Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Balafas (No 5) [2021] NSWCATOD 218 Hearing dates: 17 December 2021 Date of orders: 23 December 2021 Decision date: 23 December 2021 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Decision: 1. Dr Balafas's registration is subject to the following conditions: (a) Not to consult, examine, treat including prescribe to, or perform any procedures on any female. (b) The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law (NSW). (c) If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 2. 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 cost as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: HEALTH — professional registration and discipline — finding of professional misconduct — whether to make an interlocutory order pending Stage Two proceedings Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 Health Care Complaints Commission v Balafas (No 4) [2021] NSWCATOD 209 Health Care Complaints Commission v Morsingh (No 2) [2021] NSWCATOD 31 Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 9 March 2016 at 7115 Category: Procedural rulings Parties: Health Care Complaints Commission (Applicant) John Balafas (Respondent) Representation: Counsel: R Mathur (Applicant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal Pty Limited (Respondent) File Number(s): 2019/00246014 2020/00016868 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name and address of the patient the subject of the Medical Council's written reasons for decision dated 16 December 2021, is prohibited. Note: the names and addresses of Patient A and Patient B are subject to an existing non-publication order. reasons for decision Overview 1. In a previous decision published on 14 December 2021, the Tribunal found Dr Balafas had engaged in inappropriate conduct of a sexual nature: Health Care Complaints Commission v Balafas (No 4) [2021] NSWCATOD 209 (Stage 1 Decision). The conduct amounted to "professional misconduct" as defined in the Health Practitioner Regulation National Law (NSW) (National Law), s 139E. Two days later, on 16 December 2021, the Medical Council of NSW placed a condition on Dr Balafas's registration that he undergo a performance assessment. That decision was made following a complaint from another female patient. 2. The Health Care Complaints Commission (the Commission) applies for urgent interlocutory orders before the Tribunal considers the final orders that should be made. The Commission seeks an order that Dr Balafas's registration as a medical practitioner be suspended under s 165L(3) of the National Law. Alternatively, the Commission seeks an order that Dr Balafas's registration is subject to the following condition under s 165L(1): "1. Not to consult, examine, treat including prescribe to, or perform any procedures on any female. a. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. b. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council." 1. Dr Balafas opposes a suspension order and the condition proposed by the Commission. However, he consents to a condition to the effect that he not perform any internal examination or procedure, or any breast examination or procedure on any female patient. 2. I have decided to make the order set out above, that conditions be placed on Dr Balafas's registration to the effect that he not treat any female patients except in an emergency. Power to make interlocutory orders 1. Under s 165L of the National Law: Interlocutory orders [NSW] (1) The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand. (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. (3) The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's or student's registration if— (a) it has found the subject-matter of the complaint against the practitioner or student to have been proved; and (b) the complaint has not yet been finally disposed of; and (c) it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest. 1. In the Second Reading Speech of Parliament when s 165L was introduced it was said that: "The bill implements this recommendation by amending section 165L to allow NCAT to issue an interim suspension order if particulars of a complaint have been proven and NCAT considers that such an order is necessary to protect the public. This will allow a practitioner, when the particulars of a complaint against the practitioner have been proven, to be suspended while giving NCAT appropriate time to consider what final order should be imposed." (New South Wales Legislative Council, Parliamentary Debates (Hansard), 9 March 2016 at 7115.) 1. In relation to the power to suspend a person's registration, the test in s 165L(3)(c) is virtually identical to the test the Medical Council must apply in s 150(1)(a): 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest— (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. 1. However, there are two important differences between the Council's powers to suspend under s 150 and the Tribunal's power under s 165L. First, the Council must suspend "at any time" if it reaches the level of satisfaction set out in s 150(1)(a). There is no need for the Council to make findings of fact before suspending a practitioner's registration: Health Care Complaints Commission v Morsingh (No 2) [2021] NSWCATOD 31 at [32]. The Tribunal, on the other hand, may suspend, but only if it "has found the subject-matter of the complaint… to have been proved". 