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 (6) Pursuant to S64 of the Civil and Administrative Tribunal Act (2013) publication of the names of the patients are not to be published. (7) The Complaint and applicant's submissions are to be placed in an envelope in the Tribunal file marked "not for publication".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. REASONS FOR DECISION The Complaint 1. By Application for disciplinary findings and orders dated 13 August 2020 the applicant seeks the following orders: 1. An order prohibiting the disclosure of the names of the persons listed in Schedule 1 to the attached Complaint dated 13 August 2020 under section 64 of the Civil and Administrative Tribunal Act 2013. In the event the subject-matter of a complaint is proved or admitted, the applicant seeks: 2. Protective orders under section 149A (caution, reprimand, counsel etc.) section 149B (fine) and/or section 149C (suspension, cancellation or prohibition order) of the National Law; and 3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law. 1. The grounds relied upon for the orders are stated in the application as follows: The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint dated 13 August 2020 against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been convicted of criminal offences and that the Respondent is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(b) and professional misconduct within the meaning of s 139E of the National Law. 1. These proceedings arise principally from conduct of the respondent towards 10 patients which occurred between 17 September 2016 and March 2017, as detailed hereunder. As a result of such conduct the respondent was charged with criminal offences and convicted on 2 August 2019 at Parramatta District Court of many of the offences alleged against him. The respondent was sentenced to an aggregate term of imprisonment of 16 years and 6 months and an aggregate non-parole period of 11 years. The sentence commenced on 11 October 2017, being backdated due to an existing period of incarceration, and expires on 10 April 2034. 2. The applicant complains in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 (NSW) and s 145A of the Health Practitioner Regulation National Law (NSW) ("National Law") that the respondent, being a medical practitioner registered under the National Law, and having been so registered since 15 December 2015 in New South Wales, was convicted of the following offences: 1. 13 counts of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW); and 2. 5 counts of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act. 1. A list of patients in respect of which evidence was provided to the District Court is contained in Schedule 1 to the Complaint but for reasons of confidentiality the list is not reproduced in this decision. A non-publication order has been made by the Tribunal in respect of the names of such patients. A non- publication order of the specific details of each offence is current as detailed hereunder. 2. The Amended Complaint alleges: COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner was convicted of a criminal offence in New South Wales. PARTICULARS OF COMPLAINT ONE 1. On 2 August 2019, following a trial by jury at the Parramatta District Court, the practitioner was convicted of the offences set out in Schedule 2 of the Complaint. … Schedule 2 to the Complaint of the Health Care Complaints Commission concerning Dr Sharif Fattah Offences for which the practitioner was convicted on Indictment Count Offence Details of offence 5 On 17 September 2016, at Camden in the State of New South Wales, did have sexual intercourse with Patient A without the consent of Patient A knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient A was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. Non-publication order applies to details of all assaults and conversations as detailed hereunder. 7 On 4 November 2016, at Camden in the State of New South Wales, did have sexual intercourse with Patient B without the consent of Patient B, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient B was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 8 On 8 November 2016, at Camden in the State of New South Wales, did have sexual intercourse with Patient B without the consent of Patient B, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient B was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 10 On 25 November 2016, at Camden in the State of New South Wales, did have sexual intercourse with Patient C without the consent of Patient C, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient C was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 11 On 31 December 2016, at Camden in the State of New South Wales, did have sexual intercourse with Patient D without the consent of Patient D knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient D was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 12 On 31 December 2016, at Camden in the State of New South Wales, did assault Patient D and at the time of such assault did commit an act of indecency on Patient D, being a person then under the authority of the practitioner, contrary to s 61M(1) of the Crimes Act 1900. 13 On 17 January 2017, at Camden in the State of New South Wales, did have sexual intercourse with Patient E without the consent of Patient E, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient E was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 14 On 17 January 2017, at Camden in the State of New South Wales, did assault Patient E, and at the time of such assault did commit an act of indecency on Patient E, being a person under the authority of the practitioner, contrary to s 61M(1) of the Crimes Act 1900. 15 On 28 January 2017, at Camden in the State of New South Wales, did assault Patient F, and at the time of such assault did commit an act of indecency on Patient F, being a person under the authority of the practitioner, contrary to s 61M(1) of the Crimes Act 1900. 