Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Danaei (No 2) [2021] NSWCATOD 216 Hearing dates: 14 December 2021 Date of orders: 24 December 2021 Decision date: 24 December 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. Under section 149C(1) and (4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), if the respondent was still registered as a medical practitioner, the Tribunal would have cancelled his registration. 2. Under section 149C(4)(b) of the National Law, the respondent is disqualified from being registered in the medical profession for a period of one year from the date of these orders. 3. Under section 149C(4)(c) of the National Law, the Medical Board of Australia is required to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. 4. Under clause 13(1) of Schedule 5D to the National Law, the respondent is to pay the costs of the applicant of the Stage 1 and the Stage 2 proceedings. Catchwords: OCCUPATIONS – medical practitioners – misconduct and discipline – where practitioner no longer registered – powers of Tribunal to suspend or cancel registration and to impose conditions Legislation Cited: Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Danaei [2021] NSWCATOD 188 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 Lee v Health Care Complaints Commission [2012] NSWCA 80 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Sexual Boundaries; guidelines for doctors, Medical Board of Australia, 28 October 2011 Thomas G Gutheil, MD "Boundary Concerns in Clinical Practice" (2008) 25 Psychiatric Times 1 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. On 19 November 2021 we found that Dr Danaei had engaged in unsatisfactory professional conduct and professional misconduct: Health Care Complaints Commission v Danaei [2021] NSWCATOD 188 (Stage 1 decision). These reasons concern the orders we should make. 2. The main complaint against Dr Danaei was that between January 2018 and May 2018, he had a personal and sexual relationship with a patient, Patient A. Patient A was 33 years old at the time. She had a history of addiction to marijuana and a diagnosis of borderline personality disorder and depression. Between 19 November 2017 and 30 May 2018, Patient A consulted Dr Danaei on 28 occasions. Dr Danaei admits having sex with Patient A on four or five occasions and protected sex with Patient A on 12 April 2018. That was the occasion on which their child was conceived. 3. Dr Danaei's registration as a medical practitioner in Australia has expired. He is currently working as a general practitioner in Iran. As he is no longer registered, we need to decide whether, if he was still registered, we would have suspended or cancelled his registration: Health Practitioner Regulation National Law (NSW) (National Law), s 149C(4)(a). 4. The Health Care Complaints Commission (HCCC) submits that cancellation would have been the appropriate decision. It seeks an order that we disqualify Dr Danaei from being registered for two years: National Law, s 149C(4)(b). Dr Danaei accepts that his misconduct was sufficiently serious to warrant a period during which he cannot practise. However, he submits that suspension, rather than cancellation, would have been the appropriate decision. 5. The Stage 1 decision contains all the Tribunal's reasoning and findings about Dr Danaei's conduct and should be read in conjunction with these reasons. We have decided that cancellation for one year would have been the appropriate decision. We have also decided that Dr Danaei is disqualified from being registered for one year from the date of this decision. Dr Danaei's 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. He was working long hours and was very lonely. 2. Dr Danaei intends to return to Australia and continue to work as a medical practitioner if he is permitted to do so. He apologises unreservedly for his conduct. The complaints and the Tribunal's findings 1. Complaint One is that Dr Danaei is guilty of unsatisfactory professional conduct under s 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. That complaint concerns Dr Danaei having a personal and sexual relationship with Patient A. He admitted that he is guilty of unsatisfactory professional conduct, although he denied particular 1.4, of Complaint One, that he advised Patient A to terminate the pregnancy. 2. We found this to have been proven. It was "improper and unethical" conduct and in breach of the guideline on Sexual Boundaries, "Sexual Boundaries; guidelines for doctors", 28 October 2011 (Sexual Boundaries guideline). At [37] we came to the following conclusion: "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." 1. The conduct amounted to unsatisfactory professional conduct as defined in the National Law. 2. Dr Danaei denied that he "advised" Patient A to terminate the pregnancy. Despite that denial, when giving oral evidence in the Stage 1 hearing, 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. He suspected he was the father and he did not want to have a baby at that time. Another reason he gave to Patient A as a reason for terminating the pregnancy was because of the possible side effects of the medication she was taking. Dr Danaei 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. 3. In accordance with Dr Danaei's evidence, our finding was that Dr Danaei did not "push" Patient A to terminate the pregnancy. However, his communications can be characterised as "advice", especially in relation to the possible side effects of the medication. We came to the following conclusion at [51] of the Stage 1 decision: "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. In oral evidence at the Stage 2 hearing, Dr Danaei repeated that he did not "push" Patient A to have a termination. He did not threaten her in any way. He just told her his personal opinion. The conversation took place at his home, not in the consulting room. He agrees he should never have had that conversation. 