Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Khan [2016] NSWCATOD 32 Hearing dates: 30 November 2015 and written submissions received 1 December 2015. Date of orders: 23 March 2016 Decision date: 23 March 2016 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr S Mares, Professional Member Dr L King, Professional Member Y Rowling, General Member Decision: (1) ORDER the registration of Dr Hamid Khan (the practitioner) recorded on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled. (2) The Registrar is requested to notify the Medical Council of NSW of Order 1 of these orders as soon as practicable. (3) ORDER the medical practitioner pay the costs of and incidental of the proceedings of the Health Care Complaints Commission as agreed and failing agreement liberty to apply to the Tribunal. (4) The Registrar is requested to forward a copy of these reasons to the parents of the child referred to in the Schedule to the complaint as Patient A. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 NSW – Professional disciplinary proceedings brought by HCCC against practitioner. Where two complaints heard together. Where it is asserted that the practitioner engaged in conduct that demonstrates his practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or expertise. Where it is asserted practitioner's medical records in respect of an 8 year old child were inadequate. Where separate complaint asserts practitioner inappropriately prescribed medications for himself, and failed to maintain adequate records in respect of his self-prescribing. Where it is also asserted practitioner suffers impairment and further asserted he is not competent to practise. Where practitioner withdraws material filed and does not seek to defend complaints. Where all complaints are found proven. Legislation Cited: Civil and Administration Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (Review) Bill 2016 Health Practitioner Regulation National Law (the National Law) Health Practitioner Regulations (New South Wales) Regulation 2010 Legal Profession Uniform Law (NSW) (the Uniform Law) Legal Profession Uniform Law Application Act 2014 (NSW) Medical Practice Regulation 2008 (NSW) (now repealed) Cases Cited: Briginshaw v Briginshaw (1938) CLR 366 Clyne v NSW Bar Association [1960] HCA 40 (1960) 140 CLR 186 Dasreef Pty Ltd v Hawchar [2011] HCA 21 Health Care Complaints Commission v Do [2014] NSWCA 307 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA66 (1992) 67 ALJR 170 Texts Cited: NSW Civil and Administrative Tribunal Annual Report 2014 - 2015 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Hamid Khan (Respondent) Representation: Counsel: P Griffin SC (Applicant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal Pty Ltd (Respondent) File Number(s): 1520166 and 1520092 Publication restriction: An order restraining publication of the name of the Patient set out in Schedule A to complaint (File 1520166) and the names of his parents was made under Schedule 5D cl 13 of the Health Practitioner National Law on 30 November 2016 REASONS FOR DECISION Introduction 1. The event that was the catalyst for these proceedings was the tragic death on 28 March 2009 of an eight year old male child (the child) who suffered septic shock consequent on a ruptured appendix. 2. Dr Hamid Khan (the practitioner) is a 77 year old general practitioner who was first registered in Australia in 1975. The practitioner practised in NSW in a number of general practices and in 2009 was a partner in a medical practice at Busby, NSW. Until the events leading to the child's death he had an unblemished record as a general practitioner for over three decades. His registration was suspended on 15 July 2013 following a hearing under s 150 of the Health Practitioner Regulation National Law (the National Law) constituted by delegates of Medical Council of NSW. 3. The practitioner was the first doctor to see the child in March 2009. The Health Care Complaints Commission (the HCCC) assert his failure to conduct a proper examination of the child, his inappropriate prescribing, and lack of proper advice to the child's parents to ensure the child was taken to hospital if his condition deteriorated were the first of a series of errors that led to the avoidable death of the little boy. 4. On 23 March 2009 the child's mother took the child to the practice where he was seen by the practitioner. The practitioner was not the child's regular general practitioner. The Coroner who conducted the inquest into the child's death recorded in his reasons that the child complained of abdominal pain and vomiting. He noted "it is not clear how close and thorough was [the practitioner's] examination but he entirely missed [the child's] appendicitis". 5. On 23 and 24 April 2013 following an investigation into the circumstances of the practitioner's involvement in the child's death, and notification to him of a complaint by the HCCC about his treatment of the child and his records of the consultation, a Professional Standards Committee (the PSC) was convened. The members of the PSC were concerned about the practitioner's presentation including the manner in which he answered questions. The PSC concluded they should adjourn their inquiry with a recommendation that the practitioner be assessed for impairment and for consideration of his capacity to practise medicine. As noted above, at the subsequent s 150 hearing the practitioner's registration was suspended, and remained suspended at the date of the hearing. 6. On 15 May 2015 the HCCC filed an application for disciplinary findings and orders with a complaint annexed (the first proceedings) in the Tribunal. The first proceedings assert that the practitioner is guilty of unsatisfactory professional conduct as defined in the National Law because his conduct demonstrates his knowledge, skill or judgment possessed, or care exercised by him is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It is asserted the practitioner inappropriately prescribed medications for himself and relatives, and that he failed to maintain proper records in breach of the Health Practitioner Regulations (New South Wales) Regulation 2010. 7. The complaint document further asserts the practitioner suffers an impairment being a mild cognitive impairment and/or vascular dementia. It is also asserted that the practitioner lacks the mental or physical capacity to practise as a medical practitioner. 8. Further proceedings (the second proceedings) were filed with the Tribunal on 26 August 2015. In the complaint annexed to the application the HCCC assert the practitioner is guilty of unsatisfactory professional conduct. The particulars relied on in respect of the complaint focus on the practitioner's treatment of the child on 24 March 2009 and the asserted inadequacy of his medical records on that occasion. 9. In neither proceeding is it asserted that the practitioner is guilty of professional misconduct. 