Azam v Medical Board of Australia [2023] QCAT 185

[2023] QCAT 185 QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL REID, Judicial Member No OCR 132 of 2022 AZAM, Muhammad Applicant v MEDICAL BOARD OF AUSTRALIA Respondent BRISBANE WEDNESDAY, 19 APRIL 2023 JUDGMENT [1] JUDICIAL MEMBER: By the application, the applicant, Dr Azam, seeks a review of the respondent’s decision on 10 May 2022 to refuse his application for specialist registration as a medical practitioner in the field of general practice. [2] On the 19th of June 2007, the tribunal had ordered that Dr Azam’s registration be cancelled, effective 29 June 2017, and he be disqualified from applying for registration for a period of four years. It also ordered Dr Azam pay the board’s costs. [3] The circumstances which led to the making of those orders are set out in two judgments of her Honour Judge Sheridan in Medical Board of Australia v Azam -- 1 of 12 -- 2 [2017] QCAT 156, and Medical Board of Australia v Azam (No 2) [2017] QCAT 206. [4] I shall refer to some of the matters dealt with in those judgments in the course of these reasons. [5] On 13 July 2021, Dr Azam applied for specialist registration as a medical practitioner under section 77 of the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (the National Law). [6] Subsequently, the board refused Dr Azam’s application, and he filed the application that is before me. There were a number of amendments to the application in the course of time. [7] Eligibility for the specialist registration is governed by part 7, division 2 of the National Law. Assuming a person is not disqualified from applying, section 57 of the National Law provides that a person is eligible for registration if they have prescribed formal qualifications, practical training, and “the individual is a suitable person to hold registration in the health profession”. [8] Dr Azam is no longer disqualified from applying for registration, and there is no issue with his formal qualifications or training. The sole issue is whether Dr Azam is a “suitable person” having regard to section 57(1)(c) of the National Law. I am indebted to counsel for the applicant in respect of the summaries of this legal background. [9] The issue of suitability is dealt with in both sections 55 and 60 of the National Law. The applicant’s counsel, in his written submissions submits, and I accept, for “suitability”, the two provisions must be read together: section 55 (concerning -- 2 of 12 -- 3 unsuitability for general registration) and section 60 (concerning unsuitability to hold specialist registration). The latter provision picks up the language of the former, subject to appropriate modifications. Under those provisions, the board may decide that an individual is not suitable to hold specialist registration in a recognised speciality. [10] Ultimately, the board formed the view that Dr Azam was “unsuitable” because he was “not a fit and proper person for specialist registration in a recognised speciality”: National Law section 55(1)(h)(i). On that basis the board refused Dr Azam’s application. [11] Importantly, section 83 of the National Law empowers the board to grant registration subject to conditions, but the board refused to exercise that power because of the committee’s opinion that Dr Azam had “serious character deficiencies which cannot be cured by the imposition of conditions”. [12] I also accept the written submissions of the parties in relation to the fit and proper person requirement. [13] The term “fit and proper person” involves a wide scope for judgment. Prior misconduct is often critical, but, as the applicant’s counsel submits, an applicant can meet the requirements of the test “if he or she can demonstrate genuine rehabilitation or reformation”. The judgment thus involves a prediction about the likely future events and a person’s ability to maintain the requisite professional standards. [14] The question to be considered is whether Dr Azam can now meet the expected professional standards despite his past misconduct. [15] It is thus necessary to consider both the nature of Dr Azam’s prior misconduct, which -- 3 of 12 -- 4 resulted in his disqualification from practice by Judge Sheridan, and subsequent events, including any explanation Dr Azam gives for his prior behaviour. [16] In that way, a proper assessment can be made both of the risk of his complying or not complying with expected professional standards if he were to be re-admitted, and also an assessment of the effect of his being re-admitted on public confidence in the expected high standards of medical practitioners. [17] It is, in my opinion, necessary to consider