Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hasil [2012] NSWMT 1 Hearing dates: 12 - 13 December 2011 Decision date: 15 February 2012 Before: Staff J; Dr Laurence Boshell; Dr Susan Messner; Dr Maureen Gleeson, PhD Decision: See [192] - [193] Catchwords: Medical Practitioner - Registrar Obstetrics and Gynaecology - failure to make proper records of treatment of patients - unsatisfactory professional conduct - complaint that practitioner was not of good character not established - PRINCIPLES - finding of impairment and that practitioner is currently not competent to practice medicine - procedural fairness -parties to be given opportunity to be heard in respect of any consequential or protective orders Legislation Cited: Medical Practice Act 1992 Mental Health Act 2007 Medical Practitioners Registration Act 1996 (Tasmania) Cases Cited: Bowen-James v Walton [1991] NSWCA 29 Briginshaw v Briginshaw (1938) 60 CLR 336 Childs v Walton [1990] NSWCA 41 Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Wingate [2007] NSWCA 326; (2007) NSWLR 323 King v Health Care Complaints Commission [2011] NSWCA 353 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 McBride v Walton [1994] NSWCA 199 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qidwai v Brown [1984] 1 NSWLR 100 Re Dr Parajuli [2010] NSWMT 3 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Saville v Health Care Complaints Commission [2006] NSWCA 298 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Mr Roman Hasil in person (Respondent) Representation: Counsel: Ms S McNaughton SC (Complainant) Solicitors: Health Care Complaints Commission (Complainant) File Number(s): 40029 of 2010 Publication restriction: Pursuant to Sc 5D cl 7 of the Health Practitioner Regulation National Law the Tribunal has ordered that there be no publication of the names of the patients or of any material capable of identifying the patients JUDGMENT Suppression order 1The Tribunal has made a non-publication order in respect of material that identifies, or might lead to the identification of any of the 15 patients referred to in this judgment. The complaints 2The Health Care Complaints Commission alleges that Mr Roman Hasil ("the respondent"), a former registered medical practitioner having previously been registered under the Medical Practice Act 1992 (the "Act") (now repealed) is guilty of "unsatisfactory professional conduct" within the meaning of s 36(1)(a), s 36(1)(b) and s 36(1)(m) of the Act and/or "professional misconduct" within the meaning of s 37 of the Act in that he has: "(i) 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; (ii) Contravened a provision of the Act, namely section 127B; (iii) Contravened provisions of the regulations, namely the Medical Practice Regulation 1998 (NSW) and the Medical Practice Regulation 2003 (NSW); and/or (iv) Engaged in improper and unethical conduct relating to the practice of medicine." 3The present proceedings concern three complaints. 4Complaint one involves complaints made by 15 former patients who were admitted to Lismore Base Hospital where the respondent was employed as a Registrar in Obstetrics and Gynaecology. The complaints cover the period from 29 October 2001 to on or around 17 January 2005. 5In summary, Complaint one involves allegations that the respondent failed to record sufficient information concerning each patient's care and treatment; inadequacy and failure relating to note taking regarding each patient; rudeness and the use of inappropriate language during the course of treatment of various patients; performance of a procedure on one patient without wearing gloves; failure to introduce oxytocin (Syntocinon®), ( a drug used for induction of labour at or beyond term in maternity hospitals), at a reasonable time in respect of one patient, and failure to notify the New South Wales Medical Board ("the Board") in writing within seven days of the fact that he had been convicted of an offence contrary to s 127B of the Act. 6This section provides: "127B Practitioners to notify convictions, criminal findings and charges (1) A registered medical practitioner must notify the Board in writing within 7 days after: (a) the practitioner is convicted of an offence or made the subject of a sex/violence criminal finding for an offence, in this State or elsewhere, giving details of the conviction or criminal finding and any penalty imposed for the offence, or (b) criminal proceedings are commenced against the practitioner in respect of a sex or violence offence alleged to have been committed, in this State or elsewhere, in the course of the practice or purported practice of medicine. (2) This section does not apply in respect of an offence if the offence is an excluded offence." 7Complaint two alleges that the respondent is "not of good character". 8Complaint three alleges that the respondent: "... suffers an impairment in that the practitioner suffers from a physical or mental impairment, disability, condition or disorder which detrimentally affects, or is likely to detrimentally affect, the practitioner's physical or mental capacity to practice medicine." 9The respondent's medical registration was suspended in February 2008 and his name removed from the roll of registered medical practitioners on 11 April 2009 due to his "failure to pay the annual renewal fee". 10It is convenient to set out the particulars relied upon by the HCCC in respect of Complaint one. There were no particulars in respect of Complaint two and Complaint three. The particulars of Complaint one are: "Particulars of Complaint one Patient A 1. Between 29 October 2001 and 1 November 2001, the practitioner provided medical treatment to Patient A. The practitioner failed to enter into the medical records any of the treatment undertaken by him in relation to this patient. 2. On or about 29 October 2001, the practitioner was rude, rough and/or disrespectful to the patient during the course of treatment. Patient B 3. On or about 27 November 2001 and 28 November 2001, the practitioner provided medical treatment to Patient B and: (a) The practitioner failed to record sufficient information concerning the patient's care and treatment; and/or (b) On or about 27 November 2001, the practitioner used unacceptable and/or inappropriate language to the patient during the course of treatment. Patient C 4. Between about 14 July 2002 and 21 July 2002, the practitioner provided medical treatment to Patient C. The practitioner: (a) Failed to record sufficient information concerning the patient's care and treatment; (b) Performed a perineal repair without wearing gloves; and/or (c) Made inappropriate comments to the patient during the course of that repair. Patient D 5. On or about 9 August 2002 and 11 August 2002, the practitioner provided medical treatment to Patient D. The practitioner failed to record: (a) Particulars of any clinical opinion reached by him; (b) Any discussion with the patient; and/or (c) Any plan for treatment of the patient on 9 August 2002 and 10 August 2002. Patient E 6. Between about 9 August 2002 and 15 August 2002, the practitioner provided medical treatment to Patient E: (a) On 9 August 2002, the practitioner failed to record his treatment of the patient at the antenatal clinic; and/or (b) On 13 August 2002, the practitioner failed to record sufficient information concerning the patient's care and treatment. Patient F 7. Between about 7 September 2002 and 10 September 2002, the practitioner provided medical treatment to Patient F. The practitioner made two entries in the medical record progress notes. The practitioner: (a) Failed to clearly record that he was the person who made the entries; (b) Failed to record the time of one of the entries; and/or (c) Failed to make a record setting out the discussion with the patient concerning risks or alternative interventions. Patient G 8. Between about 28 January 2003 and 3 February 2003, the practitioner provided medical treatment to Patient G. On 29 January 2003, the practitioner performed an elective lower-section caesarean section. The practitioner failed to make a contemporaneous detailed description of the delivery, including a description of the delivery of the legs. Patient H 9. Between about 25 February 2003 and 26 February 2003, the practitioner provided medical treatment to Patient H. The practitioner failed to make any entry in the medical records of the treatment provided to the patient. Patient I 10. Between about 1 April 2003 and 5 April 2003, the practitioner provided medical treatment to Patient I. The practitioner made entries in the medical records. The practitioner: (a) Failed to clearly record that he was the person who made the entry; (b) Failed to record the time of the entry; (c) Did not record the level of detail appropriate to the patient's case; and/or (d) Made a record which was difficult to read. 11. Between about 1 April 2003 and 3 April 2003, the practitioner: (a) Failed to introduce Syntocinon at a reasonable time to Patient I; and/or (b) Otherwise communicated with her during the course of treatment in a way which was inappropriate and/or unacceptable. Patient J 12. On or about 20 August 2003 and 21 August 2003, the practitioner provided medical treatment to Patient J. The practitioner failed to record sufficient information concerning the patient's care and treatment. Patient K 13. On or about 10 November 2003, the practitioner provided medical treatment to Patient K. The practitioner's first entry in the medical record progress notes does not clearly record that he was the person who made the entry. 14. On or about 10 November 2003, the practitioner made rude comments to, yelled at and/or laughed at Patient K during the course of treatment. Patient L 15. Between about 27 January 2004 and 4 February 2004, the practitioner provided medical treatment to Patient L. On 28 January 2004, the practitioner treated Patient L's perineal tears. The practitioner made entries in the medical record progress notes about the treatment. The practitioner: (a) Failed to clearly record that he was the person who made the entry; (b) Failed to record a time for the entry; and/or (c) Recorded a description of the repair undertaken which was too brief and/or was otherwise unable to be interpreted. 16. On or about 28 January 2004, the practitioner used unacceptable language to the patient during the course of treatment. [Not pressed]. Patient M 17. On or about 8 February 2004 and 9 February 2004, the practitioner provided medical treatment to Patient M. The practitioner failed to record sufficient information concerning the patient's care and treatment. 18. [Deleted]. Patient N 19. Between 11 October 2004 and 19 October 2004, the practitioner provided medical treatment to Patient N. The practitioner: (a) Failed to clearly record that he was the person who made an entry in the patient's medical records; (b) Failed to record the time of delivery of the baby; (c) Failed to record sufficient detail of his repair of an episiotomy; and/or (d) Failed to record his discussions with the patient regarding her treatment. Patient O 20. On or about 17 January 2005 and 18 January 2005, the practitioner provided medical treatment to Patient O . The practitioner made two entries in the medical record progress notes. The practitioner: (a) Failed to clearly record that he was the person who made the entries; (b) Failed to record a time for the entries; (c) Failed to record any discussion of the proposed treatment with the patient. Other 21. The practitioner was convicted on 26 September 2008 of an offence of driving with the prescribed concentration of alcohol. The practitioner failed to notify the NSW Medical Board, in writing and within 7 days of 26 September 2008, of the fact that he had been convicted of the offence, contrary to section 127B of the Act. 11The respondent, who appeared in person, admitted a significant number of the particulars in respect of Complaint one. The respondent admitted particulars 1; 5(a),(b),(c); 7(b),(c); 8; 9; 10(a),(b),(c),(d); 15(a),(b),(c); 19(a),(b),(d); 20(a),(b),(c), and 21. 12The respondent denied particulars 2; 3(a),(b); 4(a),(b),(c); 6(a),(b); 7(a); 11(a),(b); 12; 13; 14; 17, and 19(c). 13It is therefore necessary for the Tribunal to determine whether each particular has been established in accordance with the civil standard of proof and the principles stated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360 - 363. In summary, the respondent denied that he was rude, rough or disrespectful to any of the patients; that he failed to record sufficient information concerning the care and treatment of patients; that in respect of Patient C, he performed perineal tears on a patient without wearing gloves, and in respect of Patient I, that he failed to introduce Syntocinon at a reasonable time to that patient. 14The respondent denies Complaint two and Complaint three. Meaning of "unsatisfactory professional conduct" and "professional misconduct" 15For the purposes of the Act, "unsatisfactory professional conduct" of a registered medical practitioner is defined as follows: "36 Meaning of "unsatisfactory professional conduct" (1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following: (a) Conduct significantly below reasonable standard Any conduct that demonstrates that 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; (b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. ... (m) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of medicine." 16For the purposes of the Act, "professional misconduct" of a registered medical practitioner is defined as follows: "37 Meaning of "professional misconduct" (a) unsatisfactory professional conduct, 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 of the practitioner from practising medicine or the removal of the practitioner's name from the Register." 17In order for the Tribunal to be satisfied that the allegations are established, the Tribunal must be comfortably satisfied on the balance of probabilities, having regard to the serious nature of the allegations and the serious consequences: Briginshaw v Briginshaw . 18Complaint one dealt with alleged breaches of the Medical Practice Regulation 1998 (NSW) and the Medical Practice Regulation 2003 (NSW), (now repealed). The relevant provisions of the Medical Practice Regulation 2003 were: "Part 3 Records 5 Records relating to patients (1) A registered medical practitioner or medical corporation engaged in the provision of medical services must, in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or corporation. (2) This clause does not affect section 127 (4) of the Act. (3) For avoidance of doubt, contravention of this clause is not an offence. (4) Subclause (1) does not apply to the following: (a) a public health organisation within the meaning of the Health Services Act 1997 , (b) a private hospital, (c) a day procedure centre, (d) a nursing home within the meaning of the Nursing Homes Act 1988 . (5) Subclause (4) does not: (a) affect the application of subclause (1) to a registered medical practitioner appointed, employed, contracted or otherwise engaged by a medical corporation referred to in subclause (4), or (b) affect the operation of section 126 (2) of the Act in relation to a record made under this clause before 18 May 2001." 19The Part referred to in cl 5 was Pt 3 of the Medical Practice Regulation which provided: "6 When records are to be made (1) A record must be made contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable afterwards. (2) This clause may be complied with by the making of further entries in a single record that relates to the patient concerned. Schedule 2 Records relating to patients (Clause 5) 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include: (a) any information known to the registered medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to his or her 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), and (b) particulars of any clinical opinion reached by the registered medical practitioner, and (c) any plan of treatment for the patient, and (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the registered medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the registered medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic given to the patient (if any), (e) the tissues (if any) sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to any medical treatment (including any medical or surgical procedure) proposed by the registered medical practitioner who treats the patient must be kept as part of the record relating to that patient. 