Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hadi v Medical Board of Australia [2017] NSWCATOD 143 Hearing dates: 15 September 2017, 26 September 2017 (submissions) Date of orders: 09 October 2017 Decision date: 09 October 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Dr M Cox, Professional Member Dr G Abbouyani, Professional Member M Kelly, Community Member Decision: (1) The appeal is upheld. (2) Proposed condition (6) determined by the respondent as contained in the letter from AHPRA to the appellant dated 24 April 2017 is deleted and is replaced by the following; 6. Not consult, examine, treat or perform any procedures on any female patient aged 16 or older. (3) Costs are reserved with liberty to apply which should be exercised within one month of this date. Catchwords: Medical practitioner – application for registration –prior misconduct of a sexual nature – registration allowed with modified condition. Legislation Cited: Health Practitioner Regulation National Law (NSW) Category: Principal judgment Parties: Dr Mohammed Hadi (Applicant) Medical Board of Australia (Respondent) Representation: Counsel: K M Richardson SC (Applicant) P Horvath (Respondent) Solicitors: Meridian Lawyers (Applicant) Medical Board of Australia (Respondent) File Number(s): 2017/00153899 Publication restriction: Non-publication order relating to the name of any patient or former patient of the appellant or any material which might tend to identify such patient. reasons for decision Introduction 1. The appellant in these proceedings, Dr Mohammed Hadi appeals from a decision of the respondent Medical Board of Australia to grant him limited registration as a medical practitioner with the imposition of conditions. Only one of these conditions is in contention for the purpose of this appeal. 2. The appeal is brought under the provisions of section 175 (1) (e) of the Health Practitioner Regulation National Law ("the Act") the relevant provisions of which are in the following terms: 175 APPELLABLE DECISIONS [NSW] (1) A person who is the subject of any of the following decisions (an "appellable decision") may appeal against the decision to the appropriate responsible tribunal for the appellable decision - … (e) a decision by a National Board to impose or change a condition on a person's registration or the endorsement of the person's registration, other than - (i) a condition relating to the person's qualification for general registration in the health profession; and (ii) a condition imposed by section 112(3)(a); … Note: An appeal under this section to the Tribunal in its capacity as an appropriate responsible tribunal is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) For the purposes of subsection (1), the "appropriate responsible tribunal" for an appellable decision is – (a) for a decision in relation to a registered health practitioner, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or … (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the National Board, may be given. 1. We shall assume that the fact that the appellant has applied for registration in connection with a proposed practice of medicine in a New South Wales regional area is sufficient to attract the jurisdiction of this Tribunal for the purpose of section 175 (2) (a). Certainly, neither party contended to the contrary. 2. It is uncontroversial that the appeal is by way of a hearing de novo, based on such evidence as is before this Tribunal as at the date of the hearing of these proceedings. 3. In summary, the controversy between the parties is limited to whether a condition should be imposed on the appellant's registration as a medical practitioner limited to providing services in an area of need which in effect precludes him from treating female patients except in the case of an emergency as sought by the respondent, or whether he should be permitted to treat female patients aged 15 or less as ultimately sought by the appellant in these proceedings. The factual background 1. The appellant is currently aged 40. He was born in Iraq. He graduated in medicine from the College of Medicine University of Iraq in 2000 and subsequently completed an internship at a number of hospitals in Iraq, became a resident medical officer in a number of hospitals and worked as a general practitioner both at a health centre and in private practice. He came to Australia in July 2009 on a student visa and then applied for refugee status, being granted permanent residency in March 2010. He became an Australian citizen in November 2013. 2. The appellant then set about obtaining registration as a medical practitioner in Australia, and after completing certain tests and clinical placements he became registered with the Medical Board of Australia in February 2013 limited to practising with supervision in an area of need. In April 2013 the appellant commenced working in general practice at a clinic in a regional town in South Australia and also provided emergency after hours medical services at a local hospital. 3. Approximately 20 medical practitioners worked at the clinic and patients would be either randomly assigned to medical practitioners who were rostered on duty at the time or could seek appointments with a doctor of their choice. 4. The appellant underwent a knee reconstruction in May 2013, having been injured playing soccer. He commenced his rehabilitation by attending a local gymnasium and in about August 2013 he met a female person whom we shall refer to as Ms M. He said that he would see her occasionally at the gymnasium. Ms M attended the clinic on 17 December 2013 with a lacerated finger. Although she was a patient at the clinic she had not been previously treated by the appellant. He saw her subsequently for follow-up treatment on 20, 23 and 24 December 2013. 5. On 28 April 2014 the appellant competed in an endurance fitness event in which Ms M also competed. After taking a photograph of Ms M at the event, the appellant discovered that her mother worked at the clinic as a nurse. 