Health Ombudsman v Gindi[2021] QCAT 372

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The disciplinary proceedings before the Tribunal have proceeded on the basis of an amended application or referral filed by the applicant director on 1 April 2021, pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013( the HO Act), which seeks findings of professional misconduct or, alternatively, unprofessional misconduct and/or unsatisfactory professional performance, as those concepts are defined in section 5 of the Health Practitioner Regulation National Law (Qld) 2009 (National Law).
2. [2]
   The conduct the subject of the amended referral relates to six patients of Dr Gindi and focuses on his procedures and/or his professional conduct and/or practice in relation to five of those patients, that occurred between 2011 and 2013 at his cosmetic surgery and general practice surgery at Runaway Bay. The sixth patient, a sister of one of the five patients, is relevant only to a very minor boundary violation which is admitted by Dr Gindi.
3. [3]
   The parties have filed an agreed statement of facts. The original referral by way of application was filed in the Tribunal on 13 September 2019. Dr Gindi filed a response on 15 April 2020 in which he disputed a lot of the factual allegations surrounding the relevant procedures and/or practices, and at the same time, made appropriate admissions as to the standard of his professional conduct in relation to the five patients.
4. [4]
   The amended referral is heavily redacted and suggests that many concessions were made by the applicant in reaching a final agreed statement of facts, which is in the interests of justice.

The Respondent’s Professional Background

5. [5]
   Dr Gindi is 59 years of age, having been born on 2 March 1962. In September 1985, he obtained a Bachelor of Medicine from the Institutal De Medcina si Farmacie, Lasi, Romania. He moved to Australia in 1993 after practicing in Sudan. In 2007, he became a member of the Australian Society of Cosmetic Medicine.
6. [6]
   On 2 August 1996, he first obtained registration in Australia as a medical practitioner holding general registration, and specialist registration as a general practitioner, with the Medical Board of South Australia. In 2006, he became a fellow of the Royal Australian College of General Practitioners. He currently holds general registration as a medical practitioner and specialist registration as a general practitioner with the Medical Board of Australia (Board).
7. [7]
   Between 1987 and 1993, he was employed as a surgical registrar in Sudan. On 7 August 1996, he commenced employment at the Royal Adelaide Hospital in the emergency department. Between 1997 and 2007, he worked in general practice and as a visiting medical officer in Condobolin in New South Wales. From 2007, he has owned and practiced at the Bayview Clinic at 51 Bayview Street, Runaway Bay in Queensland.
8. [8]
   Because of the passage of time, the whole process underpinning complaints against health service providers has changed and sometimes in a material way. It is suffice to note that on 23 September 2014, the Board referred carriage of the complaints relating to four of the patients (one was a mandatory notification made by another doctor relating to a surgical procedure undertaken by Dr Gindi); to the Office of the Health Ombudsman (OHO); and the Board referred the remaining patients’ complaints to OHO on 8 May 2015.
9. [9]
   Prior to these referrals, the Board had imposed conditions on Dr Gindi’s registration and accepted an enforceable undertaking from him pursuant to section 156 of the National Law.
10. [10]
    The relevant conditions were imposed on 12 November 2012 and included conditions that he not perform mammoplasty or labiaplasty procedures on patients; and there were other conditions designed to monitor compliance. The enforceable undertaking was accepted by the Board on 16 July 2014 and was in these terms:

    1. (a)
       I agree not to perform any cosmetic surgery and/or cosmetic medicine at all.
    2. (b)
       I agree to perform only general practice procedures of a type approved by the Board.
    3. (c)
       I agree to seek written approval from the Board or its delegate before performing any of the procedures not listed in an appendix to the undertaking (which is set out at paragraph 24 of the agreed statement of facts).
11. [11]
    The only disagreement between the parties is to how Dr Gindi’s admitted conduct should be characterised, but irrespective of the Tribunal’s conclusions in relation to that dispute, the parties have agreed to the appropriate terms of the sanction.
12. [12]
    It follows that the delay in finalising the disciplinary proceedings is of very little relevance to the ultimate conclusions of the Tribunal in relation to the issue in dispute, given that it considers the agreed sanctions to be appropriate and within the normal range for the admitted and proved conduct.

