Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Danaei [2021] NSWCATOD 188 Hearing dates: 27 October 2021 Date of orders: 19 November 2021 Decision date: 19 November 2021 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr J Aitken, Senior Member Dr E O'Brien, Senior Member J Barker, General Member Decision: 1. Dr Danaei has engaged in unsatisfactory professional conduct. 2. Dr Danaei has engaged in professional misconduct. 3. Dr Danaei is to file and serve any further evidence on which he intends to rely for the Stage 2 hearing by 3 December 2021. 4. The Stage 2 hearing is listed for one day on 14 December 2021. Catchwords: OCCUPATIONS – medical practitioners – misconduct and discipline – unsatisfactory professional conduct – professional misconduct – where practitioner engaged in sexual relationship with patient Legislation Cited: Health Practitioner Regulation (New South Wales) Regulation 2016 Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Texts Cited: Good Medical Practice; A Code of Conduct for Doctors in Australia, Medical Board of Australia, March 2014 Sexual Boundaries; guidelines for doctors, Medical Board of Australia, 28 October 2011 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Aliyar Danaei (Respondent) Representation: Counsel: A Petrie (Applicant) C Jackson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law Pty Limited (Respondent) File Number(s): 2020/00343266 Publication restriction: The publication of the name of Patient A is prohibited under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). REASONS FOR DECISION Overview 1. The Health Care Complaints Commission has applied to the Tribunal for disciplinary findings and orders against Dr Aliyar Danaei. The central allegation is that Dr Danaei had a personal and sexual relationship with a patient, Patient A, for about 4 months in 2018. When Patient A was seeing Dr Danaei as a patient, they conceived a child who was born at the end of 2018. 2. Complaint One is that Dr Danaei is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) (National Law) in that he has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Dr Danaei admits that he is guilty of unsatisfactory professional conduct, although he denies particular 1.4, of Complaint One, that he advised Patient A to terminate the pregnancy. 3. Complaint Two relates to Dr Danaei's clinical practice while treating Patient A. That complaint is that Dr Danaei is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that he has engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Dr Danaei admits that he is guilty of unsatisfactory professional conduct. However he denies the factual allegation in particular 2.1(b), that he had no rationale for ordering the STD and HIV screening. He also denies the factual allegation in particular 2.2, that he failed to advise Patient A of the HIV screening result. Dr Danaei "does not admit" (as distinct from "denies") the allegation in particular 2.4, that he failed to adequately manage Patient A's ongoing mental health issues. 4. Complaint Three relates to Dr Danaei's record keeping. The Commission complains that he has engaged in unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he has contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 ("the 2016 Regulation"). Dr Danaei admits this particular. 5. Complaint Four is that Dr Danaei has engaged in professional misconduct under section 139E of the National Law. Dr Danaei admits that particular. Background 1. In 2010, Dr Danaei graduated with a Bachelor of Medical Sciences from the University of Guilan, Iran. From 2011 to 2013 he worked in Iran initially in rural and remote areas and then in Tehran. On 19 October 2015, he was registered as a medical practitioner in New South Wales. He returned to Iran but came back to Australia in March 2016. At that time he began working in a group practice on the central coast as an International Medical Graduate. 2. Dr Danaei says that when he started working on the central coast of NSW, he was working long hours and was very lonely. He felt socially isolated. In July 2017 he referred himself to a psychiatrist, Dr Sian Ong. Among other things, he says he was feeling stressed about his FRACGP exams. Dr Danaei continued to see Dr Ong until he returned to Iran in November 2017. Dr Ong diagnosed Dr Danaei with ADHD and depression. He prescribed Vyvanse 50mg for ADHD and citalopram 20mg for depression. Dr Danaei started feeling better. 3. On 19 November 2017 a 33 year old woman who we will call Patient A consulted Dr Danaei. She had a history of addiction to marijuana and a diagnosis of borderline personality disorder and depression. Dr Danaei says that Patient A also consulted him for chronic back, neck and shoulder pain due to a work injury in July 2017. Between 19 November 2017 and 30 May 2018, Patient A consulted Dr Danaei on 28 occasions. 4. The first three consultations on 19, 20 and 22 November 2017 were in relation to a "sore finger". The attendance on 27 November 2017 was for "skin issues". Dr Danaei recommended she have a suspicious mole removed. Patient A disclosed her anxiety and pain issues. On 28 November 2017, Dr Danaei saw Patient A twice. At the first consultation Dr Danaei performed punch biopsies to remove two moles. Patient A returned later in the day saying that she wanted Dr Danaei to be her general practitioner and her nominated treating doctor for her workers compensation claim. She brought in some paper records from her previous treating doctor. It was at that consultation that Dr Danaei recommended a number of screening tests including for sexually transmitted diseases (STDs). 5. There were two consultations on 4 December 2017. The first related to a workers compensation claim. The second was for a repeat prescription of Somac for reflux. Dr Danaei saw Patient A again five days later when he removed some stitches. Patient A told Dr Danaei that she needed a certificate of fitness to drive. Her driver's licence had been cancelled following a drink driving offence. At this consultation Patient A also told Dr Danaei that she had been diagnosed with borderline personality disorder and that she had been addicted to marijuana. That information was also contained in the notes Dr Danaei had received from Patient A's former general practitioner. 