Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Huda [2019] NSWCATOD 109 Hearing dates: 5 and 6 April 2019; 9 May 2019 Date of orders: 08 July 2019 Decision date: 08 July 2019 Jurisdiction: Occupational Division Before: Le Poer Trench ADCJ, Principal Member Dr R Barnett, Professional Member Dr J Aitken, Professional Member R Kusuma, General Member Decision: 1. The Tribunal finds that the practitioner's conduct constitutes both unsatisfactory professional conduct AND professional misconduct. 2. Pursuant to s.149C(1)(a) and (b) of the National Law, the registration of Dr Quamrul Huda is cancelled. 3. Pursuant to section 149C(7) of the National Law order that Dr Huda cannot seek a review of the orders made by the Tribunal for a period 12 months from the date hereof. 4. Pursuant to section 163 of the National Law the Tribunal is the appropriate review body for any review of these orders; 5. Dr Quamrul Huda is to pay the costs of the Health Care Complaints Commission of and incidental to the proceedings as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Act 2014 (NSW). 6. Publication of the names of the patient and her partner referred to in this proceeding is prohibited. Catchwords: PROFESSIONS AND TRADES – Medical Profession – Disciplinary proceeding - Professional Misconduct Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) ("National Law") Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Re Parajuli [2010] NSWMT 3 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) MD Quamrul Huda (Respondent) Representation: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2018/003222412 Publication restriction: Pursuant to Schedule 5D Clause 4 of the Health Practitioner Regulation National Law (NSW) publication or disclosure of the name, address or any evidence or information which might lend to the identification of the name of the patient identified in these proceedings is prohibited. REASONS FOR DECISION INTRODUCTION Background Facts 1. By an application filed by the applicant on 19 October 2018, the applicant seeks disciplinary findings and orders against the respondent. That application identifies that orders pursuant to s.149A, s.149B and/or s 149C of the Health Practitioner Regulation National Law (NSW) ("National Law") are sought. Costs are also sought. The applicant further seeks a non-disclosure order in relation to the name of the patient identified in the proceeding (s.64 of the Civil & Administrative Tribunal Act 2013 (NSW). 2. The applicant seeks to establish that the respondent has been guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a), 139B(1)(b) and 139B(l)(l) of the National Law and/or guilty of professional misconduct within the meaning of s 139E of the National Law. If that complaint is established then the applicant moves for deregistration of the respondent as a medical practitioner. 3. The respondent denies the allegation made against him and seeks the dismissal/refusal of the complaint brought by the applicant. 4. The details of the complaints made against the respondent are set out in the complaint document relied upon by the applicant. There are four complaints identified. 5. The respondent is a medical practitioner registered under the National Law. He completed a Bachelor of Medicine and Bachelor of Surgery at the University of Dhaka, Bangladesh in 1981. He became registered as a medical practitioner in Australia in 2002. 6. The complaints which are brought against the respondent arise from his work as a Medical Practitioner at the After-Hours Clinic Canterbury Hospital ("the Clinic"). 7. In these reasons the patient making the complaint, which gave rise to this action, will be identified as either Patient A or the patient. The name of the patient is to otherwise be suppressed by order of the Tribunal. EVIDENCE 1. The applicant relies on the evidence contained in the bundle of documents tendered in the hearing and identified as exhibit A1. No objection to the bundle being evidence in the hearing was made. Exhibit A1 contains the bulk of the evidence relied upon by the applicant. The applicant moved upon the Amended Complaint which was filed 29 March 2019 and marked as exhibit A2 in the hearing. 2. Complaint One made against the respondent is: (The respondent) "is guilty of unsatisfactory professional conduct under s.139B(1)(a) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or the care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. The particulars of Complaint One are detailed in exhibit A2, all are said to have occurred on 18 December 2015, and all relate to the attendance upon the practitioner by Patient A. The particulars can be summarised as follows: 1. He failed to "put on" gloves for an examination. 2. He failed to take an adequate history. 3. He failed to remove the bandage Patient A had presented with. 4. He did not remove the patients bandage as she requested; he did not examine her wound; he inappropriately told her to "just go home and take pain killers". 5. He failed to undertake an adequate physical examination and assessment of the patients wound. His management plan was inadequate. 1. In her signed statement (at Tab 11 of exhibit A1) Patient A gives the following evidence which is relevant to the complaint made against the respondent: 1. At about 5 pm on 18 December 2015, she was bitten by a dog on the palm of her hand. 2. At 5.30 pm on 18 December 2015, she received treatment to her hand at the Multi Care Family Medical Centre, Ashfield. The treatment included the provision of a prescription for medication (said to be antibiotics). She had the script filled and commenced taking that medication. 3. At home the patient observed bleeding from the wound even though it was bandaged and she applied a further absorbent dressing over the bandage which had been affixed at the Multi Care Family Medical Centre. 4. At 9.30 pm on 18 December 2015 the patient, accompanied by her partner, attended the emergency department at Canterbury Hospital. There she received treatment which included application of bandage over an absorbent padding. She was then asked to wait. 5. At 11 pm on 18 December 2015 the patient saw the respondent at the Canterbury After-Hours Clinic (the Clinic). The respondent saw the patient in the company of the patient's partner. Her partner sat next to her during the time she spent with the respondent in a room. 6. The patient told the respondent:- 1. She had been bitten by a dog at 5pm that day. 2. She had seen a GP and received a tetanus injection and antibiotics. 3. She had commenced taking the antibiotics. 4. She had attended Canterbury Hospital emergency department. 5. That her wound had been washed with water and re-bandaged by a triage nurse at the hospital. 6. That upon enquiring at the hospital she was told she would see a doctor sooner by attending the After-Hours Clinic than if she waited at the hospital emergency department. 7. That the nurse had told her that "if it is really bad the doctor would send me back to ED." 1. The patient specifically told the respondent on that occasion "My fingers are numb, my wrist is very painful and the wound is still bleeding. I know it was really deep, I can feel it." 2. The patient observed the respondent from his chair and moved to a position where he could touch her. He did not put any gloves on. She observed he pressed the end of one of her fingers on her injured hand and said "your fingers are fine, just take painkillers." 3. The patient observed the respondent to lift the end of the bandage and she saw it was "blood soaked". She asked him "Can you take the bandage off and look at it?" She said the respondent replied "No. no just go home and take painkillers. If you are still in pain in a couple of days come back." 4. The consultation was then terminated. The patient said she was "in his office for a matter of a few minutes." 1. The patient then set out in her statement the treatment she has subsequently required for the wound on her hand. That treatment included a hospital stay of 9 days and surgery. 2. The patient's partner signed a written statement on 29 August 2017 in which he annexed a copy of a Statutory Declaration, witnessed by a Justice of the Peace and dated 6 July 2016. He said the content of the Statutory Declaration was true. That statement is set out at tab 12 in exhibit A1. 3. In his statement the partner states as follows: 1. On 18 December at 5.30 pm he observed his wife (the patient) had a puncture wound in the middle of her left palm. He took her then to the Ashfield Medical Practice. 2. At 9 pm the patient told him the wound was still bleeding. She said the pain was "getting worse". He took her to Canterbury Hospital. 3. At the Canterbury Hospital at about 9.30 pm he observed a nurse wash the patients wound and apply a bandage which covered most of the hand. Only the fingers protruded. 4. He attended the after hours GP on the hospital grounds at about 9.45 pm. 5. The patient saw a doctor which the partner identified as the respondent. The respondent was told: 1. There was a dog bite. 2. Details of the earlier visit to a GP. 3. The patient had been sent from the Emergency Department. 4. The patient told the respondent about her pain. He asked if she had taken any pain killers and she replied "not yet". 5. The respondent told the patient she must take something for the pain. The respondent said the amount of pain she described was usual for a dog bite. 6. The patient complained to the respondent about the bleeding. The respondent was observed to lift up the bottom edge of the bandage, near the wrist, which was seen to be "blood soaked". The respondent told the patient that amount of bleeding was normal and that it would take some time to stop. 7. The patient said to the respondent that the feeling in her finger tips "did not feel right and that it hurt to move her fingers". The respondent was then observed to touch the patients finger tips and ask "can you feel that". The patient replied "yes, but it doesn't feel right." The respondent replied advising the patient "this was due to the trauma to the hand and that the wrist had also 'puffed up' and that this was the cause for the sensation and pain." 8. At no time did the partner observe the respondent remove the bandage from the patient's hand. 9. The respondent was heard to tell the patient to "take Panadeine forte for the pain, take her antibiotics and come back in a couple of days if there were any problems." 1. On 18 February 2016 the respondent signed a letter which was dated 15 February 2016 and addressed to the applicant. The letter responded to a letter received from the applicant dated 8 February 2016 which had enclosed a copy of the complaint made by the patient. The respondent enclosed a copy of the clinical notes, as had been requested by the applicant. He informed the applicant, after expressing his sympathy for what had befallen the patient following his meeting with her, "It is my position that my care and management of (the patient) was in line with good clinical practice." 2. In the third paragraph of the letter dated 15 February 2016 the respondent stated "I do not provide my consent for a copy of this complaint to be released to the complainant." That statement was made, it appears, in response to a questioned posed by the complainant in its' letter dated 8 February 2016. The extent to which that portion of the respondent's letter is or is not relevant will be referred to later in these reasons, if necessary. It was not the subject of cross-examination. 3. Included in the letter from the respondent to the applicant dated 15 February 2016 are the following statements/concessions: 1. He worked at Canterbury Hospital After-Hours clinic on 18 December 2015. 2. He saw the patient on that date at about 11 pm. 3. The patient was accompanied by a friend. 4. The patient asked "for a referral to ED Canterbury Hospital and specifically that she wanted to be commenced on intravenous antibiotics. She had bandage in her left forearm and hand." 5. He took a history from the patient. 6. The patient was reluctant to provide him with a history. 7. He was told by the patient she had been bitten on her left hand by a dog earlier in the afternoon of 18 December 2015. 8. The patient told him she had attended upon her usual GP earlier that day and had received a tetanus injection. She was commenced on oral antibiotics and was referred to the Emergency Department. 9. The patient said she had attended the Emergency Department at Canterbury Hospital less than two hours before her consultation with the respondent. 10. The patient asked the respondent for a referral letter so that she could be seen by the Emergency Department doctor. 1. It is unclear from the letter from the respondent to the HCCC what sources he was relying upon when he set out the history given to him by the patient and other detail about conversations he had with her and actions taken by him. There is some reference in the letter to information which was seen by him in the complaint letter which had been provided to him by the HCCC. 2. Importantly, for the identification of issues of fact in this case, the respondent said: "I assessed her wound though she was very reluctant to give permission to examine her. I removed her dressing in order to examine the wound." 3. In relation to the examination of the patient and the treatment administered the respondent said: "On examination I found the wounds were superficial, had been cleaned, there was no bleeding and no oozing was noted. Finger movement and capillary refill in the finger tips were normal. Mild swelling noted around the wounds, she had mild pain in the fingers which is not unusual in acute lacerations and abrasions. I re-dressed the wound aseptically." 1. The respondent then stated in his letter that he had advised the patient to report back to the Emergency Department and wait to be seen by an Emergency Department physician. 2. Further the respondent said that the patient seemed reluctant to return to the Emergency Department and stated that she did not want to do so. The respondent said he counselled the patient about seeing the Emergency Department, however, she refused. He advised her to follow up with her GP the next day. He told her she did not need a referral letter from him to visit an Emergency Department. 3. The respondent then set out his specific denials about the allegation made against him by the patient. 4. The respondent concluded his letter with the following sentence: "It is my submission that the HCCC should not take any further steps in relation to this complaint." 5. The respondent then attached his record of the attendance upon the patient and the medical treatment provided. The document is headed "Progress notes for (Patient A)". 6. The document presented by the respondent to the HCCC as the record created by him for the patient stated the entry was made Friday December 18 2015 23:06:35 Md Quamrul Huda." Later in the record the date "18 December 2016 at 23:09:08." appeared. That date appeared under the heading "Entry appended:" Thereafter, in the same record, there is another note under the heading "Entry appended:" It is stated to have been made 14 February 2016. It stated: "Above entry appended is incorrect. Correct entry is as below. The following entry is for correction and addition to the notes written on 18 December 2015 at 23:06:35. 1. In the 2nd line of the note "tetanus" should be "tetanus toxoid". 