Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Safi v Medical Council of New South Wales [2022] NSWCATOD 30 Hearing dates: 11 February 2022 Date of orders: 7 March 2022 Decision date: 07 March 2022 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr K Keenan, Senior Member Dr S Patel, Senior Member D Telford, General Member Decision: (1) The Tribunal makes a reinstatement order. (2) The following practice and health conditions are attached to Mr Safi's registration: Practice conditions 1. The practitioner must obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. The practitioner must practise in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the Practitioner): Where the patients and patient records are shared between medical practitioners Where there is always one other registered medical practitioner on site 3. For female patients 13 years or over, the practitioner must not examine the patient or perform any procedure unless the examination or procedure is observed by a chaperone in accordance with the following requirements: a. Prior to any such examination or procedure, the practitioner must tell the female patient of the requirement for a chaperone to be present and obtain the person's consent. If the person does not consent, the examination or procedure must not take place. b. The patient's consent must be recorded in the patient's notes. c. The chaperone may be the parent or guardian of a person aged between 13 and 17 years if the parent or guardian consents to performing that role. d. The parent or guardian's consent must be recorded in the patient's notes. e. For patients 18 years or over, the chaperone must be a registered nurse, registered enrolled nurse or nurse practitioner who has been approved by the Medical Council of New South Wales. f. The practitioner must forward to the Council within seven days of the end of each month a report listing all consultations where an observer was required including the time and date of the consultation, the kind of examination or procedure performed, the name and signature of the observer, the name and signature of the patient 13 years and over indicating her consent and the name and signature of the parent or guardian consenting to performing the role of chaperone. g. The cost of complying with this condition is to be paid by the practitioner. h. The practitioner may provide emergency medical services to female patients in compliance with section 139C(c) of the Health Practitioner Regulation National Law. i. If the practitioner provides such emergency care, he 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. 4. The practitioner must work no more than 40 hours a week over five days and see no more than, 6 patients an hour, 32 patients a day and 160 patients a week. When requested to do so by the Medical Council of NSW, the practitioner is to provide the Medical Council with copies of records confirming the number of patients treated, their consultation times and hours worked on any dates as specified by the Council. 5. The practitioner must nominate an experienced general practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each mentoring meeting the practitioner is to include discussion of the issues highlighted in this decision, his personal and professional development and any personal and/or medical practice issues as they arise. b. The practitioner must authorise the mentor to report, in an approved format, to the Medical Council of NSW every six months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. c. The practitioner must authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which imposed this condition and any other decision or report as determined by the Council. 6. The practitioner must authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 7. The practitioner must authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health conditions 8. The practitioner attend for treatment by a registered psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. must authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; or (iii) a significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner. c. must authorise the Medical Council of NSW to forward a copy of this decision and any other decision or report as determined by the Council to the treating practitioner. Notations A. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). B. Sections 125 to 127 of the Health Practitioner Regulation National Law are applicable while the practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia. Catchwords: HEALTH — Professional registration and discipline — Registration — medical practitioner's application for reinstatement to register – where practitioner initially denied any wrongdoing – where practitioner now admits sexual misconduct in relation to Patient A and admits being untruthful – where practitioner has undergone psychological therapy and has gained insight into his misconduct – where risk of re-offending is low – whether practitioner's registration as a medical practitioner should be reinstated – appropriate conditions on registration Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Dr Safi (No 2) [2017] NSWCATOD 69 Health Care Complaints Commission v Safi (No 4) [2017] NSWCATOD 102 Jan v Health Care Complaints Commission [2021] NSWSC 350 Safi v Medical Council of NSW [2020] NSWCATOD 28 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Category: Principal judgment Parties: Mohammed Safi (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: I Chatterjee (Applicant) H El-Hage (Respondent) Solicitors: Zarifi Lawyers (Applicant) Health Professional Councils Authority (Respondent) File Number(s): 2021/00275557 Publication restriction: Under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure of the name of Patient A. REASONS FOR DECISION Overview 1. Mr Safi is applying for reinstatement of his registration as a medical practitioner for a second time. In a decision in 2017, the Tribunal found that in 2012 Mr Safi had engaged in sexual misconduct with a patient who we will call Patient A: Health Care Complaints Commission v Dr Safi (No2) [2017] NSWCATOD 69 (the stage one decision). In the stage one decision, the Tribunal found that while performing a vaginal examination on Patient A, Mr Safi: 1. inappropriately touched Patient A's clitoris with his fingers and rubbed it with one or two fingers in a circular motion for one to two minutes; 2. inappropriately moved his fingers to the entrance of Patient A's vagina and rubbed it in a circular motion for about two minutes. 