Delivered on 17 June 2017

Facts

In its decision of 29 May 2017[1], QCAT found that Dr Azam had behaved in a manner that constituted professional misconduct.

The misconduct proceedings against Dr Azam involved consideration of 7 separate allegations which the Medical Board of Australia (the Board) considered constituted professional misconduct. Those allegations included boundary violations in relation with 2 patients, failure to comply with chaperone conditions and falsification of chaperone records.

Each of the allegations in the disciplinary proceedings were proven and the Tribunal found that the conduct clearly amounted to professional misconduct. This decision involved consideration of the appropriate sanction in light of that finding.

Decision

In considering sanction, the Tribunal noted that the guiding principle is that the health and safety of the public is paramount. [2]

The Board submitted that the appropriate order was that Dr Azam’s registration be cancelled and that he be disqualified from applying for registration for a period of 4 years.

Dr Azam contended that the appropriate sanction was for his registration to be suspended for 1 to 2 years. It was accepted that following suspension, his registration should be subject to conditions.

The submissions on behalf of Dr Azam focused on the finding that he had engaged in sexual intercourse with a patient. In relation to that patient, Dr Azam had hired a private investigator to attempt to convince her to withdraw her complaint to AHPRA, and offered her money to do so. He was complicit in her being harassed at home and in harassing her himself. Ultimately a restraining order was made against him.

Evidence was led on behalf of Dr Azam to the adverse media attention that the matter had received, the fact that Dr Azam already had conditions on his registration for some 5 years, and to the considerable adverse effects upon Dr Azam and his family including the loss of his medical practice.

The Tribunal considered that the approach put forward by Dr Azam in focusing on the “most serious of the allegations” was clearly flawed. The Tribunal noted that in determining sanction the Tribunal must have regard to all of the allegations and the totality of the conduct as found by the Tribunal. A determination as to which of the 7 allegations is the most serious is neither necessary nor helpful. The Tribunal noted “no one particular allegation should be considered in isolation to the other events. Particularly in this case, it is necessary for the Tribunal to reflect on various aspects of Dr Azam’s overall conduct and then for the Tribunal to have regard to any comparative cases. There are various aspects of that conduct which the Tribunal finds very troubling”.

The Board submitted that Dr Azam’s behaviour following his awareness of the notification to AHPRA demonstrated dishonesty and bad character such that a cancellation of his registration with a period of disqualification from applying for registration for a period of 4 years was appropriate.

The Tribunal accepted that Dr Azam’s lack of remorse and insight, his continued denial of the allegations and dishonest behaviour were inconsistent with him being a fit and proper person to hold registration in the profession.

Orders

The Tribunal ordered that Dr Azam’s registration be cancelled and the period of disqualification be 4 years. The Tribunal stated that it was up to Dr Azam to prove to the Board his competence and fitness to practice at the time of seeking to renew his registration.

Costs

The Board sought its costs of and incidental to the proceedings in an amount to be agreed, or failing that, assessment by the District Court.

The Tribunal noted that in the ordinary case the starting point is that each party must bear their own costs. In Medical Board of Australia v Wong the Court of Appeal said there would have to be a basis for departing from the default position[3].

The Tribunal may depart from the usual position if it considers that the interests of justice require it to do so[4]. That gives to the Tribunal a broad discretionary power. [5]

Given the seriousness of the allegations, the undisputed need for legal representation, the strength of the Board’s case and that the proceedings were prolonged by Dr Azam’s denials which were ultimately unsuccessful, the Tribunal considered that the interests of justice made it appropriate that there be an order that Dr Azam pay the Board’s costs of the proceedings.