Health Care Complaints Commission v Balafas (No 4) [2021] NSWCATOD 209

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Balafas (No 4) [2021] NSWCATOD 209 Hearing dates: 10 – 14 May 2021 and on the papers after 17 November 2021 Date of orders: 14 December 2021 Decision date: 14 December 2021 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr K Smartt, Senior Member Dr S Cowap, Senior Member Honorary Associate Prof P Macneill, General Member Decision: (1) Dr Balafas has engaged in unsatisfactory professional conduct and professional misconduct in relation to Patient A. (2) Dr Balafas has engaged in unsatisfactory professional conduct in relation to Patient B. (3) Under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), Dr Balafas is to pay the Health Care Complaints Commission's costs as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: HEALTH — professional registration and discipline — professional misconduct — whether conduct improper and unethical — whether conduct amounts to professional misconduct – where medical practitioner denies allegations of sexual misconduct – findings of fact based on credibility of medical practitioner and patient Legislation Cited: Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Health Care Complaints Commission v Balafas (No 3) [2021] NSWCATOD 176 Health Care Complaints Commission v Chen (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3 Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Marino [2016] NSWCATOD 37 Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Health Care Complaints Commission v Sultan [2017] NSWCATOD 47 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Texts Cited: New South Wales Medical Board, 'Code of Professional Conduct' (2008) Australian Medical Association, 'Patient Examination Guidelines' (2012) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) John Balafas (Respondent) Representation: Counsel: R Mathur (Applicant) P Dwyer (Respondent)