2. In Management section above the line "F.U with GP" to add the following line "She was advised to return ED Canterbury Hospital." We note the date and time "18 December 2015 at 23.06.35" is identified by the respondent as the time and date appearing on the medical record he created following the consultation with the patient. The entry was made, he says (and we accept, on the date and time stated. 7. Following the adjournment which was ordered on 5 April 2019, the HCCC filed two further documents which were admitted to evidence, without objection, on 9 May 2019 when the hearing resumed. These documents consisted of signed statements made by the patient and her partner. The patient's statement is dated 23 April 2019 (marked as exhibit A5) and her partners statement is dated 25 April 2019 (marked as exhibit A6). The statements are relevant to the extent same addressed clear issues of fact which had become evident when the respondent set out his case in the first two days of the hearing. 8. Exhibit A5 sets out the following relevant evidence. * When the patient saw Dr Chan at around 5pm on 18 December 2015 her wound was not bleeding "much at all". * The patient was provided with a script for antibiotics and a "tetanus shot" by Dr Chan at that time. * The patient did not receive from Dr Chan either a referral letter nor a handwritten letter. * The patient attended Canterbury Hospital at 9.30pm on 18 December 2015 because "the wound had begun bleeding and wouldn't stop." * At the Canterbury Hospital Emergency Department, on 18 December 2015, a triage nurse removed the bandage the patient presented with. The triage nurse cleaned the wound. The triage nurse re-dressed the wound. That included the placement of a pad on the wound. * The wound on the left hand of the patient was then bandaged with a crepe bandage. It was wrapped from the wrist to the tips of the patients fingers. It was fastened with a clip which had metal on it. * When the patient saw the respondent he only examined the patients hand by lifting the edge of the bandage. He did not remove the bandage. He did not re-apply a fresh bandage. 1. Exhibit A6 is a statement signed by the patient's partner. The relevant evidence set out in that document is as follows: * The partner was not present with the patient when she saw Dr Chan. He met her in the waiting room after the consultation. She did not say she had received a referral letter to the Hospital from Dr Chan. * He did not see the patient give a referral letter to the triage nurse at Emergency Department Canterbury or to Dr Huda. * He was present with the patient when she presented at the Emergency Department of Canterbury Hospital at about 9.30pm on 18 December 2015. He observed the triage nurse to be inspecting the patient's' hand. He observed the triage nurse to remove the bandage from the patient's hand and cleaned the wound with water. He saw the triage nurse apply "some sort of pad" which was square in shape. He observed the triage nurse to bandage the patient's hand. The bandage was crepe and stretchy. The bandage "went up to the fingers and back down to the top of the wrist". * Dr Huda did not remove the bandage which had been applied by the triage nurse. THE RESPONDENT'S CASE 1. The respondent filed a document titled "Reply to Application for Disciplinary Findings" on 7 February 2019. He also filed an Amended Reply to Application for Disciplinary Findings" on 2 April 2019. That document was received into evidence. In that document the respondent admits the facts set out under the heading "Background to all Complaints" in the Complaint document. The respondent, in relation to "Complaint One", does not admit he is guilty of unsatisfactory professional conduct under s.139B of the National Law. He does not admit the facts set out in Particulars 1 to 6 inclusive of that complaint. He asserted in relation to particular 6 that it was neither necessary nor appropriate for him to replace the existing antibiotic treatment another general practitioner had prescribed. He also asserted his advice to the patient to take pain relief and see her GP, if the pain did not improve, was adequate and appropriate. 2. The respondent in his reply document does not admit Complaint Two. He does provide some explanatory information. 3. The respondent does admit Complaint Three. That is, he admits he is guilty of unsatisfactory professional conduct under section 139B of the National Law as has been alleged. However, in relation to Particular 1, whilst admitting the facts, he asserts he did advise Patient A to return to Canterbury Emergency Department but he did not make a contemporaneous note of same. 4. In relation to Particular 2 of Complaint Three, the respondent denies he provided false and misleading information to the Commission contrary to s.90 of the Health Care Complaints Act 1993 (NSW). He asserts he did remove Patient A's dressing on her left hand and redressed the wound aseptically. Further he asserts he advised Patient A to report back to Canterbury Emergency Department. He admits he did not make a contemporaneous note of same. 5. It should be noted in relation to the response by the respondent to particular 2 of Complaint Three that his denial is referable to s.90 of the Health Care Complaints Act 1993 (NSW). That section has no relevance to the allegations put before the court by the applicant. In the Complaint document (exhibited at Tab. 1 of exhibit A1) section 90 of the aforementioned Act is stipulated. In the amended Complaint (exhibit A2) the section of that Act which is stipulated is s.990. However at the start of the hearing the applicant, without objection asked the Tribunal to amend the section reference for that Act at Particular 2 of Complaint Three to 99. That section is relevant to the allegation made against the respondent. The wording of the section is as follows: "99 Offence: Furnishing False or Misleading Information to the Commission. A person who furnishes the Commission with information for the purposes of this Act knowing that it is false or misleading in a material particular is guilty of an offence." Maximum penalty: 20 penalty units. 1. It is clear to us that the respondent and those who acted for him, clearly understood the complaint made is, that the respondent had, in his communication with the HCCC and the delegates of the Medical Council, sought to mislead by provision of "false or misleading information." The understanding of the respondent and his counsel was reinforced by there being no objection taken to cross-examination of the respondent on the subject matter of the allegation of his having behaved in such manner. 2. The respondent admits in relation to Complaint Three that he provided a copy of Patient A's records, which he had altered, as set out in particular 1 of Complaint Three. 3. In relation to Particular 3 of Complaint Three the respondent denies he provided false and misleading information to the Commission in the letter signed by his legal representative. He admits he did not make a contemporaneous note of advice he gave the patient and he admits he provided extracts of Patient A's record (rather than a copy) which he had altered as set out in particular 1 of Complaint Three. 4. In relation to Particular 4 of Complaint Three, the respondent denies he provided false and misleading information to the HCCC and also the Medical Council's delegates (interviewers) when he said he had removed the dressing from Patient A's left hand and redressed the wound aseptically and further when he said he had advised Patient A to report back to Canterbury Hospital Emergency Department. 5. In relation to Particular 5 of Complaint Three, the respondent denies he provided false and misleading information to the Commission contrary to s. 90 of the Act (for this we read s.99 of the Health Care Complaints Act 1993 (NSW)). He asserts he did remove Patient A's dressing on her left hand and redressed the wound aseptically AND he had advised Patient A to report back to Canterbury Hospital Emergency Department. 6. In response to Complaint Four the respondent denies he is guilty of professional misconduct under s. 139E of the National Law. He relies on the matters set out in his responses to Complaints One, Two and Three. PROCEDURAL FAIRNESS 1. Both Patient A and her partner gave oral evidence. They gave their oral evidence on 5 April 2019. The respondent's counsel informed the Tribunal that she had informed the applicant that Patient A and her partner were not required for cross-examination, however, when the applicant called each of those witnesses, the respondent's cross-examination was confined to a very small areas of the clear issues of fact. 2. On Friday 6 April 2019 the respondent sought to give his oral evidence. No leave was sought and no opposition to the respondent giving his oral evidence without notice was taken. At that time, the Tribunal members, raised with the respondent's counsel, whether it was proper to have the respondent give evidence which had never been put in cross-examination to either of Patient A and her partner. This referred to evidence of interactions between the respondent and the patient and her partner on the evening of the subject consultation. After an adjournment and some discussion between the legal representatives for the parties they agreed that Patient A and her partner would be recalled to permit cross-examination by the respondent of them. Unfortunately the patient and her partner had left the precinct and were unable to be recalled on that day. It was therefore necessary for the Tribunal to allocate another day upon which such cross-examination could take place. It was agreed that the remainder of the 2nd day of the hearing would be used to accommodate the cross-examination of the respondent. 3. The Tribunal was informed that the respondent had agreed to pay the costs of the applicant incurred for the further day of the hearing. 4. Although the above manner of conducting a hearing is in our view most unconventional, at stake is the continued registration of the respondent. To that end he should be permitted to put before the Tribunal his case in a way which is not curtailed by a legal technicality. CREDIT Patient A 1. Patient A impressed us as a straightforward and apparently honest witness. She is a teacher by occupation. She appeared to listen to the questions asked and largely answered those questions without embellishment or argument. She presented as calm, dignified and concerned. She impressed as having a clear recollection of the interaction between she and the respondent on 18 December 2015. There was nothing about the way in which she gave her oral evidence or the written evidence she affirmed which suggested to us that she was being untruthful or that her memory was faulty in any important aspect of her evidence. When she gave oral evidence on 9 May 2019 Patient A was very clear in her responses to propositions were put to her by the respondent's counsel. The important aspects of that evidence is set out in these reasons. Patient A's Partner 1. The partner of Patient A gave oral evidence. He informed the Tribunal he was a retired chemical engineer. He impressed as an honest witness. He answered the questions asked of him in an unemotional and concise manner. He was able to make concessions when clearly appropriate for him to do so. Overall he presented as an honest and compelling witness. There was nothing to suggest that his memory was faulty in any important part of his evidence. There were some aspects of his evidence which conflicted with that of both the respondent and Patient A (such as his statement that it was 9.45pm when Patient A saw the respondent. It was probably after that time when the evidence of Patient A and the Respondent are considered). However, in relation to his evidence on the clear issues of fact which are later identified herein, his evidence was clear and unequivocal. The Respondent 1. The respondent is a man of mature years. He was born in Bangladesh where he undertook his university education. 2. When the respondent gave his oral evidence he spoke with a heavy accent. At times it was difficult to know what word he was pronouncing. However, the longer the respondent was giving his oral evidence the easier it became to understand him. 3. There was nothing about the manner in which the respondent gave his oral evidence which suggested he was being dishonest. Some of his evidence about the way in which he changed the medical record of his consultation with Patient A was difficult to follow. At that time he displayed body language which suggested to us that he was uncomfortable with answering questions about that issue. As will be seen later in these reasons, we preferred the evidence of Patient A and her partner as being more reliable and acceptable than that of the respondent. That finding led to a conclusion about the evidence given by the respondent which then substantially determined the ultimate conclusion reached by the Tribunal and the reasons set out for the imposition of the protective order. EXPERTS EVIDENCE 1. On 18 September 2017 Amanda Hadley, A/Investigations Manager, caused a letter of engagement to be sent to Dr Gary Deed. Dr Deed had agreed to provide an "independent review" of the complaint made against the respondent. 2. The letter of appointment provided "Background" information to inform the request for Dr Deeds expert opinion. 3. The letter of appointment of Dr Deed attached all the documents listed on pages 7 and 8 of the "letter of instruction". The letter of instruction is included in exhibit A1 at TAB 16. All of the documents listed on pages 7 and 8 of the letter of instruction have been included in exhibit A1 or otherwise exhibited separately. 4. The letter of instruction listed the salient aspects of the information provided by Dr Huda about the complaint and also the competing version provided by Patient A and her partner. 5. No objection has been taken to any part of the letter of instruction or the report provided by Dr Deed. 6. Dr Deed was asked to review the documentation, enclosed with the letter of instruction and comment on the health care provided to Patient A by the respondent. He was asked to review the treatment based firstly on accepting the version of fact provided by Patient A. He was asked specifically the following: 1. Please comment on the adequacy and appropriateness of Dr Huda's assessment of Patient A. 2. Please give your opinion on whether Dr Huda should have removed Patient A's bandage. 3. Please comment on whether Dr Huda should have undertaken an examination of Patients A's hand. If so please outline what the appropriate examination would entail. 4. Please comment on the appropriateness and adequacy of Dr Huda's response of touching the end of one finger and lifting the edge of the bandage when Patient A told him her fingers were numb, her wrist was painful and she thought the bite was deep. 5. Please give your opinion about Dr Huda's failure to wear gloves when he touched Patient A. 6. Please comment on Dr Huda's response of "No, no, just go home and take pain killers." When Patient A asked him to take off the bandage and look at her wound. 7. Please comment on the appropriateness and adequacy of Dr Huda's management plan for Patient A's injury to return to a GP if she was still in pain in a couple of days. 8. Please comment on the appropriateness and adequacy of Dr Huda not referring Patient A back to the Emergency Department the night she attended his rooms. 