. 1. The HCCC submits: "Patient B developed bilateral gluteal wound dehiscence one week following a belt lipectomy and bilateral thigh lift on 3 July 2018. Following the surgery and whilst still an inpatient, Patient B was transferred to another hospital. Patient B was a post-bariatric patient, having previously had weight loss surgery. Applicant's expert evidence Dr Stern's evidence was: "The surgical management of (Patient B) following bilateral gluteal wound dehiscence one week following the combined procedure should certainly have been carried out expeditiously. However, it is very dubious clinical practice to arrange the transfer of the patient, currently an inpatient, with what appear to have been too large and open surgical wounds to another hospital to undertake that surgical management. This process would undoubtedly put the patient at greater risk of other complications, such as wound contamination or infection and must be viewed as a significant departure from normal clinical practice, significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." [85] In cross-examination, it was put to Dr Stern that Patient B had wanted to be transferred to Westmead because of grievances with the Holroyd hospital. With that proposition, Dr Stern maintained his opinion: [86] "I think that if I were in that same position, I would probably be trying to do what - if I knew that I was going to be trying to transfer the patient to satisfy their grievances with a particular hospital, which can certainly occur, I'd probably try and get the wounds closed first, rather than transferring a patient with open wounds from one hospital to another, and try to convince the patient that this is in her best interests. And if it means doing the case that night after finishing work somewhere else and the patient having to go to theatre that night, if it can be arranged, and then being transferred the next day, I view that as being preferable. I think that the grievances with the institution at which she was currently hospitalised shouldn't be ignored, and I think that that circumstance - it certainly makes it more understandable. But surgically you'd still not want to be transferring a patient with two large wounds." Contrary to the suggestion by Counsel for the respondent to Dr Stern that Patient B was moved at her own request, the respondent's own evidence is: [87] '86. In the postoperative period her abdominoplasty and thighs healed well. Unfortunately, Patient B developed a haematoma on the right back side that required evacuation. The wound did not heal as desired at the site of haematoma. 87. I recognised at this stage that the wound would need to be closed surgically. As I was unable to perform that surgery at Holroyd Private Hospital, I had Patient B transferred to St Luke's Hospital. (emphasis added).' 1. The HCCC then set out detail of the evidence of Dr Ritz. It then submitted: "In circumstances where: a. The respondent's expert identifies specific matters which impact the post-operative care of post-bariatric patients; b. There is no evidence, either in the clinician's notes or in the respondent's statements that he considered the specific matters which his own expert says impacts the post-operative care of post-bariatric patients such as Patient B; c. The respondent's own evidence is that he wanted Patient B transferred to St Luke's so that he could operate on her there; d. There is unchallenged evidence from the respondent's expert that Patient B was transferred "most likely" to accommodate the respondent's hospital privileges and not for any clinical reason; and e. Dr Stern's evidence about the respondent's post-operative care was not challenged, he Tribunal ought to find that Complaint One, Particular 3 is made out with respect to Patient B." The Respondent's submission in relation to Patient B and Particular 3. 1. The Respondent cited the evidence of Dr Stern where he stated: "The subsequent surgery on 25 July, including the use of negative pressure therapy (VAC) was 'appropriate management of a difficult wound dehiscence'.133 However the fact that the first VAC dressing change took place in the respondent's office, with no clinical note regarding analgesia or sedation, is below but not significantly below standard." 1. In relation to the transfer of Patient B from Holroyd Hospital to St Lukes Hospital, post operatively, Dr Stern was critical and, in the HCCC submission, on this Particular 3 above, Dr Ritz assumed the transfer was for another reason than the specific request (possible demand) of the patient. The Respondent submitted: "In respect of the decision to transfer Patient B, Dr Stern acknowledged in cross-examination that Patient B had expressed dissatisfaction with her admission at Holroyd Hospital.138 He stated that her grievances 'shouldn't be ignored' and accepted that in light of that fact, the decision to transfer her was 'more understandable'.139 However, in his view, the transfer was still a significant departure from surgical standards.140 This was because 'I have never heard of any other surgeon in my gossip network ever having done that'." 1. The Respondent's submission sets out in detail the evidence of the Respondent as contained in his written evidence, relative to Patient B. It also refers to the evidence of Dr Ritz and submits his evidence supports a finding that "The decision to transfer Patient B to another hospital was reasonable and would not place the Patient at a greater risk of contamination"; and "The post-operative care was adequate and within the standards expected." 2. In his submission on Particular 3 and Patient B, the Respondent stated: "In relation to Particular 3 (post-operative care) the opinion of Dr Stern in relation to post-operative care appears to relate only to the respondent's note-keeping of her post-operative care. Particular 3 does not allege a failure of record-keeping. Indeed, Dr Stern has acknowledged that the respondent's management of Patient B's wound dehiscence was 'appropriate'. The Respondent's statement includes unchallenged evidence of the extensive steps he took in Patient B's post-operative care. In all the circumstances, the Tribunal would prefer the evidence of Dr Ritz that Patient B's post-operative care was adequate and within the standards expected. It follows that the Commission has failed to prove Particular 3 as it relates to Patient B." Finding in relation to Complaint One Particular 3 for Patient B 1. It appears to us that the criticism of the Respondent's post operative care of Patient B, which attracts Dr Stern's greatest concern, was the transfer of Patient B from Holroyd Hospital to St Lukes Hospital whilst she still had open wounds. Dr Stern said that if the Respondent proposed to transfer Patient B to St Luke's Hospital at her request, and because of her dissatisfaction with her care in Holroyd Hospital, he should have closed her wounds first. That action was, as stated by Dr Stern, subject to a theatre being available and all the other requirements to operate such a theatre after hours. 2. The Respondent's evidence was that he knew he was able to operate on Patient B the next day following her transfer between the hospitals. He also was unable to operate at Holroyd Hospital on the day of transfer or it seems the next day, as pointed out in the submission of the HCCC. Patient B was a person well acquainted with how hospital care should be provided. She was a Director of Clinical Services and worked in a hospital environment. She was clearly dissatisfied with the level of care she was receiving in Holroyd Hospital. 3. There is no criticism by Dr Stern or the HCCC of the manner in which Patient B was transferred between the hospitals. We have assumed it was, therefore, via an authorised and properly staffed and equipped vehicle. 4. In cross-examination when Dr Stern was acquainted further with the facts surrounding the patient criticism of her care and her request for a transfer to a different hospital he did modify his criticism of the Respondent's action, however he said, had that happened to him he would have closed the patients wounds before the transfer and also attempted to persuade her to tolerate the hospital care until that had happened. 5. We conclude there was a great deal of pressure placed on the Respondent by Patient B. That pressure, in part, arose because of her employment within a hospital environment. There is no evidence that the Respondent could have been able to access additional theatre time to close Patient B's wounds before she was transferred to St Luke's Hospital or that Patient B would have consented to any further treatment in the Holroyd Hospital. The Respondent knew he had available theatre time at St Luke's the day following the transfer of Patient B to that hospital. 6. Although we appreciate the unusual circumstance of a patient seeking removal from one hospital to another because of her dissatisfaction with her care in the first hospital, and we appreciate the concern raised by Dr Stern as to the desirability/requirement to close wounds before such a hospital transfer, we find that if the Respondent's action and method, in transferring Patient B between hospitals was below the expected standard, it was not, in the particular circumstances in which he found himself, significantly below the expected standard of care he should have provided. Particular 3 in relation to Patient E 1. The HCCC submission in relation to Patient E and Particular 3 includes the following. 2. The post operative care which is the subject of concern followed a bilateral brachioplasty. The Respondent does not admit Particular 3 so far as it relates to Patient E. The HCCC points out Patient E was a post bariatric surgery patient who had lost 60kg following a procedure in 2016. 3. The HCCC set out the opinion of Dr Stern in relation to the post-operative care of Patient E: "It is interesting also to note that following the review on July 27, Dr Amjadi reviewed the patient again himself on August 10, approximately four weeks after surgery, noted that the patient may require original surgery within the axilla, but made no further specific arrangements to review the patient again, despite the significant difference in the pathway to healing on the right side compared to the left, noting only that the patient would contact him if she thought this was necessary after a further two months. The lack of further review following only four weeks after a complicated operation would be viewed as significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. The HCCC submits that the opinion of Dr Stern, as stated above, was not challenged in cross-examination. 2. The HCCC noted the evidence of Dr Ritz on this issue as: "Post operative care, although at times intermittent, was adequate" 3. The HCCC then submitted: "In circumstances where: a. As with Patient B, Patient E is a post-bariatric patient and therefore subject to the post-operative risks identified by Dr Ritz; b. The respondent's expert's failure to particularise the intermittent and "adequate" post-operative care of Patient E; and c. The unchallenged opinion of Dr Stern that the respondent's post-operative care of Patient E was significantly below the standard reasonably expected of a practitioner of equivalent training or standards, the Tribunal ought to find that Complaint One, Particular 3 is made out with respect to Patient E." The Respondent's submission on Particular 3 Patient E 1. The Respondent relied upon the evidence of Dr Ritz that the post operative care of Patient E was adequate. 2. The Respondent then referred to the evidence of Dr Stern contained in exhibit R10, being a report dated 18 May 2020. In that report Dr Stern had stated "I am satisfied that Dr Amjadi's post-operative care was adequate and appropriate once the complications were suspected". That opinion is different to the opinion he expressed in a later report on the same patient. 3. Although the HCCC submitted Dr Stern was not challenged on his opinion as to the Respondents "post-operative treatment" of Patient E. Although the Particular under consideration uses the words "post-operative care" we have assumed the HCCC has used the word "treatment" to mean "care". We also do not agree Dr Stern was not challenged as to his opinion that the post-operative care of Patient E was significantly below the standard. 4. In our view the challenge to Dr Stern's opinion on this Particular 3 and Patient E is found in his failure to explain the inconsistency between his opinion stated in his letter to the HCCC of 18 May 2020 and his subsequent report relied upon by the HCCC in this case. 5. In the submission of the Respondent, significant moment is made of the conflict in the opinions provided by Dr Stern in relation to Patient E. The Respondent submitted: "138. Dr Stern had previously produced an internal medical advice, dated 18 May 2020, in relation to Patient E which was concerningly never disclosed to the respondent until days before the Tribunal hearing. [88] In cross-examination, Dr Stern acknowledged that in that earlier advice, he had opined that the respondent's post-operative care was 'adequate and appropriate' once the complications were suspected. [89] This is not consistent with his opinion in his later report that Patient E's post-operative care was 'erratic' and below the standard reasonably expected. 139. All opinions therefore of conduct that is significantly below the standards expressed in Dr Sterns subsequent report need to be viewed with caution as they are arguably contaminated by knowledge of other complaints as compared to a close analysis of the actual facts in this case. We note Dr Stern takes no criticism with the respondent's recommendation for surgical scar revision in September 2019, asserting it was appropriate; [90] and further that after the scar revision surgery, the post-operative management of the complications of the surgery was 'appropriate'." [91] 1. In the cross-examination of Dr Stern, the inconsistency in his opinions as to the Respondent's post-operative care of Patient E was raised with him. He did not, at the time, seek to explain why there is such an inconsistency, and the HCCC did not bring to our attention where Dr Stern later explained why he had changed his opinion. 2. The Respondent submitted: "142. In respect of Particular 3, the Tribunal would reject Dr Stern's evidence entirely, given his earlier opinion that the respondent's post-operative care of Patient E was 'adequate and appropriate'. In the absence of any other cogent explanation for the change in opinion, the Tribunal would have to infer that the change in Dr Stern's opinion was as a result of his impression of the respondent being coloured by the investigations which he improperly undertook. The Tribunal would prefer the expert of evidence of Dr Ritz, who found that the post-operative care was adequate. It follows that the Commission has not established Particular 3 in relation to Patient E." 1. Notwithstanding the above matters raised by the Respondent in relation to the evidence of Dr Stern it is still necessary for us to determine if the HCCC has established Particular 3. 2. The opinion of Dr Stern (as later provided) and referred to in the submission of the HCCC, addresses a failure in the Respondent reviewing Patient E again, "following only four weeks after a complicated operation". Dr Stern was of the opinion that the Respondent placing the need for a further review in the near future, in the hands of the patient, as unsatisfactory. Dr Ritz opined, without specifically referring to the circumstance highlighted by Dr Stern, that the Respondent's action was "adequate". 3. The Respondent submitted the following extracts from the evidence of the Respondent on this issue: "The brachioplasty was performed on 12 July 2018. Patient E was discharged home on 17 July 2018. At subsequent reviews on 20 July 2017, 27 July 2018 and 3 August 2018, she appeared to be healing well. [92] c. Patient E was reviewed again on 10 August 2018, after she raised concerns, her wounds may be infected. On review the respondent reviewed the pathology results which showed no evidence of infection. [93] d. Patient E was next seen by the respondent on 20 September 2019. On examination he noted she had widened and hypertrophic scars. Patient E indicated she would like scar revision. The respondent suggested doing revision on one arm at a time, so she could hold her baby. However, Patient E indicated she would prefer them to be done close together. Finding in relation to Complaint One Particular 3 for Patient E 1. Having reviewed the evidence on this issue and considered the submission we find that the HCCC has failed to satisfy us, on the requisite standard, that the Respondent's post-operative care of Patient E, by the Respondent, was significantly below the expected standard. We note that in relation to this Particular, the HCCC has only relied on the evidence of Dr Stern so far as it related to the care of Patient E following the operation on 12 July 2018 and then the review of Patient E which the Respondent undertook on 27 July 2018. Complaint One Particular 4 and Patient A 1. This Particular is: "On 21 December 2017 the practitioner performed an insertion of bilateral deltoid implants on Patient A in circumstances where he: a. Did not have the appropriate surgical skill and/or experience to perform the procedure; b. Failed to obtain advice and assistance from a more experienced colleague prior to conducting surgery." 1. The HCCC addressed sub-paragraph (a) of Particular 4. It referred to the words of the Respondent as set out in his Amended Reply document. The HCCC said: "The respondent admits that he performed the surgery but says with respect to 4(a): [94] (i) At the time I performed the surgery I was a Fellow of the Royal Australasian College of Surgeons (FRACS) and had extensive training and experience in relation to the insertion of implants, the principles of which equally applied to the insertion of bilateral deltoid implants. Further I had researched the surgical method to be applied in this implant surgery. (ii) Although I had not performed the surgery before, I had performed similar surgeries of which the surgical skills are recognised as transferable. (iii) It is recognised that a practitioner does not have to have previously been involved in a particular surgery in order to perform it." 1. The HCCC submitted: "In his initial reply, the respondent says: Having had time to reflect in relation to this complaint, I now realise that there are some areas in which I was deficient. I realise that I exhibited poor patient selection at the time, and I should never have agreed to perform surgery on a patient such as (Patient A), with a history of multitudes of cosmetic procedures done by many plastic surgeons in Sydney. At the very least, I should have ensured he was psychologically assessed by an expert prior to any cosmetic surgery being performed by me [95] " 1. The HCCC cited the oral evidence of the Respondent on this patient when he was asked whether he missed anything in the pre-operative phase. The following extract is set out: "I think the biggest things that I missed was with (Patient A) [sic], that he, he seemed like such a coherent well-versed person that I didn't pick that he is fixated on one thing. I should have picked that he is not a suitable candidate for surgery [96] … And, you know, it's taken really a lot of therapy hours to get to a point where I can easily say no to somebody. [97] 1. The HCCC then submitted: "108. Dr Ritz's opinion on the respondent's surgical skill and/or experience proceeds from the basis that the respondent had full training and examination through the Australian College of Surgeons. However, Dr Ritz qualifies this opinion in circumstances where the respondent: "openly admitted that he had never done this procedure before therefore, it would be appropriate to Dr Amjadi to read the literature about this procedure and possibly discuss it with colleagues. In saying that it is very difficult to get advice from colleagues as these are done very rarely in Australia. If you read the literature the only references are from America. We would assume that Dr Amjadi at least read the literature which would advise how the procedure was done [98] 109. There is an assumption by Dr Ritz that the respondent read the literature. The respondent did not indicate that he in fact read any literature about the specific procedure. The respondent's Reply to Particular 4 (b) says "I researched the surgical technique", [99] but provides no further detail. 110.In respect of Complaint One, Particular 4(a), the Tribunal should make a finding that the respondent did not have the appropriate surgical skill and/or experience to perform the deltoid implant operation on 21 December 2017 where: (1) The respondent admits that he should have picked that Patient A was not a suitable candidate for surgery; (2) The respondent gives evidence in relation to Patient A that he could not "easily say no to somebody"; (3) No evidence is advanced in relation to the respondent's skill other than that he has completed training with the Australian College of Surgeons; and (4) It is admitted by the respondent that he had not undertaken this procedure before." The Respondent's submission on Particular 4(a). 1. The Respondent submits: "Dr Amjadi states that when Patient A first came to see him, he presented as competent, intelligent and reasonable. He had no concerns about his mental well-being, and appeared to have clinically under-developed deltoids, for which deltoid implants were a reasonable management plan.75 The respondent's unchallenged evidence, as contained in his statement, is that he felt it was within his scope of practice to perform the deltoid implant surgery on Patient A,76 and that he made sure that Patient A was well aware of the fact that he had not performed this surgery before."77 1. The Respondent referred to the evidence of Dr Ritz who stated in his report: "The respondent had the appropriate skill and experience to perform the insertion of bilateral deltoid implants on Patient A, even though he hadn't performed it previously. However, it would have been appropriate to read some literature about the procedure and possibly discuss it with colleagues beforehand. This would have been difficult as few surgeons in Australia perform this surgery … "The implant surgery was satisfactory and at the standard required". [100] 1. Further the Respondent submitted: "Dr Ritz did not deviate from his opinions during cross-examination and maintained that Dr Amjadi had the requisite technical skills to perform the surgery and the decision to continue with revision surgery was below but not significantly below the standards. Dr Ritz oral evidence was: "Well, first of all, the fact that he [Dr Amjadi] admitted that he had not done the procedure is not unusual in plastic surgery. Plastic surgery is based on a skill set of principles." 96. Dr Ritz further reiterated that he did not find that the respondents 'preoperative care' was lacking, but rather his preoperative assessment (failure to take measurements); assessment of the patient's expectations and documentation.97 Further Dr Ritz said that it's very difficult to know when is the right time to make that judgement call of no more surgery."98 Finding on Complaint One Particulars 4(a) and 4(b). 1. The HCCC submitted that we could or would not assume the Respondent read the available literature in relation to the proposed procedure he first performed with Patient A, when the Respondent stated: "Further I had researched the surgical method to be applied in this implant surgery. Although I had not performed the surgery before, I had performed similar surgeries of which the surgical skills are recognised as transferable." 1. Although it may be a relatively minor point, we consider that over the space of a 9 day hearing, we heard a great deal of oral evidence about and by the Respondent. We also reviewed and received large amount of documentary evidence. That evidence has enabled us to form a view about the character, nature and integrity of the Respondent. We find we are unable to conclude that when the Respondent said he had "researched the method to be applied in this implant surgery" the Respondent stated those words in circumstances where he had done no such research and that he had failed to undertake any meaningful research about the procedure he had agreed to perform on Patient A. We do accept that the Respondent would have done research by accessing the necessary information, such that he was then comfortable to proceed with the planned operation. 2. We find that the Respondent did have the appropriate skill to perform plastic surgery of the nature required for the procedure he undertook on 21 December 2017. We find he did not have any experience in the performance of the particular surgery he performed on 21 December 2017, however, we do not accept that the Particular's use of the words "appropriate surgical skill and/or experience" are directed to a particular piece of plastic surgery. If it is directed to a particular type of plastic surgery then every credentialled plastic surgeon would be guilty of unsatisfactory professional conduct with every procedure they undertook, as the lead surgeon following admission to Fellowship, if, during their training, they had not undertaken that particular type of plastic surgery. 3. In this case the expert evidence from each of Dr Stern and Dr Ritz accepted that Dr Amjadi had reached a level of skill and proficiency in plastic surgery to have gained admission to the Royal Australasian College of Surgeons. The operation which the Respondent performed on the 21 December 2017 with Patient A was not the first plastic surgery procedure which he had performed following to his admission to the RACS. We therefore find that at the time the Respondent performed the procedure on Patient A on 21 December 2017 he did have the necessary and appropriate surgical skill and general experience, to be able to undertake the procedure involved. 4. However, the Respondent admits that he should not have taken Patient A as a patient. He makes that concession clearly with the benefit of hindsight. The Respondent did ultimately recognise that Patient A was probably suffering from a psychological disorder known as body dysmorphia. As such he did not have the experience, at that time, to recognise that possibility. Further, in fairness to him, he did not appreciate that Patient A would require further implant work following the procedure on 21 December 2017. 5. Further, as the cross-examination of Dr Stern illustrated, the concept of body dysmorphia was not referred to in the then available Medical Board guidelines. The current guidelines do refer to body dysmorphia. The question of the Respondent's skill and experience in relation to identifying patients with body dysmorphia really calls for consideration as the Respondent continued to perform surgery on Patient A after 21 December 2017. 6. If we are in error in relation to our finding on Particular 4(a), then we would find that the conduct of the Respondent, in all of the circumstances surrounding the 21 December 2017 procedure, was below the required standard but not significantly below the standard. 7. In relation to Particular 4(b), the complaint is that the Respondent failed to obtain the advice and assistance of a more experienced colleague prior to conducting surgery. The Respondent's response to that Particular is, in effect, he could not find another plastic surgeon with such experience. He was specifically referring to the procedure itself as opposed to speaking to an experienced surgeon who may have warned him to be aware that Patient A may be suffering from body dysmorphia. 8. The Respondent concedes that the history from Patient A included the undertaking of earlier surgeries in the USA which were aesthetical procedures. The Respondent said that whilst being aware of the condition of body dysmorphia, the history of earlier procedures was the only aspect of Patient A's presentation which might have alerted a more experienced surgeon as to the possibility of body dysmorphia and then led to a referral for psychological assessment as a prerequisite to the Respondent accepting Patient A as a patient. 9. The point at which Dr Ritz considered the Respondent should have sought the advice of a more experienced surgeon was following revision surgery which followed the 21 December 2017 operation. Following that revision surgery, which Patient A was happy with, he then sought to engage the Respondent in further body surgery of an aesthetic nature. Dr Ritz opined that the failure to consult at that time was below the standard. He did not opine that it was substantially below the standard expected. We do address the failure to consult a more experienced practitioner as we address Particular 5(c). 10. Although consulting with a more experienced plastic surgeon could have alerted the Respondent to the strong possibility that Patient A was candidate for a diagnosis of body dysmorphia, the failure to do so at the time of the first consultation with Patient A, is illustrative of conduct below, but not significantly below, the standard reasonably expected of a practitioner of an equivalent level of training or experience Complaint One Particular 5 and Patient A 1. This Particular states. 5. On 2 May 2018; 21 June 2019; 25 July 2019 and 4 September 2019, the practitioner performed revision surgeries on Patient A in circumstances where: a. the practitioner ought reasonably to have formed the opinion not to perform bilateral deltoid implant surgery on Patient A; b. the practitioner ought reasonably to have formed the opinion the previous revision procedures were failing to achieve the desired outcome for Patient A; c. the practitioner failed to obtain the advice and assistance of a more experienced colleague at any time. 1. The HCCC submitted as follows on Particular 5(a). "90. In respect of the surgery on 2 May 2018, the respondent said in his Reply that it was not a revision surgery but "first time surgery for posterior deltoid implants". 91. In cross-examination having been taken to his logbook, the respondent conceded that the surgery on 2 May 2018 was, in fact, a revision. Given the respondent's mischaracterisation in his reply of the surgery on 2 May 2018, the Tribunal ought not to accept the respondent's reply that: The plan was requested by and discussed with Patient A, and I formed the view that the request was appropriate. I deny that I ought to have formed the opinion not to perform bilateral deltoid implant surgery on Patient A. 92. In respect of the surgeries on 21 June 2019 and 25 July 2019, the respondent accepts that "with the benefit of hindsight that I should have questioned at this stage, whether Patient A's expectations in relation to the desired appearance of deltoid implants could be met". With that concession, the respondent ought reasonably to have formed the view not to conduct further surgeries on Patient A. 93. In respect of the surgery on 4 September 2019, the respondent said in reply that he did not perform deltoid implant surgery on that date. 94. In cross-examination the respondent conceded that it was clear that the surgery on 4 September 2019 "related back to now a number of previous operations involving the deltoids". 95. In respect of the surgery on 4 September 2019, the respondent accepts that "I should have formed the opinion that the previous revision procedures were failing to achieve the desired outcome for Patient A". With that concession, the respondent ought reasonably to have formed the view not to conduct further surgeries on Patient A. 96. Dr Ritz's opinion highlights the issue of the respondent continuing to operate on Patient A. In Dr Ritz's opinion the respondent should have stopped operating on Patient A. The question is not if the respondent ought to have stopped, but when: There is no reason why he should not have done the initial surgery regardless of not having done it before as long as he informed the patient and educated himself. The question is when he should have stopped given the complications once he started with more implants. 97. The Tribunal ought to uphold the Particular 5(a) of Complaint One." 1. Although the HCCC did not specifically refer to the evidence of Dr Stern in Particular 5(a), Dr Stern had opined that the conduct fell significantly below the expected standard. In relation to Complaint One Particular 5(b) and (c), Dr Stern opined that it was the Respondent's "responsibility to decide not to operate when multiple procedures were failing to achieve the desired outcome for a purely elective procedure. This approach to practice is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 2. The Respondent provided the following submission is relation to Particular 5: "The Respondent performed four revision surgeries in circumstances where he ought to have formed the opinion not to perform the bilateral deltoid implant surgery; where he ought to have formed the opinion the previous revision procedures were failing; and where he failed to obtain advice and assistance from a more experienced colleague at any time (Particular 5).74 This is admitted by the respondent in respect of two of the surgeries only (on 21 June 2019 and 25 July 2019), the balance not being established as being revision surgeries. 