Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Hameiri [2011] NSWMT 13 Hearing dates: 4 October 2011 Decision date: 11 November 2011 Before: Kavanagh J; Dr V Sutton; Dr E Kertesz; Ms D Robinson Decision: 1. The practitioner, Dr Daniel Hameiri, is reprimanded in the strongest terms. 2. In relation to the complaint Dr Hameiri shall pay a fine of $25,000. 3. Dr Hameiri is to be subjected to an audit of his medical records by representatives of the Medical Council of NSW within six months of the date of judgment. 4. There shall be a suppression order as to the names of the patients. All documentation tendered before the Tribunal will therefore be suppressed as will relevant paragraphs of the Tribunal's reasoning in this Judgment where such reasoning would reveal a patient's identity. 5. The interim suppression order on Dr Hameiri's name is to be lifted. 6. The respondent shall pay the complainant's costs. Legislation Cited: Health Care Complaints Act 1993 (NSW) Health Insurance Act 1973 (Cth) Medical Practice Act 1992 (NSW) Cases Cited: Bannister v Walton (1993) 30 NSWLR 699 HCCC v Dr Gow (Suppression order) [2008] NSWMT 3 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr D Hameiri (Respondent) Representation: G Furness SC (Complainant) P Strickland SC with M Lynch of counsel (Respondent) Health Care Complaints Commission (Complainant) Avant Law Pty Ltd (Respondent) File Number(s): IRC 40040 of 2009 Judgment 1The Health Care Complaints Commission ("the complainant" or "the HCCC") brings before the Tribunal a complaint following consultation with the New South Wales Medical Board ("the Board") in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 51(1) of the Medical Practice Act 1992 ("the Act") against Dr Daniel Hameiri ("the respondent" or "the practitioner") being a medical practitioner registered under the Act. The Further Amended Complaint pleads that Dr Hameiri: Has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the Act and/or professional misconduct within the meaning of section 37 of the Act in that he has: 1. demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice of medicine; and/or 3. contravened Part 3 of the Medical Practice Regulation 2003 and clause 13 Medical Practice Regulation 1998. In particular: 1. At all relevant times the practitioner conducted a medical practice at Cooper St, Double Bay which provided vitamin therapies involving the administration of vitamin supplements to patients intravenously and intramuscularly. 2. Two of the practitioner's patients (Patient A and Patient B) were diagnosed with hepatitis C in February and January 2007, respectively. 3. Patient C was diagnosed with hepatitis C in March 2005. 4. Deleted 5. Deleted 6. Patient C acquired hepatitis C via the spread of infected blood during intravenous procedures performed at the practitioner's medical practice on 5 November 2004 or 2 November 2004. 7. Patient B acquired hepatitis C via the spread of infected blood during intravenous procedures performed at the practitioner's medical practice on 24 October 2006, and/or 27 October 2006. 8. Patient A acquired hepatitis C via the spread of infected blood during intravenous procedures performed at the practitioner's medical practice on 24 October 2006 or 22 December 2006. 9. Between November 2004 and 23 March 2007 the practitioner did not: (a) Have written infection control policies or procedures; (b) Have standardised written instructions and directions for clinical procedures. 10. As at 23 March 2007, the practitioner's infection control standards were not effective in the following areas: (a) (deleted) (b) Safe use, handling and disposal of sharps; (c) (deleted) (d) Management of blood or body substance spills; (e) The use of multi-doses of vitamin C (marked 'single use'), vitamin B and Magnesium Sulphate; (f) Training and education of staff in minimisation of cross infection. 11. Deleted 12. Between 1 September 1998 and March 2007 the practitioner failed to make proper and/or adequate records of treatment provided to Patients A, B and C as required by the Medical Practice Regulation 1998 and the Medical Practice Regulation 2003, as amended. 13. ... 2There is an Agreed Statement of Facts to the Further Amended Complaint which reads as follows: 1. At all relevant times the practitioner conducted a medical practice at Cooper Street, Double Bay which provided vitamin therapies involving the administration of vitamin supplements to patients intravenously and intramuscularly. 2. Two of the practitioner's patients (Patient A and Patient B) were diagnosed with hepatitis C in February and January 2007, respectively. 3. Patient C was diagnosed with hepatitis C in March 2005. 4. Patient C acquired hepatitis C via the spread of infected blood during intravenous procedures performed at the practitioner's medical practice on 5 November 2004 or 2 November 2004. 