1. Dr Deed was asked: Based on Dr Huda's version of events and the original medical records dated 18 December 2015: 1. (9) Please comment on the appropriateness and adequacy of Dr Huda's assessment of Patient A's injury. 2. (10) Please comment on the appropriateness and adequacy of Dr Huda's examination of Patient A's injury. 3. (11) Please comment on the appropriateness and adequacy of Dr Huda's treatment of Patient A's injury. 4. (12) Please comment on the appropriateness and adequacy of Dr Huda's management plan for Patient A's injury. 5. (13) Please give your opinion of Dr Huda's description of the wound as an abrasion. 6. (14) Please comment on Dr Huda's statement that "he found the wound to be superficial" and that "her mild swelling and mild pain in her fingers were not unusual in acute lacerations or abrasions." 7. (15) Please comment on Dr Huda's statement that he thought the wound was "not that bad" but he: (15.1) Wanted to give her another antibiotic. (15.2) Told Patient A to go back to the Emergency Department. 1. (16) Please comment on Dr Huda's response to his statement that he knew the consultation did not go well. 2. (17) Please comment on Dr Huda's statement that he wrote a letter to the Emergency Department but did not make a copy or any note of it. 3. (18) Please comment on Dr Huda's remark that Patient A refused to allow him to call the Emergency Department. 4. (19) Please comment on Dr Huda's conduct of changing his medical records following receipt of the Commission's complaint against him. 5. (20 Are there any further comments you wish to make? 1. Dr Deed was asked to categorise any criticism he might make of Dr Huda's contact with and treatment of, Patient A so as to state the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct. Further he was asked to state whether any departure from the standard was significantly below that standard or otherwise. He was also asked to opine whether any such departure invites his strong criticism. 2. The respondent also engaged an expert and provided a report as part of his evidence. No objection was taken to the evidence or the credentials of the respondent's expert Dr Ken Dobler. 3. Dr Dobler's report is dated 12 February 2019. He listed the documents which he had received. All those documents form part of the evidence before the tribunal in this case. He noted he had not been provided with the original complaint from Patient A nor the documents which supported the complaint. He had not seen the written statement signed by Patient A's partner. He had inferred the content of the complaint from the letter of instruction to Dr Deed dated 18 September 2017. 4. Dr Dobler stated in his report that he would address his response to the same questions as posed to Dr Deed by the HCCC in their letter of 18 September 2017. Comparison of each experts' reports 1. The first scenario which the HCCC asked Dr Deed to address is that the version of facts given by Patient A and her partner is correct. Dr Dobler adopted the same approach. The first topic was "Please comment on the adequacy and appropriateness of Dr Huda's assessment of Patient A." Dr Deed stated: Based upon the history as recorded in 3.1.13 and the comparative assessment of the notes of assessment of Patient A at the Multicare Family Medical Centre in 3.1.16 Dr Huda's history is partly adequate and appropriate for Patient A's presentation. His conduct fell below the standard but not significantly below the standard of a practitioner of an equivalent level of training. Further the conduct was not a significant departure from the standard. Dr Dobler stated: In my opinion the history recorded does fall slightly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, the departure is not significant and does not invite my strong criticism. Topic 2: "Please give your opinion on whether Dr Huda should have removed Patient A's bandage". Dr Deed stated: Dr Huda should have removed the bandage and examined the wound. Failure to remove the bandage was not adequate or appropriate. The conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was significantly below the standard. 1. The conduct was a significant departure from the standard. Dr Dobler stated: It would have been essential that the bandage on her hand be removed and the wound inspected. Failure to remove the bandage would fall below the standard reasonably expected of a practitioner of equivalent level of training and experience. That departure was significantly below the standard. The conduct was a significant departure. Topic 3: "Please comment on whether Dr Huda should have undertaken an examination of Patients A's hand. If so please outline what the appropriate examination would entail". Dr Deed stated: It was appropriate and essential Dr Huda examined Patient A's hand. Dr Huda's conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It was a significant departure from the standard. 1. Dr Deed said the examination should have ascertained if the hand was the dominant hand. He should have examined the wound itself. Examination of motor, vascular and nerve function would have been useful. Examination of regional tendons and their function may assist to assess the potential for penetrating traumatic tendon injury. A grip strength may assist assessment of hand function including tendons and neurological function. Dr Dobler stated: It would have been essential to remove the bandaging, examine the location and size of the wound. Failure to perform the examination would fall below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Departure from the standard was significantly below the standard. Topic 4: "Please comment on the appropriateness and adequacy of Dr Huda's response of touching the end of one finger and lifting the edge of the bandage when Patient A told him her fingers were numb, her wrist was painful and she thought the bite was deep". Dr Deed stated: The examination attested to by Patient A was not appropriate or adequate. Dr Huda's conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below the standard. It was a significant departure from the standard. Dr Dobler stated: The examination does appear cursory and only the circulatory component is mentioned in Dr Huda's notes. Based upon patient A's version the examination was not adequate and would fall below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure was a significant departure from the standard. Topic 5: "Please give your opinion about Dr Huda's failure to wear gloves when he touched Patient A." Dr Deed stated: The examination involved the potential for contact with body fluids. It is appropriate well documented best practice to wear single use examination gloves to prevent potential cross contamination both to the wound but also to the GP. Dr Deed said the respondent's conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does invite Dr Deed's strong criticism. Dr Dobler stated: It is commonplace not to wear gloves when exposure to body fluids is not anticipated. When exposure to body fluids is expected then single use gloves are required to prevent cross contamination. Sterile gloves are required for aseptic procedures. Failure to wear gloves whilst removing the bandaging (noting the patient had said this did not occur) was conduct that would fall below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does not invite Dr Dobler's strong criticism. Topic 6: "Please comment on Dr Huda's response of "No, no, just go home and take pain killers." When Patient A asked him to take off the bandage and look at her wound." Dr Deed stated: As the patient had requested the respondent to remove the bandage and examine the wound it would be unusual and inadequate not to do so. The conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does invite Dr Deed's strong criticism. 1. Dr Dobler also opined the conduct was below the standard however it did not invite his strong criticism. Topic 7: "Please comment on the appropriateness and adequacy of Dr Huda's management plan for Patient A's injury to return to a GP if she was still in pain in a couple of days." Dr Deed stated: It is appropriate to advise a patient to have further clinical review following an injury. Infection, if not present may be a consequence of dog bites. The respondents advice to the patient on analgesia and advice to return to the GP was appropriate. The conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was NOT significantly below that standard. It does NOT invite Dr Deed's strong criticism. 1. Dr Dobler stated that an examination of the wound (had it occurred) would not have shown infection because "it was too early to see signs of infection so soon after such an injury." 2. Dr Dobler concluded the management plan was a display of conduct which fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was not a significant departure from the standard and was NOT significantly below that standard. It does NOT invite Dr Dobler's strong criticism. Topic 8: "Please comment on the appropriateness and adequacy of Dr Huda not referring Patient A back to the Emergency Department the night she attended his rooms." 1. Neither of the experts considered this was a departure from the standard expected. 2. Each of the experts was asked to provide their opinion as to the departure, or otherwise, from the standard, based upon the Tribunal accepting the respondent's evidence about the consultation with Patient A. 3. In relation to the appropriateness and adequacy of the respondent's assessment of the patient's injury Dr Deed opined that even on the version of fact set out by the respondent the conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was NOT significantly below that standard. It does NOT invite Dr Deed's strong criticism. Dr Dobler agreed with that assessment. 4. Dr Deed commented upon the appropriateness and adequacy of the respondent's examination of the patient's injury. He concluded the conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does NOT invite Dr Deed's strong criticism. Dr Dobler expressed the same conclusion. 5. Dr Deed commented on the appropriateness and adequacy of the respondents treatment of the patient's injury. He said the conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does NOT invite Dr Deed's strong criticism. Dr Dobler provided the same opinion. 6. Dr Deed commented upon the appropriateness and adequacy of the respondent's management plan for the patient. He opined the respondent's conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was NOT significantly below that standard. It does NOT invite Dr Deed's strong criticism. Dr Dobler held the opinion that the management plan was not below the standard. 7. Dr Deed commented on the respondent's description of the wound as an "abrasion". He opined that the conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does NOT invite Dr Deed's strong criticism. Dr Dobler considered the conduct was not below the standard. 8. Dr Deed commented on the respondents statement that he found the wounds to be superficial and that her mild swelling and mild pain in her fingers were not unusual in acute lacerations or abrasions. He opined that the conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does NOT invite Dr Deed's strong criticism. Dr Dobler concluded the conduct was not below the standard. 9. Dr Deed commented on the respondent's statement that he thought the wound was "not that bad" but he wanted to give her another antibiotic. He opined the conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was NOT significantly below that standard. It does NOT invite Dr Deed's strong criticism. Dr Dobler opined the conduct was not below the standard. 10. Dr Deed commented upon the respondent's statement to the patient to go back to the Emergency Department. He opined the conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does NOT invite Dr Deed's strong criticism. Dr Dobler opined that the conduct was not below the standard. 11. Dr Deed commented upon the respondent's statement that he wrote a letter to the Emergency Department but did not make a copy or any note of it. He opined the conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does NOT invite Dr Deed's strong criticism. Dr Dobler agreed with Dr Deeds' comments and opinion. 12. Dr Deed commented upon the respondent's conduct of changing his medical records following receipt of the Commission's letter setting out the complaint against him. Dr Deed opined fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does invite Dr Deed's strong criticism. Dr Deed agreed with the conclusion reached by Drs Alison Reed and Leslie Cotterell that "His subsequent alteration of the records, particularly on the first occasion, would appear to be a wilful attempt to rewrite the history of his contact with this patient.…He appears to have engaged in significantly unethical conduct." Dr Deed opined the conduct of the respondent fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does invite Dr Deed's strong criticism. 13. Dr Dobler said "The alteration of medical records is certainly an area where there is universal agreement that the alteration of medical records in an attempt to alter the record of a consultation as part of a process of obfuscation is completely unethical." If the Tribunal concludes the change of records was for the purpose above stated, then Dr Dobler opined the conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The conduct was a departure from the standard and was significantly below that standard. It does invite Dr Dobler's strong criticism. If however the change of the records was not for that purpose but rather as a proper and appropriate addition to the medical records then Dr Dobler concludes the conduct is not below the standard. CLEAR ISSUE OF FACT 1. This case requires, inter alia, for the Tribunal to determine a number of issues of fact. There are a number of issues of fact about which we consider there is very little room for misunderstanding by either Patient A and her partner and the respondent. Those issues are as follows: 1. Did the respondent wear surgical gloves when he examined Patient A's left hand? 2. Did the respondent remove the bandage from the left hand of Patient A? 3. Did the respondent treat the wound on Patient A's Hand? 4. Did the respondent apply a fresh dressing and bandage to the left hand of Patient A? 5. Did Patient A request the respondent to infuse intravenous antibiotics? 6. Did the respondent tell Patient A she should see her GP or the Emergency Department of the hospital the following day? ORAL EVIDENCE 1. Each of the Patient and her Partner gave oral evidence. The patient's evidence in chief 1. The patient was asked to confirm that the content of the statement made by her in writing on 25 August 2017 was true and correct. She did so confirm. She described the wound to her hand. She confirmed that her partner (husband) was present during the totality of her consultation with Dr Huda on 18 December 2015. She informed the Tribunal she had not made a claim for compensation in relation to the wound on her hand or her medical treatment of same. She denied she had ever made a claim for compensation against any medical practitioner. 2. The patient confirmed that the document contained at Tab 5 of exhibit A1 was a copy of the complaint made by her. She had read the document and when asked if she would make any amendment to same she informed the Tribunal: "When I complained about the numbness and of a sore hand, he lifted the bandage. When he did that there was nothing to see". 