73. The Tribunal is therefore required to determine whether …… the surgeries on 2 May 2018 and 4 September 2018 were inappropriate revision surgeries. Critically, whether any failures proven individually or in combination with other Particulars of Complaint One, amount to failures significantly below the standards expected." 1. The Respondent submitted: "Dr Stern does opine that the respondent's decision to operate further when multiple procedures were failing to deliver the desired outcome was significantly below standards" He further submitted: "In cross-examination, Dr Stern stated that the respondent should have recognised at the time of the initial assessment that Patient A likely had body dysmorphia. However, he acknowledged that the current Medical Board guidelines, which require a surgeon to assess a patient for dysmorphia, weren't in place at the time of the respondent's training." 2. The Respondent referred to the evidence of Dr Ritz where he had stated: "The implant surgery was satisfactory and at the standard required. A calf block was a reasonable implant to use, given the lack of deltoid implants. The respondent would have had to form the opinion that the multiple revision procedures were failing to achieve the desired outcome, and at some point, the decision had to be made whether to cease the procedures. The respondent should have sought the advice of a more experienced colleague. His failure to do so fell below the standards." 1. Further the Respondent submitted: "Dr Ritz did not deviate from his opinions during cross-examination and maintained that Dr Amjadi had the requisite technical skills to perform the surgery and the decision to continue with revision surgery was below but not significantly below the standards." Dr Ritz oral evidence was "Well, first of all, the fact that he [Dr Amjadi] admitted that he had not done the procedure is not unusual in plastic surgery. Plastic surgery is based on a skill set of principles." 2. In relation to the evidence of the Respondent, the submission includes the following: "The respondent was aware of the need to screen patients for psychological issues including body dysmorphia. Following the consultation on 15 December 2017, the respondent was confident that Patient A was psychologically fit to undergo the surgery. Following this second consultation, the respondent and Patient A had a series of email exchanges related to the type of implant that would be used. The deltoid implant procedure took place on 21 December 2017, using silicone block implants carved to shape. On 26 December 2016, Patient A told the respondent he was disappointed with the results of his surgery, particularly the projection of the implants. In response, the respondent arranged a consultation with Patient A on 31 January 2018. Following this consultation, Patient A decided on further surgery to replace his silicone block implants with calf implants. Following the second surgery, Patient A emailed the respondent on 15 February 2018 and 21 February 2018 expressing his satisfaction. At a review on 14 March 2018, Patient A expressed that he was happy with his deltoid implants and was considering posterior deltoid implants.106 On 2 May 2018, Patient A underwent surgery for posterior deltoid implants and nose bilateral alar reduction. On 25 May 2018, the respondent had a telehealth consultation with Patient A. Patient A expressed that his wounds were healing well, and that he was happy with his nose and deltoids. On 14 December 2018, 16 January 2019, 30 March 2019, 30 April 2019, and 20 May 2019, the respondent had further consultations with Patient A where they discussed further surgical procedures that Patient A was considering. On 21 June 2019, Patient A underwent further revision surgery, whereby the deltoid implants were removed and replaced with custom implants. This surgery had been discussed on 30 April 2019 and 20 May 2019, and Patient A signed the consent form on the day of surgery. On 28 June 2019, Patient A emailed photographs of his shoulders to the respondent, suggesting they were asymmetrical. The respondent had a further consultation with Patient A on 19 July 2019. They discussed the options to address the asymmetry and decided to add further implants. The respondent explained the risks of the surgery to Patient A and he signed a consent form. On 22 July 2019, the respondent had a preoperative phone call with patient A, where they discussed the surgery in detail including risks and expected outcomes. The further surgery took place on 25 July 2019. Between 28 July 2019 and 30 August 2019, Patient A raised concerns with the most recent surgery including that his left arm was tight and puffy. He developed swelling over the right axilla. An ultrasound confirmed a seroma. The respondent determined that a formal wash out was required. On 1 September 2019, Patient A had a consultation with the respondent. He explained the surgery to him and the complications. Patient A signed a consent form. On 4 September 2019, the respondent performed surgery on Patient A, which involved a wash-out and drainage of a seroma." 1. The submission then concludes the reference to the Respondent's evidence with the following: "Upon reflection and with the benefit of hindsight, Dr Amjadi says that he would have ensured that Patient A was psychologically assessed, given his previous aesthetic surgeries. At that time the respondent had little training in identifying patients with body dysmorphia. However, the respondent is now aware of the new guidelines, which were not in place at the time of the surgery, that require all patients to be screened for body dysmorphia using a diagnostic tool." 1. The Respondent then makes the following submission arising from the evidence referred to above. "The respondent repeats and relies on the submissions made earlier in these submissions regarding the weight that should be placed on Dr Stern's evidence. The respondent submits that the Tribunal would prefer the evidence of Dr Ritz in relation to Particular 4: namely, that the respondent had the necessary skill to perform the deltoid implant surgery, that the surgery was satisfactory, and that it was reasonable to use a calf silicone block as an implant. It is of note that Dr Ritz is very experienced in the field of body contouring plastic surgery. He does not shy away from expressing adverse opinions in relation to the respondent. Overall, his expert opinions are considered, nuanced, and impartial. The respondent submits that the Tribunal would find that he is a reliable expert witness, and that where it conflicts with Dr Stern's evidence, Dr Ritz's evidence should be preferred. If the Tribunal finds that both Dr Ritz and Dr Stern's opinions are valid, this fact alone would result in a finding that the degree of failure as alleged by the Commission, namely a failure that is significantly below the standards, cannot and has not be proven by the Commission who solely bares the onus of proof. In relation to Particular 5 of Complaint One (revision surgeries), the respondent admits this Particular, save that the surgery on 2 May 2018 and 4 September 2019 were not revision surgery. The Commission has offered no evidence that these surgeries were revision surgery and so it follows that Particular 5 is not established in respect of the surgeries on 2 May 2018 and 4 September 2019." Finding on Particular 5 (a) and (b) 1. In part, the Respondent's defence is based upon the use of the words "revision surgeries" in the wording of this Particular. The Respondent submits that the operation on 2 May 2018 was not revision surgery, however in his oral evidence on 20 March 2024 at page 58 of the transcript, he was asked: "Question: So the question you were asked is how would you categorise that operation that took place on 2 May 18, for the purpose of your logbook? Answer: That's, that's a revision." 1. The Respondent was cross-examined about entries in his logbook on 20 March 2024 (transcript page 60). His evidence about an entry relating to Patient A and surgery performed on 4 September 2019 was as follows: Q. Now if you go over the page to page 6, on 4 September 2019 there is a debridement washout abscess drainage for PP. Do you see that one? A. Yes, yes. Q. Now this time you've noted seroma. A. Correct. Q. But it still isn't clear from that notation, that this operation related back to now a number of previous operations involving the deltoids. That's correct isn't it? A. It's clear to me. Q. It's clear to you, because you know that this is the only patient on whom you're doing these-- A. Yeah." 1. As a consequence of the above we do find that the procedures conducted by the Respondent on Patient A on 2 May 2018 and 4 September 2019 were, on the balance of probabilities, procedures which in keeping with the ordinary language of plastic surgeons, revision surgeries. 2. The issue which remains to be determined is whether the surgery which was undertaken by the Respondent with Patient A on the dates set out in Particular 5, were undertaken in circumstances where the Respondent "ought reasonably to have" not performed "bilateral deltoid implant surgery on Patient A" (Particular 5(a)) and "ought reasonably to have formed the opinion the previous procedures were failing to meet Patient A's expectation of outcome (desired outcome) (Particular 5(b)). 3. The experts engaged by the parties hold differing opinions in relation to the degree by which the Respondent's conduct in relation to Patient A procedures was below the standard. Dr Stern opines that Particulars 5(a) and 5(b) establish conduct "significantly below" the standard and Dr Ritz opines it was "below", however not significantly. 4. The findings in relation to Particulars 5(a) and 5(b) really involve a consideration of whether the Respondent should have consulted with a more experienced colleague before undertaking the procedures on Patient A on the dates set out. That consultation did not have to be with a colleague who had performed the same type of surgery as Patient A was seeking. The Respondent could have benefited from advice coming from a more experienced practitioner, about undertaking a procedure which he had never previously undertaken. He may have been advised to seek an assistant in the surgery who had undertaken multiple implant surgery in a different part of the body, for example. He may have been warned that the patient showed indicia of possible body dysmorphia and as such, a psychologist's report should be sought before proceeding. He may have received advice across a large number of facets of the surgery Patient A was seeking. It was that aspect of his failing to obtain advice from a more experienced colleague which is encapsulated in Particular 5(c). The Respondent admits Particular 5(c) in his Further Amended Reply exhibit R19. Further, in relation to Particular 5(c) Dr Ritz had opined: "I think Dr Amjadi should have sought the advice of a more experienced colleague, not only about this procedure but about the fact he was failing to achieve the desired outcome and multiple procedures. It is advisable to at least have sought some counsel." 5. If we be wrong about Particulars 5(a), (b) and (c) all really being the same Particular, then we would prefer the opinion of Dr Ritz in relation to Particulars 5(a) and (b). We do so because we take the view that in relation to those two Particulars, the standard imposed by the opinion of Dr Stern, was greater than should have been applied to the Respondent given the extent of his experience and training at the time of the operations detailed in those two Particulars. In relation to that finding we refer to our separate findings as to the weight to be given to the evidence of Dr Stern. 6. We accept that at the time of the operations referred to in Particular 5, the Respondent had little training in identifying patients with body dysmorphia and the Medical Board of Australia guideline for plastic surgeons were not helpful in that area at that time. 7. Our finding is that in relation to Particulars 5(a) and 5(b), whilst being satisfied the Respondent's conduct was below the expected standard, the HCCC has failed to satisfy us that the conduct of the Respondent, as alleged, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience as the Respondent was at the times specified in those Particulars. Finding on Particular 5(c) 1. In Relation to Particular 5(c), the Respondent admits that he is guilty of unsatisfactory professional conduct in relation to the aspects of Complaint One detailed in Particular 5(c). We also find, on the evidence and independent of the admission, that Particular 5(c) has been established by the HCCC. Complaint One Particular 6 1. This Particular relates to the surgery performed for Patient B. The particular is: On 17 May 2018 the practitioner inappropriately performed a bilateral breast lift procedure on Patient B in circumstances where: a. the practitioner listed the surgery in the hospital records as bilateral breast reduction procedure; b. the practitioner used the Medicare item numbers for a bilateral breast reduction procedure; c. the practitioner had previously advised Patient B was not a candidate for any surgery involving skin reduction; d. the practitioner performed the procedure when Patient B was approximately four months postpartum which is contrary to the clinically accepted practice in relation to any surgical modification to the breast postpartum. 1. The Respondent denies the surgery was inappropriate. Finding on Particular 6(a) and (b). 1. The Respondent admits that he listed the surgery as a bilateral breast reduction procedure because that is the surgery he performed. 2. The submission of the HCCC on this particular includes the following. 105. The respondent denies Particulars 6(a) and 6(b) on the basis that the surgery he performed on Patient B on that day was a bilateral breast reduction. This opinion does not reflect either the patient's understanding of the procedure which she was undergoing, nor the expert opinion given by Dr Stern. 106. The evidence of Patient B is that she thought she was having breast lift and breast implant surgery. On the day of surgery, Patient B says: I recall as I was being wheeled in, he changed the surgery and said to me he was not performing the breast implant procedure but only the breast lift. He said I can get the breast implant done later, together with another surgery. At the time I was already anxious and had no time to process what he told me. They had administered a sedative just before the surgery started due to my high level of anxiety. 107. The evidence of Dr Stern is: Surgery was carried out on May 17, 2018 and I note that according to the hospital records this was listed as bilateral breast reduction surgery and the appropriate Medicare item numbers were employed for this form of surgery insuring a Medicare and health fund rebate for the patient for this operation, and that her health fund would certainly have contributed to the cost of her hospitalisation. Examination of the histopathology report notes that the volume of breast tissue excised at the operation was 135g on the left and 142g on the right. Most surgeons would certainly not view this as breast reduction surgery, but more equivalent to Dr Amjadi's original note, and the patient's description of bilateral breast surgery. This is significantly below the standard of documentation, description and Medicare billing reasonably expected of a practitioner of an equivalent level of training or experience. 108. In cross-examination, Dr Stern repeated his opinion that the procedure performed on Patient B on 17 May 2018 was a breast lift rather than a breast reduction. "I believe that a registrar who has been through five years of training would usually understand what qualifies as a bilateral breast reduction. So I would accept that 135 grams or 140 grams may reasonably constitute a breast reduction in a breast asymmetry case, for example, or in a patient who is of a particular build. But calling it a bilateral breast structure, two sides with those amounts of tissue, I don't know how much criticism you want me to temper. So I still believe that that's a breast lift to me." 109. The evidence of Dr Ritz is not of great assistance to the respondent. In response to Particular 6(a), Dr Ritz said: "The first question about anything inappropriate in listing the surgery and as for records as a bilateral breast reduction procedure [sic]. This was a breast reduction procedure even though the amounts excised were not large however there is no actual value assigned to the breast reduction item number. 110. Dr Ritz's response to Particular 6(b) is: There is no stipulation as to how much tissue must be excised. 135g and 142g were removed from each breast and so it could be reported as a breast reduction. Using Medicare numbers for this procedure would be appropriate. However, they were large breasts and a breast reduction would typically remove more. 111. In the circumstances where: a. Patient B was told by the respondent as she was wheeled into surgery that she was having implants and a breast lift; (We note the word "not" has been omitted before the word "having" in this sentence.) b. The experts agreed that breast reduction would typically remove more tissue; and c. Dr Stern's evidence is that the procedure was a breast lift, the Tribunal can find as a matter of fact that the respondent inappropriately performed a bilateral breast lift as particularised in 6(a) and (b) of Complaint One. 1. The Respondent included the following in his submission in relation to Particular 6(a) and (b). "The Tribunal is required to determine whether the procedure was improperly described as a breast reduction." "In relation to his opinion that, due to the amount of tissue removed, the procedure was incorrectly described as a breast reduction, Dr Stern acknowledged in cross-examination that Medicare does not mandate the amount of tissue which needs to be excised for it to constitute a breast reduction under the Medicare item numbers. [101] Instead, his opinion on the amount of tissue required to be excised for a breast reduction was based on what insurers in America required at the time he practiced there in 1990 or 1991. [102] He acknowledged that this has not been adopted in Australia. [103] In his statement, the respondent gave the following details regarding Patient B: a. The respondent's initial consultation with Patient B occurred on 23 March 2018 at the respondent's Wollongong practice. Patient B indicated she was 6 weeks post-partum and would like surgery to reduce the size of her breasts and remove the excess skin that resulted from her weight gain. The respondent's view was that Patient B was not currently an appropriate candidate for either surgery, however, did consider she would be appropriate in the near future. b. The respondent advised that he was not prepared to remove Patient B's excess skin until her weight had been stable for at least six months." 1. The Respondent also referred to the expert evidence of Dr Ritz quoting his report as: "The procedure was a breast reduction procedure, and using Medicare numbers for this was appropriate. There is no stipulation as to how much tissue must be excised for a breast reduction procedure." 1. Under the heading "Submission" the Respondent said: "In relation to Particular 6, The Tribunal could not be satisfied that the respondent carried out a bilateral breast lift procedure on Patient B (as opposed to a bilateral breast reduction procedure). The only evidence proffered in support of this allegation is the opinion of Dr Stern, that the amount of tissue excised is consistent with a breast lift rather than a breast reduction by American standards. The respondent repeats and relies on the submissions made earlier regarding in part, Dr Sterns idiosyncratic approach to assessing standards of care, in relation to the weight to be given to Dr Stern's evidence. Adopting insurers requirements in the US from 30 years ago, as compared to Medicare requirements, is a clear example of this.160 101. The fact of the matter is that Patient B signed a consent form which stated "bilateral breast reduction +/- insertion of breast implants. 161 Further, in Patient B's second consultation with Dr Amjadi on 4 May 2018 he records in his clinical records: "Hx: Ceased breastfeeding about 6/52 ago. Can proceed with breast reduction in 2/52; 2/12 (2 months) after stop breastfeeds".162 102. As noted above, Dr Ritz opined that the procedure was a breast reduction procedure. While the respondent is not required to prove anything, the respondent submits that the evidence of Dr Ritz should be preferred. It follows that the Tribunal could not be satisfied that the Commission has proven sub-particulars 6(a)-(b) in respect of Complaint." We make the following finding in relation to Particular 6(a) and 6(b). 1. In the cross-examination of Dr Stern, we have noted the following earlier in these reasons: "Dr Stern was then asked questions about his report in relation to Patient B. He was taken to his criticism of the Respondent for describing the procedure he performed as a beast reduction (and using the corresponding Medicare number) when Dr Stern opined that what had been performed was a breast lift. Breast lift procedures do not have a Medicare payment number. Further, Dr Stern had referred to an American insurance requirement of 240 grams of breast tissue to be removed to be described as a breast reduction." 1. Dr Stern agreed that the consent form signed by Patient B described the procedure as a breast reduction plus or minus implants. He conceded that Medicare does not mandate the amount of tissue which is required to be removed to constitute a breast reduction and to be able to claim against that Medicare item number. He conceded his experience with an American insurance company was in 1990 or 1991. He said there is still a limit in the USA however, it varies from insurer to insurer. He conceded that for Australia he could not identify a teaching manual or textbook which identified an amount of tissue which would need to be removed to be described as a breast reduction. With all that conceded Dr Stern was asked whether he should temper his criticism of the Respondent in relation to the description of the subject procedure as a breast reduction. Dr Stern responded: "I believe that a registrar who has been through five years of training would usually understand what qualifies as a bilateral breast reduction. So I would accept that 135 grams or 140 grams may reasonably constitute a breast-reduction in a breast asymmetry case, for example, or in a patient who is of a particular build. But calling it a bilateral breast structure, two sides with those amounts of tissue, I don't know how much criticism you want me to temper. So I still believe that that's a breast lift to me." 1. We note that the facts in sub-paragraphs (a) and (b) of Particular 6 are admitted as true statements. The issue is whether the operation was misdescribed apparently for the purpose of permitting the operation to be charged to Medicare. Such an action of misdescription to enable a procedure to be paid for by Medicare when it would not have been paid for had it been correctly described, is an allegation of fraud. No such proposition was put to the Respondent and so the only inference we can draw from that circumstance is that the underlying suggestion from the HCCC is that such a misdirection was made under mistake or out of ignorance. 2. We do not accept the Respondent engaged in any deliberate act to misdescribe the surgery. We find that the Respondent believed he was undertaking a bilateral breast reduction procedure in the subject operation. We find that the HCCC has not satisfied us that the operation the Respondent undertook with Patient B on 17 May 2018 was a breast lift procedure, as opined by Dr Stern. We find that, on balance, given the evidence presented to Dr Stern in cross-examination he should have tempered his criticism of the alleged misdescription to agree that the procedure carried out by the Respondent on Patient B on 17 May 2018 could reasonably be described as a bilateral breast reduction procedure. Particular 6(c) and 6(d) 1. These Particulars are as follows: (c) the practitioner had previously advised Patient B was not a candidate for any surgery involving skin reduction; (d) the practitioner performed the procedure when Patient B was approximately four months postpartum which is contrary to the clinically accepted practice in relation to any surgical modification to the breast postpartum. 1. The Respondent denies Particular 6(c). He says in his Reply document that he did not tell Patient B she was not a candidate for any surgery involving skin reduction in a general sense. He admits he did advise her that she was not a candidate for any surgery involving skin reduction until her weight had been stable for at least six months. 2. In the HCCC submission the following is included: "114. The evidence of Dr Ritz contradicts that of the respondent. He notes that: Dr Amjadi previously advised the patient she was not a candidate for any surgery involved in skin reduction however, both breast reduction and mastopexy involve excision of skin and therefore this assessment is incorrect and definitely falls below the standard. 115. Dr Stern's evidence is that Breast lifting (mastopexy) always involves some skin reduction component to the surgery. This contrasts with Dr Amjadi's notes in which he maintains that he advised the patient that she would not be suitable for any skin reduction procedure until her weight had been stable in this postpartum period for at least six months. 116. The effect of the experts' opinions confirms that either a breast reduction or a breast lift involve the excision of skin. Dr Ritz's opinion confirms the allegation that Dr Amjadi advised Patient B she was not a candidate for any surgery involving skin reduction. 117. In the circumstances, the Tribunal can find as a matter of fact that the respondent inappropriately performed a bilateral breast lift procedure on Patient B in circumstances where the practitioner had previously advised Patient B was not a candidate for any surgery involving skin reduction. Particular 6(c) of Complaint One ought to be made out against the respondent." 1. The Respondent submitted: "In his statement, the respondent gave the following details regarding Patient B: a. The respondent's initial consultation with Patient B occurred on 23 March 2018 at the respondent's Wollongong practice. Patient B indicated she was 6 weeks post-partum and would like surgery to reduce the size of her breasts and remove the excess skin that resulted from her weight gain. The respondent's view was that Patient B was not currently an appropriate candidate for either surgery, however did consider she would be appropriate in the near future. [104] b. The respondent advised that he was not prepared to remove Patient B's excess skin until her weight had been stable for at least six months." [105] 1. The Respondent further submitted: "In his statement, the respondent made the following reflections on his treatment and management of Patient B: a. He was persuaded by Patient B's requests to have surgery within her desired time frame (while still post-partum), and thus 'compromised on my boundaries as an expert adviser to the patient'." [106] 1. The Respondent submitted: "In respect of sub-particular 6(c), the respondent contends that he in fact advised Patient B during their first consultation on 23 March 2018 that he would not be prepared to consider any surgery to remove her excess skin until her weight had been stable for at least six months. This is recorded in his clinical records. [107] On the same date of that discussion, Patient B does sign a consent form for a breast reduction. The overwhelming inference therefore is that the discussion regarding removing excess skin was focused on other parts of Patient B's body. It is submitted that this is consistent with the fact that he initially only performed a breast reduction surgery on Patient B. It is unclear from the terms of Particular 6(c) what it adds to the failure alleged against Dr Amjadi, in light of the gravity clearly resting in Particular 6(d). As previously noted, the respondent admits Particular 6(d)." Finding on Particular 6(c) 1. It seems to us that, on balance, the reference by the Respondent to Patient B not being a candidate for skin reduction, most probably was not a reference to skin in the region of her breasts. We find it was most likely reference to excess skin in the area of her abdomen, back and thigh. He performed the breast operation in May 2018 and the radical abdominoplasty, belt lipectomy and thigh lift in July that year. 2. Further, it appears to us that the reference to advice that Patient B was not a candidate for skin reduction on the same date she signed a consent for breast reduction, it is reasonable to conclude that the breast reduction would involve some skin reduction. Such a conclusion, in our view adds weight to the evidence of the Respondent that his reference to not being prepared to consider skin reduction surgery (he says until her weight was stable for six months) was reference to surgery other than the breast reduction surgery which was performed in May 2018. 3. We do note that, although the Respondent stated he would not operate on Patient B for skin reduction until her weight had been stable for six months, he did operate on her less than four months after that statement was made to Patient B in consultation on 23 March 2018. That does not appear to be a fact germane to this Particular 6(c). 4. We find therefore that Particular 6(c) has not been established by the HCCC to our satisfaction. Particular 6(d) 1. The Respondent admits that he performed the surgery when Patient B was approximately four months post-partum. He further admits that he should have delayed the surgery until a later date. In the HCCC submission it stated: "120. Dr Ritz also opines that conducting the operation when Patient B was only 4 months postpartum "can be perceived as a problem" and that "[t]his could fall below the standard of care". 121. Dr Stern's evidence is that: "Accepted practice in the subspecialty area of plastic and reconstructive surgery would be to permit the involution of breast tissue to continue for between six and 12 months after the completion of lactation before undertaking any surgical modification of the breast." 1. We note in the report of Dr Stern in relation to Patient B and addressing Particular 6(d) he opined that the operation on the breasts of Patient B when she was approximately four months postpartum was significantly below the standard reasonably expected. [108] In reaching that opinion he referred to the Respondent's response in relation to the timing of the procedure relative to the date of delivery of Patient B's baby. Dr Stern stated: "I do not accept Dr Amjadi's response regarding this timing that he felt that the patient's breasts had reached a stable point, as he only met the patient on two occasions separated by approximately six weeks, and there is no documentation that he examined the patient's breasts on either of those dates." 1. In the Respondent's submission he states: "The respondent next saw Patient B on 4 May 2018. She had ceased breastfeeding six weeks prior and reported her breasts had returned to their pre-pregnancy size. As such, on 17 May 2018, the respondent performed a bilateral breast reduction on Patient B." 1. Further in his submission the Respondent stated: "He was persuaded by Patient B's request to have surgery within her desired time frame (while post-partum) and thus "compromised on my boundaries as an expert adviser to the patient." The "desired time frame" apparently referred to her work commitments. Finding on Particular 6(d) 1. Dr Stern opined that undertaking a procedure on the breasts of Patient B (as she requested) whilst she was so proximate to giving birth, was significantly below the standard. Dr Ritz opined that it was below the standard. The Respondent admits the timing of the operation was a mistake and he would not do it again. 2. In relation to this Particular 6(d) we do consider the opinion of Dr Stern is to be preferred to that of Dr Ritz. It seems to us to be a significant departure from an accepted view/practise of experienced plastic surgeons, that they will not operate on the breasts of a post-partum patient until "the involution of breast tissue to continue for between six and 12 months after the completion of lactation". 3. The Respondent said that he agreed to perform the breast operation on Patient B, when she was four months post-partum because it fitted her timeframe. That appeared to refer to the time she had available as leave from her employment. The Respondent, with the benefit of hindsight clearly accepts that was an insufficient reason to perform the breast operation, at that time. 4. The fact that the operation was performed at four-month post-partum (reasonably close to six months) again, we do not see as reducing the degree of concern about the timing of the operation. It was we find a significant departure from the expected standards, applicable to the Respondent. at that time. 5. We therefore find the Particular established. Particular 7 (a) and (b). 