Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Shinwari (No 2) [2015] NSWCATOD 107 Hearing dates: 17 September 2015 Decision date: 08 October 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ Principal Member Dr M Cox Professional member Dr L Cotterell Professional member C Berglund Lay member Decision: Medical practitioner engaged in rapid opioid detoxification treatment – Held, inter alia, multiple failures to safely practise in a specialised area of medicine - Constituting in the aggregate professional misconduct - Reprimand imposed together with practice conditions and costs order Catchwords: Medical practitioner engaged in rapid opioid detoxification treatment – Held, inter alia, multiple failures to safely practise in a specialised area of medicine - Constituting in the aggregate professional misconduct - Reprimand imposed together with practice conditions and costs order Legislation Cited: Health Practitioner Regulation National Law (NSW), ss3, 125, 127, Part 8, Division 8 Cases Cited: Health Care Complaints Commission v Shinwari [2015] NSWCATOD 59 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Mohammed Rahman Shinwari (Respondent) Representation: Counsel: P Griffin (Applicant) J Morris SC with G Babe (Respondent) Solicitors: Norton Rose Fulbright (Respondent) File Number(s): 1420073 and 1420112 Publication restriction: Pursuant to Schedule 5D Clause 7 of the Health Practitioner Regulation National Law, publication of the name of or any information which would identify any patient treated by the respondent is prohibited. REASONS FOR DECISION Introduction 1. In Health Care Complaints Commission v Shinwari [2015] NSWCATOD 59 we found the respondent guilty of professional misconduct under the Health Practitioner Regulation National Law (NSW). The Complaints brought against the respondent, Dr Mohammed Rahman Shinwari, are fully set out in our earlier Decision, as are the circumstances which gave rise to these proceedings. Without diminishing in any way the severity of each and every one of the particulars which we found proven against the respondent, and many of which he had conceded, we set out below an extract from our earlier decision which provides a basic summary of the nature and extent of the professional misconduct of the respondent as found by us at [87]-[88]: 87 We are satisfied that it is appropriate to conclude that each of the particulars of complaint which we have found to have been established against the respondent constitutes unsatisfactory professional conduct under either of section 139B(1) (a) or (b). So much was conceded by the respondent. 88 It is then necessary to consider whether and to what extent the conduct of the respondent so found may be characterised as professional misconduct, as contended for by the HCCC. It is not necessary that we deal with each of the particulars individually. This is because, to some extent, they all arise out of the circumstances in which the respondent found himself when he came to commence work at the Psych n Soul clinic. It is not necessary that we deal at this stage with the circumstances of the respondent in detail, because they are more appropriately considered in the course of the stage 2 hearing which is yet to be conducted. We note, however, that the respondent's conduct, most of which he has readily conceded during the course of the proceedings, reflects a failure to comprehend that he was practising in a specialised area of medicine and was ill-equipped to do so. These failures have manifested themselves in circumstances where he has undertaken the treatment of patients by subjecting them to a regime of drugs and medication which can produce dangerous side-effects, he has failed to carry out the necessary investigations and examinations of the patients' histories, has failed to record and document many relevant matters, has failed to appreciate the significance of an abnormal ECG result, and has failed to properly instruct and monitor nursing staff so as to ensure a safe treatment environment for these patients. In describing the conduct of the respondent in this general fashion, we should not be taken to have minimised the effect of each and every example reflected in the particulars which we have found proven against him. However, the narration of the conduct of the respondent which we have found and which we have set out in general terms, coupled with the failings identified by Professor Saunders and by Dr Ellis, is ipso facto sufficient, in our opinion, to allow us to safely conclude that the unsatisfactory professional conduct which we have found in the aggregate amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of the registration of the respondent. It therefore constitutes professional misconduct. We so find. Factual Background 1. The narration which follows is based on evidence given in the proceedings and is uncontroversial. The respondent is age 57 and was born in Afghanistan. He completed a medical degree in the former Soviet Union and returned to Afghanistan in 1984 where he worked in trauma surgery, orthopaedics and microsurgery. He gained the postgraduate qualification of PhD from an institution in Moscow in 1989 and from 1990 to 1992 he worked in Pakistan treating Afghan refugees. He and his wife emigrated to Australia under a refugee program in 1992. He undertook examinations qualifying him for entry into the medical profession in New South Wales, and in 1999 commenced work as an intern at Gosford Hospital, where he performed placements in general medicine, neurology, geriatrics and emergency medicine. In about 2002, he moved to Westmead Hospital as a Senior Medical Officer in paediatrics and later rehabilitative medicine. He also performed relief work at other hospitals in the area until 2003. He became a Career Medical Officer at Nepean Hospital in 2003 and worked there as a registrar until commencing in general practice in 2007. In 2009 he joined the Allcare Medical Centre in Hammondville where he continues to practice as a general practitioner on a contract basis. 2. Accordingly, in 2010 when the events giving rise to these proceedings occurred, and in 2009 when he commenced work at the Psych n Soul Clinic, he was an experienced medical practitioner and had performed work covering a number of specialities. The Second Stage Evidentiary Material 1. Documentary evidence was tendered for the purpose of the second stage hearing, and the respondent gave brief oral evidence. 