6. Further consultations took place on 11 and 12 December 2017 when Dr Danaei prepared a Mental Health Treatment Plan. Dr Danaei referred Patient A to a psychiatrist for a fitness to drive assessment because he did not feel confident to provide the relevant certification. On 17 December 2017 Dr Danaei took a psychiatric history from Patient A, prepared a GP Management Plan and Team Care Arrangement as well as referring her to a psychologist. At that consultation Dr Danaei also noted that Patient A had not undertaken any of the pathology tests, including STD screening that he had recommended on 28 November 2017. He encouraged her to attend for those tests and also gave her a new request form for HIV and HCV screening. 7. Between January 2018 and 30 May 2018, Dr Danaei engaged in an inappropriate personal and sexual relationship with Patient A, while still treating her as a patient. On 12 April 2018, which was the last time they had unprotected sexual intercourse, Dr Danaei and Patient A conceived a child who was born towards the end of 2018. 8. In November 2017, when Patient A first consulted Dr Danaei, he had been practising for seven years including 18 months in Australia. Dr Danaei admits that he did not tell anyone about the relationship or seek guidance from colleagues. He acknowledges that he should have done so, but says he felt ashamed and guilty. He felt that he would do damage to Patient A whether he kept seeing her or not. 9. On 24 August 2018, another general practitioner who Patient A had consulted, lodged a complaint about Dr Danaei with the Australian Health Practitioner Regulation Agency (AHPRA). On 31 August 2018, Dr Danaei's employment with the medical practice was terminated. The Medical Council convened an inquiry under s 150 of the National Law and Dr Danaei was suspended from practice. In February 2019, Dr Danaei returned to Iran and saw a psychologist. When he returned to Australia in August 2019, his psychiatrist, Dr Ong, referred him to another psychologist, Mr Kearney, whom he saw for five sessions. In those sessions the issues relating to Dr Danaei's sexual relationship with Patient A were discussed, as was his failure to recognise early signs of poor maintenance of appropriate boundaries and his lack of assertiveness in securing those boundaries. 10. Dr Danaei went back to Iran in November 2019. He stopped taking Vyvanse because he could not get that medication in Iran and because his psychologist told him he did not have ADHD. He continued taking the anti-depressant medication, citalopram, for a couple of months. Currently he is not taking any medication or seeing a psychiatrist or psychologist. 11. On 18 November 2019 the Medical Council lifted the suspension and imposed conditions on his registration. The conditions included to practise under category B supervision and not to treat any female patients except in an emergency. 12. Dr Danaei is currently working as a general practitioner in Tehran. His registration as a medical practitioner in Australia has expired. He intends to return to Australia and continue to work as a medical practitioner if he is permitted to do so. He says he wants the chance to work in Australia to assist in the support of his child. Issues 1. There are three issues: has the Commission proven the factual basis of the allegations that Dr Danaei has not admitted; is Dr Danaei guilty of unsatisfactory professional conduct; and, if so, is he also guilty of professional misconduct. In this decision we will only decide on those issues. We will decide on the appropriate orders at another hearing on 14 December 2021. 2. Dr Danaei admits that he engaged in unsatisfactory professional conduct and professional misconduct but denies or does not admit four of the particulars. He denies that he advised Patient A to terminate the pregnancy. He denies that he had no rationale for ordering STD and HIV screening. He also denies that he failed to advise Patient A of the HIV test result. Dr Danaei does not admit (as distinct from denies) that he failed to adequately manage Patient A's ongoing mental health issues. 3. The Commission has the burden of proving the facts to the civil standard of proof which is on "the balance of probabilities". When making findings of fact we should take into account matters including the nature of the cause of action or defence, the subject matter of the proceedings and the gravity or seriousness of the allegations. We should not be reasonably satisfied that something has happened or that Dr Danaei had a particular motivation if the allegation is only supported by "inexact proof, indefinite testimony or indirect inferences". Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34. While we are not bound by the rules of evidence or the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, those principles remain relevant: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]. 4. After making factual findings, we must decide if what has happened amounts to "unsatisfactory professional conduct" as defined in the National Law. For Complaint One the HCCC alleges that Dr Danaei is guilty of unsatisfactory professional conduct under s 139B(1) of the National Law in that he has engaged in "improper or unethical conduct". The words "improper" and "unethical" are not defined in the National Law. They have an ordinary English meaning. Dictionary definitions provide a guide to that meaning. As the Tribunal held in Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [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. For Complaint Two, the Commission alleges that Dr Danaei is guilty of unsatisfactory professional conduct under s 139B(1) of the National Law in that he has engaged in conduct that demonstrates that the knowledge or judgment possessed, or care exercised, by Dr Danaei in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. 2. Complaint Three relates to record keeping. Complaint Four is that Dr Danaei engaged in professional misconduct. Dr Danaei admits these complaints. 3. The Commission asked Dr Stephen Howle to give his opinion as to whether the alleged conduct amounts to unsatisfactory professional conduct and professional misconduct. Dr Howle is a very experienced general practitioner who has recently retired. He provided a report dated 11 March 2020. Dr Danaei did not require Dr Howle for cross-examination and the Tribunal did not need to ask him any questions. 4. If we find Dr Danaei to have engaged in unsatisfactory professional conduct, the third issue is whether he has also engaged in professional misconduct. That depends on whether Dr Danaei's "unsatisfactory professional conduct" is "of a sufficiently serious nature to justify suspension or cancellation of his registration". Professional misconduct is defined in s 139E of the National Law: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. For most of the allegations, Dr Danaei admits that he is guilty of unsatisfactory professional conduct. 