The Relevant Conduct

13. [13]
    I am grateful to Mr Templeton, counsel for the applicant, for his summary of the relevant factual scenario in his written submission by reference to the agreed statement of facts. The relevant conduct, as I have noted, relates to Dr Gindi’s procedural decision making and professional skill in relation to five patients anonymised as JD, BH, LA, CAM and KW. The sixth patient is the sister of CAM and the complaint there relates to a minor boundary violation concerning a comment made by Dr Gindi (the respondent) on a Facebook account of CAM depicting photos of the sisters on that account.

Patient JD

14. [14]
    JD was the respondent’s patient from about 13 December 2010 and 7 December 2011.
15. [15]
    On 3 February 2011, JD advised the respondent that she had been experiencing very heavy periods, and that she had previously had a Mirena Intrauterine Device (IUD) inserted (on 3 December 2010) but it had dislodged after only two months.  At that time, the respondent gave her advice about further investigations which should be undertaken to determine the cause of her heavy periods and referred JD for blood tests and a pelvic ultrasound.
16. [16]
    After trialling and considering other treatment,  the respondent inserted another IUD into JD on 23 February 2011.
17. [17]
    On 7 December 2011 at about 11.30am, JD consulted the respondent, and advised him that she had been suffering from extremely heavy flow during her periods, and that she thought that the IUD had fallen out.
18. [18]
    The respondent examined JD to locate the IUD.  His notes record (in part):

'... Vaginal speculum inserted, cx was posterior and closed.

the string was clearly visible coming from the cx. She Is still has llgther spotting. She appeared very distressed during the examination.

Discussed with her today, there is no needs to check the Mirena by having US  as the string is clearly visible...'

19. [19]
    There was discussion between JD and the respondent about the effectiveness of the IUD and JD’s ongoing heavy periods. The respondent wrote a referral for her to see a gynaecologist for consideration of a hysterectomy.
20. [20]
    As about 2.00pm on that day, (about 2.5 hours later), JD consulted with another general practitioner, Dr Indrajit. She performed an internal examination with a speculum and was unable to locate the IUD. Consequently, she ordered an ultrasound, which was performed the following day and revealed that the IUD was not in place.
21. [21]
    The parties agree that the conclusion to be drawn from these facts is that the IUD was not present in JD at the time she was examined by the respondent on 7 December 2011.
22. [22]
    Dr Brian Kable, a general practitioner with many years’ experience,  provided a report dated 28 January 2014. The report addressed the respondent’s treatment of several patients, including JD. Dr Kable opined that expulsion of an IUD is a rare occurrence but that JD was a candidate for a second expulsion, it having happened before.  Dr Kable considered that the respondent ought to have considered the return of JD’s symptoms [heavy periods] as a compelling piece of clinical information in relation to the efficacy of the IUD or indeed its place in her uterus. Dr Kable expressed the view that ‘in all problems of this kind with lUDs an ultrasound should be undertaken’ and that it should have been done to ‘...confirm the situation because of [JD's] obvious distress and her conviction that it had become dislodged in the light of her previous experience.’
23. [23]
    The parties agree that the clinical performance and judgment shown by the Respondent on 7 December 2011 was below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience because the Respondent wrongly concluded that the IUD was present in JD on 7 December 2011 when, in fact, it was not.
24. [24]
    The respondent has deposed to his acceptance that his clinical performance and judgment in this aspect of his care of JD was below that standard reasonably expected of him, and he has expressed his wish to apologise to JD for that.

Patient BH

25. [25]
    Between 10 December 2009 and 9 January 2012,  BH was a patient of the Respondent.
26. [26]
    On 12 March 2011, BH consulted the Respondent for a cosmetic laser procedure using a Deka Smartlipo machine to tighten the skin around BH’s eyes.  The Smartlipo is a laser machine designed to liquify and cauterise blood vessels in the fat. The liquified fat is then sucked out by a suction device. Common complications include laser burns, infection and bleeding. The area subjected to liposuction is usually bandaged firmly to prevent bleeding or slippage.
27. [27]
    On 30 June 2011, the Respondent performed a laser resurfacing procedure using a Deka SmartXide machine on the skin around BH’s eyes.
28. [28]
    As a consequence of the cosmetic laser procedures using the Deka Smartlipo machine,  BH suffered:

    1. a scar on his left lateral orbital region that was 3.5cm x 1cm, depressed and irregular;
    2. a burn on his right lateral infra-orbital region;
    3. a secondary laser burn on his left lateral infra-orbital region.
29. [29]
    As can be seen from the photographs,^[1] the scarring on the left side of BH’s face, in particular, is quite significant. As a consequence of the scarring caused by the Respondent, BH required further plastic surgery.
30. [30]
    Dr Kable opined that:

The ‘crow’s feet' that appear around people’s eyes are wrinkles in the skin caused by a combination of solar damage and some loss of subcutaneous fat. The redundant skin under the eyes is usually loose. There is not much subcutaneous fat in these regions unless the patients were significantly obese. [The respondent] has said that using this particular laser on a low setting has been shown to tighten skin. [BH] was a bodybuilder and has not been described as obese in the notes. There is no evidence in the material that any firm bandage was placed over the region. This would have been difficult given its location.

[The respondent] has acknowledged that he had the machine on too high a setting. This is an error of operation and it was particularly complicating for [BH] as it was used in very vulnerable and cosmetically sensitive area of the body. It would seem that a machine designed for liposuction should not be used around the eyes or eyelids. This would seem to be an error of judgment on the part of [the respondent].

In this event [the respondent] has shown poor judgment in deciding to use a laser machine designed for liposuction to an area around the eye. The aim of this intervention was to tighten the skin and not to do liposuction. He has also not operated the machine safely by putting it on a setting that was too high for the procedure.’

31. [31]
    The respondent has deposed to his acceptance that the Deka Smartlipo machine should not be used around the eyes.  He has also accepted that he operated the machine on a setting which was too high. He has paid compensation to BH following settlement of a claim for damages, and has expressed an apology for his treatment having failed to meet the appropriate standard.

Patient LA

32. [32]
    LA was a patient of the respondent’s between about August and November 2011,
33. [33]
    On about 2 August 2011, LA consulted the respondent to obtain advice to undergo a breast lift procedure.
34. [34]
    On about 5 September 2011, the respondent performed a breast lift procedure on LA using a tumescent anaesthesia technique.  The respondent has described the procedure in his affidavit as involving an 'inverted T shape incision with removal only of the breast skin in between the incision to give the most lift’  Tumescent anaesthesia involves the administering of dilute local anaesthetic into the subcutaneous tissue.  The respondent considered that because the procedure involved only the removal of skin and the use of tumescent anaesthesia, it was safe to perform the procedure in his procedure room.
35. [35]
    On about 6 September 2011, LA saw the respondent for a review of the breast lift procedure.  The respondent again reviewed LA on 8, 10, 14 and 17 September 2011, and on each occasion noted that the wound was clear and healing well.
36. [36]
    On about 21 September 2011:

a. LA:

i. saw the respondent for review of the breast lift procedure;

ii. informed the respondent that she thought there was a difference in size between her left and right areolas;

b. the respondent advised LA to wait as the scars on the procedure were quite fresh.

37. [37]
    In a subsequent consultation, in about October 2011, LA requested a revision procedure be undertaken to reduce the size of the right areola to match the size of the left one.
38. [38]
    On about 17 November 2011, the respondent performed a revision procedure on LA's right areola.  The respondent says the procedure proceeded without complication and on a subsequent review he noted that LA had achieved a good result from the revision procedure, with both areolas appearing to be the same size.
39. [39]
    Subsequently, LA consulted Dr Blum, who referred her to Dr Ian McDougall, a plastic and reconstructive surgeon. Dr McDougall has provided a statement^[2] . On 26 June 2012, he performed a ‘total revision of the scarring’ and attempted to reconstruct the inframammary fold using a dermal flap. Dr McDougal concluded LA’s ‘nipple was too high and impossible to lower this position in view of the resultant scarring.’ The end result was much improved but the nipple is still in a slightly high position.
40. [40]
    As to (a), as mentioned above, the respondent has deposed to his having a well-equipped procedure room  and his judgment that it was clinically acceptable to perform the procedures there for the reasons mentioned above. He has not deposed to having the assistance of any other trained person whilst performing the procedures.