5. Patient B acquired hepatitis C via the spread of infected blood during intravenous procedures performed at the practitioner's medical practice on 24 October 2006, and/or 27 October 2006. 6. Patient A acquired hepatitis C via the spread of infected blood during intravenous procedures performed at the practitioner's practice on 24 October 2006 or 22 December 2006. 7. Between November 2004 and 23 March 2007 the practitioner did not: (a) Have written infection control policies or procedures; (b) Have standardised written instructions and directions for clinical procedures. 8. As at 23 March 2007, the practitioner's infection control standards were not effective in the following areas: (b) Safe use, handling and disposal of sharps; (d) Management of blood or body substance spills; (e) The use of multi-doses of vitamin C (marked 'single use'), vitamin B and Magnesium Sulphate; (f) Training and education of staff in minimisation of cross infection. 9. In relation to paragraph 8(b) above, the PHU discovered during its inspection of the practitioner's clinic on or about 2 March 2007 that most of the used needles contained in the sharps bin had been recapped. Further, the doctor's room sharp containers were kept in a cupboard with lids off and the container fully open. One nurse was sighted recapping in an unsafe manner. Open sharps containers were sighted on the floor of the procedure rooms. 10. In relation to paragraph 8(d) above, the PHU during its inspection of the practitioner's clinic on or about 2 March 2007 interviewed the practitioner's staff who stated that large blood or body substance spills do not occur in the practice, but small spills are a frequent occurrence when changing venepuncture to administering IV vitamin C. When asked, members of the practitioner's staff were unsure about how they would clean a blood or body substance spill or described incorrect practices. 11. In relation to paragraph 8(e) above, the PHU during its inspection of the practitioner's clinic on or about 2 March 2007 discovered that the practitioner's clinic used 1 litre of bags of vitamin C marked "single use". The multi-dosing procedure is described at [17] to [28] below. During the period 2004-2007, that practice did not accord with any known infection control guidelines involving the safe use of injectible medicines. 12. In relation to paragraph 8(f) above, the PHU during its inspection of the practitioner's clinic on or about 2 March 2007 discovered that staff had not been given any formal training of specific disease transmission of the blood borne viruses hepatitis B, C and HIV by the practitioner. 13. Between 1 September 1998 and March 2007 the practitioner failed to make proper and/or adequate records of treatment provided to Patients A, B and C as required by the Medical Practice Regulation 1998 and the Medical Practice Regulation 2003, as amended. 14. ... 15. The intravenous procedures referred to at [4], [5] and [6] above were performed by experienced registered nurses employed by the practitioner. They each had at least 10 years experience as registered nurses prior to working for the practitioner with responsibilities for maintaining infection control standards either within hospitals or day surgeries 16. The technique used by the nurses at the respondent's practice between 2004 and 2006 of vitamin C intravenously and vitamin B and magnesium intramuscularly, was as follows: Intravenous Vitamin C procedures 17. Vitamin C was bought in 1 litre bags of solution containing 300g of vitamin C. Although there was no documented procedure for the preparation and administration of vitamin C, there was a routine practice that was followed. 18. Each morning, before patients arrived, nurses would attend to drawing up as many syringes full of vitamin C as they would have time for. This would usually be between 6 and 15 individual syringes. Nurses wore sterile gloves when handling the bag. 19. Nurses would lay out a sterile drape over the workbench, then lay the 1 litre bag of vitamin C, which had been refrigerated, on the workbench in the sterile area. The bag would then be sterilised using alcohol swabs. 20. Nurses softened the line emanating from the bag with some hot water to make it more malleable. The line would be clamped with forceps, cut with sterile stitch cutters and then attached to a sterile three-way tap. 21. A syringe would be attached to the three-way tap and between 15ml and 20ml of vitamin C solution would be drawn up into the syringe from the 1 litre bag. 22. The syringe was disconnected from the three-way tap and some sterile water drawn up, again without a needle, from a vial of distilled water. This was done to dilute the vitamin C, which was too concentrated to be administered alone. 