3. The patient was asked to look at her statement which was incorporated in exhibit A1 as Tab 11. The document was a witness statement made by her on 25 August 2017. She was asked to read the statement, which she did. She stated the document was true and correct. 4. The patient was cross-examined (for the first time) by the respondent's counsel. She agreed she told the respondent she had started taking antibiotics. She did not say how often she was taking the antibiotics. 5. Dr Aitken (a member of the Tribunal) asked the patient which end of the bandage the respondent had lifted. She said she could not recall "but I think it was the wrist side". She was unsure if the respondent had "touched the blood on the bandage". 6. Dr Barnett (a member of the Tribunal) asked the patient "You said it was continuing to bleed. How did you know? She replied "I had just been to the Emergency Department and it was visibly bleeding when the nurse was bandaging it." The patient did not think there was blood on the bandage (i.e. the outer wrapping) when she saw the respondent. 7. The patient's partner (husband) gave oral evidence. He was asked in evidence in chief to look at a document. He confirmed it was a document created by him a few days after the patient was bitten by the dog. The document was marked as exhibit A4 in the hearing. He was shown a document at Tab 9 of exhibit A1 and confirmed he had signed that document on 6 July 2016. He read the document again and confirmed it was true and correct. He confirmed he had been present throughout the consultation the patient had with the respondent. 8. The patient's partner described the bandage which the patient had on her hand when she saw the respondent. He said it covered the hand from the finger tips to the wrist. He said the respondent "lifted up the wrist end of the bandage and looked at the wound. There was a pad under the bandage which had blood on it." He said he was unsure whether the bandage had blood on the outside at the time the patient saw the respondent. He said the pad under the bandage had a "big spot of blood in the middle." 9. The patient's partner said he was unable to specifically recall if the respondent was wearing gloves at any time during the consultation. 10. The patient's partner was cross-examined by the respondents counsel. 11. In cross-examination the patient's partner confirmed he saw a big spot of blood in the middle of the pad on the wound. He was unsure if he could see the wound under the pad. He said the respondent had lifted the edge of the bandage "so there was a gap". 12. Dr Barnett asked if the patient was wearing a sling at any time. The witness said he did not recall a sling. 13. Ms Kousuma (the General Member of the Tribunal) asked where the witness was in relation to the patient and the respondent at the time of his examination of the patient. The witness said "I was sitting right next to her and Dr H (the respondent) was standing on the other side of her looking at her bandage. EVIDENCE OF THE PATIENT ON 9 MAY 2019 1. The patient returned to the Tribunal hearing on 9 May 2019. She adopted the truth of her statement as set out in both Tab 11 of exhibit A1 and in exhibit A5 being a further statement made 26 April 2019. She was then cross-examined by the respondent's counsel. 2. The patient was asked to describe the bandage she had on her hand when she presented to the respondent. She did. She said the bandage was wrapped 5 times around her hand. It was firmly applied. The bandage had been applied by the triage nurse and there was a pad under the bandage. 3. When she saw the respondent she said she was feeling numbness on the tips of the fingers and her wrist was sore. 4. The respondent put that there was a couch in the consultation room. The patient said she did not see a couch. The respondent put: "Dr (The respondent) assisted you to sit on the couch while he examined your hand." The patient replied "That did not happen." 5. The patient denied that she had been reluctant to have the bandage removed by the Respondent. She said "No that is not true. I requested he take it off and look at my hand and it was Dr (the respondent) who said 'No lets just leave it you have just had it done.'". 6. The respondent's counsel said "Dr (the respondent) said he unwrapped the bandage." The patient replied "Lie." She also said it was untrue to say he had removed the pad. 7. The respondent pointed out to the patient that she had said in her evidence that it was pointless for the respondent to just lift the edge of the bandage to inspect her wound because there was nothing to see. The patient agreed she had said that. The respondent's counsel then said "In your 2017 statement you say at paragraph 12 the bandage was blood soaked." The patient agreed that was said. In response to further questioning she said she could remember the pad had blood on it but she could not recall if the outer bandage was stained. 8. The patient denied the respondent had undone her bandage. She denied he wore gloves. She denied he asked her to move her fingers, her hand or her wrist. She denied he asked her to squeeze her hand. She denied she did not want him to touch the palm of her hand. She denied she had not told him she had pain in her wrist or that her fingers were numb. She denied she had wanted or requested I.V. antibiotics. 9. The patient denied the respondent advised her to return to the Emergency Department for further review. She denied she had refused to return to the Emergency Department. She denied he had offered to write a letter to the Emergency Department for her or that he had offered to ring the Emergency Department for her. She denied he advised her to follow up with her GP and said "He said come back in two days if I felt worse." She agreed he had told her to continue with the antibiotic and to take pain relief. 10. The patient denied the consultation was 15 minutes. She said "It was less than 5 minutes". 11. The patient denied she had access to notes made by her partner (husband) when she prepared her complaint in January 2016. She denied she used her partners notes when preparing her statement dated 25 August 2017. 12. It was put that the first time the patient said the respondent lifted the corner of the bandage was in her statement of 25 August 2017. The patient responded "Yes. I had forgotten he had lifted the end of the bandage and my husband said he had. I had not remembered that." 13. The patient conceded the respondent probably did "look at my wrist." She denied however, that he touched it. 14. The patient's partner (husband) gave oral evidence. He adopted his statement (A4), his statement of July 2016 (Tab 12) and his statement dated 26 April 2019 (A6). He was then cross-examined by the respondent's counsel. 15. The patients partner agreed he was present at the time the patient was in the Emergency Department and was treated by the triage nurse. He saw the pad placed on the patient's hand and the bandage applied. He was present during the consultation the patient had with the respondent. He said he did not recall there being any couch in the consultation room. 16. The patient's partner denied the respondent had moved the patient to the couch. He denied the respondent removed the bandage and pad from the patient's hand. He denied hearing any discussion about I.V. antibiotics but said "He did talk about taking antibiotics. In response to the statement "Dr (the respondent) advised your wife to go back to the Emergency Department" he responded "absolutely not.". He denied the respondent offered to write a letter to the Emergency Department or to ring the Emergency Department for the patient. He conceded the consultation could have been for 15 minutes. 17. The patient's partner was cross-examined about the document he created and dated 25 December 2015. He said he had typed the document on that day. He had regard to that document when he prepared his statement in July 2016. He did not offer those notes to the patient. He did not offer her the notes in August 2017. 18. It was put, "Your wife says you reminded her that Dr (the respondent) had lifted the bandage". He responded, "I didn't remind her but I mentioned I had said that in my statement". ORAL EVIDENCE OF THE RESPONDENT 1. The respondent gave the following evidence in chief, which evidence we considered was relevant to the issues of fact in this hearing and other relevant matters. 2. The respondent works at the GP Clinic at Canterbury Hospital. He works from 6pm to 12pm Monday to Thursday and on Sunday. He was working those days and hours in December 2015. He is the only doctor working in the clinic during the hours he works. Whilst practicing medicine he has seen a number of cases of dog bite. He said "I see them and send them back to the Emergency Department or home". 3. The respondent said that usually he prescribes the antibiotic Augmentin for a dog bite. 4. The respondent was asked what the patient told him when he saw her on 18 December 2015. He said: "She had a dog bite. She had her dressing changed. She had not wanted to wait to see a doctor (at the Emergency Department). She wanted I.V. antibiotics." 5. He was asked "What did you do to examine the patient?" He said: "I asked her to open the dressing. She said there was no need to examine her hand. She said 'I don't want you to examine my hand'. The respondent said words to the effect that he tried to convince her to show him her wound. He said "She did not give me permission to touch the palm of her hand. I took her to the examining couch. I put her hand on a new blue sheet. I put a dressing on the couch. I put gloves on. I opened the bandage and I saw a pad. I saw three marks of abrasion on her hand. I did not find any oozing. There was some dried blood stain on the bandage. It was hard to see the depth of the abrasion. I asked her to move the fingers. She did but because of the pain. Pain was in all three fingers. She said she had different feeling in fingers. I asked if diminished and she denied that. There was no swelling in wrist. I asked her to squeeze the hand. I put a fresh bandage on. I then asked her to sit at the table again. She prevented me from ringing the Emergency Department. She denied/refused to go to the Emergency Department. I said I could not give I.V. antibiotic. I said that I could prescribe another antibiotic. I guessed she had Augmentin. I asked her about pain management. I offered her prescription she said no". 6. The respondent was asked about the notes he took and the words "under Review: p.r.n". He said "I said as soon as possible. I told her to go to any emergency." 7. He was asked "Did you see any infection?" He said "I cannot see infection but can see what infection does- e.g. swelling, redness. It was only 6 hours after bite so not expected to be evident." 8. The respondent specifically denied he had only lifted the bandage in order to inspect the wound. He said the bandage was firmly applied. He said "It was not possible for me to lift the bandage to see the wound." 9. The respondent confirmed he saw bloodstain "in the middle". (It seems this was a reference to either the bandage or pad under the bandage.) 10. When asked about his description of the wound as an abrasion he said "The skin has been disrupted. It was a dog bite and swelling. It could have been a deeper wound." 11. When asked why the notes he took did not reflect the detail he has set out in his oral evidence he said: "Other things were happening. Most of the time we don't write everything. See what her GP wrote. I put down what necessary for management." 12. He was asked if he had heard the experts evidence saying it was inadequate record keeping not to include notes of medications and dosages. He said "Yes I agree but patient would not give me detail. I only had what she did tell me." "She said to me later Nurofen." 13. The respondent was asked why he had included two appended notes in his notes. He said he was trying to write down a few things and in doing it I wrote the wrong dates. I should not have done that. I will not do it in the future." 14. The respondent was asked when he made the changes to his notes. He responded "When I received the complaint." He said "I should not have done that. What I wrote was true but I regret doing that." 15. The respondent was asked questions by Dr Barnett. He asked the respondent where he was situated in the rooms when he examined the patient. He said "On the couch". He said "The partner sat at the table. Patient sitting facing couch with hands on couch. I standing beside her to examine. 16. The respondent was cross-examined by the HCCC's counsel. 17. The respondent was asked to look at Tab 7 of exhibit A1 where the notes, made by the respondent when he saw the patient, stated "Presents as noted having oozing of blood." This was brought to the attention of the respondent, assumedly because of his oral evidence where he said he saw no oozing blood. The respondent said "That is what the patient said." 18. The respondent denied the patient had told him she had numbness in her fingers. He agreed the record made by him had no reference to nerve function and no record of function of tendons. 19. The respondent asserted he saw no bleeding at all. He agreed he did not know what antibiotic the patient was taking however, he guessed what it was. He agreed he had an obligation to find out what the patient had been prescribed. However, he said it was 11pm and he offered to prescribe her a further antibiotic. He agreed the notes he made did not reflect that. He agreed there was no note about analgesic however, he said the patient had told him she was taking Nurofen. He acknowledged that the patient had said in her oral evidence she had not taken any pain relief medicine. 20. Although his notes said "prn" in relation to when the patient should seek further medical attention, he said he had told the patient to see her GP as soon as possible or as soon as she wants. 21. The respondent was taken to Tabs 6 and 7 of exhibit A1. Those tabs contained a copy letter from the Medical Commission to the respondent dated February 2016 and his response dated 18 February 2016. 22. It was put that the respondent had sent a copy of his notes on the Patient to the Medical Commission. He agreed he had done that. The notes had been amended by him before he sent them. He agreed the amendments are set out on the document below the figure "5040". He agreed he entered those details on 14 February 2016. He agreed he had written the date and time for the amendment as 18.12.2016 and 23.09.08. 23. It was put that the respondent had "over-rode" the automatic date on the computer for the patient's records. He said "Something happened when I was…." He denied he purposefully "over-rode" the date to make it appear as if the note was made at the same time as he saw the patient. He denied that the advice he stated in the amended record was not given to the patient. 24. The respondent agreed he had not told the Commission, in the letter he wrote to it (Tab 7), that he had altered the record for the patient after he received the complaint. He said however, that he did tell the Commission of the amendment to the record when he was interviewed by an officer of the Commission. 