10. In August 2015 procedural directions were made by the List Manager at the request of the parties for the two proceedings to be heard together. Subsequently substantial material was filed, including replies by the practitioner, and expert evidence was initially sought to be adduced by both parties from various psychiatrists and neuro-psychologists. It was the practitioner's position until the commencement of the hearing that he should be permitted to practise with conditions on his registration. 11. The practitioner's position changed dramatically on the morning of the first day of the hearing. Mr S Barnes of counsel, who appeared for the practitioner, advised us that he was satisfied the practitioner was competent to give him instructions. He advised the practitioner wished to surrender his registration, but said his attempts to do so been unsuccessful. This was because his registration was suspended, and the Australian Health Practitioner Regulation Agency (AHPRA) indicated he could not surrender his registration whilst the suspension remained in place. 12. Mr Barnes also advised that the practitioner conceded the complaints were proven, and that an order could be made removing his name from the register. He also advised the practitioner would not oppose a costs order being made in favour of the HCCC. We were also told that the practitioner would not appear and give evidence. Mr Barnes formally advised that no documents were tendered to be relied on in his client's case. 13. In the light of the position adopted by the practitioner we treated the matter as essentially undefended and only had regard to the material relied on by the HCCC and the two replies filed on the practitioner's behalf. 14. Having reviewed that material, and considered the careful and helpful outline of argument of Mr P Griffin SC, counsel for the HCCC, provided on 1 December 2015, we were independently satisfied that the complaints were proved. As we conclude the practitioner is not fit to practise medicine, we will make an order that his registration be cancelled. Although the HCCC seek an order that the practitioner be precluded from making an application to re-apply for a period of two years, we consider, in the exercise of our discretion, this order is unnecessary. Our reasons for this conclusion are set out later in these reasons. 15. These are the reasons for our orders. For convenience only, our reasons deal first with the complaints as particularised in the second proceedings, and then separately deal with the first proceedings. We have adopted this unusual course for two principal reasons. First, and of most importance, we believe it is appropriate that we highlight the errors which were part of the chain of events leading to the child's death in order that our reasons bring to the attention of other practitioners what would be appropriate clinical practice in similar circumstances. Secondly, the second complaint, although filed later, deals with factual matters occurring in 2009. This may be compared with the first complaint which essentially is concerned with matters post 2011. We also note that this was the order adopted by the HCCC's senior counsel, Mr Griffin in his written outline of argument. Background 1. As earlier noted, the practitioner was born and educated in South Africa. In 1970 he obtained Bachelor of Medicine and Bachelor of Surgery degrees from Witwatersrand University, Johannesburg, South Africa. 2. After serving an internship in a large South African hospital, the practitioner ran two medical practices in South Africa. 3. Although first registered in Australian in 1975, the practitioner only commenced practising as a general practitioner in NSW in 1985. He initially conducted his own practice but from 1999 he commenced working in medical centres as an independent contractor. 4. Prior to his suspension the practitioner was employed at a medical centre in the Liverpool area. 5. On 23 March 2009 the child's mother took him to the medical centre where he saw the practitioner. The practitioner examined the child and prescribed Donnalix Elixir 5ml to be taken three times a day. The practitioner asserts he examined the child's abdomen whilst the child was seated. The practitioner asserts in a statement relied on by the HCCC "I asked [the child's] father to bring him in the following day and to otherwise observe his progress". It is not in dispute that the child's father did not attend the consultation. 6. The child was subsequently seen by another general practitioner from the practice early in the morning of 26 March 2009. That doctor diagnosed the child as suffering a possible ruptured appendix, called an ambulance and the child was conveyed to Liverpool Hospital. After some hours he was transferred to The Children's Hospital, Westmead, and again, after further delays, eventually underwent surgery. He died in his mother's presence on 28 March 2009. 7. A Coroner's inquest was held in May 2011. The practitioner was unable to appear at the inquest and medical certificates were tendered to the coroner who noted his incapacity at the time of the coronial hearing. 8. In 2011 the practitioner underwent a coronary artery bypass. The practitioner asserted to an expert witness that he had a pacemaker inserted in 1997. 9. The practitioner attended a PSC inquiry on 23 and 24 April 2013. That committee concluded at [28] of its reasons: We accordingly came to the conclusion that we should adjourn the inquiry and refer [the practitioner] to the NSW Medical Council with a recommendation that he be assessed for impairment, and his capacity to practise medicine. 1. On 15 July 2013 proceedings were held by delegates of the Council under s 150 of the National Law. Prior to the hearing the practitioner underwent assessment by Dr Chanaka Wijeratne (Dr Wijeratne) a consultant psychiatrist. The delegates noted that Dr Wijeratne, after conducting testing, concluded that the practitioner showed "significant cognitive impairment". The delegates own observations of the practitioner supported Dr Wijeratne's diagnosis. An order was made suspending the practitioner's registration. 2. The delegates in their reasons published after the s 150 proceedings recorded at [19] "His family does not have a GP and [the practitioner] looks after their health". 3. The practitioner sought a review of the delegates' decision to suspend him. He relied on a report of Dr Enrico Parmegiana in support of his application. The practitioner was referred to a Council appointed neuropsychologist, Dr Wayne Reid for assessment prior to the conduct of the review. 