1. This Particular states: On 10 July 2018, the practitioner inappropriately arranged for Patient B to be transferred to another hospital in circumstances where: (a) Patient B had bilateral gluteal wound dehiscence; (b) the transfer put Patient B at greater risk of wound contamination and/ or infection 1. In the Further Amended Reply, the Respondent stated: "7. I admit that I arranged for Patient B to be transferred to another hospital on 10 July 2018 but do not admit that this was inappropriate. In relation to the sub-particulars, I say as follows: a. I admit that Patient B had bilateral wound dehiscence but do not admit that this was a reason not to transfer her to another hospital. b. I do not admit that the transfer put Patient B at greater risk of wound contamination and/or infection and state that any risk was not so great on balance to make it inappropriate for Patient B to be transferred to another hospital in circumstances where transfer was occurring to ensure continuation of care." 1. The HCCC submits: "The factual finding which the Tribunal can make in respect of this Particular are the same as in respect of the post-operative care of Patient B set out in Complaint One, Particular 3. The respondent admits that Patient B had bilateral wound dehiscence but does not admit that this was a reason not to transfer her to another hospital. [109] Respondent's expert evidence." 1. The HCCC then referred to earlier paragraphs in the submission, i.e. paragraph 54 and 56. We think it was actually meant to be paragraphs 54 and 55, however, we set out here what was stated in the paragraphs referred to: "54. Contrary to the suggestion by Counsel for the respondent to Dr Stern that Patient B was moved at her own request, the respondent's own evidence is: [110] 86. In the postoperative period her abdominoplasty and thighs healed well. Unfortunately Patient B developed a haematoma on the right back side that required evacuation. The wound did not heal as desired at the site of haematoma. 87. I recognised at this stage that the wound would need to be closed surgically. As I was unable to perform that surgery at Holroyd Private Hospital, I had Patient B transferred to St Luke's Hospital. (emphasis added) Respondent's expert evidence 55.The respondent's expert's opinion was that this was "most likely because Dr Amjadi appears to have only have [sic] privileges in one hospital and that is reasonable so that Dr Amjadi could look after the patient". [111] Dr Ritz also opined that "[i]t is difficult to know how big it was and there is no exact note made of this but the dehisced wounds were treated adequately in an appropriate way with a VAC dressing. This is within the standards expected". [112] 56. In cross-examination Dr Ritz gave evidence about complications in the specific cohort of post-bariatric patients because: post-bariatric patients have specific problems. They are often not well nourished. Even though they look thin, they're not well nourished. They don't heal the same. They have poor skin quality. And so they need a specific discussion before surgery". 126. In addition to the evidence in paragraphs 54 and 56 above, Dr Ritz also said: It would not place the patient at greater risk of contamination or infection if the wounds were dressed and she was moved in a medical way. Applicant's expert evidence. 127. In cross-examination, it was put to Dr Stern that Dr Ritz wasn't critical of the respondent's decision to transfer Patient B to another hospital. In reply, Dr Stern said: "Dr Ritz and I will disagree on that point". 128. In respect of Particular 7(a), in circumstances where the respondent's decision to transfer Patient B was a significant departure from best practice or ideal practice, the Tribunal ought to find it inappropriate for the respondent to have transferred Patient B where she had bilateral gluteal wound dehiscence. 129. In respect of Particular 7(b), the respondent does not admit: that the transfer put Patient B at greater risk of wound contamination and/or infection and states that any risk was not so great on balance to make it inappropriate for Patient B to be transferred to another hospital in circumstances where transfer was occurring to ensure continuation of care. 130. Dr Stern gave evidence that transferring Patient B would undoubtedly put the patient at greater risk of other complications, such as wound contamination or infection and must be viewed as a significant departure from normal clinical practice, significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience 131. When his evidence was put to him in cross-examination, Dr Stern maintained his position: Q. Do you still maintain that it was a significant departure? I appreciate that it may not be best practice or ideal practice, but a significant departure? A. It's a significant departure in as much as I have never heard of any other surgeon in my gossip network ever having done that as a way of looking after it. So to me, that's a significant departure. Q. But as a peer review expert of impartiality— A. Yes. 1. The HCCC further submits: "133. Although there is evidence before the Tribunal from the respondent himself that the motivation for transferring Patient B to St Luke's was so he could perform surgery to close the wound himself, there is no evidence: a. Patient B was responsible for deciding that she should be transferred from Holroyd Private Hospital to St Luke's; b. the transfer was medically necessary or required; c. the wound closure surgery was not available to Patient B at Holroyd Private Hospital; d. from any expert that a necessity for Patient B (if any) to continue in the care of the respondent justified the significant departure from normal clinical practice. This is only the reason proffered by the respondent himself. 134. In the premises, the Tribunal ought to uphold Complaint One, Particular 7." Respondent's Reply and Submission. 1. We have set out above the Respondent's Reply to Particular 7. In addition the Respondent referred to that Particular in his "Supplementary Statement" which was marked as exhibit R20. There he stated in relation to this Particular and in addition to that which was set out in his Reply: "I further say I arranged that transfer to another hospital where I had admitting privileges and would be able to manage her treatment personally. He further stated that he did not admit the transfer put Patient B at greater risk of wound infection and state that any risk was not so great, on balance, to make it inappropriate for Patient B to be transferred to another hospital in circumstances where the transfer was occurring to ensure continuation of care." 1. The Respondent in his submission stated: 104. In relation to Particular 7, in the respondent's respectful submission, Dr Stern's 'gossip network' is not a sufficient basis to conclude that the transfer of Patient B was significantly below standards. The Tribunal would prefer the evidence of Dr Ritz that the transfer was reasonable and did not increase the risk of contamination. 105. In the Commissions written submission they state that the respondent has failed to prove a number of matters relating to the necessity of the transfer: AWS [133]. In the respondent's submission, this amounts to an impermissible attempt to shift the onus of proof onto the respondent. The onus is on the Commission to prove Particular 7: it has not done so. It follows that the Tribunal could not be satisfied that the Commission has proven Particular 7 of Complaint 1. 1. The Respondent also relied on the opinion of Dr Ritz. He submitted: "d. The decision to transfer Patient B to another hospital was reasonable and would not place the Patient at a greater risk of contamination." [113] 2. The Respondent further submitted: "In respect of the decision to transfer Patient B, Dr Stern acknowledged in cross-examination that Patient B had expressed dissatisfaction with her admission at Holroyd Hospital. He stated that her grievances 'shouldn't be ignored' and accepted that in light of that fact, the decision to transfer her was 'more understandable'. However, in his view, the transfer was still a significant departure from surgical standards. This was because 'I have never heard of any other surgeon in my gossip network ever having done that'."(references are to the transcript of 15 March 2024 pages 329 to 330.) Finding on Particular 7 1. We find that, on its face, the transfer of a patient from one private hospital to another whilst the patient was still recovering in the first hospital following major surgery, is out of the ordinary and unexpected. Thus, we understand the manner in which Dr Stern reached his conclusion that such an event was significantly below the expected standards applicable to the Respondent, at that time. 2. We do need however, to take account of the circumstances which the Respondent faced at the time he reached the decision to make the transfer. He faced the complaints of the patient about the standard of care she was receiving in the primary hospital in which the operation was undertaken. The surgery site was not healing. The post-operative care for Patient B needed to be at the proper level. Patient B was aware of the service she should have been receiving in the post-operative phase as she was a Director of Clinical Services in a Hospital. The Respondent had the ability to personally monitor the healing and recovery of Patient B in the hospital to which she was transferred. He also had a surgery time available in two days after the transfer. 3. Patient B said she was unhappy with the care she was receiving at Holroyd Hospital and so she rang Westmead Hospital to see if she could gain admission there. Patient B formed the view, based upon her experience in her own employment within a hospital, that she was not receiving appropriate care. She was transferred to St Luke's Hospital in Darlinghurst to undergo further surgery in two day's time. 4. Patient B underwent further surgery at St Luke's Hospital and spent a week in that hospital. 5. Whilst Dr Stern was effectively saying that such a transfer as occurred in this case was "unheard of" within the plastic surgical circles he moved in, the moving of the patient was not one undertaken to simply suit the surgical calendar of the Respondent. We accept the Respondent would have been confronted by the complaints of Patient B about the standard of her care and the necessity to be able to repair her wound as soon as possible. Further, given that Patient B had been dissatisfied about the care she received in Holroyd Hospital, we accept the Respondent would have been wanting to ensure he could personally supervise her post-operative care following the procedure which took place two days after the subject transfer. 6. In the circumstance we find that the transfer of Patient B from Holroyd Private Hospital to St Lukes Private Hospital was below the standard expected of the Respondent at that time, we do not find it was significantly below that standard given the particular circumstances which confronted the Respondent at that time. Particular 8 and 10 for Patient C 1. This Particulars are: 8. Between 8 March 2019 and 1 August 2019, the practitioner failed to conduct any physical examination of Patient C prior to Patient C being admitted to Sydney Private Hospital on 1 August 2019 for abdominoplasty surgery. 10. On 1 August 2019, during the abdominoplasty procedure on Patient C, the liposuction cannula used by the practitioner struck and caused damage to Patient C's pancreas; liver and spleen. 1. The Respondent admits Particulars 8 and 10, however, he does not admit the conduct is significantly below the standards reasonably expected of the Respondent at the time of the operation on Patient C. 2. In exhibit R20 the Respondent explains his assertion that the conduct should not be found to be significantly below the standards reasonably expected. He stated: "The unfortunate interoperative event, has never occurred before or since and I say does not reflect incompetence or technical deficiencies so as to warrant a finding of a lack of skill and care significantly below the standards reasonably expected. Surgery comes with risks that on occasion, as was the case here, eventuate" 3. The HCCC submitted: "138. Dr Stern's assessment of the respondent's skill in respect of this incident is concerning: "It is not improbable anatomically that the pancreas would be the abdominal viscus to be injured in this way, and Dr Amjadi's contention that this would be highly improbable may reflect his lack of appreciation of abdominal visceral anatomy. Once a patient has undergone sleeve gastrectomy within which procedure the greater momentum is largely mobilised from the greater curvature of the stomach, the head of the pancreas becomes relatively more exposed. The unquestioned occurrence of these adverse events in association with a purely aesthetic elective procedure demonstrates a level of surgical skill and anatomical understanding which is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 139. The fact that it is not anatomically improbable does not make the occurrence of this injury "an unfortunate intraoperative event". 1. The HCCC then referred to the evidence of Dr Ritz as follows: "140. Again, Dr Ritz's opinion is brief: The complication of piercing the peritoneum, the pancreas and liver is very rare. It has been described in the surgical literature and it is not a specific complication that is always discussed with every patient and certainly is a complication that everyone tries to prevent…. It is a technical issue and the main concern here is that the peritoneum was not breached once but on multiple occasions. That is the surgical misadventure. 141. In cross-examination Dr Ritz was asked to express his opinion "in the terms of falls below or falls significantly below in relation to the surgery". He answered as follows: Well, that, well, that falls, to me, that falls significantly below the standard because if you breach the peritoneum once, but this was multiple times and that's a technical error. There's a technique for liposuction. There's a technique for liposuction of the abdomen. And it is a technical error to breach the, the abdominal wall, and, yeah. It's, it's, it's significantly below the standard" 1. The HCCC concluded its submission on this Particular with the following: 142.With the experts in agreement that the respondent's conduct in damaging Patient C fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, the Tribunal ought to uphold Complaint One, Particular 10. 1. The evidence of Dr Ritz in relation to both Particular 8 and 10 is that the conduct demonstrates a level of care which is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Respondent's submission 1. The Respondent's submission stated: 113. In his statement, the respondent gave the following details regarding Patient C: a. Patient C's initial consultation on 8 March 2019 was on Skype, as Patient C worked and lived in Manus Island. During this consultation, they discussed Patient C's medical history, the photographs she had sent in, her weight loss, her expectations for the surgery, and the general risks of the surgery. [114] Patient C was sent the usual forms, including an explanation of the surgery (including risks) and a consent form. [115] b. On 1 August 2019, the respondent performed an abdominoplasty on Patient C. The operation report recorded that he had discussed with Patient C that the operation 'will NOT address the rolls on the flanks or upper abdomen. Pt happy to proceed'. [116] c. The day after surgery, the respondent was advised that Patient C was experiencing significant abdominal pain. He requested an urgent CT scan be performed, which suggested pancreatitis. The respondent accompanied Patient C to Royal Prince Alfred Hospital. A laparotomy was performed at RPA by Dr Sandroussi, which confirmed traumatic pancreatitis. [117] d. Following her discharge from RPA, Patient C was readmitted to Sydney Private Hospital. Her laparotomy wound became infected. She was treated with antibiotics. [118] 114. Dr Amjadi accepts that he should have examined Patient C prior to her surgery, rather than on the day of her surgery. [119] He further accepts that the complication that Patient C suffered was significant, life-threatening and rare. He did not discuss it with her prior to the surgery due to its extremely remote possibility, although it was mentioned in the written consent documents." [120] Finding on Particulars 8 and 10. 1. We find Particulars 8 and 10 proved to the accepted standard. We find that the Respondent's care of Patient C was significantly below the standard expected of a surgeon with the Respondent's level of knowledge, training and experience. We so find relying on the evidence of both Dr Stern and Dr Ritz. Patient D Particular 12, 13 and 14. 1. The Particular 12 is: First Surgery – 22 August 2018 12. Between 27 April 2018 and 22 August 2018, the practitioner failed to conduct any physical examination of Patient D prior to Patient D being admitted to Sydney Private Hospital on 22 August 2018 for a lower back lift procedure including liposuction. 1. The Respondent admits this Particular. 2. Particular 13 is: Second Surgery – 23 October 2018 13. Prior to performing a bilateral medial thigh lift and bilateral augmentation mammoplasty on Patient D on 23 October 2018, the practitioner failed to conduct any physical examination of Patient D until 22 October 2018, being the day before surgery. 1. The Respondent admits this Particular. 2. Particular 14 is: Third Surgery – 6 August 2019 14. Between 8 February 2019 and 6 August 2019, the practitioner failed to conduct a further physical examination on Patient D prior to Patient D being admitted to Sydney Private Hospital on 6 August for revision surgery in relation to Patient D's bilateral medial thigh lift procedure performed on 23 October 2018. 1. The Respondent admits this Particular. 2. The Respondent submitted extensively on these Particulars 12, 13 and 14. His submission went to the issue of whether the conduct was significantly below the expected standard applicable to him at the time of the procedures. 3. The Respondent firstly sets out the history of Patient D's emails and communications with him post the first and second operations. 4. The Respondent submitted: "In his report dated 9 August 2021 regarding Patient D, the relevant aspects of Dr Stern's criticism as it pertains to the express Particulars alleged is a failure of pre-operative physical examination of Patient D which Dr Stern found was significantly below the standard reasonably expected. Dr Amjadi accepts this degree of failure. Many of Dr Stern's criticism then relate to absent information from the clinical records." 1. The Respondent also referred to the evidence of Dr Ritz as follows: "In his expert report, Dr Ritz opined the following in relation to Patient D :'There is no evidence in the medical notes to support any physical examination prior to the back lift procedure. This falls significantly below the standards reasonably expected,202 an opinion he maintained in oral evidence' and as a result the 'pre-operative assessment on each occasion is inadequate and falls significantly below the standard. This is due to the extremely limited evidence of physical examination, no record of any preoperative measurements, and deficient operation notes." 1. At the conclusion of a section in his submission which dealt with the progression of procedures he performed for Patient D and the responses of satisfaction he received from Patient D, the Respondent set out the following: "The respondent accepts that it would have been prudent to examine Patient D in person before the day of the abdominoplasty.218 Dr Amjadi highlights that Patient D's version of events that she provided to the Tribunal are very different to the positive feedback she gave the respondent following her initial surgery, which suggested an uncomplicated recovery." 1. In the finality of his submission in relation to Particulars 12, 13 and 14 the Respondent submitted: "Dr Amjadi admits his failure to examine Patient D pre-operatively was a significant failure on his behalf. This supports a finding of proof of Particulars 12, 13, and 14, noting further the agreed expert opinion of Dr Stern and Dr Ritz regarding the degree of failure." Finding on Particulars 12, 13 and 14. 1. We accept the expert evidence of Dr Ritz and Dr Stern in relation to these Particulars and we find Particulars 12, 13 and 14 established and that the Respondent care of Patient D in the manner described was significantly below the standard expected of the Respondent at the times specified in the Particulars. Patient E Particulars 15, 16 and 17. 1. These Particulars state: First Surgery 15. On 12 July 2018 the practitioner performed a bilateral brachioplasty procedure on Patient E in circumstances where the practitioner: (a) inappropriately removed excessive tissue from Patient E's right arm; (b) performed circumferential liposuction on Patient E's right arm which was not clinically indicated. 16. On 10 August 2018, the practitioner conducted a post-operative review of Patient E and noted that revision surgery within the axilla may be required but failed to make any plan to review Patient E again in circumstances where: (a) there was a significant difference in healing between the right and left arm; (b) the bilateral brachioplasty surgery on 12 July 2018 was complicated. Second surgery 17. On 11 December 2019 the practitioner inappropriately performed revision scar surgery on Patient E's right arm, in circumstances where scar revision surgery: (a) was not clinically indicated given Patient E's history of poor contour outcome with constriction bands of tension; (b) had a strong possibility of resulting in wound healing complications. 1. The Respondent's Reply to those Particulars is: With respect to the Particulars 15- 17 of Complaint One pertaining to Patient E First Surgery 15. I admit that I performed a bilateral brachioplasty procedure on Patient E on 12 July 2018 and respond to the sub-particulars as follows: a. I do not admit that I inappropriately removed excessive tissue from Patient E's right arm. b. I admit that I performed circumferential liposuction on Patient E's right arm but do not admit that this was not clinically indicated. 16. I admit that on 10 August 2018 I formed the view that revision surgery to the axilla may be required for Patient E for the reasons outlined in my supplementary statement. Second Surgery 17. I admit that I performed revision surgery on Patient E's right arm on 11 December 2019 but do not admit that this was inappropriate. I say the following with respect to the sub-particulars: a. I do not admit that this revision surgery was not clinically indicated as Patient E was complaining of discomfort in her right arm at the surgical site. b. I do not admit that this revision surgery had a strong possibility of wound healing problems but instead say that Patient E had the usual risk of wound healing problems that are inherent to this surgery. HCCC Submission 1. The HCCC set out its submission on these Particulars and we noted the following. In relation to Particular 15. Applicant's expert evidence. 154.The evidence of Dr Stern is: "It is possible that the assessment was incorrect preoperatively and it was always going to benefit from a two-staged approach with liposuction, or that the actual execution of the surgery lacked proper planning and skill, involved excessive tissue resection, and that the liposuction was an afterthought to try to facilitate wound closure. Clearly the volume of tissue removed on the right arm was excessive in either circumstance leading to an excessively tight repair, with swelling, mild vascular congestion, and blistering of skin consistent with compromised blood supply to the skin due to the tension. The background history of smoking will again have contributed to the post operative difficulties after this operation and there had been multiple months between initial consultation and date of surgery for the patient to have been advised to stop smoking. This sequence of potentially inadequate preoperative assessment leading to the poor implantation [sic] of an appropriate surgical procedure in the presence of other known risk factors is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (emphasis added)" 1. The HCCC submits: "It is clear from Dr Stern's opinion that the respondent was operating at a level significantly below the standard expected." 1. The HCCC then referred to the evidence of Dr Ritz as follows: Respondent's expert evidence 156. Dr Ritz's evidence displays a level of bafflement at the respondent's conduct of the surgery: "It is very difficult to understand after the first surgery regarding the amount of tissue removed. There is obviously more tissue removed on the right side than the left but not understanding whether there was an initial asymmetry, it is difficult to understand why that would be done as well as the liposuction which is often done if too much tissue has been removed … The circumferential liposuction is often performed if closure is not easily obtained but this was not mentioned preoperatively." 1. The HCCC then concluded its submission on this Particular with: 157. In circumstances where the experts agree that either excessive tissue was removed or it was difficult to understand why excessive tissue had been removed from Patient E's arm, it is open for the Tribunal to find that Complaint One, Particular 15(a) is established. 158. Equally, where there is expert evidence that no liposuction was mentioned pre-operatively and appears to have been performed "as an afterthought" to remedy surgery going badly, it is open to the Tribunal to find that Complaint One, Particular 15(a) is established. 1. The HCCC then Addressed Particular 16. The submission included the following: 161. Dr Stern's evidence is unequivocal: "The lack of further review following only four weeks after a complicated operation would be viewed as significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 162. By contrast, Dr Ritz's evidence does not address the nub of the complaint, which is primarily, the failure to make a plan to review patient E. His evidence does accept the significant differences in healing between the right and left arms. He says, there "was obviously a difference between the right and left arm because more tissue was taken off from the right arm than the left arm, but the healing was different and resulted in different scar problems left and right". 163. Dr Ritz does not give an opinion that the brachioplasty was complicated, but this is as a result of the respondent's poor documentation. There was "no mention that the bilateral brachioplasty was complicated because the operative notes do not indicate anything specific at all. However, liposuction was used on the right arm and not the left arm". 164. In summary, Dr Ritz's opinion does not assist the respondent as it does not deal with the complaint. 165. Based upon the unchallenged evidence of Dr Stern, the Tribunal ought to find that Complaint One, Particular 16 is made out against the respondent. 1. The HCCC then moved to submit on Particular 17. That submission included the following: The Respondent's expert evidence. 168. When asked if revision surgery on Patient E's right arm was appropriate, Dr Ritz gave an equivocal opinion: "Revision surgery can be appropriate although I have not seen the photos to understand what was required." 169. His ability to opine on whether any surgery was clinically indicated rested not on a consideration of Patient E's history of poor contour outcome with constriction bands of tension, but foundered on the fact he could not comment because of a lack of photographs. 170. In respect of whether there was a strong possibility of that scar revision surgery resulting in wound healing complications, Dr Ritz's opinion is damning in its generality: "Revision scar surgery usually heals with proper preplanning that should not require wound healing complications although, these surgeries can result in that due to too much tension." Applicant's expert evidence 171. Dr Stern's opinion is clear that there is no record that Patient E's poor contour outcome with constriction bands of tension is considered by the respondent. It is equally not recorded that the respondent considers that "the attempt to excise the stretched widened calibre scar with direct repair could again be associated with a closure under excessive tension and wound healing complications". 172. In Dr Stern's opinion, in the case of Patient E, wound healing complications "would always have been a strong possibility, given the presentation of the right arm in the post-operative period, after the initial brachioplasty". 1. The HCCC then made a submission which set out Dr Stern's opinion as to the pre-operative assessment for the procedure of 11 December 2019. The Particular does not refer to the pre-operative assessment. We have assumed his criticism really addresses Particular 17(a) and we will consider it as same. The HCCC submitted in relation to the pre-operative assessment: 173. In terms of the pre-operative assessment of Patient E's revision surgery to her right arm, Dr Stern found the adequacy of the pre-operative assessment was therefore significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 174. In the circumstances where Dr Stern's evidence is unchallenged and Dr Ritz's evidence is not of assistance, the Tribunal ought to find that Complaint One, Particular 17 is made out against the respondent. The Respondents submission on Particulars 15, 16 and 17. 1. The Respondent commenced his submission in relation to Patient E with criticism of Dr Stern's evidence based upon his earlier advice to the HCCC that caused it to advise Dr Amjadi no action would be taken in relation to Patient E's complaint. That clearly is contrary to the complaint which the Respondent now faces in relation to his care and skill employed in the procedures carried out for Patient E. 2. In relation to the procedure on 12 July 2018 the Respondent submitted the following facts which he said were relevant: "Dr Amjadi's evidence in relation to Patient E's care and treatment is as follows: a. She was examined at the initial consultation on 9 March 2018, and the respondent found she had a significant amount of excess skin. The respondent considered she was suitable for brachioplasty and discussed that option with her.227 At a subsequent consultation on 15 June 2018, the respondent again explained and discussed the procedure and gave Patient E the opportunity to ask questions.228 b. The brachioplasty was performed on 12 July 2018. Patient E was discharged home on 17 July 2018. At subsequent reviews on 20 July 2018, 27 July 2018 and 3 August 2018, she appeared to be healing well.229" 1. In relation to the 10 August 2018 post-operative review, the Respondent submitted: "Patient E was reviewed again on 10 August 2018, after she raised concerns, her wounds may be infected. On review the respondent reviewed the pathology results which showed no evidence of infection.230" 1. In relation to the procedure on 11 December 2019 the Respondent submitted: "The respondent performed scar revision surgery on Patient E's left arm on 9 October 2019. On the day prior, the respondent's nurse contacted Patient E and went over some of the risks of surgery, which the respondent had previously gone over with Patient E in their previous consultation.232 f. On 25 October 2019, the respondent saw Patient E for a follow up examination. The wounds appeared to be healing well, and he advised her that she could shower and to apply micropore tape. On 27 and 29 October 2019, the respondent and Patient E exchanged text messages as Patient E appeared to be having a local reaction to the micropore tape.233 g. On 11 December 2019, Patient E attended for scar revision on her right arm. She did not attend a prior appointment on 22 November 2019. The respondent denies that he told her not to attend this appointment.234 Patient E was discharged following her scar revision surgery on 11 December 2019. h. On 14 December 2019, Patient E attended for an examination. She had reported feeling itching in her wound. On examination the respondent noted some erythema and a 7mm epidermal opening. He closed the wound in his rooms due to its small size. On 19 December 2019, on further examination, the wound was healing well. On 3 January 2020, the respondent removed Patient E's sutures.235" 1. In relation to the evidence of Dr Ritz the Respondent submits: In his expert report, Dr Ritz opined the following in relation to Patient E: The preoperative assessment was not appropriate as there were no measurements taken or photographs.243 This falls below the standards. c. The surgery itself falls below the standard because it isn't clear why more was taken from one arm than the other.244 d. He disagrees with Dr Stern that the bilateral brachioplasty surgery should have been done in two stages, as 'it is very unusual today to find it done in 2 stages'.245 e. He disagrees with Dr Stern that the failure to follow up with the patient was poor practice: 'some responsibility has to be placed on the patient'.246 f. The post-operative care was adequate.247 g. There is nothing to indicate that the bilaterial brachioplasty was complicated.248" 1. The Respondent cautions the Tribunal giving weight to the opinion of Dr Stern on these Particulars. He submits following the early advice (the first report) of Dr Stern: "All opinions therefore of conduct that is significantly below the standards expected in Dr Sterns subsequent report need to viewed with caution as they are arguably contaminated by knowledge of other complaints as compared to a close analysis of the actual facts in this case. We note Dr Stern takes no criticism with the respondent's recommendation for surgical scar revision in September 2019, asserting it was appropriate251; and further that after the scar revision surgery, the post-operative management of the complications of the surgery was 'appropriate'" 1. The Respondent in his submission then states: "In relation to Particular 15, the Commission relies on the evidence of Dr Stern to establish its claim that excess tissue was removed (Particular 15(a)) and that the liposuction was not clinically indicated (Particular 15(b)). It is true that Dr Stern claims that excess tissue was removed.253 However, Dr Ritz opines simply that 'it is very difficult to understand' why the tissue was removed."254 It is submitted that the Commission has not proved that excess tissue was removed. 