Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hachem [2022] NSWCATOD 169 Hearing dates: 31 October 2022 Date of orders: 19 December 2022 Decision date: 19 December 2022 Jurisdiction: Occupational Division Before: S Dunn, Senior Member R Giuriato, Senior Member R Engel, Senior Member B Seth, General Member Decision: 1. Pursuant to ss 149C(1)(b) and 149C(1)(c) of the Health Practitioner Regulation National Law (National Law) the registration of Elie Michel Hachem (Respondent) as a chiropractor is cancelled. 2. Pursuant to s 149C(7) the Respondent may not apply for a review of Order 1 for a period of one year from the date of these orders. 3. Under clause 13 of Schedule 5D of the National Law the Respondent is to pay the Commission's costs as agreed or assessed. Catchwords: HEALTH – professional registration and discipline – chiropractor – practitioner convicted of criminal offences – repeated failure to notify – whether failures to notify amount to professional misconduct - whether circumstances of the offences render the practitioner unfit in the public interest to practise Legislation Cited: Civil and Administrative Tribunal Act 2013 No 2 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1900 No 40 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Gayed v Walton [1997] NSWSCA 121 Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 Health Care Complaints Commission v Morris [2022] NSWCATOD 120 Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31] Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Elie Michel Hachem (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Millennium Lawyers (Respondent) File Number(s): 2022/00181548 Publication restriction: On 8 July 2022 an order was made pursuant to s 64 (1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the names of the persons set out in the schedule to the Complaint. REASONS FOR DECISION 1. This is an application to the Tribunal by the Health Care Complaints Commission (Commission) for disciplinary findings and orders against the Respondent, Elie Michel Hachem, following a determination by the Director of Proceedings of the Commission to prosecute Complaints against the Respondent. Mr Hachem was a registered chiropractor from 21 December 2017 until 3 February 2021 when his registration was suspended. 2. The Complaints against the Respondent are that he has been convicted of criminal offences under s 144(a) of the Health Practitioner Regulation National Law (NSW) (National Law), that he is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) and/or s 139B(1)(l) and that he is guilty of professional misconduct under s 139E of the National Law. 3. If the Tribunal finds the subject matter of the Complaints against the Respondent to have been proved the Commission seeks the following orders: 1. an order cancelling the practitioner's registration under section 149C(1)(b) or section 149C(1)(c) of the National Law; 2. an order under section 149C(7) that an application for review of the order under Division 8 may not be made until after 3 years; and 3. an order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed. 1. The Respondent was legally represented but neither he nor his legal representative appeared at the hearing of these proceedings. The Tribunal, being satisfied that the Respondent had been given notice of the hearing, had been served with the Complaints, the material relied upon by the Commission and the proposed orders sought by the Commission made an order under s 165J of the National Law that the proceedings be heard in his absence. 2. For the reasons which follow we find that the subject matter of the Complaints (other than Particular Three of Complaint Three) have been proven and we have decided to cancel the Respondent's registration with a non-review period of one year. Material relied upon by the Commission 1. The Commission relied upon: 1. A bundle of emails between the Commission and the Respondent's legal representative evidencing that the Commission's materials had been provided to the Respondent and he had been made aware of the orders the Commission was seeking and had been provided with a copy of the Commission's written submissions (Exhibit A1); 2. A bundle of documents provided to the Tribunal on 26 September 2022 comprising 475 pages (Exhibit A2); 3. Written submissions dated 28 October 2022; 4. Further written submissions provided to the Tribunal and the Respondent on 3 November 2022 in accordance with the Tribunal's orders. 1. The Respondent did not file any materials in relation to the Application. In an email to the Tribunal dated 25 October 2022 the Respondent's legal representative stated: We confirm the orders sought by the Commission are not opposed, the matter will not be defended, and the Respondent does not intend to file any material. Neither our office or Mr Hachem will be in attendance. 1. Nevertheless, as a matter of procedural fairness, the Tribunal made an order that the Respondent provide to the Commission and the Tribunal any submissions that he may wish to make in reply by 14 November 2022. 2. The Respondent did not file any submissions in reply. Relevant Legislation 1. It is convenient to set out below those provisions of the National Law relevant to this application. 2. Section 3 of the National Law provides, relevantly: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; … (2) The objectives of the national registration and accreditation scheme are— (a) to provide for 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; and … (3) The guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) 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. 1. Section 3A of the National Law, which is an additional provision for NSW, provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. A "NSW provision" is defined in s 5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. 1. Section 109 of the National Law provides: 109 Annual statement (1) An application for renewal of registration must include or be accompanied by a statement that includes the following— … (b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration; … 1. Criminal history is defined in s 5 of the National Law as follows: criminal history, of a person, means the following— (a) every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law; (b) every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence; (c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law. 1. Section 130 of the National Law states: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. … (3) In this section— relevant event means— (a) in relation to a registered health practitioner— (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; or … 1. Section 139B of the National Law, which is an additional provision for NSW, relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E of the National Law, which is an additional provision for NSW, defines "professional misconduct" as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. Section 144, which is an additional provision for NSW, sets out the grounds for complaint which may be made against health practitioners, including: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. … 1. Section 149, which is an additional provision for NSW, provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if— (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal. 1. Section 149C, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; … Facts 1. The following facts which emerge from the evidence which has been filed by the Commission are found by us to be proved to the requisite civil standard. 2. The Respondent completed a Bachelor of Chiropractic Science degree and a Masters of Chiropractic Science degree at Macquarie University and was first registered as a chiropractor on 21 December 2017. 3. He worked with an osteopath before setting up his own business known as EH Chiro and Sports Clinic sometime in 2019 which he conducted first in Liverpool and then in Fairfield. 4. On 24 July 2019 the Respondent was charged with 53 criminal offences, namely: 1. 51 counts of Intentionally record intimate image without consent contrary to section 91P(1) Crimes Act 1900 (NSW) (Crimes Act); 2. 2 counts of Sexually touch another person without consent contrary to section 61KC(a) Crimes Act. 1. The Facts Sheet prepared by the Police outlined the circumstances giving rise to the charges. 