23. The syringe containing the vitamin C was then put back into its original wrapper and stored on the workbench underneath a towel until it was required. The vitamin C bag would be returned to the refrigerator whenever it was not being used. If the bag had any vitamin C left in it at the end of the day, it would be stored overnight and be used the next morning. 24. The pile of syringes was kept separate from any other medication or preparation. Each syringe contained roughly the same amount (25ml) of vitamin C solution, which is a yellowy colour. 25. If nurses ran out of vitamin C syringes during the day they would adhere to the same procedures described above in between seeing patients to draw up vitamin C. If any syringes were left over at the end of the day they would be put in the fridge overnight for use the next day. 26. If nurses had taken bloods prior to administering the vitamin C, the butterfly needle used to draw blood would remain in situ. If any blood escaped from the tubing before the vitamin C syringe was connected, they would clean the area with an alcohol swab. If nurses had not taken bloods they would insert a new butterfly needed at the cubital fossa. 27. The syringe would be connected to the butterfly needle and the vitamin C injected as a bolus dose. Patients would be given up to 3 syringes of the 25ml vitamin C solution which would equate to roughly 10 or 15grams of vitamin C in total. Nurses would never give a patient more than 35g of vitamin C. 28. After administration of the vitamin C, the butterfly needle was withdrawn and immediately disposed of into the sharps bin along with the used syringe. Neither syringe nor needle was ever re-used. The sharps bin was located beside where the patient would be seated. Nurses would apply pressure to the puncture site with a fresh cotton wool ball and secure the wool with some micropore tape and on occasion put a tourniquet over the cotton wool. Intramuscular injections 29. Magnesium came in a 5ml multi-dose vial. Nurses would remove the seal from the vial, wipe the top of the vial with an alcohol swab, attach a new drawing up needle to a fresh syringe, and then inject the needle through a rubber stopper to draw up between 1ml and 2ml of magnesium. Vitamin B came in a 2ml vial with a rubber stopper, of which 1ml was drawn up into a syringe in the same way that magnesium was drawn up. 30. In both cases, nurses were also using 0.5ml of xylocaine to numb the ache that can be caused by administration of magnesium. The xylocaine was drawn up from a vial using the fresh needle and syringe. The xylocaine could only be contaminated by magnesium in the process. 31. Although the vials containing magnesium, vitamin B, and xylocaine were used to prepare more than a single dose, a fresh needle was used each and every time a new syringe was made up. Drawing-up needles were never used to access the vitamin B or magnesium a second time. 32. After each individual solution is drawn into a single syringe, the drawing up needle was immediately discarded into the sharps bin, and a giving-needle, which is smaller, attached. Each syringe is stored in an individual zip lock bag until required. 33. Magnesium and Vitamin B were administered after Vitamin C was administered. The patient was given the option to either lie down face first or to stand to receive the intramuscular injection. Nurses marked the spot on the patient's buttocks where it was intended to administer the shot and the magnesium and/or vitamin B was then administered into a patient's buttocks. The single use syringe and single use needle were immediately discarded together into the sharps bin. 34. The vitamin C solution used was yellow in colour. The vitamin B solution used was a deep red colour. The magnesium solution used was clear. 35. On 28 February 2007, the Public Health Unit ("PHU") conducted a wide ranging investigation into the practitioner's practice. It included an infection control audit, identification of patients suffering Hepatitis C, review of the practice records between 1 November 2004 and 23 March 2007 and several interviews with the practitioner who co-operated fully with the investigation. 36. The PHU investigation was triggered by a concern of a gastroenterologist, Dr Vickers, that 3 of the practitioner's patients who had been infected with Hepatitis C had all received vitamin C injections at the practitioner's clinic. 