4. The practitioner came before an Impaired Registrants Panel (IRP) on 30 October 2013. The IRP determined the practitioner could not give an informed consent to voluntary suspension and noted there was no risk to the public as he remained suspended. The statutory provisions and authorities relevant to both proceedings 1. These proceedings are governed by the National Law and the Civil and Administration Tribunal Act 2013 (NSW) and the regulations and rules made under those Acts. The effect of a suspension order 1. We commence by noting that s 165H of the National Law provides that no inquiry into a complaint need be conducted if the practitioner who is the subject of the complaint "admits the subject matter of the complaint in writing to the Tribunal". We have noted Mr Barnes' oral advice to the Tribunal and taken account the replies filed on 13 November 2015 in respect of each proceeding. Although some complaints are admitted in the reply to the first proceedings, in the reply to the second proceedings the practitioner denies he is guilty of unsatisfactory professional conduct. Thus, the criteria in s 165H of an admission in writing is not satisfied and we must proceed with an inquiry into the complaints as particularised. 2. It is also appropriate at this point we refer to the effect of the suspension of the practitioner's registration. We note that we were informed by Mr Barnes that the practitioner had tried to surrender his registration, but AHPRA, who maintain the public register on behalf of the Medical Board of Australia, had expressed the view it was unable to record the surrender because of the provisions of the National Law. 3. The National Law specifies how an order suspending a practitioner's registration can be discharged or "lifted". A suspension of a practitioner's registration may be imposed by an order under s 150 of the National Law. That provision may be likened to the granting of an urgent interlocutory injunction to protect the health and safety of the public. Having imposed an order suspending a practitioner, the relevant Council (in this case the Medical Council of NSW), may at any time end a period of suspension (s150C). No application was made by the practitioner to the Medical Council at about the time of the hearing before us to lift the suspension in order that his surrender of registration could be recorded on the register. It may be argued that given the mandatory requirement that a Council, who have imposed a suspension on a practitioner's registration under s 150 to refer the matter to the HCCC under s 145D of the National Law, may not re-consider the matter until the complaint is investigated, and if prosecuted, until the conclusion of Tribunal proceedings. However, s 150 (2) of the National Law provides that a suspension imposed remains in place until the first of two events, namely a complaint is disposed of or the suspension is ended by the Council. 4. The second avenue for lifting a suspension may occur if the practitioner lodges an appeal with the Tribunal under s 159 and is successful. Then the Tribunal may make an order terminating the suspension (s 159 (1). That avenue had no application in this case. 5. The third way a suspension may be lifted is if a practitioner applies for a review of an order made by a Council, or applies to an appropriate review body for its discharge. 6. Section 228 (l) of the National Law provides a National Board must record on the register relevant to a registered medical practitioner the fact he or she is suspended from practice, and if suspended for a particular period, when that suspension expires. 7. Section 176D, which is found in Part 8 of the National Law, provides as follows: 176D Effect of suspension If a person's registration as a health practitioner or student is suspended under this Law the person is taken during the period of suspension not to be registered under this Law, other than for the purposes of this Part. 1. Thus, it may be seen, while disciplinary or other proceedings are on foot under Part 8 of the National Law, the suspension does not cancel a practitioner's registration, even though the annual period for renewal may come and go. Rather, the effect of the section is to leave the registration in place, but the right to practice is suspended. Section 105G deals with the ending of suspension. It provides as follows: 150G Ending suspension [NSW] When a suspension imposed under this Subdivision ends, the person's rights and privileges as a registered health practitioner or student in the health profession are revived, subject to-- (a) any other action taken by the Council for the profession under this Subdivision; or (b) any order of the Tribunal on a complaint referred to the Tribunal. 1. Section 149A and s 149C provide a suite of orders that the Tribunal may make. However, the provisions do not specifically include a power to discharge an order suspending a practitioner. If a Tribunal cancels a practitioner's registration it must be inferred that such a final order, subsumes or negates a suspension order. This interpretation is reinforced by s 150G. Further, a National Board must give effect to the decision of the Tribunal (an adjudication body) unless the decision is stayed on appeal (s 176A). 2. It appears to us unfortunate that if a practitioner, subject of a complaint, and who is suspended, wishes to surrender his or her registration, particularly if the practitioner is prepared to admit the complaint in writing, and is prepared to sign a declaration that he or she does not intend to practise again, they are precluded from so doing but must wait for a decision of the Tribunal. Unsatisfactory professional conduct 1. Complaints One and Two in both the first and second proceedings involve allegations of unsatisfactory professional conduct. A non-exhaustive definition of unsatisfactory professional conduct is found in s 139B of the National Law. The relevant provisions of that section for the purposes of the first and second proceedings are s 139B (1) (a) and (b). They provides as follows "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following— (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. Impairment 1. Complaint Three in the second proceedings asserts the practitioner is impaired within the meaning of s 5 of the National Law. There impairment is defined as follows: "impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect-- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or … Competence to practise 1. Complaint Four in the second proceedings asserts the practitioner is not competent within the meaning of s 139 (a) of the National Law. Section 139 (a) provides: 139 Competence to practise health profession [NSW] A person is "competent" to practise a health profession only if the person-- (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) … 1. Section 149C provides that the Tribunal may suspend or cancel a practitioner's registration if it is satisfied that the practitioner is not competent to practise the practitioner's profession. Section 149C reposes a discretion in the Tribunal to determine whether or not it should make an order that an application for review of its orders, which may include cancellation of registration, may not be made until after a specified period of time. Conduct of the proceedings – rules of evidence 1. Unlike