2. If we find Dr Danaei engaged in professional misconduct, we have power to disqualify him from being registered for a specified period or until specified conditions have been complied with: National Law, s 149C(4). In these kinds of proceedings, the protection of the health and safety of the public must be our paramount consideration: National Law, s 3A. Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a). Complaint One – improper and unethical conduct 1. Dr Danaei is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that he has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Dr Danaei admits that he is guilty of unsatisfactory professional conduct, although he denies particular 1.4, that he advised Patient A to terminate the pregnancy. 1.1 Contacted Patient A for a non-therapeutic purpose 1. This particular is that in January 2018, Dr Danaei breached proper professional boundaries in that he inappropriately contacted Patient A by telephone for a non-therapeutic purpose. Dr Danaei admits this particular. 2. According to Dr Danaei it was at one of the consultations in the last couple of weeks of December 2017 that Patient A suggested they meet socially. Dr Danaei says he declined the invitation but knew that boundaries were being crossed. When Patient A gave him a piece of paper with her phone number on it in the first week of January 2018, he phoned her and they arranged to meet. The meeting was for a social, not a therapeutic, purpose. 3. Dr Danaei admits this particular and we find it to have been proven. 1.2 Engaged in a personal and sexual relationship with Patient A 1. This particular is that between about January 2018 and about 30 May 2018, Dr Danaei engaged in an inappropriate personal and sexual relationship with Patient A, in circumstances where he was in a therapeutic relationship with her. Dr Danaei admits that he commenced a sexual relationship with Patient A in January 2018. He also admits that he knew such behaviour was inappropriate even before commencing practice in Australia. In Dr Danaei's words: I thought about it and then called Patient A and began seeing her socially. I began a physical relationship with Patient A a few days after I saw her socially for the first time. I continued a social and sexual relationship with Patient A, meeting her, and calling her on the phone from that point. 1. Dr Danaei estimates that he met Patient A socially around five or six times and they had sexual intercourse four or five times. He said that initially it felt good to have someone to talk to outside work. He admits having unprotected sex with Patient A on 12 April 2018. That was the occasion on which their child was conceived. 2. In the publication "Good Medical Practice: A code of conduct for doctors in Australia", (March 2014) the Medical Council of Australia writes at 8.22, that good medical practice involves: 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. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law.12 1. The Medical Board of Australia has power to develop guidelines and codes: National Law, s 39. Dr Danaei's conduct is clearly in breach of the guideline on Sexual Boundaries, "Sexual Boundaries; guidelines for doctors", 28 October 2011 (Sexual Boundaries guideline). That document states at point 2 on page 1, that: Good medical practice relies on trust between doctors and patients and their families. It is always unethical and unprofessional for a doctor to breach this trust by entering into a sexual relationship with a patient, regardless of whether the patient has consented to the relationship. (Emphasis added.) 1. The same point is repeated at point 6 on page 3: "Doctors are responsible for establishing and maintaining boundaries with their patients. A doctor should not enter into a sexual relationship with a patient even with the patient's consent." Behaving in that way is, by definition, "sexual misconduct". At point 3 on page 2, that term is defined to include "engaging in sexual activity with a current patient regardless of whether the patient consented to the activity of not". 2. Relying on these publications, Dr Howle's opinion is that this conduct is significantly below the relevant standard and attracts strong criticism. That is the test for unsatisfactory professional conduct under s 139B(1)(a) of the National Law, but this complaint alleges a breach of s 139B(1)(l). The test is whether it is improper or unethical conduct relating to the practice or purported practice of medicine. We agree with the view expressed in the Sexual Boundaries guideline that it is always unethical for a doctor to enter into a sexual relationship with a patient and to continue to treat that person as a patient. Dr Danaei admits this particular and we find it to have been proven. 1.3 Failure to cease the relationship and refer Patient A to other doctors 1. This particular is that between about January 2018 and about 30 May 2018, Dr Danaei failed to cease the professional relationship and arrange for Patient A to be referred to another treating medical practitioner for management of her WorkCover claim and other medical conditions. Dr Danaei admits this particular. 2. By way of background, Dr Danaei says he told Patient A in February 2018, after she returned from a holiday in Thailand, that he could not continue being her treating doctor. Patient A agreed and started seeing another doctor. Despite that agreement, she made further appointments with Dr Danaei. She told Dr Danaei that she had only just started seeing him for her workers compensation matter and that the insurer would not be happy if she kept changing doctors. Dr Danaei says he suggested that she see his colleague in the same practice and Patient A said that she would do so after a few more consultations. Dr Danaei accepts that he was not firm enough in insisting that Patient A see another doctor. He understands that it was his responsibility to say 'no'. 3. Dr Danaei says that he ended the relationship with Patient A on 10 or 11 March 2018, before he returned to Iran to visit his family. Dr Danaei came back to Australia on 4 April 2018 and Patient A telephoned him a few days later. He says he was not aware at that time that Patient A had been admitted to Wyong Mental Health Unit while he had been away. Initially Dr Danaei refused to meet Patient A but she booked an appointment with him on 10 April 2018. She mentioned the mental health breakdown and admission to hospital at that consultation. She said she felt her mood was now stable. 