144. However, the problem for the Commission is that nowhere does Dr Stern (or any other witness) state that the liposuction was not clinically indicated. Clearly, the Tribunal could not find Particular 15(b) to be proved. In relation to Particular 16, the respondent submits that it was not unreasonable for him to not conduct a formal review of Patient E where, on his unchallenged evidence, he remained in constant contact with Patient E, including in relation to her recovery. 146. In relation to Particular 17, the Commission relies on the evidence of Dr Stern. However, while he finds that the pre-operative assessment was significantly below standards, at no point does Dr Stern (or any other witness) state that the scar revision surgery in December 2019 was not clinically indicated. The Commission's submission regarding proof of Particular 17 (AWS [168]=[174]) relies on either evidence extraneous to the actual particulars of the allegation or again, shifts the onus onto the respondent to rebut an allegation that their own evidence does not substantiate. The Commission has not proved Particular 17." Finding on Particulars 15, 16 and 17. Particular 15(a) and 15(b) 1. The opinion of Dr Stern in relation to the amount of tissue removed from the right arm of Patient E is based upon the outcome of the procedure. He considered the "excessively tight repair, with swelling, mild vascular congestion, and blistering of skin consistent with compromised blood supply to the skin due to tension." 2. It is to be remembered that this patient is also the subject of Complaint One Particular 1 which addresses the obtaining of informed consent. Such consent is to be obtained in the pre-operative procedures employed by experienced plastic surgeons. 3. Dr Stern also describes the use of liposuction, (described earlier in his opinion as circumferential liposuction) as an aid to facilitate what "was clearly excessively tight wound closure". He refers to the fact that the use of liposuction was not spoken of by the Respondent at pre-operative discussions with Patient E nor referred to in any note of the planning of the operation. 4. In the evidence of Dr Ritz, he clearly struggled to understand why there was a difference in the amount of tissue removed from each arm. His evidence is: "Paragraph 92(c): It is very difficult to understand the amounts of tissue removed. There is obviously more tissue removed on the right side than the left but not understanding whether there was an initial asymmetry, it is difficult to understand why that would be done as well as the liposuction which is often done if too much tissue has been removed." 1. The HCCC also noted the view of Dr Ritz in relation to the use of circumferential liposuction as: "Paragraph 92(d): The circumferential liposuction is often performed if closure is not easily obtained but this was not mentioned preoperatively." 1. It is difficult to find the Respondent's evidence in relation to the issues raised by these Particulars and the operations performed for Patient E. In his letter dated 24 March 2020 to the HCCC the Respondent replies to a letter he had received detailing concerns raised in relation to his care and skill employed with this patient. The Respondent advises that the records he made for this patient were not available to him as the practice had closed and he had no access to records. He does not address the reason for the difference in the amount of tissue removed from each arm. He does not address the reason for the use of Liposuction where it appears such a procedure was not discussed with Patient E in the pre-operative consultation. 2. Although Dr Stern does not explain what might be seen as an appropriate amount of tissue to remove in a brachioplasty procedure, his opinion is clearly based on the presentation of the outcome of the operation. Having viewed that outcome he was able to opine, with certainty, that the outcome is illustrative of an excessive amount of tissue removal. 3. Dr Stern is clearly critical of the way in which the operation on 12 July 2018 was planned (or was not adequately planned) and the skill level utilised by the Respondent in the operation. 4. Having assessed all that has been submitted and having re-considered the evidence relevant to the work the Respondent undertook for Patient E, we find no reason to reduce the weight to be given to the opinion of Dr Stern on this Particular. 5. We are satisfied the HCCC has established Particular 15(a) and that the care and skill provided by the Respondent giving rise to the removal of excess tissue from the right arm of Patient E was significantly below the expected standard of care which the Respondent should have provided. We accept that Dr Stern has the training and experience to determine that excess tissue was removed from the right arm by the appearance of the wound and the history of poor healing. 6. Particular 15(b) however, falls for a different determination. Dr Stern does not say why the circumferential liposuction of Patient E's right arm was "not clinically indicated". His criticism is based upon a lack of pre-operative planning to use liposuction and also to the use of liposuction to remedy an error in the operation, namely the removal of excess tissue on the right arm. Dr Ritz opined that: "It is very difficult to understand the amounts of tissue removed. There is obviously more tissue removed on the right side than the left but not understanding whether there was an initial asymmetry, it is difficult to understand why that would be done as well as the liposuction which is often done if too much tissue has been removed. The circumferential liposuction is often performed if closure is not easily obtained but this was not mentioned preoperatively." 1. It is clear to us that Dr Ritz considered the work of the Respondent with this patient on 12 July 2018 was below the expected standard for the Respondent and so did Dr Stern, however, we find ourselves unable to conclude in relation to this portion or Particular 15(b) that the finding should be that the care and skill of the Respondent was significantly below the expected standard. Finding on Particular 16(a) and 16(b). 1. These Particulars addresses an alleged failure by the Respondent to make a plan with Patient E to undertake revision surgery within the axilla if it is required. 2. In his Reply (exhibit R19) the Respondent referred to the additional information he provided in relation to this Particular in exhibit R20. The additional information is: "(a) At that stage, I was of the view that it was better to monitor the situation and reassess later. (b) I asked Patient E to contact me if her scar was still feeling too tight, which she did on 17 October 2018. (c) By the time Patient E contacted me on 17 October 2018 she was pregnant and therefore unable to have surgery at that time." 1. The Particular infers that revision surgery was not really required because of the detail in sub-paragraphs (a) and (b). 2. The Respondent's evidence shows he was in contact with Patient E at an elevated level and that he clearly wanted more time to pass before any revision surgery was undertaken to the axilla. He asked the patient to contact him if she was experiencing tightness from the scar, which she did. 3. Dr Stern said in his report, that the Respondent had made no further specific arrangements to review the patient "again despite the significant difference in the pathway to healing on the right side compared to the left, noting only that the patient would contact him if she thought this was necessary after a further two months. The lack of further review following only four weeks after a complicated operation would be viewed as significantly below, the standard reasonably expected of a practitioner of an equivalent level of training or experience." 4. We have considered the response of the Respondent to these Particulars and although we understand why Dr Stern considers the conduct of the Respondent was below standard, and significantly below, we are unable to make that finding. 5. Whilst we agree the conduct alleged is below the standard reasonably expected of the Respondent at that time, we do not see in the circumstances that it was significantly below. The Respondent stated his reason for delaying any revision surgery and we do not see that the Respondent acted unreasonably in the particular circumstances of this patient's healing, scarring and family life. Finding on Particular 17(a) and (b). 1. The Respondent denies this Particular. He asserts the revision surgery on 11 December 2019 was clinically indicated as Patient E was experiencing discomfort in her right arm at the surgical site and complained about that. He says that Patient E had the usual (same) risk of wound healing problems inherent in this type of surgery. 2. The HCCC was critical of the evidence of Dr Ritz which addressed this Particular. The evidence of Dr Stern is critical of this operation and particularly so in relation to the pre-operative assessment. There were aspects of this proposed operation which should have been considered and noted in the patient notes before the operation. 3. We agree that the proposed scar revision operation for Patient E in December 2019 required a proper assessment of the risks and possible benefits of the operations. It seems that part of the reason for revision surgery was driven by Patient E's desires to be able to hold and handle her baby without constriction in her right arm. 4. The HCCC does not present any evidence about the outcome of the revision surgery. Patient E ultimately did not return to see the Respondent following the communications entered into in January 2020. She clearly experienced some wound healing problems which were largely attended to by her GP. Ultimately her dissatisfaction was very much connected with the price her baby was paying given that she had to take him with her daily to the GP to have her dressings changed. 5. We find that the Respondent was faced with an impossible situation. The procedure in July 2018 had not met the patient's expectations as to the range of movement and scar presentation in her right arm. Added to that she was pregnant in the second half of 2019. She had the procedure in December 2019 when her baby was clearly very young. The Respondent must have known the procedure posed some problems with wound healing. However, the wound was still very new when the Respondent ceased to have contact with Patient E. 6. Patient E's statement of 10 February 2021 gives a report on the outcome for her of the operation in December 2019. She says at paragraph 55 of her statement that the "scars have worsened and there is a great deal of disfigurement to my arm in scars and banding (tighter pulled parts that created deep dips and folds in my arms). I am also experiencing pain when stretching or rolling over in bed from tightness in the skin. I also find the pleats near my underarms difficult to clean when showering." 7. It seems clear that the aspects of the operation which concerned Dr Stern as matters which should have been considered in the pre-operative consultations and planning have been manifested in the outcome for Patient E of the December 2019 operation. 8. Having considered all the above matters we do accept the evidence of Dr Stern and we find that the HCCC has established this Particular and that the conduct of the Respondent in this regard demonstrates the knowledge, skill or judgment possessed, or care exercised by the Respondent in this aspect of the Complaint was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience as the responded in December 2019. Complaint One Particulars 18, 19 and 20. 1. These Particulars are as follows: Patient F 18. Between 23 February 2017 and 13 July 2017, the practitioner failed to arrange a second pre-operative consultation and assessment of Patient F in relation to a bilateral breast reduction procedure in circumstances where the practitioner failed to: (a) provide an opportunity for Patient F to ask any questions following the first consultation; (b) ensure Patient F understood the nature of the procedure; (c) explain the potential complications to Patient F due to her complex presentation, including the loss of the nipple/areola complex; (d) ascertain whether Patient F had achieved adequate weight loss prior to surgery. 19. The practitioner failed to obtain informed consent from Patient F in relation to her bilateral breast reduction procedure within a reasonable time period prior to surgery which took place on 13 July 2017. 20. On 13 July 2017 the practitioner performed an inappropriate surgery on Patient F, namely bilateral breast reduction, in circumstances where the practitioner: (a) failed to ensure an adequate blood supply to the breast tissue supporting the nipple; (b) failed to identify the inadequate bloody supply to the breast tissue. The Respondents Reply. 1. The Respondent in his Reply stated the following in relation to Particulars 18 to 20: Patient F With respect to the Particulars 18-20 of Complaint One pertaining to Patient F: 18. I deny that I failed to arrange a second pre-operative consultation with Patient F prior to her bilateral breast reduction and say that this second consultation occurred on 30 June 2017. I do not admit sub-particulars (a) and (b) however I do admit sub-particulars (c) and (d). As to Particular 18(c) I admit that I did not warn Patient F that her risk of losing a nipple was greater given the large tubular nature of her breasts. In relation to Particular 18(d), I admit that I did not have a discussion with Patient F regarding the need for adequate weight loss prior to surgery but do not admit that this constitutes a significant failure. 19. I note that Patient F gave informed consent during her consultations with me on 23 February 2017 and confirmed her consent on 30 June 2017 and as a result do not admit that the issue of my consent related to the time between consultation and surgery, but rather the content of the consent process. I repeat that my failure was in the deficiency of the consent process and specific risk of nipple loss in Patient F's case. 20. I admit that I performed bilateral breast reduction surgery on Patient F on 13 July 2017 but deny that this is inappropriate as Patient F was suffering from significant hypermastia that was impacting on her life. a. I do not admit that I failed to ensure an adequate blood supply to the breast tissue supporting the nipple. b. I do not admit that I failed to identify the inadequate blood supply to the breast tissue for the reasons stated above. The HCCC provided its submission in relation to these Particulars 1. The HCCC stated that these Particulars relate to Patient F who underwent bilateral breast reduction with the Respondent. Particular 18 focusses on the failure of the Respondent to arrange an adequate second pre-operative consultation with the patient and the results of that failure. 2. The HCCC submits: "The applicant concedes that a second consultation did take place, however this consultation was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience as particularised in sub-particulars (a) to (c). The respondent denies sub-particulars (a) and (b) but admits particular (c) in that he "did not warn Patient F that her risk of losing a nipple was greater given the large tubular nature of her breasts". Likewise, sub-particular (d) is admitted but the respondent gives an opinion that his failure "did not constitute a significant failure" and goes on to give an unqualified opinion that he has "found no literature or guidelines that state that weight loss is a prerequisite for breast reduction surgery". This reply made on 19 February 2024 contrasts with the respondent's statement of 14 December 2023 where he acknowledges that a high BMI is a contraindication for breast reduction surgery: "I confirmed that she did not have any medical or surgical history that would be a contraindication to this surgery, however she did have a high BMI of 37.9". 182. Patient F says she had an initial consultation with the respondent in late June or early July 2017 about two weeks before surgery on 13 July 2017. At the first consultation she says "I do not recall him discussing any risks with a breast reduction surgery. At that time I did not really have any questions for him". 183. In respect of the second consultation, Patient F gives evidence that she was only able to confirm her booking with the respondent once she had accessed her superannuation and that at that point she went back to the respondent. At that consultation Patient F "was given a booklet about the surgery and he gave me all the paperwork which included the hospital forms". There is no evidence from Patient F that the respondent: a. provided an opportunity for Patient F to ask any questions following the first consultation; b. ensured Patient F understood the nature of the procedure; c. explained the potential complications to Patient F due to her complex presentation including the loss of the nipple/areola complex; or d. ascertained whether Patient F had achieved adequate weight loss prior to surgery. 184. Patient F's evidence was not challenged and consequently her account of the second consultation should be accepted by the Tribunal. 1. The HCCC submitted that the only note made by the Respondent in the Patients notes relevant to this Particular was "discussed risks of BBR, happy to proceed." 2. The HCCC then set out this extract from Dr Ritz' report: "It is unsure to understand whether the patient understood the procedure and whether she understand [sic] the potential complications because one of the obvious direct complications would have been loss of nipple areola complex." 1. The HCCC then submitted: "As to sub-particular (c), Dr Ritz's opinion, as with the respondent's admission does not deal with the failure of the respondent to explain potential complications due to complex presentation, but does reinforce, on the basis of the photographs of the patient, that the respondent should have been aware of and informed Patient F of "an obvious risk of blood supply issues to the nipple/areola complex". In respect of sub-particular (d), again Dr Ritz's opinion is of limited assistance to the respondent as it merely confirms that Patient F needed to lose weight prior to surgery: 'Patient F needed to achieve a certain adequate weight loss prior to surgery or at least have attempted to and it is difficult to know anything about this as she was obviously of a high BMI.'" 1. The HCCC referred to the oral evidence of Dr Ritz and his statement that he had given the Respondent the benefit of the doubt and that he did give Patient F details of possible complications. The HCCC highlights the lack of notes surrounding this patient's pre-operative process. The following extract from the evidence of Dr Ritz is set out: "Well, once again, the preoperative notes that the patient had, which I'm, which I've never really seen, I've only gone on what was provided to me, mention loss of a nipple, but the patients were seen virtually on the day of surgery. You know, there were phone consultations. I don't know for a fact that these complications were discussed but every breast reduction patient needs a discussion about nipple necrosis, fat necrosis, scar revisions. All these things are important factors. We also don't know, for example, if this patient was a smoker. If the patient's a smoker that also contributes. Then there was the patient who had surgery quite soon after pregnancy and delivery of a child. And those things are considered to be factors that can contribute to the nipple problem. So in this case I only say that it's below the standard because I'm not sure what was really given to this patient beforehand, you know, what was discussed beforehand about the complications." 1. The HCCC submitted: "It is not sufficient when adducing evidence to refute Complaint One, particular 18 to provide expert evidence which gives the respondent "the benefit of the doubt" rather than evidence based upon the objective evidence available to the expert. The Tribunal should reject Dr Ritz's evidence in respect of this particular." 1. The HCCC then referred to the evidence of Dr Stern. It referred to the following extract from his evidence: "Neither (Patient F) nor Dr Amjadi mentioned any second consultation which would have permitted the patient to ask any questions pertaining to the original description of the surgery, and also provide the opportunity to Dr Amjadi to ensure the patient did, indeed understand the nature of the surgery, the potential complications, and whether she achieved any weight loss, which he felt was necessary. This lack of review in these particular clinical circumstances is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience." 1. The HCCC's final submission on this Particular is: "Dr Stern's evidence is unchallenged. In the absence of cogent expert evidence for the respondent's contentions, the Tribunal ought to accept Dr Stern's finding that: the inadequacies in any second consultation by the respondent with Patient F in these particular clinical circumstances is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience." The Respondent's submission 1. The Respondent made submission on Particulars 18, 19 and 20. He commenced by addressing Particular 18. 2. The Respondent commences by seeking to discredit the statement made by Patient F. We note Patient F was not required for cross-examination. 3. The Respondent submitted: "150. Patient F's account is completely unreliable. She asserts that her first consultation with Dr Amjadi was in late June or July 2017. [121] Her first consultation was on 23.2.2017 at Wollongong Plastic Cosmetic Surgery. [122] Dr Amjadi's letter to the GP following that consult records-"starting BMI 37.9, very large breasts with associated shoulder strap marks, diminished nipple sensation and kyphosis (rounded back). Discussed need for further weight loss and complication of surgery with a high BMI. Also discussed surgical options of breast reduction and its specific risk profile including wound healing problems, seroma, asymmetric, and possibility of finding malignancy in the breast reduction specimen. Patient keen to proceed but has decided to discuss matter with her mother and will contact me should she decide to proceed." 151. Patient F suggests there was no further consultation with Dr Amjadi before surgery and the Commission relies on her evidence to underpin the allegation in Particular 18 stating there was no second consultation. This is plainly incorrect. On 30 June 2017 Patient F attended a second consultation with Dr Amjadi, and as recorded in his notes, "Discussion with patient further re risks of bilateral breast reduction. Happy to proceed. Book". [123] Further, on 3 July 2017 Patient F completes a Health Questionnaire which notes her BMI of 37.5 and stating non-smoker. [124] 1. The Respondent then set out his evidence in relation to Particular 18. The submission states: "a. At their first consultation on 23 February 2017, Patient F informed the respondent that she would like a breast reduction due to a medical issue, being caused by her large breasts. She had a high BMI of 37.9. The respondent doesn't recall exactly what risks he discussed with her, but his usual practice would be to advise her of risks and provide her with written information. He would have explained the surgery in detail. The Respondent's notes indicate that he discussed the surgery and its risks (wound healing problems, seroma, asymmetric, malignancy) with Patient F and she wanted to speak to her family before making any decisions.278 b. Although the respondent had initially indicated to the HCCC that Patient F was a smoker, on review of his medical notes, it is clear she was not and this was recorded.279 c. Patient F attended a second consultation on 30 June 2017. The risks and process of surgery was discussed again, and she decided to proceed. The bilateral breast reduction was performed on 13 July 2017 at Shellharbour Private Hospital.280" 1. The Respondent then made the following submission in relation to Particular 18: "159. It is clear that a number of Dr Stern's assumptions or 'fact findings' are plainly incorrect and as a result no weight can be given to the opinions that follow regarding conduct being significantly below. 160. In relation to Particulars 18(a) and (b), the Commission's assertion that there was no second consultation is plainly wrong. The respondent's unchallenged evidence is that there was such a consultation (on 30 June 2017), evinced through the contemporaneous clinical records themselves. Dr Ritz has opined that there was sufficient time between the first and second consultations and surgery. 161. In the Commission's written submissions, they concede that a second consultation did in fact take place, but state, inexplicably- that this consultation was significantly below the standard: AWS [178]. In the respondent's submission, leaving aside the fact that no reasoning accompanies the submission, the Commission should not be permitted to now change its case. The entire premise of Particular 18 is that a second consultation did not take place. The Commission could have attempted to amend the Complaint once it became apparent that there was in fact a second consultation. Their failure to do so, and instead to completely change the nature of the complaint in Particular 18 upon the filing of their written submissions, amounts to a denial of procedural fairness. The respondent has not had the opportunity to adduce evidence, or cross-examine the Commission's witnesses, about what would appear to be a radically different formulation of Particular 18. The Tribunal could therefore not be satisfied that the Commission has proved Particulars 18(a) and (b). 162. In relation to Particulars 18(c) and (d), the respondent has admitted these particulars but states that Particular 18(d) does not fall significantly below the standard. In support of the conclusion that it falls significantly below the standard, the Commission relies on the opinion of Dr Stern that the respondent should have offered to facilitate weight loss for Patient F. For the reasons stated by Dr Ritz, this is an unreasonable and almost bizarre assertion. The respondent is a plastic surgeon – he is not trained to supervise a patient's weight loss. In all the circumstances, the Tribunal would find that the respondent's conduct in respect of Particular 18(d) falls below but not significantly below the standards." Finding on Particular 18 1. The Respondent denies Particular 18 so far as it alleges he failed to provide Patient F with a second pre-operative consultation between 23 February 2017 and 13 July 2017. He says the second consult pre-operative was on 30 June 2017. 2. The Respondent then denies Particular 18 sub-paragraphs (a) and (b). He admits Particular 18(c) and he admits in relation to 18(d) he did not have a discussion with Patient F regarding the need for adequate weight loss prior to surgery. The Respondent does not admit that the admissions he made amount to conduct which is significantly below the standard expected of the Respondent at the time of the operation. 3. The Respondent argues that Particular 18(a) and (b) should be found to be not established because the core of the Particular is that no 2nd consultation took place for Patient F before her procedure on 13 July 2017. A concession is made by the HCCC that a 2nd consultation did take place contrary to the assertion in the Particular. If the first three lines of Particular 18 are found to be incorrect (as is now conceded) then it may be that all that follows in the sub-paragraphs (a), (b), (c) and (d) also become irrelevant. 4. The Respondent does not ask the Tribunal to see sub-paragraphs (c) and (d) as irrelevant if it is satisfied a second pre-operative consultation did occur contrary to the claim in Particular 18. 5. We accept the submission of the Respondent is correct in relation to Particular 18 (a) and 18 (b) and we find those two portions of the Particular 18 not established. In relation to Particulars 18 (c) and 18 (d) we also consider those two paragraphs fall away because they are dependent upon the establishment of the primary claim that no second pre-operative consultation took place. 6. If we are incorrect in relation to Particular 18(c) and 18(d) then we find that the admission of the Respondent in relation to Particular 18(c) would amount to a failure which would be significantly below the standard expected of the Respondent at that time. We do so find because we regard the potential loss of a nipple consequent upon the surgery as a very serious outcome for a patient. If the Respondent did not ensure Patient F knew of such a possibility which was heightened in her case because of the size of her breasts and the elevated BMI then we consider that to be a very serious failing based upon the evidence we have heard and read in this case. 7. In relation to Particular 18(d) the Respondent admits he did not ascertain if Patient F had achieved adequate weight loss prior to surgery. He says such a finding would not lead the Tribunal to conclude it was a failure illustrating conduct, skill or care of the patient which was significantly below the standard expected of him at the time of the second consult pre-operative. 8. The evidence makes clear that the Respondent had a concern about Patient F's weight at the first consultation. Her BMI was calculated to be 37.9. On 3 July 2017 Patient F completed a Health Questionnaire which notes her BMI at 37.5. How that figure for her BMI was ascertained is not clear however, it indicates some weight reduction. The Patient is still showing a BMI of over 37 and during the hearing Dr Sanki told us that she would not operate on a patient with a BMI greater than 30. 9. It is clear from his admission that the Respondent did not ascertain or discuss with Patient F if she had lost weight prior to the procedure on 13 July 2017. It is clear on the evidence before the Tribunal that the BMI of a patient is an important matter to consider when a plastic surgeon makes a decision as to whether to agree to operate on a patient. The Tribunal has been told that the BMI can indicate to a surgeon a number of important indicators relative to the success of the procedure and the desired outcome by both patient and plastic surgeon. A failure to consider the impact of a BMI of 37+ or to even set a target to be reached before surgery could be undertaken, or even to ascertain if sufficient weight loss had occurred by 13 July 2017 is, in our view a failure on the part of the Respondent which we see as conduct significantly below the standard reasonably expected of the Respondent at the time of the operation. Particular 19 1. The HCCC submission on this Particular includes the following. 194. Particular 19 relates to failure to obtain informed consent in respect of Patient F. It is of note that this complaint is the same as that made by Patient B at Particular 1 (which is admitted by the respondent) in that the alleged failure to obtain consent occurred where the respondent was practising out of his Wollongong Clinic. The particular is: The practitioner failed to obtain informed consent from Patient F in relation to her bilateral breast reduction procedure within a reasonable time period prior to surgery which took place on 13 July 2017. 