Patient CAM

41. [41]
    CAM was a patient of the respondent’s from about April 2008 to October 2012.
42. [42]
    In 2009,  the respondent performed a labiaplasty on CAM; more particularly, he removed CAM’s left labia (however, this is not the procedure the subject of the disciplinary allegations).
43. [43]
    At a consultation on 10 September 2012, the Respondent examined Patient CAM and found she had a mucous cyst of the vestibule and some excess tissue of the right labia minora.
44. [44]
    On about 5 October 2012, CAM consulted the respondent. The respondent performed a dissection of the mucous cyst and a labiaplasty; in particular he removed CAM's right labia minora. These procedures were performed under local anaesthetic. Upon completing the procedure, CAM exhibited some post-procedural ooze from the site of the procedure. The respondent said to her that the pain and ooze was normal.
45. [45]
    After leaving the Respondent's rooms, CAM was experiencing pain from the procedure and fainted in the carpark of the respondent's rooms. She continued to ooze from the site where the procedure was performed.
46. [46]
    Later that evening, the respondent contacted CAM by text message to check on her recovery. The text message exchanges are set out in the Agreed Statement of Facts (SOAF)^[3]. Consequent upon those exchanges, CAM re-attended the respondent’s clinic that evening at about 9,00pm. CAM was bleeding from the site the procedure was performed, and she was experiencing pain. The respondent performed an examination of CAM and noticed that some of the sutures had come away. He administered further anaesthetic and inserted two new sutures in the area where the procedure had been performed.
47. [47]
    The text message exchanges between the respondent and CAM continued that evening and over the following days, with the respondent inquiring into CAM’s recovery.  During the course of those exchanges, on 7 October 2012, the respondent sent a text message which stated:

'Good that you don't have sore tongue anymore! Lol’

48. [48]
    The reference to the ‘sore tongue’ was a reference to CAM’s labia minora. The respondent accepts that it was inappropriate to send this text message and that doing so amounted to a transgression of professional boundaries.
49. [49]
    The respondent reviewed CAM on 8 October 2012 and noted that all was healing ok.
50. [50]
    However, on 10 October 2012, CAM contacted the respondent and indicated that ‘its leaking blood’, the she couldn’t walk properly and that it was painful. The respondent replied promptly and then consulted CAM at his clinic. He examined the wound and noted there was slight swelling, and the sutures were still intact with a slight ooze of blood on the pad. He prescribed prophylactic antibiotics and panadeine forte for pain relief.
51. [51]
    However, on about 12 October 2012, CAM was conveyed by ambulance  to the Gold Coast Hospital. She presented with worsening pain and difficulty initiating urination. It was not possible to carry out an examination due to 'pain +++’.
52. [52]
    CAM was ultimately assessed by an obstetrician and gynaecologist team which included Dr Donald Angstetra, who provided a statement .^[4] Dr Angtetra's examination revealed that CAM’s ‘...right labia was swollen and tender with some bruising. There was a raw area close to the urethra with an uninterrupted stitch between the two labia minora at the level of the urethra meatus. ’  The surgery revealed that the respondent had also inserted another suture into the clitoral area.  CAM had formed a large haematoma.
53. [53]
    CAM suffered significant physical pain as a consequence of the respondent’s incorrect placement of the two sutures.
54. [54]
    The parties are agreed that the clinical performance and judgment of the respondent in performing the procedure to suture wounds at CAM’s vagina at about 9.00pm on 5 October 2012 was below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience because:

    1. the respondent incorrectly placed two sutures, one being at the clitoral area, and one being at the urethra meatus; and
    2. as a consequence of the matters in (a), patient CAM was required to undergo emergency surgery on 12 October 2012 at the Gold Coast Hospital.
55. [55]
    Dr Kable expressed the view that the discovery that one of the stitches inserted by the respondent had blocked the urethra ‘...reveals that [the respondent’s] repair of the dehiscence on 5 October 2012 was significantly lacking in clinical skills.
56. [56]
    Dr Kable also commented on the relevant text message about the tongue ending in ‘lol’, as follows:

'One of the text messages transcribed in the hospital notes has Dr Gindi signing himself off with “lol”. This is a familiarity that should be avoided in any communication with patients by text.

Communication by text is not a common method of dealing with patients but will no doubt become more common. Such familiarity may convey the wrong idea to the patient and lead to a significant blurring of the boundaries...'