2. 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 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 admitted that he was 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. We were not satisfied that an inference could 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 Patient A. We found particular 2.1(b) not to have been proven. 3. Dr Danaei also denied the factual allegation in particular 2.2, that he failed to advise Patient A of the HIV screening result. We found that particular not to have been proven. 4. Dr Danaei did not admit the allegation in particular 2.4, that he failed to adequately manage Patient A's ongoing mental health issues. When referring Patient A to a psychiatrist on 10 April 2018, 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. 5. Based on his clinical notes, Dr Danaei's admissions and the expert evidence, we found that Dr Danaei failed to adequately manage Patient A's ongoing mental health issues. That amounted to unsatisfactory professional conduct. 6. Complaint Three relates to Dr Danaei's record keeping. The HCCC complained that Dr Danaei engaged in unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he had contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW). Dr Danaei admitted this particular. We found that he failed to document information known to him, relevant to Patient A's diagnosis and treatment. Dr Danaei admitted this particular and we found it to have been proven. 7. Complaint Four is that Dr Danaei engaged in professional misconduct under s 139E of the National Law. Dr Danaei admitted that particular. He knew it was unethical to have a sexual relationship with a patient. We came to the following conclusion at [96]-[98] of the Stage 1 decision: ". . . Patient A was a particularly vulnerable patient because of her drug and alcohol use and her serious mental health issues… We accept [Dr Danaei's] 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. 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. 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." Powers of Tribunal when practitioner is no longer registered 1. In certain circumstances, the Tribunal has power to cancel, suspend or impose conditions on a person's registration even where the person is no longer registered. 2. The Tribunal has power to cancel or suspend a registered practitioner's registration if the Tribunal is satisfied that the practitioner is guilty of professional misconduct: National Law, s 149C(1)(b). Section 149C(4) provides for the situation where the person is no longer registered: (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. 1. If the Tribunal decides that it would have cancelled the person's registration, the Tribunal may disqualify the person from being registered in the health profession either for a specified period or until specified conditions have been complied with. In those circumstances, the Tribunal must also make an order requiring the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register. Under s 149E, the effect of a disqualification decision is that the person "cannot make an application for registration as a health practitioner unless the Tribunal has made a reinstatement order under section 163B". 2. Where the Tribunal decides that if the person were still registered it would have suspended the person's registration, the person may apply to the National Board for registration after the period of suspension expires. That application must be made in accordance with Part 7 of the National Law. There is no need for the person to apply to the Tribunal for a reinstatement order. 3. Section 176D sets out the effect of suspension: (1) If a person's registration as a health practitioner or student is suspended under this Law, the person is taken during the period of suspension not to be registered under this Law, other than for the purposes of this Part. Note— This subsection is a Health Practitioner Regulation National Law provision (see section 207 of the National Law). (2) Accordingly, a reference in any other Act or instrument to a registered health practitioner does not include a reference to a health practitioner whose registration is suspended. (3) When a suspension imposed under this Law ends, the person's rights and privileges as a registered health practitioner or student in the health profession are revived, subject to— (a) any other action taken by the Council for the profession under Subdivision 7 of Division 3 of Part 8 or Division 4 of Part 8; or (b) any order of the Tribunal on a complaint referred to the Tribunal. 1. In relation to conditions being imposed on re-registration, s 149A(3) provides that: (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only— (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered. 1. Emmett JA considered these provisions in Health Care Complaints Commission v Do [2014] NSWCA 307 at [57]: "The Tribunal made orders that Dr Do be prevented from being registered unless she completes certain educational courses and undergoes certain counselling before applying for registration. At that time, Dr Do was no longer registered as a medical practitioner. The Tribunal also ordered that certain practice conditions be imposed when Dr Do is registered. The orders were made under s 149A of the Health Practitioner Regulation National Law (NSW) (the National Law). Under that provision, the Tribunal was authorised to do any one or more of a number of things in relation to a registered health practitioner, including the following: impose such conditions as it considers appropriate on the practitioner's registration; order the practitioner to seek and undergo medical or psychiatric treatment or counselling; and order the practitioner to complete an educational course specified by the Tribunal. If a health practitioner is no longer registered, an order or direction may still be given under s 149A, but it has effect only to prevent the practitioner from being registered unless the order is complied with or to require the conditions concerned to be imposed when the practitioner is registered." 