4. Continuing a sexual relationship with a patient, or failing to terminate the doctor/patient relationship, is a breach of the Sexual Boundaries guideline. Dr Danaei made some half-hearted attempts to end the therapeutic relationship but was unsuccessful. He should have stopped treating Patient A before commencing a personal relationship. In Dr Howle's view, not to cease to treat Patient A was significantly below the relevant standard and attracts his strong criticism. Again, the question is whether it is improper or unethical conduct relating to the practice or purported practice of medicine. In our view it is. Dr Danaei admits this particular and we find it to have been proven. 1.4 Advising Patient A to terminate the pregnancy 1. This particular is that in May and/or June 2018, Dr Danaei advised Patient A to terminate her pregnancy, in circumstances where he had been in a sexual relationship with Patient A and had a personal interest in the pregnancy. Dr Danaei denies this particular. Despite that denial, when giving oral evidence he admitted that while he would not characterise the discussion as the giving of advice, he did tell Patient A that, in his opinion, she should not continue with the pregnancy. 2. In a consultation on 9 May 2018, Dr Danaei recorded in his clinical notes that Patient A's period was late and performed a urine pregnancy test in his surgery. It was positive. There is no reference in the clinical notes to him asking Patient A to terminate the pregnancy. We accept Dr Danaei's evidence that he suspected he was the father, but that Patient A did not say anything to him about that possibility during that consultation. At the end of May 2018, Dr Danaei says that he and Patient A had a discussion at his home about terminating the pregnancy or continuing with the pregnancy. During that conversation, Dr Danaei says that they agreed that they would make a decision later. 3. During another conversation in May or June 2018, Dr Danaei admits that they discussed termination, but says he 'did not push her'. He told her that they should write down the pros and cons. When it was put to him, Dr Danaei agreed that he expressed his personal opinion that she should have a termination. He knew he was the father and he did not want to have a baby at that time. Another reason he gave for termination was because of the side effects of the medication she was taking. Dr Danaei denies that he encouraged Patient A to terminate the pregnancy but acknowledges that in that situation it was a conflict of interest and unprofessional to express his personal view. Ultimately, Patient A chose to continue with the pregnancy and Dr Danaei says he respected that decision. 4. The other evidence relating to Dr Danaei's communications with Patient A about terminating the pregnancy is contained in notifications to AHPRA by two general practitioners. The first general practitioner saw Patient A on 3 June 2018 and wrote that: (errors in original) I saw one of my patient, namely [Patient A] on Sunday 03/06/2018. She was patient of our practice till 2017, manily for her mental consultation and workcover consultation for her neck and low back injury. On Sunday, 03/06/2018, she came for her antenatal consultation afterhours in this practice . She had ultrasound report with her which was for the previous week and was consistent with twin pregnancy. She asked some questions about her current medications and potential side effects of medication on pregnancy.I opened product information for medications and explained that one of her medication is in Category C and the other one is in Category B. And I recommended her to see the antenatal clinic and/or Obstetrician and recommended the antenatal screening tests.She reports that she has already seen her Obstetrician, Dr Amrou Metawa, in Gosford, previous week and he explained the same thing and she just wanted to have second opinion. She was a bit stressed when explaining that her current regular GP, recommended her to terminate pregnancy because of her current medications and also as she was not taking Folic Acid. Then she asked me, "is it mandatory for you to report things?" And I answered if regulation says they I need to report mandatory situations I will do that. Then, she reported that she is pregnant of her GP and this is another reason that he asked her to terminate her pregnancy. As far as her GP, Dr Aliyar, is from my country, she said "I want to asked some questions about your cultural and religious conditions, Because Dr Aliyar told me that in his religion, he can not have a partner or wife who is not Muslim, and he can not get married or have a children until he is 40 year old"I explained that I am not in a position to answer this question and it might be better to check personal and cultural conditions with him. 1. In a letter to AHPRA dated 17 July 2018, the first general practitioner wrote that Patient A had advised that "he recommended that she have a termination of pregnancy due to the side effects of her current medications and that she had not been taking folic acid". 2. AHPRA received a notification from a second general practitioner who had seen Patient A on 23 August 2018. In that complaint, the GP stated (errors in original): I saw one of the patients yesterday in my practice in New South Wales. She disclosed that he ( Dr Aliyar Danaei) was having sexual relationship with her. She is now currently 21 weeks pregnant. She states he is the father of the child. She denied any harm to her or to her baby. He wanted her to terminate the pregnancy but then she wanted to keep it. As per the patient, he does not want to take the responsibility of her and the unborn child. 1. On Dr Danaei's own admission, which is supported by the hearsay evidence from the general practitioners, Dr Danaei did not want Patient A to continue with the pregnancy. He gave Patient A at least two reasons for that view. Firstly, he did not want to be a husband and the father of a child and secondly, he was concerned about the side effects of the medication she was taking. We accept that Dr Danaei did not "push" Patient A to terminate the pregnancy, but his communications can be characterised as "advice", especially in relation to the side effects of the medication. We find the factual basis of this particular to have been proven. 