16 On 28 January 2017, at Camden in the State of New South Wales, did have sexual intercourse with Patient F without the consent of Patient F, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient F was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 17 On 28 January 2017, at Camden in the State of New South Wales, did assault Patient F, and at the time of such assault did commit an act of indecency on Patient F, being a person under the authority of the practitioner, contrary to s 61M(1) of the Crimes Act 1900. 18 On 5 February 2017, at Camden in the State of New South Wales, did have sexual intercourse with Patient G without the consent of Patient G, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient G was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 24 On 4 March 2017, at Camden in the State of New South Wales, did have sexual intercourse with Patient H without the consent of Patient H, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient H was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 26 On 4 March 2017, at Camden in the State of New South Wales, did have sexual intercourse with Patient I without the consent of Patient I, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient I was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 27 On 4 March 2017, at Camden in the State of New South Wales, did assault Patient I and at the time of such assault did commit an act of indecency on Patient I, being a person then under the authority of the practitioner, contrary to s 61M(1) of the Crimes Act 1900. 28 On 4 March 2017, at Camden in the State of New South Wales, did have sexual intercourse with Patient I without the consent of Patient I, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient I was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 29 On 6 March 2017, at Camden in the State of New South Wales, did have sexual intercourse with Patient J without the consent of Patient J, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient J was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. 30 On 6 March 2017, at Camden in the State of New South Wales, did have sexual intercourse with Patient J without the consent of Patient J, knowing she was not consenting, in circumstances of aggravation, namely that at the time Patient J was under the authority of the practitioner, contrary to s 61J(1) of the Crimes Act 1900. The specific conduct of the respondent proved in each of the offences, namely the details of the sexual assaults and conversations which took place during the consultations with the respondent are the subject of a non-publication order made pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) by the Local Court of New South Wales on 20 March 2017. Such order has not been revoked and remains in force until the Local Court orders otherwise. Accordingly the details referred to in the applicant's Complaint will be treated as not for publication, and the applicant's submissions which refer to the conduct are to be similarly treated. These will be placed in a sealed envelope in the Tribunal file marked "not for publication". Respondent's Reply 1. The respondent has been unrepresented before the Tribunal. There is no formal Reply filed by the respondent. However, by letters dated 16 February 2020, 22 December 2020 and 18 January 2021 the respondent wrote to the Registrar. 2. In his letters the respondent advised that, with respect to Complaint One, his legal team were proposing to lodge a Notice of Appeal in relation to the criminal proceedings in the near future. Due to COVID-19 restrictions, the respondent, who is incarcerated, has been unable to see his lawyer to advance his appeal. However the solicitor for the applicant has communicated with the solicitor for the respondent and the latter has confirmed that the respondent has instructed him to act on his behalf on the appeal. 3. The respondent who is in prison attended the hearing by video link. The respondent informed the Tribunal that because of his incarceration he had no legal support available to him. However, he requested that he be granted procedural fairness. The respondent explained that he was proposing to appeal his convictions and sentences and was concerned that the proceedings now before the Tribunal could deny him procedural fairness. 4. The respondent also acknowledged that he was not proposing to practise medicine again at any time and would submit to any protective measures which the Tribunal considered appropriate. 5. In response to the respondent's concerns, the Tribunal explained to him that the Tribunal proceedings were entirely separate to any court proceedings involving his convictions, although the fact of the convictions would be the basis for the protective orders which were sought. The Tribunal also explained to him that the National Law specifically empowered the Tribunal to continue with any proceedings under the National Law despite the fact of simultaneous proceedings taking place. Section 145G of the National Law provides: 145G Inquiries etc. not prevented by other proceedings [NSW] A complaint can be referred to a Committee or the Tribunal, and dealt with by the Committee or Tribunal, even though the practitioner or student concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint. New Zealand disciplinary proceedings 1. The respondent had been the subject of proceedings brought against him in 2014 in New Zealand, in which it was alleged that he had wrongfully interfered with female patients during the course of medical examinations. The respondent was registered in New Zealand as a medical practitioner. The New Zealand Health Practitioners Disciplinary Tribunal conducted a hearing in relation to charges laid by the designated authority under the Health and Disability Commissioner Act 1994 (NZ) pursuant