1. In summary, if there has been a finding of professional misconduct (or any of the Tribunal is satisfied of any of the other matters in s 149C(1) of the National Law), the Tribunal has power to suspend a health practitioner's registration for a specified period or cancel the health practitioner's registration. If the person is no longer registered, the Tribunal may decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration. 2. If the Tribunal would have cancelled the person's registration, the Tribunal may make an order declaring that it would have come to that decision: National Law, s 149C(4)(a). If it comes to the view, the Tribunal may decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with: National Law, s 149C(4)(b). The effect of a disqualification decision is that the person "cannot make an application for registration as a health practitioner unless the Tribunal has made a reinstatement order under s 163B": National Law, s 149E(1). The Tribunal must also require the relevant National Board to record the fact that the Tribunal would have cancelled the person's registration. 3. If the Tribunal would have suspended the practitioner's registration, the Tribunal may make an order declaring that it would have come to that decision: National Law, s 149C(4)(a). The effect of suspending a practitioner's registration is that the person is taken, during the period of suspension, not to be registered, other than for the purposes of Part 8 of the National Law: National Law, s 176D(1). The person's rights and privileges as a registered health practitioner revive following completion of the suspension period: National Law, s 176D(3). For a person who is no longer registered, that means that the person may apply to the National Board for registration after any notional period of suspension expires. 4. As to the making of orders under s 149A including the imposition of conditions, the Tribunal has power to make such orders even if the person is no longer registered. However, as Emmett JA said in Health Care Complaints Commission v Do [2014] NSWCA 307 at [57] those orders only have effect "to prevent the practitioner from being registered unless the order is complied with or to require the conditions concerned to be imposed when the practitioner is registered". 5. When exercising any functions under the National Law, "the protection of the health and safety of the public must be the paramount consideration.": National Law, s 3A. The Tribunal should have regard to the paramount protective purpose and objective of the National Law directed to the community benefit, including indirectly the public interest, the standing of the medical profession and the need to maintain the public's confidence in the high standards of the profession. Further, there is a need for deterrence or encouragement of other medical practitioners to recognise and accept the importance of complying with the professional standards applicable to the medical profession. 6. In Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 (27 November 2015), the Tribunal concluded at [42]-[46]: "The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions. In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection": (a) any need to protect the public against further misconduct by the practitioner; (b) the need to protect the public through general deterrence (of other practitioners); (c) the need to protect the public by reinforcing high professional standard and denouncing transgressions; (d) the maintenance of public confidence in the profession; (e) the desirability of making available to the public any special skills possessed by the practitioner. This statement was approved in Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [24] applying the National Law." 1. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA, with McFarlan JA and Tobias AJA agreeing, at [20]-[21] considered the exercise of powers by Tribunals to make protective orders and concluded: "Essential to a proper assessment of a Tribunal's discretionary judgement in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1 The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2 That is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order. 3 The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 1. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of 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. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." 1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher JA, with whom the other members of the New South Wales Court of Appeal agreed, reflected the first four of those factors when he stated: "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." Orders sought 1. The HCCC submits that given the gravity of the conduct and Dr Danaei's denial of some of the conduct, the appropriate order for the Tribunal to make is disqualification of his registration for two years. That would enable Dr Danaei to reflect on his prior conduct and to be in a position to demonstrate fitness, reformation of character and insight in any future re-registration application. The HCCC submits that the Tribunal should be satisfied that the proposed orders are necessary to protect the public, are in the public interest and there is a need for general deterrence in this matter. 