2. That finding is not totally consistent with Dr Howle's assumption that Dr Danaei advised Patient A to terminate the pregnancy as "the only option". We accept that he suggested that she write down the pros and cons of termination. We must evaluate Dr Howle's opinion with that inconsistency in mind. 3. In Dr Howle's view, for Dr Danaei to give advice to terminate the pregnancy as the only option is "too narrow and too judgmental". Dr Howle went on: He should have counselled her with respect to her options. His personal involvement, especially as the probable father of the foetus, means that he should not have given any professional advice but referred her to an appropriate health professional for an objective opinion. If he was speaking personally, then he would be entitled to his opinion especially if the relationship was to be a continuing one. ... To give such advice as a medical practitioner when he had a very personal involvement with the patient could be seen as using his professional position in a very controlling fashion. As such his advice is significantly below the standard reasonably expected of a practitioner with equivalent training or experience and attracts my strong criticism. 1. We agree with Dr Howle that while he continued to treat Patient A, Dr Danaei should not have given her any advice about terminating the pregnancy. Giving that advice when he was both the father of the child and Patient A's treating doctor, was improper and unethical. Patient A was an extremely vulnerable patient who had long standing drug and alcohol and mental health issues. In the context of their relationship, it would have been difficult for Patient A to differentiate between Dr Danaei's personal and professional opinion. We find this particular to have been proven. 1.5 Breach of Sexual Boundaries guideline 1. This particular is that by his conduct in particulars 1.1 – 1.4, Dr Danaei breached the Medical Board of Australia's Guidelines - Sexual Boundaries: Guidelines for doctors dated 28 October 2011. Dr Danaei admits this particular. For the reasons we have given, the conduct in particulars 1.1 – 1.3 is in breach of that guideline. We find this particular to have been proven in that respect. Complaint Two – clinical knowledge, judgment or care significantly below the relevant standard 1. This complaint is that Dr Danaei is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that he has engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Dr Danaei admits that he is guilty of unsatisfactory professional conduct. However, he denies the factual allegation in particular 2.1(b), that he had no rationale for ordering the STD and HIV screening. He also denies the factual allegation in particular 2.2, that he failed to advise Patient A of the HIV screening result. Dr Danaei "does not admit" (as distinct from "denies") the allegation in particular 2.4, that he failed to adequately manage Patient A's ongoing mental health issues. 2.1 Screening for STDs and HIV 1. This particular is that on 28 November 2017 and on 17 December 2017, during a consultation, Dr Danaei made an inappropriate arrangement for Patient A to be screened for sexually transmitted diseases (STDs) and the human immunodeficiency virus (HIV) where: 1. Patient A had not requested the STD and HIV screening; and 2. the practitioner had no rationale for ordering the STD and HIV screening. 1. There is no dispute that Patient A did not request the STD and HIV screening. At a consultation on 28 November 2017, after Patient A had told Dr Danaei that she wanted him to be her regular general practitioner, he recommended a general health check including several screening tests. Dr Danaei gave Patient A a request form for several pathology tests including blood glucose, full blood count, ESR, B12 and folate, thyroid, STD screen, lipids and HDL, Iron studies, ANA and Vitamin D. Dr Danaei says that these tests were for general medical screening purposes based on the patient's age and risk factors. He says he does that with all new patients. 2. Dr Danaei says he included the STD screening because he considered Patient A to be a high risk patient. She had not been screened for STDs in recent times, she had a history of drug use and she had a number of tattoos and piercings. Patient A also had a history of a maculopapular rash on her legs and chronic multiple joint pains. Dr Danaei says he wanted to work out if the chronic pain in Patient A's back, neck and shoulder was due to inflammatory arthritis or some kind of chronic tissue disorder. He was aware that reactive arthritis and HIV can cause back pain, multiple joint pains and rash. 3. Dr Danaei acknowledges that he should have recorded the reasons for ordering the tests in his notes but maintains that, in his clinical judgment, it was reasonable to request STD screening. He denies that he ordered the STD test because he intended to have a sexual relationship with Patient A. 4. In the hearing under s 150 of the National Law, the Medical Council questioned Dr Danaei about his motivation for ordering the STD and HIV screening. Dr Danaei told the delegates that it was routine at the practice to order STI (sexually transmitted infection) screening in new patients. Later in the hearing, he stated that the tests were not for screening but because he wished to rule out inflammatory causes for Patient A's spinal pain. However, he was unable to name the STI-related disease that could cause such inflammation. There is no reason given in the clinical notes for ordering those tests. By 28 November 2017, Dr Danaei had Patient A's old records which showed previous STI and HIV tests within the previous 12 months. 5. In its reasons the Medical Council delegates made the following observations: The Delegates queried Dr Danaei requesting an STI screen for [Patient A] on 28 November 2017. Dr Danaei explained that his normal practice is to request blood tests for new patients, particularly where risks are present. [Patient A] was complaining of pain and he was seeking to rule out inflammatory causes for back and joint pain, e.g. Lupus, inflammatory arthritis as well as checking iron levels. Dr Danaei stated he wanted to ensure [Patient A] was not suffering from an STI, for example chlamydia or syphilis, which can cause arthritis. The Delegates later reminded Dr Danaei that, among the STIs, only chlamydia and gonorrhoea cause reactive arthritis, yet he ordered a full STI panel and hepatitis serology. Regarding the Hepatitis B test, Dr Danaei advised he was simply checking on [Patient A's] immunity. When questioned later about [Patient A's] mental health, it was apparent that Dr Danaei had not checked her past medical record at this time. The Delegates expressed deep concern regarding the intent behind Dr Danaei's request for STI screening for [Patient A] in the lead up to the commencement of their intimate relationship, noting that there seemed nothing in [Patient A's] presentations to him or patient records that indicated a particular STI risk. Dr Danaei contended that there was no intent behind his request for the STI