Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Daniel (No 2) [2022] NSWCATOD 182 Hearing dates: On the papers Date of orders: 21 December 2022 Decision date: 21 December 2022 Jurisdiction: Occupational Division Before: Coleman SC ADCJ, Principal Member Dr J Aitken, Senior Member Dr G Yeo, Senior Member S Lovorovich, General Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), with the parties consent, an in person hearing is dispensed with and the proceedings are to be determined on the papers. 2. Under section 149C(1) of the Health Practitioner Regulation National Law, the registration of Dr Ramez Daniel is cancelled. 3. Under section 149C(7) of the Health Practitioner Regulation National Law, an application for review may not be made for a period of 18 months from the date of this decisions. 4. The Respondent pay the Applicant's costs as agreed or assessed. 5. The Hearing of 20 February 2023 is vacated. Catchwords: PROFESSIONS AND TRADES- registered health professional- medical practitioner- where practitioner found guilty of professional misconduct- where parties consent to protective orders cancelling practitioner's registration and prohibiting practitioner from applying for re-registration for a specified period- whether consent orders should be made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) Cases Cited: Crickitt v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115) Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; [1997] 41 NSWLR 630 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Lee v Health Care Complaints Commission [2012] NSWCA 80 NSW Bar Association v Meakes [2006] NSWCA 340 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ramez Daniel (Respondent) Representation: Counsel: D New (Applicant) S Maybury (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2021/00221186 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure of the name of any patient of the Respondent is prohibited. REASONS FOR DECISION Introduction 1. On 14 September 2022, for the reasons recorded in its decision of that date, the Tribunal found the Respondent guilty of unsatisfactory professional conduct and professional misconduct pursuant to the provisions of s 144(b) of the Health Practitioner Regulation National Law (National Law). In those circumstances, the provisions of s 149C(1)(b) of the National Law with respect to suspension or cancellation of the Respondent's registration as a medical practitioner were enlivened. 2. The Tribunal listed the proceedings for a hearing to determine the appropriate protective orders to be made which was to commence on 20 February 2023 (Stage 2 hearing). 3. On 5 December 2022, the Respondent received Minutes of Protective Orders which were agreed to by both parties. The Tribunal was asked to make orders in accordance with those minutes. The Minutes provided that: "1 Under section 149C(1) of the Health Practitioner Regulation National Law, the registration of Dr Ramez Daniel is cancelled. 2 Under section 149C(7) of the Health Practitioner Regulation National Law, an application for review may not be made for a period of 18 months from the date of this decisions. 1. The minutes also provided that the Respondent pay the Applicant's costs as agreed or assessed. 2. The Tribunal does not infer that, by presenting minutes of consent protective orders, the parties were suggesting that the Tribunal was obliged to make those orders. 3. As the provisions of s 3A of the National Law, which mandate that the health and safety of the public is the "paramount consideration" when any "functions" are exercised pursuant to the National Law, the Tribunal considers that it must be satisfied, particularly with respect to proposed order 2, that making the proposed consent orders adequately protects the health and safety of the public. That is particularly so having regard to the seriousness of the offending conduct of which the Respondent was found guilty. 4. A number of inferences can safely be drawn from the minutes of consent order. It is significant that, having not heard any evidence in Stage 2 proceedings, there may well be facts and circumstances which are known to the legal representatives for the parties, but not to the Tribunal, which impact upon the determination of appropriate protective orders. We also have regard to the fact that each party is represented by highly competent and very experienced solicitors and Counsel, who would not purport to have their clients enter into consent orders without having properly assessed the merits of the respective cases, and made an informed decision about the likely outcome of a Stage 2 hearing. The Tribunal also infers that the Applicant would only purport to consent to a non-review period of 18 months if it was satisfied that such a period was adequate to protect the health and safety of the public. 5. The principles governing the determination of appropriate protective orders are not in doubt and require only brief reiteration for present purposes. The "task" undertaken by the Tribunal in making protective orders, albeit in the context of the Medical Practice Act 1992 (NSW) (but adopted numerous times in the context of the National Law) has been described as centring "not on punishment as such but on the protection of the public and the maintenance of proper professional standards" (Lee v Health Care Complaints Commission [2012] NSWCA 80 per Barrett JA at [21]). In his Judgment, Barrett JA adopted at [20] the comments of Basten JA in Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523, at [83] that: "(i) the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual; (ii) that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating the protective order; (iii) the punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist." 1. In the absence of evidence from the Respondent, we are unable to find that the proposed orders are punitive with respect to him. Nor in the absence of evidence from the Respondent are we able to make any findings with respect to the impact of the proceedings on the Respondent, the lengthy suspension which the Respondent has incurred since their commencement, or any likely financial or other consequences of them for him. We cannot find that any those circumstances may have "opened" the eyes of the Respondent to the seriousness of his conduct so as to diminish significantly the likelihood of its repetition, or to produce a level of insight into his character or misconduct which did not previously exist. 