37. In around March or April 2007, in response to the PHU investigation, the practitioner engaged a private infection control expert, Pauline Cepak, who was recommended to him by the Department of Health. Ms Cepak and all of the nurses and the practitioner developed new written infection control procedures in order to comply with the latest guidelines and to address areas of concern raised by the PHU. Most of these areas of concern were not directly related to possible blood borne transmissions as they included the type of flooring in the nurses rooms, provision of masks in the waiting room, provision of washable toys, having formal procedures for incident reporting and instituting a triage system for patients in the waiting room. 38. The practitioner voluntarily closed the surgery for approximately 4 weeks between late March and 30 April to facilitate the changes and did not reopen until re-inspected by Pauline Cepak and also by Phillip Melling, a clinical nurse consultant in infection control from the PHU. Changes made by the practitioner 39. Mr Melling re-inspected the practice on 24 April 2007 and confirmed in his follow-up report of 26 April 2007 that the practitioner had acted on the recommendations outlined in the original PHU report. The changes that were implemented by the practitioner included: (1) a written infection Control Policy and Procedure Manual, which was prepared by Ms Cepak; (2) multiuse of infusion bags and injection vials was ceased. All parenteral preparations were to be administered from single-use bags or vials; (3) vitamin C was to be infused via closed system; (4) the nurses and the practitioner received and complied with instructions on hand washing prior to aseptic techniques and the effective use of gloves, anti-microbial soap and antiseptic hand-rub; (5) the clinic added anti-bacterial hand wash so that it was available in more of the rooms within the clinic; (6) a standard protocol for the management of bloods spills was introduced; (7) general maintenance was undertaken in the treatment areas to facilitate cleaning and reduce the possibility of an infection control breach; (8) the sharp bins became attached to a trolley located off the ground and more readily accessible. 40. On 30 April 2007, the practitioner reopened the practice with the approval of the Deputy Chief Health Officer and the Director and Medical Officer of Health for the South Eastern Sydney Illawarra PHU. 41. Since 2007, the protocols have been kept in easily accessible locations in both nurses' rooms. All nurses that work in the clinic are require to sign-off on having studied the protocols. Any new nurses must sign-off on the protocols. The nurses are now also required to have regular meetings with the practitioner regarding procedures and practice issues that arise from time to time. 42. The practice continues to hold regular quarterly staff meetings where problems, concerns and any new developments are discussed with the practitioner. 43. A comprehensive documented infection control procedures policy was put in place at the practice. 44. Since the PHU investigation the practitioner has not been the subject of complaint. 45. In its follow-up of its investigation the PHU through its Clinical Nurse Consultant-Infection Control considered that the practitioner "has made a real commitment to improving the infection control standards of his practice and must be commended for immediately addressing the recommendations outlined in the initial report. By addressing the recommendations as outlined above, the practitioner has committed to ensuring the health and safety of his patients and has provided a safe and healthy working environment for his employees ." 3Ms Furness, for the HCCC conveniently summarised, in submissions, the background circumstances leading to the impugned conduct and details of the follow up: The doctor, the subject of the complaint, at the relevant times conducted a medical practice at Double Bay. In his practice, again at the relevant time, he combined a standard medical practice with providing patients with intravenous vitamin C, intramuscular vitamin B and intramuscular magnesium. About 8 per cent of the practice involved those treatments in 2007. In February 2007, the doctor contacted the Public Health Unit of the then Area Health Service and advised that three of his patients, all of whom received that therapy, vitamin C and vitamin B had been diagnosed with acute hepatitis C. ... that led to the Public Health Unit to carry out extensive investigations of the doctor's practice. Investigations that revealed a number of deficiencies in his infection control standards and also received a deal of publicity at the time. The investigations that were then carried out revealed that one patient had acquired hepatitis C via the spread of infected blood during intravenous procedures performed in November 2004, a second patient in October 2006, and a third in either October or December 2006. Those investigations revealed that the doctor did not have any written infection control policies or procedures and he did not have standardised written instructions and directions for clinical procedures. Further, at that time, following an audit conducted by a clinical nurse consultant specialising in