screen other than that it was routine for him to do so as part of a history check, and that he would do such testing for any high-risk patients, for example, patients who have tattoos or have had multiple partners. However, he could not identify anything that made [Patient A] 'high risk'. He noted that he believes [Patient A] did not initially have the test. The Delegates noted a second request for STI screening on 17 December 2017, with the addition of HIV serology on this occasion. Dr Danaei suggested the possibility that [Patient A] was the one that had requested this test, noting that she had undertaken a termination of pregnancy less than 12 months prior. There is nothing in the record of this consultation to support this contention. The Delegates highlighted to Dr Danaei that this consultation on 17 December 2017 was in relation to an injured toe and mental health issues and that it appeared to be unusual for an STI screen to be requested again in these circumstances. The Delegates questioned again whether Dr Danaei was, at this stage, contemplating an intimate relationship with [Patient A] and was ordering the screening for this reason. Dr Danaei denied this motivation. He advised that [Patient] A signed the pathology form and took it to pathology and was therefore aware the testing was being undertaken. The Delegates note that informed consent or knowledge of the request cannot be implied by her signature. ... The Delegates further emphasised that in addition to making two requests for the STI screening, there appears to be no record of reasons for the testing being undertaken, and no clinical information supplied to the laboratory or recorded on the laboratory result printouts. Dr Danaei again denied any inappropriate motivation in the ordering of the testing. 1. In oral evidence, Dr Danaei said that when he decided to order the STD screening tests, he did not talk to Patient A about risk factors. He just wanted a full health check. In relation to the HIV testing, he was thinking about back pain, stiffness, rash and chest pain. While those symptoms are not related to HIV, Dr Danaei added that he wanted Patient A to be tested for HIV before her planned trip to Thailand in January 2018. When asked why he ordered a test for Chlamydia when other conditions are more likely to produce symptoms such as stiffness and inflammation, Dr Danaei said that Chlamydia was common. When he ordered the tests in November 2017, he said he just wanted to do screening for a woman of her age. He admitted that he did not take a sexual history. 2. Dr Danaei acknowledges that looking back, ordering these tests looks suspicious. He admits that it would be rare for HIV or Chlamydia to cause a rash or back pain. He added that Patient A had lots of tattoos and piercings but conceded that she had had them for a long time. 3. Dr Howle could not identify any reason for ordering the test on 28 November 2017 and considered Dr Danaei's conduct in doing so to be below the relevant standard. As for the STI and HIV tests ordered on 17 December 2017, Dr Howle noted that by that time Dr Danaei had seen Patient A ten times in the previous four weeks. His record states "complex mental health history. History of drug addiction". He does not note any history of STI or possible HIV exposure, nor any explanation for ordering those tests. As there is no obvious rationale for these tests, Dr Howle's view is that Dr Danaei's conduct is significantly below the relevant standard and attracts his strong criticism. 4. In accordance with Dr Danaei's admissions and Dr H's opinion, we find that Patient A did not request the STD screening and Dr Danaei had no rationale for ordering the tests. While ordering such tests may have been standard practice for all new patients, there was no history or other clinical indication for doing so. In those circumstances, ordering the tests was inappropriate. Dr Howle's opinion was that that conduct demonstrates that Dr Danaei's knowledge or judgment is significantly below the relevant standard. 5. In our view, ordering these tests without a sound clinical reason for doing so, is below the relevant standard, but not significantly below that standard. In reaching that conclusion we have taken into account that there was no suggestion of any harm to Patient A from ordering these tests. Although it was not expressly pleaded in Complaint Two that Dr Danaei had an ulterior motive in ordering the tests, Dr Danaei was on notice that that was the inference the Commission sought to draw. In the circumstances of this case, to be significantly below the relevant standard, we would have to find that Dr Danaei ordered the tests because he anticipated that he may have a sexual relationship with Patient A. 6. The circumstances which point in favour of making that inference are: there was no sound clinical reason for ordering the tests; Dr Danaei made no record of the reasons for the tests; on 27 November 2017 Dr Danaei was in possession of Patient A's previous clinical record but did not look at those records. Dr Danaei gave several possible reasons for ordering the tests including that there were clinical justifications, it was standard practice for new patients at his medical centre, Patient A requested the HIV test and Patient A was travelling to Thailand. 7. The timing of the tests is also relevant. Dr Danaei first ordered the tests on 28 November 2017, the day Patient A told him that she wanted him to be her general practitioner. In the nine days between 19 November 2017, when Patient A first consulted Dr Danaei, and 28 November 2017, when he ordered the blood screening tests, there had been five consultations. In his statement, Dr Danaei says that it was at one of the consultations in the last couple of weeks of December 2017 that Patient A suggested they meet socially. However, it was only after she gave him a piece of paper with her phone number on it in early January 2018 that Dr Danaei contacted Patient A. Dr Danaei does not give evidence of any interest in a social or sexual relationship by either of them before that time. 8. We are not satisfied that an inference can be drawn that Dr Danaei's motivation in ordering the STD tests on 28 November 2017 or the HIV test on 17 December 2018 was that he was interested in a sexual relationship with her. He denies that allegation. While there are several factors which support that inference, they are not sufficiently strong for us to be reasonably satisfied that that was his motivation. It may be the case, as Dr Danaei suggests, that ordering STD screening was his standard practice for new patients, especially those with a history of drug use. The request for HIV testing is more suspicious, but again, there is no evidence of any interest by either party in a social or sexual relationship in mid-December 2017. 