6. On 6 October 2014 the appellant saw Ms M while he was on duty at the hospital when she attended for the purpose of obtaining a certificate to return to work, which he gave her after he had conducted an examination. They engaged in a general discussion following this consultation concerning matters of fitness and fitness training. She told the appellant that she no longer attended the gymnasium because she had acquired some equipment which she used at her home. The appellant forwarded a photograph which he had taken of her at the endurance fitness event at her request to her telephone number which she gave him for that purpose. 7. The appellant next saw Ms M on 25 November 2014 when she attended the clinic complaining of back pain and was randomly directed to him. At the conclusion of the consultation she invited him to her home to use training equipment because he was training for another fitness endurance event to be held on 14 December 2014. By arrangement with her he went to her home on 2 December 2014 and used her equipment. 8. Ms M attended on the appellant as a medical practitioner for the last time on 3 December 2014 when he provided her with a certificate permitting her to return to work. 9. The appellant said that he again trained on Ms M's equipment at her home on 7 December. On 14 December he participated in an endurance event and that evening went to Ms M's home where she gave him a massage. Following a number of text messages Ms M went to his home in the early hours of 21 December where consensual sexual intercourse occurred for the first time. At that time, the appellant was aged 38 and Ms M 28. The appellant said that over the next "couple of weeks" he and Ms M had sexual intercourse approximately another 4 to 5 times. He described that intercourse as being "rough" but always consensual. Following the receipt of a text message from Ms M on 18 January 2015 which followed a period when they had not seen each other for some time, Ms M came to the appellant's home that evening and they again had consensual sexual intercourse. During the course of that intercourse he slapped her across the face as part of what he considered to be their "usual "rough" sex." According to the appellant he then stopped, and withdrew himself. 10. On 19 February 2015 the appellant was arrested by police and charged with rape and assault consequent on a complaint made by Ms M. The following day he travelled to Iraq and remained there until 4 April 2015. He said that whilst in Iraq he had no access to his emails because the police had confiscated his mobile phone before he left Australia. Whilst he was away his credentials and clinical privileges to practice within the South Australia regional health area were withdrawn and his employment at the clinic where he had worked was terminated. Furthermore, his registration had expired on 24 February 2015 and his application for renewal was refused by AHPRA because he was no longer employed in a designated area of need position. 11. The appellant defended the criminal trial which was confined to the charge of rape. The trial commenced on 9 November 2016 and terminated on 14 November 2016 when the prosecution withdrew its case against him. 12. Thereafter, the appellant sought to obtain alternative employment. He was offered employment in a country town in New South Wales near the Victorian border which was designated as an area of need. His application for limited registration was approved on 27 March 2017 by the NSW Board of the Medical Board of Australia subject to certain conditions which, relevantly, prohibited him from consulting, examining, treating or performing any procedure on any female patient. The appellant has appealed from that decision to this Tribunal. That condition has been modified by the Board in a manner which we shall shortly describe, and remains the sole contentious issue to be determined by us in these appeal proceedings. 13. In a written statement, the appellant said that he had reflected on his relationship with Ms M and the events which occurred on 19 January 2015. He said that he had taken "steps to address my knowledge and understanding of the relevant ethical issues". Even though he acknowledged that while practising medicine in Iraq it was not acceptable for a medical practitioner to have a relationship with a patient or former patient, he said that this was not an issue "that is the subject of any policies or education." He said that before he had had a relationship with Ms M he had read the relevant Guidelines and Code dealing with sexual boundaries, but considered that as he was not her usual general practitioner and that she did not consult him on a regular basis there was no ethical problem in entering into a relationship with her. He said that he now understood all of the factors which rendered such a relationship inappropriate, apologised for his actions, indicated that he regretted what had occurred and that he had learned from his mistake and lack of judgement. 14. The factual narration that we have set out above is based principally on a written statement provided by the appellant for the purpose of these proceedings. 15. The appellant gave oral evidence before us and was cross-examined. There are matters of significance arising out of his oral evidence which are omitted from his written statement. However, before considering these matters it is necessary that we refer to another incident which impacted upon the professional integrity of the appellant. On Saturday, 1 November 2014 the respondent had invited a female medical practitioner who had also qualified in Iraq and had limited registration in Victoria to attend the local hospital where he worked. In a letter dated 11 November 2014 addressed to AHPRA the appellant described this person as "a friend", who had already visited the area in the prior month and was seeking employment at the same clinic at which the appellant worked. The appellant said that he took her with him whilst he was examining a number of patients at the hospital. He said that he introduced her to all the patients as a colleague and observer. During the course of his rounds the appellant asked her to write up some case notes of a number of patients. It became necessary for a rectal examination to be conducted on a female patient. The appellant said that in the circumstances he thought it was more appropriate that he allow his friend to do this under his observation, and this is what occurred. Of course, the appellant was not sufficiently qualified to have supervised his friend and in any event she was not registered to practice medicine in South Australia. 