disciplinary proceedings against a legal practitioner, in proceedings under the National Law the Tribunal is not bound by the rules of law regarding the admission of evidence, but may inform itself of any matter in the way it thinks fit (see Schedule 5D cl 2). The standard of proof; onus of proof 1. Given the seriousness of the proceedings for both the practitioner and the public the complaints must be proved to the civil standard, that is on the balance of probabilities but to a level of satisfaction commensurate with their gravity (see Briginshaw v Briginshaw (1938) CLR 366; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA66 (1992) 67 ALJR 170. The onus of proof is that of the HCCC. The effect of the Tribunal's orders 1. The role of orders made at the conclusion of the proceedings is to protect the public and not to punish the practitioner (see Clyne v NSW Bar Association [1960] HCA 40 (1960) 140 CLR 186). The objects of the National Law 1. All matters heard by the Tribunal in NSW are informed and guided by the objects set out in s 3 of the National Law so far as they are relevant, but particularly having regard to s 3A which provides as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. The second proceedings 1. The particulars pleaded in the first complaint may be broadly summarised as follows: 1. A failure to take a complete history of the child's symptoms, a failure to conduct a thorough examination of him, and to provide appropriate advice to his parent. 2. Prescribing an inappropriate medication for the child for his asserted gastritis. 3. A failure to keep an appropriate medical record of the consultation. 1. The practitioner's clinical records were available to us. They are brief, and note "Vomiting Abo" undecipherable Rx "Donnalix Elixir 5ml tds". On 19 May 2009 the practitioner wrote a letter headed "To whom it may concern". He noted the child was complaining of "vomiting which has subsided, abdominal pain and sore throat". He also noted under the heading "Examination", "Normal cardiovascular and respiratory systems. Abdomen: tender upper area. Apyrexial". Under the heading "Prognoses" the practitioner recorded "Dad was told to bring the child the following day to observe progress or otherwise". 2. The child's mother, who attended the consultation, provided a statement to the police on 22 December 2010. She recorded that the practitioner had taken the child's temperature and checked his heart sounds but did not check the child's stomach nor did he have the child lie down to check or listen to his stomach. She does not record any advice being given to her by the practitioner about taking the child to hospital or bringing him back to the surgery the following day. 3. The reasons of the PSC note at [13] the practitioner was unable to recall the consultation on 24 March 2009 but rather he referred to his "usual practice" to consider a differential diagnosis. The PSC also note the evidence of the child's parents that it was the mother, not the father, who took the child to the medical practice. 4. The HCCC rely on an expert report prepared by Dr Harry Nespolon (Dr Nespolon) in February 2012. Dr Nespolon comments on the practitioner's notes and opines they are inadequate. Dr Nespolon sets out the matters the practitioner should have recorded and states: The history as described above would have given a doctor the opportunity to test a variety of potential differential diagnosis. It would also have been able to assess how unwell the patient may have been 1. In discussing the practitioner's examination of the child, Dr Nespolon notes it was inappropriate to conduct an abdominal examination with the child upright rather lying on an examination couch. He opines: An adequate examination would require the doctor to take some time to feel the abdomen for the following signs: Guarding –where the patient has a tender abdomen and "protects' themselves from feeling pain Rebound tenderness – where the anterior abdominal wall is pressed down and then released, the patient will often complain about pain twice – once with initial pressing and then when the hand is removed. Rosving's sign – when percussing away from the tender site causes pain in another part of the abdomen. These three signs all demonstrate peritoneal irritability, which is present during appendicitis and other forms of significant bowel disease, such as perforation. 1. At [6.2] of his report, Dr Nespolon opined "that children of this age do not frequently suffer from gastro-oesophageal reflux (GORD) biliary, hepatic, gastric, splenic or pancreatic disease". He explained: If a child of this age was tender in the "upper area" the doctor should have been alert to [sic] something unusual or unexpected was going on in the patient. This should have made the doctor more closely examine the patient attempting to localise the source of the problem. Before making a common diagnosis of gastritis in these circumstances you would have wanted to be sure that there was not a more significant diagnosis. Especially in the context of an unwell patient. 1. At [6.4] Dr Nespolon opined: While the patients [sic] symptoms could have been consistent with the diagnosis of "viral illness with gastritis" [the practitioner] … had not done enough to exclude other more serious illness. 1. Later in his report, Dr Nespolon explained that if the diagnosis was gastritis, "giving Donnalix would not be considered appropriate therapy". He went on to explain that the parents should have been advised on how to maintain hydration in the child, and other actions they should have taken concerning his diet and if he continued to vomit or have diarrhoea. 2. Given the child's presenting symptoms of upper abdominal pain, Dr Nespolon opined this could justify obtaining an abdominal X-ray. He further opined even a diagnosis of constipation could justify an X-ray. 3. In dealing with the practitioner's assertion that he had told "Dad" to bring back the child the following day, Dr Nespolon noted the advice, if given, appeared inconsistent with the practitioner's diagnosis. He explained: He should have given some clear instructions as to when and where the parents should take [the child]. 1. In dealing with the adequacy or otherwise of the practitioner's clinical notes, Dr Nespolon encountered a similar difficulty to us, namely, that he could not decipher part of the notes. This led him to conclude another practitioner would have been unable to tell where the abdominal pain had been when the practitioner saw the patient. 2. In respect of each particular of the complaint, Dr Nespolon opines "the practitioner's conduct did not meet the standard expected of a practitioner of an equivalent level of training and experience applicable at the time of the conduct and this departure was significantly below the standard and invites strong criticism". 