9. This particular is not proven. 2.2 Failing to advise Patient A of the results 1. This particular is that on or about 2 January 2018, on receiving the HIV screening result, Dr Danaei failed to advise Patient A of the HIV screening result. Dr Danaei denies this particular. 2. In the reasons for decision following the s 150 hearing, the Medical Council wrote that: The Delegates advised that the paperwork indicates that blood was collected for the STI screen on 2 January 2018 and queried whether the results were imparted to [Patient A]. Dr Danaei advised that the usual practice would be to only contact the patient with any abnormal or urgent results. Otherwise the results would be provided to the patient at their next appointment. Dr Danaei conceded that there is no record in [Patient A's] patient files that he discussed the test results with her. 1. Dr Danaei wrote in his statement that Patient A's STD and HIV pathology results were reported on 2 January 2018. He says the standard procedure at the time was to place normal results in the patient's file, with the exception of HIV results which were to be discussed with the patient in person. The medical practice where Dr Danaei was working has a software program called Appointuit. On 4 January 2018, Dr Danaei used that program to request an administrative assistant to send a non-urgent SMS text message to Patient A. 2. In his statement, Dr Danaei said he is sure that he informed Patient A of her blood tests results although he did not record doing so in her medical records. There was a consultation on 13 January 2018 and Dr Danaei says in his statement that that is when he would have discussed the results. Dr Danaei repeated that evidence in his oral testimony. He said he is sure he informed Patient A of the results because he remembers doing so. He acknowledges that he should have recorded that discussion in her medical records. 3. We accept Dr Danaei's evidence that it was his normal practice to advise patients of a HIV test result at a consultation. We also accept his evidence that while he does not remember the date, he does remember advising Patient A of the results of the HIV test. It is likely that that occurred privately at the end of the workers compensations consultation on 13 January 2018. The failure to record that advice in the notes does not persuade us that he did not advise Patient A of the result. The factual basis for this particular is not proven. 4. According to Dr Howle, once the test result comes back, it is standard practice to ensure the patient is advised of the result. Not to do so, particularly for a HIV test, is below significantly below the relevant standard and attracts his strong criticism. We agree with that opinion but as Dr Howle has assumed that Dr Danaei did not advise Patient A of the test result, his opinion on this issue is not relevant. 2.3 Inadequate information in letter of referral to psychiatrist 1. This particular is that on 10 April 2018, when Dr Danaei referred Patient A to a psychiatrist, he failed to include information in the referral letter about Patient A's hospitalisation, the symptoms of Patient A's condition or the reason she needed a psychiatric opinion with respect to her driver's licence. Dr Danaei admits this particular. 2. According to Dr Howle, it was reasonable to refer Patient A to a psychiatrist following her hospitalisation for a 'mental health breakdown'. His criticism is that the referral letter does not mention the hospitalisation, any symptoms of Patient A's condition, or the reasons she also needed a psychiatric opinion with respect to her driver's licence. 3. The factual basis for this particular is proven. We agree with Dr Howle that failing to include this kind of fundamental information in the referral letter demonstrates that Dr Danaei's knowledge or judgment is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 2.4 Failing to adequately manage Patient A's mental health issues 1. This particular is that between about January 2018 and about 30 May 2018, Dr Danaei failed to adequately manage Patient A's ongoing mental health issues. Dr Danaei did not admit this particular in the Reply but in oral evidence he said he did admit it. It appears that Dr Danaei does not appreciate the legal distinction between not admitting something and denying it. In any case, he acknowledges that he failed to adequately manage Patient A's ongoing mental health care. 2. Patient A had severe depression and borderline personality disorder. Dr Danaei admits that he should have treated her mental health and her pain from an injury in July 2017. 3. Dr Danaei's notes in relation to a consultation on 17 December 2017, record the following (words in brackets added): Mental health consultation Complex mental history History of drug addiction She stopped taking . Il (illicit) drugs in 2007 She is smoking THC (cannabis) every day now She was diagnosed with borderline personality Zoloft was prescribed by previous GP has helped her a lot She lives with her parents She needs some psychotherapy 1. On the same day, 17 December 2017, Dr Danaei printed out a referral letter to a psychology practice (Strength Psychology). On 31 January 2018, Dr Danaei printed out a referral letter asking the psychologist for an opinion and management of "borderline personality disorder and mixed depression, somatic pain, and pain counselling and psychological support under workers compensation cover". Dr Danaei listed Patient A's current medications and past mental and physical history. Dr Danaei could not remember why he wrote two letters of referral to Strength Psychology but thought he may have wanted to add a reference to psycho-somatic pain and pain counselling. 2. In a clinical note dated 27 February 2018, Dr Danaei recorded that Patient A had continued to see the psychologist. In oral evidence Dr Danaei said that Patient A had told him she had a good rapport with the psychologist. On 12 March 2018, Dr Danaei recorded that Patient A's mood had improved and that she was doing well with the pain counselling the psychologist was providing. It was Dr Danaei's evidence that he suspected that Patient A's pain may be psycho-somatic and also attributable, to some extent, to her inactivity. He changed her prescription from Zoloft to Cymbalta which he said is known to help with psycho-somatic pain. 3. According to Dr Danaei, Patient A booked a consultation with him on 10 April 2018 without his knowledge. At that consultation Patient A mentioned that she had had a 'mental health breakdown' and had been admitted to Wyong Hospital. He admits that Patient A's disclosure of a mental breakdown should have caused him significant concern. Dr Danaei did not request a copy of the discharge summary until a week later and did not appreciate at the time that Patient A had had suicidal thoughts. As soon as he found out the detail of her hospital admission, he wrote an urgent referral to a psychiatrist. Dr Danaei acknowledges that he had lost objectivity by that stage. 