to s 91(1)(a) of the Health Practitioners Competence Assurance Act 2003 (NZ) against the respondent. In its decision number 653/MED14/281D, the Tribunal ordered, on 23 September 2014, that the charges against the respondent be dismissed in respect of all particulars. These proceedings are of no relevance to the current proceedings, other than that the applicant submits that such proceedings would have clearly made the respondent aware of the necessity to observe professional boundaries when engaging in consultations with female patients. Code of conduct 1. Pursuant to s 39 of the National Law, guidelines have been promulgated by the Medical Board of Australia entitled "Good Medical Practice: A Code of Conduct for Doctors in Australia" ("the Code"), published in March 2014. Section 1.4 of the Code provides: "… Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. There must be ethical and trustworthy. Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on their doctors to protect their confidentiality. …" 1. Section 8.2 states: "Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: 8.2.1 Maintaining professional boundaries. 8.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child patient. 8.2.3 Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress. 1. Specifically in relation to sexual boundaries, the Medical Board of Australia's "Sexual Boundaries: Guidelines for Doctors" (28 October 2011) contains extensive information concerning the boundaries to be observed by medical practitioners. Under the heading "Understanding and defining sexual boundaries" the guide states, inter alia: "Sexual misconduct covers a range of inappropriate professional behaviours including sexualised behaviour, sexual exploitation or abuse, entering into a sexual relationship, and sexual assault. Criminal offences will be investigated by the police. 1. Included in this section is advice that "sexual assault ranges from physical touching (or examination without consent) to rape and is a criminal offence that should be investigated by the police". The Code also contains specific advice concerning the professional standards to be observed in physical examinations. 2. No specific complaint has been brought against the respondent in these proceedings that he breached the provisions of the Code. Nevertheless, the professional boundaries are relevant in a general sense to the conduct of the respondent which has resulted in his convictions. Background of Respondent 1. The respondent is approximately 60 years of age. He was awarded the degree of Bachelor of Medicine and Bachelor of Surgery from the University of Dhaka, Bangladesh in 1982. The respondent successfully undertook courses to qualify him for the University of Auckland Faculty of Medicine and Health Services overseas trained doctors program held between July to November 2001 and met the Medical Council of New Zealand's required standard of competence and was entitled to practice medicine in New Zealand subject to participating in an approved recertification program relevant to the vocational scope of General Practice in approximately 2007 . The respondent was first registered in New South Wales in 2015 (MED 0001997525) and in that year he became a Fellow of the Royal Australian College of General Practitioners. 2. The respondent visited Australia on several occasions between 20 July 2001 and 8 December 2016 whilst he was the holder of a Special Category (subclass TY 444) visa. Such visa was cancelled on 16 October 2017. On 8 November 2017 the respondent was granted a Bridging visa E (subclass WE050). That visa was cancelled on 30 November 2017 under s 116 of the Migration Act 1958 (Cth). The respondent was subsequently detained under s 189(1) of such Act and was transferred to Villawood Immigration Detention Centre where he remained from 30 November 2017 to 20 May 2019, when he entered the custody of Corrective Services. 3. With effect from 2:15pm on Thursday, 9 March 2017, the Medical Council suspended the registration of the respondent under the provisions of s 150(1)(a) of the National Law. The Australian Health Practitioner Regulation Agency certificate tendered to the Tribunal confirms that the current status of the respondent is "unregistered (suspended)". Evidence of specific assaults 1. The evidence of the specific assaults was provided by the 10 patients of the respondent to the District Court of New South Wales, in the presence of a jury, between 6 March 2019 and 21 March 2019. A non-publication order was made concerning the specific details of the alleged assaults and of the conversations which took place during the consultations. The Certificate of Conviction issued under s 178 of the Evidence Act 1995 (NSW) establishes beyond doubt the convictions recorded against the respondent. The specific conduct leading to the convictions is contained in Schedule 2 to the Complaint which is set out earlier in these reasons. 2. In proceedings against a practitioner under the National Law, a high standard of proof is required in relation to establishing the conduct which is the subject of the Complaint. The rules of evidence do not apply in a tribunal and accordingly it is a misnomer to talk of a burden of proof: see FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [33]–[36]. However, it has been accepted that the standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 is a standard which is usually accepted in this Tribunal, namely that the Tribunal requires proof to a satisfaction commensurate with the gravity of the charges: see observations in Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14] and the observations of the New South Wales Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41. 