195. In response, common to many of his responses, the respondent equivocates. The respondent both admits to a failure in his consent process but then presenting unsubstantiated evidence, does not admit the particular by reason of the time period in which he says the "deficient" consent was given. He said: "I note that Patient F gave informed consent during her consultations with me on 23 February 2017 and confirmed her consent on 30 June 2017 and as a result do not admit that the issue of my consent related to the time between consultation and surgery, but rather the content of the consent process. I repeat that my failure was in the deficiency of the consent process and specific risk of nipple loss in Patient F's case." Respondent's expert evidence 196. Dr Ritz, as with his evidence in respect of Particular 18 again gives the respondent "the benefit of the doubt". When asked whether the respondent obtained informed consent in circumstances where specific risks were not outlined to the patient's surgery, Dr Ritz says: "We assume that the patient was given the information pack prior to surgery and was advised of risks". 197. This evidence is of little assistance to the respondent and contradicts the earlier opinion in relation to Particular 18 that there was inadequate documentation to ascertain whether or not Patient F had been sufficiently informed of specific risks. Applicant's expert evidence 198. Dr Stern's evidence is: In this circumstance, there does not appear to have been an opportunity for the patient to meet Dr Amjadi after the provision of information to confirm that the patient had properly understood the risks. This is the purpose of a second consultation which is considered to be standard clinical practise for this form of surgery, again, particularly in a young woman of childbearing age. On that basis, I find that the consent procedure was quite inadequate and significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 199. By reason of the evidence, the Tribunal: a. ought not to accept that an admittedly deficient consent process is cured by reason of an unsubstantiated assertion from the respondent that such process took place within an appropriate timeframe before surgery; b. should find that the Dr Ritz's evidence giving the respondent "the benefit of the doubt" is insufficient to cure the deficient consent process; and c. accept the unchallenged evidence of Dr Stern that the respondent's procedure was inadequate and significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and uphold Complaint One, Particular 19. Respondent's submission 1. The Respondent submitted: "In relation to Particular 19, the respondent points to his unchallenged evidence about his discussion (and clinical records which corroborate his assertions) of the procedure with Patient F (including its risks), and the evidence of Dr Ritz that there was a reasonable time between the second consultation and the surgery. The Tribunal would not be satisfied that the Commission has proved this particular." Finding on Particular 19 1. The Respondent in relation to this Particular does not admit he failed to obtain informed consent from Patient F in relation to the operation he performed on 13 July 2017. He admits, as stated in his submission: "The Respondent notes that the loss of a nipple is a known complication of breast reduction surgery, and he would have advised her of this. However, he accepts that Patient F had a higher risk due to her high BMI and the nature of her breasts, and he should have warned her that her risk was greater." 1. He admits however, that the process of obtaining the informed consent lacked specific information as to the risk of nipple loss. In this case that unfortunate risk occurred. Although the evidence satisfies us that the risk of loss of a nipple is low, it is still a risk which the patient should have been informed of and given the choice to not undergo the procedure or to postpone until she had reduced her BMI considerably. In our view to fail to discuss with a patient who presented with Patient F's BMI and identified very large breasts, the possible risk of a nipple loss (thus a deformity of a breast) fails to recognise the potential significance to a woman of such a risk. As such we would see that failure in this case as being significantly below the standard reasonably expected of the Respondent at that time. However, this Particular we see as not addressing the content of the informed consent, rather we see it addressing the time between the date the consent was obtained and the date of the procedure. That is a period of 13 days. Particular 18(c) addresses the content of the informed consent. In particular the need for the Respondent to address the increased risk of nipple loss given the size of Patient F's breasts. The determination we need to make is whether the HCCC has satisfied us that a space of 13 days between the 2nd consultation (at which Patient F is said to have given informed consent for the procedure) and the procedure was inadequate for Patient F to have given timely informed consent. 2. We do accept the evidence of the Respondent that a second consult did take place on 30 June 2017, some 13 days before the operation. Dr Stern seemed to be giving his opinion based on the assumption that a 2nd consultation before the procedure on 13 July 2017 did not take place. Dr Ritz considered the time between the 2nd consultation and the operation was reasonable. The 2nd consult was an opportunity for Patient F to ask questions about the procedure. She could have decided not to proceed during the 13 days. 3. Clearly a period greater than 13 days between the 2nd consultation and the procedure ought to be the normal practice, however, we do not see the allowing of only 13 days as being conduct significantly below the expected standard applicable to the Respondent at that time. Particular 20. 1. The HCCC's submission on this Particular includes the following: 200. Particular 20 relates to the failed performance of the respondent when conducting Patient F's breast reduction surgery: On 13 July 2017 the practitioner performed an inappropriate surgery on Patient F namely bilateral breast reduction in circumstances where the practitioner: (a) failed to allow an adequate blood supply to the breast tissue supporting the nipple (b) failed to identify the inadequate blood supply to the breast tissue. 201. The respondent broadly denies the surgery was inappropriate on the basis that Patient F was suffering "significant hypermastia". In doing so, the respondent fails on a broader level to engage with the nature of the complaint, which is that the surgery was inappropriate because of the failure set out in the sub-particulars. 202. Unsubstantiated quasi-expert evidence is offered again by the respondent in his response to sub-particular (a) and (b) he says: Loss of nipple/areola is a known complication of breast reduction surgery, even in the most skilled hands … a. I do not admit that I failed to ensure an adequate blood supply to the breast tissue supporting the nipple. If this had occurred nipple necrosis would have developed within hours of surgery, which it did not. Nipple loss can occur as a result of inadequate venous drainage, in spite of adequate blood supply, or can be caused by local or pedicle infection. Both these causes take several days to manifest. b. I do not admit that I failed to identify the inadequate blood supply to the breast tissue for the reasons stated above Respondent's expert opinion 203. Dr Ritz's expert report does not assist the respondent in respect of sub-particular (a) as he gives no opinion on the adequacy of blood supply to the breast tissue of Patient F and instead addresses risk and the use of alternative techniques. 204. Dr Ritz's expert opinion does not address sub-particular (b). 205. In cross-examination, Dr Ritz gave the following evidence about inadequate blood flow to the nipple and nipple necrosis: a. "the nipple is lost from a loss of blood flow to the nipple" b. "The nipple is moved based on a flap which is designed to give as best a blood supply as possible to the nipple so that it can move into a new position. Once the, once the flap has been raised there's not much more you can do with the blood supply. So if the blood supply is not adequate, it's not adequate. There are very little ways of improving it" c. "But basically once you raise the nipple pedicle you then have to rely on its blood supply. If the blood supply is tenuous, in other words, if it's, it's got minimal, if it is surviving but it's not bleeding very much, then certainly infection can complete the task of killing the nipple" d. "You have to ask the question is that, does the nipple survive with a minimal blood flow and for how long? And often what happens is because the blood flow is not adequate there is, there is a watershed period at which time the nipple will survive or when it will basically, you know, it will start to deteriorate. Because there was some fat necrosis, that's also a blood supply problem in a breast reduction, where some of the fatty tissue dies from lack of an adequate blood supply or from stitches that are put through the tissues, so it is possible that there was, you know, decreased blood supply and subsequent infection but it's very hard to be absolutely sure what the critical event was" e. incidence of nipple necrosis is a possible outcome f. nipple necrosis happens in 1.2% of patients. 202. Dr Ritz gave evidence of particular concerns about the respondent's conduct of Patient F's surgery in the context of the possible outcome of nipple necrosis: "At some point in time you're going to be in enough cases, you're going to have a nipple problem. I think if it happened in your first year out you would then go back, talk to some mentors, discuss, you know, how big the pedicle was, was it wide enough, was it, you know, how did you plan your surgery. My concern is when we look at his operative notes there are no measurements. There's no plan of the surgical approach. And that was my concern, is that I try and measure the limbs of the, of the, we call the ...(not transcribable)... limbs to try and work out also what the base of my pedicle will be so that on average you want the pedicle and the nipple to be at a 1:1 ratio, at least if you can, to allow enough blood flow to go into the nipple. So we just don't know. And that's one of the things that, you know, I think we would like to understand better. (emphasis added)" 203. What is clear from Dr Ritz's expert report and from his opinions in cross-examination is that the respondent's preoperative assessments of Patient F were not appropriate. The respondent failed to take any measurements or make a plan to mitigate the 1.2% risk of Patient F suffering the complication of nipple necrosis. Dr Ritz: "There were no measurements taken, there was no discussion about further weight loss for this patient. It is marked down that she was a non-smoker, but his patient did have significant extra risks." Applicant's expert evidence 204. In sharp contrast to the respondent's evidence, Dr Stern's expert opinion is: "In his evidence, Dr Amjadi describes the nipple/areola necrosis as having been caused by an infection which led to this soft tissue loss. This is almost certainly the reverse of what will have actually occurred. The surgery will have created an inadequate blood supply to the component of the breasts tasked with supporting the nipple and this tissue started to die through lack of blood supply, secondary infection will have supervened which is unfortunately the expected consequence." 205. Dr Stern's evidence was unchallenged and as such can be accepted by the Tribunal. 206. In circumstances where: a. The respondent's opinion is directly contradicted by expert opinion evidence; b. Dr Ritz's evidence is that once the nipple pedicle is raised and blood supply is inadequate there is very little way of improving it; and c. Dr Ritz's evidence set out grave concerns that the respondent did not perform any measurements or have a surgical plan. The Tribunal ought to find as a matter of fact that on 13 July 2017 the respondent performed an inappropriate surgery on Patient F namely bilateral breast reduction in circumstances where the practitioner failed to allow an adequate blood supply to the breast tissue supporting the nipple and failed to identify the inadequate blood supply to the breast tissue. The Respondent's submission included the following 1. The Respondent outlined the evidence of Dr Ritz in relation to the operation performed on 13 July 2017. He noted Dr Ritz stated: "That it was difficult to state whether the loss of Patient F's nipple and areola was due to decreased blood flow to the nipple during surgery and subsequent infection. [125] However this was a known complication and is not necessarily a 'red flag' in terms of how a surgeon is operating.". [126] 1. The Respondent submits: "164. In relation to Particular 20, there is no evidence to support the assertion that the respondent failed to ensure an adequate blood supply to the nipple. In questioning from the Tribunal Dr Ritz stated that one simply cannot say whether the nipple necrosis resulted from poor surgical skills, noting it occurs in 1-1.2% of cases and is a possible complication even in the most experienced hands, including his own. 288; Further, Dr Ritz maintained his opinion that the unfortunate complication did not amount to conduct that fell significantly below the standards 289; even as it relates to informing the patient regarding its risk.290 The contention that he failed to identify the problem is also inconsistent with Dr Stern's concession that his management of this complication was capable and appropriate. 165. The Commission has simply failed to prove Particular 20 to the required standard that the bilateral breast reduction was 'inappropriate surgery' but virtue of a complication that arose post operatively in circumstances where the genesis for the complication has not been established and Dr Amjadi did in fact identify it when it presented." Finding on Particular 20 1. The Respondent admits he performed the described procedure however he denies it was inappropriate as Patient F was suffering from significant hypermastia which was impacting her life. He further does not admit Particular 20(a) or 20(b). 2. The effect of the HCCC case on this Particular is, in effect, that as Patient F lost her nipple it occurred because of the lack of skill of the Respondent who should not have undertaken the procedure in the first place. 3. We find the evidence supports a conclusion that Patient F stood an elevated risk, of losing her nipple in the proposed procedure because of her presenting BMI and the large size of her breasts. It is not possible for us to conclude that the skill of the surgery performed by the Respondent was insufficient and because of that the patient lost her nipple. It was, we find, an unfortunate occurrence, which will occur in a very few breast operations of the nature performed by the Respondent. We cannot therefore find that the Respondent performed inappropriate surgery on Patient F in the manner described in sub-Particulars (a) and (b) of Particular 20. 4. We note however, that the inadequate pre-operative assessment which failed to take measurements and to plan the procedure precisely, may have contributed to the failure of the nipple to survive. In such a circumstance we would conclude the conduct was below the requisite standard however, we could not conclude it was significantly below the standard expected of the Respondent at that time. Complaint Two Complaint Two Particulars 21, 22 and 23 1. The Complaint Two, alleges the Respondent is guilty of unsatisfactory professional conduct under sect 139B(1)(b) of the National Law "in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2016 ('2016 Regulation')". This complaint addresses the Respondent's medical record keeping. The Particulars to Complaint Two are as follows: PARTICULARS OF COMPLAINT TWO 21. For his care of Patients A – F on and between the dates set out in Schedule E to the Complaint, the practitioner failed to document information known to him, relevant to Patient A – F's treatment, contrary to sch 4, cl1(2)(a) of the 2016 Regulation including: (a) results of any physical examination and assessment of Patients A – F; (b) information concerning Patient A – F's medical history; and (c) pre-operative or post-operative images of Patients A – F. 22. For his care of Patients A – F on and between the dates set out in Schedule E to the Complaint, the practitioner failed to document the following information or advice given to Patients A – F in relation to medical procedures proposed by the practitioner, contrary to sch 4, cl 1(3) of the 2016 Regulation: (a) potential risk, complications and side effects of surgery; (b) benefits and advantages of surgery; (c) type of surgery and planned operative procedure proposed; (d) operative techniques; (e) alternatives to treatment; and (f) recovery time and post-operative/after-care treatment. 23. By reason of Particulars 21 and 22 above the practitioner's records for Patients A – F failed to contain sufficient information to allow another medical practitioner to continue management of the patient's case, contrary to Sch 4, cl 3(2) of the 2016 Regulation. 1. The Respondent set out the following in his Reply to this Complaint. Complaint Two 21. I admit Particular 21 on the basis that there was not an absence of documentation but rather insufficient information on many occasions to be compliant with the Regulations on every occasion. 22. I admit Particular 22 on the basis that there was not an absence of documentation on the categories particularised but rather insufficient information on many occasions to be compliant with the Regulations on every occasion. 23. I admit Particular 23. Submission of the HCCC 1. The Submission of the HCCC included the following: 209. The respondent characteristically admits Particulars 21 and 22 but adds in his own qualification that it was "not an absence of documentation on the categories particularised but rather insufficient information on many occasions to be compliant with the Regulations on every occasion" 210. With respect, Particulars 21 and 22 do not allege an absence of documentation but rather a failure to document information or information and advice in accordance with the 2016 Regulation. 211. Dr Ritz acknowledges that these failures are "below the standards expected of a surgeon". 212. Particular 23 is: By reason of particulars 21 and 22 above, the practitioner's records for Patients A-F failed to contain sufficient information to allow another medical practitioner to continue management of the patient's case contrary to Sch 4 cl 3(2) of the 2016 Regulation. 213. The applicant says that in the context of: the respondent's admission; the respondent's expert's opinion that the respondent's conduct was below standard; and the respondent's uniformly poor record keeping and sub-standard documentation management, the Tribunal ought to uphold Complaint Two, Particulars 21, 22 and 23. 1. The HCCC gave further submission in a later position in its' submission document to that set out above. It submitted: 248. In addition to the admissions of certain particulars to Complaint One, the respondent admitted Complaint Two in its entirety. Complaint Two is a record keeping complaint and involves the respondent admitting to failures to abide by the following clause of Schedule 4 to the Health Practitioner Regulation (NSW) Regulation 2016:- Clause 1 (2) A record must include the following-- (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient)' Clause 1 (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient. Clause 3(2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. 249. These failures to abide by the Regulation amount to unsatisfactory professional conduct under s.139B(1)(b) of the National Law, which includes a contravention by the practitioner of the regulations under the National Law or under the Regulations. 250. The unsatisfactory professional conduct admitted by the respondent under Complaint Two again extends to all six patients and involves defaulting conduct over a period between February 2017 and January 2020 - that is, almost the entire time that the respondent was established in his own private practice. Respondent's submission 1. The Submission of the Respondent included the following: 189. Complaint Two alleges that the respondent is guilty of unsatisfactory professional conduct on the following three bases: a. He failed to document information known to him relevant to the treatment of Patients A-F, including results of examination and assessment, information concerning their medical history, and pre-operative or post-operative images of the patients (Particular 21).306 This is admitted insofar as the respondent admits there was insufficient information. b. He failed to document information or advice given to Patients A-F in relation to (Particular 22):307 v. Potential risks, complications and side effects vi. Benefits and advantages of surgery vii. The type of surgery and planned operative procedure proposed viii. Operative techniques ix. Alternatives to treatment x. Recovery time and post-operative/after-care treatment. Particular 22 is admitted insofar as the respondent admits there was insufficient information. c. By reason of Particulars 21 and 22, the respondent's records failed to contain sufficient information to allow another medical practitioner to continue management of the patient's case (Particular 23). This is admitted by the respondent. 190. The Tribunal is therefore required to determine whether the respondent failed to document the information contained in Particulars 21 and 22, or whether he insufficiently documented that information. 191. This complaint can be dealt with briefly. There is ample evidence, both in the Commission's material and in that tendered by the respondent, that the respondent did document some of this information. In its written submissions, the Commission qualifies Particulars 21 and 22, so that they allege that the respondent documents 'insufficient information on many occasions to be compliant with the Regulations on every occasion'. It therefore appears that the Commission accepts the respondent's qualification, and there is no issue between the parties. 1. The submission of the Respondent above, left us confused and so we sought clarification in relation to that submission. On 9 September 2024 we asked the following of the Respondent via email: 1. Could you please provide a further submission to clarify your submission addressing Complaint Two. In your submission you emphasise that the Respondent did provide "some of the information" in the medical records for the Patients A to F. You submit the Commission qualifies Particulars 21 and 22 so that they allege that the Respondent's documents provided "insufficient information on many occasions to be compliant with the Regulations on every occasion." It is unclear to the Tribunal what you say should flow from the submission so far as determining whether the Complaint Two should be found to be established or not. 2. Please provide a copy of your reply to this request to the HCCC. Should the HCCC wish to reply to this further submission from the Respondent, the Tribunal requests that it be done within seven days of receiving the Respondent's submission. 1. On 30 September 2024 we received the following further submission from the Respondent: 1. Complaint Two alleges that the respondent is guilty of unsatisfactory professional conduct on the basis of a contravention of schedule 4, clauses 1(2)(a), 1(3) and 3(2) of the Health Practitioner Regulation (NSW) 2016 for the reasons particularised in Particular 21, 22 and 23 of Complaint Two. 2. Complaint Two is an allegation regarding the record keeping of Patients A-F only- namely the records of six patients. 3. The respondent in his Reply Documents dated 2 February 2024 and 8 April 2024 admitted Particulars 21, 22 and 23 on the basis that there was insufficient information recorded, as compared to 'no' information recorded. 4. However, the admissions to the Particulars on the basis of insufficient information being recorded so as to amount to a breach of certain clauses of the Regulations- is not an admission that such breaches amount to unsatisfactory professional conduct. The respondent submits that the degree of the failure does not reach the requisite threshold required for such a finding. 5. A contravention of the Regulations may (rather than must) amount to unsatisfactory professional conduct. Whether a contravention in fact amounts to unsatisfactory professional conduct is a matter for the Commission to prove to the requisite standard of proof. The respondent submits they have failed to do so. 6. The respondent relies on the expert opinion of Dr Ritz whose opinion is that the record keeping of the respondent fell below- but not significantly below the standards. 7. The Commission's written submissions on proof of Complaint Two are found at AWS [207]- [213] with [213] addressing the question of proof. As is clear, the Commission relies on the respondents' experts' opinion, noting their own expert Dr Stern did not give evidence supportive of proof of Complaint Two. The difficulty the Commission faces regarding proof is that their reliance on Dr Ritz opinion only meets the threshold of 'below the standards' and as a result falls short of establishing that the contraventions proven are of such gravity that they support a finding of unsatisfactory professional conduct. 8. It is unclear what the Commission means by its submission at AWS [213(c)] of 'uniformly poor record keeping and sub-standard documentation' beyond what is particularised in Particular 21 and 22 with reference to the six patients A-F. We re-iterate the submissions made in the respondents written submissions at [45](g), that in relation to Patients B, E and F, Wollongong Plastics and Cosmetic Surgery Clinic failed to produce the complete clinical records for these patients in light of the clinic closing down. Namely, despite the respondents' best efforts to obtain the complete medical records for these patients, he was unable to do so. The Tribunal has therefore been left with an incomplete set of records for three of the six patients the subject of review under Complaint Two. 9. For all these reasons the respondent submits that the Commission has failed to prove Complaint Two. 1. The Respondent does not in his submission address section 139B(1)(b) and whether it is a "stand alone" provision, as opposed to being subject to a finding under section 139B(1)(a). In other words is there a "degree of failure" relative to a finding in relation to s.139B(1)(b), namely conduct which is "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 2. The Respondent did not refer us to any decisions of this Tribunal or the NSW Court of Appeal, which may have assisted us in relation to his submission. Finding on Complaint Two 1. The finding required is that the Respondent is guilty of unsatisfactory professional conduct under s.139B(1)(b) of the National Law. That sub-section is: Contravention of this Law or Regulations. A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention." 1. The National Law defines "NSW regulation" in s.247A. 2. The finding required is not governed by a requirement to be satisfied that the Respondent's conduct is "significantly below the standard expected." 3. The HCCC has not provided any further submission on Complaint Two. 4. Having considered all of the submissions and relevant evidence before the Tribunal in relation to this Complaint we find that the HCCC has established Complaint Two. 5. Although the above finding gives rise to a finding of unsatisfactory professional conduct, we will take into account the fact that the Respondent did not fail to make any notes as required by the Regulation cited in this Complaint Two. That may be relevant to assessing whether the conduct of the Respondent amounts to Professional Misconduct. Complaint Three 1. This Complaint seeks a finding that the Respondent is guilty of professional misconduct as defined in s.139E of the National Law. 2. The Complaint is as follows: The Practitioner id guilty of professional misconduct under section 139E of the National Law in that the practitioner has: (i) Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or; (ii) Engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to contact of a sufficiently serious nature to justify the suspension or cancellation of the practitioners registration. 1. The Particulars of Complaint Three are: "Complaints One and Two and the Particulars thereof are relied on individually and cumulatively." 2. The determination of this Complaint Three involves a consideration and assessment of the findings in relation to Complaint One and Two. The HCCC submission on an overall finding to be made in relation to Complaint One 1. The HCCC makes the following submission. "EFFECT IF ONLY SOME PARTICULARS FOUND PROVEN 237. As set out above, the respondent has made admissions in respect of some of the particulars to Complaint One, and all of Complaint Two. 238. Complaint One alleged that the respondent is guilty of unsatisfactory professional conduct under s.139B(1)(a) of the National Law in that he has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 239. The respondent completed his surgical training and became a Fellow of the Royal Australasian College of Surgeons (Plast) in 2016. Admission as a Fellow entitled the respondent to commence undertaking plastic surgery. The system relies heavily on the practitioner's exercise of judgment in determining the type, number and complexity of plastic surgeries to be undertaken, and to seek advice from more senior colleagues as often as necessary when dealing with more complex cases. 240. The allegations the subject of Complaint One spanned 2017 to 2019, involved six different patients and multiple particulars and sub-particulars. At the very least the Tribunal will find proven those particulars admitted by the respondent, which are as follows:- Particular 1: In May and July 2018 failed to obtain informed consent from Patient B in circumstances where he did not outline specific risks of surgery (breast lift; belt lipectomy and thigh lift) Particular 2: In 2018 failed to conduct adequate pre-operative assessment of Patient B in respect of the above surgeries Particular 2: In March 2019 failed to conduct adequate pre-operative assessment of Patient C for abdominoplasty Particular 2: In April 2018 failed to conduct adequate pre-operative assessment of Patient D for back lift and breast surgery. Particular 5(c): On to 2 May 2018, 21 June 2019; 25 July 2019 and 4 September 2019 the practitioner performed revision surgery on Patient A in circumstances where he failed to obtain the advice and assistance of a more experienced colleague at any time Particular 6(d): On 17 May 2018 the practitioner performed a bilateral breast lift procedure on Patient B in circumstances where (d) The practitioner performed the procedure when Patient B was approximately four months postpartum which is contrary to the clinically accepted practice in relation to any surgical modification to the breast postpartum Particular 8: Between 8 March 2019 and 1 August 2019 the practitioner failed to conduct any physical examination of Patient C prior to Patient C being admitted to Sydney Private Hospital on 1 August 2019 for abdominoplasty surgery Particular 12: Between 27 April 2018 and 22 August 2018 the practitioner failed to conduct any physical examination of Patient D prior to Patient D being admitted to Sydney Private Hospital on 22 August 2018 for a lower back procedure including liposuction. Particular 13: Prior to performing a bilateral medial and lateral augmentation mammoplasty on Patient D on 23 October 2018, the practitioner failed to conduct any physical examination of Patient D until 22 October 2018, being the day before surgery Particular 14: Between 8 February 2019 and 6 August 2019 the practitioner failed to conduct a further physical examination on Patient D prior to Patient D being admitted to Sydney Private Hospital on 6 August for revision surgery in relation to Patient D's bilateral medial thigh lift procedure performed on 23 October 2018 Particular 18(c): Between 23 February 2017 and 13 July 2017, the practitioner failed to arrange a second pre-operative consultation and assessment of Patient F in relation to a bilateral breast reduction procedure in circumstances where the practitioner failed to: (c) explain the potential complications to Patient F due to her complex presentation including the loss of the nipple/areola complex 241. Plainly, based on these admissions alone, the respondent has engaged in unsatisfactory professional conduct contrary to s.139B(1)(a) of the National Law. It is the applicant's position that this unsatisfactory professional conduct is sufficiently serious to amount to professional misconduct. Pursuant to s.139E of the National Law "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. In Health Care Complaints Commission v Robinson [2022] NSWCA 164. his Honour Leeming JA held as follows:- 33. In summary, if a "stage 1" hearing is conducted on the basis that it is to determine what conduct occurred, and whether or not any such conduct falls into the more serious category of professional misconduct, then such a hearing necessarily involves some consideration of potential remedy, even though the outcome of that hearing will not be a decision on the actual order to be imposed. This is a similar type of "paradox" to the one this Court identified in EFA at [169] in the context of the LPUL. 34. That necessity to look ahead to potentially appropriate orders raises the question of what factors are relevant to the characterisation exercise. It would be odd if all matters relevant to deciding whether to impose an order were relevant, for that would require that issue to be considered in full twice. The statutory text refers to "conduct of a sufficiently serious nature" to justify one of the two types of order. The word "conduct" is defined in s 138(1) to mean "any act or omission". The focus is on the character of what occurred which is the subject of complaint. The characterisation exercise involves "an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct": Chen{ Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20]. 