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Medical Board of Australia v Jabbar (Occupational and Business Regulation) [2010] VCAT 1772 (5 November 2010)

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Medical Board of Australia v Jabbar (Occupational and Business Regulation) [2010] VCAT 1772 (5 November 2010)

Last Updated: 18 November 2010

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

OCCUPATIONAL & BUSINESS REGULATION LIST

VCAT REFERENCE NO. B58/2010
CATCHWORDS
Health profession – disciplinary proceeding - unprofessional conduct by medical practitioner – Health Professions Registration Act 2005 – reprimand – suspension of registration as medical practitioner – restrictions on circumcision practice

APPLICANT
Medical Board of Australia
RESPONDENT
Dr Mohammed Mateen Ui Jabbar
WHERE HELD
Melbourne
BEFORE
Deputy President C Aird
Member Dr B Clarke
Member Dr E Fabris
HEARING TYPE
Hearing
DATE OF HEARING
11 and 12 October 2010
DATE OF ORDER
5 November 2010
CITATION
Medical Board of Australia v Jabbar (Occupational and Business Regulation) [2010] VCAT 1772

ORDER

  1. Medical Board of Australia is substituted as the applicant.
  2. Pursuant to s101 of the Victorian Civil and Administrative Tribunal Act 1998 and subject to further order the Tribunal orders that any information that might enable the patient, the notifier and any of their family members to be identified must not be published.

Having conducted a hearing into allegations referred to the Tribunal, the Tribunal finds pursuant to s77(1)(a) of the Health Professions Registration Act 2005 (‘the HPR Act’) that:

  1. As to allegations 1.1, 1.2 and 1.3 (as amended) Dr Jabbar has engaged in unprofessional conduct within the meaning of s3(1)(a) and (b) of the HPR Act, and
  2. As to allegation 1.4 Dr Jabbar has engaged in unprofessional conduct as defined in s3(1)(a) of the HPR Act.

The tribunal makes the following determinations:


1. Dr Jabbar is reprimanded


  1. Dr Jabbar’s general registration as a medical practitioner is suspended for a period of three months effective from 22 November 2010
  2. Dr Jabbar’s circumcision practice is limited to performing circumcision procedures as follows:
  3. Dr Jabbar must not carry out any circumcision procedure on an infant between the ages of 4 months and 5 years, with such children to be referred to a paediatric surgeon for circumcision procedures.
  4. There are no restrictions on Dr Jabbar’s circumcision practice for adults 18 years and over.
  5. Dr Jabbar must, at his own cost and expense, undertake remedial education and counselling by a practitioner or practitioners approved by the Medical Board of Australia (approved practitioner/s). The approved practitioner/s is to attend Dr Jabbar’s circumcision practice for not less than four sessions to review his medical records, notes and information provided to patients undergoing circumcision procedures, and to conduct remedial education and counselling with Dr Jabbar about the appropriate performance of circumcision procedures and techniques. The four sessions are to be completed within three months of the date of resumption of Dr Jabbar’s general registration as a medical practitioner.
  6. The approved practitioner/s shall provide a written report to the Medical Board of Australia within two weeks of completing the review of Dr Jabbar’s medical records, notes and information provided to patients undergoing circumcision procedures and the remedial education or counselling. The approved practitioner/s must report on the outcome of the review and the contents of the remedial education or counselling and address whether Dr Jabbar has met the learning objectives (to be set by the approved practitioner/s) to a level expected of a registered medical practitioner undertaking circumcision procedures. Dr Jabbar shall be responsible for the costs and expenses of the approved practitioner/s in providing the report.
  7. Dr Jabbar must provide a written report to the Medical Board of Australia within three weeks of completing the remedial education or counselling. The report must be written by Dr Jabbar in his own words and address the contents and specific learning objectives of the remedial education or counselling and demonstrate how the remedial education or counselling has changed his practice.
DEPUTY PRESIDENT C AIRD


Presiding Member


APPEARANCES:


For Applicant
Mr K Armstrong of Counsel instructed by Minter Ellison, Lawyers
For Respondent
Mr P Halley of Counsel instructed by TressCox, Lawyers

REASONS

  1. On 1 March 2010 the former Medical Practitioners Board of Victoria referred a number of allegations to the tribunal under s59(2)(g) of the Health Professions Registration Act 2005 (the Act), to conduct a hearing and make findings and determinations about a number of allegations. On 1 July 2010 the Medical Board of Australia succeeded the Victorian Board: see Health Practitioner Regulation National Law (Victoria) Act 2009.

