In the matter of Melvin Muralidharan [2012] NSWMT 20

Medical Tribunal New South Wales Medium Neutral Citation: In the matter of Melvin Muralidharan [2012] NSWMT 20 Hearing dates: 13/08/2012 Decision date: 16 August 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Dr A Bean Dr S Messner Mr R Smith Decision: Reinstatement order subject to conditions Catchwords: Review of de-registration. Current assessment of suitability for medical practice. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 HCCC v Dr Muralidharan, NSWMT, 8 March 2010 Re Mansoor Haider Zaidi [2006] NSWMT 6 Category: Principal judgment Parties: Melvin Muralidharan (Applicant) Medical Council of NSW (Respondent) Representation: Mr E Pike (Applicant) Mr M Lynch (Respondent) Philip Sim & Associates (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 40008/12 Publication restriction: No

Judgment 1On 19 March 2012 Mr Melvin Muralidahran filed an application under Section 163A of the Health Practitioner Regulation National Law (NSW) No 86A (the "National Law") seeking a review of an order by the Medical Tribunal that he be deregistered (HCCC v Dr Muralidharan, NSWMT, 8 March 2010). 2The applicant specifically seeks a reinstatement order permitting him to apply to the National Board for registration (Section 163B(3)). 3The respondent to the application is the Medical Council of NSW. It opposes the application. If the application is granted the respondent says that significant practice conditions should be imposed on the applicant's registration. 4The applicant was born in India in 1959. He received the degrees of Bachelor of Medicine and Bachelor of Surgery from the Madras University in 1984. This seems to be the Indian equivalent of an MBBS. 5The applicant commenced his medical career in Fiji in 1986 at the Lautoka Hospital. He moved with his then wife to New Zealand in 1987 and remained there until December 1993. He moved to Victoria with his wife and two children in December 1993. He separated from his wife in the same year. The applicant's ensuing work history is set out in his curriculum vitae which is behind Tab 8 in Exhibit 1. 6For present purposes it is important to note that the applicant was appointed to the position of Surgical Registrar in the Division of Surgery in the Hunter New England Area Health Service ("HNEAHS") in March 2005. Soon after taking up this appointment, and while working at the Maitland Hospital, a female patient made a complaint alleging that the applicant had conducted a medical examination inappropriately. An investigation by the New South Wales Police Force and by the HNEAHS took place. The applicant was consequently suspended from practice on full pay. 7While suspended the applicant performed locum work for three nights at Hornsby Hospital. He did not obtain approval to do so from the HNEAHS and it was contrary to his contract of employment that he perform such locum work. 8On 14 July 2005 the applicant attended a disciplinary meeting at the HNEAHS. Following this meeting the applicant was informed that a recommendation had been made to the Chief Executive Officer that the applicant's employment be terminated on a number of grounds including his work as a locum at the Hornsby Hospital. He was further informed that the recommendation had been accepted. 9In January 2006 the Health Care Complaints Commission (the "HCCC") informed the applicant that his conduct was under investigation. In October 2006 the HCCC told the applicant that a complaint was being considered arising from his conduct. The applicant's response to the allegations against him was, generally, that he had not been aware that he had been required to obtain authorisation before working at Hornsby Hospital. 10Ultimately, the HCCC brought two complaints against the applicant before the Medical Tribunal. The first complaint relied on two incidents. They are set out in the judgment of the Medical Tribunal which is behind Tab 1 in Exhibit 1. It is worth repeating them here: "1. Between 13 and 15 May 2005, without proper authorisation, the practitioner inappropriately took a locum appointment at Hornsby Hospital while suspended on full pay from Maitland Hospital. 2. On 24 October 2005, the practitioner made a false and/or misleading statement on his application for registration with the Queensland Medical Board in that he stated that he was not the subject of any preliminary investigations or action, in any State or Territory, that might lead to disciplinary proceedings." 