1. The Tribunal also found that, at the end of the consultation, Mr Safi: 1. hugged Patient A; and 2. kissed Patient A on her lips with an open mouth; and 3. sucked on her lips. 1. The Tribunal concluded that by reason of this conduct Mr Safi had engaged in professional misconduct. In those circumstances the Tribunal may suspend or cancel a practitioner's registration. In the stage two proceedings, the Tribunal cancelled Mr Safi's registration and prevented him from re-applying for registration for 18 months: Health Care Complaints Commission v Safi (No 4) [2017] NSWCATOD 102 (the stage two decision). When the Tribunal cancels a medical practitioner's registration, that person cannot apply to the relevant National Board for re-registration unless the Tribunal makes a reinstatement order: Health Practitioner Regulation National Law (NSW) (National Law), s 149E. 2. On 25 March 2020, the Tribunal dismissed Mr Safi's first application for reinstatement: Safi v Medical Council of NSW [2020] NSWCATOD 28. At that stage, Mr Safi continued to deny that he had hugged or kissed Patient A and explained the complaint about clitoral and vaginal rubbing as having been caused by poor communication and a failure to obtain informed consent: Safi v Medical Council of NSW [2020] NSWCATOD 28 at [66]. The Tribunal did not consider that Mr Safi had sufficient insight into his conduct or the effect of his conduct on Patient A. 3. In these proceedings, Mr Safi is applying again for the Tribunal to re-instate his registration: National Law, s 163B(c). The issue is whether the Tribunal's stage two decision to cancel Mr Safi's registration is still appropriate: National Law, s 163B and s 163C. Whether Mr Safi is currently a fit and proper person to practise is relevant to that issue. Mr Safi must prove that he can be trusted to practise in a way that conforms to the professional standards expected of medical practitioners. 4. Mr Safi now admits that after performing a pap smear on Patient A, he intentionally touched her vagina and clitoris with his fingers. He accepts Patient A's account that he did so for three or four minutes. He also accepts that after the consultation, he hugged and kissed Patient A on her lips and sucked on her lips. He cannot explain why he behaved in that way but confesses that he was attracted to Patient A and thought that she may have been physically attracted to him. 5. Mr Safi agrees to any assessments or conditions on his registration that the Tribunal considers appropriate. He says he has a lot to give to the community including that he is a fluent speaker and writer of the Pashto and Dari languages. There are many migrants who speak these languages in the area of western Sydney where Mr Safi intends to practise if his registration is reinstated. 6. As a statutory contradictor, the Medical Council of New South Wales (the Council), neither consents to nor opposes Mr Safi's application for reinstatement. If the application is granted, the Council has put forward several conditions that it says should be attached to his registration. We are satisfied that, as at the date of the hearing (11 February 2022), the Tribunal's stage two decision to cancel Mr Safi's registration is no longer appropriate. We reinstate Mr Safi's registration subject to several conditions which are generally less onerous than those put forward by the Council. Mr Safi's background 1. Mr Safi is 62 years old. He was born in Afghanistan and lived there until 1992. In 1979, when he was 22 years old, his mother was killed in crossfire during the Russian invasion of Afghanistan. She was buried in a common grave across enemy lines and Mr Safi has never been able to visit her grave. His father died of a heart attack when he was only 52 years old. Mr Safi says that despite significant financial and emotional hardships, he looked after his six younger siblings and completed a degree in medicine at Kabul University in 1984. He practised medicine in Afghanistan until 1992 when he, his wife and their children were forced to flee to Uzbekistan. They settled in Russia temporarily and were eventually given a humanitarian visa to live in Australia. 2. In 1998, Mr Safi completed his medical examinations and between 2002 and 2004 he worked as a general practitioner at various locations in Sydney. From 2004 to 2012, Mr Safi worked at the Argyle Street Medical Practice in Parramatta. His wife, who is also a medical practitioner, worked at that practice from 2009 to 2012. 3. On 27 November 2014, Mr Safi was found not guilty of three counts of indecent assault and one count of sexual intercourse without consent. The charges related to Mr Safi's conduct during the course of a consultation with Patient A on 9 February 2012. 