infection control, it was found that the infection control standards were not effective in a number of areas. The first was the safe use, handling and disposal of sharps with the Public Health Unit discovering that in March, most of the used needles contained in the sharps bin had been recapped. ... The second area in which his infection control standards were found not to be effective was in the management of blood or body substance spills. ... The third area was in the use of multi doses of vitamin C in circumstances where it was marked 'single use' only and also of the vitamin B and magnesium sulphate vials. ... The fourth area was in the training and education of staff minimising crossinfection. ... ... Consideration 4The Tribunal must, in its consideration, be satisfied the agreed facts support the admission of the practitioner that there was, as admitted, unsatisfactory professional conduct in relation to the areas of complaint recited in particulars 9, 10(b), (d) and (f), 12 and 13 and an admission of professional misconduct in that conduct recited in particular 10(e). 5We have examined the primary documents in support of the agreed facts and accept not only those findings of fact but the expressions of opinion contained in the documentation. 6Professor William Rawlinson was satisfied that, notwithstanding there were some infection control procedures in place prior to the impugned conduct, the Tribunal would be satisfied there was, in all the practitioner's treatments over a considerable period of time, a common risk factor. 7Further, in his peer review analysis Dr Walid Jamal gave a detailed analysis of the procedures followed within the practitioner's surgery and he too determined they, in their limitation, created a risk of infection. 8We are satisfied existing infection control standards in the practitioner's surgery were not effective and fell significantly below that expected of a practitioner of the equivalent level of training and experience. Those practices invited a strong level of criticism on peer review. As to the ongoing commitment of the practitioner, in the implementation of his infection control standards and the practices followed in the practitioner's surgery today, the Tribunal accepts the impugned conduct is now righted. 9However, the particulars of the charge go beyond the issue of infection control. There is an attack on both the practitioner's ethical conduct (particular 13) and his failure to keep proper records (particular 12). 10... 11Particular 12 of the charge refers to the practitioner's failure to keep proper and adequate records between 1 September 1998 and March 2007 - a fact to which the practitioner has pleaded. However an examination of some recent medical records kept by the practitioner and tendered before the Tribunal do not reveal the particularity necessary in a proper taking of a patient's history and recording of the diagnosis and treatment recommended. For example: PEN. STEM. [ALLERGIC Penicillin, Stematil] T.H. [health fund] DOB Smoke 20/day; drink+; ~regular cycle [mildly irregular menses] 23/9/11- ... - married, 1 child. - refused SSRI etc. h/o [history of] "nervous breakdown" MVA -July 11 - took Avanza, /~insomnia [motor vehicle accident] [complains of insomnia] - hit from behind - fatigue +++[extreme fatigue] - panic attacks Inderal 10PRN diet Vits- Tres/C/Q10/SamE400 [10mg as needed] [Tresos B, Cal C powder, CoQ10 (antioxidant) SamE 400] -/Mg-/[Magnesium tablets] bloods[tick] [blood taken] 23/09/11 path + IVC 15mg (R) + IMB [nurse initial] Fess/bag/tape-snoring mouth [Fess nasal spray, breath into paper bag/taping of mouth at night] (Transcription provided by Avant Law Pty Ltd) 12According to criteria set out by the Medical Council of NSW and the Royal Australian College of General Practitioners, medical records should take an ordered approach and should be structured, for example, in the following way: presenting symptoms; history of present illness; references to past history, family history and social history; findings; special tests required; management and treatment plan. Medical records should reflect, as well as the patient's presenting problem, their relevant history, current medication, allergies, any test results, current treatment and a treatment plan. They should also be legible and comprehensive so that another medical practitioner can understand the patient's situation should they have to take over care. These notes are not comprehensive, lack cohesion and show no direction of management or treatment. The Tribunal will, in considering penalty, give some weight to this issue. 13It is agreed there have been no further incidents at the practitioner's surgery. 