2. With those differences in mind, the Commission provided the following summary of relevant principles. The first three are drawn from Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 at [11], [29], [32] and [35]. The fourth is drawn from Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 at [24]-[26]: "(a) the power must be understood as an interim one, which does not require satisfaction as to what orders would be appropriate on a final basis; (b) the requirement has two limbs – protection of health and safety, and otherwise in the public interest – which are separate, such that the public interest is not limited to the protection of health and safety; (c) the public interest includes wider community interests in upholding standards of ethics and competence in the health profession and maintaining public confidence in the scheme for the registration of health practitioners; and (d) given the protective and public interest purposes of the power, the threshold for its exercise is 'relatively low'; it is sufficient for the Tribunal to be satisfied that there is a risk to health or safety or to the public interest that justifies the order." Dr Balafas's qualifications and career 1. In 1999 Dr Balafas completed a Bachelor of Medicine/Bachelor of Surgery. He was registered as a medical practitioner on 1 February 2001. In 2008, he became a Fellow of the Royal Australian College of General Practitioners. 2. From 2004 to 2007 Dr Balafas states that his professional and personal life were disastrously affected by his use of drugs – pethidine, morphine, diazepam and fentanyl. He continued to practise during those years but his registration was subject to protective conditions. He became a part owner of the Bondi Medical Practice in 2005 and commenced general practice there in January 2009. The consultations which are the basis of the two applications took place in the second half of 2009. 3. In 2010, Dr Balafas's registration was cancelled because of drug use and a breach of the conditions on his registration. Between 2010 and 2013 he was not practising but says he retained ownership of the Bondi Medical Centre during his absence from practice. In 2013, the Tribunal reinstated his medical registration subject to practice and health conditions. From 2013 to 2015, Dr Balafas worked under supervision in a general practice in Brookvale, NSW. In November 2015, after the conditions on his registration were modified, Dr Balafas resumed practising from the Bondi Medical Centre. Tribunal's finding 1. In the Stage 1 decision, the Tribunal found that Dr Balafas had engaged in very serious misconduct in relation to Patient A, a 22 year old female patient. Patient A was seeing Dr Balafas for the first time. In summary, the Tribunal found that: 1. Dr Balafas did not adequately explain the reasons for conducting the internal pelvic examination; 2. he conducted a pelvic examination without Patient A's informed consent; 3. while she was laying on her back, Dr Balafas placed his fingers in Patient A's vagina for longer than clinically indicated and turned her face to the wall; 4. Dr Balafas then asked Patient A to turn over on to her stomach and rubbed her clitoris twice; and 5. Dr Balafas failed to make a note in the medical records about a phone call from the patient which was relevant to her treatment. 1. The Tribunal also found that Dr Balafas had engaged in unsatisfactory professional conduct in relation to Patient B, a 23 year old female patient who was seeing him for the first time. In summary, the Tribunal found that Dr Balafas: 1. did not adequately explain the reasons for conducting the pap smear; 2. conducted the pap smear without informed consent; 3. did not adequately explain the reasons for conducting the internal pelvic examination; 4. conducted a pelvic examination without informed consent; 5. did not adequately explain the reasons for conducting the breast examination 6. conducted the breast examination without informed consent; and 7. failed to make a note in the medical records about the size and location of any vaginal polyp, recorded insufficient information about the size of her uterus and failed to record her correct name. 1. At [208]–[209] the Tribunal found that Dr Balafas's conduct in relation to Patient A was sufficiently serious as to justify the suspension or cancellation of his registration and therefore amount to professional misconduct: "208. We have found particular 3 of Complaint One proven. Particulars 3(f) and (g) are that Dr Balafas placed his fingers in Patient A's vagina for about a few minutes while she was lying on her stomach and that he rubbed her clitoris twice. The conduct alleged in those particulars is of a sufficiently serious nature to justify suspension or cancellation of Dr Balafas's registration. There can be no other conclusion than that Dr Balafas engaged in this behaviour for his own sexual gratification. Sexual exploitation of a patient is at the highest end of the spectrum of seriousness. It is inappropriate conduct of a sexual nature and, in this case, amounts to professional misconduct. 209. The remaining particulars in Complaint One involve less serious departures from the relevant standard but are nevertheless improper and unethical. Dr Balafas performed a pelvic examination where he put his fingers into Patient A's vagina for longer than was clinically needed while she was lying on her back. He did not adequately explain why he needed to do that examination or obtain her informed consent. Patient A was naked under the gown. When she raised her head he leant over and moved her face with his hand so that she faced the wall. Patient A was a young woman who had never consulted Dr Balafas before. There are no mitigating factors. This was conduct of a sexual nature and is sufficiently serious to justify suspension or cancellation of Dr Balafas's registration. It amounts to professional misconduct." New complaint 1. On 11 October 2021, a 33 year old female patient lodged a complaint about Dr Balafas with the Commission after seeing him for the first time. The Medical Council