3. Before recording our conclusions we also note the findings of the late Deputy State Coroner, Magistrate Scott Michell. His Honour, having noted differing views of two experts and the unavailability of the practitioner said: It seems to me however, that his [the practitioner's] evidence that he requested "[the child's name] Dad" to bring him back next day, whereas it was actually [the child's mother] to whom he spoke, invites one to wonder how much thought and attention [the practitioner] gave to the matter. 1. We accept the unchallenged evidence of Dr Nespolon, which we have summarised in its important aspects above, in respect of each of the particulars of Complaint One. His expert opinion is in similar terms to the opinions expressed by Dr Marcela Cox (Dr Cox) who prepared a report for the coronial proceedings dated 19 June 2011. We are satisfied to the requisite civil standard that the particulars in Complaint One of the second proceedings are established and that the practitioner is guilty of unsatisfactory professional conduct. 2. Complaint Two in the first proceedings is framed in the alternative. The first limb of the complaint relies on the statutory definition of unsatisfactory professional conduct in s 139B (a). That provision is set out by us earlier in these reasons. In the alternative, the HCCC rely on a contravention by the practitioner of regulations 4 and 5 of Sch 1 of the Medical Practice Regulation 2008 (NSW) (now repealed). 3. We have earlier set out Dr Nespolon's opinion that the practitioner's records were inadequate and did not comply with the relevant regulation. 4. The regulation, which is substantially replicated in the current 2010 regulation made under the National Law, so far as is relevant to these proceedings required a practitioner to maintain a medical record for each patient. (cl 4). The content of the record was required to conform with Schedule 1 of the regulation. It provided as follows: 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 the following: (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), (b) particulars of any clinical opinion reached by the registered medical practitioner, (c) any plan of treatment for the patient, (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 shorthand 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. 4 Alteration and correction of records A registered medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in such a manner as to obliterate, obscure or render illegible information that is already contained in the record. 1. Dr Cox, having referred to the regulation itself and the RACGP Standards for General Practice 3rd edition, opines in her report: Despite these clear guidelines, general practitioners vary in the amount of clinical detail they record in a patient's file. It is usually accepted that the amount of information required in the notes should reflex the complexity or potential seriousness of the presentation. Abdominal pain is a condition that, whilst common, also has potentially serious causes. Doctors should therefore take a reasonably detailed history to try to exclude significant causes and record this in their notes. The history recorded by [the practitioner] lacks details such as the duration of [the child's] symptoms, the frequency and nature of the vomiting, the location and severity of the abdominal pain, whether there had been any fevers noted, any change in bowel habit and whether or not [the child] had been able to eat or drink. 1. Dr Cox went on to point out a number of other deficiencies in the practitioner's notes. She recorded "[t]he practitioner has stated in his letter [the child] did not have a fever on examination and that the tenderness was in his upper abdomen, although I cannot see these details recorded in the medical notes. That observation of Dr Cox, in our view, highlights one considerable deficiency in the notes, namely the difficulty any other practitioner would have on reading the notes to appropriately take over the care of the child. 2. While we were not taken to the transitional provisions on the coming into effect of the National Law we note that a contravention of a NSW regulation whether by act or omission is an incident of unsatisfactory professional conduct (see 139B (1) (b) of the National Law). The transitional provisions set out in s 289 of the National Law apply to the situation where a complaint has been commenced, but not completed, before the "participation day for a participating jurisdiction". The complaint in those circumstances continues under the repealed legislation. That is not the case here as the complaint was commenced in 2015. 3. Section 305 provides that the regulations may contain provisions (saving and transitional provisions) and that those savings and transitional provision may have retrospective operation "to a day not earlier than the participation day for that participating jurisdiction". Section 305 (3) provides: This section and any savings and transitional provisions expire on 30 June 2015. Discussion and conclusions – record keeping and the second proceedings 1. Although in our view it is not beyond doubt that a repealed NSW regulation is one on which reliance may be placed as a "contravention of this Law" or under "the NSW Regulations" we are satisfied that practitioner's notes were inadequate and in 2009 did not comply with the 2008 regulations then in force. In reaching this conclusion we concur with the opinions expressed by Dr Nespolon and Dr Cox. The "contravention" or inadequacy of the notes, even if not falling within s 139B (1) (b), do however constitute unsatisfactory professional conduct as defined in s 139B (1) (a). We are satisfied that, as pleaded in the first of the alternate positions in the complaint, unsatisfactory professional conduct is proven in respect of the record keeping complaint. 2. For the reasons enunciated above, and subject to the qualifications we have expressed in [70] we are satisfied that the practitioner is guilty of unsatisfactory professional conduct as defined in s 139B (1) (a) and (b) of the National Law. The first proceedings 1. The first proceedings, in broad terms, allege first that the practitioner is guilty of unsatisfactory professional conduct in respect of his self-prescribing and failing to keep appropriate medical records under the 2010 regulation made under the National Law. Secondly, it is asserted the practitioner is impaired, and thirdly, by reason of his impairment, he lacks the physical or mental capacity to practise as a medical practitioner. 2. The HCCC assert that between 22 July 2011 and 16 June 2013 the practitioner inappropriately prescribed for himself contrary to the NSW Medical Policy "Medical Practitioners treating relatives and Self" (Complaint One). It is further asserted the practitioner failed to keep proper medical records in accordance with regulations. In his reply filed 14 November 2016 the practitioner admits these two complaints. 