4. In 2013 Mr Safi and his wife established their own practice, Parkview Medical Centre. Mr Safi worked there from July 2013 until his registration was cancelled in 2017. Mr Safi continues to work at that centre in an administrative role. 5. Mr Safi consulted a psychiatrist in 2014 with depressed mood, anxiety and obsessional worries about his future employment prospects. He had suicidal thoughts and was concerned about his family's well-being. He did not report any previous history of psychiatric illness and responded well to the anti-depressant medication Pristiq. He also consulted a psychologist and engaged in psychotherapy and cognitive behaviour therapy. Despite this treatment, Mr Safi continued to deny any sexual misconduct with Patient A. 6. In August 2020, Mr Safi reported experiencing insomnia and nightmares, particularly in relation to the cancellation of his registration. He consulted another psychiatrist, Dr Teoh. For the first time, Mr Safi admitted unreservedly that he had engaged in the sexual misconduct that Patient A had described. Dr Teoh referred Mr Safi to Ms Sliger, a psychologist experienced in cross cultural issues. Mr Safi also completed the Sexual Offender Rehabilitation program with a psychologist, Mr Randall. 7. Dr Teoh diagnosed Mr Safi with Major Depressive Disorder, in remission (DSM 5 Diagnostic Criteria). During the consultation in 2020, he appeared to have some residual symptoms of mood disorder, but did not meet the full criteria for a diagnosis of depression. In Dr Teoh's view, while he did not have symptoms consistent with a diagnosis of post traumatic stress disorder (PTSD), the psychological trauma he experienced when in Afghanistan had made him emotionally detached. In Dr Teoh's words, he has "struggled to deal with emotional issues, which affected his initial reaction to the Tribunal, with denial and minimisation". The Council requested another psychiatrist, Dr Ventura, to prepare a report and she agrees with Dr Teoh that Mr Safi's major Depressive Disorder is in remission. Tribunal's stage two decision 1. At [28], the Tribunal observed that "the transgression of sexual boundaries in the doctor-patient relationship is a most serious matter and involves serious misconduct". That was the Tribunal's conclusion despite the fact that the conduct "occurred once only with one patient and was opportunistic rather than predatory in nature". The Tribunal concluded that his conduct demonstrates that Mr Safi "is not a fit and proper person to practise medicine". 2. The Tribunal noted at [29], that despite the onus being on him, Mr Safi did not produce any evidence of insight or remorse. The Tribunal concluded that: To some extent it may be said that avowing a different approach to his method of communicating with patients and avoidance of the treatment of female patients after this incident is indicative of some degree of insight, but this does not constitute, in our opinion, any expression of remorse or contrition. On this basis, as the complainant submitted, we have not been provided with any significant degree of comfort that the respondent might not engage in further conduct of this kind. These circumstances enliven a requirement that some element of protection should be imposed. These circumstances also create concern about the extent of the protection and its duration. 1. The Tribunal was not comfortably satisfied that Mr Safi would not offend again. Given the seriousness of the offence, his lack of insight and the risk of re-offending, the Tribunal cancelled Mr Safi's registration and prohibited him from re-applying for 18 months. Is the Tribunal's stage two decision to cancel Mr Safi's registration appropriate now? Statutory provisions 1. Section 163A(4) of the National Law gives Mr Safi the right to apply for a review of the Tribunal's stage two decision to cancel his registration. 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of— (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made— (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section— decision-making entity means the following— (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division, Subdivision 5 of Division 3 or section 155C (1) (f); (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court; (f) a review body in New South Wales, when deciding a matter under section 127A. relevant order, in relation to a person, means any of the following orders made by a decision-making entity— (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession. 1. The Tribunal must conduct an inquiry into the application: National Law, s 163B(1). The Tribunal's powers on review include dismissing the application or making a reinstatement order. A reinstatement order is an order that the person may be registered if the person applies to the National Board and the National Board decides to register the person: National Law, s 163B(3). Such an order may be conditional: National Law, s 163B(4) and Jan v Health Care Complaints Commission [2021] NSWSC 350 at [64]. 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order— (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 1. Section 163C sets out the nature of the Tribunal's inquiry. The inquiry is not a review of the decision to cancel Mr Safi's registration, nor is it a review of any of the Tribunal's findings: National Law, s 163C(2). The inquiry is a "review to determine the appropriateness, at the time of the review, of the order concerned". 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division. Interpretation of statutory provisions 1. In Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85], Adams J cited the Tribunal's decision in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 at [7] and [8] with approval. We set out the relevant passages from the Tribunal's decision in full below. Among the most significant principles are that: the paramount consideration is the protection of the health and safety of the public; the Tribunal's opinion as to whether an individual is a fit and proper person will inform its consideration of the current "appropriateness" of the Tribunal's cancellation orders; and the person must affirmatively prove that he or she can be trusted to perform in a way that conforms to the professional standards expected of health practitioners. "85. The relevant principles guiding an application for reinstatement at [7]-[8] were correctly stated in the decision of NCAT as follows: '[7] The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms: 12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24]. (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]. [8] In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated: 30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: [A]n applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 31. In that case, the Medical Tribunal also stated at [42]: [T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession.'" In the recent decision of Jan v Health Care Complaints Commission [2021] NSWSC 350, the Supreme Court clarified that the Tribunal's opinion as to whether the applicant is a fit and proper person will inform its consideration of "appropriateness". Leeming JA explained the Tribunal's role at [21]: "…the question for NCAT was to determine the 'appropriateness', at the time of the review, of the cancellation order: s 163C(1). Sections 163, 163A, 163B and 163C were 'NSW provisions' (meaning that they were modifications to the Health Practitioner Regulation National Law made applicable by s 4 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) effected by Sch 1 to that Act), and thus in accordance with s 3A, the protection of the health and safety of the public was the paramount consideration in the exercise of functions under those provisions. Ultimately, if and when a reinstatement order was made, it was for the National Board to effect the registration, which turned on its opinion of suitability, a concept which incorporates whether an individual is a fit and proper person: ss 52(1)(c) and 55(1)(h). Nevertheless, NCAT's opinion as to whether an individual is a fit and proper person will inform its consideration of 'appropriateness'." (Emphasis added.) Insight and remorse 1. Mr Safi now admits that he intentionally touched Patient A's vagina and clitoris for three to four minutes. He also admits that he hugged and kissed her after the consultation. Mr Safi takes full responsibility for his actions and no longer blames anyone but himself. He accepts all the Tribunal's findings in the stage one decision. Mr Safi also admits that he did not tell the truth to the Tribunal when giving evidence. He not only denied the misconduct but provided implausible theories about why Patient A and her husband would make up the allegations. Despite promising to tell the truth to the Tribunal he did not do so. 2. According to Mr Safi, coming to terms with his behaviour towards Patient A in 2012 has been a slow process. Initially he says he thought Patient A and her husband might have set him up. For many years Mr Safi thought that the Saudi Arabian government may have recruited Patient A and her husband to spy on him and discredit him. Other justifications he gave for his conduct were that Patient A's husband had set him up because he did not trust him. He appreciates that these excuses were a way to rationalise his behaviour. He now acknowledges that he knew he was being untruthful when he made these claims. 3. Mr Safi cannot explain why he intentionally touched Patient A's vagina and clitoris but confesses that he was attracted to her and thought she may have been attracted to him. He unreservedly accepts that he completely misread the situation. Mr Safi understands that Patient A must have suffered considerable mental anguish as a result of his conduct and his subsequent denials. He is truly remorseful and offers his heartfelt apology to Patient A and her family. He also regrets the trauma he has inflicted on his family, especially his wife. In the Afghan culture, when an individual misbehaves, it reflects badly on the whole family, tribe or ethnic group to which that person belongs. The male head of the household is expected to protect the honour of the family. 4. Significantly, Mr Safi also admits that he lied because he was scared that if he was found guilty he faced the possibility of many years in prison. He continued to lie after being found not guilty in the criminal proceedings, because he did not want to risk being charged again. Rehabilitation and risk of re-offending or lying about any further inappropriate conduct Mr Safi's evidence 1. Mr Safi has been receiving treatment for anxiety and depression since 2014 but has benefitted most from the treatment given by psychiatrist Dr Teoh and psychologists since August 2020. Dr Teoh continued Mr Safi with Pristiq,100mg to 150mg (desvenlafaxine), a treatment for major depressive disorder. Mr Safi says the medication has improved his mood, motivation and sleep. He also says he has learned strategies to overcome the social stigma and shame and improve his relationships with family and friends. Mr Safi is aware that any misconduct in the future may well result in criminal charges. He intends to continue to see a psychiatrist and psychologist in the foreseeable future. 2. One focus of cross-examination was the risk of Dr Safi being untruthful again if he engages in any inappropriate behaviour, whether of a sexual nature or otherwise. If he admits the inappropriate behaviour, won't Mr Safi suffer the same sense of shame and be subject to the same cultural influences that he felt after the sexual misconduct he inflicted on Patient A? The Council questioned Mr Safi, Ms Sliger and Mr Randall about that possibility. 