16. The appellant acknowledged that he had acted inappropriately in asking his friend to see patients with him, to write case notes and to conduct a physical examination of one patient. He described his conduct as an "error of judgement" which reflected a lack of understanding on his part. The Medical Board of Australia determined that the appellant should be cautioned over this incident. 17. It will be remembered that the compass of these proceedings is a limited one concerning only whether and to what extent a condition should be imposed on the registration of the appellant concerning his involvement with female patients. Such a condition is primarily informed by the necessity to protect the health and safety of the public. The oral evidence of the appellant both in examination in chief and cross examination went primarily to his involvement with Ms M and his practice of medicine. We were concerned that we had little or no information about the personal circumstances of the appellant in order to assess whether and to what extent his involvement with female patients should be curtailed by the imposition of conditions in order to protect the health and safety of the public. Certainly, there was no evidence from a psychiatrist or psychologist concerning the sexual proclivities of the appellant. It was for that reason that we directed some questions to the appellant. 18. We were informed by the appellant for the first time in the proceedings that the female medical practitioner who had accompanied him on hospital rounds on the afternoon of 1 November 2014, and whom he had referred to as a "friend" was now in fact his wife. He said that he had first met her through telephone conversations for the first time in September 2014 and had decided to marry her on 10 December 2014. It had been necessary for him to talk to her brother in Iraq. In fact, his journey to Iraq in February 2015 on which he was accompanied by his now wife was for the purpose of him asking her father for his permission to marry. They married in Iraq in March 2015. They now have a child born in February 2016. 19. Of course, the period described above overlaps the period when the appellant was engaged in a sexual relationship with Ms M. That relationship had commenced on 21 December 2014 and ended on 18 January 2015. We asked what impact this sexual relationship with Ms M had on the appellant's relationship with his now wife. He said that he was not sure of his marriage to his future wife at that time because she was then practising in a Victorian country town and did not want to relocate to the South Australian town where he was then living. 20. The appellant also explained that as a practising Muslim he was unable to have a sexual relationship with Ms M unless they had exchanged vows for the purpose of a "temporary marriage". It was his evidence that such an arrangement is usually for a fixed period. He gave Ms M the option of fixing that period and she selected a period of three months. The appellant said that at the time that he entered into this temporary marriage with Ms M he regarded himself as being single, not then engaged to his now wife and unhindered in engaging in a sexual relationship with her. 21. We asked the appellant to explain why it was that he decided to have such a relationship with Ms M at that time. He said that when she came close to him he felt a sexual desire. 22. We observe that on the basis of the evidence given to us by the appellant in these proceedings that he was, at the least, contemplating marriage to his now wife at the time that he entered into the temporary marriage with Ms M. And, on his evidence, such a temporary marriage was motivated by a sexual desire. Furthermore, the appellant willingly volunteered that he had engaged in "rough sex" with Ms M, although we have not sought and have not been provided with any details of what constitutes "rough sex". 23. On the basis of this evidence it must be concluded that at least at the end of 2014 and the beginning of 2015 the appellant was sufficiently sexually attracted to engage in a sexual relationship concurrently with another relationship with a person to whom he had professed an interest of marriage. In the absence of any explanation proffered by the appellant concerning this behaviour, and in the absence of any psychological or psychiatric expert opinion, the only evidence available to us concerning the appellant's sexual proclivities is that which we have summarised above. 24. We should stress, however, that there is absolutely no evidence or any indication whatsoever that the sexual proclivities of the appellant would extend to young females. It will be remembered that at the time of his relationship with Ms M she was aged 28. Consideration 1. The power to impose conditions of registration is to be found in section 83 of the Act which is in the following terms; 83 CONDITIONS OF REGISTRATION (1) If a National Board decides to register a person in the health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances. Note: A failure by a registered health practitioner to comply with a condition of the practitioner's registration does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (2) If the National Board decides to register the person subject to a condition referred to in subsection (1), the Board must decide a review period for the condition. 