the full circumstances of Dr Azam’s prior medical history. [18] He was born on the 1st of March 1965, so was a 46-year-old man at the time of the first misconduct in April 2011. He had been a doctor for about 20 years. After obtaining his MBBS in Pakistan in 1991, he worked as a doctor for a decade in South Africa before coming to Australia in 2000. He worked as an employed doctor from 2000, and in 2007 commenced his own medical practice in Springwood. In 2011, he decided to form a partnership with a Dr Khan. Their jointly owned company was incorporated on the 26th of June 2011. [19] I interpose that this was after – though, only shortly after – the first proven sexual misconduct towards the female patients identified in Judge Sheridan’s judgments as JBD and ANS. The more serious of the proven allegations involving Dr Azam having sexual intercourse with JBD on the 8th of June 2011 was some 18 days before incorporation of the company owned by he and Dr Khan. [20] Subsequently, Dr Azam sold what he refers to as “the practice” to a company, which I will call by the name Idameneo. I am unsure whether this sale involved only his share of the practice, or both his and Dr Khan’s. The uncertainty is immaterial. -- 4 of 12 -- 5 [21] Pursuant to that sale, Dr Azam was required to work in the practice for 10 years and to share the income with Idameneo. He was paid $800,000 for the sale on the 23rd of August 2012. [22] Dr Azam says his relationship with Dr Khan deteriorated. In his affidavit, he dates this deterioration as being from “mid-2012”, when he says Dr Khan developed an “abusive attitude towards me”. He says it was this that caused him to sell the practice. He also says “Dr Khan and others filed complaints regarding me to the Medical Board of Australia” between the 10th and the 18th of September 2012. He says these complaints by Dr Khan “destroyed our business relationship”, but, curiously, says that destruction was not because he filed the complaints, but because “he was very abusive towards me, often speaking to me in a sardonic manner”. He would, he said, “belittle me in front of the staff and act in a bullying and harassing manner”. [23] I need make no findings about the accuracy or reliability of these assertions about Dr Khan’s relationship with Dr Azam, but refer to it because of a matter raised by me in the course of oral submissions by the applicant’s counsel. [24] In dealing with his conduct since he returned to Pakistan in December 2016, Dr Azam says: (1) he has worked at Baloch Hospital and MITH Hospital; (2) he has “discussed the allegations and QCAT decision with some of my medical colleagues in Pakistan… so that I fully understand how my actions could have affected others, the damage I caused to others, the ethical obligations of those in the medical industry and to work on strategies to prevent any such actions from ever recurring”; (3) he has sought comfort and counsel from friends, family and work colleagues, and had time to reflect on his actions, and is deeply remorseful. He says, “I -- 5 of 12 -- 6 know what I did was wrong and have been trying to make amends”; (4) it was during, he said, the two-year period from May 2011 to September 2013 that “I did the wrong thing”; (5) he acknowledges that his denial of the board’s allegations during the QCAT hearings “failed to demonstrate any remorse” and was “wrong of me”; (6) he says, “I have been reading various religious and ethical books” listed in paragraph 110 of his affidavit; (7) he says he discussed the allegations and QCAT decision with some of his medical colleagues in Pakistan, and in particular with Dr Sohail Razzaq. [25] It is astounding to me that a man who was 46 and a doctor with 20 years’ experience would act in the way he did. Some of his conduct involved: (a) significant boundary violations with two female patients in April 2011 to June 2011, which violations included an act of sexual intercourse in June 2011, and again a boundary violation in April 2012. Both patients were described by Judge Sheridan as vulnerable. She described Dr Azam’s conduct as “predatory” and “grooming both patients for something more”. (b) Breaching chaperone conditions by: i. consulting with a female patient without a chaperone present, ii. seeking to mislead the Board by causing the chaperone register to be falsified, iii. failing to maintain the chaperone register, iv. instructing one of his employed nurses on the 22nd of May 2012 to amend a patient’s clinical records to falsely show the nurse had been present as a chaperone during a consultation. (c) Importantly, after being informed by AHPRA of a notification having been made involving the