4. Dr Danaei says he did not want to press Patient A to disclose any more information in the 10 April 2018 consultation because it was a scheduled workers compensation appointment. An agent from the insurer was observing and Patient A appeared to be "happy" and "normal" at the consultation. He admits that he should have immediately referred Patient A to another general practitioner, but says he was afraid that he would cause her more harm. He was confused and did not know what to do. Dr Danaei says he asked Patient A to book another appointment to discuss her mental health. 5. There were two further consultations after Dr Danaei knew Patient A was pregnant. Dr Danaei appreciates that there is a conflict of interest in this situation. 6. On 9 May 2018 Dr Danaei recorded that he had booked an appointment for a psychiatric review and fitness to drive assessment at the end of the month. He added that she "can not afford it". Dr Danaei asked the psychiatrist whether it was possible for him to bulk bill. 7. Dr Howle gives the following history. Dr Danaei first saw Patient A on 19 November 2017. The records note "anxiety issues". There are no other details such as current symptoms or medications or previous management. Dr Howle's review of the records leads him to the opinion that "while there is some evidence of Dr Danaei referring to appropriate specialist practitioners, there is little of Dr Danaei involving himself in Patient A's mental health problems other than occasional prescriptions, and no long term management plan. He considers Dr Danaei's conduct to be significantly below the relevant standard. 8. Based on the clinical notes and Dr Danaei's admissions, we agree with Dr Howle's opinion that Dr Danaei failed to adequately manage Patient A's ongoing mental health issues and that that conduct demonstrates that his judgment and the care he exercised was significantly below the relevant standard. Complaint Three – record keeping 1. This complaint is that Dr Danaei is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he has contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 ("the 2016 Regulation"). Under cl 1(2)(a) of Schedule 4 to the 2016 Regulation, a "record" must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), 3.1 Failing to record information about Patient A's diagnosis or treatment 1. Dr Danaei failed to document information known to him, relevant to Patient A's diagnosis or treatment, contrary to Sch 4, cl 1(2)(a) of the 2016 Regulation, including: 1. on 28 November 2017, sufficient information concerning the reason he arranged for a STD screening of Patient A; 2. on 17 December 2017, sufficient information concerning the reason he arranged for a STD screening and a HIV screening of Patient A; 3. on 10 April 2018, information concerning the cause of Patient A's breakdown and admission into the Mental Health Acute Care Team at Central Coast Community Health; 4. on or about April 2018, information concerning whether Patient A attended the psychiatrist referrals. 1. Dr Howle's view is that: Dr Danaei's medical records are somewhat difficult to follow as there is not always a clear demarcation between her Workers compensation problems and her ongoing mental issues. 1. However, Dr Howle considered that, in relation to the workers compensation consultations, the notes were well documented. He added that: The ongoing management of [Patient A's] mental health issues, response to medications and to counselling is more confusing, with no well documented proven diagnoses or a plan of management. His advice with respect to her mental health issues as documented is below the standard reasonably expected of a practitioner with equivalent training or experience. 1. Dr Danaei admits this particular and we find it to have been proven. Complaint Four – professional misconduct 1. Dr Danaei is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: ii. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or iii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 1. Complaints One, Two, and Three and the particulars thereof are repeated and relied on individually and cumulatively. Dr Danaei admits he is guilty of professional misconduct. 2. Dr Danaei knew it was unethical to have a sexual relationship with a patient. Patient A was a particularly vulnerable patient because of her drug and alcohol use and her serious mental health issues. Dr Danaei had had previous sexual relationships with women in Iran, but not in Australia. We accept his evidence that Patient A instigated a social and sexual relationship and that initially he declined her invitations. However, he then engaged in a social and sexual relationship with Patient A over a period of about four months while still seeing her as a patient. He attempted, in a half-hearted way, to extract himself from that relationship but failed to do so. He had unprotected sex with Patient A which resulted in them conceiving a child. 3. The concurrence of the therapeutic and sexual relationship led to significant conflicts of interest between Dr Danaei's role as a doctor and his personal interests. He advised Patient A to terminate the pregnancy while they were in a therapeutic relationship. He did not manage her serious mental health issues as well as he should have. We appreciate that he did not want to make the situation worse for Patient A, but by continuing the relationship, Dr Danaei was not prioritising Patient A's welfare. 4. The proven particulars of Complaint One are sufficient to support a finding that Dr Danaei has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation if he was still registered. Orders 1. Dr Danaei has engaged in unsatisfactory professional conduct. 2. Dr Danaei has engaged in professional misconduct. 3. Dr Danaei is to file and serve any further evidence on which he intends to rely for the Stage 2 hearing by 3 December 2021. 4. The Stage 2 hearing is listed for one day on 14 December 2021. ********** 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 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: 19 November 2021