3. We note that in his reply the practitioner admitted unsatisfactory professional conduct in that he self-prescribed contrary to the NSW Medical Council Policy "Medical Practitioners treating relatives and self" and that he did not keep records for his own self-prescribing. 4. The Council's guide published 4 October 2011 notes under the heading "Background": The Council is of the view that all medical practitioners should have their own, independent General Practitioner and should not initiate treatment for themselves. 1. The first principle in the guideline is: All medical practitioners should have their own, Independent General Practitioner 1. The HCCC rely on an expert report of Dr Emery Kertesz (Dr Kertesz) dated 12 October 2014. 2. Dr Kertesz noted that statements made by the practitioner to the PSC revealed that the practitioner "had no General Practitioner himself and that he had rendered treatment to himself and also direct members of his family including his wife, son, and daughter". Dr Kertesz noted relevant background material about the practitioner's qualifications and practice. He recorded that, although the practitioner did not have a General Practitioner, he had seen other General Practitioners on an isolated basis. He also recorded "he has coronary heart disease and sees a Cardiologist 'second monthly'". 3. The prescribing records relevant to the practitioner and as set out in Dr Kertesz's report disclose he wrote prescriptions for a number of drugs for himself including Clopidogrel (Plavix) 75mg 6 prescriptions all dated 22. 7.11, 6 prescriptions all dated 13.3.12 and 2 prescriptions dated 18.3.13, Bisoprolol (Bicor) 2.5 mg. 5 prescriptions dated 7.5.12 and 4 prescriptions dated 21.12.12, Candesartan/Hct (Atacand Plus) 4 mg 5 prescriptions all dated 7.5.12, Cephalothing (Keflex) 500mg. 5 prescriptions between 8.5 – 16.6.13 and Seretide (Fluticasone) inhaler 2 prescriptions both dated 16.6.13. 4. Dr Kertesz opined the practitioner's actions in self-prescribing showed a lack of adherence to the Medical Board of Australia publication "Good Medical Practice - a code of conduct for Doctors in Australia". We pause to note failure to comply with this code is not relied on in the particulars of the complaint, rather reliance is placed on the Medical Council's policy. Little turns on that however as the principles in the two documents are broadly analogous. 5. Dr Kertesz also referred to the practitioner's "lack of insight and forethought to investigate this issue further rather than seek alternative avenues for his own medical management". Dr Kertesz found the practitioner's self-prescribing to be a significant departure "from the standard". He opined "[h]is failure to investigate alternatives for his own personal management and treatment ….makes his conduct significantly below the standard" and went on to note "and [it] invites my strong criticism." 6. We accept Dr Kertesz's unchallenged opinions expressed in his report and find the practitioner's self-prescribing constituted unsatisfactory professional conduct. 7. We are critical of the practitioner's actions as noted by Dr Kertiesz in retrospectively creating or enhancing records of treatment of himself in response to the HCCC's request for his medical records. It appears he re-constructed the records using memory, diaries and dispensing dates. We accept such action is contrary to the 2010 regulation. The conduct constitutes unsatisfactory professional conduct both under s 139B (1) (a) and (b). 8. We now turn to the impairment complaint and the "not fit to practise" complaint. In many cases, an impaired practitioner will, with appropriate safeguards, be fit to practise. But this is not such a case. The practitioner's impairment and its impact on his fitness to practise are intrinsically linked. We propose to now examine both complaints. 9. As noted earlier in these reasons, the impairment pleaded is that the practitioner suffers from: 1. Mild cognitive impairment and/or 2. vascular dementia. 1. In his outline of submissions, Mr Griffin, SC relies on three expert opinions to prove this complaint. The experts who provided reports are Dr Wayne Reid, Neuropsychologist, (Dr Reid), Dr Pauline Langeluddecke, Clinical Psychologist (Dr Langeluddecke) and Dr Wijeratne. We had the benefit of reviewing the curriculum vitae of each of the practitioners. We are satisfied all of the practitioners are well qualified to provide expert evidence to the Tribunal. Their evidence demonstrates it is wholly or substantially based on specialised knowledge from their training, study or experience. (see Dasreef Pty Ltd v Hawchar [2011] HCA 21). 2. Dr Reid provided a report dated 4 September 2013. He referred to material he had read including Dr Wijeratne's report of 14 June 2013 and a report of Dr Parmegiana, Consultant Forensic Psychiatrist (a report obtained by the practitioner). Dr Reid based his opinion on an interview with the practitioner and a neuropsychological assessment. Dr Reid noted that the practitioner denied any cognitive problems or that he suffered from anxiety or depression. However, it was noted the practitioner reported being stressed by his inability to practise medicine and that he was under considerable financial stress. 3. Dr Reid found the practitioner's level of intellectual functioning based on test results to be within the average range on tests for intellectual abilities but opined "it is felt his current level of intellectual functioning is below that expected" of the practitioner. 4. In considering the practitioner's memory Dr Reid noted he showed no impairment on verbal memory tasks, but "his serial auditory verbal learning was below that expected and he had more marked evidence of impairment in his visual memory". 5. Significantly, Dr Reid reported: [t]he practitioner's] verbal and non-verbal reasoning skills were within the low average range as was his capacity to plan and organise a complex activity. By contrast he showed marked impairment in his frontal executive skills for concept formation, speed and flexibility of thinking and verbal fluency. 1. Dr Reid noted a significant number of perseverative responses (56) and 51 perseverative errors. He opined: His performance on tests of executive function reveals a marked decline in his high level decision making skills, complex problem solving and adaptive functioning. 1. Dr Reid explained that the practitioner maintained comprehension and conversational skills but that he had "highly significant problem in his naming abilities". 2. At paragraph 12.6 of his report Dr Reid set out his conclusions as follows: Overall, considering the severity of his cognitive impairment particularly in the area of frontal executive functioning, information processing and difficulties with speed and flexibility of thinking I am of the opinion [the practitioner] presents with significant cognitive impairment that is likely to detrimentally affect his capacity to work as a general practitioner working independently in a solo medical practice. 