2. As to the counts of intentionally record intimate image without consent, on 19 July 2019 the Respondent was captured on CCTV footage within a Coles supermarket in Liverpool holding his phone pointed up the skirt of a girl who was shopping with her sister in the supermarket at the time. On 24 July 2019 the Respondent was arrested in relation to that incident and his mobile phone was examined which revealed further offences of an identical nature over the period December 2018 to July 2019, in each case in various different locations the Respondent had used his mobile phone to film up the skirt of female persons and their buttocks and underwear could be clearly seen. 3. As to the counts of sexually touch another person without consent, both victims were 16 years old. On 14 January 2019 the Respondent entered the Target Department Store in Liverpool where the victims were working. He approached the first victim (referred to elsewhere in these reasons as Person C) in the Children's Department where she was working and was talking to her about his Instagram page and trying to get her to "follow" him. The page he was showing the victim was the "EH Chiro and Sports Clinic" Instagram page. The victim felt uncomfortable and walked to the Women's Department where her friend, the second victim (referred to elsewhere in these reasons as Person D) was working to make herself feel more comfortable. The Respondent kept talking about his Instagram page and started asking the victims what type of men they were into, trying to set them up with people he knew. The victims told him that they were 16 and were not interested. They walked to the Lay-By area as they were feeling uncomfortable and the Respondent left the store. A few days later the Respondent attended the Target store and saw the two victims again. He was again promoting his Instagram page and asking the victims what type of men they were into. The Respondent was touching the victims by hugging them from behind, placing his arms around their waist and pressing his body against theirs. The Respondent also kneed the second victim in the buttocks. He kissed the first victim on the forehead and was also hugging her from the side with his arms around her and body pressed against her. Neither victim had consented to the Respondent touching them in this way. During the encounter the Respondent told the victims to be quiet on many occasions when their voices became raised so as not to draw attention to what was occurring. On 24 January 2019 the Respondent again attended Target while the first victim only was working and approached her again. The first victim reported this incident to Police. Unbeknownst to her on that occasion the Respondent recorded her buttocks on his phone whilst wearing a tight pair of jeans as she bent over a rack of clothing. 4. On 27 November 2019, the Respondent applied to the Australian Health Practitioner Regulation Agency (AHPRA) to renew his registration. In answer to the question: "Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?" the Respondent replied "No". 5. On 30 January 2020, 43 of the counts of Intentionally record intimate image without consent were withdrawn. 6. On 11 June 2020 the Respondent pleaded guilty to and was convicted of the remaining 10 offences, namely: 1. Sequence 1 on 19 July 2019 at Liverpool - Intentionally record intimate image without consent contrary to section 91P(1) Crimes Act 1900 (NSW) - recorded up the skirt depicting the buttocks covered by underwear of Person A without her consent, knowing that she did not consent; 2. Sequence 5 on 27 February 2019 at Liverpool - Intentionally record intimate image without consent contrary to section 91P(1) Crimes Act 1900 (NSW) - recorded up the skirt depicting the buttocks covered by underwear of an unknown female without her consent, knowing that she did not consent; 3. Sequence 6 between 14-24 January 2019 at Liverpool – Sexually touch another person without consent contrary to section 61KC(a) Crimes Act 1900 (NSW) - hugged Person C pressing his body against her and kissed her on the forehead, without her consent, knowing that she did not consent; 4. Sequence 7 between 14-24 January 2019 at Liverpool – Sexually touch another person without consent contrary to section 61KC(a) Crimes Act 1900 (NSW) - hugged Person D pressing his body against her and touched her buttocks with his knee, without her consent, knowing that she did not consent; 5. Sequence 48 between 9-28 December 2018 at Liverpool - Intentionally record intimate image without consent contrary to section 91P(1) Crimes Act 1900 (NSW) - recorded up the skirt depicting the buttocks covered by underwear of 17 unknown females without their consent, knowing they did not consent; 6. Sequence 49 between 14-30 December 2018 at Ashfield - Intentionally record intimate image without consent contrary to section 91P(1) Crimes Act 1900 (NSW) - recorded up the skirt depicting the buttocks covered by underwear of 2 unknown females without their consent, knowing they did not consent; 7. Sequence 50 on 16 December 2018 at Campsie - Intentionally record intimate image without consent contrary to section 91P(1) Crimes Act 1900 (NSW) - recorded up the skirt depicting the buttocks covered by underwear of 2 unknown females without their consent, knowing they did not consent; 8. Sequence 51 between 4 January - 27 February 2019 at Liverpool - Intentionally record intimate image without consent contrary to section 91P(1) Crimes Act 1900 (NSW) - recorded up the skirt depicting the buttocks covered by underwear of 11 unknown females without their consent; 9. Sequence 52 on 28 February 2019 at Ashfield - Intentionally record intimate image without consent contrary to section 91P(1) Crimes Act 1900 (NSW) - recorded up the skirt depicting the buttocks covered by underwear of 2 unknown females without their consent, knowing they did not consent; 10. Sequence 53 between 14 March - 2 June 2019 at Liverpool - Intentionally record intimate image without consent contrary to section 91P(1) Crimes Act 1900 (NSW) - recorded up the skirt depicting the buttocks covered by underwear of 10 unknown females without their consent, knowing they did not consent. 1. We refer to those offences in these reasons as the "record intimate image" and "sexual touching" offences. 2. The Respondent put before the Court at the sentencing hearing: 1. An undated letter of reference from a Justice of the Peace and Community Support Person for the Maronite Catholic Community of Sydney which stated: … Elie is a young man of strong Christian values. This matter before the court is truly out of character for him, and I am going above and beyond to ensure an incident as such is never to be repeated. I do know however, that Elie is deeply remorseful for his actions and I can almost guarantee that from this point on, Elie will be a good decent citizen in society… 1. An undated Letter of Apology from the Respondent which stated: … First and foremost, I would like to offer my heartfelt and sincere apologies to the victims here today. The suffering and pain caused by my actions is unacceptable behaviour… It truly saddens me that I have caused hurt and discomfort towards these innocent people and if I had my time again, I would never have behaved in such an appalling manner. Your Honour, this is not who I am. These incidents go against my deep Christian values. Truly, I tell you that this is out of character for me. I stand before the Court today in deep remorse for my actions. I apologise unreservedly to the victims and their families. … 1. A report dated 6 April 2020 prepared by Mr Graeme Randall, a provisional psychologist. Mr Hachem had been referred to Mr Randall by his Community Support Worker, Mr Assaf, who had requested a report for the sentencing hearing. Mr Randall's report was based on four sessions with the Respondent, an interview with Mr Assaf and psychometric assessments. That report included the following statements: Mr Hachem said that he was remorseful, however his language and responses might suggest that he does not fully understand why he is remorseful. … His language suggests strong sexualised attitudes towards women. … Throughout the sessions with Mr Hachem, it appeared that he has a very poor understanding of interpersonal boundaries. As noted above, he also appears to exhibit poor impulse control. … Mr Hachem's risk for re-offending based on [a particular risk assessment analysis] is low-moderate. … Mr Hachem is committed to therapy to improve himself. He is becoming aware of his need to develop empathy for others, as well as appropriate boundaries for himself, while recognising the boundaries of others. He is committed to working on the areas of concern as noted above, including his impulsive behaviour and gaining insight into the impact of his offence, as well as developing a robust management plan. … Summary Mr Hachem is currently before the court on a sexual offence charge. He is aware that his actions were wrong and is committed to eliminating the risk factors that may have impacted his offending behaviour. He is also committed to improving the positive, protective factors in his life, suggesting a positive outcome should he be given the opportunity to engage in evidenced-based treatment. 