Allegations

  1. That on or around 29 January 2008, Dr Jabbar engaged in unprofessional conduct within the meaning of paragraphs (a) and/or (b) of the definition of ‘unprofessional conduct’ in s3(1) of the HPR Act in that he inappropriately performed a circumcision procedure on his patient at his private clinical rooms.

PARTICULARS

Given the potential complexities associated with the patient’s type 1 diabetes and/or his age of 26 months, it was inappropriate for Dr Jabbar to perform a circumcision procedure on the patient at his private clinical rooms rather than at a hospital sufficiently equipped and/or able to safely anaesthetise patients in the paediatric age group and/or with access to appropriate diabetic specialists and/or monitoring.

  1. That on or around 29 January 2008, Dr Jabbar engaged in unprofessional conduct within the meaning of paragraphs (a) and/or (b) of the definition of ‘unprofessional conduct’ in s3(1) of the HPR Act in that he failed to correctly perform a circumcision procedure on his patient.

PARTICULARS

(a) Dr Jabbar did not correctly apply the plastibell ring; and/or

(b) Dr Jabbar failed to ensure that the patient’s urethral meatus was uncovered.

  1. That between on or around 29 January 2008 and 30 January 2008, Dr Jabbar engaged in unprofessional conduct within the meaning of paragraphs (a) and/or (b) of the definition of ‘unprofessional conduct’ in s3(1) of the HPR Act in that he failed to appropriately monitor, or ensure that another suitably qualified person adequately monitored, his patient in the immediate post-operative period.

PARTICULARS

(a) In the immediate post-operative period, Dr Jabbar failed to monitor, or ensure that another suitably qualified person adequately monitored, the patient’s diabetes and/or blood sugar levels; and/or

(b) After receiving a telephone call from the notifier, the patient’s father, in which the notifier disclosed to Dr Jabbar that the patient had not passed urine since the circumcision procedure, Dr Jabbar did not:

(i) adequately monitor, or ensure that another suitably qualified person adequately monitored, the patient’s failure to pass urine; and/or

(ii) make appropriate enquiries, or ensure that another suitably qualified person had made appropriate enquiries, as to the patient’s blood glucose levels and/or insulin levels.

  1. That in or around 29 January 2008, Dr Jabbar engaged in unprofessional conduct within the meaning of paragraph (a) of the definition of ‘unprofessional conduct’ in s3(1) of the HPR Act in that he failed to make appropriate clinical notes in respect of his patient.

PARTICULARS

Dr Jabbar’s notes do not make reference to the treatment and/or management and/or control of the patient’s diabetes.