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 3 Form of records (1) Abbreviations and short hand expressions may be used in a record only if they are generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. (2) Each entry in a record must be dated and must identify clearly the person who made the entry. (3) A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper." Principles 20This jurisdiction is exercised for the protection of both the public and the medical profession. It is protective rather than punitive. Deregistration is not an automatic outcome of a finding of professional misconduct, even where that conduct is sufficiently serious to justify deregistration: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. It is clear that deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153, Santow JA at [64] and Basten JA at [101]; Childs v Walton [1990] NSWCA 41. The respondent 21The respondent was self-represented and gave no evidence during the hearing. It follows, as the Supreme Court of New South Wales Court of Appeal found in Bowen-James v Walton [1991] NSWCA 29 (Samuels, Meagher and Handley JJA): "... if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts." 22The respondent advised the Tribunal that he did not wish to cross-examine any of the witnesses, including the expert witnesses. 23The respondent was born on 25 February 1955. The respondent studied medicine in Czechoslovakia and was awarded a Bachelor of Medicine in 1980. After his compulsory postgraduate years, he elected to train in Obstetrics and Gynaecology. The respondent completed his first five years of training in one hospital and continued working at the hospital for a number of years. In the nine years post his training, he commenced publishing academic literature and had the opportunity to spend extended periods of three to six months working in hospitals in France and Germany. Throughout these years, he continued to have a significant caseload and was regularly on call including after hours. He became a senior doctor in a hospital, but was of the view that further promotion would not occur until the Professor at the time retired. As this was not likely to occur for a number of years, he decided to travel to Australia in 1993 with the intention of spending three months living in Australia to improve his English. During this period, he met his second wife and she encouraged him to settle in Australia. The respondent's evidence is that he had some early guilt feelings concerning leaving his family in Czechoslovakia and abandoning his employer, but he decided to stay in Australia. He had married a medical student whilst studying at University and had two children before an amicable separation some years before he came to Australia. 24The respondent and his second wife subsequently moved to Singapore where his wife was to take up a position. On 4 August 1995, he was charged in the Singapore Magistrate's Court of "criminal intimidation" arising out of a domestic argument with his wife. He pleaded not guilty but was convicted and sentenced to a gaol term of one month. 25He returned to Australia immediately upon his release and applied to have his specialist qualifications recognised. He was unsuccessful. He was advised to attempt the Australian Medical Councils Multiple Choice Questions examination ("AMC MCQ"), (a Medical Council of Tasmania examination which took effect in July 1998). 26In 1997, the respondent successfully applied for registration in an "area of need" position at the Royal Hobart Hospital. He did not disclose his conviction in Singapore on his application form. It was his view that because a domestic violence offence would not result in a criminal charge in Australia carrying a gaol sentence, it was not applicable. 27The respondent's evidence was that when completing the application form in 1997, he did not know that he was required to include it in the declaration. He gave an account of his understanding of the wording of that declaration which was that he did not believe that the issue would lead to a conviction in Australia. The Tribunal will return to consider this matter in greater detail when it determines Complaint two. 28The respondent worked for two years in this position in the Obstetrics and Gynaecology Department as a Registrar. The position ended when the regular Registrar returned from maternity leave. 29In 1999, the respondent was offered a new position at Burnie Hospital in Tasmania, but when he approached the Medical Council of Tasmania ("MCT") for registration, he was confronted with the conviction in Singapore and advised that he had made a false declaration in his application for the position at the Royal Hobart Hospital and that the MCT would have to consider his character. The offer of the position was withdrawn, so the matter went no further with the MCT. 30In 2000, the respondent passed the AMC MCQ examination. 31In February 2001, the respondent applied for a position at the Women's and Children's Hospital in Adelaide. The Deputy Registrar of the Medical Board of South Australia interviewed the respondent and the matter was then referred to the Board for consideration. Apparently, the employment offer was withdrawn so the matter proceeded no further. 32In March 2001, the respondent applied for an "area of need" position at Lismore Base Hospital. On 23 March 2001, the Area of Need Panel examined the respondent's application, accepting him to be clinically appropriate for the advertised position. In response to the Panel's invitation, the respondent gave an account of his professional career, as outlined above (including his declaration in Tasmania), other than an alleged false claim against a charity. No material was provided in respect of this matter. Nor was this pursued by the Interviewing Panel. The interviewers who comprised the Panel discussed this issue and were of the view that there was insufficient firm evidence to warrant pursuing the issue. 33The Panel asked whether there were any other incidents that might have occurred in Hobart of which the Medical Board should be aware, and he indicated that he had had a clash with a nurse about a patient not being there, but was unable to identify any incident(s) that could lead to adverse reports. 34The Panel concluded that the respondent had been candid and sincere in his presentation. The respondent was advised that a report would be provided to the Registration Committee which met on 6 June 2001, to decide whether the respondent's application should be accepted. The respondent indicated he had no objection to contact being made with his referees at the Royal Hobart Hospital and it was suggested that he should seek to obtain a Certificate of Good Standing from Czechoslovakia, which he sought. 35The Panel considered that there were three matters which required clarification by the respondent. Those matters were: "1. An alleged false statement concerning his declaration to the Tasmanian Medical Council about prior convictions. The interviewers were satisfied that Dr Hasil had not understood that he had an obligation to reveal his Singapore conviction. 2. His inability to obtain a Certificate of Good Standing from the Tasmanian Medical Council. Dr Hasil is unable to obtain a Certificate of Good Standing because he is currently unregistered, and in present circumstances it appears that he will not be able to be re-registered, or to have the issues preventing this properly aired in an appropriate forum. 3. An alleged false claim against a charity in Victoria. The interviewers considered that there was not sufficient evidence to warrant pursuing this item." 36On 6 June 2001, the Registration Committee of the Board noted: "Dr Hasil was interviewed for an area of need position and considered clinically appropriate, but he was unable to produce a Certificate of Good Standing from Tasmania. He was interviewed by Dr M Diamond and Mr Andrew Dix on 4 May 2001 to consider his suitability for registration." 37The Registration Committee resolved to approve the respondent's application for registration in an "area of need" position. 38The respondent was employed as a Registrar in Obstetrics and Gynaecology at Lismore Base Hospital from 25 June 2001 until March 2005. 39In May 2005, the respondent was employed at the Angliss Hospital in Victoria. The evidence given by the respondent to various medical experts was that he was very unhappy with this position because he was treated like a junior doctor. He had still not passed the Fellowship exams for the Royal Australian College of Obstetricians and Gynaecologists. He became depressed and bought a six pack of beer and drank it in the Hospital car park. The respondent was dismissed from his employment at the Angliss Hospital for alcohol use whilst on duty and removed from the Victorian Register of Medical Practitioners on 12 January 2006 following his failure to pay his renewal fee. 40In late 2005, the respondent was employed in New Zealand where he worked intermittently until 2007. Whilst working as a doctor in New Zealand, he presented for work smelling of alcohol on two occasions. The first occasion was in late 2005. The respondent's explanation was that he had been preparing for his College examinations and had failed. Around this time, his wife, who had remained in Lismore with their two children, sent him a message telling him not to come back to Lismore. He said that he drank heavily that night and attended work in the morning smelling of alcohol. He was asked to go home. 41This matter was investigated and dealt with and he continued in employment at the Whanganui Health District Hospital. He remained sober for about nine months, until once again, he was found to have been drinking alcohol, this time whilst on call. It had been noted that he presented smelling of alcohol. He was placed on leave. He was referred to a psychiatrist and a psychologist. The respondent stated that at the time he was suffering depression. 42The respondent returned to work in late 2006 after a period of six months' leave. He was required to present on a regular basis for breath testing and monitoring. 43Upon his return to Australia, the respondent was required by the Board to be reviewed as part of the assessment process for the Health Programme of the Board. Dr Andrew Petherbridge, Staff Specialist, Liverpool Hospital, provided a report to the Board dated 12 January 2006. 44Dr Petherbridge's conclusions were: "On the basis of the report of the incident and the evidence of my interview with Dr Hasil I do not believe that he has an ongoing problem with alcohol or undiagnosed psychiatric illness. While the incident at Angliss hospital had the potential to put patients at risk it appears that this was an isolated incident, a consequence of poor judgment, rather than evidence of ongoing problematic drinking. He does not have any of the typical physical, social or professional consequences of problematic alcohol use. On the basis of the evidence I have I feel that there is little to be gained by Dr Hasil participating in the Board's Health Programme." 45On 6 February 2008, the respondent was convicted of driving with high-range prescribed concentration of alcohol in his blood ("PCA"). He was fined $250 and disqualified for a period of 12 months. The Director of Public Prosecutions appealed the conviction. However, the sentence was confirmed on appeal. 46On 26 September 2008, the respondent was again convicted of driving with high-range PCA. 47On 24 July 2008, the respondent was convicted of "common assault" and "obtain money, valuable thing/financial advantage by deception". The respondent was placed on a good behaviour bond for 12 months and required to accept supervision and guidance from the Probation & Parole Service (NSW). 48On 26 June 2008, the date of the second PCA offence, the respondent was admitted to the James Fletcher Hospital in Newcastle after informing police that he was considering suicide. He was admitted under the Mental Health Act 2007. According to the clinical notes of the Senior Staff Specialist in Psychiatry at the Hospital, the following day the respondent was clearly withdrawing from alcohol use and was controlled in his behaviour. He was made a voluntary patient. At his insistence, he was placed on leave from the Hospital. He was expected back on Monday 30 June 2008. He did not return and was formally discharged on Thursday 4 July 2008. He had previously been admitted on 19 June 2008, again overnight, after being arrested by police and attempting to steal wine from a bottle shop. He had again mentioned suicidal thoughts and was admitted for assessment. He was discharged on 20 June 2008. 49After those further incidents, the Board again sought a review of the respondent from Dr Petherbridge. In his report to the Board dated 26 April 2009, Dr Petherbridge stated his conclusions as follows: "It appears that Roman has in the last few moths started to acknowledge that he is an alcoholic and he has taken steps to correct some of his past errors. This has been a particularly dark period for Roman given the difficulties he has faced in a number of work environments, his marriage(s), allegations about his clinical performance and alleged involvement in murders. I would like to support Roman in the positive steps that he has recently started. However many of these stressors are still unfolding, particularly court processes seeking access to his children and I believe some patient complaints may be still going through formal complaint processes. He is also in the very early stages of his recovery from alcohol abuse and has to sort out for himself many critical concerns such as stable accommodation. I am also concerned that Roman's attempt to regain his medical registration is because it is "unfinished business" and this is not appropriate particularly when Roman is able to acknowledge to me that it is highly unlikely he would ever be employed in medicine. I believe it is more critical to his recovery that he learn to acknowledge his past difficulties and "move on". A further concern is that it has taken multiple contacts with authorities (police and registration boards) before Roman has been able to acknowledge both his problem with alcohol and the fact that his behaviour has placed patients at risk. Even at our interview Roman externalised the blame for some of his behaviours, he had difficulty accepting that he was responsible and not those he placed some blame on - other staff, social circumstances, work demands and his ex-wife. I was asked to assess Dr Hasil from the perspective of impairment as defined. He is clearly impaired because of his use of alcohol and I do not believe that any conditions that could presently be placed on his registration would be sufficient to ensure he does not return to drinking and place patients at risk. I say this on the basis that he is still in the early phase of his abstinence and he continues to externalise blame, rather than acknowledge personal responsibility. It may be that after an extended period of confirmed abstinence, some twelve months, then the usual monitoring of CDT testing and self-reports of his behaviour may be sufficient to ensure patient safety. I would be happy to review Dr Hasil when this was to occur. I am aware that I was not asked to comment on two further aspects of my review of Dr Hasil. The first of these relates to his work performance. Roman informed me that there have been complaints about sterilization procedures that he performed and I understand that there may have been other patient complaints. If he was to have his registration restored then I would strongly suggest he be invited to participate in a programme of performance review including mentoring, and working under supervision. I would also be reassured if Dr Hasil were to start participating in appropriate CME prior to seeking re-registration. My second concern relates to Dr Hasil's personality. While I do not believe that he has a personality disorder I do believe that he has a narcissistic manner of interacting with other people. I base this on his reports of other staff that he has worked with and his use of blame to make others responsible for his difficulties. This personality style would make it difficult for Roman to work as part of a team, essential in modern O&G work. Beyond any impairment he is at potential of being labelled as a disruptive doctor. If you would like me to clarify any points in this report please contact me ...." 50The respondent's extensive medical records from admissions to St Vincent's Hospital were tendered to the Medical Tribunal of New South Wales ("the Tribunal"). The records included that the respondent was admitted to St Vincent's Hospital on 30 December 2008, after he had "been on a three day binge". On 2 October 2009, the respondent was admitted to St Vincent's Hospital having suffered a head injury. A report by Dr Catherine Johnson, a resident medical officer dated 23 November 2009, relevantly stated: "In regards to his head injury, Mr Hasil sustained bifrontal contusions, a traumatic sub-arachnoid haemorrhage. He required a bifrontal craniotomy and an intensive care admission thereafter. Secondary to this head injury and in combination with his history of alcohol abuse, he was slow in completing our post-head injury assessment tasks, however once passed Mr Hasil has been clear for discharge. He was reviewed for rehabilitation as are all head injury patients, however due to his premorbid alcohol misuse it was believed that he was not a suitable candidate for rehabilitation. Mr Hasil has been reviewed by our occupational therapists and there are definitive deficits on his cognitive assessment. It is difficult to decipher the primary case of his deficits. However, I should be noted that Mr Hasil presented to our emergency department in 2008 requesting alcohol detoxification. Clearly he has long standing impairments and there has obviously been a decline in his capacity to work and function normally, as demonstrated by his previous presentation, his living in crisis care accommodation, his medico-legal situation and his ultimate seizure which resulted in his current head injury. Considering this, Mr Hasil has several invitations for a disability support pension ..." 