11The second complaint was particularised as follows. "On 25 November 2005 the NSW Medical Board convened an Inquiry pursuant to section 66 of the Medical Practice Act 1992 to consider issues concerning the practitioner's clinical competency, ethical and professional behaviour and his communication and interpersonal skills. To protect the public, the Board delegates resolved to impose conditions on the practitioner with effect from 2 December 2005. These conditions included the requirements that the practitioner: 1. work only in supervised employment in a public hospital approved by the Medical Board; and 2.nominate a supervisor, to be approved by the Board, to monitor and review his clinical practice and compliance with conditions in accordance with Level 1 supervision of the Board's Guidelines; that is, the supervision is to be direct and on the premises in a public hospital setting. In August 2006, the practitioner commenced work at St George Hospital without first getting Board approval, in breach of the conditions imposed on his registration. On 3 April 2007 the Medical Board counselled the practitioner on the issue of breach of conditions and the responsibility of the practitioner to ensure strict compliance with the conditions on his registration. Following the counselling interview at the NSW Medical Board the practitioner: 1. Failed to seek the approval of the Medical Board before commencing his second term rotation as a senior Basic Surgical Trainee at Shoalhaven District Memorial Hospital (Shoalhaven Hospital) on 30 April 2007, thereby breaching a condition of his registration. 2. Failed to arrange appropriate Board-approved supervision before commencing his employment at Shoalhaven Hospital, thereby breaching a condition of his registration. 3. Worked at Shoalhaven Hospital from 30 April 2007 until 30 May 2007 without appropriate supervision that was direct and on the premises, thereby breaching a condition of his registration. 4. Failed to provide Shoalhaven Hospital with a copy of his NSW Medical Registration and/or disclose to Shoalhaven Hospital the conditions of his registration." 12The hearing of the Tribunal took place over two days in November 2009. The transcript is behind Tab 2 in Exhibit 1. The decision was handed down in March 2010 (Tab 1) 13The Tribunal found that the complaint in relation to the applicant working as a locum at the Hornsby Hospital had not been made out. The Tribunal, however, found the respondent "guilty of unsatisfactory professional conduct with regard to the false and/or misleading statement made by him in his application for registration to the Queensland Medical Board on 24 October 2005". The Tribunal concluded that "this conduct was both improper and unethical having regard to the fact that at the time the statement was made the respondent knew or must have known he was under investigation by the HCCC". 14By way of background, when the applicant completed the Queensland form the NSW Police had told him that no charges would be laid in respect of the allegations against him. He had not, however, been told that the HCCC investigation had been finalised. Accordingly, his completion of the form (ticking the 'No' box asking of the existence of current investigations) was done dishonestly. 15The Tribunal notes that the HCCC investigation ultimately found no wrongdoing on the applicant's part. This did not, however, affect the 2010 Tribunal's assessment of the applicant's conduct in completing the form. 16The Tribunal also found the applicant guilty of professional misconduct "in relation to his actions and failing to obtain approval of the Board before taking employment at St George Hospital and before his transfer or secondment to Shoalhaven Hospital". 17All of the particulars of the second complaint (as set out above) were found to have been proved. 18The Tribunal expressed its conclusions in the strongest terms. For example: "78 The respondent's conduct between October 2005 and 30 May 2007 reveals both dishonesty on the part of the respondent in making a false and/or misleading statement and a deliberate disregard of established procedures of which the respondent was well aware, illustrated by his failure to comply with the conditions imposed on his registration on more than one occasion." 19The Tribunal made the following orders: "(1) The respondent is deregistered. (2) The respondent is not to apply for re-registration as a medical practitioner for 12 months." 20As stated above the applicant now wishes to be placed back on the register. It is more than two years since the orders were made so that the minimum period of deregistration has been well exceeded. 21In paragraph 79 of its judgment the 2010 Tribunal said that "an order that the respondent be deregistered for a period of time will properly reflect the Tribunal's findings that the respondent engaged in professional misconduct as defined under Section 37 of the Act". This observation, taken with the order that the respondent not be able to apply for 12 months, can be read as an indication that the Tribunal felt that 12 months was an appropriate period for the applicant to be barred from practice. This Tribunal does not think that is a correct interpretation of the judgment but does accept that the intention of the orders did not envisage deregistration permanently or for a period considerably longer than 12 months. 22The applicant's case has consisted of his own evidence, in both oral and statement form, together with references and reports from a number of members of the medical profession as well as the public. 