1. Dr Reid also opined that the likely cause of the practitioner's cognitive impairment "is related to cerebrovascular disease" albeit that he recommended a brain MRI and assessment by a Neurologist presumably to confirm this diagnosis. 2. Dr Reid made other recommendations including that the practitioner undergo a performance assessment to determine what conditions "best apply to [the practitioner] in relation to his practise of medicine". 3. We were referred by Mr Griffin SC to a report of Dr Wijeratne dated 18 October 2013 and an email to be treated as a supplementary report dated 27 June 2013. The practitioner was first seen by Dr Wijeratne on 6 June 2013. At the conclusion of that consultation and testing using the Addenbrooke's Cognitive Examination, Revised (ACE-R), Dr Wijeratne opined that, whilst a diagnosis of dementia was difficult to make in the absence of corroborative evidence, the ACE-R score obtained by the practitioner was "highly suggestive of significant cognitive impairment". He further opined: The pattern of deficits on the ACE-R and history of multiple vascular risk factors, namely ischaemic heart disease, hypertension and dyslipidaemia, suggest vascular or mixed vascular/Alzheimer's pathology. 1. We note that the Impaired Registrants Panel comprised two highly qualified experienced psychiatrists. Those delegates of the Council observed the practitioner to be "illogical and inflexible in his thinking". Based on his presentation at the Impaired Registrants Panel, they independently found the practitioner suffers from an impairment. 2. In a further report dated 18 October 2013 Dr Wijeratne again referred to his further assessment of the practitioner. He noted that the practitioner, at that stage at least, had not informed his employer that he had been suspended, nor had he told his adult university student children who then were living with him. Dr Wijeratne noted that the practitioner repeatedly asked "to be allowed to work again because of his financial position". 3. Dr Wijeratne, having read Dr Reid's report, opined that "the neuropsychological assessment results confirm the diagnosis of Mild Cognitive Impairment and lead to consideration of a formal diagnosis of vascular dementia". He said the neuropsychological results "markedly increase my initial concerns about his cognition and capacity to practise safely". He concurred with the assessment of the delegates who conducted the s 150 proceedings that the practitioner could not practise safely even with conditions imposed. 4. We note that Dr Wijeratne made sensitive recommendations to assist the welfare of "this obviously well respected medical practitioner and his family" to adjust to retirement. 5. The one of the more recent reports before us was that of Dr Pauline Langeluddecke dated 10 September 2015. She had the benefit of reading the reports of Dr Wijeratne and Dr Reid and also cognitive test results from a Dr Jamie Berry's assessment of the practitioner. 6. Dr Langeluddecke expressed concerns that the test results she obtained were "likely to be subject to practise effects" and she expressed concerns about the validity of the findings. Under the heading "Dementia screening" Dr Langeluddecke reported: Overall score on the ACE-lll (of 83/100) was within the range of Mild Cognitive Impairment and possible dementia. 1. As with the other experts, Dr Langeluddecke found the practitioner's object naming to be very poor and that he was perseverative in his responses. In discussing "Executive Functions", Dr Langeluddecke noted "[t]here were qualitative signs of executive dysfunction during testing". 2. Under the heading "Summary and Opinion" Dr Langeluddecke opined: I am of the opinion [the practitioner] presents with Mild Cognitive Impairment with deficits most apparent in relation to processing speed and executive function. Cerebrovascular compromise is the most likely cause of [the practitioner's] cognitive impairments given his medical history. The areas in which [the practitioner's] cognitive weaknesses are most pronounced are those which are likely to show greatest decline with increasing age. 1. Of great relevance to our determination of the question of the fitness or otherwise of the practitioner to practise is the penultimate substantive paragraph of Dr Langeluddecke's report. There she opines: [t]he practitioner has considerable experience as a GP and is clearly very dedicated to his career and keen to resume GP work. He also presents with a warm, humble and engaging interpersonal style. These factors are positive attributes for employment as a general practitioner. However, I am of the opinion that [the practitioner's] cognitive trajectory with age and the cognitive reserve evident on present testing render him very poorly equipped to competently perform the duties expected of a general practitioner. Poor cognitive proficiency and executive function are of particular concern. [The practitioner's] cognitive limitations, which he appears to have very limited insight regarding, are likely to affect his clinical judgment and capacity to consistently implement strategies to compensate for his depleted cognitive resources. 1. We also accept Dr Wijeratne's opinion in his report dated 8 October 2015 which touches directly on the practitioner's capacity, or lack thereof, to practice in a group practice only seeing patients with less complex problems. Dr Wijeratne explained: Therefore, I remain of the opinion that [the practitioner] experiences at the very least Mild Cognitive Impairment. Importantly, he performs poorly on executive function which is essential for clinical problem solving, especially in novel and complex situations, an area that concerned Dr Berry. The nature and severity of this deficit is such that it undermines [the practitioner's] own argument that he would quickly detect more serious clinical problems in patients that should be referred on to a colleague. 1. We find, based on the conclusions of each of the experts relied on by the HCCC that the practitioner does suffer an impairment as particularised in the complaint. Further, we find by reason of his cognitive deficits that he lacks the mental capacity to practise medicine even with conditions. In this regard we accept and adopt the opinion of Dr Wijeratne. 2. As a consequence of our finding that the practitioner is unfit to practise medicine, we find it is appropriate to order that his name be removed from the register. 3. It is unclear from the evidence before us whether the cognitive deficits that have beset the practitioner at least from some time prior to 2013 contributed to his poor clinical skills when assessing the child in 2009. We note from the Coroner's reasons he was medically unfit at the time of that hearing in 2011 when he underwent coronary by-pass surgery. 4. It is very unfortunate, no doubt driven by the practitioner's lack of insight into his cognitive deficits and his concern to financially support his family that he took steps to seek to have his suspension lifted and to practise with conditions up to the commencement of the hearing. 