51The respondent's medical records were also tendered in respect of treatment he received at the South Eastern Sydney Illawarra Langton Centre for a substance use issue (Ethanol, including alcohol). The respondent had presented at the Centre on 18 August 2008 with an urgency status of three days. During the service request period, he was seen 15 times. Expert evidence 52The HCCC sought a suppression order in respect of the names of each of the medical experts that had provided reports to the HCCC in respect of the respondent. Although the Tribunal initially granted a suppression order in respect of the medical experts, the Tribunal has formed the view that there is no reason why the names of the medical experts should not be disclosed. Pursuant to Cl 6, Sch 2 of the Act, the direction is revoked. We have reached this view, particularly in light of the observations made by the Court of Appeal in Lindsay v Health Care Complaints Commission [2010] NSWCA 194, and more particularly the observations made by Young JA at [42] - [45] and Sackville AJA at [116] - [120]: "[42] Before concluding I should say that I particularly endorse what Sackville AJA said about confidentiality orders. Clause 6 of Schedule 2 to the Medical Practice Act 1992 empowers the person presiding in proceedings before the Tribunal if that person thinks it appropriate in the particular circumstances of the case direct that the name of any witness is not to be disclosed or other details concerning the witness or complainant or the medical practitioner. [43] It would appear from what we were told that it has become part of the culture of the Tribunal to make an order keeping witness's names confidential in every case. Such a culture goes against clause 6 which requires the person presiding in the proceedings to make a decision as to whether a confidentiality order is appropriate in the particular circumstances of the case. This means that one cannot just say it must be made unless there are special circumstances to the contrary. [44] There is no reason why the name of a witness to the Tribunal should not be disclosed unless there are particular circumstances such as the witness is suffering from a condition which it would be embarrassing to have revealed generally, or there is some fear of reprisal. (I do not mean this to be an exhaustive statement). [45] Generally speaking, so long as the Tribunal observes the usual procedure to protect the people appearing before it from being the victims of identity fraud, there is no reason why the public generally should not know what witnesses were called before the Tribunal. ... [116] On the first day of the hearing, the Tribunal made a direction pursuant to cl 6 of sched 2 to the Act that there be no publication of the name or address of any witness, complainant or medical practitioner until further order. The Deputy Chairperson did not give detailed reasons for making the order. However, he indicated that he was influenced to do so by the fact that the appellant was representing himself and, unlike a legal representative, he was not bound by ethical rules governing the making of serious allegations against witnesses or other persons involved in the proceedings. It does not appear that consideration was given to exercising the power to revoke or amend the direction (cl 6(2)), once the Tribunal had determined that none of the appellant's allegations of misconduct or conspiracy was supported by the evidence. [117] No challenge was made on the appeal to the direction made by the Tribunal. The appellant belatedly applied for leave to amend the FANA to include such a challenge. Having regard to the unconvincing reasons given by the appellant for the lateness of his application, the Court refused to grant leave. [118] The precise scope of the Tribunal's non-publication direction is not entirely clear. In particular, it is not clear whether the direction prevents this Court publishing names of witnesses who gave evidence in the Tribunal in the judgment. Nor is it clear whether a third party can publish what appears in the transcript of argument on the appeal or in this judgment. [119] This Court has power to prohibit publication or disclosure of any information tending to reveal the identity of any party to the proceedings or " witness in the proceedings ", if it is of the opinion that it is necessary to do so to secure the proper administration of justice: Civil Procedure Act 2005, s 72(1). The Court in determining an appeal from the Tribunal, also may make such order as it thinks proper having regard to the merits of the case and the public welfare and, in doing so, may exercise any one or more powers of the Tribunal: Act, s 91(1)(b). [120] Whatever justification there may have been for the Tribunal's non-publication direction, there is in my opinion no justification for the direction to prevent publication of identifying information in relation to witnesses in this Court's judgment or the transcript of the proceedings in this Court. In my view, the power in s 91(1)(b) extends to exercising the Tribunal's power to revoke or amend a non-publication order, at least where the revocation or amendment is ordered in the Court's judgment disposing of the appeal. Accordingly, the Tribunal's non-publication direction should be amended to the extent necessary so that it does not prevent publication of the names of any witness, complainant or medical practitioner referred to: in the transcript of proceedings in this Court; in the judgment of this Court; and in any report or publication of the proceedings in this Court or the judgment of the Court." 53Although finely balanced, the Tribunal does not propose to revoke the non-publication order in respect of the identity of the patients. A number of the patients made their complaint in respect of the respondent on the basis that such complaint remained confidential. It is unclear as to what extent some of the patients may have been encouraged to make their complaint. Complaint one 54The HCCC obtained expert opinions in respect of the various complaints made by the 15 patients relating to the respondent. As we have already observed, with the exception of two matters (failure to wear gloves and the failure to introduce S yntocinon), the particulars do not challenge the respondent's surgical or clinical techniques. Therefore, with this in mind, the Tribunal has decided to include in this judgment the conclusions of the medical expert retained by the HCCC, Dr Peter Bland, who provided a number of reports in respect of the complaints made by the patients. 55In his report dated September 2008, Dr Bland considered complaints made by Patient C, Patient D, Patient F, Patient G, Patient J and Patient M. His conclusion read as follows: "Dr Hasil is an unpopular doctor who has upset a lot of people. He is working in an 'Area of Need' because no-one else would go there. I assume he is an Overseas Trained Doctor and he is working in provincial Australia which is less cosmopolitan than, say, Sydney. He is a poor documenter - his hand writing is challenging, he provides only the barest details and frequently leaves others to write things up for him in the third person. He is a poor communicator who seems to be trying to fit in by using colloquial but often inappropriate language. However, if he is not present at LBH, then no-one is and there is no service at all. The data are a mixture of old and new - some contemporaneous records and some reports written long after-the-fact and assumedly influenced by the passage of time - I Have referred to specifics above. This necessitates some interpretation of "the facts". In the cases provided, the majority of his actions are logical and within normal standards of practice. Clearly vaginal surgery without gloves and calling a woman 'slut' and 'whore' falls outside these standards but I am not convinced of the veracity of this report as noted above. I have noted the possible technique problem in the case of [Patient G] but have reviewed exactly the same injury after a similar delivery by an Australian-trained Senior Specialist in a tertiary hospital in this state; discussion but no censure resulted. I do not believe these cases indicate that the care provided by Dr Hasil falls below acceptable standards. He may be summed up by Ms Whitely: 'I found Dr Hasil to be really good to work with. He was always polite and helpful except if he took a dislike to a patient or colleague when he would change his behaviour and he could be rude and abrupt'." 56The HCCC sought a further opinion from Dr Bland regarding the complaints made by the patients considered in his report of September 2008. Dr Bland provided an addendum to his earlier report dated April 2009. His conclusion read: "There are significant inadequacies in the care provided by Dr Hasil. He is a poor communicator and a poor documenter. He fails to establish an effective interaction with patients and of greater concern seems to be oblivious of that at the time. Of still greater concern, he remains ignorant even in the face of formal complaint and review. He lacks insight that he is not practising in a way his colleagues do and would expect him to. His responses to criticism are a combination of denial and dismissal or textbook-like quotations. This is not helpful - he appears to not grasp that there is a problem. His clinical care is in the main explicable and reasonable. He seems to attract the adjectives 'rude' and 'rough'. I have addressed the former above. The latter is more concerning - 'sticks and stones may break my bones but names will never hurt me'. The cases presented in this complaint contain two damages babies - one with a femoral fracture and one with an intracranial bleed. I would certainly implicate the accoucheur in the form but am less confident in the latter as the mechanism of trauma is more difficult to imagine. Dr Ingall's comments indicate some concern regarding the physicality of Dr Hasil's actions - this needs specific analysis and consideration. Dr O'Sullivan provides further information and insight regarding Dr Hasil's practice - his failure to obtain official status in the profession in Australia, his antipathy for this rejection, his gradual drift into a position of responsibility described as a 'quasi-Registrar' and the uncertainty this sort of thing produces in terms of scope of practice. I am concerned about the ectopic pregnancy case, which Dr O'Sullivan describes. The outcome was apparently good but as a result of luck rather than judgement. A clinician must be cognizant of his limitations in order to know when to seek help and further to use that help to increase his skill and knowledge. A clinician must have insight and a willingness to listen and learn. Dr Hasil lacks these attributes. I am very concerned to hear of the suggestions of criminal charges and disqualification in other states in Australia. Dr Hasil would not be the ideal person to provide obstetric and gynaecological services to the women of Lismore. This is apparent as a result of retrospective claims and observations from patients and colleagues. The real issues are: Why was he employed at LBH? Why did the system fail to establish his problems prior to employment? How did he drift from a basis position to one of responsibility? The workforce problem of provincial obstetrics has been present for well over a decade and is worsening. The responsibility of providing care for the women of Lismore and other regional areas lies with the Government and the RANZCOG. Neither has performed well - their care has fallen significantly below the standard and I am severely critical. Neither has provided leadership or strategies to address the problem constructively. The result is a two-tiered health service with provincial women the losers. Hospitals like LBH need to provide stop-gap solutions in order to stay afloat and support incumbent practitioners (medical and midwifery) as alluded to by Dr O'Sullivan. 'Beggars can't be choosers'. Dr Hasil is not unique and will pay for his inadequacies while those who are responsible at the casual level will continue to provide their substandard contributions, the problem will grow and the women of Australia will be the real losers. Complaints of this ilk will be the result. Regarding Dr Hasil I am severely critical of his communication, documentation and lack of insight. I am concerned regarding the possibility of deficits in his clinical skill and judgement but would need closer review of his practice to define these." 57The HCCC sought a further supplementary opinion from Dr Bland asking him to assume that various patients' versions of events were accurate. Dr Bland provided further supplementary clarification in his report dated April 2009. In assuming Patient C's allegation of failing to wear gloves was accurate, Dr Bland stated: "This is inappropriate. For the protection of both the surgeon and the patient, surgical gloves should be worn. I am severely critical. ... This is a significant departure from the standard of care reasonably expected given Dr Hasil's level of training and experience." 58Dr Bland was also asked to assume that the comments Patient C alleged that the respondent made were correct. (She alleged he called her "horse woman", "whore" and "slut"). Dr Bland stated: "The comments attributed to Dr Hasil are inappropriate and cannot be justified under any circumstances. I am severely critical. ... This is a significant departure from the standard of care reasonably expected given the respondent's level of training and experience." 59In respect of Patient M, Dr Bland indicated that he had mild criticism regarding the respondent's communication with Patient M. Patient M alleged that when she asked the respondent if the baby was coming, he said "no, but you have just given birth to a family of haemorrhoids". 60The HCCC requested Dr Bland to indicate whether or not "this falls significantly below the standard reasonably expected given Dr Hasil's level of training and experience". He was mildly critical, but stated that his care for the patient did not fall significantly below the standard, given the respondent's training. 61Dr Bland's complete response to the further questions was: "Q: Please comment on Dr Hasil's communication with [Patient M] during her labour and delivery. A: The quotations attributed to Dr Hasil are for the main consistent with statements made to women in labour when trying to establish rapport and encourage. The comment about haemorrhoids was inappropriate given the lack of relationship but was probably accurate. Dr Hasil was clearly unsuccessful in trying to engage [Patient M]. I am mildly critical. His care does not fall significantly below standard reasonably expected given Dr Hasil's level of training or experience. Q: Please comment on Dr Hasil not administering further analgesia or anaesthetic during the episiotomy repair. A: [Patient M] had an epidural in situ for the delivery which involved some manual technique I am not sure about; this precipitated 'extreme pain' - previously defined by [Patient M] as 'on a scale of 1 to 10... being 100'. In this circumstance I would think either a top-up of the epidural or some local infiltration would have been the norm. I am moderately critical of Dr Hasil - one assumes the repair work would be less painful than the delivery, hence 'moderately'. However failure to respond to the patient's needs means his care falls significantly below standard reasonably expected given Dr Hasil's level of training or experience." 62The HCCC also asked Dr Bland to provide a further opinion as to whether the standard of Dr Hasil's communication, documentation and lack of insight amounted to a significant departure from the standard reasonably expected. Dr Bland stated: "Regarding Dr Hasil I am severely critical of his communication, documentation and lack of insight. I am concerned regarding the possibility of deficits in his clinical skill and judgement but would need closer review of his practice to define these. With regard to his communication, documentation and personal insight, Dr Hasil falls below the standard reasonably expected given his level of training or experience." 