35. The seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred: note, analogously, EFA at [169]-[172]. For example, that conduct was undertaken for an improper purpose may be a very significant factor in determining whether suspension or cancellation is justified. Thus, to look to the facts of this case, inappropriately touching a patient is likely to be more serious if it was done for sexual gratification rather than because of a misguided understanding of clinical justification. 36. The appellant gave other examples of other sorts of issues that it said might arise in characterising the nature of the conduct: (1) the practitioner's state of mind at the time of the impugned conduct (eg whether conduct was deliberate or inadvertent); (2) any knowledge the practitioner had of particular vulnerabilities in a patient; (3) the risks of harm that the conduct was apt to create; (4) the practitioner's knowledge, skill and training; (5) the disciplinary history of the practitioner, as repeated inappropriate conduct may be treated as being of a more serious nature than isolated inappropriate conduct (see, analogously, EFA at [172]). 37. There is force in these submissions. The respondent did not take issue with them. 242. The applicant points to the following matters in support of the contention that the respondent's admitted unsatisfactory professional conduct alone is sufficiently serious to support a finding of professional misconduct:- a. The admitted unsatisfactory professional conduct involves six patients. b. The admitted unsatisfactory professional conduct occurred over a period of two and a half years. c. The admitted unsatisfactory professional conduct involved a range of different plastic surgeries including:- i. Deltoid implants ii. Breast uplift iii. Bilateral breast reduction iv. Abdominoplasty v. Bilateral medial thigh lift vi. Belt lipectomy d. The admitted unsatisfactory professional conduct involved a preponderance of failures in the pre-operative stages including: i. the failure to conduct physical examinations at any time prior to the patients' attendance for the relevant operations ii. the failure to conduct pre-operative assessments of patients iii. failure to obtain informed consent iv. failure to advise of specific risks associated with surgeries such as possible loss of the nipple/areola v. a failure to consult more senior colleagues about the deltoid implants. 243. The following contextual matters contribute to these particulars alone being sufficiently serious to support the possible suspension or cancellation of the respondent's registration:- a. A failure to conduct any physical examination of Patients C and D meant that the respondent had no opportunity to examine – physically touch and feel - the contours of the patients' bodies, the quality of their skin, the shape of fat deposits, or to make drawings on the body that could be verified or altered at a later consultation. Patient C was on Manus Island and had a Skype consultation, seeing the respondent for the first time immediately before the operation. This left no opportunity for Patient C to be fully informed about the surgery. Patient D lived in Bacchus Marsh, Victoria. As with patient C, the respondent had no opportunity to conduct a physical examination that benefits both the surgeon and the patient. b. A failure to obtained informed consent meant that the respondent did not sit down with Patient B and go through in detail any documentary information being provided about the procedures to be undertaken. Where Patient B was undergoing elective surgery under a general anaesthetic with a recovery time measured in weeks, the lack of informed consent amounts to a serious deficiency in patient management and in the patient's informed engagement in and understanding of the operation she was to undergo. c. A failure to approach more experienced colleagues when the respondent was performing multiple unsuccessful revision surgeries on Patient A indicates a misplaced confidence in the respondent's own skills, and/or an unwillingness to engage with colleagues. d. The failure to provide information to patient F about the known risk of loss of her nipple/areola in circumstances where Patient F was specifically seeking the surgery for cosmetic purposes – to improve the look of her breasts. e. The fact that the respondent operated on Patient B when she was only four months post-partum, indicating lack of clinical knowledge, or alternatively a willingness to rush operations when, by their very nature as elective surgeries, did not have to be performed urgently. 244. All of the operations were elective. All of them involved general anaesthetic. All of them (except some of Patient A's) involved hospital admission, post-operative care and the need for the patients to manage their life in a way that allowed time for the surgical wounds to heal. The nature of the operations emphasises the seriousness of the failures in pre-operative processes, where those processes when done effectively are intended to ensure that both the practitioner surgeon and the patient have a complete understanding of the risks of complications and the importance of having in place appropriate post-operative care. 245. When considering the context in which these admitted examples of unsatisfactory professional conduct occurred the Tribunal should have regard to the respondent's own evidence that, in particular in 2018: "…I was spread out too thin…if everything went to plan it would be fine, but if somebody had a complication I just could not be around for them" . 246. The respondent also acknowledged that from 2018 he had a number of unhappy patients to deal with. The respondent was on notice from his patient cohort that there were issues in the way in which he was delivering services to patients – yet this did not prevent him engaging in unsatisfactory professional conduct with Patient C and Patient D who were both treated in 2019. 247. Finally, Dr Stern's evidence is apposite: "where [Skype first consultation for remote locations] is necessary … then the initial consultation can permit the provision of information…It would then be customary for the patient to attend a physical face-to-face consultation permitting the surgeon to properly examine and assess the patient and even potentially to qualify the previous advice provided once proper physical examination had been permitted… For patients coming from regional areas or interstate in order to have purely elective body contouring or other cosmetic procedures, the preoperative management should be exactly the same as it would be for a patient who lives in the same suburb as the surgeon. There should be a minimum of two face-to-face consultations with a reasonable time elapsing between these consultations and the final date for surgery" (emphasis added). The applicant's position is that the unsatisfactory professional conduct admitted by the respondent is sufficiently serious that the Tribunal would consider the possibility of suspension or cancellation of his registration at the stage two hearing. All six patients underwent significant surgeries under general anaesthetic involving surgical incisions and significant recovery periods, with each operation carrying risks of wound dehiscence, infection and unsightly scarring. The respondent failed to discharge his duties as a health practitioner to each of these patients in fundamental respects. … 252. The respondent's admitted acts and omissions are serious, and amount to professional misconduct. 253. It is axiomatic that for every further particular that the Tribunal finds proven despite the respondent's denials, the finding of professional misconduct must also follow. 1. At the conclusion of Complaint One the HCCC have included the following: "The conduct in any of Particulars of Complaint One are repeated and relied upon in combination as a course of conduct involving conduct amounting to unsatisfactory professional conduct." The Respondents Summary for Complaint One 1. Summary: Complaint One 186. The respondent submits that as a result of the evidence and the applicable standard of proof and meaning of 'significant', the Commission has only proved that the following conduct was significantly below the standard and therefore amounted to unsatisfactory professional conduct: i. Particular 1, (consent) as it relates to Patient B only and in a limited respect ii. Particular 2, (pre-operative assessment) as it relates to Patients B, C and D iii. Particular 5, (revision surgery) as it relates to the surgeries on 21 June 2019 and 25 July 2019 only regarding Patient A. iv. Particular 6 in so far as the breast reduction procedure performed should have been delayed given Patient B was approximately four months post-partum at the time of surgery v. Particular 8 and Particular 10 (failure to conduct a pre-operative physical examination and liposuction injury): Patient C vi. Particular 12, 13 and 14 (failure to conduct any pre-operative examination) Patient D vii. Particular 18(c) (failure to warn of specifics risks of nipple loss with large tubular breasts) Patient F 187. The Tribunal would find that in respect of the following particulars, the respondent's conduct was below but not significantly below the standard-Particular 1, as it relates to Patients D and E; Particular 18(d). Noting that unsatisfactory professional conduct requires conduct significantly below the standard, these particulars do not amount to unsatisfactory professional conduct. 188. The Tribunal would find that the Commission has failed to prove the following particulars: a.. Particular 1 as it relates to D and E b. Particular 3 as it relates to A, B, E c. Particular 4 d. Particular 5, as it relates to the surgeries on 2 May 2018 and 4 September 2019) e. Particular 6(a) and (b) f. Particular 7 g. Particular 10 h. Particular 15 i. Particular 16 j. Particular 17 k. Particular 18(a) and (b) l. Particular 19 m. Particular 20 Tribunal Summary of Complaint One and Finding in relation to Complaint Three. 1. We here set out a list of the findings we have made, in relation to Complaint One, where the HCCC has established the Particulars or part thereof. 2. Particulars: 1 in relation to Patient B, Patient D and Patient E, 2 in relation to Patient B, Patient C, Patient D, 5(c), 6(d), 8, 10, 12, 13, 14, 17, have been established to our satisfaction by the HCCC. We have also set out that if Particular 18(c) and 18(d) are capable of standing even though the principal allegations that the respondent failed to conduct a second consultation prior to the operation is conceded to be wrong, we would find particulars 18(c) and 18(d) have been established. 3. We now turn to consider whether any of those findings individually or cumulatively amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the respondent's registration. 4. The finding we make is based upon our findings of the conduct of the Respondent at the time of that conduct. 5. The Respondent has admitted that some of the Particulars of Complaint One have been established by the HCCC. Other Particulars he did not admit however, in some of those cases we made findings against his submissions and accepted the HCCC had established the conduct addressed demonstrated the knowledge, skill or judgment possessed by the Respondent or care exercised, in the practice of plastic surgery was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 6. Having heard the evidence of the Respondent and the experts set out in this judgment, we understand the cohort of patients which is largely addressed in Complaint One were patients who were identified as massive weight loss patients. We understand that category of patients poses challenges to plastic surgeons because of the changed nature of their skin and underlying health issues. They do not heal well or quickly, they have significant prospects of unsightly scars and they can have unrealistic expectations of the result of proposed surgeries. With all those attendant difficulties and the prospect of a dissatisfied patient, we heard evidence from surgeons, other than the Respondent, about the circumstances in which they will undertake such surgeries and all the steps they take to make sure the patient is as informed as they can be about the potential complications which could arise, the necessity for excellent post-operative care, the establishment of realistic expectations, the requirement for spouse and family support for the patients and their proposed surgery, the pre-requisite for stable weight loss and other such matters. 7. Given all that we have said above, we find that it should have been within the Respondent's skill set, judgment and knowledge to take particular care with these patients. To have taken a conservative approach to the surgery he was asked to perform and to have exercised his prerogative to refuse to undertake operations where he assessed the risks were high for healing complications, outcome appearance and patient dissatisfaction. 8. The Particulars of Complaint One which we have found established, instance conduct which we consider was serious in nature. An example would include the failure to obtain informed consent from a patient to a proposed operation. That may have the impact of denying a patient the opportunity to form the view that the risks were too great to proceed with the surgery or that the desired outcome was unlikely to be achieved. At the time of the hearing before us we are satisfied the Respondent, understood what is required to obtain informed consent. He acknowledged that in those cases where he made an appropriate admission. Another example was his failure in the pre-operative assessment of his patients. That was particularly important to inform the plan he would make for the operation itself. 9. Although the Respondent has given evidence about the circumstances he found himself in between 2017 and 2019, being over committed to work and lacking time to attend to patients when post-operative complications meant further intervention and supervision by him was required, that is really a realisation, now held, about his judgment at that time as to his capabilities to be a skilled and effective practitioner. It may also have been contributed to by his acknowledged inability, at that time, to refuse work because he did not wish to disappoint his patient. 10. We are satisfied that the Respondent did engage in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to contact of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. We make that finding whether Particulars 18(c) or 18(d) are included as unsatisfactory professional conduct or not. 11. We find that the Respondent is guilty of professional misconduct as defined in s 139E of the National Law. Complaint Four 1. This complaint seeks a finding that the Respondent is not a competent medical practitioner (specialist plastic surgeon) within the meaning of s139(a) of the National Law. The background to Complaint Four we have set out earlier in this judgment. The Particulars to this Complaint are as follows: PARTICULARS OF COMPLAINT FOUR Clinical Decision Making 1. Between July 2017 and August 2019 the practitioner's clinical decision making in relation to the care and treatment of Patients G; H; I; J; K; L and N was unsatisfactory. 2. The practitioner's clinical decision making in relation to Patients G; H; I; J; K; L and N did not meet the standards as set out in the following Codes of Conduct: (a) Clause 5.4 RACS Code of Conduct - Maintaining Professional Performance; (i) A surgeon will participate in systems for surveillance, monitoring and reducing risk; (b) Section 5.1 ASPS Code of Conduct – Pre and Post Operative Surgical Care; (i) a member should ensure that "their patients are adequately informed of the nature of the proposed treatment, the likely post-operative course and the possible risks, side effects and complications." (c) Clause 3.10.6 Medical Board of Australia Good Medical Practice, Code of Conduct: (i) reviewing adverse events and implementing changes to reduce the risk of recurrence. Surgical Skill 3. Between July 2017 and August 2019 the practitioner failed to demonstrate satisfactory surgical skill in relation to the surgeries performed on Patients G; H, I; L, M and N on the dates as set out in Annexure F to the Complaint. 4. The practitioner's surgical skill in relation to Patients G; H; I; L; M and N did not meet the standards as set out in the following Codes of Conduct: (a) Clause 1.2 RACS Code of Conduct – Standard of Clinical Practice (i) A surgeon will provide clinical care consistent with the prevailing standards of their specialty. (b) Clause 1.9 RACS Code of Conduct – Standard of Clinical Practice (ii) A surgeon will manage only those patients whose clinical conditions are within the surgeon's scope of practice, giving consideration to individual training, experience, credentialling and current practice profile Patient Management 5. Between July 2017 and August 2019 the practitioner failed to provide satisfactory overall patient management in relation to the care and treatment of Patients H; J and L. 6. The practitioner's patient management in relation to Patients H; J and L did not meet the standards as set out in the following Codes of Conduct: (a) Clause 1.2 RACS Code of Conduct – Standard of Clinical Practice (i) A surgeon will provide clinical care consistent with the prevailing standards of their specialty (b) Section 2.1 ASPS Code of Conduct – Upholding the Reputation and Standards of the Practice of Plastic Surgery: (i) Members must at all times maintain high standards in their practice of Plastic Surgery. 7. By reason of Particulars 1 – 6 above, the practitioner does not have sufficient knowledge and skill to practice as a specialist plastic surgeon in circumstances where his practice is insufficient in the following practice areas: (a) clinical decision making; (b) surgical skill; (c) patient management; 8. By reason of Particulars of 1 – 20 of Complaint One and Particulars 1 – 7 of Complaint Four above, the practitioner is not currently safe to practise as a specialist plastic surgeon without Category A supervision. 1. The Respondent provided his Reply to Complaint Four as follows: Complaint Four I deny that I am not competent within the meaning of section 139(a)of the National Law. Background With respect to the background to this complaint, it is incorrect to say that the Council held s150 proceedings on 18 September 2020, 15 July 2021 and 22 July 2022 and say that these proceedings were section 150A reviews that I applied for and at the conclusion of those proceedings the Medical Council chose to relax the conditions on my registration. With respect to the background of this complaint it is incorrect to say that the Council held a section 150 proceedings on 25 November 2020 and say that these proceedings were s150C proceedings held by the Medical Council to clarify the current conditions from a monitoring perspective. I admit the balance of the background to this complaint. Clinical decision making 1. I do not admit this particular 2. I do not admit this particular including sub particulars (a) to (c) Surgical skill 3. I do not admit this particular 4. I do not admit this particular Patient management 5. I do not admit this particular 6. I do not admit this particular. 7. I deny this particular. 8. I deny that I am not currently safe to practice as a specialist plastic surgeon. The HCCC Submission 1. The HCCC made a submission in relation to Complaint Four. The submission included the following: 256. The applicant at Complaint Four, Particular 8 asserts that the respondent is not currently safe to practise as a specialist surgeon without Category A supervision. The Tribunal was provided with evidence from Dr Sanki, and from witnesses called on behalf of the respondent, in relation to the type of conditions that might be imposed on the respondent. 257. The applicant firstly acknowledges that conditions would be imposed only if the Tribunal is satisfied that Complaint Four is made out; and secondly proceeds on the basis that the terms of any conditions in fact imposed on the respondent can and should await the stage two hearing. 258. The applicant accepts that the test for competency is the respondent's current competence, and that Dr Sanki's opinions are based on surgeries undertaken by the respondent in 2018 and 2019. However, having regard to the conditions placed on the respondent since the end of 2019 and the very small number of body contouring surgeries in which the respondent has engaged since 2019, there is no basis for the Tribunal to conclude that the respondent's competence in performing body contouring, especially in relation to mass body weight loss patients, has improved. The respondent remains currently incompetent in this regard. 259. Accordingly for Stage One the applicant relies on Dr Sanki's reports in support of the deficiencies identified in respect of the respondent's:- a. Clinical decision making; b. Surgical skill; and c. Patient management, in the practise of body contouring plastic surgery. 260. Dr Sanki's reports included the following conclusions:- The most concerning aspect of Dr Amjadi's practice is that he did not modify his techniques and patient management to avoid further complications … An essential characteristic of a specialist surgeon is to audit their techniques and outcomes so that they can learn from their mistakes…Dr Amjadi did not learn from his mistakes and did not modify the style of his practice so that he spent more time with each patient preoperatively and intraoperatively. (emphasis added) It is not acceptable to recommend procedures to patients when the risk of those procedures outweigh the benefits … Dr Amjadi would have been aware of his complication rate, and in the situation of Patient H and I, he should have had insight to refer these patients for a second opinion as their clinical problems were not significant. In the situation of Patient K and L, both patients should have been [sic] advised that their outcomes would reflect their high BMI… All patients (except for Patient I who had breast surgery) suffered from wound dehiscences. This suggests poor suturing techniques, poor patient selection and closure of the wounds under undue tension. Dr Amjadi may have had surgical skills appropriate to a young surgeon, but he took on cases that were far too difficult (patients who were obese or had high expectations). As per the RACS Code of Conduct, it is important for a surgeon to be aware of their limitations and to refer patients that would achieve a better outcome with a more experienced surgeon. Massive weight loss patients require a significant amount of time both in their preoperative and post surgical counselling. Their procedures are time-consuming and cannot be rushed. A MWL body contouring practice is not amenable to profit from high turnover, and the amounts charged of each patient were simply not compatible with the costs of running a practice with multiple staff in a city location. 261. These quotes are taken from Dr Sanki's second report in which she was responding to specific questions put to her after receipt of her first report. 262. The applicant notes that the respondent's witness and very experienced plastic surgeon, Dr Curtin, gave evidence that:- … I had formed the, an opinion about Dr Amjadi that he was a careful and cautious surgeon and the sorts of problems that were emerging in those complaints did not fit that, the picture that I had of Dr Amjadi. …I'm not quite sure what went wrong for him, that's, that's what I'm saying. But that's, as I said, why I was surprised because these results were very disturbing and, and all in a fairly short space of time… 263. Dr Sanki's first report contained her detailed analysis of eight patients treated by the respondent. Although Dr Sanki made some concessions – for example, that Patient G's medical notes did not indicate that she experienced wound dehiscence whilst in hospital post-operatively - Dr Sanki maintained her opinion that Patient G's wound dehiscence overall was attributable to poor surgical skill . 264. Dr Sanki was cross-examined at length about each patient and made no change to her opinion regarding Patient H, Patient I, Patient J (Dr Sanki did concede that the respondent's exclusion from the ASPS might have affected his engagement with colleagues about difficult cases, but did not resile from the need to do so), Patient K, Patient L, and Patient M. The respondent did not cross-examine Dr Sanki about Patient N. 265. In short, Dr Sanki's opinions about the respondent's clinical decision making, surgical skills and patient management remain intact and support the Tribunal making findings that Particulars 1 to 7 of Complaint Four are established. If the Tribunal makes those findings then it follows that the respondent lacks competence in performing body contouring and accordingly is not safe to practise that area of plastic surgery without supervision. The precise nature of that supervision can be addressed at Stage Two; for present purposes the applicant notes that the evidence of the respondent's own witnesses:- a. Dr Safvat agreed that it was not unreasonable for some direct supervision of major weight loss body contouring surgery b. Dr Ritz agreed that the respondent would be well-advised to have a mentor in respect of the preoperative assessment process for body contouring on major weight loss patients. … 267. Further, under Complaint Four the applicant has established issues with the respondent's competence in performing body contouring, particularly after major weight loss, such that, when and if the respondent is permitted to perform such surgeries, he should do so under conditions, the precise nature of which can be established at the stage two hearing The Respondent's submission 1. The Respondent made a submission on this Complaint Four. The submission included the following: "213. It is alleged by reason of Particulars 1-20 of Complaint One and Particulars 1-7 of Complaint 4, the respondent is not currently safe to practice as a specialist plastic surgeon without Category A supervision (Particular 8). The respondent denies this particular and notes there is no evidence at all to support he is currently unsafe to practice or not competent. The evidence is overwhelmingly to the contrary. 214. At the outset, it is important to note two features of the way that Complaint 4 has been framed by the Commission. 215. Firstly, competence under s 139(a) of the National Law is assessed at the time of hearing, not by looking retrospectively. Therefore, even if the Tribunal is satisfied of Particulars 1-6 of Complaint 4, it does not necessarily follow that the respondent is presently incompetent. The Commission's submission to the contrary is plainly wrong: AWS [265]. In assessing the respondent's present competence, the Tribunal would also need to take into account the improvements that the respondent has made to his practice and skills, and the satisfactory way that he has performed under supervision. 216. Secondly, the complaint is framed in a global way: it is said that the respondent is not competent, in that he lacks the sufficient knowledge and skill to practice as a specialist plastic surgeon. The complaint is not qualified and does not allege that the respondent's competence is limited to his practice of body contouring surgery, or so that it only relates to his competence to practice without conditions. The Commission has chosen to present its case this way, despite concerns being raised about this Complaint in the course of the hearing.328 217. During the hearing, the Commission stated that 'it is not asserted that Dr Amjadi is incompetent in total, but it is asserted that his competence is subject to conditions'.329 This is at odds with the way that Complaint 4 has been framed. It would follow from the Commission's concession that the Tribunal could not be satisfied of Complaint 4. 218. While conditions have been imposed on the respondent's ability to undertake body contouring surgery, it is not in dispute that the respondent has continued to practice as a specialist plastic surgeon and has performed other procedures (such as rhinoplasties) without incident.330 It is also not in dispute that the respondent is competent to practice with conditions: so much has been acknowledged by the Commission. 219. The gradual relaxation of conditions imposed by the Medical Council prior to the commencement of these proceedings is also indicative of the respondent's competence to practice with conditions." 1. The Respondent then addressed the expert evidence of Dr Sanki, which was relied upon by the HCCC. The Respondent submitted: "220. In support of Complaint Four, the Commission relied on a report of Dr Sanki dated 5 September 2022.331 The report concluded that the respondent was only competent to continue as a plastic surgeon if he continues to be subject to category A supervision orders. 221. Dr Sanki's opinion on the issue of competence changed after her review of the respondents most recent supervision reports (whose opinion she trusted332), and character references. She said in evidence "My current opinion is that his supervisors feel that he is performing to a good standard and therefore he should be allowed to practice body contouring procedures. However I would suggest that this should be still done with some level of supervision which we would expect of other plastic surgeons, such as the audit process…...".333 Based on the changed position of the Commission's own expert, the Commission's submission that "there is no basis for the Tribunal to conclude that the respondent's competence in performing body contouring, especially in the massive weight loss patient, has improved" and that he 'remains currently incompetent in this regard' (see AWS [258].) is without evidential foundation and is untenable." 1. In relation to the criticism of the Respondent's failure to obtain informed consent, the Respondent submitted: "224. The Commission repeatedly submits in their written submission that the respondent failed to obtain 'informed consent' in circumstances where the respondent provided patients with information pamphlets; and they signed consent forms, outlining risks. [127] The Commission's submission ignores that no criticism at all has been made of the respondent's standardised consent forms sent to patients in existence at the relevant time. Dr Sanki's oral evidence was that the respondent's paperwork is 'very good' and his consent and information forms are not the subject of any criticism by her. Further, any comparison between Dr Sanki's consent forms for Brachioplasty and Thigh Lifts, (Exhibit R12 and R13) discloses no material difference in the information provided to patients as compared to the respondent's information packages at the relevant time. In cross examination Dr Sanki accepted that despite a practitioner's best efforts, patients in her experience can still be unhappy with expectations not met." 1. The Respondent referred to Dr Sanki's evidence as to her own surgical practice and her own criteria for agreeing to undertake massive weight loss surgery for patients. That includes limits on BMI. The average BMI for patients she operates on in the massive weight loss category is 28. She said most fit within BMI of 25 to 30. 2. In relation to scaring which follows massive weight loss patient operations the Respondent submitted: "Dr Sanki does not consider hypertrophic scars in the massive weight loss patient a 'major complication' and so does not record it in her logbooks." The Respondent further submitted: "Dr Sanki agreed that, based on the available literature as to complication rates, the respondent was not an outlier in relation to his complication rates in body contouring procedures." 