1. Also before the Court were: 1. A letter dated 17 January 2020 from Dr Maher Milad referring the Respondent to Fairfield Hospital Mental Team noting that: The patient has presented with Psychiatric assessment, stress symptoms, ? Psychotc sypts."; 1. A sentencing assessment report prepared by Corrective Services NSW based on interviews with Mr Hachem, contact with his friend and psychologist, perusal of pre-sentence consultation notes prepared by a Corrective Services Senior Psychologist, Laura O'Neill dated 7 April 2020, police facts and history and Corrective Services NSW records. That report stated: … Mr Hachem accepted partial responsibility for his actions. He attributed his behaviour to poor stress management after experiencing a build up of stress and pressure in the lead up to his offences. … Mr Hachem was apologetic and demonstrated some insight by acknowledging that the victims would have felt traumatised by his behaviour. However, Mr Hachem minimised the seriousness of his behaviour, stating that he did not think it was necessary for the victim to report his behaviour to the Police. … Mr Hachem has been assessed at a Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R). Community Corrections has overridden the offender's overall risk of re-offending to T1/Medium-High because the Static-99R has assessed Mr Hachem as an Above Average risk of re-offending. 1. The Respondent was fined $5,500 and placed on a community corrections order for 30 months which required him to serve 200 hours of community service. 2. In sentencing the Respondent, Magistrate Abdul-Karim remarked: Whilst each image is not particularly explicit, the Court cannot lose sight of the fact that the offending took place over a long period of time and that there are a large number of victims involved and it appears to me that the offending would have continued but for detection by the police. 1. On 10 July 2020 the Respondent attended Campsie Police Station where his reporting obligations were explained to him. 2. On 21 July 2020 the Police visited the Respondent at his home and located a Snapchat application on his mobile phone. This application and the username for it had not been declared to police. When questioned about it, the Respondent said "I am hardly even on it" further stating that he would use the account "once every three days". Police reviewed the account which revealed that the Respondent had received and reviewed chats from 1, 3 and 5 days ago, 1 week ago and 2 weeks ago. 3. On 28 July 2020 the Respondent was charged with one count of failure to comply with reporting obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW). 4. On 6 August 2020, Police conducted another inspection at the Respondent's premises and discovered that the Respondent had access to the internet at his residence which he had failed to disclose to Police. When asked about it the Respondent stated that the internet router was not working, however, the Police were able to connect to a Wi Fi network and use the internet without restriction. The Respondent said that he did not use it so did not believe it was necessary to report it. On that date the Respondent was charged with another count of failure to comply with reporting obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW). 5. On 4 November 2020 the Respondent pleaded guilty to and was convicted of the following offences: 1. Sequence 1 on 21 July 2020 - Fail to comply with reporting obligations under section 17(1) Child Protection (Offender) Registration Act 2000 (NSW) failing to declare a social media account being a "Snapchat" account/username; 2. Sequence 1 on 6 August 2020 - Fail to comply with reporting obligations under section 17(1) Child Protection (Offender) Registration Act 2000 (NSW) for failing to disclose to Police his home internet account/access. 1. We refer to those offences in these reasons as the "failure to comply" offences. 2. For those two offences the Respondent was sentenced to a term of imprisonment of nine months to be served by way of an intensive Correction Order. In respect of the offences for which he had originally been sentenced in June 2020, the community correction orders were revoked and the Respondent was again sentenced to a community corrections order for 30 months (commencing in June 2020 and expiring in December 2022) which required him to serve 200 hours of community service. He was also fined an additional $15,000. In sentencing the Respondent Magistrate Freund stated: However, although I am of the view that a custodial sentence is warranted, I am of the view that it can be served in the community and there are alternatives to a fulltime custodial sentence, so you are not going to gaol today, Mr Hachem, but you were very close. … Let me make myself very clear Mr Hachem. This is a gaol sentence served in the community. It is not supervised by the courts. You breach this order in any way, it is supervised by Community Corrections, effectively Probations and Parole, and they can send you to gaol for the balance or the whole of the sentence. You are on a knife's edge. Do not breach it. 1. On 5 December 2020 the Respondent applied to renew his registration as a chiropractor. In answer to the question: "Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?" the Respondent replied "No". 2. On 22 January 2021 a member of the public made an anonymous complaint to AHPRA alleging that on 14 February 2020 the Respondent sexually assaulted his fiancé during a chiropractic treatment. (There is no evidence before the Tribunal about that consultation and the Tribunal is not being asked to make any findings about the subject of that complaint). This complaint also noted that multiple charges of sexual assault and taking photos of people without their consent had been made against the Respondent. 3. On 29 January 2021 the Chiropractic Council of New South Wales (Council) sent an email to the Respondent advising that it had considered a complaint against him and would now consider whether it was appropriate to suspend or place conditions on his registration, requesting he attend a meeting with them on 3 February 2021. The Respondent did not contact the Council or provide any submissions. 4. An urgent hearing before delegates of the Council was held on 3 February 2021. The Respondent did not attend. A Police COPS report was tabled for review by the panel which detailed the charges and convictions referred to above. The panel noted that the Respondent had not notified AHPRA of any charges or convictions. The delegates determined that the allegations indicated misconduct of a serious nature and decided to proceed with the hearing as a result of which an order was made under s 150(1) (a) of the National Law that the Respondent's registration be suspended. 