25. The respondent denied he had fabricated his evidence when he said the patient had requested I.V. antibiotic treatment from him. 26. It was put that it was not necessary for the respondent to provide a referral letter to the Emergency Department for the patient. He said "She showed me a letter from her GP but she asked for another referral letter, but when I offered to write it she said 'No I don't want one.'" 27. The respondent denied there was no discussion with the patient about a surgical review. 28. The respondent denied that he had not seen the patient's wound. He denied she had complained of numbness. He denied he was in a rush when he saw the patient. He said he spent 15 minutes with her. The respondent was reminded by Dr Aitken (Tribunal member) that a 5040 Medicare claim is for more than 20 minutes. The respondent said "By the time I finished and had written notes it was 30 to 40 minutes". 29. The respondent was taken to Tab 14 of exhibit A1. This contained a copy of a letter written by the respondent's solicitor dated 28 October 2016. The respondent confirmed the content of the letter was true and correct. It was put that the respondent had altered the original medical record made by him. He denied that and said he had only added to the record. In relation to that part of the letter which asserted the patient's partner was not present for the entirety of the consultation the respondent said: "Yes. At some time he may have left because I saw him at the door." 30. The respondent agreed that he knew when he responded to the letter from the HCCC he was required to tell the truth. He also understood it was the same for the letter he caused his solicitor to send to the Medical Council. He also knew he was required to be truthful when he was interviewed by the Medical Council delegates. He understood that was the case in relation to the way in which he made his medical notes. 31. The respondent agreed he was interviewed by the Medical Council on 9 December 2016. He was taken to Tab 15 of exhibit A1 and asked to read page 3 of the document. He agreed that was his evidence. He read page 4 of the interview and agreed that was his evidence. 32. It was put that he had not been shown, by the patient, a letter from the patient's GP addressed to the Emergency Department. He denied that. He said he saw a hand written document on a clinical pad. It had letter head. He said "I read it and asked her partner to read it because of the hand writing. The patients partner read it out aloud. It was addressed to the Emergency Department". (We note at this time, it was not put to the patient's partner that he had read the letter out aloud (or at all) to the respondent.) 33. The respondent was taken to Tab 22. This was a copy letter dated 9 February 2018 from the respondent's lawyer to the HCCC. The respondent agreed it asserted on his behalf that he wore gloves when he "touched the injury". It was then put that in his oral evidence, given the previous day, he had said he did not touch the injury. The respondent said "I held the hand and finger parts." He further asserted he had worn gloves. He gave evidence that he had worn two pairs of gloves (at different times. This was not an assertion that he had double gloved). 34. The respondent had a number of aspects of his oral evidence compared to his written statement and the letter written to the HCCC by his solicitor. Differences in those different sources of evidence were put to the respondent who acknowledged there were some differences however, he said he did not think it was important to mention some of those matters and in any event he continued to deny the propositions which were put to him along the lines that he was being untruthful in his evidence. 35. The respondent denied the following: * That the patient told him she had numbness in her fingers and pain in her wrist and constant bleeding. * That the patient asked him to remove her bandage. * That the patient said to him "I know it is really deep. I can feel it". * He did not put on gloves. * That he told the patient "If you are still in pain in a couple of days come back". * That there was a big spot of blood on the pad on the patients hand. * That the wound was still bleeding at the time the respondent saw the patient. * That he told the patient "The bleeding will take some time to stop". * That the patient's wrist had swelling. 1. The respondent conceded the patients partner was present all through his consultation with the patient. 2. The respondent conceded the patient had said something like her finger tips did not feel right. 3. In answer to questions asked of him by Dr Barnett the respondent said the pad on the wound was not absorbent but can be stained and it was. 4. The respondent told the Tribunal he had applied a pad and bandage of similar material to that which the patient had presented with. 5. The respondent was asked "Why didn't you call the Emergency Department if you thought that should happen?" The respondent said "The patient didn't want it." "It was my management that she should go to Emergency Department. She asked for referral to the Emergency Department and I said she would have that but then she refused." 6. The respondent was asked. "What would you normally do if a patient refused your advice?" The respondent replied "I would make a note." 7. The respondent was cross-examined again on 9 May 2019. The issues of fact were put to the respondent as asserted by the patient and her partner. We only set out here notation of evidence (concessions or denials) which has not previously been listed herein. 8. The respondent asserted there were several discussions about the patient requesting I.V. antibiotics. 9. The respondent agreed that on the last occasion he was at court he said the patient was unable to tell him what the name of the antibiotic was which had been prescribed for her by her GP. It was put that now he says, she said, she thought the antibiotic was Augmentin. He agreed. 10. The respondent agreed that he would not have been able to properly examine the wound or assess the injury without taking the bandage off the patient's hand. 11. In further evidence the respondent said his supervisor at Isra Medical Services is Dr Amin. He said that supervision involves discussing matters about management. He has clinical discussions about interesting cases. There are about 10 to 12 other doctors employed by Isra. CONCLUSION ON THE IDENTIFIED ISSUES OF FACT. 1. Earlier in these reasons we identified what were clear issues of fact which were important to determine in order to reach a conclusion as to whether the Applicant had established its' case. As a preliminary finding we are satisfied that Patient A and her partner gave their evidence honestly and as accurately as they could. They did have some minor differences in parts of the evidence they gave however, we conclude those differences do not detract from the compellability of their evidence. No motive for giving false evidence was put to Patient A or her partner during the time they presented themselves before the Tribunal for cross-examination. There was nothing about the evidence of either Patient A or her partner that raised for us any concern they were adversely motivated to provide false and misleading evidence to the Tribunal. 2. As we come to consider the specific complaints pressed by the applicant in this hearing we will make further findings and observations about the evidence of Patient A, her partner and the respondent. 3. Having heard and read the evidence of Patient A, of her partner and of the respondent we find as follows in relation to those identified issues of fact: 1. Did the respondent wear surgical gloves when he examined Patient A's left hand? 2. We are satisfied the respondent did not wear surgical gloves at any time during the consultation with Patient A. Patient A is emphatic in her evidence that he did not wear gloves. We accept her evidence on that matter. Her partner told the court he did not recall the respondent wearing gloves. His evidence is not emphatic on the point nor is it supportive of the respondent. 3. Given we accept the version of fact given by Patient A in relation to her description of what the respondent did in his examination of her hand, we conclude there is nothing in her evidence which suggests the respondent was likely to come into contact with any blood she might have on her hand, or any other body fluid of hers. As such we conclude that is more supportive of her version of fact than that of the respondent. 4. Did the respondent remove the bandage from the left hand of Patient A? 5. We accept the evidence of both Patient A and her partner that this did not occur. The difference between removing the bandage and pad from Patient A's hand and the mere lifting of one edge of the bandage so the respondent could peer into the wound area is so substantial in nature, we conclude it is unlikely there could be any confusion in the minds of the patient and her partner as to what occurred in relation to the bandage affixed to her hand whilst she was in consultation with the respondent. 6. Did the respondent treat the wound on Patient A's Hand? 7. Again, we accept the evidence of Patient A and her partner. Again we see a fundamental difference in the procedure claimed to have taken place on the respondent's evidence and that described by Patient A and her partner so that we cannot see that they could have been confused about whether that procedure occurred or not. 8. Did the respondent apply a fresh dressing and bandage to the left hand of Patient A? 9. We accept the evidence of Patient A and her partner on this issue for the same reason as set out for (b) and (c) above. 10. Did Patient A request the respondent to infuse intravenous antibiotics? 11. We accept the evidence of Patient A and her partner on this issue. There was simply nothing to suggest why the patient would have requested such a procedure. Nothing was put to her, or her partner, about where she could have obtained information to suggest such a procedure was necessary or advantageous. Again, we find it extraordinary that the respondent should make the allegation that such a procedure was requested by Patient A without any questioning of the witness as to why that request may have been made. 12. Did the respondent tell Patient A she should see her GP or the Emergency Department of the hospital the following day? 13. This is an area of fact about which Patient A and her partner could potentially have been mistaken. There is not a radical difference between the two positions. However, Patient A was clear in her evidence that neither of those statements were made by the respondent. Rather, she asserts he suggested she return to see him if she continued to experience issues/difficulty with her wound. 14. Ultimately, we do accept the evidence of the patient and her partner however, we conclude this is not a fact upon which the determination of the Complaint might turn. EVIDENCE OF THE EXPERT WITNESSES 1. Each of the expert witnesses gave oral evidence. 2. Dr Dobler was asked to look at exhibit A2 (the Amended Complaint) page 2 and paragraph 4 (Complaint One, particular 4). He agreed that if that fact was established then it would be inappropriate conduct by the respondent. (This was the statement asserted to be said by the respondent "just go home and take painkillers".) 3. Dr Dobler conceded that if the respondent did not know what antibiotic the patient was taking then he should have prescribed for her himself. Dr Deed said the name of the antibiotic should have been recorded. He said it is very important with puncture wounds to know what antibiotic has been taken by or prescribed for a patient. 4. Both Dr Deed and Dr Dobler agreed it was inadequate to give no advice to the patient as to when she should next see her GP if that is what occurred. 5. Both experts were questioned by the respondent's counsel. Dr Dobler was asked to look at the notes made by the respondent on the Patient Record. He agreed they demonstrated a visual inspection of the wound took place. Dr Deed also agreed with that. 6. Dr Dobler was asked "If the patient said she was prescribed an antibiotic which required to be taken twice daily, do you agree it was not unreasonable to assume it is Augmentin? He replied, "I would want to know more but I do not think it was an unreasonable assumption to make. Dr Deed said he did not agree with that. He said there are a number of antibiotics which are required to be taken twice daily. There is more to be known, such as, one or two pills to be taken at each occasion? It might not have been the most appropriate antibiotic. 7. Both were asked, "having read the patient notes, do you agree the only available inference is that the patient suffered pain?" Both said they thought there was an understanding the patient had pain. 8. Both were asked about the process of inspection of the dog bite wound and the prediction as to the possible progression of the wound to infection. Dr Dobler said "The description of Patient "A" would require a detailed examination to exclude other sequalae". Dr Deed agreed with that. He said "It would require quite a detailed examination of the hand. It would red flag it might be a deep injury and there may be other injury." 9. Dr Aitken asked "The respondent reviewed the injury less than six hours after the bite. Would you expect to see signs of infection in that time?" Dr Dobler said "No but redness can be indicator of the trauma." SUBMISSION 1. The applicant relied on the written submissions contained in exhibit A8. Additionally the applicant made further oral submissions. 2. The submission of the applicant can be summarised as follows: 3. The case is pursued pursuant to sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner National Law (NSW) ("the National Law"). The specifics of the complaints of "unsatisfactory professional conduct" (sections 139B(1)(a), 139B(1)(b) and 139B(1)(l) of the National Law) and professional misconduct (section 139E of the National Law) are set out in exhibit A2, the Amended Complaint filed by the applicant. 4. The respondent denies Complaints One, Two and Four of the Amended Complaint. The respondent admits, in part, Complaint Three of the Amended Complaint. 5. The applicant moves for the de-registration of the respondent. Such an outcome would prevent the respondent from working as a medical practitioner in the manner in which he has done since he obtained registration. The applicant submits that the evidence of the patient and her partner should be preferred to that of the respondent. The applicant submits that the respondent has acted dishonestly in the presentation of some of his evidence. The thrust of the applicants submission is that there is such a contradiction between the version of fact given by the patient and her partner, on the one hand and the respondent on the other, that it must follow, if the Tribunal accepts the version of fact provided by the patient and her partner, the only available inference is that the respondent has deliberately fabricated his version of fact. 6. As we turn to evaluate and consider the evidence we will refer to submission by each party where it is appropriate to do so. 7. The respondent provided a written submission and an oral submission. It was submitted that save for an admission by the respondent that he had altered the clinical record for the consultation, the respondent does not admit the balance of the complaints made by the HCCC. 8. Whilst acknowledging that as a matter of principle "the protection of the health and safety of the public must be the paramount consideration", it was submitted that the Tribunal would not be satisfied on the Briginshaw standard that the HCCC had established its' case. 9. The respondent submits that whilst he concedes his note taking on this occasion should have been more detailed, he has taken steps to address that shortcoming in relation to patients seen by him since that time. In any event it is submitted the Tribunal would find that the notes were adequate. If the Tribunal concludes the notes were not adequate then the note taking he did make should not be the subject of strong criticism. 