14The Tribunal is therefore satisfied the practitioner has demonstrated that the knowledge, skill and judgement he possessed and the care exercised by him in the practise of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; engaged in improper or unethical conduct relating to the practice of medicine; and contravened Part 3 of the Medical Practice Regulation 2003 and clause 13 of the Medical Practice Regulation 1998. Penalty 15The principles which guide the Tribunal in its determination of the appropriate penalty for such impugned conduct have been considered by the Court of Appeal in Bannister v Walton (1993) 30 NSWLR 699. In Bannister it was considered not only is the protection of the public the paramount consideration but also the maintenance of the high standard of the profession, deterrence (not only for the practitioner in question but others who might stray) and the unacceptability of the particular conduct. 16In Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298, Basten JA indicated that a fine is justified if it is to protect public welfare and maintain high professional standards. Under Division 4 of the Medical Practice Act 1992, the Tribunal is empowered in the following terms: Division 4 Disciplinary powers of Committees and the Tribunal 60 Powers may be exercised if complaint proved or admitted A Committee or the Tribunal may exercise any power or combination of powers conferred on it by this Division if it finds the subject-matter of a complaint against a person to have been proved or the registered medical practitioner who is the subject of the complaint admits to it in writing to the Committee or Tribunal. 61 General powers to caution, reprimand, counsel etc (1) A Committee or the Tribunal may do any one or more of the following: (a) caution or reprimand the person, (b) order that the person seek and undergo medical or psychiatric treatment or counselling, (c) direct that such conditions, relating to the person's practising medicine, as it considers appropriate be imposed on the person's registration, (d) order that the person complete such educational courses as are specified by the Committee or Tribunal. (e) order that the person report on his or her medical practice at the times, in the manner and to the persons specified by the Committee or Tribunal, (f) order that the person seek and take advice, in relation to the management of his or her medical practice, from such persons as are specified by the Committee or Tribunal. (2) If the person is not registered, an order or direction can still be given under this section but has effect only so as to prevent the person being registered unless the order is complied with or to require the conditions concerned to be imposed when the person is registered, as appropriate. (3) When a Committee or the Tribunal acting under this section makes an order or directs that any condition be imposed on a person's registration, the Committee or Tribunal may order that a contravention of the order or condition will result in the person being deregistered. The order or condition concerned is then a critical compliance order or condition under this section. 62 Power to fine in certain cases (1) A Committee or the Tribunal may by order impose a fine on the person of an amount of up to 50 penalty units in the case of a Committee or 250 penalty units in the case of the Tribunal. (2) A fine is not to be imposed unless the Committee or the Tribunal finds the person to have been guilty of unsatisfactory professional conduct or professional misconduct. A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct. (3) A fine must be paid within the time specified in the order imposing the fine and is to be paid to the Board. ... 17The maximum penalty is therefore $27,500. A question arose as to whether the charge should be considered as reciting a number of complaints, each attracting a level of penalty within the maximum, or as reciting just one complaint with a number of particulars within the maximum. As I read this complaint the pleadings were framed as particulars within "complaint one". The particulars canvassed three separate and distinct areas of impugned conduct. Firstly, there is the failure to ensure adequate infection control along with the failure to properly train and educate staff which, together, encompass one area of impugned conduct. However the failure to keep proper records and the breach of the ethical conduct rules encompass two separate and distinctive areas of impugned conduct. The latter two areas of impugned conduct could be read as separate complaints not solely connected to the infection controls issue and could, if pleaded as separate complaints, each attract penalty. However that is not how the case was pleaded and the Tribunal accepts, in the circumstances, that this is but one complaint. 