  1. Dr Jabbar admits the allegations.

Background

  1. The patient is a young boy who is now four years old. At the time of the procedure, the subject of this referral, he was 26 months of age. He had been diagnosed with Diabetes Mellitus or Type 1 Diabetes in September 2007. From all reports his diabetes was well managed and controlled at the time of the procedure, and continues to be well managed by careful attentive parents.
  2. The boy’s parents wanted to have him circumcised. They say that although they were given a referral by their GP they were advised by staff at the Royal Children’s Hospital (‘RCH’) that the hospital was unable to perform elective circumcision procedures. It is not relevant to the matters before the tribunal that they are unable to recall who they spoke to at the hospital about this.
  3. The boy’s parents were given Dr Jabbar’s details by a friend. His father, who is the notifier, made an appointment with Dr Jabbar for 29 January 2008. Although there is some dispute between Dr Jabbar and the family about the time when the procedure was carried out, we accept the notifier’s evidence that the appointment was for 2 p.m. and not 6 p.m. as suggested by Dr Jabbar, and that the procedure took place between 3 p.m. and 4 p.m. The appointment time of 2 p.m. is consistent with the notifier’s sworn evidence, the email the notifier sent to himself on 14 January 2008 confirming the appointment details and the entry in Dr Jabbar’s appointment diary. We also note that a further three appointments are recorded in Dr Jabbar’s appointment diary following this one.
  4. The notifier and his father-in-law observed the procedure whilst the boy’s mother and brother waited outside the consultation room. The notifier gave evidence that they each held one of the boy’s arms, that the boy was extremely distressed during the procedure and the notifier was consoling him.
  5. The boy’s parents say they left the surgery approximately 5 minutes after the procedure was completed. Dr Jabbar says he observed the boy for approximately half an hour during which time he observed urine in the child’s pyjamas.
  6. On his return home the child became increasingly distressed, and when he had still not passed any urine the notifier telephoned Dr Jabbar sometime between 10 and 11 p.m. The notifier’s evidence is that Dr Jabbar said it was likely the boy’s inability to pass urine was probably psychological (because of the shock of the procedure), that the parents should give him more liquid and he should be ok.
  7. The next morning, when the boy had still not urinated, and was not only very distressed but suffering from a high temperature, his parents called an ambulance. He was taken to the emergency department at the RCH where he was admitted to surgery, the initial plan being to complete the circumcision procedure. However, as recorded in the operation notes, the surgeon, after finding gross swelling of the penis and scrotum and evidence of infection, and after consulting with a colleague, decided to abandon the circumcision procedure and removed the plastibell ring. The surgeon found that a section of the foreskin inner layer had been trapped across the plastibell ring causing a complete occlusion to the uretha meatus so there was no route for the passage of urine.
  8. The child subsequently developed Fournier’s Gangrene, and to date has had six operations including plastic surgery. He suffered severe scarring to his groin and abdomen. He also lost part of his scrotal skin and required skin grafts. Although the functional prognosis is good it is probable that he will have lifelong scarring, and a further two operations will be required. His right testis is normal.

The witnesses

  1. The Board called both parents to give evidence, Mr McMullin the paediatric surgeon responsible for the boy’s care whilst he was a patient at the hospital, and Dr O’Connell a paediatrician at the RCH who is the boy’s current treating doctor for his diabetes. It also called Dr Demeduik, a General Practitioner who performs circumcision procedures on babies up to the age of 6 months, to give expert evidence. Witness statements were filed for all witnesses except for Dr O’Connell.
  2. We found the notifier’s evidence very persuasive. He was careful and thorough in giving his evidence and made appropriate concessions when he was unable to recall exact details. He was very confident in his evidence about the boy’s condition during and after the procedure, and the telephone conversation he had with Dr Jabbar that evening. He was adamant that Dr Jabbar had not told him to ring back if the boy had still not passed urine within one to two hours. Noting that the notifier said he stayed awake during the night caring for the boy, and noting the parents’ obvious understanding of the importance of following medical advice and demonstrated by their careful monitoring and management of his diabetes, we unhesitatingly accept the notifier’s evidence about his discussions with Dr Jabbar during the late night telephone discussion.

Mr McMullin

  1. Mr McMullin is a paediatric surgeon. At the time the boy was admitted to the RCH he was Head of Urology at the hospital. He is clearly concerned that the RCH is declining to carry out elective circumcision procedures in line with Government policy and said that he considers it prudent and appropriate that where children have serious health issues, such procedures should be performed in hospital.
  2. Mr McMullin noted that the boy was initially treated by Dr Stenman who was a visiting paediatric surgical registrar from Finland and who has since left Australia.
  3. Although he did not treat the boy when he was first admitted to hospital, Mr McMullin was able to explain the notes made in the emergency department, and the operation notes. He said the boy was significantly unwell, and that had he been in a country with a diminished level of medical care available he might well have died. He noted the boy progressed well and was discharged at the end of February 2008, earlier than initially expected.
  4. Mr McMullin confirmed the boy developed Fournier’s Gangrene which he said was very unusual – the infection resulted in skin and subcutaneous tissue loss in the groin and foreskin area. He said he had not previously seen a case of Fournier’s Gangrene. Further, whilst there were apparently no complications from the procedure directly attributable to the boy’s diabetes, his diabetes may well have impacted on the extent and gravity of the infection.