2. The HCCC seeks the following orders: "(i) An order pursuant to section 149C(1) and (4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), that if the respondent was still registered as a medical practitioner, the Tribunal would have cancelled his registration; (ii) An order pursuant to section 149C(4)(b) of the National Law, that the respondent is disqualified from being registered in the medical profession for a period of two years from the date of these orders; (iii) An order pursuant to section 149C(4)(c) of the National Law, that the Medical Board of Australia is required to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board; (iv) An order pursuant to section 149C(7) of the National Law, that an application for review of orders 2 and 4 may not be made until two years from the date of these orders; (v) An order pursuant to clause 13(1) of Schedule 5D to the National Law, that the respondent is to pay the costs of the applicant of the proceeding." 1. Dr Danaei accepts that his misconduct was sufficiently serious to warrant a period during which he cannot practice. However, he submits that suspension, rather than cancellation, is appropriate. Given the low wages in Iran, Dr Danaei is unlikely to have the resources to apply to the Tribunal for a reinstatement order following a disqualification decision. He says there is a public interest in the fact that he is a capable doctor prepared to work in areas of unmet need. As well, if he were able to move back to Australia, he would be able to support his daughter both emotionally and financially. 2. Our understanding is that Dr Danaei seeks the following orders: "(i) An order pursuant to section 149C(1) and (4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), that if the respondent was still registered as a medical practitioner, the Tribunal would have suspended his registration for (a period); (ii) An order under section 149A(3) of the National Law requiring conditions to be imposed when the respondent is registered; (iii) An order pursuant to section 149C(4)(c) of the National Law, that the Medical Board of Australia is required to record the fact that the Tribunal would have suspended the respondent's registration in the National Register kept by the Board;" 1. As a starting point, Dr Danaei says that the conditions which the Medical Council imposed on 21 November 2019 are appropriate. In summary, they included that he work in a group practice, be subject to so called "category B" supervision and that he not consult, examine, prescribe, treat or perform any procedures on any female patient. It was submitted that a condition that Dr Danaei have a mentor would also be appropriate. 2. The HCCC is opposed to an order that Dr Danaei's registration would have been suspended and any requirement that certain conditions be imposed when Dr Danaei is registered. The reason for that submission is that the Tribunal would have to speculate as to the conditions that would be sufficiently protective in the future. Consideration Seriousness of conduct and need for public confidence in medical profession 1. Entering into a personal and sexual relationship with a patient who has significant mental health and addiction issues has the potential to harm the health and safety of the patient and lessen the confidence the public has in the medical profession. 2. As to the seriousness of this boundary violation, Dr Danaei said that it was not as if he was 'sleeping around'. This was a single instance. We acknowledge that there was only one patient involved and the conduct continued for only a few months. Nevertheless, Patient A was a vulnerable patient with mental health and addiction issues. Dr Danaei continued to treat her for mental health and workers compensation matters. In the context of psychiatrists crossing boundaries, Thomas G Gutheil, MD said in the Psychiatric Times, article "Boundary Concerns in Clinical Practice" 1 April 2008: ". . . although the majority of boundary transgressions are initiated by patients, only the therapist can be held liable for the transgression and considered unethical or (in some jurisdictions) criminal. An extension of this axiom eliminates controversy over who is at fault: it is always the professional's duty to refrain from initiating and being a party to a boundary violation." 1. Dr Danaei acknowledges his misconduct was sufficiently serious to warrant a period during which he is unable to practise in Australia. Boundary crossing of this significance is totally unacceptable and there is a public interest in notionally suspending or disqualifying Dr Danaei from practising for a period of time. Insight 1. After he started the relationship with Patient A, he said he did not know what to do. He was afraid of terminating the relationship because of the fragile state of Patient A's mental health. He got himself into a situation that he should never have been in and did not know how to extract himself. At the time of these events in 2015, Dr Danaei says he was too embarrassed to speak to colleagues about his predicament. 2. In his written statement, Dr Danaei said that he accepted the findings made by the Tribunal. He was "very ashamed" of his conduct and "deeply regrets" the harm he caused to Patient A. He added: "33. At the time I engaged in a personal and sexual relationship with Patient A, I was aware she had mental health issues. I realise that her mental health issues made her a particularly vulnerable patient, and that it exacerbated the imbalance of power between us. I did not give enough consideration to Patient A's vulnerabilities. 