63The HCCC sought Dr Bland's opinion in respect of complaints made by Patient A, Patient B, Patient F, Patient I, Patient L, Patient N and Patient O. 64After a detailed consideration of each of the patients' complaints, Dr Bland's conclusion in his report dated April 2009 was: "From my original report I extract: Dr Hasil is an unpopular doctor who has upset a lot of people. He is working in an 'Area of Need' because no-one else would go there. I assume he is an Overseas Trained Doctor and he is working in provincial Australia which is less cosmopolitan than, say, Sydney. He is a poor documenter - his hand writing is challenging, he provides only the barest details and frequently leaves others to write things up for him the third person. He is a poor communicator who seems to be trying to fit in by using colloquial but often inappropriate language.' This still stands. His decision-making continues to appear logical and justifiable; there are always several ways to address problems in medicine and Dr Hasil's practice appears within the normal range. His clinical skills seem reasonable - despite the HCCC seeking complaints, only one of these 14 cases appears to have had major untoward sequelae. One wonders how many 'nice chaps' would bear up under such scrutiny. When selecting trainees and consultants, one seeks certain attributes: knowledge, skill, qualification and 'nice chap/lady'. In Australia in the past we have had a good pool from which to choose; as a result must applicants had to have the first three in order to just apply, so that the discriminatory criterion was the 'nice chap/lady' factor. Times are changing and the well is drying up. There are fewer people wanting to do the job - particularly in the field of Obstetrics and Gynaecology and particularly in the provincial setting. We are moving to the acceptance of practitioners who do not have ticks against all criteria. If one is to accept a cross in one of the boxes, it is safest if it is in the area of 'nice chap/lady'. Some issues need to be put to rest, specifically that of alcohol consumption, wearing gloves and the surgical perineal repairs. I have commented in my Responses on the use of alcohol when on-call. It is accepted as reasonable practice by the Medical Board, providing it is not excessive. None of the complainants suggested Dr Hasil was out of control or slurring his speech or unsteady of gait; no-one has performed a breath test or a blood alcohol level; the statements from the midwifery staff deny the 'smelling of alcohol' assertion. This innuendo is not helpful. The comments of 'I don't recall if he was wearing gloves' are similarly full of implication but short on substance. Dr Hasil has been observed daily by fellow health professionals but there is no flood of complaint and accusation from that quarter. The comfort and success of a perineal repair are certainly influenced by the surgeon doing the repair. However they are also dependent on the tear itself - its size, direction and complexity. Of the six perineal repairs, Dr Hasil had control of two - when he performed an operative delivery. The other four were following spontaneous deliveries under midwifery control - Dr Hasil was called post-delivery 'to fix things up'. Some of the responsibility for the long term sequelae must sit with the accoucheur. Dr Hasil's responses to the HCCC are consistent with the complaints and reflective of his personality. In the face of fourteen people suggesting his behaviour is rude and his comments inappropriate, he simply denies the accusation. On the evidence presented his medicine is adequate but his people skills are not. The solution is to address this inadequacy with a retraining of these skills but his lack of insight would make such a program challenging and likely to fail. The extrapolation is that a reasonable practitioner will be lost to the profession which is short of clinicians and there is a lose:lose situation. In summary, Dr Hasil is a poor communicator and documenter. He does not engage well with patients although the midwifery staff seem more accepting of this aspect of the man. In these attributes he is significantly below standard and invokes strong criticism. His clinical work is reasonable and safe in the cases presented and from this perspective I am not critical - he is working in an isolated circumstances in an unpopular position and providing an adequate, albeit not warm and fuzzy, service." 65A further report was sought by the HCCC from Dr Bland in respect of complaints made by Patient H and Patient K which in summary related to the respondent's manner and that he was rough. 66After considering the complaints, Dr Bland's conclusion in a report dated April 2009 in respect of these two patients was: "Dr Hasil's care is not ideal - hence the complaints. However his short-comings relate more to process and communication than bad medical practice - decision-making amd (sic) technique. On that basis I am critical but his care does not fall significantly below standard." Expert opinion - Complaint three 67Associate Professor Wayne G J Reid, Clinical Neuropsychologist, provided a neurological assessment and report to the HCCC in respect of the respondent's history of alcohol abuse and traumatic brain injury. Associate Professor Reid's summary and assessment contained in his report dated 22 November 2011 read: "Mr Hasil is a 56 year old medical practitioner whose name has been removed from the register of medical practitioners on 11 April 2009. He is currently under investigation in relation to complaints about his medical practice. On neuropsychological assessment he was found to show a decline in his overall intellectual functioning from his premorbid estimate where he now functions in the average range whereas previously it is estimated he was of at least superior intellect. Impairment in his cognitive functioning was also identified in his frontal executive skills affecting his conceptual abilities, adaptive functioning, planning and organisational skills and ability to think quickly and flexibly. In the context of his history it seems the most likely cause of his frontal executive deficits is the head injury he sustained in October 2009 where he was reported to have suffered bifrontal contusions, a traumatic subarachnoid haemorrhage and required bifrontal craniotomy. In addition Mr Hasil has a past history of alcohol abuse although he reports that he has drunk very little alcohol over the last two years. If one accepts this and considering his past reported drinking history it seems unlikely that alcohol abuse is responsible for his current cognitive problems. Furthermore there has been a further decline in his social functioning where he lives in an isolated boarding house environment and spends what appears to be considerable time wandering the streets. Considering the nature and extent of his higher cognitive deficits it is felt he is impaired in regard to his neurocognitive functioning and his ability to practice medicine is currently compromised. It is recommended Mr Hasil have further rehabilitation, psychological intervention and referral to a rehabilitation provider for assistance in finding employment in the open job market. Furthermore it is recommended he be referred for follow up neuropsychological assessment in 12 months time following a period of intensive rehabilitation and his case be referred back to the Medical Council for review of his capacity to function as a registered medical practitioner under the Impaired Registrants program." Consideration Complaint one 68We turn to consider the particulars of Complaint one which were not admitted by the respondent. Patient A 69Patient A made a complaint to the HCCC dated 13 August 2008, apparently after being contacted by the HCCC. There was no evidence of any earlier complaint. 70Patient A went into labour on the evening of 28 October 2001 and gave birth on 29 October 2001. Relevantly, her evidence was that the respondent: "... grabbed my ankles and pulled me down the bed very forcefully and he pushed my knees apart, again very forcefully. Dr Hasil did not say anything to me at this time. Dr Hasil then forcefully wiped a thing like a baby wipe across my vagina. I think it was an antiseptic wipe because I remember that it stung badly. He was very rough." 71Patient A said she told the midwife that she found the respondent to be very rude. The midwife told her that she could make a complaint at the office. However, she did not make a complaint at this time, although she recalled mentioning it to her doctor at a later time. "Particular 2: 2. On or about 29 October 2001, the practitioner was rude, rough and/or disrespectful to the patient during the course of treatment." 72Patient A's partner was present during the birth. In a statement dated 13 August 2008, he said: "At the time I was a bit overwhelmed with everything, but looking back on it it was very disturbing because Dr Hasil was very rough and I remember the look on [Patient A's face]. It looked like she was in pain and very uncomfortable when Dr Hasil wiped her..." 73Patient A's partner could not remember the respondent saying anything "before he started or afterwards." He found the respondent to be "pretty arrogant towards us." 74The cousin of Patient A was also present during the birth as her support person. Her evidence in a statement also dated 13 August 2008 was: "The doctor was standing at the end of the bed and I remember seeing the needle and thread in his hands. [Patient A] slammed her legs together and said something like 'I can't, I can't, it hurts too much.' The doctor roughly pushed [Patient A's] legs apart, and said something like 'stay still, this needs to be done'... ... The doctor did not display any empathy or sympathy towards [Patient A] or acknowledge how she was feeling." 75There is no record of complaint that the respondent was rude, rough and/or disrespectful to Patient A in the clinical notes regarding the birth of Patient A's child. 76The respondent denied that he was rude, rough and/or disrespectful to Patient A during the course of her treatment. The Tribunal is mindful that this particular relates to the conduct of the respondent who was treating Patient A after she had given birth and who, based on the evidence, was clearly visibly and emotionally tired. 77The evidence of Patient A's cousin, which is based on her recollection of events that occurred apparently seven years earlier, is that the respondent roughly pushed Patient A's legs apart. Patient A's evidence was that the following day she believed the respondent had been "too rough with me". 78In the Tribunal's view, there is insufficient evidence to make a finding that the respondent was rude and/or disrespectful. Although there is evidence from Patient A that the respondent forcefully pushed Patient A's legs apart and was very rough, Patient A's cousin's evidence was that she had slammed her legs together. It must follow that the respondent was required to use some force to push Patient A's legs apart. Her partner's evidence was he was "a bit overwhelmed ..., but looking back ... Dr Hasil was very rough". His evidence was in respect of an event which occurred almost seven years ago. He provided no detail as to why he formed the view the respondent was very rough, apart from the look on Patient A's face when the respondent wiped her. 79In light of the respondent's denial and relying upon the medical expertise provided to the Tribunal by its medical members, the Tribunal is unable to reach the standard of satisfaction required to find that this particular has been established. Patient B 80Patient B made a complaint to the HCCC by email dated 24 October 2008. Patient B's statement dated 3 December 2008 was tendered. 81Patient B, a registered nurse and midwife, gave birth to a son on 27 November 2001. She recalled that the respondent was wearing gloves whilst he carried out this procedure. Her evidence was that she felt the respondent was not very empathetic. She did not remember the respondent saying anything to her after he had completed the procedure and before he left the room. "Particular 3: On or about 27 November 2001 and 28 November 2001, the practitioner provided medical treatment to Patient B and: (a) The practitioner failed to record sufficient information concerning the patient's care and treatment; and/or (b) On or about 27 November 2001, the practitioner used unacceptable and/or inappropriate language to the patient during the course of treatment." 82Ms Alison Fuglsang, a registered nurse and midwife employed at the Lismore Base Hospital in 2001, provided a statement to the HCCC dated 4 December 2008 in respect of Patient B. Relevantly, Ms Fuglsang's evidence was that she did not recall that there was anything unusual about Patient B's perineal suturing. She stated that she had worked with the respondent "quite a bit" and she had never had a problem with him. She stated: "He was prompt and he made decisions quite clear. I quite liked his style, he was polite and direct with me. I never observed anything that I considered warranted a complaint about his clinical conduct." 83Ms Fuglsang stated that she never smelt alcohol on the respondent when he was on duty, nor did she ever see him "present as being hung-over or smelling of stale alcohol on duty." 84The Tribunal has perused the clinical records concerning Patient B's care and treatment. The Tribunal agrees with the conclusions of Dr Bland that the respondent's documentation is below standard. 85Particular 3(a) is proved. 86The evidence in respect of Particular 3(b) is that the respondent "was not very empathetic" and "I don't remember him saying anything to me after he finished". 87There is insufficient evidence that would enable the Tribunal to reach the standard of satisfaction required to find Particular 3(b) established. Patient C 88Patient C forwarded a letter of complaint to Lismore Base Hospital dated 1 September 2003. Her statement to the HCCC was dated 21 May 2008. Patient C gave birth on 15 July 2002. Relevantly, Patient C states that after she gave birth, the respondent came into the Birthing Suite, but did not introduce himself. She stated that when the respondent came into the room, he laughed at her and said "spread your legs so I can clean up this mess!" 89In her statement dated 21 May 2008, she made no reference to the respondent laughing when he instructed her to "spread your legs". 90In Patient C's letter to the Hospital of 1 September 2003, Patient C makes no reference to the respondent's failure to wear gloves when he commenced to suture her. However, in her statement of 21 May 2008, the respondent stated that "he wiped me from the top of my genitals down to my bottom" and that "he was not wearing any gloves when he did this". 91Patient C's evidence in her 2008 statement was that he did not put any gloves on for the entire procedure. Patient C stated that the respondent had not even finished the first stitch before she kicked him in the chin and across the room away from her. She recalls saying to him: "Give me some local and some gas before you come near me. As Dr Hasil was getting up off the ground I heard him say to the midwives. "Stirrup the bitch". He said this in what I would describe as a snarly voice. He was rubbing his jaw with his left hand." 92Patient C's evidence was that the respondent said to her "You Australian women don't know how to have babies". She also recalled that he made some comment about "horse woman" as he was walking towards her. She stated whilst he was undertaking the stitching, he was making comments like "horse woman, this will teach you to kick the doctor, whore, slut". "Particular 4: Between about 14 July 2002 and 21 July 2002, the practitioner provided medical treatment to Patient C. The Practitioner: (a) Failed to record sufficient information concerning the patient's care and treatment; (b) Performed a perineal repair without wearing gloves; and/or (c) Made inappropriate comments to the patient during the course of that repair." 93Ms Julie Whiteley, a registered nurse and midwife who was present during the birth of Patient C's son provided a statement to the HCCC dated 15 August 2008. She had been asked to respond to a series of questions by the HCCC. Her statement was based on perusing the medical records relating to Patient C's admission as she had no clear recollection of that birth. Relevantly, her statement read: "8. It is usual practice to have a midwife present during any repairs to the perineum although midwives will have to leave the birthing room at times to retrieve equipment or answer the telephone. I usually allow the woman to continue to access the nitrous oxide after she has been given a local anaesthetic. The local anaesthetic is always painful when being injected, unless the woman has had an epidural, and sometimes more local anaesthetic is required after suturing has begun. 9. I have no independent recollection of Dr Hasil suturing [Patient C]. I am unsure whether [Patient C] needed additional local anaesthetic, as I can not now separate what I have read in the newspaper and what I remember. 10. Q: Do you remember seeing [Patient C] kick Dr Hasil off his stool? 11. A. No, I don't. 12. Q: Do you remember Dr Hasil directing you or any other midwife to "stirrup the bitch"? 13. A: No. 14. Q: Have you ever heard Dr Hasil use language like that to other patients? 15. A: No, but I have on one occasion heard him say "Put your fat arse on the bed." 16. Q: When [Patient C] was having her perineum sutured, did you hear him call her a slut or a whore? 17. A: I am sure if he had said those things I would remember, but I really don't remember. 18. Q: Did you hear Dr Hasil call [Patient C] a horse woman? 