patient JBD, he engaged in harassing and intimidatory behaviour towards her. -- 6 of 12 -- 7 [26] This last allegation involved Dr Azam engaging a private investigator to visit JBD on a number of occasions and to try to pressure her to drop the complaint. Dr Azam himself also spoke to JBD about such matters both at her home and at her daughter’s school and, it seems, at a Hungry Jack’s outlet. This extraordinary and harassing behaviour occurred between April 2014 and November 2014. [27] Because of the seriousness and protracted nature of Dr Azam’s misconduct, I therefore indicated to his counsel that despite the content of paragraph 125 of his affidavit, in which Dr Azam says, “I understand why I acted the way I did, and I see how wrong I was”, I myself was left in doubt as to why he had acted as he did. I therefore asked if counsel could elucidate me. [28] I note Dr Azam was in Court at the time. [29] I was told that the reason Dr Azam believed he had acted wrongly was due to the stress associated with the break-up of his partnership with Dr Khan. He – Dr Azam – dates this break-up as having its genesis in mid-2012, leading to the sale to Idameneo in August of that year. [30] The boundary violation offences were, however, in April to June 2011, and again in April 2012. He instructed the employed nurse to amend a patient’s clinical records relating to her being a chaperone in May 2012. All of that, of course, pre-dated the alleged conduct of Dr Khan. I do not accept what was said on behalf of Dr Azam in Court, and in his presence, as to his understanding of why he acted wrongly in the way that he did. In any case, I do not think it could be said that his subsequent behaviour, in particular his attempting, over a period of about seven months in 2014, to have JBD withdraw her allegations and his maintaining of his denial of the allegations in QCAT, can be properly understood by reference to his financial or professional stresses. They are, in my view, indicative of a significant character -- 7 of 12 -- 8 weakness and lack of a properly developed moral compass. [31] That, of course, does not dispose of the application. The question remains whether events subsequent to the applicant’s return to Pakistan in 2006 cause me to conclude that Dr Azam can now meet the expected professional standards despite his past behaviour. [32] It is for that reason I have earlier set out what he says he has done in Pakistan to understand and change the risk of his misbehaving in the future. [33] I should add also that Dr Azam relies on an affidavit of Dr Sohail Razzaq Awan. I have referred earlier to Dr Razzaq. He is a consultant orthopaedic surgeon, who has known Dr Azam for 35 years, when they were fellow medical students. [34] Dr Razzaq says he was told by Dr Azam: (1) that various allegations were made against him by AHPRA, (2) that this resulted in disciplinary proceedings in QCAT and cancellation of Dr Azam’s medical registration. [35] Dr Razzaq expresses the opinion that “that conduct” was out of character for Dr Azam. He says Dr Azam “has told me how sad, upset and remorseful he is”. Regarding the QCAT decision and how it has affected him, he says he has talked to and counselled Dr Azam “about professional [36] boundaries and a doctor’s ethical obligations”. [37] He also says he has heard of no complaints regarding Dr Azam’s conduct in Pakistan, and describes him as polite and gentle and as displaying “good moral values”. He opines that Dr Azam is a fit and proper person to hold medical registration in Australia. -- 8 of 12 -- 9 [38] I have not had the benefit of Dr Razzaq giving evidence before me, and so I am unable to form any opinion about his views about Dr Azam, other than to observe that there is nothing in his affidavit to indicate Dr Razzaq has been fully informed of the content of the allegations found by QCAT to have occurred. There is nothing to indicate he has read the two judgments of her Honour Judge Sheridan. There is nothing to indicate Dr Azam has provided any explanation – and certainly no satisfactory explanation – to Dr Razzaq for his found misconduct. [39] There is nothing to indicate Dr Razzaq is aware of any steps Dr Azam has taken to address what I have found to be the significant character weaknesses and lack of a moral compass which caused him to act as he did, other than to be counselled in a general way by some colleagues and family and friends. [40] In the circumstances, I do not rely on Dr Razzaq’s opinion. [41] I have found that Dr Azam has not demonstrated to my satisfaction the genuine rehabilitation or reformation of his character that would be necessary before I could conclude