2. An audit of the respondent's practise had been carried out by Dr Martine Walker who had selected 20 of his clinical records at random since February 2015. Dr Walker provided a report dated 29 July 2015 in which she noted some minor omissions and irregularities in certain aspects of the respondent's clinical notes but otherwise found them to be: ….excellent. The form and content of his notes were superior to all general practice notes previously audited by this auditor. As far as can be judged from clinical notes, Dr Shinwari's clinical assessment, management and follow-up also appeared excellent. Dr Shinwari's notes were definitely of a standard that would allow another doctor to easily take over his patients' care. 1. Dr Walker also noted that the recording of findings on examination was adequate and "when appropriate very detailed", in all cases clinical assessments and diagnosis appeared appropriate, as did the respondent's management, follow-up plans and "safety netting." 2. A QI & CPD summary provided by the RACGP stated that for the 2014 – 16 triennium requirements the respondent had acquired a total of 408 points, whereas a minimum of 130 points only was required. This is indicative that the respondent is undertaking continuing professional development at a significant level. 3. The respondent has been the subject of formal supervision by Dr Tuan Bui who provided a written report dated 14 August 2015 covering supervision meetings between 22 June and 4 August 2015. The supervisor observed the respondent whilst patients were consulting with him, and paid particular attention to the examination which was conducted, communication skills, overall patient care and management, and the medical records which were taken. He said that the respondent was: (V)ery thorough with his consultations, taking good history, performing relevant physical examination, establishing rapport, using open/closed questions appropriately, listens and actively balances his own agenda and patient's concerns. 1. Dr Tuan Bui thought that the respondent had made progress in obtaining social cultural history, dealing with preventative health, and better rapport building. 2. A number of supporting character references were admitted into evidence. In summary they are as follows: * Dr Ronald Sekel OAM is a long-standing orthopaedic surgeon. He has known the respondent since 1996, when he worked as an observer under Dr Sekel on a voluntary basis to gain local clinical experience. The respondent generally refers 8 to 10 patients a year for treatment of hip and knee problems. The respondent's patients were "generally elderly, are very well managed, including those with serious illnesses. It is my opinion that he is an exemplary general practitioner and cannot fault him." On becoming aware of the complaints made against the respondent, Dr Sekel reviewed all of the respondent's files of all of the patients who had been referred to him and concluded that the respondent's "attention to the patient's broader health is consistent with proper professional practice…." He thought that the matters identified in the Complaint were "far removed from my experience with Dr Shinwari as a general practitioner." * Dr L.J. Day is a consultant cardiologist who had first met the respondent 3 or 4 years ago. The respondent referred 10 to 12 patients to him each year. He had read the Complaints and said that they were out of character when compared with his experience in dealing with the respondent. He had always considered the respondent to be a very good general practitioner, concerned for his patients whom he manages very well. Dr Day said that he had provided training to the respondent 2 to 3 years ago with specific focus on cardiac conditions and ECG interpretation. He thought that the respondent had a sound understanding of interpretation of ECG and that he "demonstrated sound knowledge of the principles of cardiac function, disease and the cause of cardiac insufficiency and failure." * Dr S. Kahn developed the practice in which the respondent now works, and continues to work at the practice as a contractor – principal practitioner. Initially, he mentored the respondent who was undergoing registrar training at the practice. In doing so, Dr Kahn had regular and continual contact with the respondent and with his work for a period of 2 to 3 years. He considers the respondent to be a responsible, very caring and morally sound doctor, knowledgeable in his clinical practice who keeps up-to-date with his medical knowledge. He said in part: If I had formed the view his skills or capacity were inadequate or that his practice of medicine posed a risk to the public, I would not have employed him. I have no concerns about Dr Shinwari practising as a general practitioner. * He adhered to this opinion, notwithstanding that he had read our earlier Decision. * Dr M. Aymal first recalled meeting the respondent in Australia in about 2001. He has seen him regularly at meetings of the Afghan community. Both he and the respondent have been heavily involved in working within that community. He has heard that the respondent is highly regarded within the community, and also as a medical practitioner. He was aware of the complaints and our earlier Decision and this did not cause him to alter his opinion. * Suzanne Thomas is a registered nurse with over 30 years' experience. For the last 10 years she has worked as the Practice Nurse at the centre at which the respondent works. In general terms, Ms Thomas said that she had "enormous respect" for the respondent and for the depth of his experience gained in hospitals outside general practice. She observed him to be very respectful of other people's beliefs and cultures. She was shocked to read the Complaints brought against the respondent but said that that conduct was inconsistent with her knowledge of him and was inconsistent with her observations of him over 5 years of working with him in general practice. She continues to believe that the respondent: is a fine, careful and competent general practitioner. In my opinion, if he was to have his registration cancelled it would be a great loss to the practice and the community which he serves. * Dr Z. Obayd is a general