19. A: No. 20. Q: Do you remember whether Dr Hasil was wearing gloves when he was wiping down [Patient C's] genital area and suturing her? 21. A: No. But I can't imagine that Dr Hasil would not have had gloves on. The only time that you might not put gloves on is if the baby is coming so quickly that you do not have enough time to put gloves on. This would be unusual, on most occasions you have enough time to put gloves on before the baby is delivered. 22. RN Christine Gibson is renowned for her report writing and the detail included in her records. If something untoward had happened, I am confident that RN Gibson would have included full details in her report. 23. I found Dr Hasil to be really good to work with. He was always polite and helpful, except if he took a dislike to a patient or a colleague, when he would change his behaviour and he could be rude and abrupt. 24. I know a lot of women complained about Dr Hasil but a lot of women thought he was wonderful as well. I don't know why, perhaps it was his manner, his tone and his use of the English language. Dr Hasil didn't like it when you challenged or questioned his authority and decisions that he had made. If he asked for something to be done, he expected it to be done. He often didn't fully explain why things needed to happen when they needed to happen to patients, and sometimes this was because it was an emergency situation of course." 94Ms Trish Cronan, the Nursing Unit Manager of Women's Care in a statement dated 14 October 2008, stated that she investigated that Patient C was forcibly placed in stirrups by midwifery staff at the direction of the respondent. 95Her evidence was that she found absolutely no evidence to substantiate the claims by Patient C. She said she found the allegations to be very unusual because the primary carer in this circumstance is one of the kindest midwives she knew. She said that she particularly focused on complaints regarding the nursing issues. 96Ms Elizbeth Clarke, the Director of Nursing, also provided a statement. This statement was directed to the apparent lack of a response to Patient C's 2003 complaint. The failure to respond to her complaint apparently only came to light after February 2008. 97In a response to a complaint during the investigation undertaken by the HCCC, the respondent stated that the allegation that he made inappropriate comments to Patient C during the course of the perineal repair was that "my language even does not know such combination of words. I do not use this type of vocabulary". In answer to the HCCC's question inviting any other comments that the respondent believed were relevant to its investigation of the complaint made by Patient C, the respondent said: "Midwife Gibson assisting me by suturing, is a very pedant (sic) and especially in keeping her notes - any similar incident would be recorded." 98The respondent denied each of the particulars. In respect of particular 4(a), the Tribunal agrees with the opinion of Dr Bland and is comfortably satisfied that this particular has been proved. In respect of particular 4(c), the respondent denied this particular and stated that he had always worn gloves for both his own and the patient's protection. The Tribunal notes that Patient C did not make any reference to the failure of the respondent to wear gloves during the perineal repair in her letter of complaint which was significantly more contemporaneous than her statement to the HCCC dated 21 May 2008. Her letter of complaint was made approximately two months before she expected to return to the Hospital to give birth to another child. The first reference to the respondent's failure to wear gloves appeared in Patient C's statement dated 21 May 2008, some six years after the procedure. Ms Whiteley's evidence was that although she could not remember whether the respondent was wearing gloves or not at the time he undertook the procedure, she could not imagine that he would not have been wearing gloves. Furthermore, in light of Patient C's imminent return to the Hospital to give birth, it would have presumably been an important matter to raise. In light of this evidence, the Tribunal is unable to reach the standard of satisfaction required to find that this particular has been established. 99Similarly, in light of the lack of corroboration that the respondent made inappropriate comments to Patient C, including Ms Whiteley's evidence that "I am sure if he had said those things I would remember", the Tribunal is again unable to reach the standard of satisfaction required to find that Particular 4(c) has been established. Patient E 100Patient E gave birth on 13 August 2002. "Particular 6: Between about 9 August 2002 and 15 August 2002, the practitioner provided medical treatment to Patient E: (a) On 9 August 2002, the practitioner failed to record his treatment of the patient at the antenatal clinic; and/or (b) On 13 August 2002, the practitioner failed to record sufficient information concerning the patient's care and treatment." 101The Tribunal was only provided with the clinical records of Patient E for 13 to 15 August 2002. There were no records provided for Patient E in respect of 9 August 2002 and no evidence or submissions were provided to the Tribunal to explain why such records were not provided. In such circumstances the Tribunal is unable to reach the standard of satisfaction required to find that Particular 6(a) has been established. 102Although the respondent denied Particular 6(b), having perused the clinical records, we agree with the opinion of Dr Bland that the respondent's documentation failed to record sufficient information concerning the patient's care and treatment. The Tribunal is satisfied that this particular has been proved. Patient F 103Patient F gave birth on 8 September 2002. "Particular 7: Between about 7 September 2002 and 10 September 2002, the practitioner provided medical treatment to Patient F. The practitioner made two entries in the medical record progress notes. The practitioner: (a) Failed to clearly record that he was the person who made the entries; (b) Failed to record the time of one of the entries; and/or (c) Failed to make a record setting out the discussion with the patient concerning risks or alternative interventions." 104The respondent denied this particular. The HCCC relied on the clinical notes to establish this particular and called no additional evidence. The Tribunal has perused the clinical records regarding Patient F which contain references to "Hasil" and the respondent's signature throughout the notes. 105The Tribunal is not satisfied that this particular has been proved. Patient I 106Patient I made a complaint by email to the HCCC dated 16 October 2008. A statement dated 2 December 2008 was tendered. 107Patient I presented at the Anti-Natal Clinic at Lismore Base Hospital on or around 28 or 29 March 2003. She was seen by the respondent, who did not introduce himself. Patient I had provided the respondent with a letter from the Mater Hospital Brisbane dated 26 March 2003, which stated that she could deliver at Lismore Hospital and that the clinical findings were not going to affect any delivery arrangement. Such findings related to the unborn child. The respondent read the letter and advised that he wanted Patient I to attend for an induction on 1 April 2003. She was admitted to the Hospital at 2000 hours. Shortly thereafter, the respondent inserted a cannula and set up a drip. At approximately 0530 hours or 0600 hours the following morning, her husband arrived. The respondent attended at about 1000 hours and undertook an examination wearing gloves. Patient I was only 2cms dilated. Approximately 2 hours later, Patient I was provided with pethidine after her waters had been broken because she was in pain. 108The respondent again saw her at 1800 hours on 3 April 2003. He advised that she was only 2.5cms dilated and that she would need to have an emergency caesarean delivery. She was taken back to her room and seen by an anaesthetist who gave her an epidural block. She was then taken to the theatre where a caesarean birth was undertaken. "Particular 11: Between about 1 April 2003 and 3 April 2003, the practitioner: (a) Failed to introduce Syntocinon at a reasonable time to Patient I; and/or (b) Otherwise communicated with her during the course of treatment in a way which was inappropriate and/or unacceptable." 109The respondent denied both particulars. Dr Bland responded to the following question from the HCCC in his report of 7 April 2009 regarding the care of Patient I: "Q: Given Patient I's induction of labour started on 1 April 2000, was it reasonable to wait until the morning of 3 April 2000 before Dr Hasil made the decision to perform an immediate caesarean section? A: The induction was indeed drawn out over time. It is common practice to prime a cervix overnight with Prostin , as occurred here, with amniotomy the following morning, as occurred here. Normally Syntocinon would be introduced at the time of amniotomy. In this case the Syntocinon was started "late" by 1100 hours and I cannot justify that delay. One needs to allow a reasonable trial of Syntocinon and the time frame until delivery was reasonable." 110The medical expert members of the Tribunal were of the view that the responsibility for introducing Syntocinon should have properly been that of the Visiting Medical Officer at Lismore Base Hospital and not the respondent. Therefore, in these circumstances, the Tribunal is unable to reach the standard of satisfaction required, bearing in mind the evidence relied upon by the HCCC to find that this particular has been established. 111In respect of Particular 11(b), the only criticism of the respondent's communication by Patient I appears to be that he did not introduce himself when he first attended upon Patient I on 28 or 29 March 2003. 112Dr Bland's opinion was that the respondent showed poor communication and patient engagement, though his clinical work continued to be reasonable. In light of the evidence relied upon by the HCCC, including the opinion of Dr Bland, the Tribunal is unable to reach the standard of satisfaction required to find that particular 11(b) has been established. Patient J 113The evidence appears to disclose that on or around 4 March 2008, Patient J was asked by the HCCC to provide a statement in respect of the birth of her son which had occurred on 21 August 2003. 114On 20 August 2003, Patient J presented to her general practitioner with severe headaches, blurred vision and swollen face, hands and feet. She was sent immediately to Lismore Base Hospital after being diagnosed with pre-eclampsia. She had dangerously high blood pressure. Upon arrival at the Hospital she was examined by the respondent who agreed with her general practitioner's diagnosis and stated that "the only way to make her well (i.e. bring down her blood pressure) was to deliver the baby immediately." 115Medical procedures were then put in place which included Patient J receiving a chemical to induce her labour and subsequently being given an epidural. Patient J was monitored by the respondent and nursing staff during this period. After vomiting she was transferred to the theatre where the respondent informed her that he would endeavour to deliver the baby using forceps. This was unsuccessful and when it was realised that Patient J could not deliver the baby naturally, the respondent delivered the baby by caesarean section. As Patient J was in pain she was given a general anaesthetic. Patient J experienced a traumatic labour and a long and difficult recovery involving around 10 days in Hospital. After the birth, she received a blood transfusion and experienced post-natal depression, Patient J was not satisfied that all due care was taken by the respondent and his colleagues, the anaesthetist and registrars to minimise her pain and suffering given the condition that she was suffering when admitted to Hospital. She believed that she should have been taken directly for a caesarean. "Particular 12: On or about 20 August 2003 and 21 August 2003, the practitioner provided medical treatment to Patient J. The practitioner failed to record sufficient information concerning the patient's care and treatment." 116The respondent denied this complaint. Dr Bland has no criticism of the management of this case. However, in his opinion, the respondent's documentation was below standard. The Tribunal has perused the clinical records of Patient J and agrees with the opinion of Dr Bland. The Tribunal is satisfied that this particular has been proved. Patient K 117Patient K lodged a complaint with the HCCC on 1 December 2008 in respect of the birth of two of her babies which occurred in November 2001 and in November 2003. Patient K made no complaint about the respondent at the time of the birth of either of these children. Patient K described the respondent as rude and arrogant. She described having a discussion concerning a caesarean with the respondent and why she should or should not have one. This resulted in the respondent yelling at her and telling her she was a liar and that she was not reasoning with him. Patient K also stated that when she was taken to surgery prior to the delivery of her second baby, the respondent: "... took one look at me and laugh (sic) at the fact that I had to be shaved down below first how embaseing (sic) was that in front of everone (sic)". 118She found this embarrassing as it occurred in front of students who were being shown how to deliver a baby by the respondent. "Particular 13: On or about 10 November 2003, the practitioner provided medical treatment to Patient K. The practitioner's first entry in the medical record progress notes does not clearly record that he was the person who made the entry. Particular 14: On or about 10 November 2003, the practitioner made rude comments to, yelled at and/or laughed at Patient K during the course of treatment." 119The respondent denies each of these particulars. In respect of particular 13, a signature appears on the clinical notes dated 10 November 2003, which the respondent says is his signature. Dr Bland concluded that in summary, the respondent's notes were adequate in content, but lacked formal annotation. This particular has not been established. 120In respect of Particular 14, there is no evidence in the statement of Patient K that the respondent made rude comments or yelled at her. Patient K states that the respondent laughed because her pubic area had to be shaved. This is denied by the respondent. In view of the substantial delay in bringing any complaint in respect of the respondent's conduct, the Tribunal is unable to reach the standard of satisfaction required to find that this particular has been established. Patient M 121Patient M made a handwritten complaint in respect of the respondent on 12 May 2008. She subsequently provided a formal statement dated 23 May 2008. Patient M was admitted to Lismore Base Hospital on 8 February 2004. She gave birth on 9 February 2004. "Particular 17: On or about 8 February 2004 and 9 February 2004, the practitioner provided medical treatment to Patient M. The practitioner failed to record sufficient information concerning the patient's care and treatment." 122The Tribunal has perused the clinical notes in respect of Patient M and is comfortably satisfied that this particular has been proved. Patient N 123Patient N lodged a handwritten complaint with the HCCC dated 14 October 2008. She provided a formal statement dated 10 December 2008. Patient N gave birth to a son in October 2004. She made no complaint in respect of the care provided to her by the respondent at that time. "Particular 19: Between 11 October 2004 and 19 October 2004, the practitioner provided medical treatment to Patient N. The practitioner: (c) Failed to record sufficient detail of his repair of an episiotomy." 124The respondent denies this particular. Dr Bland's opinion was sought in respect of the respondent's standard of documentation in respect of the episiotomy. Dr Bland stated: "His entry regarding the delivery is not identified or time denoted. I have difficulty reading his script. The content is very brief and does not reflect much communication with the patient. His documentation is poor." 125The Tribunal has inspected the clinical records in respect of the repair of the episiotomy and finds that this particular has been proved. "Particular 21: The practitioner was convicted on 26 September 2008 of an offence of driving with the prescribed concentration of alcohol. The practitioner failed to notify the NSW Medical Board, in writing and within 7 days of 26 September 2008, of the fact that he had been convicted of the offence, contrary to section 127B of the Act." 126The respondent admitted this particular. Summary of findings 127In addition to the particulars admitted by the respondent set out earlier in this judgment, the Tribunal has determined that Particulars 3(a), 4(a), 6(b), 12, 17 and 19(c) have been proved. 128Complaint one alleged that the respondent is guilty of "unsatisfactory professional conduct" within the meaning of s 36(1)(a), s 36(1)(b) and s 36(1)(m) of the Act and/or "professional misconduct" within the meaning of s 37 of the Act. The Tribunal finds that the respondent failed to comply with the Medical Practice Regulation, in particular, Reg 6 Sch 2 cl 1 and cl 2. 