34. With the benefit of hindsight, I can now see that my judgment was impaired at the time. This may have been due to the state of my own mental health. I did not adequately consider the extent of Patient A's vulnerability at the time, which should have been obvious from her presentation and records. My social circumstances were so disordered at the time and I was so focussed on my own feelings and needs that I did not pay attention to the impact of my actions on Patient A. … 39. I have spent a lot of time reflecting on my conduct with the assistance of the courses I have completed, and I now have a much better understanding of the issues that led me to becoming involved in a personal and sexual relationship with Patient A. I was very lonely and depressed at the time and I was flattered by the attention that Patient A appeared to be showing me. I did not take Patient A's vulnerability into account or my professional responsibilities. Regrettably, I allowed my personal needs and desires to determine my conduct to the detriment of Patient A." 1. Dr Danaei repeatedly said in oral evidence that he had learnt his lesson. He read the Tribunal's decision two weeks ago and accepts the decision. He does not want to justify himself and accepts that what he did was totally wrong. He then qualified that statement to some extent by denying being ignorant about Patient A's mental breakdown or careless in the way he managed her mental health. 2. The HCCC submits that Dr Danaei's oral evidence suggests that he is not genuinely remorseful and reflective. It was suggested that he is not able to properly reflect on how Patient A would have perceived his advice that she should terminate the pregnancy. Counsel for the HCCC characterised Dr Danaei's responses as defensive, 'superior' and lacking in empathy for Patient A's situation. We do not have the same impression. It is understandable the Dr Danaei is worried about his own professional reputation. That does not mean that he does not have insight into the impact of his behaviour on Patient A. 3. It was to Dr Danaei's credit that he did not seek to excuse or justify his behaviour to any significant extent. He acknowledged that he knew, even before starting the relationship, that it was wrong to continue treating Patient A. 4. As to the extent to which Dr Danaei would seek guidance from colleagues in the future, he said that he collaborates with the doctors at the practice in Iran on management and administrative issues. However, there is only ever one doctor rostered on at a time so the opportunity for discussions and collaboration appears limited. Dr Danaei would obviously benefit from practising in a group practice if he does regain registration. Dr Danaei's emotional and mental health 1. Dr Danaei experienced depression and anxiety when studying for exams in Iran. He took anti-depressant medication for about six months and referred himself to a psychiatrist. After he moved to Australia, he missed his family and struggled to form a network of social relationships. 2. In July 2017, Dr Danaei referred himself to a psychiatrist, Dr Sian Ong. He 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. Dr Ong prepared a report dated 10 October 2019. In his opinion, Dr Danaei has a "significantly enhanced awareness and insight of clinical interpersonal boundary issues as well as interpersonal skills to manage potential complex situations in the future". Dr Ong expressed the opinion that he was fit to practice as a medical practitioner. 4. In May 2019, Dr Danaei completed an online course conducted by the Black Dog Institute – "Mental health Self-Care for Doctors". He says that as after participating in this course he is more aware of the signs that he is becoming depressed. 5. In August 2019, Dr Ong referred Dr Danaei to a clinical psychologist, Mr Brian Kearney. Mr Kearney worked with Dr Danaei to improve his interpersonal boundaries and interpersonal skills, with a focus on workplace interactions. Mr Kearney undertook cognitive behaviour therapy including role plays to practise responding to difficult interactions with patients. He participated actively in this therapy and, after five sessions, Mr Kearney recorded a marked improvement in Dr Danaei's levels of depression, anxiety and stress. 6. Dr Danaei says he benefitted from treatment by Mr Kearney in 2019. Mr Kearney helped him understand and address aspects of his personality that impacted on his poor decision making. Mr Kearney also helped him with assertiveness training and education in relation to interpersonal boundaries. Dr Danaei is confident that he can communicate appropriately even with patients who may be seeking a social or sexual relationship. He identified triggers to be aware of including patients giving expensive gifts, asking for medication outside the consulting room, approaching him in social situations or propositioning him. Having engaged with psychologists and completed online courses, Dr Danaei is confident of his ability to recognise and respond appropriately to boundary crossing issues 7. Dr Danaei is currently working a 16 hour day, three days a week at a clinic in Tehran. His social life is very limited, partly because of COVID restrictions. He is spending time working as a volunteer providing medical and psychological assistance to Afghan refugees. He says he finds this work very satisfying. Dr Danaei is on a waiting list to see a psychologist online in Iran, but says that depression is not currently a significant issue for him and he is not taking any medication. 