practitioner. He first met the respondent when he was a medical student, and later when he practised as an orthopaedic surgeon in Afghanistan. A few years ago, the respondent worked in his practice on a full-time locum basis for 6 weeks. On his return, he said that he was very impressed by the respondent's careful and patient approach in treating patients and that his clinical records were "good and clear." His opinion did not alter after becoming aware of our earlier Decision. Consideration 1. Consequent upon our findings of professional misconduct, it becomes necessary to consider what protective and other orders should be made. An initial, obvious reaction to the findings which we have made with respect to both complaints is that the respondent misconducted himself in a most serious manner. He was, as at 2010, an experienced medical practitioner who had worked overseas in a specialist position as an orthopaedic surgeon, and had had considerable experience within hospital settings both overseas and in New South Wales. Furthermore, he had had some experience at that stage in general practice. 2. On our understanding of the evidence, the respondent did not fully express his comprehension of the nature and extent of his involvement in the death of Patient A until after he had heard the evidence given during the Coronial Inquest. 3. In his explanation to this Tribunal provided by way of an affidavit sworn on 27 February 2015, the respondent said that he was deflected from a proper and appropriate approach to the treatment to be afforded to patients at the Clinic by the training which he received there. He acknowledged that his training was inappropriate and inconsistent with ROD guidelines developed by New South Wales Health, and Medical Council Guidelines. He accepted that "the ultimate responsibility for proper and adequate assessment, for liaising with specialists and treating doctors, and for safe and proper treatment, was mine." He said that in hindsight the practices and treatment protocols employed at the Clinic "directed unsuitable patients into treatment." Furthermore, he acknowledged and accepted that it had been his duty to make independent enquiry of the treatment that he performed at the Clinic and to search out appropriate protocols and practices. He said that had he had done so, he believed he would have formed the view that his practice of medicine at the Clinic was deficient in a number of significant respects, which he outlined. He said that his ultimate conclusion was that the procedure systems and business practices at the Clinic "were inconsistent with the appropriate and safe treatment of opiate addiction." 4. It is obvious that most medical practitioners will encounter circumstances from time to time which are beyond their technical scientific knowledge or competence. In such a case, the safe practice of medicine demands that, except in an emergency situation, a responsible medical practitioner will either refer a patient for specialist assistance or make such enquiries and investigations as are necessary to enable him or her to safely treat the patient. It is not sufficient to endeavour to afford treatment without considering whether the medical practitioner has the necessary competence, expertise and equipment to enable him or her to do so. The failure of the respondent to comply with these simple and obvious observations has rendered him complicit in the death of a patient and exposed him to a finding of professional misconduct. As we have earlier said, an initial reaction to the circumstances could easily lead to an order cancelling the respondent's registration. 5. However, a consideration of the appropriate consequential orders must be undertaken in the context of the legislative framework within which this Tribunal operates. Our primary concern is to make orders which will protect the health and safety of the public. We are to ensure that only medical practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered to do so. So much is clear from section 3 of the Health Practitioner Regulation National Law. In having regard to the protection of the health and safety of the public, we must not limit our consideration to the patients of the respondent whether present or future. We are required to consider the protection of the public generally at the hands of other medical practitioners, so that public confidence may be maintained in the practice of medicine in New South Wales. There is thus, a deterrent factor in the orders that we determine to make. 6. The complainant submitted that in some aspects the respondent has been slow to demonstrate real insight into his misconduct, and slow to demonstrate any contrition and remorse for what occurred. In general terms, there is some validity in this submission, but we are satisfied that the respondent does now acknowledge the totality of his shortcomings, and his failure to practise safe medicine in the manner that we have described. To this extent we are satisfied that the respondent has, relevantly, expressed contrition and remorse for what has occurred. 7. There is no evidence that the respondent has failed to conduct himself in general practice and outside his work at Psych n Soul Clinic other than as a competent and safe practitioner. Indeed, such evidence as is before us would suggest that the respondent is a competent and experienced general practitioner. In these circumstances, is it necessary to either suspend or cancel the registration of the respondent? As we have said, there would, prima facie, appear to be no basis for considering the necessity to protect the health and safety of the respondent's patients. However, the respondent having failed previously to maintain proper and appropriate standards, although having a degree of experience as a medical practitioner, it would seem appropriate to ensure that some degree of oversight is maintained so as to minimise the risk of any further difficulties arising. We propose a regime of supervision to achieve this, and note that the respondent readily agreed to this. 8. We also need to be satisfied that there is an appropriate deterrent effect so as to protect the public generally from the misconduct of other medical practitioners in whatever order is made. The respondent conceded that a reprimand was appropriate, and the complainant asserted that