10. It was submitted that the respondents should be accepted when he said he had removed the bandage from the patient's hand, and the pad covering the wound and had inspected the wound. It is submitted that the clinical notes the respondent did make, support his version of fact. 11. In relation to other aspects of conflict in the evidence between that of the patient and that of the respondent it is submitted that if the respondent's version is accepted then the case against him is not made out. 12. In relation to the complaint that the management plan for the patient was inadequate it is submitted that such a complaint has not been established on the evidence. It was submitted that the evidence of the experts largely supported the respondent's case on that matter. 13. In relation to complaint three made by the HCCC the respondent admits he is guilty of unsatisfactory professional conduct in that he sought to, and did, add entries to the record after he received the complaint. The respondent submitted "He understands that records must be kept contemporaneously." 14. The respondents written submission includes the following on this issue: The respondent's "explanation to the Tribunal about what he was seeking to do by adding the two entries was at times 'lost in translation" during his oral evidence." It is submitted that he did not try to re-write the history which he had included in the entry he made at the time of the consultation or shortly thereafter (the same night is his evidence). 15. The Tribunal accepts that such an outcome, as sought by the HCCC in this hearing would have a very significant impact upon the respondent. The Tribunal is also cognisant of the obligation to protect the health and safety of the public and to maintain proper standards in the medical profession. It is with those considerations that we turn to consider the evidence in this case and apply to it the standard of proof required, namely the balance of probabilities. In so doing we keep in mind the words of Dixon J in the High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362 to 363. Complaint One 1. The applicant claims the respondent is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that he engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or the care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The particular of the complaints which are most likely to allow the Tribunal to reach a satisfactory conclusion are as follows: "On 18 December 2015, the practitioner failed to remove Patient A's bandage to examine her wound. On 18 December 2015 the practitioner failed to undertake an adequate physical examination and assessment of Patient A's wound and her entire left hand in circumstances where Patient A had complained of bleeding, pain at the site of the injury and an altered sensation in her left fingertips." 1. In order to reach a satisfactory decision as to whether this complaint, together with most of the balance of the complaints made against the respondent, it is necessary to reach a decision as to the credit of each witness and thereby satisfy ourselves as to the probability of the respondent having conducted himself as a medical practitioner, as is alleged. As will have been seen in these reasons we have reached a conclusion as to the contested issues of fact which we have identified earlier. In reaching those conclusions we have preferred the evidence of Patient A and her partner for the reasons previously stated. We here add the following further observation and findings on the evidence provided by each relevant witness. 2. Throughout these reasons we have set out extensively the evidence of the patient, the patient's partner and the respondent in relation to contested facts. We have, with particular attention, considered where the evidence of each witness may have been affected by the effluxion of time between 18 December 2015 and the date of each statement and the date of the hearing. In so doing we have isolated those "contests of fact" which we consider would not be impacted upon in any significant way by those time considerations. We have concluded that there are aspects of the versions of fact which each witness has given which may be unreliable. However, there are events/actions about which the witness's recollections are likely to be reliable. There are also reasons why the recollections of the patient and her partner are likely to be more reliable than that of the respondent. 3. As previously stated, we have concluded, the issue of fact of whether the respondent removed the bandage from the patient's hand and examined her wound, is a fact about which all present should be expected to have reliable recollections. We conclude there is a vast difference between a circumstance where a peripheral examination of the patients wound is performed through the mere lifting of an edge of the outer bandage on the patients hand in order to see if the wound could be inspected AND a circumstance where the respondent, in the presence of the patients partner, unwound the bandage on the patient's hand (removed same), removed the pad covering the wound, carefully inspected the wound, then applied a new pad to the wound, applied a new outer bandage and fastened it in a particular fashion. The difference between those two procedures is such that we conclude a witness is likely to remember if the procedure occurred in one manner as opposed to the other. 4. We further conclude that the recollection of the patient and her partner is to be preferred rather than that of the respondent in relation to that event because: * For the patient and her partner, the meeting with the respondent was a "one off" event. It could not have been confused with another attendance upon the respondent. * There was nothing about the presentation of the patient and her partner which suggested either was being untruthful or had a particularly faulty memory of the event. Both are educated and clearly intelligent persons. * No motive for the patient or her partner to be untruthful about the consultation with the respondent was put to either nor was any motive suggested or established during the hearing. * The interaction between the patient, her partner and the respondent was such that the patient was dissatisfied with the consultation. Her partner was moved to reduce to writing his recollection of the event on 25 December 2015. The patient was moved to make a formal complaint against the respondent. Their actions were entirely consistent with a high degree of dissatisfaction with the professional service provided by the respondent on the one occasion upon which they had any contact with him. * The respondent's credit is seriously challenged by his admitted action of "amending" the record of the notes he made of the consultation on 15 December 2015. He did so after he had received the detail of the complaint the patient had made to the HCCC about him. We are satisfied he did so in order to exculpate himself from any further action by the HCCC. It is conceded that he did not inform the HCCC, at the time he provided that record, that he had amended same. 1. In relation to the "amending" of the computer record of the consultation between the patient and the respondent we conclude that the respondent intended to create the recording so that it suggested all notes had been made on the same day namely, 18 December 2015. Such an action was dishonest and the probable motive was to move the HCCC to ignore the complaint. 2. The record produced to the HCCC by the respondent (see Tab 7 of exhibit A1) makes clear that an additional entry was made on the record after the time of the first note. In the additional note the following words were included: "She was adv to return to ED Canterbury for which she do not need referral as she already in the process treatment. However as she was reluctant to return back she was adv to F.U. with GP." 3. The additional note purported to record the patient's failure to accept the respondent's medical advice. The experts' evidence is that any such reluctance, refusal by a patient to accept advice of a medical practitioner must be included in a medical record. Further, it seems to us, that where a patient refuses to accept a medical practitioners' advice it could be an indication of dissatisfaction with the medical treatment provided by that practitioner and could give rise to a complaint being made. As such, for the sake of personal protection of one's professional status, it would be wise, if not imperative, to make an extensive and clear note of that consultation and the refusal to accept the advice. As a consequence, we feel comfortable with concluding, had the patient refused the respondents advice, as he asserts, he would have made a point of including a note in the record at that time of such matter rather than after he received a copy of her complaint to the HCCC. 4. The respondent's evidence relevant to the amending of the computer record of the consultation led us to conclude he was not truthful in his explanation of how that occurred. Further he did not advise the HCCC he had amended the record until he was interviewed by officers of the Medical Council. His explanation that he tried to add additional notes in a manner which did not suggest the notes were made on the same day as 18 December 2015 was not convincing. 5. The respondents first notice of the complaint was communicated by letter from the HCCC to the respondent on 8 February 2016. The letter informed the respondent of the complaint and enclosed a copy of the complaint. The letter required a response by 1 March 2016. It asked for a copy of the "consultation notes and records regarding the treatment of" the patient. It advised a copy of the response would be provided to the patient unless the respondent said he opposed such occurrence. 6. The respondent replied to the letter dated 18 February 2016. He enclosed a copy of his "Progress Notes" for the patient. The respondent specifically stated "I do not provide my consent for a copy of this complaint to be released to the complainant." Although he offered no explanation as to why he responded in that manner he was not cross-examined about why he made that statement and accordingly we draw no adverse inference against him for same. He asserted that his care and management of the patient was in line with good clinical practice. 7. Although he did not specifically state he had amended his Progress notes for the patient, that was obvious to the extent that there was a heading "Entry appended: Sunday February 14, 2016." There was an earlier entry "Entry appended:" It was dated 18 December 2016 23: 09: 08. It is the HCCC case that the respondent attempted to make the earlier entry look as if it was created on 18 December 2015 about 3 minutes after the original entry which was "Friday December 18, 2015 23: 06: 35." 8. The respondent conceded he had made both appended entries after he received the advice of the complaint from the HCCC. The second note of "Entry appended" dated Sunday February 14, 2016" clearly suggests the entry was made after receipt of the letter from the HCCC dated 8 February 2016. However given the admission that the first "Entry appended" was also made after 8 February 2016 the Tribunal is left with the inescapable conclusion that it was created in order to create a deception. Any intended deception failed because of the year date being 2016 rather than 2015. In submission the respondent conceded his explanation as to how that entry came to appear in that manner "was at times 'lost in translation' during his oral evidence." That was an appropriate concession for his counsel to make and it is framed in a kind light for him. 9. We are not the only group to have found the action of the respondent in amending his Patient record for the patient as a "deliberate attempt to mislead." Such a finding was made by the representatives of the Medical Council when they prepared the Conduct Interview Report contained at Tab 15 of exhibit A1. They noted difficulty in understanding the respondent's explanation of how the date and time appeared on the Patient record which he provided to the HCCC. 10. In the evidence of the engaged expert Dr Garry Deed (Tab 17 of exhibit A1) he was asked at paragraph 11 (page 14 of the report) to "Please comment on Dr (respondent) conduct of changing his medical records following receipt of the Commission's complaint". He said he agreed with "the assessment in the conduct interview 3.1.9 by Drs Alison Reed and Leslie Cotterell that 'His subsequent alteration of the records, particularly on the first occasion, would appear to be a wilful attempt to rewrite the history of his contact with his patient." He agreed with the assessment in that document that the respondent "appears to have engaged in significantly unethical conduct." 11. There is no clear admission that the respondent attempted to make the Patient notes give the impression the first "Entry Appended" was crafted by him to look as if it was made a few minutes after the first entry, however, the inference that was the case is, to us, inescapable. 12. There is another aspect of the disputed fact which appears to us to stand out. That is the assertion by the respondent that the patient had requested the respondent to perform a procedure of treating her with I.V. antibiotics. During the hearing the respondent did not explore what if any, knowledge or experience the patient had with antibiotics being given intravenously rather than orally. On its face, it seems a rather extraordinary request for the patient to have made. Further, although the respondent set out that allegation in his letter to the HCCC dated 18 February 2016 there was no note of such a request being made of the respondent in the Progress notes created by the respondent (either originally or after receipt of the complaint). Again, on the respondent's version, the respondent was faced with a clear request for a particular medical procedure to be undertaken, which he refused to perform. As such, a note of same would have suggested itself as advisory, if not protective of the respondent. We accept the evidence of the patient and her partner that no such request was ever made and that the respondent has either fabricated the evidence or has confused this patient with another. 13. The conclusion we reach is that although the Respondent lifted the edge of the bandage on the patient's hand as his "inspection of the patients wound" he did not remove the bandage from the patients hand nor the pad covering the wound and clinically inspect same. Further, by his own admission he knows that is what was required of him in the circumstance in which the Patient presented to him. So much so that we must conclude he has fabricated his assertion that he did perform that procedure for the patient. 