1. It will be seen that the test to be applied in determining whether and what conditions should be imposed on registration is informed by the words "considers necessary or desirable in the circumstances." Such a test can only be considered in the context of the statutory matrix against which registration is effected. For our purposes it is only necessary to consider limited registration in an area of need. 2. However, before considering such limited registration we must have regard to the overriding objectives and guiding principles which apply to the Act and therefore apply to any decision to impose conditions on the limited registration of the appellant. These objectives and guiding principles are to be found in sections 3 and 3A of the Act the relevant parts of which are in the following terms; 3 OBJECTIVES AND GUIDING PRINCIPLES (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and … (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 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. 1. For completeness, we set out below the provisions of section 67 of the Act which relate to limited registration for an area of need, which is the relevant provision which applies to the appellant; 67 LIMITED REGISTRATION FOR AREA OF NEED (1) An individual may apply for limited registration to enable the individual to practise a health profession in an area of need decided by the responsible Minister under subsection (5). (2) The individual is qualified for the limited registration applied for if the National Board is satisfied the individual's qualifications and experience are relevant to, and suitable for, the practice of the profession in the area of need. (3) The National Board must consider the application but is not required to register the individual merely because there is an area of need. (4) If the National Board grants the individual limited registration to enable the individual to practise the profession in the area of need, the individual must not practise the profession other than in the area of need specified in the individual's certificate of registration. (5) A responsible Minister for a participating jurisdiction may decide there is an area of need for health services in the jurisdiction, or part of the jurisdiction, if the Minister considers there are insufficient health practitioners practising in a particular health profession in the jurisdiction or the part of the jurisdiction to provide services that meet the needs of people living in the jurisdiction or the part of the jurisdiction. (6) If a responsible Minister decides there is an area of need under subsection 5. the responsible Minister must give the National Board established for the health profession written notice of the decision. (7) A responsible Minister may delegate the Minister's power under this section to an appropriately qualified person. (8) In this section - "appropriately qualified" means having the qualifications, experience or standing appropriate to the exercise of the power. "health services" means the provision of services by health practitioners in a particular health profession. 1. For our purposes, the most relevant provisions are those contained in sections 3 (3) and 3A of the Act. A paramount consideration is the need to protect the health and safety of the public. Within this paramount consideration restrictions on the practice of a health professional are to be imposed under the scheme only if it is necessary or desirable to ensure health services are provided safely and are of an appropriate quality. It is arguable that this latter consideration sets as a requirement for the imposition of a condition the necessity to ensure the safe and appropriate quality of health services. In the context of the controversy between the parties in these proceedings, the question of safety is the more significant aspect. No question has been raised in these proceedings concerning the competency of the appellant and the quality of health services provided by him. 2. Having regard to these matters we now address the area of controversy between the parties. On 24 April 2017, the respondent notified the appellant that it would grant him limited area of need registration to work as a General Practitioner at a regional centre in New South Wales subject to 9 conditions. Only one of those conditions is the subject of this appeal, being condition number 6. That condition prohibited the appellant from consulting, examining, treating or performing any procedure on any female patient except in the case of an emergency and contained ancillary provisions. Initially, the appellant submitted that this condition be amended to enable him to consult, examine, treat or perform any procedure on any female patient aged less than 16 provided the patient was accompanied by an adult, being a parent or guardian or registered nurse or other medical practitioner. This was to enable him to provide as wide a service as possible to patients within a regional area with limited medical practitioner resources. As a result of dialogue between the Tribunal and the parties during the course of the hearing the appellant ultimately submitted by way of amended submissions dated 26 September 2017 that condition 6 be amended to provide that the appellant "Not consult, examine, treat or perform any procedures on any female patient aged 16 or older." 3. We have already commented that the evidence concerning the appellant's sexual proclivities is very limited, and basically confined to his evidence given in the course of questioning by the Tribunal. Such evidence as is available to us is that at the time that he was engaged in discussions with his now wife about their marriage he was also engaged in a relationship with Ms M which was motivated by his sexual drive. Whether and to what extent his sexual drive has been tempered by the fact that he is now married with a child is completely unknown. Nor are we aware whether the appellant's likelihood of engaging in extra marital sex is impacted by cultural or other matters, including his present relationship with his wife. In circumstances where we are comfortably satisfied that the appellant possesses a sexual drive extending to "rough sex" that led him into the relationship with Ms M notwithstanding his concurrent discussions with his now wife about marriage, the burden of demonstrating that any such sexual drive would not now impact upon his ability to practice medicine without compromising in any way the safety of any female patient will fall on him. He has not sought to discharge that burden in any way in the course of these proceedings. 