Dr O’Connell

  1. Dr O’Connell is a paediatrician at the RCH. Although she was working at the hospital at the time of the boy’s admission she did not start treating him for his diabetes until some time after his discharge from hospital in 2008. She gave evidence that his diabetes is well managed by his parents who carefully monitor his glucose levels. She confirmed the importance of appropriate discussions with the parents and treating doctors before performing any surgical procedure on a child suffering from Type 1 Diabetes which she said requires careful and particular management. She expressed concern that the procedure was not carried out in a hospital with appropriate post operative monitoring and treatment.

Dr Demeduik

  1. Dr Demeduik gave evidence that he regularly performs circumcision procedures in his rooms on babies up to the age of six months, although he said that his staff would prefer him to limit the age to four months. He said that the older the child the more likely he is to be restless thus making the procedure more difficult.
  2. Dr Demeduik expressed concern that the procedure had been undertaken on the same day that Dr Jabbar first saw the boy, particularly because of the boy’s age, and his Type 1 diabetes.
  3. Dr Demeduik explained the circumcision procedure using a plastibell device in detail and repeated the observations on the third and fourth pages of his report dated 21 October 2009:

The two main factors which concern me in this case are the age of the patient and the presence of the Type 1 Diabetes condition. The age of the patient is relevant in that, notwithstanding the application of a ‘perfect’ dorsal penile block with excellent analgesia, the very likely distress in a child of this age would create marked difficulties...Most paediatric patients require a level of restraint ...and this becomes increasingly difficult if the anaesthesia is incomplete and with the increasing age and strength of the child...I note that Dr Jabbar acknowledges that the patient was distressed...The importance of a still patient is that movement significantly interferes with the application of any bell device and the ultimate performance of a circumcision....The second factor of concern was the presence of Type 1 Diabetes and the risks such a procedure would pose to [the patient’s] diabetic control considering the stress on the patient and interruption to normal feeding patterns...I would expect a practitioner to seek specialist advice as to the monitoring required and management of insulin on the day or refer the patient to a centre where the practitioner had access to on-site specialist diabetic care for the patient.

  1. Further, Dr Demeduik said he was most surprised that Dr Jabbar had not noticed the foreskin blocking the uretha meatus. As he states at the sixth page of his report:

I assume the difficulties restraining a 26 month old child caused or contributed to the misapplication of the bell but I am unable to explain the fact that the urethal meatus was covered and was not noticed at the end of the procedure as this is a basic check along with ensuring there is no bleeding (no matter the level of patient distress and movement) [emphasis added]

  1. Dr Demeduik also expressed concern about what he considered to be significant inadequacies in Dr Jabbar’s clinical notes including the lack of detail in the boy’s medical history, details of the operation and the late night call from the notifier. For instance, whilst the boy’s Type 1 Diabetes is noted there are no notes about how it is managed, or the advice given to his parents about monitoring and management following the procedure. Further, although it is noted that Xylocaine was administered there are no details about the boy’s weight. Dr Demeduik explained that this was critical information as Xylocaine is administered according to weight because of possible toxicity where the amount is too high.
  2. Dr Demeduik confirmed that because of the boy’s age and medical issues the procedure should have been performed in hospital under a general  anaesthetic  with appropriate facilities and resources to monitor and manage his diabetes and any complications.