5. The Respondent sent an email on 2 April 2021 to the Council seeking a review of the Council's decision to suspend his registration. In that email the Respondent stated: … I was charged by NSW Police on or about 24 July 2019 for matters that have nothing to do with my profession, my work as a chiropractor, for an at work incident or anything remotely related to my work as a chiropractor. These Police matters were resolved and finalised in 2020 and I was punished accordingly. … The Police complaint referred to you in your letter of 15 March 2021 regarding the unnamed patient has not resulted in any form of charges or Court proceedings. … I have never acted inappropriately towards a patient or breached my professional boundaries with a patient. … I was going through a very difficult time in my life last year, it is not an excuse and I understand that, it is my responsibility to have notified the National Board and I did not do so, for this I am truly sorry and I can assure you is something that will never happen again. I did not intentionally go out of my way to mislead the National Board or not report, I was not thinking clearly at the time, I was overwhelmed with what was going on, the stress was extreme, I had never been through anything like this ever before and unfortunately the last thing on my mind at the time while I was going through it all was to report to the National Board, it was an honest slip of the mind in very difficult circumstances for me. I have been diagnosed by a psychiatrist with Bipolar disorder type 2 and adjustment disorder. I am receiving treatment and taking medication daily for this disorder as directed by the medical professionals. I do not believe I am a risk to the public. I have never acted inappropriately towards a patient and I once again deny the complaint/allegations made by the unnamed patient and her partner. If the board has concerns, I am willing to practice under restriction or with limitation on age, gender or body parts for a period of time to prove myself to the National Board and the public that I am not a risk and to restore confidence with regards to public safety. … 1. On 22 April 2021 the Respondent telephoned the Customer Service Team at AHPRA. The note of that conversation states: Purpose: I wan (sic) to report an offence that I made and the outcome Action: Adv- directed to website Adv to complete Notice of Certain Events – NOCE-00, and you can submit via online upload 1. On 22 April 2021 the Respondent made a further telephone call to the Customer Service Team at AHPRA. The note of that conversation states: Purpose: HP calling to disclose a change in the CH – pleaded guilty to a charge Action- -Guided HP to NOCE-00 form -Adv HP will need to submit via post as account inactive – HP has an open notification 1. The Respondent sent by way of Express Post (received by AHPRA on 26 April 2021) a Notice of Certain Events Form NOCE – 00 dated 22 April 2021. The form states "This form is to give notice to the National Board of an occurrence of a relevant event" and under the heading "Completing this form" it states "Place X in all applicable boxes". 2. Under the heading "For a registered health practitioner you must give notice" there are then a series of boxes which can be marked "X", including: You have been charged, in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more You have been convicted of, or are the subject of a finding of guilt for, an offence, in a participating jurisdiction, punishable by imprisonment A complaint has been made about you to: … Another Commonwealth, state or territory entity having functions relating to professional services provided by health practitioners or the regulation of health practitioners. 1. In that form the Respondent did not mark X against the first two statements but he marked X against the last of these statements. The Respondent included with that document a screen shot from the Revenue NSW website which is a list of outstanding fines that the Respondent had not paid. The information included a description of each of the offences in respect of which the Respondent had been convicted, the date of each offence and the date a fine was imposed in respect of each offence. 2. Proceedings under s 150A of the National Law were heard on 28 April 2021. The Respondent attended that hearing. At that hearing: 1. When asked whether he would like to make submissions the Respondent said: I've had to report to AHPRA of my previous criminal record that I had which had nothing to do with what happened in the clinic or the claim that has taken place. So I've reported that to AHPRA… 1. When asked whether he had reported his suspension to AHPRA, the Respondent said: I had no chance to but I did send out a post of a screenshot of my – what do you call them, the charges that were [made] so I've reported that to AHPRA but I haven't reported that I've lost my registration, no, I haven't. 1. When asked about his responsibility to report his suspension to AHPRA, the practitioner said: Absolutely, I wouldn't think about it then – I didn't think about reporting because I was under a lot of pressure. To be honest with you, I'm currently seeking psychiatry help, mental issues as well. I've been diagnosed with bipolar type II disorder and adjustment disorder that I've been taking medication for, I've been under a lot of stress and that's the only reason why I wouldn't have reported it. So I will report it, now that I know, I will report it straight away to APHRA, just like I did with my criminal charges. 1. When asked why he had not yet reported his suspension to AHPRA, noting four weeks had passed since his written submission to the Council, the practitioner said: I've reported the criminal charges only that I had to report, that were taken outside that has nothing to do with the clinic and I just haven't told them that I lost my registration, that's all. 1. An order was made pursuant to s 150A(3) of the National Law that the Respondent's suspension be continued. 2. On 4 May 2021 the Commission requested AHPRA provide the following information: 1. Mr Hachem's application for initial registration as a chiropractor and supporting documents; 2. Mr Hachem's registration renewal applications and supporting documents for each renewal period following his initial registration; and 3. Has Mr Hachem notified of any relevant events (not including his self-notification dated 22 April 2021)? If so, please provide copies of all relevant documents. 1. In response, under cover of letter dated 17 May 2021, AHPRA provided Mr Hachem's online application for registration, his 2018, 2019 and 2020 online applications for renewal of registration, service request notes in respect of the 2 telephone calls to AHPRA on 21 April 2021 referred to above and the Notice of Certain Events Form NOCE-00 received by AHPRA on 26 April 2021. 2. By email dated 21 May 2021, the Respondent's solicitor provided to the Commission the following documents: 1. A letter dated 10 May 2021 addressed to "to whom it may concern" from Dr Ricky Tsang, the Respondent's treating psychiatrist which stated that the Respondent had been under his care since February 2021 and that the working diagnoses of his conditions are bipolar disorder and adjustment disorder, that he has been having pharmacological treatment and psychological treatment with reported good therapeutic effect according to his brother who lives with the Respondent. It states that the Respondent was now in early remission of his condition and concludes: If he is able to continue with his treatment as planned, his risk of re-offending and relapse of his illnesses would be mitigated in long term and considered to be safe to work again in his profession in near future… 1. A letter dated 18 May 2021 addressed to "to whom it may concern" from Dr Rony Kayrouz, the Respondent's treating psychologist since April 2021 which stated that the Respondent was undergoing psychological treatments for symptoms of bipolar disorder II and outlines the treatment plan. It also states: If Elie continues to participate in treatment learning new CBT strategies to manage his stress and symptoms over the next 6-12 months, I believe returning to work in a gradual manner as a chiropractor in during treatment would be beneficial as he would receive the support from his clinical team to ensure he utilises the new strategies to manage the stresses associated in his return to work… 1. A letter dated 20 May 2021 addressed to "to whom it may concern" from Dr B.A. Maroun which states that the Respondent had been attending his general practice for his general medical needs since October 2004, he developed symptoms of his current medical condition Bipolar disorder and adjustment disorder early in 2020 and has had some psychological problems since that time, has been attending his general practice for treatment of that problem until the current time and continues to be under his care. It says that he sees the Respondent about once a month and he is very compliant with his appointments, never having missed one and is also consistently compliant with attendance at both his psychiatrist and psychologist and with taking his medication. It further states: Elie is showing very enthusiastic and genuine behaviour aimed towards his rehabilitation. He has already come a long way in his improvement and he is extremely motivated to continue on his path to recovery. He no longer exhibits the erratic behaviour of his hypomanic episodes of Bipolar II, as these are well controlled with treatment. At this rate of recovery, I would anticipate Elie would resume his usual employment as a Chiropractor in the coming 3-6 months. 