Health Care Complaints Commission v Ghannoum (No.2) [2016] NSWCATOD 17

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ghannoum (No.2) [2016] NSWCATOD 17 Hearing dates: On the Papers Date of orders: 08 February 2016 Decision date: 08 February 2016 Jurisdiction: Occupational Division Before: Hon G Mullane ADCJ - Principal Member Dr R Gordon - Professional Member Dr E Kertesz - Professional Member Ms M Kelly - General Member Decision: See Paragraph 31 Catchwords: Medical practitioner- stage 2 decision – prescribing drugs, medical records, breach of conditions of registration, health problems - extensive conditions imposed. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Wael Ghannoum (Respondent) Representation: Counsel: S F Beckett (Applicant)

Solicitors: Health Care Complaints Commission (Applicant) Withstand Lawyers (Respondent) File Number(s): 1420282 Publication restriction: Publication or broadcast of names or other identifying information of any patient is prohibited.

Judgment

Introduction 1. By the decision of 17 December 2015, the tribunal set out its factual findings, and reasons generally, and indicated in paragraph 172 as follows: The Tribunal has decided that for the protection of the public orders per (1) to (4) below should be made and is considering whether for the protection of the public there should be orders that have the effect per (5) to (10) inclusive: 1. A finding that the respondent is guilty of professional misconduct; 2. A reprimand; 3. Conditions 1 & 6 (regarding Schedule 4D and Schedule 8) drugs and condition 2 (Oxygen and Adrenalin) imposed on the Respondent's Registration in August 2012 to continue to apply. 4. Condition 4 (Supervision) imposed on the Respondent's Registration in August 2012 to continue to apply until 1 January 2017; 5. A recommendation by the Tribunal to the Medical Council of NSW that for review of medical records the supervisor use only medical records chosen randomly by the supervisor; 6. The Respondent's Registration be subject to the following further conditions: 1. He must not undertake solo practice after 29 February 2016; 2. He must attend once every 4 months for assessment and report to the Medical Council by a psychiatrist nominated by the Council and pay the reasonable fees of the psychiatrist; 3. He must remain in active follow-up with his general practitioner, his psychologist and psychiatrist and comply with their advice in regard to his treatment; 1. A condition of his Registration that the respondent join a Division of the Royal Australian College of General Practitioners within 1 month and attend at least one continuing, medical education course each month while registered to practice; 2. A condition of his Registration that the Respondent by 31 December 2016 do all acts necessary to become a Fellow of the Royal Australian College of General Practitioners and comply with the requirements to continue that Fellowship while ever practising as a general practitioner; 3. An order that the conditions referred to in (3), (4) (6) and (7) be critical compliance conditions, contravention of which will result in the Respondent's registration being cancelled; and 4. An order that the Respondent pay the Applicant's costs. 1. Pursuant to an order that the parties provide submissions in relation to paragraphs (5) to (10) inclusive of paragraphs 172 of the Stage 1 decision, submissions were received from the applicant and the respondent. 2. The respondent accepted the proposals (5) to (10) in paragraph 172, with the exception only of the proposal (6)(a) that he not undertake solo practice. On that issue the submission by his solicitors was as follows: We submit that proposal (6)(a) is not accepted by our client on the basis that it is redundant and an unnecessary oppression on our client. Our client is operating an AGPAL accredited solo practice, and on his own merit has made significant attempt to compromise with the HCCC and Medical Council by implementing safeguards to ensure his practice is operated with the upmost efficiency. Such behaviour is not only adherent to professional medical ethics and codes of conduct but surpasses such inherent obligation as he demonstrates autonomous and voluntary willingness to improve ad a medical practitioner and abide by the tribunal Imposed conditions. Such safeguards include: 1. His intention to employ other doctors to work within his practice; 2. Strong relationship, mentoring, monitoring, supervision and guidance from supervisors such as Dr Aloe (as previously ordered by the tribunal); 3. Compliance with the other conditions imposed by NCAT. Dr Ghannoum employment of more doctors to work within his practice is a reasonable and beneficial alternative to the provision (6) (a) of the conditions imposed. As such, it is reasonable to discern that for the past 3 years of practice, since the s150 proceedings and subsequent orders, Dr Ghannoum has demonstrated a great understanding of his misconduct and an astute comprehension of his responsibilities. To dismiss this personal and professional progression of Dr Ghannoum in rendering a decision as to the provision (6) (a) would be inequitable and unjust. Supervision companied (sic) with the acceptance of doctors to join his practice which has recently been accredited by AGPAL are significant attributions and safeguards which we submit are a better alternative to the provision of (6) (a). In light of the circumstance, if you fail to accept our submissions our client will suffer severe injustice and detriment. On this basis, we kindly urge you to accept our submissions. 1. The applicant proposed a particular wording of the condition. 2. The tribunal is concerned that the respondent will continue as a solo practitioner if it is not a condition of his registration that he not do so. The major disadvantage of this is the isolation from practitioners and isolation from their advice and the scrutiny and support of him and his practice of medicine. 3. The tribunal considers that this a critical requirement given the professional misconduct found against the respondent and his past lack of interest in, or commitment to, associating with fellow practitioners or attending continuing medical education. In the past the respondent has indicated to his supervisor and others a willingness and intention to commence practising with another or other practitioners. However, despite considerable time passing, he has not done so. Nor has he in the proceedings provided any evidence of any serious attempt to do so. 4. The public interest requires that he only practice in a group practice approved by the Medical Council of NSW where there are at least 2 other practitioners. When the tribunal's reasons were released on 17 December 2015, it appeared it was proposed that the condition would be that he must not practice solo until after end February 2016. Unfortunately, the tribunal members did not receive these submissions for the respondent until the week commencing 18 January 2016. 5. In the circumstance, the time for the respondent to make the necessary arrangements for him to practice with other practitioners should be about 3 months from the release of these reasons and the orders.