3. Further the Respondent submitted: "We note the evidence of Dr Turner who repeated in evidence a number of times the very high revision rates for this cohort of patients. He highlighted that focus on complications in the respondent's procedures is arguably misplaced as any surgeon with a high volume of massive weight loss patients is likely to experience poor outcomes and wound problems- "that happens to all of us"." 1. In relation to complication rates the Respondent added: "Dr Sanki acknowledged herself, the respondent's complication rates were not abnormal. In the respondent's submission, the Tribunal could not find that the respondent should have modified his techniques and patient management in response to complication rates that were, on the evidence available, entirely unremarkable." 2. The Respondent addressed the evidence of Dr Ritz and submitted his evidence in relation to patients G to N was as follows: "a. I don't think it's unusual to get wound issues in post bariatric patients. If you never ever get them, I would argue you just don't do enough surgery, because these patients do have underlying factors." b. The respondent's complications would occur even in the hands of other surgeons. However there is a pattern of wound issues, and it is hard to know if the respondent has learned from these cases. c. In general, the failure to document the preoperative assessment, documentation or risks, and measurements taken for these patients is below the standards expected of a surgeon. d. In all instances, the respondent contacted and kept in contact with the patients through all their post-operative problems. e. The respondent appears to have skills as a specialist plastic surgeon, but his assessment of patients needs to be improved. He would benefit from supervision and further education. f. Dr Ritz said under cross examination in questioning which suggested that the respondent was operating beyond his skill level as a junior surgeon "But when you start out in practise, I think most surgeons would like to see their practise develop. A lot of times they don't really have an area of expertise or interest and so that would slowly develop, which I think happened here with the body contouring becoming prominent part of the respondents practise…….I think he did a number of cases. I think there were and there obviously are many happy patients….I don't know how many complications would constitute a timeout but I think you know we are looking at a few patients out of a number of cases that he did that year. g. Dr Ritz described the respondent as a "pioneer" in that many of these patients would not have had the benefit of body contouring surgery if they needed to pay a premium." 1. The Respondent then addressed in great detail the surgeries of each of the patients the subject of Complaint Four. We have read those submission, however, we do not consider it is necessary to deal in detail with each. 2. The Respondent then set out submissions which addressed the evidence of the Respondent's current competence. The Respondent submitted: "294. Since the first s 150 hearing, the respondent has determined that he would use the criticisms made of him in order to completely overhaul his practice. He started working with two experienced supervisors, Dr Turner and Dr Safvat, and has voluntarily engaged with a mentor, Dr de Torres. He has observed their surgeries and they have observed his. They have also given him guidance on how to improve his practice. The respondent has also assisted a number of other practitioners in body contouring surgeries.522 The respondent has undertaken a large number of courses in 2020 and 2021. These are detailed in his statement at Vol 1/13, Tab 1, p 187-188, para 529. 295. As a result of his further training and supervision, the respondent has made considerable changes to his pre-operative and consent processes. He has thrown all his efforts behind improving his practice. The respondent is aware that he still requires supervision for body contouring surgery and surgery on patients who have undergone massive weight loss. 296. The respondent was asked questions by the Tribunal about changes that he has made to his practice. He stated that he had changed his technique for classifying patients. He now takes a systematic approach, where he divides the patient's criteria into their medical conditions, their social situation, their financial situation, and their chief complaint. From each of those categories he asks whether they are suitable for what they are requesting. He then asks whether what they are asking for is something he can achieve. 297. The respondent gave evidence that his record-keeping has also changed. He uses a number of electronic aids to make sure that a patient has read material, and he sends videos and animations of procedures to patients. He is also much more comprehensive in recording phone calls and emails in patient files. The respondent has made an effort to make sure that pre-operative and post-operative photography is transferred onto patients' electronic records. 298. In his cross-examination, the respondent made appropriate concessions and showed insight. For example, he appropriately conceded that his logbook spreadsheet records are dependent on his recall of complications and it is possible that complications could be omitted. He volunteered the insight that at the time in question he focused too much on the reconstructive aspect of the surgeries and 'ignored the fact that there's a significant cosmetic component'. He stated that his previous answers in section 150 hearings regarding the number of attendances required now seem 'paternalistic' and 'make me cringe'. 299. It is submitted that the respondent's oral evidence demonstrates that he is a surgeon who shows insight, who is contrite, and who has made a consistent and sustained effort to improve his practice to avoid errors or failures in the future. 300. In response to questions from the Tribunal, the respondent also reflected on the experience of counselling. He stated that it 'lets me look back at the reasons why I make decisions the way I do' and to try and stop himself from making the same decisions again and 'putting myself into that position where I can be compromised'." 1. The Respondent then addressed the evidence of his referees and supervisors. The evidence of Dr Safvat, a supervisor of the Respondent was summarised by the Respondent as follows: "a. He has met with the respondent once a month and sometimes twice a month. b. The respondent has assisted him with breast reduction and body contouring cases. They have discussed these cases together, and Dr Safvat has asked the respondent about his preoperative assessment and surgical plan. He has found these to be 'adequate and in keeping with my own management plans'. They have also discussed how to manage complications. c. From early 2020 to October 2023, the respondent assisted Dr Safvat with 22 breast reduction surgeries and 38 body contouring surgeries, performed on 24 massive weight loss patients. d. Dr Safvat has assisted the respondent in late 2023 on three cases where he was the primary surgeon. Two were abdominoplasties and one was a rhinoplasty. e. Dr Safvat has observed that the respondent's surgical skills are 'very good'. He has also matured significantly in critical thinking and decision making. 'His clinical judgment on patient assessment and management has improved and is now at the level of any other plastic surgeon I have worked with'. f. Dr Safvat has had limited opportunities to observe the respondent interact with his patients, but on those limited occasions there were 'no areas of concern'. In Dr Safvat's view, the respondent is 'a surgeon of good character with ethical values and honest and open with the patients'. g. Overall, Dr Safvat is of the opinion that the respondent 'has shown significant improvement in his judgement and has matured remarkably in this time'." 1. The Respondent summarised the evidence of Dr Scott Turner, a supervisor of the Respondent, approved by the Medical Council since May 2020 as follows: "a. He has known the respondent since 2010 when they were plastic surgery registrar trainees in Sydney. b. He has been the respondent's primary supervisor since April 2020. During this time he has had weekly contact with the respondent, either by phone call or in person meetings. c. He is unaware of any non-compliance by the respondent with any of the conditions of his registration. d. He has found the respondent to be respectful and truthful, and receptive to feedback on his limitations e. He has found the respondent to be a competent and caring surgeon during the times he has assisted in theatres f. He has had many discussions with the respondent about the circumstances leading up to the complaints. They have discussed patient selection, clinical documentation, formal consent process, surgical techniques and appropriate post-surgical care. The respondent is aware that improvements in these aspects could have assisted him in providing a higher level of care. g. He is satisfied that the respondent has a much broader scope of knowledge and skills and would be supportive of his restrictions being removed." 1. The Respondent submitted in relation to the evidence of Dr Sanki: "Dr Sanki ultimately stated that given she has never observed Dr Amjadi in theatres 'I can't make a comment about his actual clinical skill and ability'. Dr Sanki's ultimate opinion was that the 'mistakes' made by the respondent are likely to be limited to the time spent with patients and managing patient expectations. Dr Sanki's opinion was that the respondent required no more than monthly supervision regarding cases and outcomes." 1. The Respondent referred to the evidence of Dr Stern which is referable to the considerations of Complaint Four. He submitted: "In cross-examination, Dr Stern stated that he wasn't aware that the respondent had been supervised for the last four years, supervisors approved by the Medical Council of NSW. Dr Stern said: "If a practitioner has achieved a competent level of expertise in a given area of a broad speciality such as plastic and reconstructive surgery, it would be a pity for that practitioner not to be able to carry out the work in which they have expertise." 314. Dr Stern gave this further evidence on point in reply to questioning by Tribunal: "I think the only opinions I have provided have surrounded body contouring surgery in major weight loss patients. I haven't been provided with any suggestion or evidence that other aspects of his plastic surgical practice are in any way deficient. So, I haven't – other than the fact that he has satisfied the examiners for fellowship of the Royal Australasian College of Surgeons, which is a fairly exacting standard of knowledge and he satisfied his surgical supervisors over five years, that his technical skills at that time and his manner of dealing with patients was, certainly at least adequate, to allow him to progress. I've got no evidence in front of me to say that other aspects of his speciality practise are anything other than exemplary." 1. The Respondent concluded his submission on Complaint Four with the following: "316. Taken as a whole, the evidence in this matter shows that the respondent, between 2017 and 2019, likely took on too many body contouring cases out of a desire to help patients who could not otherwise afford them. As a result, there were failures in his record-keeping, at time specifications on consent procedures, and patient expectation management. The respondent has not resiled from these shortcomings, and indeed has shown a remarkable degree of insight into them. While they amount to unsatisfactory professional conduct, the Commission has not established that the respondent has engaged in professional misconduct. 317. As a result of that insight, the respondent has made positive changes to improve his surgical practices. He presents today as a surgeon who is radically different to who he was between 2017 and 2019. There is no basis for the Tribunal to find that he is not competent to practice as a specialist plastic surgeon. To the extent that proof of unsatisfactory professional conduct requires modification to the existing conditions that have been imposed by the Medical Council, this is properly a question for Stage 2 of the Proceedings." Finding on Complaint Four 1. We first need to note the evidence of Dr Sanki in relation to the patients which make up the body of evidence in this Complaint Four. The criticism is replete with examples of where Dr Sanki is critical of Dr Amjadi for undertaking procedures when he did not have the experience to do so and was not assisted by a more experienced plastic surgeon. We accept the opinion of Dr Sanki that based upon the cases she reviewed she considered the Respondent was not fit to practice during the 2018 and 2019 years. 2. The HCCC brings this Complaint pursuant to section 139(a) of the National Law. That section and sub-section is as follows: "A person is competent to practice a health profession only if the person:- (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession." 1. As the Respondent points out the requisite findings sought by the HCCC in this Complaint Four include determining that at the time of the operations listed in Particulars 1 to 6 the Respondent was lacking competence to practice in the manners described, that the Respondent is still not competent to practice as a specialist plastic surgeon (Particular 7) AND the Respondent is currently not currently safe to practice as a specialist plastic surgeon without Category A supervision. 2. The HCCC concedes the question of conditions which might be attached to the Respondent's registration, should the Tribunal determine there is no requirement for a cancellation, is a matter for determination in Stage Two of the hearing. 3. We are satisfied having reviewed all of the evidence we have set out in this judgment, the Respondent is not incompetent as alleged in Complaint Four and therefore we conclude the HCCC has not established Complaint Four to our satisfaction. 4. The evidence in relation to supervision of the Respondent in particular aspects of his surgery, as a specialist plastic surgeon, will be the subject for consideration at Stage Two. 5. The orders to be made by the Tribunal are as follows: 1. The Respondent is guilty of unsatisfactory professional conduct as described in s 149B(1)(a) and s 139B(1)(b) of the National Law. 2. The Respondent is guilty of professional misconduct as described in s 139E of the National Law. 3. The Parties are each to file and serve their further evidence to support their Stage Two cases within 14 days of the date of this judgement, or such later date as the Tribunal may permit. 4. The Stage Two hearing is listed for 12 and 13 November 2024. 5. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any patient referred to in the proceeding is prohibited. ********** Annexure A DETERMINATIONS ON THE RESPONDENT'S PRELIMINARY APPLICATION 1. On the first day of the hearing (11 March 2024) and as a preliminary aspect to the hearing of the Complaint brought against Dr Mahyar Amjadi (the Respondent), his counsel made application for and sought the following order: "That the evidence contained in the Health Care Complaints Commission brief in this matter, being documents under the hand of Dr Harvey Stern, (being signed reports of Dr Harvey Stern), are inadmissible." 1. The Health Care Complaints Commission ("HCCC") opposes the application. 2. On 14 March 2024 the Tribunal made the following ruling on the preliminary application: "The preliminary application of the Respondent that the documents under the hand of Dr Harvey Stern, (being signed reports of Dr Harvey Stern), are inadmissible, is refused. The reasons for the refusal will be published with the decision of the Tribunal on Stage One of the determination." 1. We now provide the reasons for the decision. 2. In support of the application the following documents were marked as exhibits: PR1. pages 1 to 253 of material disclosed to the Respondent on 28 February 2024. PR2. Copy transcript of the s.150 hearing conducted 28 June 2019. PR3. Decision of the Medical Council dated 8 July 2019 following s.150 hearing. Letter dated 9 August 2021 Dr Stern to HCCC. PR5 Document dated 11 July 2022 under heading bearing the name of Dr Stern and titled "Draft Medical Report" and otherwise redacted apart from the first sentence. PR6 Emails dated 11 March 2024 between Ms Leonie Beyers of HWL Ebsworths and Ms Lauren Antonini Avant. 1. It is common ground that Dr Stern has been engaged by the HCCC to provide expert reports in relation to patients identified as Patients A to F in this proceeding. Those reports are contained in the material filed by the HCCC. 2. The foundation to support the Respondent's application was summarised by the Respondent as follows: (a) The evidence relied upon supports a conclusion that the expert lacked impartiality. (b) The expert failed to comply with the signed (by him) confidentiality Agreement. (c) That the conduct, on its face, could be a breach of s.99A of the National Law. (d) That the expert failed to comply with the expert's code of evidence. (Such a failure, if established does not make the report inadmissible). (e) If the expert's reports are admitted to evidence it is probable the Tribunal will conclude they are unreliable and therefore not capable of being given any meaningful weight in this proceeding. 1. In support of the application, the Respondent tendered in this preliminary hearing only, the documents: Exhibit PR1. Pages 1 to 253 of a bundle produced by the HCCC to the Respondent pursuant to a request for disclosure. (The documents received on 28 February 2024). Exhibit PR2. Transcript of evidence taken in a s.150 hearing on 28 June 2019. Exhibit PR3. Decision of the Medical Council (dated 8 July 2019), following a section 150 hearing. Exhibit PR4. Copy letter from Dr Stern to the HCCC. Exhibit PR5. Document dated 11 July 2022 under the letterhead of "Dr Harvey Stern" and titled "Draft Medical Report". That document, apart from the 1st sentence, is completely redacted. Exhibit PR6. Emails dated 11 March 2024 between Leonie Beyers of HWL Ebsworth, Solicitors, and Lauren Antonini (Avant). 1. The evidence relied upon by the Respondent and contained in exhibit PR1 is identified by the Respondent as follows. All page references are contained in exhibit PR1 unless stated otherwise. (i) Page 172. The 1st written (email) communication with Dr Stern enquiring if he would be willing to act as an expert witness for the HCCC. The email Subject is: "External Clinical Advice Request Re Dr Mahyar Amjadi". The document contains the following: "If you are willing and there are no conflicts of interest, could you please complete the confidentiality agreement form attached and return it to me upon your acceptance." (ii) Page 189. A Confidentiality Agreement, prepared by the HCCC and signed by Dr Stern on 9 April 2020. The agreement contains the following words: "I will not disclose any confidential information to any person unless they are identified as an authorised officer of the Commission or I am required to do so at law." The agreement specifically refers to sections 30 and 99A(2) of the Health Care Complaints Act 1993. It also defines the term "Confidential Information". (iii) Section 30(5) of the Health Care Complaints Act 1993 is as follows: Expert assistance (1) In investigating a complaint, the Commission may obtain a report from a person (including a registered health practitioner) who, in the opinion of the Commission, is sufficiently qualified or experienced to give expert advice on the matter the subject of the complaint. (2) The Commission may not obtain a report from a person who has a financial connection with the health practitioner against whom the complaint is made. (2A) If the Commission seeks to obtain a report from a person under this section in relation to a complaint, the Commission is to provide the person with all relevant information concerning the complaint that is in the possession of the Commission. (3) The person giving the report must include in it, or annex to it, a statement in the following form, completed as appropriate-- I have/do not have a personal, financial or professional connection with the person against whom the complaint is made. Particulars of the connection are as follows-- Dated-- Signature (4) Such a report may be used in disciplinary or related proceedings under the Health Practitioner Regulation National Law (NSW) but may not be admitted or used in any other proceedings before a court, tribunal or body, except with the consent of the person giving the report, the complainant and the person against whom the complaint is made. (5) A person from whom such a report is obtained, the Commission or the Commissioner may not be compelled to produce the report or to give evidence in relation to the report or its contents in any such other proceedings. (6) In this section, "report" includes a copy, reproduction and duplicate of the report or any part of the report, copy, reproduction or duplicate. (iv) Section 99A(2) of the Health Care Complaints Act 1993 is as follows: 99A Offence: improper disclosure of information (1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made-- (a) with the consent of the person to whom the information relates, or (b) in connection with the execution and administration of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) with other lawful excuse, the person is guilty of an offence. : Maximum penalty--10 penalty units or imprisonment for 6 months, or both. (2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act. (2A) A professional council, or a person exercising functions on behalf of a professional council, may not be compelled in any legal proceedings to give evidence about, or produce documents containing, information exchanged between a professional council and the Commission under this Act or the Health Practitioner Regulation National Law (NSW) . (3) Subsections (2) and (2A) do not apply to the following proceedings-- (a) proceedings under the Royal Commissions Act 1923 , (b) proceedings before the Independent Commission Against Corruption, (c) proceedings under Part 3 of the Special Commissions of Inquiry Act 1983 , (d) an inquiry under the Ombudsman Act 1974 , (e) in relation to subsection (2A)--proceedings under the Health Practitioner Regulation National Law (NSW) , but only if-- (i) the professional council is a party to the proceedings, and (ii) the information is necessary for the just and equitable resolution of the proceedings. (v) Page 6 and following. A document created by the HCCC and titled "Factual assumptions (Draft) Complaints concerning Dr Mahyar Amjadi" and dated 24 May 2021. (vi) Page 5. An email to Dr Stern attaching the document identified in pages 6 to 74. There is a request to answer questions in relation to 12 patients. (The Respondent draws attention to the name of patient 8 and submits it is the same patient the subject of a document contained in exhibits PR5 and PR6). (vii) Page 45 of the document identified in (iv) above. It identifies the patient who has been given the number 8 in the information provided to Dr Stern by the HCCC. The Respondent submits this is the same patient who is named as Patient G in the Amended Complaint document filed by the HCCC, and the patient the subject of a report provided by Dr Stern to HWL Ebsworth. See exhibit PR5 dated 11 July 2022 (The redacted document). (viii) P118. A document titled "Health Care Complaints Commission Expert Guidelines". In particular the Respondent draws attention to paragraphs 41 and 42 of that document. Those paragraphs address confidentiality. They refer to the Health Care Complaints Act 1993 and the confidentiality restrictions imposed therein. Paragraph 42 includes the following sentence: "The material you are given must not be divulged to other persons, nor can you discuss the complaint with any of the parties involved. In some circumstances you may, however, discuss the matter with a colleague in a generalised, de-identified and hypothetical way. If you do have such a discussion you must disclose this in your expert report." (ix) In relation to the "Expert Guidelines" the Respondent points to the departure from this requirement by Dr Stern when he conducted an enquiry with Dr Hussain and Dr Papadopoulos about the training he saw in the "assumed facts" portion of his instruction to prepare a report in relation to the Respondent's skill in the treatment of six identified patients. He was asked to report on those specific conversations, outside of the report he was engaged to prepare, and in a separate letter to the HCCC. (x) Page 127. A document titled "NCAT Procedural Direction 3" "Expert Evidence". The Respondent says exhibit PR1 shows this document was provided to Dr Stern. The Respondent draws the Tribunals attention to paragraphs 3, 7, 8, 13, 19(a) and (f) of the document. Paragraph 13 draws attention to the Experts code of conduct and includes words found in the NCAT Act in relation to expert's evidence. It also embodies the provisions contained in the Uniform Civil Procedure Rules 2005 in Schedule 7. Paragraph 19 of the document requires that the experts report must include "an acknowledgement that the expert has read the experts' code of conduct and agrees to be bound by it." Further 19(f) requires the report contain a statement as to "any literature or other materials used in support of the opinions." (xi) Page 176. This page contains a copy of an unsigned document headed "Confidentiality Agreement". This document is to be read with page 177 being an email exchange between Chanthu Valencia (HCCC) and Dr Stern dated 8 and 9 April 2020. That document demonstrates that the document at page 176 was attached to the email then sent to Dr Stern. In the reply email, Dr Stern states "I have no conflict of interest in dealing with a matter concerning Dr Amjadi". Further it states "With respect to the Confidentiality Agreement, I'm happy to do it again, but I've provided all manner of such documents previously…" (xii) Page 138. The Respondent submitted this document was critical to his argument in this preliminary application. He submits this document (a letter from Dr Stern to the HCCC dated 19 August 2021) is the preamble to six reports (for patients A to F). Attention is drawn to the last two paragraphs on page 139. The Paragraphs to which the Respondent draws attention are as follows: "Dr Amjadi is indeed not a member of the Australian Society of Plastic Surgeons. He has applied on multiple occasions and his application was declined, but very specific reasons were provided to Dr Amjadi on each occasion. These can be clarified with the Society officers, as they will be a documented matter of record. However I note that Dr Amjadi claims to have developed his experience in major weight loss surgery at Macquarie University Hospital. One of the consultant surgeons for whom he claims to have worked in doing these cases is Dr Gazi Hussain who cannot recall Dr Amjadi ever assisting him a MUH, and by coincidence was a senior council member of the ASPS and later president of the society, and would be pleased to discuss Dr Amjadi's applications and their refusal. Dr Amjadi also claims to have assisted and observed Dr Tim Papadopoulos during his registrar term at MUH. However, Dr Papadopoulos has never worked at that hospital and has only had exposure to Dr Amjadi in more recent times at Westmead Private Hospital. Dr Papadopoulos is also a recent past president of the Australian Society of Aesthetic Plastic Surgeons and similarly would be pleased to discuss his lack of involvement in Dr Amjadi's training." The respondent submits that the information about the Respondent's training underlined in the above quoted portion of the letter from Dr Stern, can be found in the transcript of a s.150 hearing (28 June 2019) in which the Respondent gave evidence, however, otherwise the information which is set out was obtained by Dr Stern from a source not provided to him by the HCCC. (xiii) In exhibit PR4, being a letter from Dr Stern dated 9 August 2021, the Respondent points to a paragraph on the second page which contains the following. "The response to all of these questions pertains to the traumatic injury sustained by (Patient C) to the head of the pancreas, and also separately to liver capsule and spleen. As already documented in the patient's records with the HCCC, the patient was transferred as a matter of urgency to RPAH, where she underwent urgent laparotomy under the care of Associate Professor Charbel Sandroussi. I have spoken with Dr Sandroussi regarding his findings and he was specific, definite, and clear that his surgical findings at the time of the laparotomy performed on 3 August 2019, were consistent with direct physical injury from the penetration of the peritoneal cavity with the liposuction canula and that no other possibility existed in his mind." Again the Respondent submits the underlined portion from the quote above, is crucial to his preliminary application. The Respondent also identified a further paragraph in exhibit PR4 which he relies upon in this application. The paragraph states as follows: "On the basis of the hospital records documented by the resident medical officer at Sydney Private Hospital, the operation notes from the patient's surgery on 3 August at RPAH, and from my telephone conversation with Dr Charbel Sandroussi, there is no doubt in my mind that the liposuction cannula used by Dr Amjadi struck principally the pancreas, but also damaged the liver and spleen for this patient at the time of her initial surgery on 1 August." Again, the Respondent relies upon the underlined portion of the above extract from exhibit PR4. (xiv) Exhibit PR5 is a document titled "Draft Medical Report". The next line on the document is "Dr Mahyar Amjadi ats (Patient G)". The balance of the document is redacted with the exception of the sentence "Thank you very much for the invitation to prepare a report in this issue." The letterhead on the document states it emanates from Dr Harvey S Stern. It is dated Monday 11 July 2022. (xv) Exhibit PR6 is an email chain commencing with Lauren Antonini of Avant writing to Leonie Beyers at HWL Ebsworths Lawyers. The email is dated 11 March 2024. The email contains the following: "Dear Leonie, Thank you for your help with this matter. We need to confirm whether or not Dr Stern disclosed that he had written reports for the HCCC regarding Dr Mahyar Amjadi to you when you briefed him as an expert." There are then 4 specific questions asked on that subject. The email chain continues with a reply by Ms Leonie Beyers, Partner. It includes the following: "I have no recollection of such a disclosure being made." It also includes the following: "I have no recollection of any conflict being raised by Dr Stern. If such a disclosure had been made, I would expect a note of it to have been prepared and saved to the file, and no record of such a disclosure has been found in the file." 1. The Respondent then addressed the application sought. It is submitted that the documents tendered in support of this application and illustrate that Dr Stern has breached the requirements for an expert witness engaged to provide expert evidence in a hearing in the Tribunal. The knowledge of the requirements of an expert witness is established, in relation to Dr Stern, by the documents tendered in this application. It is submitted that Dr Stern has breached those requirements in a number of ways. That includes conferring with other medical practitioners in a manner which identified the Respondent and a patient. He also conferred with a colleague in relation to some of the medical training history which the Respondent had presented to the Medical Council and the HCCC. In so doing he named the Respondent. 2. The possible provision of a report for the Respondent in a proceeding in which Patient G in this proceeding was a plaintiff, prima facie, establishes a conflict on the part of Dr Stern, because at the time of his communication with HWL Ebsworth (Exhibit PR5), namely 11 July 2022, he had already been engaged by the HCCC to provide reports in this proceeding. 3. The Respondent submits that the evidence relied upon establishes a concern as to Dr Stern's impartiality as a expert witness in this case. He submits Dr Stern has failed to comply with his signed and acknowledged confidentiality agreement. He submits Dr Stern has failed to comply with the expert's code of evidence and guidelines which he was supplied with as part of the material provided by the HCCC. 4. The Respondent submits that all of the evidence renders the expert evidence of Dr Stern as unreliable to such an extent as to require the Tribunal to reject his evidence in its totality. 5. During the submission the Tribunal asked Senior Counsel for the Respondent if she was able to provide reference to any statutory provision which renders the evidence of Dr Stern, assuming the evidence relied upon is accepted, as inadmissible. She informed the Tribunal she knew of no such provision. She was asked if she was able to provide a copy of any decision of this Tribunal or any other court, where the evidence of an expert witness, such as Dr Stern, had his evidence deemed inadmissible because of the failings such as those identified by her in this preliminary application. She was not able to provide such a decision. Senior Counsel for the Respondent did inform the Tribunal that failure to comply with the Experts Code of Conduct, does not, in itself, render the experts report inadmissible. 