Dr Jabbar’s position

  1. As noted above, Dr Jabbar admits the allegations although he disputes some of the detail provided by the notifier including the time of the procedure, and the nature of his discussions with the notifier during the late night telephone call.
  2. Dr Jabbar did not give evidence. His response to the record of interview between Dr D’Cruz of the Board, and the notifier, is set out in a letter from his solicitors dated 6 January 2009 which has been included in the Tribunal Book. Although the allegations have now been admitted it is relevant that many of the responses in that letter have been contradicted by the sworn evidence of the boy’s parents which we have no hesitation in accepting.

Findings

  1. Mr Halley of counsel submitted on behalf of Dr Jabbar that these allegations should be regarded as one course of conduct in relation to one patient, and not four separate courses of conduct. We reject this. It is clear that Dr Jabbar has failed this boy and his parents at each step in the process resulting in what can only be described as a tragic outcome. First, his patient selection was poor. He failed to identify and appreciate the significant risk factors associated with performing a circumcision procedure on a boy of 26 months of age suffering from Type 1 diabetes. It seems he failed to take a complete history or, if he did so, he clearly failed to record the details which Dr Demeduik has confirmed one would expect to be recorded in a patient’s clinical notes particularly in relation to the monitoring and management of the boy’s diabetes. We note that all the medical practitioners who gave evidence agreed Dr Jabbar should have consulted with the boy’s treating doctors about the management of his diabetes and the appropriateness of conducting the procedure in his rooms.
  2. Having completed the procedure, Dr Jabbar failed to carry out the most basic of visual checks to ensure that the urethal meatus was clear, and not obstructed. When the boy’s father rang him later that night he failed to ensure appropriate follow up within the next couple of hours to ensure the boy had passed urine.
  3. Noting that Dr Jabbar has admitted the allegations, and through his counsel has proposed that certain determinations are appropriate, and having considered the evidence, we find:

(i) As to allegations 1.1, 1.2 and 1.3 (as amended) Dr Jabbar has engaged in unprofessional conduct within the meaning of s 3(1)(a) and (b) of the HPR Act, and

(ii) As to allegation 1.4 Dr Jabbar has engaged in unprofessional conduct as defined in s3(1)(a) of the HPR Act.

Determination

  1. Mr Armstrong submitted on behalf of the Board that the appropriate determination would be:
  2. Mr Halley submitted on behalf of Dr Jabbar that a more appropriate determination would be:
  3. Mr Halley also submitted that in considering the appropriate determination we should taken into account that having reflected on the tragic circumstances of this case Dr Jabbar has shown insight by admitting the allegations. However, as Dr Jabbar did not give evidence we have not been able to fully understand or test his level of insight.
  4. The principles to be applied by the tribunal in making a determination are clearly set out in Medical Practitioners Board of Victoria v Naik [2009] VCAT 755 at [60 and 61]:

As has been observed before, the following principles are relevant to our considerations of what determinations should be made:

As this Tribunal has observed before, the principles to be taken into account when considering what determination is appropriate are succinctly put in a decision of this Tribunal in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526. The same principles apply in this case. Quoting from that decision -

Paragraph 1(a) of the Act provides that the main purpose of the Medical Practice Act [and the HPR Act] is:-

“(a) To protect the public by providing for the registration of medical practitioners and investigations into the professional conduct, professional performance and ability to practise of registered medical practitioners.”

It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish Dr Honey. Rather, the purpose is to protect the public, by preventing persons who are unfit to practice from practising as medical practitioners, and by maintaining proper professional standards.

This principle is referred to in cases such as Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545, Mullany v Psychologists Registration Board, Supreme Court of Victoria (unreported) 22 December 1997 and Morris v Psychologists Registration Board Supreme Court of Victoria (unreported ) 19 December 1997.

Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.