3. Dr Safi's response was that he has been treated by a psychiatrist and psychologists over the last 18 months to 2 years. His sessions with his Dr Teoh and psychologists Ms Sliger and Mr Randall have been particularly helpful. They have given him recommendations and strategies for addressing his issues. He has learnt that telling the truth is hard, but by addressing issues relating to his mental and emotional health, by re-engaging with the Afghan community and by improving his diet and exercise regime, he can become a better person. He has talked about the issues with his wife and other family members and feels relieved. He is sleeping better and his mood has improved. Dr Teoh's evidence 1. Dr Teoh prepared a report dated 6 December 2021 and was not required for cross-examination. In his opinion, Mr Safi is unlikely to re-offend and is a fit and proper person to be registered as a medical practitioner. Ms Sliger's evidence 1. Mr Safi has seen a psychologist, Ms Jasmine Sliger, on 12 occasions since October 2020. She prepared a report dated 17 July 2021 and was asked to attend so that the Council and the Tribunal could ask her some questions. Ms Sliger expressed the opinion that Mr Safi has learned a lot about his psychological issues and has increased his self-awareness substantially. She referred him to another psychologist who specialises in Eye Movement Desensitization and Reprocessing (EMDR), a form of psychotherapy. According to Ms Sliger, he has had three sessions which have reduced the problematic symptoms of his traumatic life events. 2. In Ms Sliger's view, if Mr Safi continues with at least 12 months of therapy on a fortnightly basis, he is a fit and proper person to practise medicine. However, one strategy she suggested to Mr Safi was to never see an adult female patient alone. When questioned about that recommendation, Ms Sliger said that she was referring to consultations where Mr Safi is conducting an intimate examination. Even in those circumstances she considers it safe for Mr Safi to examine the patient as long as a chaperone is present. Mr Randall's evidence 1. Mr Randall, a psychologist who specialises in treating men who have committed sexual offences, has seen Mr Safi on five occasions since 2021. He has helped Mr Safi understand the impact of sexual assault on victims and explained how accepting responsibility for his actions can improve the symptoms of depression and post-traumatic stress disorder (PTSD). In a report dated 7 December 2021, Mr Randall conducted a Personality Assessment Inventory (PAI), a psychological assessment and structured interviews. In his opinion the presence of depressive symptoms, even if managed by medication, is not sufficient to justify a diagnosis of depressive disorder. Dr Safi's life history provides the basis for an alternative diagnosis that better fits his overall symptomatology. In his opinion, Mr Safi's anxiety and depression relate to the trauma he experienced in Afghanistan. 2. Mr Randall noted that Mr Safi tends to be very meek and unassertive. In his opinion, this disengagement from his emotions is often a coping mechanism to handle the emotions of extreme trauma. Mr Safi would qualify for a diagnosis of Post-traumatic Stress Disorder 309.81 (F 43.10). After administering several tests, he concluded that he is experiencing moderate to high severity of PTSD symptoms. We note that that opinion is not consistent with the opinion of psychiatrists Dr Teoh and Dr Ventura, however they did not carry out the same level of psychological assessment as Mr Randall. Either way, we accept that Mr Safi has at least some moderate PTSD symptoms. 3. As to Mr Safi's risk of re-offending, Mr Randall's view was that he has developed empathy. That is a good indication that he will not engage in sexually inappropriate behaviour in the future. However, Mr Randall also expressed the view that Mr Safi should continue to engage with therapy to monitor and address his PTSD symptoms. 4. Mr Randall noted that when he commenced therapy with him, Dr Safi viewed the incidents as both communication difficulties between himself and the patient and as boundary crossing. Dr Randall's view is that these excuses were used to rationalise and understand his sexual behaviour. Mr Randall went on: This understanding or rationalising is common among men who have sexually offended in some way. It is illustrative of an individual with a high level of shame. Shame can present as a form of compartmentalising, or as a means of upholding one's internal sense of identity. This is particularly true of individual's with a traumatic past – such as Dr Safi. This is different to a concept of denial, where an individual consciously denies an action in order to avoid punishment. Shame can result in individuals re-interpreting their recollection of an event to be consistent with their concept of who they believe themselves to be. As such, the initial failure to disclose the event, or initial reaction could be better understood in the context of shame and wanting to maintain an internal sense of identity rather than conscious denial to avoid repercussions. 1. When questioned about this opinion, Mr Randall agreed that one reason Dr Safi had denied the sexual misconduct was to avoid punishment by the courts and the Tribunal. However, according to Mr Randall, another strong motivation for lying was to avoid shame, especially in the context of a culture where sexual transgressions bring shame, not only to the perpetrator, but to their extended family. Dr Ventura's evidence 1. The Council asked Dr Ventura, a consultant forensic psychiatrist, to express an opinion about Mr Safi's fitness to practise. In a report dated 13 January 2022, she said that Mr Safi "appears genuine in his remorse and explains that his previous denial was because of a great sense of shame and not wanting to acknowledge what he had done to himself and to the Afghan community". In her view, it is more likely than not that Mr Safi was depressed at the time of the misconduct with Patient A. With therapy, his mood has improved. In Dr Ventura's view, Mr Safi is no longer clinically depressed but continues to suffer from the effects of chronic post-traumatic stress disorder. Dr Ventura agreed with Mr Randall that Mr Safi's risk of reoffending is low. In her opinion, to minimise the risk of future boundary violations, he requires at least fortnightly psychotherapy for at least a year. Further appropriate conditions were said to be that: 1. the number of patients Mr Safi sees a day should be "reasonable"; 2. his treating