18One further matter needs to be considered. Evidence revealed the practitioner, back in 1980, pleaded guilty to, and was convicted by a Court of Petty Sessions of, 16 charges of making false statements in Medibank Assignment forms capable of being used in connection with an application for payment of an amount under the Health Insurance Act 1973. His gain was $336.70 in total. 19When the above conduct came before the Medical Disciplinary Tribunal in 1981, the Tribunal ordered that the practitioner be suspended from practice for 12 months, after which period and for a period of three years he was directed not to claim against the Health Insurance Act 1973 or any similar legislation for or on behalf of any patient. While the practitioner has not re-offended in this manner and was severely punished some long time ago, nonetheless it is necessary to state that the complaint before us is the second complaint lodged against Dr Hameiri. 20While the joint position of the practitioner and the HCCC is that the appropriate protective orders are a reprimand and a fine, the Tribunal, in respect of the unsatisfactory medical record keeping practices of the practitioner, has expressed concerns. In accordance with s 61(1) of the Medical Practice Act 1992 there is power not only to order for the practitioner education courses but, under s 61(1)(f), there is power to order the practitioner seek and take advice (as the practitioner has already done in relation to infection control). The Tribunal is of the view the practitioner must seek professional advice as to the keeping of his medical records. The last audit of the practitioner's surgery was conducted in 2007. There shall be a further audit of the practitioner's medical records in six months' time. 21The practitioner submits that the fine imposed should be moderate for the following reasons: the practitioner had some infection control procedures in place at the time of the incidents, albeit he acknowledges that certain procedures fell significantly below the relevant standard; the practitioner took immediate and highly effective remedial steps to improve the infection control policies and procedures in his practice; the misconduct occurred more than four and half years ago and there has been no repeat of the misconduct in any way; and the Tribunal could be comfortably satisfied that there will be no recurrence of the misconduct. 22However, the practitioner's conduct falls squarely within the criteria set forth in the judgment of Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197, where Kirby J (President) stated (at 200) ... Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner. ... 23This is not a matter where the impugned conduct has led to the exposure of a risk, but rather the risk of infection existed and that risk became a reality. There has been, as well, a breach of ethics by the practitioner and a failure to keep proper medical records. This conduct was both unsatisfactory professional conduct and, in one case, professional misconduct. We therefore determine Dr Daniel Hameiri be reprimanded and he be fined in the sum of $25,000. Protective Orders 24The HCCC makes application that the patients' names be suppressed. In proceedings of this nature a patient's name is usually suppressed for reasons associated with the confidential nature of his/her medical conditions, which conditions gave rise to that person becoming a patient of the practitioner. 25However, this complaint was made prior to the enactment of the Health Practitioner Regulation National Law (NSW). These proceedings are to be dealt with under the Medical Practice Act 1992 as is agreed. Clause 6 of Schedule two of the Act is the appropriate clause in relation to the law applicable to an application for a suppression order. The HCCC seeks, in relation to each of the patients' names, that all identifying information not be published. An order will be made by the Tribunal to that effect. 26The defendant, while supporting the application for the suppression of the patients' names, asks for a further suppression order - that of the suppression of the practitioner's name. Reliance is placed on the following facts: the practitioner, when aware of the infection results, immediately notified the authorities; he closed down his practice to introduce, with expert advice, new rigour to his infection controls; he has fully co-operated with authorities; he has retrained all staff and continues to review standards and practices within the surgery; there has been a lot of prior detrimental publicity in a circumstance where the practitioner was well known in his village-type community. 