  1. In considering the appropriate determination we have noted Mr Halley’s instructions that Dr Jabbar has performed 1565 circumcision procedures since January 2008, all under local  anaesthetic . The approximate numbers for each age group are:

Up to 6 months 796

6 months to 4 years 232

4 to 18 years 191

Adult (over 18 years) 300 - 400

Previous disciplinary proceedings

  1. Mr Halley provided two character witnesses for Dr Jabbar: one from Mr Abdul Rahman, Consultant Surgeon/Medical Director at North West Day/Werribee Day Hospitals who has known Dr Jabbar professionally for approximately 20 years, and from Dr Mark Attalla a General Practitioner who has known Dr Jabbar on a professional basis for two years. Both attest to the importance of the service he is providing: circumcision procedures for cultural or religious purposes where these are no longer performed in the public hospital system. Unfortunately though, this is not an isolated incident of Dr Jabbar having been found to have engaged in unprofessional conduct.
  2. Dr Jabbar has been the subject of disciplinary proceedings before the Medical Practitioners Board of Victoria on three occasions. Mr Armstrong, provided us with copies of the Board’s decisions dated 11 February 2005, 26 February 2008 (following a hearing on 23 October 2007) and 27 February 2009. In two of the matters the Board found Dr Jabbar had engaged in unprofessional conduct, and in one of the cases that he had engaged in unprofessional conduct of a serious nature. In the 2005 matter he was cautioned and reprimanded, and in the other two matters he was reprimanded. In the 2008 matter orders were made for counselling by a senior medical practitioner approved by the Chief Executive Officer of the Board, or nominee, and in the 2009 matter he was directed to change his practices to address identified deficiencies in his informed consent processes in relation to the circumcision of babies.

Reprimand and suspension

  1. We have considered the submissions and being mindful that in making our determination we must have regard to the public interest and the maintenance of professional standards we are satisfied that it is appropriate that Dr Jabbar be reprimanded and his registration be suspended for a period of three months. Being concerned to minimise any immediate inconvenience to patients and their families who have impending appointments we consider it appropriate that his registration be suspended effective 22 November 2010.

Restrictions on Dr Jabbar’s circumcision practice

  1. We are satisfied that it is appropriate that there be certain restrictions imposed on Dr Jabbar’s circumcision practice, and consider a combination of the suggested proposals appropriate.
  2. We are not persuaded that Dr Jabbar should be restricted to performing circumcision procedures on babies up to the age of 4 months only although we are satisfied that infants between the ages of 4 months and 5 years are particularly vulnerable because of the difficulties with keeping them calm and restrained. Accordingly, we determine that Dr Jabbar be required to refer all infants between the ages of 4 months and 5 years to a paediatric surgeon.
  3. Although Mr Halley urged upon us that it would be appropriate to require Dr Jabbar to perform circumcision procedures on children between the ages of 5 and 12 years in a suitable day procedure centre under the direction of an anaesthetist, we determine it appropriate that this requirement apply to children to the age of 18 years.
  4. We are not persuaded there should be any restriction on Dr Jabbar’s circumcision practice for men 18 years and over.

Remedial education and counselling

  1. We consider it appropriate that Dr Jabbar undergo some remedial education and counselling by a practitioner approved by the Board. We agree it is desirable that the approved practitioner attend Dr Jabbar’s circumcision practice on at least 4 occasions, with the remedial education and counselling to be completed within 3 months of Dr Jabbar’s resuming practice after the period of suspension of his registration as a medical practitioner.
  2. We extend the matters suggested by the Board to be the subject of the remedial education and counselling sessions to include not only remedial education and counselling about the appropriate performance of circumcision techniques and processes, and a review of his medical records and notes to also include a review of the information provided to patients, and in the case of children, their parents or guardians as it seems the information provided to the boy’s parents in this case was limited and somewhat lacking.
  3. We find that four sessions, as suggested by the Board, are appropriate, and that these are to be completed within three months of the date of resumption of Dr Jabbar’s general registration as a medical practitioner. Dr Jabbar is to be responsible for the cost of these sessions, and for the costs of the approved practitioner in preparing the report. If the approved practitioner considers it necessary or appropriate, more than one practitioner may be approved by the Board to carry out the remedial education and counselling. The report should be provided to the Board within two weeks of completing the remedial education or counselling.
  4. We also consider it appropriate, as suggested by the Board, that Dr Jabbar provide a written report to the Board within three weeks of the last session.
DEPUTY PRESIDENT C AIRD
Presiding Member




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