psychiatrist should be informed of Mr Safi's history of alcohol abuse between 2011 and 2013 to allow him to monitor Mr Safi's ongoing alcohol consumption. Character references 1. Several prominent people in the Afghan community expressed their support for Mr Safi. In a letter dated 9 December 2018, Mohammad Nader Azamy, President of the Afghan Community Support Association of NSW, said that "the entire Afghan community of Sydney is very grateful and proud of Mr Safi. He and his family have frequently helped the Association over many years." Lawyers, and other doctors who know Mr Safi well, also wrote positive references. Mr Safi's wife, Dr Veda Safi, supports her husband's application for reinstatement. Conclusion 1. The conduct that led to Mr Safi's registration being cancelled is very serious. So too is the fact that he lied about what happened. Both categories of conduct are totally incompatible with the high standards of behaviour expected of the medical profession. Although Mr Safi received psychiatric and psychological treatment after the incident in 2012, it was not until recently that he has admitted his wrong doing and gained insight into his misconduct. Those admissions and insights were triggered, to some extent, by the refusal of his initial application for reinstatement. 2. At around that time, Mr Safi consulted Dr Teoh who referred him to Ms Sliger for psychological therapy. Mr Safi has also completed the Sexual Offenders Program with Mr Randall. These therapies have given Mr Safi strategies to address the deep sense of shame he feels about what he has done. Mr Safi has proven that he can be trusted to behave in a way that conforms to the professional standards expected of health practitioners. Based on his evidence and the expert opinions of Dr Teoh, Dr Ventura, Mr Sliger and Mr Randall, the Tribunal's stage two decision to cancel Mr Safi's registration is no longer the appropriate decision. Mr Safi accepts that it would be appropriate to impose conditions on his registration. Practice conditions Conditions proposed by Council 1. The Council proposed the following conditions comprising practice conditions, health conditions and notations. Mr Safi agreed with the notations and the health conditions, but not with the proposed practice conditions relating to treating female patients, working hours and the level of supervision. Proposed practice conditions 1. The Practitioner must obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. The Practitioner must practice in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the Practitioner): Where the patients and patient records are shared between medical practitioners Where there is always one other registered medical practitioner on site 3. The Practitioner must not prescribe, consult, examine, treat, or perform any procedures on any female patients, except in the following circumstances: a. The Practitioner may provide emergency medical services to female patients in compliance with section 139C(c) of the Health Practitioner Regulation National Law. b. If the Practitioner provides such emergency care, he 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. 4. The Practitioner must treat no more than 4 patients in any one hour and no more than 32 patients in any one day. When requested to do so by the Medical Council of NSW, the Practitioner is to provide the Medical Council with copies of records confirming the number of patients treated, their consultation times and hours worked on any dates as specified by the Council. 5. The Practitioner must practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (i) Maintaining professional ethics (ii) Maintaining appropriate professional boundaries with patients (iii) Workload management (iv) Clinical performance (v) Medical record reviews (vi) Work/life balance b. The Practitioner must authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition and any other decision or report as determined by the Council. c. The Practitioner must not practise until a supervisor has been approved by the Medical Council of NSW in accordance with these conditions. 6. The Practitioner must nominate an experienced general practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each mentoring meeting the practitioner is to include discussion of the issues highlighted in this decision, his personal and professional development and any personal and/or medical practice issues as they arise. b. The Practitioner must authorise the mentor to report, in an approved format, to the Medical Council of NSW every six months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. c. The Practitioner must authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which imposed this condition and any other decision or report as determined by the Council. 7. The Practitioner must authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 8. The Practitioner must authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Proposed health conditions 9. The Practitioner attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The Practitioner: must authorise the treating practitioner to inform the Medical Council of NSW of any of the following: Failure to attend for treatment; Termination of treatment; or A significant change in health status (including a significant temporary change); must provide the Council with the professional details of the treating practitioner; must authorise the Medical Council of NSW to forward a copy of this decision and any other decision or report as determined by the Council to the treating practitioner. Proposed notations A. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). B. Sections 125 to 127 of the Health Practitioner Regulation National Law are applicable whilst the Practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia. Discussion of proposed practice conditions 1. Proposed practice conditions 1 and 2, that Mr Safi obtain approval from the Council before changing the nature or place of practice and that he practise in a group practice, are uncontroversial. 