57. [57]
    Dr Campbell (a specialist plastic and reconstructive surgeon who provided a report to the HO)^[5] expressed a similar view with respect to the respondent’s use of the term ‘tongue’.
58. [58]
    The respondent also admits that he made comment on two photos which were posted on patient CAM’s profile, ^[6]depicting CAM and her sister,  (CHM) (who was also a patient of the respondent’s). The two patients were wearing bikinis and standing in provocative poses. It is agreed between the parties that in making the comment the respondent did not imply any sexual or otherwise inappropriate undertone.^[7]
59. [59]
    The respondent has accepted that he incorrectly placed two sutures in CAM, and that as a result, his treatment of CAM was below the standard reasonably expected of a health practitioner. The respondent has accepted that it was unprofessional of him to refer to the patient’s labia as her ‘tongue’ in a text message. He has also accepted that commenting on the Facebook photos of CAM and her sister was inappropriate, and amounted to a transgression of professional boundaries.

Patient KW

60. [60]
    The respondent treated KW from January 2013 to October 2013.
61. [61]
    On about 9 January 2013, KW consulted the Respondent about a procedure using the Deka Smartlipo Laser Lipolysis machine. During the consultation, the Respondent discussed with KW the general procedure in detail, outlining the risks and results.
62. [62]
    On 15 April 2013, Patient KW again consulted the Respondent about a procedure using the Deka Smartlipo Laser Lipolysis machine, but only in relation to her outer thighs. During this consultation the Respondent again discussed the general procedure, expectations, risks, complications and alternatives.
63. [63]
    There was further planning for and discussion of the procedure at a consultation on 22 April 2013.
64. [64]
    On 2 May 2013, the respondent performed the Deka Smartlipo Laser Lipolysis procedure on KW after having obtained her consent to do so.
65. [65]
    On 3 May 2013, KW again consulted the respondent and told him that she was still experiencing pain. The respondent removed the compression garment and examined her legs and told her that everything looked fine.
66. [66]
    By in or about November 2013 (approximately 6 months following the procedure):

    1. there was a divot as long as a biro pen, 2cm deep and as wide as four fingers on Patient KW’s her left leg;
    2. the divot was wavy on the edges rather than having a consistent edge;
    3. there was visible discolouration to the area and surrounding areas;
    4. the disfigurement was greater than the small area of the saddle bag that she wanted to be treated;
    5. she had purple, bruise-coloured skin over an area of 15cm square;
    6. the shaping and volume of the area was hollowed out and dimply and looked like a significant injury from a car accident.
67. [67]
    In about November 2013, KW again consulted the Respondent about the poor outcome from the procedure: and asked for a refund, and the Respondent provided a refund for the cost of the procedure.
68. [68]
    Dr Terrance Scamp performed two surgical corrective procedures on KW's legs, and:

    1. Dr Scamp was able to reform her legs to almost the dimensions they were before the respondent's treatment, but not exactly;
    2. KW still had indentations in her legs from the Smart-Lipa procedure and the skin remained purplish which was significant on the left thigh.
69. [69]
    It is accepted by both parties that the boundary violations referred to in the amended referral and detailed above, are very much at the less serious end of this type of behaviour and similar to that discussed in cases such as Medical Board of Australia v Holding [2014] QCAT 632 and Health Ombudsman v Thompson [2020] QCAT 145. It is not alleged that those boundary violations involved any sexual or otherwise sinister overtone.

The Relevant Law

70. [70]
    As the only real dispute before this Tribunal relates to how the admitted conduct should be characterised, it is necessary to briefly consider the relevant jurisprudence, which is extensive.
71. [71]
    In essence, the applicant contends that the collective characterisation of Dr Gindi’s admitted actions amounts to ‘professional misconduct’ as defined in the first limb of the definition of that term in section 5 of the National Law.
72. [72]
    Mr Jones, on behalf of the respondent, contends that, at its highest, the admitted conduct amounts to ‘unprofessional conduct’ as defined in section 5 of the National Law and/or ‘unsatisfactory professional performance’, also defined in section 5 of the National Law.
73. [73]
    Despite the agreement between the parties as to the sanction, it cannot be said that a finding of professional misconduct in the context of this case, as opposed to a finding of professional misconduct and/or unsatisfactory professional performance, is trivial or unimportant. The dispute, therefore, focuses on the application of accepted principles of statutory interpretation into the meaning of the word “substantially” in the definition in section 5 and the concept “misconduct” as discussed in the cases.
74. [74]
    In Health Ombudsman v Mutasa [2019] QCAT 315 at [8], the Deputy President of QCAT, His Honour Judge Allen QC wrote:

The meaning of “substantial” was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 at [110]:

… it is apparent that what is required is more than a mere departure from standard of conduct required of a practitioner. In the context of this appeal, “substantial” connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.