27Under clause 6 of Schedule 2 of the Medical Practice Act 1992 (entitled 'Proceedings before a Committee or the Tribunal'), the Tribunal has the following powers: SCHEDULE 2 - PROCEEDINGS BEFORE A COMMITTEE OR THE TRIBUNAL ... Release of information 6. (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not the request of a complainant, the practitioner concerned or any other person): (a) direct that the name of any witness is not to be disclosed in the proceedings; or b) direct that all or any of the following matters are not to be published: the name and address of any witness; the name and address of a complainant; the name and address of a registered medical practitioner; any specified evidence; the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to: (a) a person who requested the direction; and (b) the complainant or the practitioner concerned, as appropriate; and (c) such other persons as the person presiding thinks fit. (4) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty: 150 penalty units in the case of a corporation, and 20 penalty units in any other case. 28As was said by the Tribunal in HCCC v Dr Gow (Suppression order) [2008] NSWMT 3 at [21] and [23]: 21 It is well established that the function of the Medical Tribunal is a protective one and that it does not, by its orders, punish the practitioner. The findings and consequential orders are " for the protection of those who require protection " ( Clyne v NSW Bar Association (1960) 104 CLR 186). It is inherent in the protection of the public that information about the practitioner be available should a potential patient wish to enquire as to whether the practitioner had been the subject of an order under the Act or should a patient which to make a complaint. The Medical Tribunal also upholds the standards and reputation of the profession in ensuring that the public retains confidence in the medical profession. ... 23. However, the Tribunal is of the view that it would be inconsistent with the protective function of the Tribunal proceedings to make an order that suppresses the name of the respondent when publishing the reasons for determination and in making the orders that flow from that determination. ... 29The person presiding is of the view (which the Tribunal members as constituted support) there should be a suppression order. The first will be suppression of the patients' names. This will include suppression of all the primary supporting documentation tendered before the Tribunal. This will also mean a corollary suppression order on the Tribunal's reasoning where such reasoning would reveal a patient's identity. 30The Tribunal has rejected the application of a suppression order of the practitioner's name as pressed by the practitioner. We find there has been no grounds submitted to persuade such a suppression order would be proper in the circumstance. Rather the Tribunal is of the view it would be against the public interest and inconsistent with the protective function of the Tribunal to suppress the practitioner's name. However, the Tribunal also emphasises and the judgment reveals, the practitioner now has had in place rigorous infection controls for some four years. He has and continues to practice without a further breach. 31The interim suppression order on the practitioner's name is to be lifted. 32There shall be a suppression order as to the names of the patients and all documentation tendered shall therefore be suppressed as will relevant paragraphs of the Tribunal's reasoning in this Judgment where such reasoning would reveal a patient's identity. Costs 33The Tribunal has power under clause 13 schedule 2 of the Medical Practice Act 1992 to award costs as follows: Tribunal can award costs 13. (1) The Tribunal may order the complainant, if any, the registered medical practitioner concerned, or any other person granted leave to appear at any inquiry or appeal before the Tribunal to pay such costs to such person as the Tribunal may determine. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may filed the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court is to enter judgment for the amount unpaid together with any fees paid for filing the certificate. 34It is agreed the practitioner shall pay the costs of the HCCC. Orders 1. The practitioner, Dr Daniel Hameiri, is reprimanded in the strongest terms. 2. In relation to the complaint Dr Hameiri shall pay a fine of $25,000. 3. Dr Hameiri is to be subjected to an audit of his medical records by representatives of the Medical Council of NSW within six months of the date of judgment. 4. There shall be a suppression order as to the names of the patients. All documentation tendered before the Tribunal will therefore be suppressed as will relevant paragraphs of the Tribunal's reasoning in this Judgment where such reasoning would reveal a patient's identity. 5. The interim suppression order on Dr Hameiri's name is to be lifted. 6. The respondent shall pay the complainant's costs. Amendments 11 November 2011 - "10(b), (c), (d)" changed to "10(b), (d)". Amended paragraphs: 4 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: 05 December 2011