1. By email to the Respondent's solicitor on 12 July 2021, the Commission asked whether the Respondent had consulted an additional GP in relation to his recent mental health diagnoses. 2. By email dated 1 September 2021 in response, directly from the Respondent, the Respondent stated: My family Dr is Dr Maroun, he is the one who referred me to see Psychiatrist Dr Ricky Tsang. I have not seen any other General Practitioners other than Dr Maroun. 1. Included in the materials provided to the Tribunal by the Commission is a Medicare Patient History Report in respect of services provided to the Respondent during the period 1 December 2016 to 11 August 2021. That report indicates that, as well as services provided by Dr Maroun, another general practitioner, Dr Milad, provided medical services to the Respondent on one occasion in each of April 2019, November 2019, May 2020 and November 2020. Medical Evidence 1. The Commission does not make a complaint of impairment and has therefore not sought to obtain a current psychiatric assessment of the Respondent. 2. The Respondent has not provided the Tribunal with any evidence including any more recent opinions from those treating him, if in fact he remains under treatment. In the circumstances it is neither necessary nor possible for the Tribunal to make any finding as to whether the Respondent did or does suffer from Bipolar II disorder or adjustment disorder, or any other medical condition, or whether any such condition was a cause of or contributed to his offending (noting that the Respondent's GP indicated that symptoms developed in 2020 which was after the offences). Complaints – consideration 1. The Respondent did not appear at the hearing of these proceedings and was aware that the proceedings may go ahead in his absence and that adverse findings and orders may be made against him. 2. He has not, however, admitted the Complaints in writing to the Tribunal so that s 165H of the National Law does not apply and the Tribunal must conduct an inquiry into the Complaints. 3. The Commission bears the onus of proof of the Complaints. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made, which is recognised as the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336; Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41; Gautam v Health Care Complaints Commission [2021] NSWCA 85; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24]. Complaint One 1. Complaint One is that, pursuant to s 144(a) of the National Law, the Respondent has been convicted of criminal offences in New South Wales. 2. In evidence before the Tribunal are copies of certificates of conviction issued by the Registrar of the Local Court of NSW at Liverpool in respect of the record intimate image and sexual touching offences and copies of certificates of conviction issued by the Registrar of the Local Court of NSW at Burwood in respect of the failure to comply offences. 3. We find that the subject matter of Complaint One has been proved. Complaint Two 1. Complaint Two is that the Respondent contravened s 130(1) of the National Law by failing to notify the National Board of relevant events within 7 days after becoming aware of them and is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) and 144(b) of the National Law. 2. Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes a "contravention by the practitioner (whether by act or omission) of a provision of this Law". 3. Section 130 of the National Law stipulates that registered health practitioners must, within seven days after becoming aware that a relevant event has occurred in relation to the practitioner, give the National Board written notice of the event. A relevant event in relation to a practitioner includes that the practitioner is charged with an offence punishable by 12 months imprisonment or more or has been convicted of an offence. AHPRA receives notifications of relevant events for National Boards under the National Law. 4. Section 91P of the Crimes Act 1900 (NSW) provides: 91P Record intimate image without consent (1) A person who intentionally records an intimate image of another person— (a) without the consent of the person, and (b) knowing the person did not consent to the recording or being reckless as to whether the person consented to the recording, is guilty of an offence. Maximum penalty—100 penalty units or imprisonment for 3 years, or both. 1. Section 61KC(a) of the Crimes Act provides: 61KC Sexual touching Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally— (a) sexually touches the complainant, or (b) incites the complainant to sexually touch the accused person, or (c) incites a third person to sexually touch the complainant, or (d) incites the complainant to sexually touch a third person, is guilty of an offence. Maximum penalty—Imprisonment for 5 years. 1. Section 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) provides: 17 Offence of failing to comply with reporting obligations (1) A registrable person must not fail to comply with any of the person's reporting obligations without reasonable excuse. Maximum penalty—500 penalty units or imprisonment for 5 years, or both. 1. It is clear from the evidence that: 1. The Respondent was registered as a chiropractor at all times between 21 December 2017 and 3 February 2021; 2. On 24 July 2019 he was charged with 51 record intimate image and two sexual touching offences which offences carried a maximum penalty of 3 and 5 years imprisonment respectively; 3. On 11 June 2020 the Respondent was convicted of 8 record intimate image and two sexual touching offences; 4. On 28 July 2020 and 6 August 2020 he was charged with the failure to comply offences which offences carried a maximum penalty of 5 years imprisonment; 5. On 4 November 2020 the Respondent was convicted of those offences; 6. In response to a request by the Commission for copies of all notifications of relevant events made by the Respondent to AHPRA, the only notification produced by AHPRA was the notification received by AHPRA on 26 April 2021; 7. In his email dated 2 April 2021, the Respondent admitted that he had not notified the National Board of these events. 1. We find that the Respondent did not notify, and contravened s 130 of the National Law in failing to notify AHPRA within seven days that: 1. he had been charged with 51 record intimate image and two sexual touching offences; 2. he had been convicted of 8 record intimate image and two sexual touching offences; 3. he had been charged with the failure to comply offences; and 4. he had been convicted of those offences. 1. As contraventions by the Respondent of a provision of the National Law have been established, it follows that we must find that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law. The Tribunal has no discretion in that regard. 2. We find that the subject matter of Complaint Two has been proved. Complaint Three 1. Complaint Three is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) and/or (l) of the National Law in that he has contravened a provision of the National Law and/or engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 2. The Particulars of Complaint Three are that: 1. The Respondent failed to disclose details of any change in his criminal history that occurred during his preceding period of registration when lodging a renewal application on 27 November 2019, in contravention of s 109(1)(b) of the National Law; 2. The Respondent failed to disclose details of any change in his criminal history that occurred during his preceding period of registration when lodging a renewal application on 5 December 2020, in contravention of s 109(1)(b) of the National Law; 3. On 28 April 2021 the Respondent gave false and/or misleading information to the Chiropractic Council at proceedings held under s 150A of the National Law in that: 1. He told the members of the panel that he had reported his criminal charges to AHPRA when he had not; and 2. He told the members of the panel that he had reported his criminal record to AHPRA when he had not. Particulars One and Two of Complaint Three 1. Section 109(1)(b) provides that an application for renewal of registration must include details of any change in the applicant's criminal history in the applicant's preceding period of registration. Criminal history includes charges made against the person for an offence and convictions of the person of an offence. 