4. We are cognisant of the provisions of section 80 of the Act which empowers the respondent to seek certain information from an applicant for registration to enable it to consider that application. In circumstances where the appellant was represented by senior counsel and solicitors for the purpose of these proceedings, we have assumed that, on advice, the appellant did not wish to provide the Tribunal with any additional information or evidence concerning his application for registration and, in particular, the provisions of Condition 6. Nor did the respondent ask us to do so. 5. Accordingly, it follows that we are comfortably satisfied that it is prima facie appropriate to impose a condition limiting his ability to deal with female patients. However, as we have previously observed the only evidence available concerning the appellant's sexual drive relates to his relationship with Ms M who was then aged 28. There is simply no hint of any evidence which would point to any proclivity on the part of the appellant to engage in any sexual relationship with a female person aged 15 or less. Not only would any such sexual relationship by a medical practitioner attract the strongest possible criticism, but it would also involve, as is well known, the commission of a crime. 6. In the circumstances, and by reference to the evidence available to us, we do not consider that any condition mandating the attendance of an adult is necessary for the protection of the public with respect to any female aged 15 or less who may attend on the appellant as a medical practitioner. This is particularly so where a patient requires medical attention for routine complaints such as influenza, sports injuries and the like. We acknowledge that female patients aged 15 or less may attend for examination for and treatment of matters of a sexual nature including sexually transmissible infections, contraception and the like. We would remind the appellant that, consistent with current best practice, any male medical practitioner who conducts an intimate examination of any young female patient of such a tender age should always ensure that a responsible adult chosen by the patient is present. And if no such person is available the examination should be conducted in the presence of a practice nurse or other suitable adult person selected by the practitioner, and consented to by the patient. If no such consent is forthcoming, except in the case of an emergency, the practitioner should refer the patient to another practitioner. 7. Lest there be any doubt in the mind of the appellant concerning the dangerous waters entered into when treating young persons in the absence of any consent from a parent or guardian and without a responsible person being present, we set out the provisions of section 49 of the Minors (Property and Contracts) Act which are in the following terms; 49 MEDICAL AND DENTAL TREATMENT (1) Where medical treatment or dental treatment of a minor aged less than sixteen years is carried out with the prior consent of a parent or guardian of the person of the minor, the consent has effect in relation to a claim by the minor for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, the minor were aged twenty-one years or upwards and had authorised the giving of the consent. (2) Where medical treatment or dental treatment of a minor aged fourteen years or upwards is carried out with the prior consent of the minor, his or her consent has effect in relation to a claim by him or her for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, he or she were aged twenty-one years or upwards. (3) This section does not affect: (a) such operation as a consent may have otherwise than as provided by this section, or (b) the circumstances in which medical treatment or dental treatment may be justified in the absence of consent. (4) In this section: "dental treatment" means: (a) treatment by a dentist in the course of the practice of dentistry, or (b) treatment by any person pursuant to directions given in the course of the practice of dentistry by a dentist. "medical treatment" means: (i) treatment by a medical practitioner in the course of the practice of medicine or surgery, or (ii) treatment by any person pursuant to directions given in the course of the practice of medicine or surgery by a medical practitioner. It follows that consent is an integral pre-condition to any treatment afforded to a young person, preferably obtained from a parent or guardian. 1. For these reasons, we are of the opinion that it is appropriate to vary the proposed Condition 6 in the manner now contended for by the appellant namely that it take the following form; "Not consult, examine, treat or perform any procedures on any female patient aged 16 or older." To this extent, we uphold the appellant's appeal. Costs 1. The appellant has sought a cost order in his favour. The question of costs was not argued before us and we shall reserve costs. Orders We make the following orders; 1. The appeal is upheld. 2. Proposed condition (6) determined by the respondent as contained in the letter from AHPRA to the appellant dated 24 April 2017 is deleted and is replaced by the following; 6. Not consult, examine, treat or perform any procedures on any female patient aged 16 or older. 1. Costs are reserved with liberty to apply which should be exercised within one month of this date. ********** 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 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: 09 October 2017