convened a hearing under s 150 of the National Law and Dr Balafas attended that hearing and was questioned by delegates of the Council. Among other things, the patient alleged that Dr Balafas should have told her what was involved in checking the position of an IUD. She wrote: "I booked in initially for an STI test. The doctor suggested that I should have a swab test due to infections in the area not being picked up by a urine test. He also asked if I wanted to have my pap smear done at the same time whilst I was on the table and I said yes, that I was uncomfortable about this so it would be best to get both out of the way. When I was on the table I told him that I felt really nervous. When I was on the table he also said that he should check the position of my IUD as he was worried that it wasn't in position as I told him I still had light periods when asked. He didn't say what this involved and I was horrified when he shoved his fingers inside me and pressed down on my pelvis. I had to pull away as I was shocked. Although I already felt very uncomfortable I should have asked what this entailed. However I very strongly feel that I should have been made aware what this checking entailed, especially after flagging how unsettled I was. I asked twice if I could go in the few seconds it took for a piece of paper to be printed for me to sign. I just needed to get away and I ran out and called my partner very shook up. Both me and my partner booked in two days apart. We both wanted the same thing, a through STI test and yet my partner was recommended to have a urine test, not the more invasive suggestion I had, which further added to my feelings of disgust and being extremely unhappy. I just want my results so I can put this behind me, but I just cant get [h]old of anyone. I'm waking up feeling angry and upset about this and wanted to raise awareness." 1. In the reasons for decision, the Medical Council provided the following extracts from Dr Balafas's statement in response dated 3 November 2021: "27. I note I spoke with [name of Patient deleted] about the fact that her pap test was overdue and that because she had breakthrough bleeding in the presence of the Mirena it would be appropriate to undertake the CST and to perform an endocervical swab both for STI screening and to check for infection in the presence of the Mirena. I also indicated to [name of Patient deleted] that it would be appropriate to check the position of the Mirena by palpation to ensure that it was not either being expelled or lodged in the endocervical canal. I have noted in my contemporaneous record that [name of patient deleted] consented to that course. 28. I have also noted (as typed) that 'cst performed, cervix appears normal. mirena thread cited. pv no cerv/uterine tenderness mirena not palpable. Position clinically ok.' 29. My records indicate that I sent the swab to pathology and requested (as typed) 'cst. E/c swab chlamydia gonnorea mcs. Send pathology reports to My Health Record'.'" 1. The Medical Council went on to quote the following further paragraphs of Dr Balafas's statement: "34. In relation to Ms [name of patient deleted]'s comments about the timing of my suggestion that we ought to check the position of the IUD, that is not correct. I say that because the reason for performing the high vaginal swab was because of the breakthrough bleeding in the presence of the Mirena and my concerns about possible infection. For that reason, that discussion occurred at the time of the discussions about the pap test and the STI swabs and well before Ms [name of patient deleted] was on the examination couch. I also advised Ms [name of patient deleted] that in order to check the position of the Mirena a vaginal examination was required. 35. I accept that a vaginal examination for the purpose of checking the position of the Mirena would involve pressure and discomfort. My general practice is to explain that there will be some discomfort and to apologise during the examination if that appears to be significant. In light of my contemporaneous medical record entry, I can say that Ms [name of patient deleted] did not appear to experience any pain beyond the normal discomfort associated with such an examination. 36. In respect of the decision to undertake a swab rather than a urine STI screen, I was of the view and I indicated to Ms [name of patient deleted], that the swab would be preferrable in circumstances where her pap was overdue and I was concerned about infection in the presence of the Mirena. Had Ms [name of patient deleted]'s pap been up-to-date and had she not complained about breakthrough bleeding, I believe I would have suggested that urine STI screening would have been appropriate." 1. In his statement, Dr Balafas goes on to indicate what he has done to respond to the complaint: "42. I can indicate that having received Ms [name of patient deleted]'s complaint, I have reflected on my practice during the past eighteen months. As with all practitioners, my practice has been impacted by COVID. Practice has been different and stressful. Whilst I do not believe that has adversely impacted upon my care and treatment of patients, I have reflected on my possible communication practices to ensure patients not only feel listened to but understand what is proposed to occur during a consultation or following it. 43. Whilst I do not accept that Ms [name of patient deleted] did not understand what was involved in checking the position of her IUD, having had a previous one inserted and removed and the current one inserted, I have reintroduced my practice of seeking confirmation from patients as to their understanding of what a procedure may involve regardless of my understanding about their past history." 