2. It is clear from the evidence before the Tribunal that: 1. On 26 November 2018 the Respondent's registration was renewed for the period 1 December 2018 to 30 November 2019; 2. During that period, that is on 24 July 2019, the Respondent was charged with 51 record intimate image and two sexual touching offences; 3. On 27 November 2019 the Respondent lodged an application for renewal of his registration (2019 application for renewal) and his registration was renewed for the period 1 December 2019 to 30 November 2020; 4. In answer to the question in the renewal application form "Since your last declaration to AHPRA has there been any change to your criminal history that you have not declared to AHPRA" the Respondent answered "No"; 5. During the period of his 2020 registration, on 30 January 2020 43 charges of record intimate image offences were withdrawn, on 11 June 2020 the Respondent was convicted of 8 record intimate image and two sexual touching offences, on 28 July 2020 and 6 August 2020 he was charged with the failure to comply offences and on 4 November 2020 he was convicted of the failure to comply offences; 6. On 5 December 2020 the Respondent lodged an application for renewal of his registration (2020 application for renewal), and his registration was renewed, for the period 1 December 2020 to 30 November 2021; 7. In answer to the question in the renewal application form "Since your last declaration to AHPRA has there been any change to your criminal history that you have not declared to AHPRA" the Respondent answered "No". 1. It is not necessary for the Tribunal to find that the Respondent knowingly gave false information on the renewal applications, in the sense of a deliberate intention to deceive at the time of completing the applications. It is sufficient for the Tribunal to find that, at the time of filling in the applications, he was aware of the criminal charges and convictions and failed to answer the relevant questions accurately: Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [64]. 2. We find that at the time of filing the 2019 renewal application the Respondent was aware of the charges which had been made against him and did not include details of the changes in his criminal history that occurred during the Respondent's preceding period of registration in his 2019 application for renewal and contravened s 109(1)(b) in failing to do so. 3. We further find that at the time of filing the 2020 renewal application the Respondent was aware of the charges which had been withdrawn, the further charges which had been made against him and his convictions and did not include details of the changes in his criminal history that occurred during the Respondent's preceding period of registration in his 2019 application for renewal and contravened s 109(1)(b) in failing to do so. 4. As contraventions of the National Law have been established, again it follows that we must find the Respondent is guilty of unsatisfactory professional conduct under s 139(1)(b) of the National Law. Particular Three of Complaint Three 1. We do not, however, accept that Particular Three of Complaint Three, namely that the Respondent gave false or misleading information to Council at the s 150 proceedings on 28 April 2021, has been proved. 2. The Respondent sent a notification of relevant events which was received by AHPRA on 26 April 2021. With that notification the Respondent included a screenshot from the Revenue NSW website which is a list of outstanding fines that the Respondent had not paid. The information included a description of each of the offences in respect of which the Respondent had been convicted, the date of each offence and the date a fine was imposed in respect of each offence. 3. In its submissions the Commission argued that this notification did not satisfy the requirements of s 130 of the National Law as the Respondent had not marked the boxes: You have been charged, in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more You have been convicted of, or are the subject of a finding of guilt for, an offence, in a participating jurisdiction, punishable by imprisonment 1. Further, it submitted that the information provided by way of the screenshot did not satisfy the requirements as it also did not contain the dates of the relevant charges or convictions. 2. However, it is clear from the information contained in the screenshot which offences the Respondent had been fined for. The dates of the relevant fines correspond with the date of his convictions and it follows from the fact he had been convicted, that he must have been charged with those offences on some date between the date the offences were committed (which is provided) and the date he was convicted. That screenshot does not identify the 43 charges which were originally laid against the Respondent and withdrawn in January 2020. However, in our view, by 26 April 2021 the Respondent had notified AHPRA of the charges which were ultimately pressed and convictions for each of the record intimate image, sexual touching and failure to comply offences. 3. At the s 150A hearing on 28 April 2021, the Respondent said: I've had to report to AHPRA of my previous criminal record that I had which had nothing to do with what happened in the clinic or the claim that has taken place. So I've reported that to AHPRA… I had no chance to but I did send out a post of a screenshot of my – what do you call them, the charges that were [made] so I've reported that to APHRA but I haven't reported that I've lost my registration, no, I haven't. I've reported the criminal charges only that I had to report, that were taken outside that has nothing to do with the clinic and I just haven't told them that I lost my registration, that's all. (emphasis added) 1. Each of the statements emphasised, in our view, are accurate as at that date. 2. The Respondent also said at that hearing: So I will report it, now that I know, I will report it straight away to APHRA, just like I did with my criminal charges. 1. We accept that that statement might be read as the Respondent implying that he had reported the charges and convictions "straight away". However, that is not how the Complaint is framed. 2. The Complaint is that: 1. He told the members of the panel that he had reported his criminal charges to AHPRA when he had not; and 2. He told the members of the panel that he had reported his criminal record to AHPRA when he had not. 1. The Respondent did tell the members of the panel that he had reported his criminal charges and his criminal record to AHPRA, which, at the time of making those statements, was in fact true (albeit that his notification had been made only a matter of days before the hearing and did not identify charges which were originally laid but later withdrawn). 2. We do not find particular three of Complaint Three to have been proved. Complaint Four 1. Complaint Four is that the Respondent is guilty of professional misconduct under s 139E of the National Law in that he has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; or 2. Engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. 1. The Commission relies for this Complaint on the particulars of Complaints Two and Three both individually and cumulatively. Professional Misconduct 1. We have found that in failing to notify the charges and convictions and in failing to declare changes to his criminal history in his 2019 and 2020 renewal applications the Respondent has been guilty of numerous instances of unsatisfactory professional conduct. As to the circumstances in which unsatisfactory professional conduct is sufficiently serious to constitute professional misconduct in Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …" 1. In this case, the Respondent has repeatedly failed to notify the regulator of charges and convictions made against him over a period exceeding 20 months. The offences he was charged with and convicted of were extremely serious in nature involving him taking inappropriate images of women without their consent over a lengthy period of time and sexually touching 16 year old girls, all offences carrying lengthy maximum sentences. As a result, the regulator remained unaware of the charges until an unrelated complaint was lodged in January 2021 bringing the charges to its attention. The result of the Respondent's failure was that he was able to continue to practice as a chiropractor, as a sole practitioner, without supervision or oversight by the regulator. 