6. The Respondent referred the Tribunal to the decision in Wood v R [2012] NSWCCA 21 where at paragraph 728 and following, the Court of Criminal Appeal stated: 728. It may be, as some previous decisions suggest, that an expert's evidence is not inadmissible merely because the expert has breached or overlooked the Expert Witness Code of Conduct: United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [12] (Campbell J); Rich at [333] (Austin J); Stamoulis at [208] (Ipp JA, Beazley and Giles JJA agreeing); see Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 at [9] (Einstein J). This position accords with the view that bias is "no reason not to admit evidence of [the] expert": Li v The Queen (2003) 139 A Crim R 281; [2003] NSWCCA 290 at [71] (Ipp JA, Whealy and Howie JJ agreeing); see also Haoui v R [2008] NSWCCA 209 at [127]. It also aligns with the reality that "[h]owever desirable these new rules and protocols [contained in expert witness codes of conduct] may be, they cannot establish changes to the principles underlying the law of evidence": FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [15] (Ormiston JA, Chernov and Eames JJA agreeing). 729. This is not to say that the Expert Witness Code of Conduct is merely aspirational. Where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under ss 135 or 137 of the Evidence Act . Campbell J adverted to this possibility in Lopmand when his Honour stated at [15]: "The policy which underlies the existence of Part 36 rule 13C is one which I should take into account in deciding whether [the expert evidence] should be rejected under section 135." I respectfully agree with that approach. While there is no rule that precludes the admissibility of expert evidence that fails to comply with the Code, the Code is relevant when considering the exclusionary rules in ss 135-137 of the Evidence Act . The expert's "failure to understand his [or her] responsibilities as an expert" ( Lopmand at [19]) may result in the probative value of the evidence being substantially outweighed by the danger that it might mislead or confuse or be unfairly prejudicial to a party. 730. I do not believe it is necessary to resolve this issue in these proceedings. However, as I have said, to my mind the book which A/Prof Cross published has the consequence that his opinion on any controversial matter has minimal if any weight: see Pan Pharmaceuticals Ltd (in liq) v Selim [2008] FCA 416 at [157] (Emmett J). 1. Section 135 of the Evidence Act states: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might-- (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 1. On the 3rd day of the hearing, and before the HCCC had provided its evidence and submission on this preliminary application, the Respondent's senior counsel provided the Tribunal with a copy of the Tribunal's decision in Mooney v Medical Council of NSW ("Mooney") [2024] NSWCATOD 24. 2. In Mooney, the Tribunal set out the following in relation to an expert witness's evidence relied upon by the Applicant practitioner. 119. Dr Robert Fisher, a consultant psychiatrist, provided a report dated 20 September 2023 at the request of Mr Mooney's lawyer. It came to light during the hearing that Dr Fisher had provided two earlier versions, or drafts, of this report to Mr Mooney's lawyers who had passed them on to their client. 120. In an earlier version of the report seen by Mr Mooney, Mr Fisher wrote the following in response to the question as to how he interpreted Mr Mooney's behaviour on the night of his arrest for cocaine possession (noting that Mr Mooney denies that he lied to police): Mr Mooney says that when he got out of the drug dealer's car in the dark he was approached by a person in plain clothes who was shouting at him. He says he initially thought this person might have been a mugger and that this was a set up. He says he threw the plastic bag of cocaine into the gutter. Then one of the two people approaching "explained" that he was a plain clothed police officer and when he was asked whether he had any drugs in his possession he had said no as he had discarded the drugs. One of the two Regional Enforcement Squad officers recovered the cocaine and Mr Mooney was charged with possession. Strictly speaking, according to him, when he was asked about his possession of the drug he no longer had it on his person and so he might have been deemed not to have lied in response to that direct question. Nonetheless, he had paid for and taken possession of the cocaine and it is equally possible that he threw the bag of cocaine away suspecting the person who approached him might have been a policeman. The worst-case interpretation of Mr Mooney's response to the police is that he was attempting to avoid being arrested and told a lie. (Italics added) 121. After seeing this draft version of the report, Mr Mooney wrote to Dr Fisher to give him a further statement. In that letter, as well as setting out in detail his version of what happened on the night of his arrest, he wrote: You said, 'The worst case interpretation of Mr Mooney's response to the police is that he was attempting to avoid being arrested and told a lie". This is a possible interpretation but I honestly believe it is not the case. Of course I respect your need for impartiality in your report but wonder if surmising on the worst-case interpretation is in my fairest interest. 122. In an email exchange with Mr Mooney's lawyers Dr Fisher said that he would not remove his opinion regarding the worst case interpretation. Despite that assurance, he deleted the words, "The worst-case interpretation of Mr Mooney's response to the police is that he was attempting to avoid being arrested and told a lie" and substituted them with the words "I suspect that such action might be taken by many people caught in this sort of situation." 123. When questioned about that amendment, Dr Fisher said that the words in the previous paragraph (that it was "equally possible that he threw the bag of cocaine away suspecting the person who approached him might have been a policeman") conveyed the same message as the deleted sentence. 124. The words in the previous paragraph do infer that Mr Mooney's motivation in throwing away the bag of cocaine was to avoid arrest, but they do not carry the inference that Mr Mooney may have told a lie. Dr Fisher removed from his report the explicit suggestion that Mr Mooney may have lied to police and added an opinion that "such action" (throwing away drugs suspecting the person approaching him might have been a policeman) "might be taken by other people caught in this sort of situation". Those two modifications, which were made following Mr Mooney's representations, are more favourable to him than the possibilities and opinions expressed in the draft report. 125. The Medical Council submits that Dr Fisher's conduct falls far short of that required of an independent expert and that he has breached NCAT Procedural Direction 3, 'Expert Evidence' which states at [14]–[16]: General duty to the Tribunal 14. An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise. 15. An expert witness's paramount duty is to the Tribunal and not to any party to the proceedings including the person retaining the expert witness. 16. An expert witness is not an advocate for a party. 126. The Medical Council points to the fact that Dr Fisher did not disclose that Mr Mooney had been provided with a draft report and invited to comment on it, nor that there were two earlier versions of the report in existence. The proper process if an expert changes his or her view is to issue a supplementary report. 127. The Medical Council also submits that Dr Fisher's answers in cross-examination were contrary to his obligations as an independent expert. Specifically, Dr Fisher refused to accept that he had deleted the "worst case scenario" opinion and tried to suggest that the same sentiment was reflected elsewhere in the report when it was not. 128. In our view, the extent of Dr Fisher's departure from his obligations as an independent expert are relatively minor. Nevertheless, he has modified one opinion in way that is somewhat favourable to Mr Mooney and has not disclosed that change or provided a supplementary report. In those two respects, Dr Fisher has not met the high standards of impartiality expected of an expert witness. In those circumstances, we give that particular opinion ("I suspect that such action might be taken by many people caught in this sort of situation.") no weight and do not rely on the balance of his report." 1. As can be seen the evidence contained in the report of Dr Fisher, in Mooney, was admitted to evidence and then considered in relation to the assessment of weight to be given to his evidence. The Submission of the HCCC. 1. The HCCC first relies on the fact that Dr Stern has not provided a report to the HCCC on Patient G (the patient referred to in exhibit PR5). 2. The HCCC submits that failure to comply with the Expert Witness Code of Conduct (Practice Direction 3, and like requirements) does not render the report inadmissible. 3. The HCCC in addressing the submission that Dr Stern spoke with Dr Sandroussi about the Respondent and in so doing identified him and also the patient referred to in this proceeding as Patient C, submitted Dr Stern had disclosed that conversation in a report he provided to the HCCC and which was then provided to the Respondent. 4. The HCCC submitted that in relation to the alleged conflict of interest arising from Dr Stern having provided a report to HWL Ebsworth in support of the Respondent's case in defending an action brought by a person, identified as Patient G in this proceeding, the Respondent has failed to establish the conflict. There is no evidence of the retainer entered into by Dr Stern with HWL Ebsworth. There is no evidence of what he provided, including whether he provided a report at all. 5. If it is the case that Dr Stern breached confidentiality in speaking with Dr Hussain and or Dr Papadopoulos, that would not mean his evidence should be inadmissible. In the decision of Mooney, the expert whose reports and evidence was attacked actually gave evidence which enabled the Tribunal to determine the weight, if any, which it should give to his evidence. 6. The HCCC pointed to the fact that there is no attack in this application on the expertise or qualification of Dr Stern as a suitable expert in this proceeding. 7. The HCCC provided the Tribunal with two decisions upon which it relied in this application. The decisions are Secretary, Department of Planning, Industry and Environment v Auren Grain Pty Ltd & Ors (No 2) [2020] NSWLEC 126 and McGrath v The Owners - Strata Plan No 13631 [2021] NSWCATAP 167. It submitted that in light of those decisions there is no evidence that Dr Stern's evidence could be seen as misleading or confusing. 8. The decision in Secretary, Department of Planning, Industry and Environment v Auren Grain Pty Ltd & Ors addresses the issue. 9. The decision in McGrath v The Owners - Strata Plan No 13631 also addresses the issue. The Decision. 1. At the core of the application is the admissibility of a number of expert reports authored by Dr Stern. The reports provide his opinion on the treatment and care of six patients, upon whom the Respondent had performed surgical operations. Dr Stern was engaged by the HCCC to provide his expert opinion on whether "the knowledge, skill or judgment possessed, or care exercised, by the practitioner (the Respondent) in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". 2. The thrust of the submission of the Respondent is that the failure of the maker of the reports to comply with a "Confidentiality Agreement", the NCAT Procedural Direction 3", "Expert Evidence" and the "Health Care Complaints Commission Expert Guidelines", renders the reports as unreliable or being unable to be attributed sufficient weight for the reports to be of probative value. He also addresses the balance of prejudice which flows to each party by the admission to evidence of the subject reports or the rejection of same. 3. As stated above, Dr Stern signed an acknowledgment that he was bound by the NCAT Procedural Direction 3" "Expert Evidence" requirements. That duty requires compliance with an "overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise". The acknowledgment to comply with the Confidentiality Agreement" is integral to the obligation of the HCCC and the Tribunal to ensure patient details and identities are not disclosed outside of the evidence collected by the HCCC and presented to the Respondent and the Tribunal. Further, given the potential to cause great harm to the reputation of a practitioner, details of the identity of a practitioner under investigation or prosecution by the HCCC, are also not to be published beyond that category of persons and the Tribunal. 4. The HCCC in this proceeding is seeking findings pursuant to its' Amended Complaint Application which is exhibited at page 3 of the supplementary document folder which has been marked as exhibit A2 in this hearing. In that document the HCCC seeks findings of unsatisfactory professional conduct as prescribed by section 139B(1)(a), 139B(1)(b) of the National Law. It seeks that finding in relation to six patients who have been identified by the letters A to F. It also seeks a finding that the Respondent is guilty of professional misconduct pursuant to sect 139E of the National Law, relying on the Complaints numbered One and Two of the Application, relating to those same patients named A to F. At Complaint Four the HCCC seeks a finding that the Respondent "is not competent" to practice medicine as a specialist plastic surgeon, within the meaning of section 139(a) of the National Law. 5. If the HCCC is successful in establishing that the Respondent is guilty of professional misconduct, then the Respondent faces the possibility that his registration as a medical practitioner may be cancelled or suspended for a period of time. In the Application document filed by the HCCC on 24 January 2023, the HCCC seeks an order for cancellation and a non-review period of 3 to 5 years. 6. As can be seen, the success or failure of the preliminary application under consideration, has the potential to carry very significant consequences to each of the parties' cases and to the safety of patients. If the Respondent is successful then the HCCC cannot rely on the expert evidence which underpins the case it brings and would then only be able to rely upon the admissions which the Respondent has made in relation to unsatisfactory professional conduct, in his Reply document. That may mean that the Respondent is permitted to continue to practice as a specialist plastic surgeon, with or without conditions attached to his registration, in circumstances where the public may not be safe to engage his services. If the application is not successful then the Tribunal may ultimately give weight to the evidence of the expert which is not in all the circumstances impartial, balanced and untainted by interactions the maker of the report had with others, whose evidence is not before the Tribunal and who would otherwise be unavailable for the Respondent to cross-examine. Alternatively, if the evidence of Dr Stern is ruled as inadmissible then the HCCC may seek an adjournment of the hearing. Such an application may or may not be successful. 7. The decisions referred to in the submission of the parties, point out the difficulty faced by courts and tribunals when an expert witness, engaged to support a parties' case, fails to comply with the statutory and well known requirements for expert witnesses to act impartially, objectively and fairly and in the assistance of the body before which the experts evidence is to be given. Such requirements are crucial for the administration of justice, which can only properly occur where significant weight can be attributed to the experts opinions. 8. In this case the Respondent points to more than one piece of evidence which suggests the possibility of the expert's opinion being tainted and thereby, potentially extremely prejudicial to the Respondent's case. The Respondent submits there is a real possibility that the experts mind has been so infected by the actions taken by him, contrary to, or outside the specifics of his retainer, that he cannot provide an opinion which could be given any weight by the Tribunal. Further the failure of the expert to comply with the statutory and other requirements, which the expert acknowledges he was bound, makes his reports unsafe to be given weight. The thrust of the Respondent's case is that reliance by the Tribunal on the evidence of Dr Stern may lead to a result which will have very dire consequences to the Respondent, namely the loss of his ability to pursue his chosen career and to earn a living therefrom. 9. As against that the HCCC, whilst not accepting that any of the alleged conduct of the expert is an actual breach of any statutory requirement for an expert witness, or other confidentiality requirement or code of conduct for an expert witness, submits that nowhere in the evidence in support of this preliminary application is there an attack on the qualification of Dr Stern to be engaged as an expert witness or upon the content of any of his opinions in the reports which the HCCC seeks to rely upon in this hearing. 10. The Tribunal, whilst acknowledging that at the conclusion of this hearing Dr Sterns reports may be seen as not capable of being given weight, either in totality, or in some part or parts thereof, concludes it should have the opportunity to hear from Dr Stern in person, so that he is given an opportunity to answer the claims made by the Respondent about his failures to comply with the statutory and other requirements he should know he was under, in the preparation of and presentation of his reports, as commissioned by the HCCC. Further, the Tribunal should have the opportunity to hear cross-examination of Dr Stern and any challenges therein to the opinions he was commissioned to provide. Such an opportunity will provide the Tribunal with the ability to determine whether Dr Sterns evidence should be assessed as unreliable in any manner and to assess whether the evidence of Dr Ritz, the expert retained by the Respondent, should be preferred where both experts address the same questions and topics and yet provide different opinions. 11. In consequence of the above the Tribunal will refuse the application of the Respondent. Annexure B Application by the HCCC to tender the supplementary report of Dr Stern and the supporting documents attached thereto. 1. On 14 March 2024 (the 4th day of the Stage One hearing) the HCCC sought to tender a supplementary statement of Dr Stern dated 7 March 2024. The document is contained in a bundle of documents which was marked as exhibit A2. At the time of that tender, the documents now sought to be tendered were specifically excluded. The tender also sought to include documents exhibited to that statement and those documents are contained at pages 20 through to 68 of exhibit A2. The tender is opposed by the Respondent. 2. Having heard argument the Tribunal refused the application of the HCCC to tender the documents and stated that the reason for that refusal would be provided with the judgment to be provided in relation to Stage One. Reasons for refusing the Tender. 1. The HCCC made the following submission. 2. The six reports of Dr Stern, which are relied upon by the HCCC, have been accepted into evidence and are contained in volume 1 of 10 of the HCCC tender bundle, and relate to patients A to F. Those reports were produced in response to a letter of instruction dated 27 July 2021. 3. The HCCC became aware that Dr Stern had been retained in 2020 by HCCC to provide opinions in relation to 7 patients. There are seven separate requests in the documents sought to be tendered. Those opinions all pre-date the instruction to prepare the expert reports. The instruction in 2021, did not refer to the fact that Dr Stern had previously provided opinion for patients E and F. Additionally, the instruction did not disclose that Dr Stern had been retained to provide clinical assessments for patients J, K, L, M and N. He was not instructed to provide expert reports in relation to those patients. 4. The HCCC submits the tender is sought so that the Tribunal is properly advised of earlier reports by Dr Stern. The clinical assessments for patients E to N were disclosed to the Respondent on 27 February 2024. 5. The Respondent sought disclosure in a letter dated 3 October 2023. There was a delay by HCCC in answering that request, however, a reply was provided which was outside the timetable set by the Tribunal for the HCCC to file it's evidence. 6. The HCCC submitted that two of the clinical assessment documents, relate to patients for whom Dr Stern later provided expert reports. Those expert reports have been accepted into evidence before the Tribunal. The HCCC submits that the clinical assessment documents, for those particular patients, should be before the Tribunal, for completeness of Dr Stern's evidence. 7. The Directions made by the Tribunal in the preparation for the hearing in this matter were published on 3 March 2023. On that day the HCCC was required to provide the Respondent with any material on which it relied by 28 April 2023. 8. In answer to a question from the Tribunal seeking a submission as to any prejudice which might flow to the HCCC in the event the Tribunal were to refuse the tender, the HCCC conceded no prejudice would flow to the case it was making. 9. The Respondent provided his submission. 10. The Respondent placed on the record the following chronology which he said was relevant to the determination of this tender application. The Respondent stated as follows: 1. On 23 January 2023, the HCCC filed its Complaint in the Tribunal. 2. On 3 March 2023 the HCCC was ordered to provide its evidence in chief by 28 April 2023. 3. On 18 July 2023, the Respondent sent a letter to the HCCC, seeking further and better particulars of complaints, numbered 1 to 4. 4. On 8 August 2023, the Respondent received an email from the HCCC, indicating they would respond by 25 August 2023. 5. By 31 August 2023, the Respondent had not received the reply to his request for further and better particulars. The Tribunal granted an extension to the Respondent to file and serve his evidence by 13 October 2023. 6. On 22 September 2023, the HCCC provided its reply to the Respondent's request for further and better particulars. 7. On 3 October 2023, the Respondent sent a list of items/documents referred to in the patients statements and not provided by the HCCC. 8. On 3 October 2023, the Respondent sent a letter to the HCCC, setting out objections to the evidence upon which the HCCC sought to rely. 9. On 3 October 2023, the HCCC foreshadowed to the Respondent that an amended Complaint document would be provided. 10. On 6 February 2024 the HCCC responded to the Respondents letter of objections. 11. Between 20 and 22 November 2023, the Respondent sent to the HCCC a follow-up request for particulars arising from the HCCC answer to the earlier request of the Respondent. 12. On 29 November 2023, the HCCC provided to the Respondent an amended volume 10 for the HCCC evidence. 13. On 5 December 2023, the HCCC served a draft amended Complaint on the Respondent. 14. On 5 December 2023, the respondent served his evidence save for his expert's report. 15. On 19 December 2023, the Respondent served his expert report. 16. On 19 January 2024, the respondent agreed to an extension of the time allowed to the HCCC to file and serve its evidence in reply. 17. On 6 February 2024 for the HCCC responded to the six page letter of objections to the HCCC evidence. 18. In mid-February 2024 the HCCC solicitor became aware of material, which is now contained in the exhibit PR 1. 19. On 23 February 2024 the HCCC was required to file its evidence in reply. 20. On 27 February 2024 the HCCC served its Amended Complaint. 21. On 28 February 2024 the documents now contained in exhibit PR1 were provided by the HCCC to the Respondent. 22. On 28 February 2024 the HCCC filed an application to vacate these hearing dates, which application was opposed by the Respondent. 23. On 5 March 2024 the HCCC withdrew its application to vacate the hearing. 24. On 6 March 2024 the HCCC had a meeting with Dr Stern. 25. On 7 March 2024 the HCCC provided to the Respondent, its folder of supplementary statement and material (pages 20 to 68, in exhibit A2). 26. On 10 March 2024 the hearing in this matter, commenced. 1. The HCCC relies on the evidence of two expert witnesses in this hearing. The HCCC has told the Tribunal that it does not rely upon the documents in exhibit A2 (pages 20-68) in this hearing. It has told the tribunal, it is providing the documents to give transparency in relation to earlier statements made by Dr Stern about the Respondent's treatment of patients, the subject of reports relied upon in this hearing. 2. The Respondent set out the prejudice, which he says flows to him. Should the documents contained at pages 20-68 of exhibit A2, be admitted to evidence. That prejudice is stated to be as follows: 1. The Respondent has had no opportunity to respond to the documents prepared by Dr Stern through the Respondent's own expert, Dr Ritz. 2. If the documents in exhibit A2, currently under objection are admitted, then the HCCC will have evidence from two expert witnesses in relation to the same patients named as Patient G to Patient N. 3. The admission of the documents will create an unfairness to the Respondent, who, in the normal course would seek an adjournment to obtain his own expert evidence in relation to the content of the documents under objection. The Respondent is not seeking an adjournment. 1. The HCCC has placed on the record that no prejudice to his case would flow should the material not be admitted. 2. The Respondent submits that procedural fairness and natural justice demands that the objection be upheld. 3. The late timing of the disclosure, sought by the Respondent, would be against the Tribunal allowing the HCCC to rely on the same. Determination of the objection. 1. The Tribunal has determined to uphold the objection. It does so on a number of bases. They include that the balance of prejudice, should the documents be admitted, would be against the Respondent. The HCCC has properly conceded that no prejudice would flow to its case, should the objection be upheld. 2. The Tribunal acknowledges that as a model litigant the HCCC had an obligation to place the documents before the Tribunal for its consideration. The HCCC has, in the Tribunal's view, fulfilled its obligation. 3. The Tribunal may, notwithstanding the objection to the admission of the documents by the Respondent, still permit the documents to become part of the evidence if it was of the view that the documents may be important for the Tribunal to make a determination in this matter. The Tribunal does not consider the documents to fall into that category. 4. Given all the circumstances as set out above, the Tribunal has determined to uphold the objection and rule that the documents in exhibit A2 in pages 20-68, not be admitted as evidence in this hearing. Endnotes 1. Respondent's submissions at paragraph 50. 2. T257.45-50, T258.0-10: 14/03/24 3. Volume 1 of 9, pg 518. 4. T259.10-20, T259.40-50: 14/03/24. 5. T260.20-25: 14/03/24. 6. T260.30-35, T261.15-25, T261:30-40: 14/03/24 7. T290.10-15: 15/03/24. 8. T290.18-20: 15/3/24. 9. T290.18-32: 15/3/24. 10. T311.29-50, T312.1-28, T312.48-50 – T.313.1-20. 11. Amended Reply, 19 February 2024, p. 5; Supplementary Statement of Dr Amjadi at [23]. 12. Ex R1, Vol 1, Tab 2, p. 44 [110]. 13. Ex A1, Vol 1, p. 318. 14. Ex R1, Vol 1, Tab 2, p. 44, [109]. 15. T 21.03.24 p. 22 l.30-35. 16. Schedule B to Complaint, p. 13. 17. Report of Dr Harvey Stern re Patient D dated 9 August 2021, Ex A1, Vol 1, p. 390-1. 18. Ex A1, Vol 1, p. 392. 19. Ibid. 20. Ibid. 21. Ibid. 22. Report of Dr Morris Ritz, Ex R1 Vol 7, p. 161 [3]. 23. T 21.03 24 p.42 l.30-45. 24. T 21.03.24 p.42 l.45-50. 25. T 21.03.24 p.43 l.1-5. 26. Exh A1 V5/10 T111, p.490 27. Exh A1 V5/10 T111, p.491 28. Exh A1 V5/10, T111, p.492 29. Exh A1 V1/10 T17 p316 [29] 30. Exh A1 V5/10 T109 p298. 31. Exh A1 V5/10, T111, p.474 32. Exh A1 Vol 1/10, Tab 18, p 390-391. 33. Exh A1 Vol 1/10, Tab 18, p 391. 34. Exh A1 Vol 1/10, Tab 18, p 391 35. Exh A1 Vol 1/10, Tab 18, p 393. 36. Exh A1 Vol 1/10, Tab 18, p 393. 37. Exh R1 Vol 7/13 Tab 23, p 161. 38. Exh R1 Vol 7/13 Tab 23, p 161-162. 39. Exh R1 Vol 1/13 Tab 2, p 44, para 109. 40. Exh R1 Vol 1/13 Tab 2, p 44, para 110. 41. Exh R1 Vol 1/13 Tab 2, p 45-46, paras 111-115. 42. Exh R1 Vol 1/13 Tab 2, p 46-47, paras 116-119. 43. Exh R1 Vol 1/13, Tab 2, p 47-48, paras 121-122. 44. Exh R1 Vol 1/13, Tab 2, p 39-40, paras 122-127. 45. Exh R1 Vol 1/13, Tab 2, p 50, para 129. 46. Exh R1 Vol 1/13, Tab 2, p 51-52, para 130. 47. Exh R1 Vol 1/13, Tab 2, p 52, para 131. 48. Exh R1 Vol 1/13, Tab 2, p 53, para 132-133. 49. Exh R1 Vol 1/13, Tab 2, p 54-55, para 146. 50. Exh R1 Vol 1/13, Tab 2, p 53, para 134. 51. Exh R1 Vol 1/13, Tab 2, p 54, para 137. 52. Exh R1 Vol 1/13, Tab 2, p 45, para 141. 53. Exh R1 Vol 1/13, Tab 2, p 54, para 143. 54. Exh R1 Vol 1/13, Tab 2, p 54, para 144. 55. T 15.03.24 p. 323 l.20-30. 56. Exh R1 Vol 7/13, Tab 23, p 172. 57. Exh R1 Vol 7/13, Tab 23, p 172. 58. Exh R1 Vol 7/13, Tab 23, p 152-153. 59. Exh R1 Vol 7/13, Tab 23, p 153, 172. 60. Exh R1 Vol 7/13, Tab 23, p 172. 61. Exh R1 Vol 7/13, Tab 23, p 153-154. 62. Exh R1 Vol 7/13, Tab 23, p 155. 63. Exh R1 Vol 7/13, Tab 23, p 154. 64. Exh R1 Vol 7/13, Tab 23, p 172. 65. T39.33: 21/3/2024 66. T40.21: 21/3/2024 67. T41.27: 21/3/2024 68. Exh R1 Vol 1/13, Tab 2, p 19-20, para 23. 69. Exh R1 Vol 1/13, Tab 2, p 20, para 25. 70. Exh R1 Vol 1/13, Tab 2, p 20, para 26-27. 71. Exh R1 Vol 1/13, Tab 2, p 21-22, paras 30-31. 72. Exh R1 Vol 1/13, Tab 2, p 23, paras 33-34. 73. Exh R1 Vol 1/13, Tab 2, p 24-25, paras 36-38. 74. Exh R1 Vol 1/13, Tab 2, p 26, para 40. 75. Exh R1 Vol 1/13, Tab 2, p 26-28, paras 42-48. Consent form located at Vol 3/10, Tab 84, p 69. 76. Exh R1 Vol 1/13, Tab 2, p 28, para 50. Consent form located at Vol 3/10, Tab 84, p 74. 77. Exh R1 Vol 1/13, Tab 2, p 28-29, para 51-52. 78. 111 Exh R1 Vol 1/13, Tab 2, p 29-30, paras 53-59. Consent form located at Vol 3/10, Tab 84, p 82. 79. 112 Exh R1 Vol 1/13, Tab 2, pa 30, para 60. 80. Exh R1 Vol 1/13, Tab 2, p 30-31, para 61-64. 81. Exh R1 Vol 1/13, Tab 2, p 31-32, para 65-66. 82. Exh R1 Vol 1/13, Tab 2, p 32, para 67-68. 83. Exh R1 Vol 1/13, Tab 2, p 33, para 69. 84. Exh R1 Vol 1/13, Tab 2, p 33-34, paras 71-72. 85. T 15.03.24 p. 323 l.20-30. 86. Report of Dr Harvey Stern re Patient B – Patient B dated 9 August 2021, Ex A1, Vol 1, p. 249-250. 87. T 15.03.24 p.329 l.40-50; p.330 l.1-5. 88. Statement of Dr Mahyar Amjadi, Ex R1, Vol 1, Tab 2, p. 38, [86]-[87]. 89. T306.12-15: 15/3/2024 90. T306.37-42: 15/3/2024 91. Exh A1 Vol 1/10, Tab 22, p 491. 92. Exh A1 Vol 1/10, Tab 22, p 492. 93. Exh R1 Vol 1/13, Tab 2, p 57, para 148 94. Exh R1 Vol 1/13, Tab 2, p 58, paras 150-153. 95. Amended Reply, 19 February 2024, p. 2 [4 a.]; Supplementary Statement of Dr Amjadi at [10]. 96. Reply from Dr Amjadi to complaint by Patient A, dated 6 January 2020, Ex A1, Vol 1, p. 204. 97. T 20.03.24 p.88 l.40-45. 98. T 20.03.24 p.88 l. 50 to p.89 1-5. 99. Report of Dr Morris Ritz, Ex R1 Vol 7, p. 152-3. 100. Amended Reply dated 19 February 2024, p. 2, [4.b.ii]; Supplementary Statement of Dr Amjadi at [10(c)(ii)]. 101. Exh R1 Vol 7/13, Tab 23, p 153, 172. 102. T327.28-31: 15/3/2024 103. T327.5-34: 15/3/2024 104. T327. 50-T328. 15: 15/3/2024 105. Exh R1 Vol 1/13, Tab 2, p 34-35, para 73-74. 106. Exh R1 Vol 1/13, Tab 2, p 35, para 73(d). 107. Exh R1 Vol 1/13, Tab 2, p 40, para 93. 108. Exh A1 Vol 3/10, T96, p.718. 109. Page 248 of Volume 1 of exhibit A1 110. Amended Reply dated 19 February 2024, p. 5, [7.a.]; Supplementary Statement of Dr Amjadi at [20]. 111. Statement of Dr Mahyar Amjadi, Ex R1, Vol 1, Tab 2, p. 38, [86]-[87]. 112. Report of Dr Morris Ritz, Ex R1 Vol 7, p. 156 [6]. 113. Report of Dr Morris Ritz, Ex R1 Vol 7, p. 157 [9]. 114. Exh R1 Vol 7/13, Tab 23, p 156 115. Exh R1 Vol 1/13Tab 2, p 40-41, para 94-95. 116. Exh R1 Vol 1/13, Tab 2, p 41, para 96. 117. Exh R1 Vol 1/13 Tab 2, p 41, para 97. 118. Exh R1 Vol 1/13 Tab 2, p 42-43, para 99-101 119. Exh R1 Vol 1/13 Tab 2, p 43, para 103-106. 120. Exh R1 Vol 1/13 Tab 2, p 43, para 107. 121. Exh R1 Vol 1/13 Tab 2, p 44, para 108. 122. Exh A1 Vol 10/10,Tab 8 p385 [4] 123. Exh A1 Vol 1/10 T25, p.501; V6, T121, p.196-199 124. 1125 261 Exh A1 Vol 6/10, T121, p.196-197 125. Exh A1 Vol 6/10, T120, p.163 126. T46 (21 March 2024)/23-24 127. T46 (21 March 2024)/44 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 Amendments 23 October 2024 - Anonymisation at paragraph [735]. 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: 23 October 2024