Health Care Complaints Commission v Fattah [2021] NSWCATOD 108

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Fattah [2021] NSWCATOD 108 Hearing dates: 27 July 2021 Date of orders: 16 September 2021 Decision date: 16 September 2021 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Dr S Cowap, Senior Member Dr L King, Senior Member Ms J Houen, General Member Decision: The Tribunal makes the following orders: (1) pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) (the National Law), the Tribunal cancels the respondent's registration as a registered medical practitioner. (2) Pursuant to section 149C(7), the respondent is, subject to order (4), precluded from making an application for reinstatement until the expiration of 12 years from the date of these orders. (3) Under s 149C(5) of the National Law, the respondent is prohibited from providing any "health service" as defined by s 4 of the Health Care Complaints Act 1993 (NSW) for a period of 12 years from the date of these orders. (4) If the respondent's appeal against his criminal convictions is successful, or if the sentence is varied, the respondent may apply for a variation of Orders 1, 2 and 3 of these orders. (5) The respondent is to pay the costs of and incidental to these proceedings of the applicant, except the costs thrown away by reason of the adjournment of the previous hearing, as agreed or failing agreement liberty to restore before the Tribunal for assessment. (6) Pursuant to S64 of the Civil and Administrative Tribunal Act (2013) publication of the names of the patients are not to be published. (7) The Complaint and applicant's submissions are to be placed in an envelope in the Tribunal file marked "not for publication". Catchwords: HEALTH — professional registration and discipline — complaints — practitioner convicted of 13 counts of aggravated sexual intercourse without consent and five counts of aggravated indecent assault committed on female patients. Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Cunliffe v The Commonwealth of Australia (1994) 182 CLR 272; [1994] HCA 44 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 FTZK v Minister for Immigration and Border Protection [2014] HCA 26 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Choi [2017] NSWCATOD 82 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78 Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 Health Care Complaints Commission v Jung [2018) NSWCATOD 53 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 NSW Medical Board v Dinakar [2009] NSWMT 8 Office of Local Government v Toma [2016] NSWCATOD 21 Ohn v Walton (1995) 36 NSWLR 77 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Zaidi v Health Care Complaints Commission (1998) 44 NSW LR 82 Texts Cited: Medical Board of Australia, "Good Medical Practice: A Code of Conduct for Doctors in Australia" (March 2014) Medical Board of Australia, "Sexual Boundaries: Guidelines for Doctors" (28 October 2011) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Sharif Mohammad Abdul Fattah (Respondent) Representation: Solicitors: Health Care Complaints Commission (P Rogers) (Applicant) Respondent (Self-Represented) File Number(s): 2020/00239243 Publication restriction: An order is made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of the name of any patient referred to in Schedule 1 and Schedule 2 to the Complaint.