23The respondent tendered a file (Exhibit 1) containing mostly historical matters primarily concerning and including the 2010 decision of the Tribunal and the affidavit of Ms Ayscough (Exhibit 2). Notably no peer or expert evidence was tendered opposing reinstatement. 24The applicant now says that he accepts the findings of the Tribunal and the criticisms made of him. He puts himself forward as a fit and proper person to be registered as a medical practitioner both in regard to his character and his competence. He accepts that registration would have to be subject to conditions of practice. 25In order to succeed the applicant must establish, on the balance of probabilities, that he is now a fit and proper person to be registered as a medical practitioner. This includes persuading the Tribunal that the defects in his character and behaviour, that led to his previous conduct, have been addressed and are no longer a factor likely to resurface in his future as a medical practitioner. 26The respondent did not suggest that the applicant is not technically competent to re-enter medical practice. 27In Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA said this at 461: "... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man." 28The Tribunal has also endeavoured to apply the principles set out in Re Mansoor Haider Zaidi [2006] NSWMT 6 at paragraph 42: "[1] The purpose of the jurisdiction which is exercised by the Tribunal is not for punishment or further punishment of the former practitioner. Instead the Tribunal's jurisdiction is for the protection of the public which deals with medical practitioners on the basis that they are members of an honourable profession who can be expected without reservation to conduct the affairs of their patients with honour and in whom the patients can place unbounded confidence. What is in question in an application for reinstatement to the Medical Register is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence. [2] An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears the onus of proving the case. It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds and as an applicant for reinstatement to the Medical Register he is in a more disadvantageous position than an original applicant. He must in effect displace the decision for deregistration which has been made. That decision involves the judgment that the applicant is probably permanently unfit to have his name on the Register. As a consequence, presumptions of fitness which might arise otherwise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. [3] The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the applicant but the Tribunal's assessment of his character, uprightness, honour and trustworthiness. In the case of some offences committed over an extended period with deliberate intent and resulting in serious distress to patients it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the Register. [4] It is not a question of what an applicant has suffered in the past. It is a question of his worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. It is difficult to decide what a man will do in the future and the decision in a particular case is to a greater or lesser extent dependant upon the Tribunal's assessment of the applicant. In making that assessment, it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the Register. An understanding of that may assist the Tribunal to determine what are his standards and his understanding of a practitioner's responsibility, and from this, what he is apt to do in the future. Where what has been done in the past has been sufficient to indicate his probably permanent unfitness the Tribunal will require solid and substantial grounds for the conclusion that his standards have changed, his character has been reformed and that he will act honourably." 29In his two statements in Exhibit A the applicant makes a full confession of his wrongdoing and expresses an acceptance that what he did was dishonest and misleading. 30The respondent submitted that the applicant's oral evidence did not bear out the apparent frankness of the written statements. In particular the respondent submitted that the applicant's answers were vague and displayed no real insight into his wrongdoing. 31The Tribunal agrees that some of the applicant's answers were vague. It is not of the view, however, that they undermined his acceptance of the earlier Tribunal's findings. 32In addition, the Tribunal is of the view that the applicant is entitled to substantial support from the reports of Dr Gertler and Mr Khlentzos, both of which are included in Exhibit A. Dr Gertler is a psychiatrist who saw the applicant at the request of his solicitors in January of this year. Mr Khlentzos is a psychologist with whom the applicant consulted on five occasions beginning in May 2011. Neither practitioner was required for cross-examination, nor was there any opposing report. 