this was an appropriate outcome. In support of its submission, the complainant referred us to the outcome of disciplinary proceedings taken against six health practitioners. One of these is Dr Ross Colquhoun, the principal of the Clinic. He was found guilty of professional misconduct and his registration as a psychologist was cancelled. He was also made the subject of a prohibition order. This person was, as we understand it, the guiding and controlling mind who drove the operation of the Clinic, and as such, his involvement was clearly graver than that of the respondent in these proceedings. Drs Nasrin Moin, Donald Yew Kim Tan and Jassim Daood all came before Professional Standards Committees and were found guilty of unsatisfactory professional conduct because of their involvement as medical practitioners in the work of the Psych n Soul Clinic. They were reprimanded, and practice conditions were imposed. Dr Zeitoun Athour was found guilty of unsatisfactory professional conduct and professional misconduct by the Medical Tribunal, reprimanded, fined $10,000 and practice conditions were imposed on his registration. His conduct may have been more egregious than that of the respondent because he carried out ROD treatment of a number of patients in their homes and hotel rooms, without nursing support or proper equipment, and without appropriate patient follow-up and the keeping of records. Having regard to these matters, all of which arose out of the conduct of the Psych n Soul Clinic, the imposition of a reprimand together with appropriate practice conditions on the respondent is reflective of an approach consistent with the application of some form of parity. 9. Of course, a reprimand, which will be displayed publicly on the respondent's registration as a medical practitioner, together with the shame which accompanies the findings which we have made against him and the imposition of supervision and other practice conditions, all of which will already be well known to many of his colleagues, will in the aggregate represent a large measure of disapproval of his conduct. Exposure to a costs order is another consequence of our findings. In these circumstances, it is not appropriate or necessary to cancel or suspend the respondent's registration. 10. We were able to engage in dialogue with the representatives of the parties concerning the totality of the orders which should appropriately be made in the disposition of these proceedings, and the parties were able to reach sensible agreement between them as to the form of the orders which would reflect the outcome which we had determined would be appropriate in all the circumstances. The orders that we hereby make reflect those formulated by the parties. They are as follows: Orders 1. The practitioner is reprimanded. 2. The following conditions are imposed on the practitioner's registration: (i) Not to undertake Rapid Opiate Detoxification (ROD) treatment. (ii) To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place of his practice. (iii) To practise only in a group practice approved by the Medical Council of NSW where there are at least three (3) registered medical practitioners (excluding the subject practitioner). (iv) To practise under Category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time). (v) To complete within 12 months of the date of this decision the Issues in General Practice Prescribing course organised by Monash University. (a) Within 3 months of the date of this decision he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. (b) Within 6 weeks of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. (c) To bear responsibility for any costs incurred in meeting this condition. (d) In the event that the Issues in General Practice Prescribing course is unavailable, he must propose to the Medical Council of NSW for approval a similar course to be undertaken and satisfactorily completed by him within 12 months of the date of this decision. (vi) To complete within 12 months of the date of this decision the Addiction assessment and treatment; practice and innovation course organised by Monash University. (a) Within 3 months of the date of this decision he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. (b) Within 6 weeks of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. (c) To bear responsibility for any costs incurred in meeting this condition. (d) In the event that the Addiction assessment and treatment; practice and innovation course is unacceptable, he must propose to the Medical Council of NSW for approval a similar course to be undertaken and satisfactorily completed by him within 12 months of the date of this decision. Such approval is not to be unduly withheld. (vii) To forward evidence to the Medical Council of NSW within 14 days of this decision, that he has provided a copy of this decision and these practice conditions to the Principal of the practice or other responsible senior officer in any place that he works. (viii) Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of this decision and these practice conditions to the Principal of the practice or other responsible senior officer in any place that he works. (ix) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare for the purpose of monitoring compliance with these conditions. (x) To authorise the Medical Council of NSW to notify current and future persons or organisations at places where he works as a medical practitioner in Australia, of any issues arising in relation to compliance with these conditions. 3. Condition (iii) of Order 2 is not to be reviewed for a minimum period of 2 years from the date of this decision. 4. Condition (iv) of Order 2 is not to be reviewed for a minimum period of 12 months from the date of this decision. 5. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 6. Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply while the practitioner's principal place of practice is anywhere in Australia other than New South Wales so that a review of these conditions can be conducted by the Medical Board of Australia. 7. The practitioner is to pay the applicant's costs of these proceedings as agreed or otherwise as assessed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 08 October 2015 - numerical formatting error in orders. 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: 08 October 2015