75. [75]
    Later in that same paragraph, the Full Court quoted with approval what Dean J said in Tillmanns Butcheries Proprietary Limited v Australian Meat Industry Employee’s Union (1979) 27 ALR 367 at [382] :

… the word “substantial” is not only susceptible of ambiguity, it is a word calculated to conceal a lack of precision.

76. [76]
    The Full Court of the South Australia Supreme Court in Fittock also recognised in that same paragraph, by reference to Palser v Grinling [1949] AC 291 at [317] that:

Applying the word … it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of the case.

77. [77]
    In my opinion, Mr Templeton correctly submits that what is required is a consideration of the extent to which the respondent’s admitted conduct fell below the standard objectively required.
78. [78]
    Mr Jones submitted, by reference to what Kirby P (as he then was) said in Pillai v Messiter (No 2),^[8] that in relation to the term “misconduct”, the meaning should not depend on the consequences of the failing.
79. [79]
    In my opinion, in applying the statutory scheme that pertains in this case, and in light of Dr Gindis’ admissions,  the focus should be on whether, in applying the approach endorsed by the Full Court of South Australia in Fittock  accepted in this Tribunal and other Tribunals of a similar nature, his admitted conduct is in any or all of the cases, either separately or collectively “substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience”.
80. [80]
    In his written submission, Mr Templeton helpfully discusses the jurisprudence relating to the meaning of “misconduct” in the particular statutory context in which the word is being considered. I agree with him that decisions such as Pillai, although of assistance, have to be read in the light of the particular statutory context in which the word was there deployed.
81. [81]
    That is why Kirby P’s observations at 201 of Pillai have to be considered in the light of the statutory scheme that governs these disciplinary proceedings set out in the National Law.
82. [82]
    As Mr Templeton submits, there are examples of cases in Tribunals around the country where serious clinical errors, or failings of judgment by health practitioners have been held to amount to professional misconduct under the modern legislative tests. The case that Mr Templeton referred to in his submission, Dental Board of Australia v Abdullah (Review and Regulation) [2016] VCAT 19, which involved only one treatment of a patient that “was of an ongoing poor standard”, is not particularly helpful as the practitioner there admitted that his conduct amounted to professional misconduct and, even then, the relevant Tribunal characterised the conduct at the “lower end of the scale of professional misconduct”.
83. [83]
    With that in mind, I now turn to the characterisation of the relevant conduct. It is not in contest that the admitted conduct in relation to patient JD and/or the two admitted boundary violations, considered separately or collectively, would not amount to professional misconduct.
84. [84]
    In relation to patient BH, the context there of the doctor/patient relationship is a relevant factor. He was a patient of Dr Gindi’s from 10 December 2009 until 9 January 2012. The procedure the subject of the complaint occurred on 30 June 2011. The applicant’s expert Dr Kable referred to BH as a bodybuilder and this is confirmed in Dr Gindi’s initial response to his complaint to the Regulator and in which he said inter alia, he was a “Fulltime truck driver who does bodybuilding and has reported using injectable testosterone privately.”
85. [85]
    There is no criticism of Dr Gindi and the way in which he explained the procedure to BH, including the risk of burns and that he obtained proper consent. Indeed, that is a feature of his dealing with all the patients that have been considered.
86. [86]
    There is no direct evidence from BH in these proceedings of course, and Dr Gindi’s observations are relevant only to his own perception of the relationship with the patient. He accepts now that in using the machine in that area of the face on BH , and using it at a much higher setting than he intended, thus causing a burn and the scar which required further cosmetic surgery, was conduct that fell below the appropriate standards.
87. [87]
    However, it is not disputed that (apart from the setting which was clearly a mistake) Dr Gindi’s use of the machine, which he had used in his cosmetic practice for many years was in accordance with his understanding of the training he received from the manufacture. Dr Kable described Dr Gindi’s use of the machine as “an error of judgment”. Dr Gindi in his affidavit accepts that his treatment of BH failed to meet the appropriate standard of care.
88. [88]
    The decision making and professional performance of Dr Gindi in relation to patient LA is more serious. He accepts that he should not have performed what Dr Kable describes as “a major cosmetic procedure” in his procedure room without any assistance.
89. [89]
    Dr Kable opined that in relation to LA, in undertaking the procedure in his procedure room without any other professional assistance Dr Gindi “would be putting the patient at significant, unnecessary risk”. In his report dated 29 January 2014:

Major cosmetic procedures such as this should always be done in, at least, a day surgery setting. It is quite inappropriate to do this in a general practice setting. I believe that doing such a major procedure under local anaesthetic is also, potentially, very hazardous. High volumes of dilute local anaesthetic and vasoconstrictor may cause significant anaesthetic complications. A general practice room is not equipped to handle such potential hazards. The risk of wound complications is high and the outcomes are likely to be suboptimal. … Dr Gindi has displayed very poor clinical judgment in electing to perform such a procedure in a general practice setting.

90. [90]
    The parties agree that the clinical performance and judgment of Dr Gindi in performing the breast lift procedure on LA on 5 September 2011, and revision procedure on 17 November 2011, was below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience because:

    1. the procedure ought to have been performed in a day surgery or hospital setting rather than a general practice setting;
    2. Dr Gindi failed to adjust the breast mass of the patient’s right breast sufficiently, thereby causing her right nipple to be placed in an unacceptably high position; and
    3. as a consequence of these matters, the outcome of the procedure was poor and the patient required further revision surgery performed by a plastic and reconstructive surgeon.
91. [91]
    I agree with Mr Jones that given the way in which the disciplinary proceedings have evolved, and given that all of the expert reports are significantly redacted, some care must be taken in the weight that should be given to these opinions, however, the significant finding of Dr Kable, which is not disputed, is the opinion that he showed very poor clinical judgment in performing the procedure in that setting.
92. [92]
    Dr Gindi’s clinical notes reveal that his doctor/patient relationship with LA was only for the purposes of considering and undertaking a breast lift procedure. She had undertaken a similar procedure with another doctor a few years earlier and was not satisfied with the result. In his affidavit, Dr Gindi deposes to the fact that since coming to Australia in 1993 and then working as a registered health practitioner since 1997, he had performed only three or four breast lift procedures.
93. [93]
    The consequences to LA as a result the procedure were significant. His conduct in undertaking such a major cosmetic procedure on his own in his surgery without any other professional support, in my opinion, was reckless and substantially below the standard reasonably expected.
94. [94]
    CAM was a patient of Dr Gindi for over four years. The procedure the subject of the referral relates to two sutures inserted at about 9:00 pm on 5 October 2012, in the circumstances described above in relation to an earlier procedure on that day when he performed a dissection of a mucus cyst of the vestibule of the patient’s vagina and removed her right labia minora.
95. [95]
    The parties are agreed that the clinical performance and judgment of the respondent in performing the procedure to suture wounds at CAM’s vagina at about 9:00 pm on 5 October 2012 was below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience because he incorrectly placed two sutures; one being at the clitoral area and one being at the urethra meatus and, as a consequence of that, CAM was required to undertake emergency surgery on 12 October 2012 at the Gold Coast Hospital.
96. [96]
    Dr Kable expresses his opinion in his heavily redacted report that the repair at 9:00 pm on 5 October 2012 relating to, particularly, the stitch that blocks the urethra, as showing that Dr Gindi, significantly lacked in clinical skills”.
97. [97]
    To place sutures, one at the urethra, thus leading to a serious interference with the patient’s ability to urinate, and the other in the clitoral area, a highly sensitive area of the patient’s anatomy, with the consequences that then followed, namely, emergency surgery seven days later, in my opinion, takes this conduct beyond mere carelessness and, again, constitutes recklessness and, consequently, falls within the definition in the National Law of professional misconduct.
98. [98]
    KW was a patient of Dr Gindi for about 10 months in 2013. The procedure undertaken on 2 May 2013 described above is the focus of the complaint.
99. [99]
    The parties agree that the clinical performance and judgment of Dr Gindi in performing the DEKA Smartlipo lipolysis procedure on patient KW’s legs on 2 May 2013, was below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience because he poorly judged and unskilfully and uncarefully removed too much fat tissue from her legs and, as a consequence of those matters, she suffered a poor result, which required revision surgery conducted by a cosmetic surgeon.
100. [100]
     The most serious departures from the appropriate standards occurred in relation to patients CAM and LA. In relation to none of the patients is it alleged that Dr Gindi acted with indifference either to the patient’s care or the relevant standards, or that his conduct could be described as gross negligence, and it is not suggested that the errors he made were made in bad faith or as a result of misusing his position of power as a doctor. The evidence is that he was performing many cosmetic procedures over the relevant period, and prior to the procedure involving patient BH, no other complaints are alleged against him. 
101. [101]
     It has never been in contest that his procedure room was well equipped with some confirmation of this coming from the examination of his practice and his rooms by Dr Kable on 21 May 2014, where he described Dr Gindi’s treatment rooms then as “elaborately equipped”.
102. [102]
     In the case of every patient, he has made a genuine apology. At a very early stage he made appropriate and relevant admissions. He has, therefore, demonstrated from a very early stage in the proceedings, and before disciplinary proceedings were commenced, that he has insight into his clinical failings.
103. [103]
     The conduct the subject of the amended referral relating to Dr Gindi’s professional skills and/or judgment in relation to cosmetic procedures on four patients over a significant period of time (BH 30 June 2011, LA 5 September 2011, CAM 5 October 2011, and KW 2 May 2013). By the time of the last procedure, his registration was subject to Board imposed conditions which prohibited him from performing  mammoplasty and labiaplasty procedures.
104. [104]
     The other complaints are from JD which related to Dr Gindi’s failure to locate an IUD on 2 December 2011 and his boundary violations in relation to CAM and her sister, CHM, who was also his patient at the relevant time, concerning the comments he made on the photos of the sisters, which appear at pages 381 to 382 of the hearing brief; and to his comments in text messages to CAM about the “tounge”.
105. [105]
     For the reasons expressed and, especially, in relation to the admitted conduct in relation to patients LA and CAM, the Tribunal is satisfied to the requisite standard that the respondent has engaged in professional misconduct.