2. While in his 2 April 2021 email to the Council, the Respondent said that he had not intended to deliberately mislead the Council by failing to notify his charges or convictions and his failure to do so was because he was under stress at the time, didn't think about it and it was an honest "slip of the mind", no explanation has been provided by the Respondent as to why he did not disclose those matters in his renewal applications in answer to a question directed specifically to any change in his criminal history. It is inconceivable that on 27 November 2019 when completing the 2019 renewal application, the Respondent could have forgotten that 4 months prior he had been charged with 53 counts of the serious offences of record intimate image and sexual touching for which he was awaiting trial. It is equally inconceivable that on 5 December 2020 when completing his 2020 renewal application, the Respondent could have overlooked that on 11 June 2020 he was convicted in relation to 8 record intimate image offences and two sexual touch offences and in November 2020, just one month prior, he had been convicted of the failure to comply offences for which the Magistrate made clear, he had only narrowly escaped a jail term. 3. The Respondent had professional and ethical obligations to notify the regulator and complete the renewal forms accurately. He failed to fulfil those obligations. 4. As the Tribunal stated in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [190]: These provisions are part of the protective architecture of the National Law. It is the compliance by practitioners with these provisions that allow regulatory authorities to decide whether a health practitioner's criminal history is relevant to the practise of their profession and thus ensure that only those health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. 1. Had the Council been made aware of these matters when it should have been, it could have taken immediate action to protect the public. It may have imposed conditions on his practice, such as a requirement that he be supervised or that restrictions be imposed on the categories of patients he could treat, or it may have suspended him at that time. 2. Failing to notify the regulator as required by the National Law about serious offences which occurred on multiple occasions over a lengthy period of time is conduct incompatible with public expectations as to the integrity and character of a registered chiropractor and sufficient in our view to warrant cancellation. 3. We consider that the failures to notify, each of which is an instance of unsatisfactory professional conduct, when considered together are of a sufficiently serious nature to justify the suspension or cancellation of the Respondent's registration such that it amounts to professional misconduct for the purposes of s 139E of the National Law. Appropriate orders: cancellation 1. As we have found the subject matter of the Complaints has been proved to the extent set out above, it falls then to determine whether the Tribunal should exercise its disciplinary powers. 2. As we have already indicated, we find that the Respondent was guilty of professional misconduct. As such, it would be open to the Tribunal to cancel the Respondent's registration under s 149C(1)(b). 3. In support of a cancellation order the Commission also relied in the alternative on s 149C(1)(c). S 149C(1)(c): Do the circumstances of the offence render the practitioner unfit in the public interest to practise 1. Section 149C(1)(c) provides that the Tribunal may suspend or cancel a registered health practitioner's registration if the Tribunal is satisfied that the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession. Unfit in the public interest to practise 1. The relevant principles were summarised recently by the Tribunal in Health Care Complaints Commission v Morris [2022] NSWCATOD 120 at [82] – [86] as follows: 82 In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14] the Tribunal stated: The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A. 83 The following principles emerge from the Tribunal's decision in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]: (1) The term "public interest" is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]; (2) s 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of "the practitioner's current fitness to practise" Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]-[69]; (3) In construing s 149C(1)(c) the Tribunal needs to take into account the objectives of the National Law which relevantly include "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". Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner "unfit in the public interest to practise the practitioner's profession"; (4) The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances. 84 Whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]. 85 "Public interest" also may be taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]. However, we are cognisant of the remarks of Harrison J in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (albeit in the context of proceedings under s 150 of the National Law) of the concept of public interest being linked to the health and safety of the public. 86 Whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability. As the Tribunal stated in Limboro at [22]: This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and since any investigation or sanction. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Unfit in the public interest to practise - conclusion 1. In our view the circumstances of the offences do render the Respondent unfit in the public interest to practise as a registered chiropractor. 2. The record intimate image and sexual touching offences were serious offences which occurred relatively recently while the Respondent was practising as a chiropractor. The record intimate image offences occurred over a significant period of time and the Sentencing Magistrate remarked that, in his view, would likely have continued if the Respondent had not been caught. The nature of these offences is particularly relevant to the Respondent's fitness to practice as a chiropractor where practitioners are entrusted with appropriately examining and treating (by touching) patients (including female patients) who may be in many instances only partially dressed. In order to be fit to practise as a chiropractor, a person needs to have a very clear understanding of interpersonal boundaries, the need for consent and what is appropriate and inappropriate touching. His conviction of these offences demonstrates that the Respondent did not, at least at the time of the offending, have a good understanding of these fundamental matters. 3. The Code of Conduct for Chiropractors also requires chiropractors to display a standard of behaviour that warrants the trust and respect of the community, which includes observing and practising the principles of ethical conduct and conducting themselves appropriately in public while representing themselves as a registered chiropractor. When the Respondent approached the first victim of the sexual touching offences, the Respondent persistently asked her to follow his Instagram page "E H Chiro and Sports Clinic" and asked her and the second victim (another 16 year old girl) what type of men they were into, trying to set them up with people he knew. We agree with the Commission that such conduct has the potential to bring the profession into disrepute. 4. The failure to comply offences are also serious offences and demonstrate a disregard by the Respondent for the law, the second offence occurring only 10 days after having been charged with the first offence and reminded by the Police of his reporting obligations. 5. The Respondent failed on numerous occasions to report the charges laid against him or his convictions demonstrating either a lack of understanding of the relevance of the offences to the practice of his profession and/or a disregard for his professional obligations. 