2. In summary, proposed condition 3 is that Mr Safi not treat any female patients except in an emergency. Mr Safi suggests a condition that he not conduct any intimate examination on any female patient except in the presence of a female chaperone. Mr Safi also proposes conditions about the identity of the chaperone and how this condition should be communicated to the patient. The Council submits that chaperone conditions are difficult to monitor because they rely on Mr Safi being truthful. Secondly, there is no particular age (either young or old) which provides a reliable cut off point. Thirdly, it is difficult to define the kind of examination that is subject to a chaperone condition. 3. We do not consider a blanket ban on treating any female patients regardless of their age or the presence of a chaperone, to be appropriate. Firstly, a blanket ban on treating any female patients would apply to female children 12 years and under. Mr Safi is experienced in paediatrics and has a strong interest in that area of practice. While a practitioner may need to conduct an intimate examination on a child, there is no evidence that Mr Safi has any sexual interest in young children. Furthermore, children 12 years or under are routinely accompanied by an adult when attending a consultation. The risk of Mr Safi engaging in inappropriate sexual conduct in relation to a young child of that age is negligible. 4. Counsel for the Council suggested that a parent accompanying a young child will typically be an adult female. In circumstances where the Council has no role in monitoring those appointments, it was said that there is a risk that Mr Safi would conduct an examination of the adult female during an appointment made for a child. We do not agree that there is any appreciable risk that Dr Safi would engage in sexually inappropriate behaviour towards an adult female during a consultation where a young child is the patient. The evidence does not support the existence of such a risk. The misconduct in relation to Patient A was not pre-meditated, she was the patient and she was alone with Dr Safi during the consultation. 5. Secondly, we acknowledge that it can be difficult to define the kind of examination where a chaperone would be required. An intimate examination usually means examination of the breasts, genitalia or an internal examination (vaginal or rectal). Depending on the age of the patient and cultural values, a female patient may also be sensitive about any examination of her chest, back or abdomen. Rather than attempting to define intimate examinations, in our view a chaperone should be present during a consultation with any female patient who is 13 years or older, regardless of whether a parent or guardian is present. For patients aged 13 to 17 years, accompanied by a parent or guardian, that person may take on the role of a chaperone if he or she consents. The presence of a chaperone or observer would adequately ameliorate the very small risk that Mr Safi would attempt to engage in sexually inappropriate conduct with a female patient. 6. Although there can be practical difficulties in monitoring a chaperone condition, we are mindful that one of the guiding principles of the national registration and accreditation scheme is that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality": National Law, s 3(3)(c). We consider that Mr Safi can be relied on to accurately report the occasions in which a chaperone is required. 7. As to the content of a chaperone condition, prior to any consultation the female patient must be informed of the need for an observer to be present. The patient's consent, or that of her parent or guardian if under 18 years, must be recorded in the notes. If the patient does not consent, she will need to see another practitioner. 8. The chaperone must be present during the consultation and directly observe all contact between the practitioner and the patient. It should be up to the practitioner to provide a suitably qualified chaperone such as a member of the nursing staff with clinical qualifications. According to Mr Safi, the practice where he proposes to work is owned indirectly by himself and his wife. Currently two nurses are employed by the practice, a male and a female. If the female nurse is not available, and the patient agrees to the observer being a male nurse, that is acceptable. Where the patient is aged between 13 and 17, a parent or guardian may agree to perform the role of a chaperone if, for example, a member of the nursing staff is not available. The consent of that person must be obtained. For females aged 13 and over attending without a parent or guardian, Mr Safi should only use a member of his nursing staff as an observer. 9. As to the hours that Mr Safi should work and the number of patients he should see, the Council proposes that he treat no more than four patients an hour and no more than 32 patients a day. Mr Safi proposed that he practise no more than 40 hours a week and he treat no more than 160 patients in that time. The aim of these proposed conditions is that Mr Safi works reasonable hours so that his mental health is not adversely affected and patient safety is not compromised. We agree with Mr Safi's proposal that he work no more than 40 hours a week over 5 days. Some consultations are short and we do not consider it necessary to restrict Mr Safi to four patients an hour. Six patients an hour is acceptable. However, to keep appointment lengths and working hours to a reasonable level, Mr Safi should see no more than 32 patients a day. 10. The Council proposed a condition that Mr Safi be subject to what is known as "Category B" supervision. Mr Safi proposed that he be subject to "Category C" supervision. The main difference is that for Category C supervision, the supervisor is not required to practise at the same location as the practitioner. We do not consider a supervision condition of any category to be appropriate. No complaint was made as to Mr Safi's knowledge or skills. Mr Safi is expected to participate in education and training to maintain that knowledge and those skills. 