129The Tribunal finds that in respect of Complaint one, the respondent is guilty of unsatisfactory professional conduct within the meaning of s 36(1)(b). This section provides: "36 Meaning of "unsatisfactory professional conduct" (1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following: ... (b) Contravention of Act or regulations Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. ..." 130As was observed by the Court of Appeal in Health Care Complaints Commission v Karalasingham at [27]: "... Because professional misconduct is defined in s 37 of the Act to mean 'unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register', it would have been desirable to indicate in the pleading whether each of the 11 paragraphs of particulars was said to constitute professional misconduct on its own, or whether some combination of circumstances was necessary to satisfy the higher test." 131Such an approach would have assisted the Tribunal in respect of its determination of Complaint one. However, when properly considered the Tribunal finds that the conduct does not amount to professional misconduct. 132The Tribunal is not satisfied to the requisite standard of proof that the HCCC has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by the respondent was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. 133Similarly, the Tribunal is of the view that the respondent had "not engaged in improper or unethical conduct relating to the practice of medicine". 134Whether the degree of seriousness is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. It has also been said that the conduct, or the subject of the complaint, has to be of such a departure from the accepted standards of the medical profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence: Qidwai v Brown [1984] 1 NSWLR 100 at 105 (Priestley JA, with whom Samuels JA agreed); Ex parte Meehan; Re Medical Practitioners Act [1965] NSWLR 30 at [35] - [36]. 135In light of these findings, the Tribunal will hear submissions from the parties in respect of what protective orders should be made. Complaint two "The practitioner is not of good character." 136In Health Care Complaints Commission v Wingate [2007] NSWCA 326; (2007) NSWLR 323, the Court of Appeal observed that this Tribunal in re Re Dr Richard Wingate [2007] NSWMT 2, had correctly identified the principles in determining whether a person "is not of good character". 137The Tribunal set out the principles at [72] - [75] as follows: "[72] The issue of whether a person is "not of good character" has been considered in a number of High Court and NSW Court of Appeal cases: McBride v Walton (unreported, NSWCA, 15/7/94, BC9402907); Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357; A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1; Re Davis (1947) 75 CLR 409; Bannister v Walton (unreported, NSWCA, 30/04/92, BC9201911). [73] We summarise the principles that can be derived from those cases as follows: (1) Good character involves a test of "ethical fitness" which in turn involves enduring moral qualities (per Dixon J in Re Davis (1947) 75 CLR 409 at 420) and moral standards, attitudes and qualities, not just general reputation: Tziniolis and per Handley JA in McBride at 7. It is not just a summation of acts alone but relates to the qualities of a person: Tziniolis at 301. "The judgment as to character must be arrived at by giving due weight to all features": at 300-301. (2) The public interest, ie protection of the public from harm, is paramount and the relationship of doctor and patient is "one which touches matters such as trust, confidence, confidentiality and right conduct". "It is necessary that the public be protected against those who, though having the appropriate clinical skills, do not have the character appropriate for the opportunities and privileges which the right to practise gives": per Mahoney JA in Bannister v Walton at 11. This links to the point that "Medicine was to be an honourable as well as a skilled and learned profession" per Handley JA in McBride . (3) Reputation of a person is relevant but not the exclusive test. "Good" is used also in the sense of moral strength and "a man's conduct in respects known only to his intimates can evidence his character": Tziniolis at 330. (4) The burden of establishing that the practitioner is not of good character rests on the complainant. With matters asserted in mitigation the onus rests on the practitioner. (5) The standard of proof which is required for a finding that a practitioner is not of good character is "comfortable satisfaction" on the balance of probabilities, to indicate a level of satisfaction that takes into account the serious consequence of an affirmative finding: Bannister v Walton at 711. If it is a matter in mitigation the standard imposed would be, we infer, on the balance of probabilities, but without requiring "comfortable satisfaction". (6) Consideration must be given as to the nature, extent and seriousness of the impugned conduct, whether for example it is abhorrent and whether it was an isolated incident or involved conduct over a long time. (7) Having classified the impugned conduct, the Tribunal should then look at all the other evidence relevant to character - evidence of good fame and character, and service to the community past and present. (8) In coming to a conclusion as to whether or not the practitioner is "not of good character in the context of fitness to practise medicine", the Tribunal must consider: "(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other conduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner." Handley and Powell JJA in McBride v Walton (unreported, NSWCA, 15/7/94, BC9402907) approved of the approach taken by the Tribunal whose words we have cited above: see Handley JA at 25-26, Powell JA at 52. (9) It was said by Kirby P (as he then was) in his dissenting judgment in McBride , that: (a) good character has to be assessed in the context of a medical practitioner and in relation to removal from the register and morality is relevant only so far as it relates to the person's performance of the duties of medical practitioner; (b) not every flaw of character, even a flaw relevant to a medical practitioner's entitlement to practise, will lead to a finding of not of good character; (c) a single act or even a connected series of acts, even if pertinent to medical practice, may not be sufficient to establish lack of good character; (d) wrongdoing by a practitioner extraneous to his or her profession may demonstrate want of good character, but only if the conduct in question showed what can be taken to be a characteristic of the individual rather than an isolated lapse which is uncharacteristic to the practitioner or irrelevant to the practice of the profession. [74] The observations in [72](8) may be seen as emphasising that personal morality, for example sexual promiscuity, is not the type of character defect with which the Tribunal is concerned. The statements, particularly (a) and (d), however, could be seen as sitting uncomfortably with the principles in (1), (2) and (3); and if that is so we regard the principles outlined in (1), (2) and (3) as binding on this Tribunal, rather than what was said by Kirby P in dissent. [75] In McBride v Walton (unreported, NSWCA, 15/7/94, BC9402907) the Court of Appeal (Handley JA and Powell JA, Kirby P dissenting) held that the appeal from the Tribunal's decision to deregister Dr McBride because of his lack of good character (based upon his engaging in false and deliberate reporting of scientific experiments and persisting with those claims) should be dismissed. At 30-31 Handley JA said, having indicated his agreement with the approach of the Tribunal, and in dealing with the course regarded as appropriate by the dissenting member of the Tribunal and Kirby P, namely not to remove Dr McBride from the register notwithstanding a finding of "not of good character": "I find myself unable to take this course. Parliament made a legislative judgment that persons who were not of good character should not become registered as medical practitioners. It also provided that lack of good character should be a ground of complaint against a registered medical practitioner. In these circumstances I have difficulty in seeing how the Tribunal could properly decide to leave a medical practitioner on the Register after it had found that at the time of its decision he or she was not a person of good character in the context of fitness to practise medicine." See also Powell JA at 60-61." 138In Health Care Complaints Commission v Karalisingham the Court of Appeal referred to the principles derived from McBride v Walton [1994] NSWCA 199 and stated at [54] - [55]: "[54] This approach, however, cannot be accepted. First, the statement of principle, involving six factors was not laid down by this Court in McBride v Walton . Rather, it was the approach adopted by the Tribunal in that case which was held by both Handley JA and Powell JA not to be vitiated by any legal error. More importantly, the majority judgments gave no support for the conclusion that the approach adopted by the Tribunal was to be substituted for the language of the statute. Properly understood, it provides guidance by way of a checklist of considerations, which may be of varying relevance depending on the circumstances of the case and which may not be comprehensive. It is not to be treated as if expressed in the statute. Thus with respect to the third factor, an episode may well involve a sequence of events and not a single event. To describe an episode as "isolated" does not mean that it has to be one or a small number of events (although that might be satisfied in the present case), nor does it say anything specific about the time period. It is merely a way of asking whether particular conduct should be seen as correctly revealing an underlying defect of character, or as aberrant behaviour. Similarly, the third factor sought no more than to judge the particular aspects of misconduct against the background of the practitioner's life and practice, so as to put the misconduct in context. [55] What must be demonstrated by reference to the reasons of the Tribunal is that it misunderstood the nature of the task on which it was embarked. The mere fact that others might make a different factual finding, or describe particular conduct with different epithets is insufficient to demonstrate error of law. However, the Commission's argument rises no higher in the present case. It is a disguised invitation to review an evaluative judgment undertaken by the Tribunal as to the seriousness of the misconduct and the inferences which should be drawn from it in relation to the Respondent's character. It is an invitation which must be declined. The first ground of appeal should be rejected." 139The Court of Appeal also relevantly observed in Health Care Complaints Commission v Karalasingham : "[4] The words "not of good character" do not bear some special or technical meaning but are used in their ordinary meaning. Although determining the ordinary meaning of a word has traditionally been identified as a question of fact, there is no clear distinction between determining the ordinary meaning of a word and the construction of a term whose meaning is established. The construction of a statutory provision will usually involve a consideration of words in their context and the adoption of a construction that will promote the purpose underlying the statute, which will usually involve a question of law: [45]-[46]. Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; R v Brown [1996] AC 543 referred to. (per Basten JA, Giles JA and Bergin J agreeing). ... [45] In order to satisfy the Tribunal that the second complaint was made out, it was necessary for the Commission to demonstrate that the Respondent was "not of good character" at the time of the hearing, for the purposes of s 39(e) of the Act. The concept of "good character", though given statutory recognition, is not one which bears some special or technical meaning: rather, the words are used in their ordinary meaning. Such a meaning has traditionally been identified as a question of fact, not law: see, eg, Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, setting out five general propositions identified by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. However, the joint judgment in Agfa-Gevaert noted that an artificial, if not illusory, distinction was sought to be drawn between determining the ordinary meaning of a word and the effect or construction of a term whose meaning has been established, the former being a question of fact, the latter a question of law. Their Honours stated at p 397: "If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law." ,,, [48] In Tziniolis , where the Court was considering a question of "good character" under the Medical Practitioner's Act 1938 (NSW) reference was also made to various passages in the judgments in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279. Mr Ziems was disbarred as a result of a criminal conviction for manslaughter when he drove a car into a motorcycle and killed the rider. The question was whether he was "fit" to remain a legal practitioner: Fullagar J, quoting with approval the remarks of Jordan CJ in the Court below at 289, and noting the view that "the personal and professional sides of life cannot be dissociated" stated (p 290): "If this is read literally, it goes, in my opinion, much too far. Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister: see, eg, In re Davis (1947) 75 CLR 409. But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former." ... [52] The Tribunal in the present case applied those principles and assessed each of the six factors separately. In considering the first factor, the Tribunal found that "the cumulative particularised misconduct is ... more than errors of judgment ... [but] falls short of demonstrating a defect of character". In relation to the third factor, the Tribunal stated (Reasons, p 38): "While the misconduct particularised occurred over a period of some 9 months, in the absence of evidence of other such misconduct, particularly having regard to the size of the Respondent's practice, the Tribunal is satisfied that the misconduct can properly be considered in context as an isolated episode that is uncharacteristic of the respondent's normal qualities of character." [53] The failure correctly to apply these findings, the Commission argued, revealed error. The Tribunal correctly held that the conduct could not be dismissed as mere errors of judgment. However, the Commission submitted that it incorrectly described the conduct as involving "an isolated episode". This correct finding and the erroneous finding, once corrected, demonstrated that it was not reasonably open to the Tribunal to find that the Respondent was otherwise than "not of good character"." 140It is therefore necessary to apply these principles in order to determine whether the HCCC has proved that the respondent "is not of good character". 141It is accepted that the determination as to good character must be made at the time when the Tribunal is asked to consider the application: see in Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 at 300. However, it was submitted that whilst it is the case that the test of good character is cast in the present tense, the Tribunal was entitled to have regard to past conduct in making an assessment of character: Re Davis (1947) 75 CLR 409 at 416. It was acknowledged by the HCCC that the assessment of good character was complicated by the respondent's head injury. The HCCC relied on the following matters. 142Firstly, the history of criminal offending of the respondent which occurred prior to his head injury. The respondent was convicted in the Singapore Magistrate's Court on 17 July 1995 with the offence of criminal intimidation under s 506 of the Singapore Penal Code, Ch 224 . The victim was the respondent's then wife. The respondent was sentenced to four weeks imprisonment. 143On 8 September 2008, the respondent was convicted of the offence of high-range PCA. The offence occurred on 6 February 2008 and penalty was confirmed on appeal. 144On 26 June 2008, the respondent was again charged with the offence of high-range PCA. He was convicted on 26 September 2008 of this offence. 145On 3 July 2008, the respondent was charged with "common assault" and "obtain money, valuable thing/financial advantage by deception", being one meal and one bottle of wine, namely by sitting down at a restaurant and consuming the meal and wine and walking out without paying. 146The respondent was convicted of each offence on 24 July 2008. He was placed on a good behaviour bond for 12 months, accepting supervision and guidance of New South Wales Probation Service. 