14. The expert witnesses each agree (assuming the evidence of the Patient is accepted by the Tribunal) that failure to so act was an example of the respondent demonstrating care, skill and judgment in the practice of medicine "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." Neither expert asserted this failure attracted strong criticism. 15. We find therefore that Complaint One is established. 16. It is important to note that although we have been satisfied the applicant has made out its case, in respect of Complaint One, that complaint lists a number of separate particulars upon which the experts gave evidence. It was particular 4 and particular 6 which the applicant pressed for a finding. We are satisfied on the evidence, that the assertions of fact set out in each has been established and that each is evidence of "unsatisfactory professional conduct". Complaint Two 1. This ground alleges the respondent is guilty of unsatisfactory professional conduct (s.139B(1)(b) of the National Law) in that he contravened Clause 2 of Schedule 2 of the Regulation in respect of medical records in that (a) he incorrectly recorded Patient A's dog bite as an "abrasion". (b) that he failed to record an adequate history taken including any reference to pain. 2. In the letter sent to each of the clinical experts neither was asked to consider whether the notes produced and kept by the respondent on 15 December 2015 were adequate. Some of the questions asked required a consideration of the note taking. 3. The respondent in his submission concedes his note taking required attention. The submission was that the respondent "accepts that he can do better in the way of record keeping and has taken steps to address this." In oral evidence each expert was asked about the recording by the respondent. They were asked to look at a copy of the record as it appears in Tab 7 of exhibit A1. They were asked about the description of the wound as an "abrasion". Dr Deed said "Based on inadequate connection of history to the observation – it does not allow me to understand the nature of the injury. Abrasion has a specific meaning. I do not consider it is an adequate record". Dr Dobler said the history shows the word laceration. He agreed an abrasion is not a laceration. Dr Dobler said he thought the respondent had used the wrong word. He said "I don't think it would affect my future care as I would assume there was a breaking of the skin". 4. The inadequacy of the record keeping is reflected in the sparsity of same when compared to the evidence given by the respondent as to what occurred in the consultation. The criticism of the record taking of the respondent is scathing in the report of Dr Deed at page 15 item 12. Further in response to the question "Please comment on (the respondent's) statement that he wrote a letter to the Emergency Department but did not make a copy or any note of it.", Dr Deed at page 13 and 14 of his report sets out what should have appeared in the notes of the respondent on the subject consultation. He cites the RACGP Standards of general practice version 4. He sets out what is required for medical records by that standard. It is a clear inference from what Dr Deed said in relation to the clinical notes of the respondent throughout his report that the conduct of the respondent was below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It is also clear that he regards the departure as demonstrating same was significantly below that standard. 5. It is important to look at the words in the Regulation which is considered in this complaint. In the hearing the Tribunal was provided with a copy of the Health Practitioner Regulation (NSW) Regulation 2010 Schedule 2. Both counsel assured the Tribunal that this Regulation had application to the case under consideration. 6. Clause 2 of the said schedule has a heading "General Requirements as to Content". It then provides as follows: 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 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. 1. It is the applicants' case that this record is an insufficient/inadequate record keeping in two respects only. The first relates to the description of the wound as an abrasion and the second to a failure to record an adequate history, in particular failure to record any reference to "pain". 2. Dr Deed opined that in both categories the respondent had exhibited conduct which showed a failure to demonstrate the required standard. Dr Dobler thought the respondent's description of the wound as an "abrasion" was adequate. He opined that the medical record keeping was otherwise below the standard. 3. It is important when considering whether this particular has been establish, to remember the description of the wound as an "abrasion", is probably more consistent with Patient A's description of the examination conducted by the respondent (i.e. what the respondent might have seen of the wound by the mere lifting of the edge of Patient A's bandage as opposed to what might have been seen had the bandage been removed completely together with the pad which was covering the wound). If the respondent had merely lifted the edge of the bandage in an endeavour to see the wound then his view would have been from an oblique angle and accordingly, the wound may have had more of an appearance of abrasion than that of a puncture. 4. We conclude that the significance of the word used may have had minimal significance. It is important to recall that the test for adequate record keeping/making is that another practitioner would have sufficient information from the record to be able to continue care for the patient. 5. Turning then to the second part of the particular of the complaint, we turn to consider the record taking as a whole and in its failure to record "pain" as a complaint by Patient A. 6. The original, unaltered record, made by the respondent contained an assertion under the heading "Management" of "dressing reapplied". That description would be consistent with the evidence of Patient A and her partner that the examination of the wound consisted of the lifting of one edge of the bandage on the hand of the patient when she arrived at the respondent's consultation room. Strictly speaking, lifting the edge of the bandage and then dropping it again, could be described as "dressing reapplied". Thus, if that meaning is given to those words then the words are consistent with the evidence of Patient A. The words may also be a description for what was claimed by the respondent, namely the complete removal of the bandage and the application of a bandage of identical form. If the meaning consistent with the evidence of Patient A is ascribed to the words then the words are accurate. 7. There are other aspects of the record which were the subject of criticism by Dr Deed in his oral evidence. He said "Pain a history needs to be accurately recorded." The notes taken by the respondent do not refer to pain at all. However, Dr Deed did say that tenderness (which is mentioned in the notes) can mean pain. It is however unclear. Dr Dobler said that the record in relation to examination is inadequate as is a record in relation to pain. 8. Both experts agreed that the notes as presented tend to demonstrate a visual inspection of the wound. 9. Dr Deed (and possibly Dr Dobler) was critical of the record in relation to the antibiotic the patient had been prescribed and had taken. Dr Deed said that there are a number of antibiotics prescribed by medical practitioners which require to be taken two times per day. He said there was more to know such as whether the prescription required the patient to take one or two tablets on each occasion. He said it may not have been the most appropriate antibiotic. He was critical of the respondent assuming the antibiotic prescribed by the patients GP had been Augmentin. Dr Deed said that at the point at which the respondent saw the patient the antibiotic Augmentin was appropriate, however if there was infection another antibiotic would need to be considered. 10. Both experts agreed there was an understanding that the patient was suffering pain when she saw the respondent. 11. Dr Deed informed the Tribunal that the record taking was not adequate for a more complicated history taken at the time. 12. We conclude that the record keeping of the respondent arose from an inadequate physical examination of the patient's hand and to that extent the inadequacy has been considered under a different aspect of the complaints brought against the respondent. We conclude the evidence satisfies us the contemporaneous medical record is below the standard expected but probably not significantly. We conclude the deficiency probably arises from the deficiency in the consultation itself which was inadequate, and it was that inadequate consultation which led to the limited history being recorded as with the limited examination performed. The inadequacy has been the subject of another complaint which we have set out in these reasons. 13. Consequently, as we are satisfied that it has not been established that the record keeping does not depart from the expected standard in a significant way we find this complaint has not been established to the requisite level. Complaint Three 1. This complaint alleges the respondent is guilty of unsatisfactory professional conduct under s.139B(1)(l) of the National Law. It is alleged the respondent engaged in improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. The particulars are stated as improper and unethical alteration of the clinical records of the patient for the consultation which occurred on 18 December 2015. Further it is alleged that on 15 February 2016 the respondent provided false and misleading information to the Commission contrary to s.99 of the Act in that he stated he had removed the patients dressing, examined the wound and redressed the wound aseptically when he had not done so. It is alleged he repeated this alleged false statement in a letter penned by his solicitor to the Council and on 9 December 2016 he repeated the false and misleading information to two Council delegates. 2. We are satisfied that it is unethical for a medical practitioner to include in a medical record information which he knows to be untrue or which he knows did not take place. We are satisfied that is what the respondent did in this case. (asserting he had removed the bandage from the patient's hand and then, after examining the wound, applied a fresh dressing and bandage.) That was his evidence of what he did for the patient in this hearing. We are satisfied that did not happen. 3. We are satisfied that it is unethical for a medical practitioner to alter a medical record following receipt of a complaint from the HCCC in order to support an assertion that the complaint should be disregarded. We are satisfied that is what the respondent did in this case. 4. We are satisfied that complaint three has been established. Complaint Four 1. This count alleges the respondent is guilty of professional misconduct under s.139E of the National Law. It is asserted that the respondent: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration OR 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioners' registration. 1. The particulars of the complaint are said to be all the particulars set out for complaints one to three inclusive. 2. This count requires the tribunal to be satisfied the HCCC has established either of the two criteria set out in s.139E. 3. Turning then to consider the first criteria we determine as follows: 4. It seems to us that there are a number of findings we have made in this case which fall within this criteria. Those include the following: * The finding that the respondent has acted dishonestly by asserting he performed an examination of the patient's hand, in the manner he has stated in his evidence in this hearing, at the time he saw her on 18 December 2015. Whilst we accept he did carry out a form of examination of the patients hand (lifting the edge of the bandage on her hand and looking into the bandaged hand) he did not remove her bandage and pad underneath same to examine her wound as he has told this Tribunal. He did not aseptically place a new pad and bandage to the patients wounded hand. * The finding that the respondent had deliberately altered the patients notes which were made on 18 December 2015 (a fact he conceded occurred) AND in so doing deliberately attempted to alter the record by having the additional notes appear as if they had been made within minutes of the notes which he did make on 18 December 2015 where he admits they were made in February 2016 after receiving a copy of the complaint made by the patient. * The finding that he failed to inform the HCCC when responding to the complaint the patient had made that he had altered the record and relied upon that false record to support his submission to the HCCC that the patients complaint should be disregarded and that the "HCCC should not take any further steps in relation to this complaint." 1. In relation to the second criteria for making a finding under s. 139E we are satisfied the second criteria has been established in this case by the findings made by us in relation to Complaint One. 2. Although it is unnecessary to add to the previous paragraph to make the finding set out therein, it is to be noted that Dr Deed opined on more than one occasion that the departure from the standard was significant and warranted his strong criticism. Dr Dobler was not as condemning of the respondent in relation to his finding of conduct below the standard in that he did not conclude his strong criticism was warranted other than in relation to the alteration of medical records by the respondent. What protective orders should be made in this case following the Tribunal reaching the conclusions set out above? 1. The HCCC seeks that the practitioner's registration is cancelled pursuant to s.149C(1)(b) if the National Law. The HCCC seeks the Tribunal provide that the respondent cannot reapply for registration for a period of two to three years of the cancellation order as provided for in s.149C(7) of the National Law. 2. In addition to the above set out outcome the HCCC asks for a costs order to be made against the respondent requiring the payment of the applicant's legal costs pursuant to Clause 13, Schedule 5D of the National Law. It submits such order should be made on the basis that such costs would be agreed or assessed. The applicant reminds the Tribunal that the respondent has already agreed to pay the costs of the applicant for the third day of the hearing. 3. The relevant provision of s.149C(1)(b) relied upon by the applicant is as follows: 149C(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied – (b) the practitioner is guilty of professional misconduct." 1. Professional misconduct is defined as set out in s.139E as we have set out above. 2. The applicant submits it would be appropriate and in the public interest for the Tribunal to impose a non-review period of two to three years to enable the respondent to reflect on his prior conduct and be in a position to demonstrate fitness, reformation of character and insight in any future re-registration. 