1. At the conclusion of the hearing, the Chair, Dr Cox, made the following comment: "And look, I guess, at the outset, I'd like to say that we don't believe that there was any sort of premeditated or predatory sort of intention to this consultation with [name of patient deleted]. We do have some concerns, however, just in relation to a few of the aspects and so I'm just going to explain what we have some concerns about." 1. On the question of whether Dr Balafas has the necessary standard of practice, knowledge and understanding to ensure the public's health and safety is protected, the Medical Council came to the following conclusion: "Based on the evidence provided both written and orally the delegates could not form a view that Dr Balafas had any premeditated predatory intention when undertaking the internal vaginal examination. However, we do have concerns about the professional standard of care offered by Dr Balafas. His history taking was inadequate and seemed inhibited by his unwillingness to intrude into his patient's sexual lives. He indicated he did not ask for a sexual history and did not ascertain where to obtain a swab from his patient to check for STIs. We are concerned that this led him to default to an intimate and intrusive pelvic vaginal examination when it may not have been entirely necessary. We are also concerned about Dr Balafas' communication skills which is especially important when conducting examinations that are highly sensitive. It is difficult to conclude that informed consent was obtained when the patient was not made aware of what was going to be done or worse when it was assumed she would already know. Further, given that Dr Balafas himself was of the view that the patient had a reasonable complaint in terms of his failure to provide her test results in a timely manner we are concerned that he needs to improve his recall processes and result checking. Some improvements had already been put in place by Dr Balafas including educating his reception staff and employing more staff to address the telehealth matters. However, Dr Balafas was unable to advise whether these changes had made a tangible difference to his recall and result provision." 1. In addition to the conditions which were already on Dr Balafas's registration, the Medical Council gave the following reasons for requiring Dr Balafas to undergo a performance assessment. The Medical Council stated that ideally the performance assessment would be "an in-practice assessment to determine whether he is obtaining informed consent and providing appropriate care". "Dr Balafas' clinical treatment appears to be justified but without a practice-based assessment it is not possible to know whether Dr Balafas is practising according to his testimony. His medical records are not adequate and his communication with the patient was unsatisfactory. His failure to ask for a detailed and pertinent history from his patients may have resulted in him undertaking unnecessary internal vaginal examinations. Furthermore, while he claims to have explained the process to his patient it is clear that the patient felt violated and this represents a failure on the part of the doctor to properly explain what he was doing and to make sure he had informed consent… We decided that the current conditions remain in place at least until the NCAT hearing has reached completion, and that in the interim Dr Balafas attend CPD courses on intimate examinations and confer with his female colleagues about the appropriate way to talk to his patients about these examinations." Consideration 1. Dr Balafas is the owner of the practice where the consultations with Patients A and B and the new complainant took place. He continues to treat members of the public and is not subject to any conditions relating to supervision. 2. The sexual exploitation of Patient A is at the highest end of the spectrum of seriousness. Dr Balafas does not admit to the proven sexual misconduct. In my view, there is a risk that he will engage in similar conduct again. 3. For Patients A and B, Dr Balafas did not adequately explain the reason for conducting an internal examination or what the examination would entail. Informed consent was not obtained. For the patient who made the most recent complaint, while no conclusive findings have been made, Dr Balafas may have conducted an unnecessary internal examination. His communication with that patient was inadequate. Each patient had a strong negative reaction to what happened during the consultation. 4. The complaints all relate to consultations with female patients in their 20s or 30s in circumstances where Dr Balafas conducted an internal examination and, in one case, a breast examination. Dr Balafas consents to a condition to the effect that he not perform any internal examination or procedure, or any breast examination or procedure on any female patient. While that may appear to address the findings the Tribunal made in the Stage 1 hearing and the issues raised by the new complaint, in my view, such a condition is inadequate, even as an interim measure. Members of the public would lose confidence in the standards of ethics and competence in the medical profession unless Dr Balafas is prevented from treating any female patient pending the Stage 2 hearing. Orders 1. Dr Balafas's registration is subject to the following conditions: 1. Not to consult, examine, treat including prescribe to, or perform any procedures on any female. 2. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law (NSW). 3. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 2. 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 cost as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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: 23 December 2021