Sanction

106. [106]
     These proceedings are protective not punitive. The overarching principle that informs the Tribunal’s power to sanction healthcare providers who fall below the standards reasonably required is the health and safety of the public. As I have noted, Dr Gindi has shown considerable and commendable insight into his clinical failings from an early point in what have been very protracted proceedings for him. He has suffered significantly: for example, financially, in relation to the very expensive machines used in relation to BH and KW, which he has not used now for many years and which he says cannot be resold.
107. [107]
     I should mention that Mr Templeton, in my opinion, very fairly and appropriately acknowledged the adverse consequences to Dr Gindi as a result of the protracted nature of these proceedings. That is in the spirit of the legislative scheme and appropriate in all the circumstances.
108. [108]
     Sanctions in disciplinary proceedings are designed not only as a specific deterrent to a relevant practitioner but also as a general deterrent to other practitioners with the aim of protecting the public from those who may consider behaving in a similar way. It also maintains public confidence in health professionals by promoting proper ethical and professional standards.
109. [109]
     Dr Gindi has no past disciplinary history, accepting that the Board imposed conditions and the enforceable undertaking related in whole or in part to the same conduct.

Orders

110. [110]
     For the reasons expressed, the Tribunal decides as follows:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has engaged in professional misconduct.
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), conditions are imposed on the respondent’s registration as follows:

1. The practitioner must not perform any cosmetic surgery procedures (including the use of the DEKA Smartlipo and DEKA SmartXide and similar machines).
2. The practitioner must not perform, whether for cosmetic or any other reason, a labiaplasty or another surgical procedure on a person’s vaginal area. (For the avoidance of doubt, the practitioner is permitted to perform pap smear tests as well as insertion and removal of intrauterine devices).
3. The practitioner must not perform, whether for cosmetic or any other reason, any breast surgery.

4. The Health Practitioner Regulation National Law part 7, division 11, subdivision 2, should apply to the conditions and the review period should be five years.
5. No order as to costs.