3. In view of the convictions, the District Court jury was satisfied beyond reasonable doubt that the offences charged against the respondent were proved. The Tribunal takes notice of such findings and of the Certificate of Conviction issued under s 178 of the Evidence Act 1995 (NSW). In Zaidi v Health Care Complaints Commission (1998) 44 NSW LR 82, Mason P said at 86: "… where guilt is established to the criminal standard, public policy suggests that so long as the conviction stands the facts necessarily established ought to be regarded as proved for the purpose of any civil proceedings: Lai v Minister for Immigration, Local Government & Ethnic Affairs (1991) 28 FCR 346; cf Helton v Allen (1940) 63 CLR 691 at 702–703, 710; contrast Public Trustee v Fraser (1987) 9 NSW LR 433. …" 1. Accordingly, the Tribunal finds that the charges made against the respondent in Complaint One are proved. Sentencing observations 1. The following sentencing observations were made by the District Court: "In this case the feature of aggravation in each case involved the victim being under the offender's authority by reason of the doctor and patient relationship. The breach of trust that arises out of the offender's position of authority as the doctor of each of the victims, was a serious breach. Trust is a fundamental ingredient of the relationship between doctors and patients; sexual misconduct is a serious abuse of that trust. Patients have a basic right to feel safe when they are consulting a doctor. Exploitation of the doctor/patient relationship thoroughly undermines the trust that patients have in their doctors and the community has in the profession. Sexual abuse can cause significant and lasting psychological harm to patients and compromise their medical care. It is evident here that the offender's actions did cause significant psychological harm to at least nine of his victims and for some of those victims the harm was profound. They felt violated and at the same time confused as to what the offender had done and later questioned their own behaviour in failing to stop the offender." Protection of the public 1. The sentencing observations made by her Honour Judge Harris in the District Court of New South Wales at Parramatta on Monday, 29 July 2009 reflect the findings of the New South Wales Court of Appeal in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638 as follows: "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession obliged doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observed, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (Court of Appeal, 15 July 1993, unreported) at 8-9: 'The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporally placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest.'" 1. Section 3A of the National Law requires that "the protection of the health and safety of the public must be the paramount consideration" when considering whether a practitioner is charged with malpractice. 2. Section 139B of the National Law defines "unsatisfactory professional conduct" as including "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (subs (1)(l)). 3. The Tribunal must be satisfied that a practitioner is a "fit and proper person" to be registered as a medical practitioner: see Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72]–[73]. In Cunliffe v The Commonwealth of Australia (1994) 182 CLR 272 at 302; [1994] HCA 44, Mason CJ said with reference to the words "fit and proper person": "In some contexts, the words 'fit and proper person' are so indefinite that they have been held to confer in effect what amounted to a discretionary judgment on a licensing authority. But the context may supply sufficient precision." (Footnotes omitted.) 1. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [65], where Toohey and Gaudron JJ said that character or reputation "may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." 2. Section 3(2)(a) of the National Law provides: 3 Objectives and guiding principles … (2) The objectives of the national registration and accreditation scheme are— (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; … 1. Such a provision has a consequence that persons who are found to have engaged in improper or unethical conduct are unfit for registration as a medical practitioner. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190, Boland ADCJ referred to the meaning of improper or unethical conduct at [30]–[31]: [30] The words "improper" and "unethical" are not defined in the National Law but have been considered in a number of Tribunal decisions. [31] The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514–515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession". 1. The proven conduct of the respondent demonstrates that his conduct is "improper" and "unethical". In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Basten JA, having referred to the legal principles concerning "good character" at (45] – [49], then all will at [51] referred to McBride v Walton (Court of Appeal (NSW), 15 July 1994, unrep), where various observations as to conduct were made as follows: [51] … "To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practice [sic] medicine, one must consider: (a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other misconduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner." 1. Section 139E of the National Law defines "professional misconduct" as including "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration": s 139E(a). The Tribunal may conclude that a practitioner has engaged in contact which is unsatisfactory professional conduct under s 139B(1)(l), namely the practitioner has engaged in any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. Professional misconduct is not confined to malpractice or incompetence. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA said: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. Having considered the above, the Tribunal finds that the conduct of the respondent, as contained in the Complaint, is conduct which is both unsatisfactory professional conduct and professional misconduct. The respondent grossly breached the standards expected of a medical practitioner. The conduct was a gross breach of the trust bestowed upon the practitioner by virtue of his professional status as a medical practitioner. Such conduct, "viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected…": see Office of Local Government v Toma [2016] NSWCATOD 21. The Tribunal is satisfied that the misconduct is "sufficiently serious" to justify an order: see Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186. It has also been held that "conduct may show a defect of character incompatible with a membership of a self-respecting profession": see Zeims v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279. 2. As was observed in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [73]: "While some overlap between the concepts of "good character" and "being a suitable person to hold registration "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills." 1. The Tribunal considers that the convictions of the respondent demonstrate that his improper conduct leads to the conclusion that he is not a fit and proper person to hold registration as a medical practitioner. 2. The Tribunal is required to determine the appropriate protective order required to protect the community and the public. The sanction to be imposed is not punitive; rather, it is wholly protective. Orders sought by Applicant 1. The applicant seeks cancellation of the respondent's registration and also an order that he not be permitted to make a reinstatement application for a period of 20 years from the date of the orders. 2. Such an extended period would result in an effective determination that the respondent is probably permanently unfit to be a medical practitioner. However, s 149C(7) of the National Law contemplates that a practitioner may apply to have the question of whether he or she lacks fitness to practice reconsidered. 3. The standing of the profession and maintenance of public confidence in the profession is served by protective orders: see Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91], where his Honour said: "… However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. …" 1. However, the Tribunal does not consider that protective measures should disqualify the respondent from making an application to be re-registered for 20 years, being the period sought by the applicant. Whilst the applicant has provided examples of such prohibitions extending beyond a period of non-parole see for example Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78; Health Care Complaints Commission v Jung [2018] NSWCATOD 53; Health Care Complaints Commission v Choi [2017] NSWCATOD 82), such a long period would, in the Tribunal's consideration, be excessive. It would have the consequence that the respondent would be 80 years of age before he would be able to make an application for reinstatement as a medical practitioner. 2. Instead, the Tribunal considers that an order should be made cancelling the registration of the respondent and prohibiting any application for re-registration for a period of 12 years, namely following the expiration of his period of non-parole. Such period should be ample to address the question of the respondent's insight into his conduct. Any sanction so imposed is protective in the public interest, and not punitive: see Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83] per Basten JA. If, however, the respondent's appeal against his convictions is successful, the respondent will be granted leave to apply to the Tribunal for a reconsideration of the complaint against him. Costs 1. The applicant seeks an order that its costs of these proceedings be paid by the respondent. An award of costs is not punitive. Rather, such an award is made purely to compensate a successful party: see Latoudis v Casey (1990) 170 CLR 534 at 543; [1990] HCA 59; Health Care Complaints Commission v Philipiah [2013] NSWCA 342. There may be circumstances where factors might "militate against the recovery by the Commission of all of its costs in particular proceedings": see Philipiah at [42]–[46]. Clause 13 of Sch 5D to the National Law makes provision for payment of the successful party's costs by the unsuccessful party. 2. There are some circumstances which warrant the applicant being deprived of part of its costs, namely the fact that a previous hearing scheduled to commence in January 2021 was adjourned because the applicant only provided the respondent with the draft protective orders sought shortly before the hearing was to commence. To proceed in the circumstances would have constituted a denial of procedural fairness. The respondent is not to be held liable for the costs of the adjourned hearing. Subject to this exception, it is appropriate that the applicant be awarded its costs. Such order will be made in accordance with the principles referred to in NSW Medical Board v Dinakar [2009] NSWMT 8; Ohn v Walton (1995) 36 NSWLR 77; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67]. Orders 1. 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 referred to in Schedule 1 four all to the Complaint is prohibited. 7. The Complaint and applicant's submissions are to be placed in an envelope in the Tribunal file marked "not for publication". ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 30 September 2021 - 30 September 2021 – Second and third references to "District Court" at [6] deleted and substituted with "Local Court" Order (1) within the Coversheet and at [46] amended to: delete "s 149C(4)" and insert instead "s 149C(1)(c)"; delete the words "had the practitioner been registered,"; and delete the words "would cancel" and insert instead "cancels" Order (2) within the Coversheet and at [46] amended to: delete "s 149C(4)(b)" and insert instead "s 149C(7)"; and insert the words ", subject to order (4)," DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2021