he was a fit and proper person to be registered. In my view, his expressed remorse is merely professed rather than manifest. That is particularly so in circumstances where he has not sought professional assistance. This would, in my view, involve at least full disclosure of the circumstances of his offending, as set out in the two judgments of Judge Sheridan, and treatment for the personal failings which led to his offending. Whether reformation of his character through such a process is realistic is, of course, unknown to me, but without it, and in circumstances where the extent of his disclosures to colleagues, friends and family is uncertain, I have no hesitation in finding he has not discharged the onus upon him to show he is a fit and proper person. [42] Furthermore, I do not find that that the imposition of conditions on his registration -- 9 of 12 -- 10 would be appropriate. He has, in the past, shown disregard for the chaperone conditions. His pressuring of staff, falsification of the chaperone record, and, more especially, his attempt to induce JBD to withdraw her complaint, give no confidence in the likelihood that any conditions would be efficacious in having him comply. In making my determination about these matters, I am cognisant of relevant McBride v Walton considerations – see McBride v Walton [1994] NSWCA 197 (unreported), especially at pages 34 and 39. [43] In particular: (1) The misconduct I have set out relates to an extended period from April 2011, when the first boundary violation incident occurred, up to December 2016, when the QCAT hearing concluded. It could not be described as an error of judgment, and it is properly to be seen as a defect of character. (2) The misconduct was serious, especially, in my view, the boundary violation offence of 8 June 2011, the direction to a staff member to falsely amend a patient’s clinical record in May 2012, his falsification of the chaperone record in September 2013, his contact with JBD with the object of having her withdraw her complaint between April and November 2014, and his maintaining of false denials before QCAT up to December 2016. (3) Such misconduct was not an isolated incident and cannot be described as uncharacteristic of Dr Azam on that account. (4) His conduct since the publication of the QCAT decisions does not demonstrate to me or to the public that one should have confidence that he is likely not to reoffend in the future if he were to be re-registered. The lack of evidence of full disclosure to those who might have assisted in changing of behaviour is obvious. [44] In Medical Board of Queensland v DAP [2008] QCA 44, Keane JA, as his Honour then was, said at paragraph 28: -- 10 of 12 -- 11 The passages from the medical witnesses to which the Tribunal referred do not support the conclusion that there is a "potential for rehabilitation" which is likely to be realised in any practical way. The notion that every wrongdoer has the potential for personal redemption is deeply embedded in our cultural heritage, but the protective functions of the Act cannot be achieved by reliance on speculation which has no factual basis. [45] I accept, generally, the written submissions of counsel for the respondent about the unsuitability of the applicant for registration as a specialist general practitioner because he is not a fit and proper person to be so registered. I also find that it is not appropriate to grant such registration with a condition as can be made under section 83 of the Act. It is not appropriate to address the risks that Dr Azam’s registration would pose in the absence of strong evidence of remediation of his character by the imposition of conditions. He has, in the past, demonstrated a character which has meant he was non-compliant with chaperone conditions. I have little confidence he would comply in the future, particularly if under financial or personal distress or pressure. I accept the respondent’s written submissions about the issue of chaperone conditions, gender- based conditions and education conditions, in particular, those at paragraphs 63 to 66 of its written submissions. [46] In accepting those matters, it is important to understand that the misconduct of Dr Azam, while having its genesis in misconduct involving issues of sexual impropriety, involve more general defects of character unrelated specifically to sex or gender. [47] In the circumstances, I have concluded Dr Azam is not a suitable person to be registered as a specialist general practitioner, pursuant to section 57(1)(c) of the National Law. His application is refused. [48] I will make no orders for costs then. -- 11 of 12 -- 12 -- 12 of 12 --