6. The Respondent has demonstrated a lack of candour with the Police during their investigations which gave rise to the charges of failure to comply. He has also provided incorrect information to the regulator during the course of their investigation informing them that he had not seen any other General Practitioner other than Dr Maroun, when there is clear evidence that he has seen another General Practitioner, Dr Milan, whose referral for psychiatric assessment was before the Sentencing Magistrate and there is other evidence that he had also seen Dr Milan on four occasions during 2019 and 2020. 7. The Respondent has demonstrated a lack of insight as to both the offences themselves, and their relevance to his practice as a chiropractor. The Respondent said to the Community Corrections Officer preparing the sentencing report in respect of his first set of convictions that he did not consider that it was necessary for the 16 year old victim of the sexual touching offences to report the matter to Police. He has also maintained that the offences have "nothing to do with" his profession and practice as a chiropractor demonstrating a poor understanding of the seriousness of his conduct, his role as a professional and the impact his conduct could have on the profession more broadly. 8. In the materials before the sentencing magistrate there were differing views as to the risk of the Respondent re-offending but the view expressed by Mr Randall, who provided a report at the Respondent's request, was that he had a low-moderate risk of re-offending. 9. The Respondent did put before the Sentencing Magistrate a letter of apology in which he expressed remorse. However, in his report, Mr Randall noted that the Respondent's language and responses might suggest that he did not fully understand why he was remorseful. In that report, Mr Randall also comments that the Respondent appeared to have a very poor understanding of interpersonal boundaries and appeared to exhibit poor impulse control. 10. The Respondent has put his offending behaviour down to the fact that he was under stress and pressure at the time of the offences. In his letter dated 2 April 2021, the Respondent also sought to explain his conduct on the basis that he had bipolar disorder. He provided the Council with letters from his GP, treating psychologist and treating psychiatrist which were written in May 2021 each of which opines that he had committed to treatment and his condition was either improving, under control or in remission at that time. 11. However, unfortunately the Respondent has not participated in these proceedings and has put no further material before the Tribunal as to his current state of health, whether his treatment has continued or is continuing and the progress he has made with his treatment to date. 12. We accept the Commission's submission that given the Respondent has elected not to serve any material and in light of the evidence which is before the Tribunal we cannot be satisfied that the Respondent has demonstrated genuine insight, has accepted full responsibility for his actions or has fully engaged with the treatment he requires to address his medical condition if (which we are unable on the evidence before us to find) that was a cause of his offending. We cannot be satisfied that the Respondent now has a clear understanding of interpersonal boundaries or what is appropriate or inappropriate touching. 13. We also consider that it would imperil the public's ability to entrust their care to the chiropractic profession if the Respondent were permitted to continue to be registered as a chiropractor. 14. We find that the circumstances of the offences render the Respondent unfit, in the public interest, where the health and safety of the public are the paramount consideration, to practice as a registered chiropractor. Disciplinary orders - principles 1. Section 3(2) of the National Law makes it clear that the objectives of the National Law include providing for 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. 2. The purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. However, that is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31]. 3. In Health Care Complaints Commission v Do [2014] NSW 307 Meagher JA gave the following explanation at [35]: 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. 1. In the exercise of its protective jurisdiction the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWSC 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153. 2. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA stated at [21] and [22]: [21]… [I]n determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make..." Cancellation - conclusion 1. In the circumstances, we consider it is appropriate to cancel the Respondent's registration as a chiropractor pursuant to both ss 149C(1)(b) and 149C(1)(c) of the National Law. 2. We are satisfied that it is necessary and appropriate to make an order cancelling his registration to publicly condemn the Respondent's conduct, namely his offences and his failure to report. A cancellation order would also serve to act as a specific and general deterrent, to uphold the standards of the chiropractic profession and to preserve public confidence in the profession. 3. We also consider that the Respondent should be precluded from making an application to review the cancellation order for a period of time. The Commission seeks an order that the Respondent be precluded from making such an application for a period of 3 years, however in our view that is too long. The purpose of disciplinary orders is to protect the public, not to punish the practitioner. While we agree that it is necessary to denounce the Respondent's conduct, in the circumstances, in our view, a period of one year before the Respondent could seek a review of the order cancelling his registration is sufficient to allow him to demonstrate reformation of character (if any) and to satisfy the deterrent aspect of a non review period. Of course, on any application for review the Respondent would need to demonstrate at that time, amongst other things, that he had gained insight into his conduct, accepted full responsibility for his actions, undertaken any relevant training and treatment and has conducted himself in a proper and ethical manner. Costs 1. The Commission seeks an order that the Respondent pay its costs as agreed or assessed. 2. The relevant principles as to costs orders in proceedings of this nature were summarised by the Tribunal in Health Care Complaints Commission v Morris [2022] NSWCATOD 120 at [130] – [133] as follows: 130 This is a costs jurisdiction, and ordinarily costs should follow the event. As stated in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44]. It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. 131 While there is a discretion not to award costs to the successful party it must nonetheless be exercised judicially "according to proper fixed principles and rules of reason and justice, not according to private opinion: Philipiah at [43] 132 The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Brush at [9] 133 In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 the Court of Appeal identified three factors that might militate against the Commission recovering all its costs namely: First, the Commission's lack of success in obtaining findings against the practitioner in respect of professional misconduct. Secondly, the Commission's failure to establish each of the particulars pleaded. Thirdly, oppressive conduct on the part of the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing. 1. The Commission submits and, on the material before the Tribunal, we accept that there has been no disentitling conduct by the Commission in this case which would warrant a departure from the general rule. While the Commission has not established Particular 3 of Count 3, all other particulars have been established on the evidence. Moreover, the Commission took steps to seek to minimise costs by preparing a proposed statement of agreed facts and not briefing counsel. Orders 1. Pursuant to ss 149C(1)(b) and 149C(1)(c) of the Health Practitioner Regulation National Law (National Law) the registration of Elie Michel Hachem (Respondent) as a chiropractor is cancelled. 2. Pursuant to s 149C(7) the Respondent may not apply for a review of Order 1 for a period of one year from the date of these orders. 3. Under clause 13 of Schedule 5D of the National Law the Respondent is to pay the Commission's costs as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2022