2. Protecting the health and safety of the public is not confined to protecting future patients from the risk of harm; the Tribunal can appropriately take into account matters such as maintenance of standards and the general standing of the medical profession. As noted in Health Care Complaints Commission v Do [2014] NSWCA 307 at 35, the considerations include: "protecting the public from 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 practice, 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 standard will not be permitted to practice." 1. Any protective orders made by the Tribunal should not result in "more serious consequences for the practitioner than is reasonably necessary in the execution of the protective purpose of the legislation" (Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82, NSW Bar Association v Meakes [2006] NSWCA 340). The findings of the Tribunal with respect to the Respondent's offending conduct do not cause us to be concerned that the proposed order cancelling the Respondent's registration could have that effect. 2. In the absence of evidence, we are unable to find, and cannot assume that the Respondent has reformed, as there is no "clear proof" of that, and more than the mere passage of time without misconduct is required (Lee v Health Care Complaints Commission [2012] NSWCA 80). Although, he has been suspended from practising medicine, the Respondent could have sought to demonstrate that he has reformed by adducing evidence of training, education or therapy which he has undertaken during his suspension. We also note that the authorities establish that reformation is the exception rather than the rule (Health Care Complaints Commission v Litchfield [1997] NSWSC 297; [1997] 41 NSWLR 630). 3. Again in the absence of evidence, the Tribunal is unable to be affirmatively satisfied that the Respondent has demonstrated integrity, trustworthiness, high moral and ethical values and a capacity to comply with relevant obligations and codes of practice such that it is appropriate for him to be held out to the public as a person worthy of their confidence (Crickitt v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115). The offending conduct of which the Respondent was found guilty is incompatible with those requirements. 4. We take into account in his favour the Respondent's disciplinary history, or lack of it. The reality that the Respondent has been suspended for a lengthy period, and will have his registration cancelled, for at least another 18 months should deter the Respondent from reoffending, if he ever regains his registration, and "signal" to other members of the medical profession what is likely to befall them if they transgress in the ways that the Respondent has. 5. The proposed orders would also be conducive to the public interest in that they would "signal" to the public that the offending conduct of the kind for which the Respondent has been found guilty is viewed seriously, and results in serious sanctions from the Tribunal. The Tribunal does not have other mitigating evidence to take into account. 6. In the absence of compelling evidence in favour of not doing so, having regard to the objective seriousness of the Respondent's offending conduct, it is almost inevitable that the Tribunal would have cancelled the Respondent's registration had there been a contested Stage 2 hearing. 7. Viewed in isolation, the non-review period of 18 months may appear conservative. It is to be remembered that, until the non-review period expires the Respondent cannot apply for reinstatement of his registration. If and when he applies, the appropriate authority will no doubt determine, on the evidence presented to it, whether the Respondent's registration should be reinstated. The Tribunal's evaluation involves only the opportunity to seek reinstatement, and does not involve any imputation with respect to the outcome of any such application. Whether the Respondent applies in the future, and its possible outcome are not matters about which we can speculate. 8. As is not in doubt, the Respondent has been suspended for a lengthy period. In all the circumstances, the Tribunal is not able to find that the proposed non-review period is inadequate. As recorded earlier, influential in the Tribunal's decision in that regard is the fact that the parties, who have a far better understanding of the evidence which would have been adduced at Stage 2 than the Tribunal has, have concluded that such a period is appropriate. The Tribunal infers that, consistent with its duty pursuant to s 80(1)(c) of the Health Care Complaints Act 1993 (NSW), the Applicant would not consent to the proposed prohibition order unless it was satisfied, on reasonable grounds, that such order adequately protects the health and safety of the public. Orders 1. For the foregoing reasons the Tribunal will order: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), with the parties consent, an in person hearing is dispensed with and the proceedings are to be determined on the papers. 2. Under section 149C(1) of the Health Practitioner Regulation National Law, the registration of Dr Ramez Daniel is cancelled. 3. Under section 149C(7) of the Health Practitioner Regulation National Law, an application for review may not be made for a period of 18 months from the date of this decisions. 4. The Respondent pay the Applicant's costs as agreed or assessed. 5. The Hearing of 20 February 2023 is vacated. ********** 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: 21 December 2022