147The offences when considered as a whole, could not be seen to be errors of judgment. However, the PCA offences, common assault (the respondent grabbed a waitress by hand and pushed her with both his hands out of the way as he left the restaurant) and the deception offence, occurred whilst the respondent had an addiction to alcohol and was dealing with significant personal issues. His addiction to alcohol, according to the medical evidence (see [184]), appears to be resolved. The offences therefore, including as was submitted by the HCCC, "even perhaps the one in Singapore" should be viewed in this context. According to a medical report of Dr A Petherbridge dated 26 April 2009: "It appears that Roman has in the last few months started to acknowledge that he is an alcoholic and he has taken steps to correct some of his past errors. This has been a particularly dark period for Roman given the difficulties he has faced in a number of work environments, his marriage(s), allegations about his clinical performance ... . I would like to support Roman in the positive steps that he has recently started. However many of these stressors are still unfolding, particularly court processes seeking access to his children and I believe some patient complaints may be still going through formal complaint processes. He is also in the very early stages of his recovery from alcohol abuse ... . ... He is clearly impaired because of his use of alcohol and I do not believe that any conditions that could presently be placed on his registration would be sufficient to ensure he does not return to drinking and place patients at risk..." 148Spigelman CJ (Mason P, Handley JA agreeing) in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [56] discussed the extent to which personal conduct can be said to reflect on professional conduct: "There is authority in favour of extending the terminology "professional misconduct" to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of "professional misconduct" overlaps with and, usually it is not necessary to distinguish it from, the terminology of "good fame and character" or "fit and proper person". 149An example of where the Tribunal has applied these principles is in Re Dr Leonard Ware [2006] NSWMT 11. In that matter, Dr Ware had been convicted of "possess more than three unregistered firearms any one of which is prohibited", two counts of "possess unregistered firearm" and "breach of an apprehended violence order on four occasions". 150Taking into account all of the circumstances of that particular case, which is unnecessary to detail here, the Tribunal was not persuaded to make a finding of "not of good character" in respect of Dr Ware. 151While the offences are clearly serious and cannot in any way be condoned, in the Tribunal's view, they do not rule out his fitness to practice medicine and can properly be considered as isolated episodes that were uncharacteristic of the respondent's normal character. In respect of whether these offences demonstrate that the public and professional confidence may continue to be reposed in the respondent, the Tribunal, particularly taking into account the medical evidence of Dr Petherbridge, is satisfied that he will not engage in such conduct in the future, providing he does not return to an alcohol dependency. 152However, in light of the medical evidence as to incapacity, the respondent's ability to resume medical practice would be dependent upon a determination in respect to whether he suffers from any physical or mental impairment. The Tribunal's determination of this issue will be considered in respect of Complaint three. 153The second factor relied upon by the HCCC that the respondent "is not of good character" relates to Complaint one and the particulars of that complaint. In light of the determination of Complaint one, applying the principles set out earlier in respect of the test of good character, the Tribunal is not satisfied that the HCCC has proved that the respondent is "not of good character" based on the determination of Complaint one. 154The next matter relied upon by the HCCC was the "lack of frankness exhibited by the respondent to the Tasmanian authorities". 155The respondent was conditionally registered as a resident medical officer ("RMO") under the Medical Practitioners Registration Act 1996 (Tasmania) from 15 January 1997 to 30 March 1997. His conditional registration was extended on four occasions up to 13 July 1998. 156In December 1999, the respondent made a further application for conditional registration. As a result of the "tone" of verbal dealings between the Registrar/Chief Executive of the MCT, a police check was undertaken by the Council through the Tasmanian Police. This disclosed the charge and conviction of the respondent in Singapore in July 1995, to which we have earlier referred in this judgment. 157A memorandum from the Registrar/Chief Executive of the MCT to the HCCC, stated that the respondent answered the question "... I have never been charged with a criminal offence, nor are there any criminal charges pending against me" in the negative. 158In December 1999, the MCT informed the respondent that he was not entitled to conditional registration (at that time) because he was a resident of Australia and had not passed the AMC MCQ exam which took effect in July 1998. 159The Registrar, Chief Executive's Memorandum contended that she raised the making of the false declaration with the respondent during a telephone conference. She stated that the respondent continued to deny that he had been convicted and imprisoned in Singapore. It was acknowledged that this was despite his disclosure of the Singapore offence to New South Wales and Queensland Medical Councils. There was no material provided to the Tribunal that the MCT conducted a formal inquiry into the allegation that the respondent made a false declaration. The MCT advised the HCCC that: "Due to the outstanding matters regarding Dr Hasil's previously made false declarations, and his continued denial of such matters, despite documentary evidence to the contrary, Dr Hasil is not considered to be in good standing in this jurisdiction. Dr Hasil would have to face those issues if he sought to restore to the Register in Tasmania. In addition, the Medical Council of Tasmania would take into consideration the report of the New Zealand Health and Disability Commissioner (and any further Australian findings)." 160There was no complaint on file regarding the respondent during his time as an RMO at the Royal Hobart Hospital. 161On 23 March 2001, the respondent made application for temporary registration to the Board. The applicant answered the question: "Q: Have you, at any time, in New South Wales or elsewhere been convicted of any offence?" A: Yes." 162The respondent enclosed a letter dated 22 March 2001, which read: "I was charged in the Magistrate's Court in Singapore on the 17 th July 1995 with the offence of criminal intimidation under Section 506 of the Singapore Penal Code Chapter 224. Evidence was given at the trial to the effect that my former wife and myself were arguing over money and during the course of the argument evidence was given that I went to the kitchen and obtained a knife and threatened my former wife. Although I disputed a lot of the evidence given by my former wife at the hearing, I was found guilty on the 4 th August 1995 and sentenced to four weeks' imprisonment backdated to the 17 th July 1995. I came to Australia on the 17 th August 1995. It has been suggested by the Tasmanian authorities that when initially applying for registration as a Medical Practitioner within the State that I gave a false declaration that I did not make disclosure of this offence. The false declaration that is alleged against me is that I did not concede that I had been convicted of any offence which if committed in Tasmania would or could be punishable by imprisonment. I have sought legal advice in regard to this matter and my Solicitor, Mr. John Avery of Avery Partners, Lawyers of 120 Main Road, Moonah has advised me that I have a proper defence to the suggestion that I made a false declaration in that the answer required at least a knowledge of the law in Tasmania such as to enable a person in my position to make a reasoned response to that question. At no time did I seek to deceive or be other than truthful but given that I had defended the charge in Singapore and I believed the basis of the charge was simply vindictive action on the part of my former wife, I was greatly shocked that I was convicted of the charge. I did not believe, given the circumstances surrounding the incident in Singapore, that this would have been a matter which could or would have been punishable by imprisonment within Tasmania. My solicitor has suggested such an action would more likely have been dealt with under the guidelines for the granting of restraint orders within this State. In addition, since arriving in Tasmania I have continuously sat exams to ensure that there was in impediment (from that point of view) to my obtaining accreditation within Tasmania and indeed within Australia. I hope that this fully explains the situation that has arisen within Tasmania and with the Medical Council of Tasmania and I look forward to an early response in regard to my application for registration within your State." 163The respondent was interviewed by the Registration Committee of the Board on 4 May 2001. The interview report considered the contention that the respondent had made a false declaration in his application for a position at the Royal Hobart Hospital. The Registration Committee observed that the respondent "gave an account of his understanding of the wording of that declaration" which was that he did not believe that that issue would lead to a conviction in Australia. 164The Registration Committee was satisfied that the respondent had not understood that he had an obligation to reveal his conviction in Singapore. His application was approved. 165The first issue for consideration is whether the failure to disclose the conviction in Singapore to the Medical Council of Tasmania was an error of judgment, rather than a defect in character. The precise terms of the question to which it is contended the respondent gave a false answer, have not been provided to the Tribunal. In the Memorandum from the Registrar/Chief Executive of the MCT to the HCCC, she refers to what appears to be part of question No 10 which states: "... I have never been charged with a criminal offence, nor are there any criminal charges pending against me..." 166The respondent in his letter to the Medical Council of New South Wales states that the false declaration is that "I did not concede that I had been convicted of any offence which if committed in Tasmania would or could be punishable by imprisonment." 167If the question includes a reference to "punishable by imprisonment" the respondent's belief that the incident in Singapore would not have been punishable by imprisonment in Tasmania is relevant, as is the respondent's statement to the Medical Council of New South Wales that at no time did he seek to deceive or be other than truthful in respect of the Tasmanian application. 168Although the Tribunal accepts that the task undertaken by the Registration Committee was different to the determination that the Tribunal is required to make here, the Registration Committee after interviewing the respondent in respect of this issue, was satisfied that the respondent had not understood that he had an obligation to reveal the conviction in Singapore. Regrettably, the evidence has been left on an unsatisfactory basis. In these circumstances, the Tribunal is therefore not prepared to find that the respondent's conduct in respect of the application for registration in Tasmania demonstrates a defect in character. Even if the Tribunal is wrong about this finding, it is an isolated episode and therefore not characteristic of the practitioner's normal qualities of character. The respondent subsequently described the conviction in Singapore to the Board when making application for registration. Although it was clearly a significant matter when considered in its full context, including the respondent's incorrect assumption, it did not lead to the respondent's non-registration in New South Wales. 169The Tribunal would observe that it was unsatisfactory firstly, that the respondent did not give evidence and secondly, that he was unrepresented. However, bearing in mind the respondent's current financial circumstances, we do not make any criticism of him in this respect. The Tribunal is not prepared to find on a consideration of all of the evidence in respect of this issue, particularly bearing in mind the high level of satisfaction required: see Briginshaw , that the respondent "is not of good character". It is a significant finding to make in respect of any medical practitioner and/or professional person. To illustrate, the practical effect of such a finding, now or in the future, would be to preclude the respondent from registration as a medical practitioner. 170In reaching this conclusion, the Tribunal is mindful that the failure of the respondent to provide a complete history to the Tasmanian Medical Board is of particular significance and had the potential of grave consequences that he was permitted to practice without a key issue in his character being addressed. However, for the reasons outlined, we are not satisfied that his conduct was indicative of a flaw in his character. 171The final matter relied upon by the HCCC in respect of the Complaint two was the respondent's "conduct in New Zealand". The HCCC relied upon a report by the Health Disability Commissioner (New Zealand) in respect of the respondent and his employment with the Whanganui District Health Board at Whanganui Hospital and the Hospital's provision of service to patients between 2005 and 2006. The report with appendices is some 165 pages. The Tribunal was not referred to any specific parts of the report. The most useful way of determining whether the respondent's conduct in New Zealand would give rise to a finding of "not of good character" is to set out the relevant extracts from the Executive Summary of the report: " Introduction This inquiry examines why laparoscopic sterilisation surgery (tubal ligation) performed by Dr Roman Hasil at Wanganui Hospital in 2005-06 was unsuccessful for eight of 32 women. Six of those women became pregnant and were confronted by difficult decisions. As one woman said. "I have been forced to make a decision I wish I never had to make." Most decided to have a termination. In announcing the inquiry in March 2007, I said that "the women concerned deserve to know what happened and that it won't happen again". This report details what happened, attributes responsibility for the failings, and makes some recommendations about a way forward for Whanganui District Health Board, and for other district health boards in New Zealand. At one level, what happened is simple. Dr Hasil did not place the clips correctly on the Fallopian tubes of eight women. But the story of why he made such basic mistakes - resulting in a sterilisation failure rate of 25%, compared with an accepted failure rate of 0.2% - is far more complicated. A sorry saga Dr Hasil was an experienced obstetrician and gynaecologist who had been head of an obstetrics and gynaecology (O&G) department in Slovakia for six years. But from 1996 to 2005, Dr Hasil had a chequered work and medical registration history in Australia. In August 2005 , Dr Hasil commenced work as a medical officer in the O&G department of Whanganui DHB (the DHB), which for many years had been understaffed and unable to recruit specialists. Dr Hasil's background should have come to light during the process of his employment and registration in New Zealand. It did not, owing to inadequate reference checking and credentialling. Dr Hasil was granted registration by the Medical Council within a provisional general scope of practice. Under the terms of his registration, Dr Hasil was required to be supervised by the head of the Wanganui O&G department, Dr A. Dr Hasil and Dr A worked in a grossly understaffed department, with a demanding and unsustainable 1 in 2 on-call component. From the outset concerns were raised about Dr Hasil. They initially related to his competence. Then health issues emerged. Dr Hasil was reported to be smelling of alcohol while on duty on several occasions. The concerns about his competence did not abate, and further patient and staff complaints were received. During 2006 , four of Dr Hasil's patients returned to the DHB pregnant following sterilisation surgery. The staff concerns and patient complaints were pointers to problems that the DHB should have identified earlier and responded to more effectively. The concerns were addressed in a general way with Dr Hasil, and patient complaints were investigated. However, none of the four known sterilisation failures were reported in accordance with the DHB's incident reporting policy. The DHB hesitated too long in the face of clear information that Dr Hasil might pose a risk of harm to patients. No formal or co- ordinated action was taken to assess or monitor his safety to practise until it was too late. In October 2006, Dr Hasil was again found using alcohol while on call. At this point, he was placed on