3. In support of this submission the applicant cited a decision of the Tribunal Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 (27 November 2015) paragraph 42 to 46. That reference is to the following words: 42. The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions. 43. In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection": (a) Any need to protect the public against further misconduct by the practitioner; (b) The need to protect the public through general deterrence (of other practitioners); (c)The need to protect the public by reinforcing high professional standard and denouncing transgressions; (d) The maintenance of public confidence in the profession; (e) The desirability of making available to the public any special skills possessed by the practitioner. 44. This statement was approved in Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [24] applying the National Law. 45. In HCCC v Do [2014] NSWCA 307 Meagher JA, with whom the other members of the NSW Court of Appeal agreed, reflected the first four of these factors when he stated: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." [35] 46. In HCCC v Do, the Court of Appeal held that the Tribunal had fallen into legal error by focusing only upon the risk of reoccurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct, nor the full implications of the findings that the practitioner's skill and judgement had fallen significantly below the standard reasonably expected: [39]. In so doing the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by ss 3A and 4 of the National Law: [40]. 1. The applicant also cited a passage from Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA at paragraphs 20 to 21 as follows: Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 1. Finally the applicant cited the following passage from Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." 1. We accept that the above cited cases do provide a guidance in determining what order to make in this case. 2. The respondent provided oral submissions on 9 May 2019 as to penalty. The respondent's counsel submitted cancellation or suspension of registration was not appropriate or necessary to protect the public safety in this matter. She submitted that the order sought by the applicant would strip the respondent of his livelihood. This is a matter which is high in our consideration of this matter. 3. The respondent submitted the most serious aspect of the complaint against the respondent is his alteration of the medical record for the patient, which action is confessed to by the respondent. It was submitted however the respondent denied the alteration was made to create false evidence. We have concluded unfortunately, that such was in fact the intent of the respondent. 4. The respondent's counsel submitted the public would be protected if the respondent was required to undergo further training. She submitted an order requiring supervision and audit with respect to record keeping would be the appropriate order to make. 5. Turning to consider the five matters bearing on protection, as cited in Health Care Complaints Commission v Duggan, we take into account the need to protect the public against further misconduct by the practitioner. In this case the respondent has been found to have conducted himself in a dishonest manner. He has not conceded the matters we have found against him in this decision. It is not possible therefore to measure any level of contrition. It is in those circumstances not possible to be satisfied the health of the members of the public who attend upon the respondent for medical treatment will be safely and appropriately administered to by him. 6. Any protection order less than a suspension of a practice certificate for a meaningful length of time or the cancellation of a practice certificate would not act as a general deterrent of other practitioners in our view. Failure to demonstrate integrity and ethical practice as a medical practitioner must be seen as one of the most significant bars to practice as a medical practitioner. The public must be able to trust that the character of a doctor provided with registration by the Medical Registration authority has been assessed to the extent that is possible and that personal honesty is demonstrated in every aspect of the practitioners' interaction with the public as a medical practitioner. 7. The transgression of the respondent in this case, as found by us, is of such a nature as to require denouncing through the publication of this decision and hopefully widespread dissemination among members of the medical profession. 8. Failure to make an order of the magnitude of suspension or cancellation of the respondent's registration, in this matter, would, we are satisfied be unlikely to maintain public confidence in the profession. 9. We are of the opinion that the service provided by the respondent working as a medical practitioner in an after-hours clinic attached to a Public Hospital is a very important service. Anecdotally we hear of long waiting times experienced by some patients who attend Emergency Departments of Public Hospitals and the ability of the Hospital concerned to refer the patient to a clinic, which is on site, manned by a skilled medical practitioner and has a relatively short waiting time, is a very important for both the patients who attend such a Hospital and for the Hospital to be able to service the needs of the public in a timely manner. Thus suspending or cancelling the registration of a medical practitioner who is working in such a facility, is likely to have impact upon both the public and the Hospital if the respondent cannot be replaced. 10. In determining the protective order to make in this case we turn our consideration to s. 3A and s. 4 of the National Law. Those sections also require a knowledge of s. 3 of that Act. Without setting out s. 3 in full we note that sub-section (2) speaks of "practitioners who are suitably trained and qualified to practice in a competent and ethical manner". We note the provision of s. 3A which speaks to "Objective and guiding principle [NSW]". The words of the section are as follows: "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. We turn now to consider the practical difference between a protective order which suspends the registration of a practitioner as compared to a protective order which cancels the registration of a practitioner. 2. It appears to us that the major difference between the two possible orders is that a cancellation would require the practitioner to satisfy another constituted Tribunal that the practitioner was ready for further registration at the conclusion of the ordered period of cancellation. Suspension would not have that requirement. Upon the suspension period being served the registration of the practitioner would be reinstated without further scrutiny by either the Medical Council of Australia or any other like body. 3. We conclude that it would be necessary for the protection of the public that there be a consideration of the suitability of the respondent to be registered again at the conclusion of a cancellation period. Such consideration would be required if the respondent needed to apply to either the Tribunal or another body such as the Medical Council of Australia. At the time of such application one of the matters which may be considered is what steps the respondent has taken during the period of cancellation to address the inadequacies in his performance as a medical practitioner, which have been established in this hearing. Such a process is, in our view, necessary as a protection for the public. 4. We will make an order for the cancellation of the registration of the practitioner for a period of time. 5. We are further of the view that as this case has turned upon a finding of the respondent acting dishonestly it is appropriate that any application by him to again be registered should be determined by the Tribunal, albeit a differently constituted one. What time period should be specified for the cancellation order? 1. Clearly a period of cancellation which is to be imposed, would satisfy the criteria and considerations which are set out in those portions of the cases we have considered above, together with the sections of the National Law we have cited. It seems to us the principal drivers of that consideration need to be the protection of the safety of the public together with the deterrent aspect that the cancellation period might send to the medical practitioners of Australia. The other considerations need to also be borne in mind. 2. We consider a cancellation for a period of two to three years, as sought by the applicant, would be excessive in the circumstances of this case. We have considered a cancellation period of either 6 months or 12 months. Having considered the seriousness of the findings made against the respondent we consider that, on balance, the period of cancellation needs to be 12 months rather than 6 months. Such a period should allow the respondent time to address the matters relating to the practice of medicine by him, identified in these reasons as requiring change and also serve as a deterrent to others. Additionally we consider that period of cancellation will serve to maintain the confidence of the public at large in the medical practitioners of this country and those who are charged with overseeing those practitioners. 3. Considering those matters we conclude that a cancellation period of 12 is necessary to satisfy those considerations. COSTS 1. The applicant seeks an order for costs as set out earlier in these reasons. The applicant reminds the Tribunal that the respondent has already agreed to pay the costs of the applicant for the third day of the hearing. DETERMINATION Jurisdiction 1. Under s 165B (5A) of the Health Practitioner Regulation National Law (the National Law) the Tribunal, when constituted to make an ancillary decision as defined in the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), is to be constituted by the Tribunal List Manager or the judge or legal member presiding at the hearing. 2. Section 4 of the NCAT Act defines "ancillary decision". Sub-para (b) of the definition is "a decision concerning the awarding of costs in proceedings". 3. The submissions of the applicant address the claim for costs. The written submissions of the respondent (dated 9 May 2019) are silent on that subject. The respondent, in reply to an email dated 19 June 2019, to the Team Leader, NSW Civil and Administrative Tribunal, advised: "The respondent does not wish to make any submission in relation to costs." 4. The applicant submitted that the respondent should be ordered to pay the complainant's costs. The complainant noted that the respondent had already informed the Tribunal that he would pay the costs of the applicant for the additional day required for the hearing, namely, 9 May 2019. 5. Whilst conceding that an order for costs is discretionary, the applicant says "it is commonly held that costs will follow the cause." The applicant referred the tribunal to Clause 13 of Schedule 5D of the National Law. 6. Clause 13 of Schedule 5D of the National Law is as follows: 13 Tribunal may award costs [NSW](1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal.(2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 1. The applicant cited the Court of Appeal decision in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (paragraphs 44 and 46) to assist the Tribunal. Those paragraphs focused on the impact of a costs order on the respondent and whether matters such as hardship and evidence of steps being taken by the respondent to "overcome personal difficulty" ought be considerations of consequence in the exercise of the Tribunal's discretion on the subject of a costs application by the HCCC. 2. In Health Care Complaints Commission v Philipiah the words of Meagher JA are of assistance in the determination of what might be relevant to the exercise of discretion to make a costs order. 3. Meagher JA explained at [42]-[44]: "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made." 1. Matters which impact upon the discretion to be exercised by the Tribunal in relation to costs. * Although the respondent admitted he had altered the medical record for Patient A, he nonetheless conducted a case that the alteration was not intended to deceive. * The applicant has been successful in establishing its' case, in that, the respondent has had his registration cancelled as sought by the applicant. * The applicant was successful in establishing the practitioner had engaged in professional misconduct, as was alleged. The applicant also established findings of unsatisfactory professional conduct. * The applicant did fail to establish one (of the many) of the particulars of alleged unsatisfactory professional misconduct alleged. Matters arising from this hearing which the Tribunal members raise as matters of concern. 1. During the hearing in this matter the Tribunal was told that the respondent does not hold specialist accreditation as a General Practitioner. The Tribunal was told the respondent had sought to obtain that accreditation and had been unsuccessful. Thus, the respondent found himself employment in a circumstance where he worked in a clinic, after normal business hours for private practice General Practitioners, unsupervised by an accredited general practitioner. Further he worked in a clinic where there were no other medical practitioners working at the same time that the respondent was there. 2. Whilst it is clear that the above described circumstance in which the respondent worked cannot be a defence to the complaints raised by the applicant, it does describe a circumstance which warrants consideration by those who oversee the practice of medical practitioners in Australia and particularly those who have not yet obtained accreditation as a General Practitioner. Matters for the respondent to consider and possibly act upon during the period of disqualification specified in the orders made herein. 1. The respondent should consider what action to take during the period of cancellation as he will have to convince the Tribunal, should he choose to apply for further registration as a medical practitioner, that it is appropriate to provide him with the opportunity for further registration. We would strongly recommend that the respondent obtain professional advice on this matter, including seeking advice from an office bearer of the Medical Council of Australia. The respondent should anticipate that the absence of action on his part, to address the issues which led to the determination by this Tribunal that cancellation of his registration was required as a protective order, may render such applicant unsuccessful. Clearly it will be for that Tribunal to determine any such application. Orders 1. The Tribunal finds that the practitioner's conduct constitutes both unsatisfactory professional conduct AND professional misconduct. 2. Pursuant to s.149C(1)(a) and (b) of the National Law, the registration of Dr Quamrul Huda is cancelled. 3. Pursuant to section 149C(7) of the National Law order that Dr Huda cannot seek a review of the orders made by the Tribunal for a period 12 months from the date hereof. 4. Pursuant to section 163 of the National Law the Tribunal is the appropriate review body for any review of these orders; 5. Dr Quamrul Huda is to pay the costs of the Health Care Complaints Commission of and incidental to the proceedings as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Act 2014 (NSW). 6. Publication of the names of the patient and her partner referred to in this proceeding is prohibited. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 08 July 2019