33The respondent submitted that Dr Gertler's report carried little weight because it was based on a false premise. That premise is contained in this sentence: "It does appear that Mr Muralidharan's difficulties arose because of a lack of understanding of the requirements, particularly documentation, made of a medical practitioner when under investigation or Board supervision. His actions were not, in my opinion, deliberate and motivated by antisocial reasoning." 34It was said that the opinion following the above passage, that the applicant could return to practice under conditions and was capable of "fully accepting and abiding by those conditions" could not be relied upon because the opinion was based on a finding that directly contradicted the earlier Tribunal's decision. 35This Tribunal accepts that there is an inconsistency between Dr Gertler's opinion and the findings of the 2010 Tribunal. However, it also recognises that Dr Gertler observed that "Mr Muralidharan openly admitted that he had made mistakes in relation to the requirements of the NSW Medical Board, over several years, and understands the reasons for the Board's restrictions and the Tribunal's decision. He displayed appropriate remorse during this assessment and regretted the effect his deregistration had had on his family and his career in medicine". 36The Tribunal is of the view that Dr Gertler's ultimate opinion about the applicant's capacity is not necessarily diminished by his findings about the motivation behind the applicant's actions. While acknowledging the argument is open, the Tribunal is of the view that Dr Gertler ought to have been cross-examined if his ultimate conclusion was to be challenged on the above basis. 37The Tribunal does, however, agree with the observation of Mr Lynch, counsel for the Medical Council, to the effect that it was not bound to accept Dr Gertler's view even if he had not been challenged. In addition, the Tribunal rejects the submission of Mr Pike, who appeared for the applicant, to the effect that the Tribunal could take into account that Dr Gertler was well known and respected. Those attributes may well be the case but the Tribunal cannot accord greater weight to an opinion because it comes from a person said to be well known and respected, absent evidence to that effect. 38Nevertheless the Tribunal does accept the ultimate opinion of Dr Gertler about the applicant returning to practice primarily because it accords with the Tribunal's assessment of the applicant. 39In relation to Mr Khlentzos the respondent submitted that the psychologist's opinion that the chances of re-offending "is low" should be treated with some caution. It was noted that "low" is a relative assessment which exceeds nil or negligible. 40The Tribunal accepts the respondent's submission in this regard but taken with the general acceptance of the applicant's case, Mr Khlentzos' opinion is viewed as justification for the protective orders that the Tribunal intends to make by way of practice and health conditions. 41Exhibit A also contains a number of references detailing both charitable work performed by the applicant and, more importantly, his maintenance of his interest in medicine and his pursuit of knowledge to keep up to date in medical matters. 42The Tribunal has concluded that the applicant has demonstrated the change referred to in Zaidi and that he is therefore entitled to an order for reinstatement. The Tribunal is also satisfied that for purposes of protecting the public and the medical profession any re-registration should be accompanied by the imposition of conditions of both a public and private nature (i.e. practice and health conditions). 43The Tribunal asked the respondent to put forward what it considered to be appropriate conditions. The Tribunal is of the view that the respondent should be satisfied that the conditions are suitable, accepting that its primary case is for the application to be refused. The applicant agreed to the conditions suggested by the respondent. 44The respondent also submitted that some of the conditions should be critical compliance conditions as authorised by Section 149A(4) of the National Law. The applicant opposed this course. The Tribunal favours the respondent's approach noting that some of the particulars of complaint before the 2010 Tribunal involved breach of conditions of practice. 45The Tribunal is also of the view that the there should be health conditions imposed on the applicant. The applicant said he gained insight into his wrongdoing from his sessions with the psychologist, Mr Khlentzos. It is important that this focus be maintained, at least for a period of say 12 months. 46The Tribunal makes these orders: (a)The Tribunal makes a reinstatement order in respect of Mr Melvin Muralidharan pursuant to Section 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) No 86a. (b)The Tribunal orders that, pursuant to Section 163B(4) of the above Act, Mr Melvin Muralidharan's registration be subject to the practice and health conditions set out in Annexure A. (c)The Tribunal orders that the applicant pay the costs of the Medical Council of NSW.