leave and the Medical Council was notified of the health issues. Dr Hasil agreed to participate in a comprehensive health programme and was expected to return to work at Wanganui Hospital in early 2007. During his rehabilitation programme, further concerns about Dr Hasil's practice came to light, including concerns about his high rate of failed sterilisations. In February 2007, Patient A complained to the DHB about her failed sterilisation and advised that she was aware of another failure. The DHB commenced an investigation that quickly revealed Dr Hasil's high failure rate. Dr Hasil resigned during the DHB's investigation. He is believed to be residing in Australia. ... Summary of findings Below is a summary of the inquiry findings in relation to Dr Hasil, his supervisor Dr A and Whanganui DHB : Dr Hasil Dr Hasil did not provide services of an appropriate standard in a number of respects. In particular, he did not perform laparoscopic sterilisation surgery on Patients A and B with reasonable care and skill; his record-keeping was inadequate; and his informed consent process in relation to Patient C was substandard. Dr Hasil breached Rights 4(1) and 4(2) of the Code in relation to Patients A and B, and Rights 6(1) and 7(1) in relation to Patient C. Dr Hasil 's supervisor Dr Hasil's supervisor, Dr A, was aware of concerns about Dr Hasil, but did not consider that he was unsafe. Dr A was overworked, but he followed up the concerns with Dr Hasil and remained satisfied that he was performing to an acceptable standard. In hindsight, that was an error of judgement, but given what he knew at the time, Dr A took reasonable actions to supervise Dr Hasil. Dr Hasil knowingly misled the DHB about his work and registration history in Australia, and his lack of candour affected the way in which the DHB responded to the concerns raised about him." 172These conclusions were based on material that the Commissioner relied upon in respect of the investigation of the respondent. This material included that the Medical Council of New Zealand received a certificate of good standing from the Board dated 1 June 2005. The respondent provided eight referees. Under a heading "Undisclosed information" the Commissioner observed that the first issue of concern related to the respondent's registration status with the Medical Council of Tasmania. It was noted that due to what was described as (his false declaration) in relation to his criminal record in his application for registration in 1997 in Tasmania, the respondent was not considered to be "in good standing in Tasmania". It was noted that the respondent had been unable to obtain registration in South Australia. In response to enquiries, the Medical Council of Tasmania informed the Medical Practitioners Board of Victoria, the South Australian Medical Board and the Board about the respondent's false declaration. The Commissioner observed that "it appears that the South Australian Medical Board was not prepared to register the respondent because of that". However, he obtained registration in New South Wales, and subsequently in Victoria. It was also noted that the respondent held general registration with the Medical Board of Queensland. At the time of the report (February 2008), it was noted that the respondent held registration in Queensland to 30 June 2008, but had been unable to obtain employment in that State. 173It is the above matters that appear to have led to the conclusion by the Commissioner that the respondent knowingly misled the Obstetrics and Gynaecological Department of Whanganui. 174It is not disputed, apart from the findings made by the Commissioner in respect of the sterilisation issue, that the respondent has any clinical incapacity. 175The Tribunal has already considered the false declaration issue in Tasmania and declined to find that in light of all of the circumstances surrounding that matter, that the respondent is not of good character. In respect of the issue of character, the matters relied upon by the HCCC whilst the respondent was employed in New Zealand focus essentially on the respondent's clinical competence and not his character. The Tribunal is not comfortably satisfied that the issues relied upon in respect of the respondent whilst he worked in New Zealand, enable it to make a finding that the respondent is not of good character. 176To the extent that it was submitted by the HCCC that the character issues if taken cumulatively would result in a finding of "not of good character" we reject such a submission. The Tribunal has not been persuaded that any of the character issues warrant a finding that the respondent is not of good character. Furthermore, at least one of the character issues does not relate to the respondent's professional capacity as a medical practitioner. 177Complaint two has therefore not been established. Complaint three 178Complaint three provides: "The practitioner suffers an impairment in that the practitioner suffers from a physical or mental impairment, disability, condition or disorder which detrimentally affects, or is likely to detrimentally affect, the practitioner's physical or mental capacity to practice medicine." 179The respondent denied Complaint three. 180The dictionary to the Act contains the following definitions: "2 Competence to practise medicine A person is competent to practise medicine only if the person: (a) has sufficient physical capacity, mental capacity and skill to practise medicine, and (b) has sufficient communication skills for the practice of medicine, including an adequate command of the English language. 3 Impairment A person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practise medicine. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical or mental disorder." 181In Lindsay v Health Care Complaints Commission , Sackville AJA (Giles and Young JA agreeing) considered the above definitions and observed at [168]: "... The definition of " impairment " includes any " condition or disorder which detrimentally affects or is likely to detrimentally affect " the practitioner's mental capacity to practise medicine (cl 3). A person is " competent to practise medicine " only if he or she has, relevantly, sufficient mental capacity to practise medicine and has sufficient communication skills to do so (cl 2). There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act." 182On 2 October 2009, the respondent sustained a head injury. Dr Catherine Johnson reported that the respondent had sustained bifrontal craniotomy and intensive sub-arachnoid haemorrhage (cerebral haemorrhage). He required a bifrontal craniotomy and an intensive care admission thereafter. 183Associate Professor Reid undertook a neuropsychological assessment of the respondent. The tests administered and results were: "Tests Administered: 1. Wechsler Adult Intelligence Scale - IV (selected subtests) 2. Rey Auditory Verbal Learning Test 3. Wisconsin Card Sorting Test 4. Rey Complex Figure Test 5. Trail Making Test 6. General Health Questionnaire Results: 1. Attention and information processing: Mr Hasil's attention span for digits was within the average range as was his attention and perceptuo motor speed and visual search time. His overall processing speed index from the Wechsler Adult Intelligence Scale - IV was in the average range. Impairment however was noted in those aspects of his information processing skills in tasks where he was required to think quickly and flexibly. 2. Intellectual Functioning: Based on history with Mr Hasil reporting that he was a member of MENSA in Czechoslovakia one would estimate that he would have been of at least superior intellectual ability. On current assessment of his intellectual functioning he falls within the average range for both verbal and non verbal intellectual functioning. This represents a decline in his intellect from his premorbid estimate. 3. Memory: Mr Hasil has impairment in his serial auditory verbal learning in a word list learning test where he was unable to learn more than 8 out of 15 words over five learning trials. In this learning task he had particular difficulties in organising unstructured verbal material in order to efficiently learn it. His problems on further analysis seemed to relate to memory retrieval problems as well as problems in organising information for efficient encoding. By contrast he had no impairment in his visual memory. His working memory that is his ability to hold information and manipulate it was also within the average range. 4. Executive/Adaptive Abilities: Mr Hasil has a reduction from his premorbid estimate in areas of his executive function for verbal reasoning and non verbal reasoning where he now functions in the average range. More clear evidence of impaired executive functioning however was seen in his conceptual skills and his ability to adapt and regulate his behaviour given feedback in a test of card sorting, problems with learning unstructured verbal material and poor planning and organisational skills. Furthermore his capacity to think quickly and flexibly was impaired. 8. Psychological Assessment: On examination Mr Hasil did not present with any evidence of a psychiatric disorder relating to his mood, or thought. He has a reported history however of alcohol abuse although denies abusing alcohol for the last two years." 184Associate Professor Reid, in his report to the HCCC dated 22 November 2011 under the heading "Summary and Assessment" stated: "Mr Hasil is a 56 year old medical practitioner whose name has been removed from the register of medical practitioners on 11 April 2009. He is currently under investigation in relation to complaints about his medical practice. On neuropsychological assessment he was found to show a decline in his overall intellectual functioning from his premorbid estimate where he now functions in the average range whereas previously it is estimated he was of at least superior intellect. Impairment in his cognitive functioning was also identified in his frontal executive skills affecting his conceptual abilities, adaptive functioning, planning and organisation skills and ability to think quickly flexibly. In the context of his history it seems the most likely cause of his frontal executive deficits is the head injury he sustained in October 2009 where he was reported to have suffered bifrontal contusions, a traumatic subarachnoid haemorrhage and required bifrontal craniotomy. In addition Mr Hasil has a past history of alcohol abuse although he reports that he has drunk very little alcohol over the last two years. If one accepts this and considering his past reported drinking history it seems unlikely that alcohol abuse is responsible for his current cognitive problems. Furthermore there has been a further decline in his social functioning where he lives in an isolated boarding house environment and spends what appears to be considerable time wandering the streets. Considering the nature and extent of his higher cognitive deficits it is felt he is impaired in regard to his neurocognitive functioning and his ability to practice medicine is currently compromised. It is recommended Mr Hasil have further rehabilitation, psychological intervention and referral to a rehabilitation provider for assistance in finding employment in the open job market. Furthermore it is recommended he be referred for follow up neuropsychological assessment in 12 months time following a period of intensive rehabilitation and his case be referred back to the Medical Council for review of his capacity to function as a registered medical practitioner under the Impaired Registrants program." 185There is also past evidence of impairment. Dr Andrew Petherbridge, Staff Specialist, in a report dated 26 April 2009, concluded: "... He is clearly impaired because of his use of alcohol and I do not believe that any conditions that could presently be placed on his registration would be sufficient to ensure he does not return to drinking and place patients at risk. I say this on the basis that he is still in the early phase of his abstinence and he continues to externalise blame, rather than acknowledge personal responsibilities. It may be that after an extended period of confirmed abstinence, some 12 months, then the usual monitoring of CDT testing and self reports of his behaviour may be sufficient to ensure patient safety. I would be happy to review Dr Hasil when this was to occur." 186Furthermore, a medical assessment by Dr David Storor, Consultant Psychiatrist, dated 6 May 2008 read: "Dr Hasil's current state is markedly impaired. He has not worked for 12 months. He is under regular psychiatric care for depression. By his report he has not drank alcohol for at least a year. However, he did not complete pathology testing therefore there is no means of verifying his history. He is reliant on Government benefits for income and the goodwill of friends for accommodation. In my opinion, Dr Hasil is impaired as defined by the Act ( Health Practitioners (Professional Standards) Act 1999 (Queensland)) by virtue of his conditions of depression and alcohol abuse. In my opinion, he is not fit to practise medicine at this time. I note that his registration is currently suspended to practise medicine until he has received treatment for his condition and his treating practitioners are satisfied that he has made a satisfactory recovery. Specifically I recommend that: (a) Dr Hasil should continue to see his psychiatrist Dr Neil Schutz, or another suitable psychiatrist specialised in the treatment of alcohol and drug problems for treatment as seen fit. (b) Dr Hasil should have a General Practitioner whom he should consult as required for treatment of his medical condition. (c) Dr Hasil should be monitored with three monthly pathology testing for MCV, gamma, GT, CDT to check for signs of alcohol excess. (d) At such time as it is considered that Dr Hasil is fit to resume practising then he should undertake to comply with the Board's alcohol brethalyser program." 187The medical evidence when considered as a whole must, in the Tribunal's view, results in a finding that the respondent suffers an impairment. The impairment results from cognitive deficits which, on the evidence of Associate Professor Reid, stems from the head injuries he suffered in a fall and not from his use of alcohol or from suffering depression. The respondent informed Associate Professor Reid that he has drunk very little alcohol in the last two years. He denied any psychiatric history apart from a brief bout of depression two years ago. 188In light of the Tribunal's finding of impairment, it is necessary to determine whether the respondent's mental capacity, having regard to his impairment, results in a conclusion that he is currently not competent to practice medicine. Associate Professor Reid's report observes that there has been a further decline in the respondent's social functioning where he lives in an isolated boarding house environment and spends what appears to be considerable time wandering the streets. 189It would appear that the respondent has been unemployed for at least two years. Having considered the medical evidence and the evidence of the respondent's communication skills, the Tribunal finds that the respondent currently lacks the mental capacity to practice medicine. The respondent's preferred area of employment as a medical practitioner has been as a Registrar in Obstetrics and Gynaecology. Such work requires judgment, communication skills, and clinical ability such that the Tribunal is comfortably satisfied that the extent of the respondent's impairment would significantly impact upon the respondent's mental capacity and communication skills to practice medicine. This conclusion has been reached taking into account the nature and likely duration of the impairment which, in Associate Professor Reid's opinion, as provided in his report of November 2011, may continue for a further 12 months. 190The Tribunal having considered the medical evidence which relates to the respondent's current impairment caused by a brain injury, finds that Complaint three has been proved. Summary of findings 191The Tribunal has determined that part of Complaint one and various particulars pertaining to that complaint have been proved. Complaint two is not established. Complaint three is proved. 192In King v Health Care Complaints Commission [2011] NSWCA 353, the Court of Appeal held that the duty of procedural fairness requires a Tribunal to provide a respondent with an opportunity to adduce evidence and make submissions on appropriate consequential, or protective orders following upon the Tribunal's findings. This matter will be listed for a directions hearing at 9.30am on Wednesday 22 February 2012 for the purposes of fixing a date for further submissions, including any submissions in respect of costs. ********** Amendments 27 February 2012 - At particular 16 the words added "[not pressed]" Amended paragraphs: 10 27 February 2012 - Words added "However, when properly considered the Tribunal finds that the conduct does not amount to professional misconduct." Amended paragraphs: Paragrah 131 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: 27 February 2012