5. The increase in cognitive deficits, frequently caused by vascular compromise, being experienced in the general community is cogently reflected in increased hearings in the Guardianship Division of this Tribunal and recorded in the Tribunal's annual report (NSW Civil and Administrative Tribunal Annual Report 2014-2015 p 40-41). We recognise that it is sometimes difficult for a health practitioner, particularly a doctor, who may be self-employed or an independent contractor, to objectively assess that the time has arrived when the health and safety of the practitioner's patients dictates that he or she should retire from practice. But practitioners have a duty to put the health and safety of the public before their own needs and desires. This case is a poignant example of the need for support for practitioners facing competing priorities at the end of a long and often highly successful career. We find that Dr Wijeratne's sensitive and caring recommendations for this practitioner set out in each of his reports have much wider application than this case. He refers to support from the Council, financial support from the Medical Benevolent Association and referral to the Doctors Health Advisory Service. Period before the practitioner may apply for re-instatement. 1. The HCCC asked that we make an order precluding the practitioner from seeking a review of the order cancelling his registration for a period of two years. No submissions were made to us why two years, or some other period, would be an appropriate restraint on the practitioner applying to the Tribunal. 2. We note the making of such an order is a matter of discretion, which must be exercised judicially. In this case the practitioner is now aged 77 years and has not practised for almost three years. We accept Dr Langeluddecke's opinion that he is unfortunately likely to suffer greater cognitive decline as he ages. We also give weight to Dr Wijeratne's opinion that online CME is not a substitute for practice. We were informed by Mr Barnes that the practitioner does not intend to practise again, although there was no evidence such as a statutory declaration from the practitioner to that effect. 3. At times there is very good reason for the Tribunal to make an order under s 149C (7). Such an order can prohibit vexatious or inappropriate applications. The order may reflect a period of time in which a practitioner may need to take remedial steps to cure or alleviate the circumstances that brought him or her before the Tribunal. The order may also reflect the seriousness with which the Tribunal views the practitioner's conduct and to ensure the safety of the public by precluding the practitioner from practising for a defined period. 4. Here we are satisfied that it is highly unlikely the practitioner will ever, because of his age, medical condition and lack of ongoing professional development, seek to be re-instated to the register. These matters impose a significant obstacle and deterrent to the practitioner applying for re-instatement. We do not in these circumstances find it is either necessary or appropriate to make an order under s 149C (7). Provision of these reasons 1. As with all professional disciplinary proceedings, unless otherwise ordered by the Tribunal, these reasons will be published on Caselaw and available to the public. That is to ensure adherence to the principles of open justice, to have a deterrent object to prevent other practitioners from engaging in like conduct, and to uphold the reputation of the profession (see Health Care Complaints Commission v Do [2014] NSWCA 307). 2. Section 165M requires the Tribunal to give a written statement of its decision to the parties, and the Council. Section 165 (3) provides "The Tribunal may also provide the statement of a decision to the persons the Tribunal thinks fit. 3. We note that we were informed that the child's mother wished to give evidence before us because the issue of the practitioner's examination and care of the child was in dispute. Although we indicated we would be happy to adjourn the hearing to enable her to do so, when we indicated a preliminary view of our conclusions, Mr Griffin SC advised she was content with us to proceed to determine the matter relying on the statements and other evidence before us. 4. It is our hope that although the parents will never forget the tragic loss of their beloved eight year old little boy, that the conclusion of these proceedings will bring them some closure. To that end, we propose to direct the Registrar, Occupational Division to make a copy of these reasons available to the parents on the day of publication. Costs 1. Schedule 5D Cl 13 provides that we may make an order for costs. The principles relevant to awarding costs are succinctly set out in the decision of Health Care Complaints Commission v Do by Meagher JA. It is unnecessary in this case we repeat them. 2. Mr Barnes at the commencement of the hearing informed us that the practitioner would consent to us making an order that the practitioner pay the HCCC's costs as agreed. We propose to make such an order. 3. We note that from 1 July 2015 NSW has introduced new legislation governing the legal profession (see Legal Profession Uniform Law Application Act 2014 (NSW) and Legal Profession Uniform Law (NSW) (the Uniform Law)). Division 4.3 of Part 7 of the Uniform Law provides a system for assessment of legal costs. The ability to refer parties to assessment if they are unable to agree on the quantum of a costs order made in proceedings under the National Law will introduced into Schedule 5D cl 12 by the Health Practitioner Regulation National Law (Review) Bill 2016. It is a practical method of resolving any conflict arising about the quantum of costs in an order made by the Tribunal. That bill has passed both Houses of Parliament, but has not yet been proclaimed. We accordingly have included an order providing liberty to apply to the Tribunal if agreement cannot be reached as to the quantum of costs. ORDERS 1. ORDER the registration of Dr Hamid Khan (the practitioner) recorded on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled. 2. The Registrar is requested to notify the Medical Council of NSW of order 1 of these orders as soon as practicable. 3. ORDER the medical practitioner pay the costs of and incidental of the proceedings of the Health Care Complaints Commission as agreed and failing agreement liberty to apply to the Tribunal. 4. The Registrar is requested to forward a copy of these reasons to the parents of the child referred to in the Schedule to the complaint as Patient A. ********** 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 11 April 2016 - Paragraph 2 The date "15 July 2010" amended to "15 July 2013". Paragraph 20 The date "24 June 2009" amended to "23 March 2009". 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: 11 April 2016