8. As to the risk of social isolation if he returns to Australia, Dr Danaei did not have a strategy for avoiding that problem in the future. He did say that if he moved back to Australia, he would have his daughter to love and support. He is aware of the need for work/life balance, but says he loves his job and gets a lot of satisfaction from appreciative patients. He knows he needs to reduce his working hours. 9. Despite Dr Danaei saying that depression is not currently a significant issue for him, we observed that he was more emotional when giving oral evidence than he had been during the Stage 1 hearing. He said he has experienced the stress of what he has done "every day, every minute, every night". We take into account that it was 3 am in Iran, and that while he speaks and understands English well, it is not his first language. It is understandably confronting and stressful to relive mistakes that have had such a dramatic effect on his life. Nevertheless, there was no expert evidence as to Dr Danaei's current mental state. That remains an area of concern as to Dr Danaei's risk of further boundary violations. Competence and knowledge 1. Dr Danaei has undertaken the following courses: "(i) Avant "Medical Records: Chapter 1 - Documentation" dated 12 September 2021; (ii) Avant "Medical Records: Chapter 2 - Legal Requirements" dated 12 September 2021; (iii) Medcast Webinar 8 "Online Mental Health Self Care for Doctors" dated 18 May 2019; (iv) Avant "Managing boundary Issues for patients with mental health issues" dated 15 May 2019; (v) Avant "Ethics, obligations, knowledge and skills: Professionalism in medicine" dated 16 May 2019; (vi) AMA Code of Ethics dated 16 May 2019; (vii) Centre for Professional Development "Professional Boundaries - A Health Professional's Guide" dated 17 May 2019; (viii) Course Genius "Professional Boundaries" dated 18 June 2019." 1. These are highly relevant courses and we commend Dr Danaei for undertaking them. As to his general competence, Dr Danaei relies on a reference from Ms Julie Abdilla, the CEO of Reliance Health where he worked in Australia from April 2018 to August 2019. She describes Dr Danaei as "an excellent GP, always following up with his patients, dedicated to all his patients' wellness and professional in his attendance". Dr Danaei urged us to consider his good service especially diagnosing and treating patients with cancer. He was proud of the fact that patients with cancer come to see him and are comfortable speaking about their concerns. Relationship with his daughter 1. If he returns to Australia, Dr Danaei is keen to strengthen his relationship with his daughter and support her emotionally and financially. While that motivation is understandable and to be commended, it is not something that can materially affect our decision. We must focus on the factors we have mentioned including the seriousness of Dr Danaei's past conduct, his insight into that conduct and the extent to which suspension or disqualification is necessary to maintain public confidence in the medical profession. Financial situation and working in area of unmet need 1. We appreciate that Dr Danaei is now working in Iran for much lower real wages than he could earn in Australia. If we decide that we would have suspended, rather than cancelled, Dr Danaei's registration, he will avoid the legal costs of applying to the Tribunal for a reinstatement order. He could apply directly to the National Board for registration. However, Dr Danaei's financial situation cannot materially affect our decision. There is no evidence of Dr Danaei's preparedness to work in an area of unmet need. In any case, that would be a minor consideration. Conclusion 1. Dr Danaei is a competent practitioner who has shown insight. Despite our doubts as to his emotional and mental well-being, we are satisfied that the risk of him violating sexual boundaries in the future is low. Nevertheless, the seriousness of the conduct, the need for general deterrence and the maintenance of confidence in the medical profession means that, if he were still registered, we would have cancelled his registration. We disqualify him from being registered in the medical profession for a period of one year from the date of these orders. As we have decided that we would have cancelled Dr Danaei's registration, he needs to apply to the Tribunal for reinstatement after the expiration of the 12 month period. It is at that stage that the Tribunal would consider whether, if he is reinstated, Dr Danaei's registration should be subject to conditions. Costs 1. The HCCC seeks its costs of both the Stage 1 and Stage 2 hearings. An order for costs is discretionary, however, it is commonly held that costs will follow the event. Clause 13 of Schedule 5D of the National Law provides as follows: (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administration Tribunal Act 2013. 1. In Qasim v Health Care Complaints Commission [2015] NSWCA 282, the Court of Appeal (per Meagher JA, McColl JA, and Ward JA agreeing) outlined the principles to be considered in a costs application at [84]-[85]. Dr Danaei did not provide submissions opposing a costs order. Orders 1. Under section 149C(1) and (4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), if the respondent was still registered as a medical practitioner, the Tribunal would have cancelled his registration. 2. Under section 149C(4)(b) of the National Law, the respondent is disqualified from being registered in the medical profession for a period of one year from the date of these orders. 3. Under section 149C(4)(c) of the National Law, the Medical Board of Australia is required to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. 4. Under clause 13(1) of Schedule 5D to the National Law, the respondent is to pay the costs of the applicant of the Stage 1 and the Stage 2 proceedings. ********** 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: 24 December 2021