11. However, we are persuaded that a mentoring condition is appropriate. Such a condition will give Mr Safi the opportunity to discuss his personal and professional development with a person he trusts. In our view, Mr Safi is more likely to develop a trusting relationship with a mentor than a supervisor. If that happens, it will further ameliorate any risk that Mr Safi may not tell the truth if he engages in further wrongdoing of any kind. We agree with the Council's proposed condition 6. 12. The proposed health condition is that Mr Safi attend for treatment by a psychiatrist of his choice and that the psychiatrist determine the frequency of the treatment. Mr Safi proposes that he see a psychologist on a fortnightly basis for 12 months and then at a frequency and for a period of time determined by the psychologist. Although seeing a psychiatrist is important, it is the insight and strategies Mr Safi has gained from seeing psychologists that has been critical in his rehabilitation. For that reason, we agree with Mr Safi's proposed health condition. In accordance with Ms Sliger's recommendation, one particular area for the psychologist to monitor is Dr Safi's alcohol consumption. Costs 1. In circumstances where we have reinstated Mr Safi's registration, the Council does not apply for costs. Orders 1. The Tribunal makes a reinstatement order. 2. The following practice and health conditions are attached to Mr Safi's registration: Practice conditions 1. The practitioner must obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. The practitioner must practise in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the Practitioner): Where the patients and patient records are shared between medical practitioners Where there is always one other registered medical practitioner on site 3. For female patients 13 years or over, the practitioner must not examine the patient or perform any procedure unless the examination or procedure is observed by a chaperone in accordance with the following requirements: a. Prior to any such examination or procedure, the practitioner must tell the female patient of the requirement for a chaperone to be present and obtain the person's consent. If the person does not consent, the examination or procedure must not take place. b. The patient's consent must be recorded in the patient's notes. c. The chaperone may be the parent or guardian of a person aged between 13 and 17 years if the parent or guardian consents to performing that role. d. The parent or guardian's consent must be recorded in the patient's notes. e. For patients 18 years or over, the chaperone must be a registered nurse, registered enrolled nurse or nurse practitioner who has been approved by the Medical Council of New South Wales. f. The practitioner must forward to the Council within seven days of the end of each month a report listing all consultations where an observer was required including the time and date of the consultation, the kind of examination or procedure performed, the name and signature of the observer, the name and signature of the patient 13 years and over indicating her consent and the name and signature of the parent or guardian consenting to performing the role of chaperone. g. The cost of complying with this condition is to be paid by the practitioner. h. The practitioner may provide emergency medical services to female patients in compliance with section 139C(c) of the Health Practitioner Regulation National Law. i. If the practitioner provides such emergency care, he 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. 4. The practitioner must work no more than 40 hours a week over five days and see no more than, 6 patients an hour, 32 patients a day and 160 patients a week. When requested to do so by the Medical Council of NSW, the practitioner is to provide the Medical Council with copies of records confirming the number of patients treated, their consultation times and hours worked on any dates as specified by the Council. 5. The practitioner must nominate an experienced general practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each mentoring meeting the practitioner is to include discussion of the issues highlighted in this decision, his personal and professional development and any personal and/or medical practice issues as they arise. b. The practitioner must authorise the mentor to report, in an approved format, to the Medical Council of NSW every six months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. c. The practitioner must authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which imposed this condition and any other decision or report as determined by the Council. 6. The practitioner must authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 7. The practitioner must authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health conditions 8. The practitioner attend for treatment by a registered psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. must authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; or (iii) a significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner. c. must authorise the Medical Council of NSW to forward a copy of this decision and any other decision or report as determined by the Council to the treating practitioner. Notations A. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). B. Sections 125 to 127 of the Health Practitioner Regulation National Law are applicable while the practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 07 March 2022 - Practice conditions renumbered 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: 07 March 2022