Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Balafas (No 6) [2022] NSWCATOD 183 Hearing dates: 5 December 2022 Date of orders: 21 December 2022 Decision date: 21 December 2022 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr K Smartt, Senior Member Dr S Cowap, Senior Member Honorary Associate Prof P Macneill, General Member Decision: 1. Under s 149C(4)(a) of the National Law, if Dr Balafas was still registered, the Tribunal would have cancelled his registration. 2. Under s 149C(4)(b) of the National Law Dr Balafas is disqualified from being registered for 3 years. 3. Under s 149C(4)(c) of the National Law the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 4. Under s 149C(5)(a) of the National Law Dr Balafas is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 until reinstated as a medical practitioner. 5. Under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: HEALTH – Professional registration and discipline – appropriate orders following findings of professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Balafas (NCAT, 18 November 2022, unrep) Health Care Complaints Commission v Balafas [2021] NSWCATOD 209. Health Care Complaints Commission v Carr (No 2) [2021] NSCATOD 56 Health Care Complaints Commission v Chen [2021] NSWCATOD 210 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 Health Care Complaints Commission v Ng [2015] NSWCATOD 139 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) John Balafas (Respondent) Representation: Counsel: R Mathur SC (Applicant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal Pty Limited (Respondent) File Number(s): 2019/00246014 2020/00016868 Publication restriction: Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of any person who complained about Dr Balafas's conduct and who is identified in the material filed by the Health Care Complaints Commission in these proceedings (Exhibit A5) is prohibited. Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of Dr Balafas's wife is prohibited. REASONS FOR DECISION Overview 1. On 14 December 2021 we found that Dr Balafas had engaged in unsatisfactory conduct and professional misconduct: Health Care Complaints Commission v Balafas [2021] NSWCATOD 209. We summarised our conclusions about the professional misconduct at [208] and [209]: . . . Dr Balafas placed his fingers in Patient A's vagina for about a few minutes while she was lying on her stomach and that he rubbed her clitoris twice. The conduct alleged in those particulars is of a sufficiently serious nature to justify suspension or cancellation of Dr Balafas's registration. There can be no other conclusion than that Dr Balafas engaged in this behaviour for his own sexual gratification. Sexual exploitation of a patient is at the highest end of the spectrum of seriousness. It is inappropriate conduct of a sexual nature and, in this case, amounts to professional misconduct. The remaining particulars in Complaint One involve less serious departures from the relevant standard but are nevertheless improper and unethical. Dr Balafas performed a pelvic examination where he put his fingers into Patient A's vagina for longer than was clinically needed while she was lying on her back. He did not adequately explain why he needed to do that examination or obtain her informed consent. Patient A was naked under the gown. When she raised her head he leant over and moved her face with his hand so that she faced the wall. Patient A was a young woman who had never consulted Dr Balafas before. There are no mitigating factors. This was conduct of a sexual nature and is sufficiently serious to justify suspension or cancellation of Dr Balafas's registration. It amounts to professional misconduct. 1. Having found Dr Balafas guilty of professional misconduct we have power to suspend or cancel his registration although we are not obliged to do so: Health Practitioner Regulation National Law (NSW) (National Law), s 149C(1)(b). In March 2022, after Dr Balafas notified the Commission that he had been charged with several criminal offences, he agreed not practise medicine. The Commission submits that we should make an order that, if Dr Balafas was still registered, the Tribunal would have cancelled his registration. The Commission also seeks orders that Dr Balafas be disqualified from being registered for 3 years from the date of this decision and be prohibited from providing any health services until he is reinstated. 2. Two weeks before the hearing we refused Dr Balafas's application for an adjournment: Health Care Complaints Commission v Balafas (NCAT, 18 November 2022, unrep). Despite being in custody, we found that Dr Balafas had, had a reasonable opportunity to instruct his solicitors. Dr Balafas has not provided any evidence in these proceedings and chose not to participate in the hearing by AVL. 3. We have decided to make the orders sought by the Commission. After the 3 years has expired, Dr Balafas will have to re-apply to the Tribunal to be registered. We set out our reasons below. How should we decide what orders to make? 1. The legal principles governing our decision making are in legislation and in cases decided by courts and tribunals. Under the National Law, the protection of the health and safety of the public must be our paramount consideration: National Law, s 3A. Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a). The law also provides that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality": National Law, s 3(3)(c). 2. The Court of Appeal has decided that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm. Protection includes deterring all doctors from engaging in similar misconduct and upholding public confidence in the standards of the medical profession: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher JA (Basten JA and Emmett JA agreeing). 3. The Commission also sought a prohibition order: National Law, s 149C(5). If we decide to suspend or cancel Dr Balafas' registration, we can also make a prohibition order if we are satisfied that Dr Balafas "poses a substantial risk to the health of members of the public". 4. The Tribunal discussed the meaning of "substantial risk" in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172. We adopt the Tribunal's interpretation of this phrase at [19]: Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services. 1. Dr Balafas's lawyer highlighted four cases of sexual misconduct where the Tribunal cancelled the practitioner's registration. In the first case, the practitioner had been convicted of aggravated indecent assault and was cancelled for one year: Health Care Complaints Commission v Carr (No 2) [2021] NSCATOD 56. In the second case, the practitioner placed his finger under Patient A's underwear and inserted his finger into Patient A's vagina for about 30 seconds. The Tribunal cancelled his registration for 18 months: Health Care Complaints Commission v Ng [2015] NSWCATOD 139. In the third case, the practitioner had been convicted for indecently assaulting a female patient and was cancelled for two years: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82. In the fourth case, the practitioner had been convicted of intentionally recording an intimate image of a female and was cancelled for two years: Health Care Complaints Commission v Chen [2021] NSWCATOD 210. 2. We should be careful about making orders by comparing the outcomes in previous cases even if those cases are superficially similar. Unless there is a "discernible range or pattern" and "it is possible to gather from it an appreciation of some unifying principle" such cases are of limited use: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34] (Barrett JA, Tobias AJA and Macfarlan JA agreeing). Even if the conduct is egregious sexual misconduct as in the examples Dr Balafas quoted, there are often other factors which mean that the outcomes are not directly comparable. 3. Those factors include whether the practitioner admits the conduct and has insight or is remorseful, previous attempts at rehabilitation, the overall frankness of his evidence, compliance with conditions on the practitioner's registration, further complaints when the practitioner was on notice that his conduct was being investigated and any support networks the practitioner may have. Another factor identified by the Court of Appeal is "the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public": Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [74] (Meagher JA, McColl JA and Ward JA agreeing). 4. Factors which have marginal or no relevance include any shortage of practitioners with particular skills (in this case skin doctors in Bondi Junction) and any compassion we may have for Dr Balafas in dealing with the stress of responding to serious complaints. Seriousness of the conduct 1. The Court of Appeal (Gleeson CJ, Meagher JA and Handley JA) has provided guidance on how to measure the gravity of professional misconduct in Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638. The gravity of professional misconduct is not to be measured by reference to the worst cases, but the extent to which it departs from the proper standards. . . . Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors and which right thinking members of the profession observe, and expect their colleagues to observe. 1. In the Stage 1 decision at [208], we described Dr Balafas's conduct in inserting his fingers into Patient A's vagina for a few minutes, after asking her to turn on her stomach, and rubbing her clitoris twice (while purporting to conduct a pelvic examination) as being "at the highest end of the spectrum of seriousness". He also engaged in other conduct of a sexual nature which we describe in the decision. Dr Balafas has radically and fundamentally departed from the standards the medical profession is expected to observe. Past behaviour as an indication of future behaviour 1. When determining what orders we should make, it is relevant to look out how Dr Balafas has behaved in the past. 2. Dr Balafas was registered as a medical practitioner in 2001. From 2004 to 2007, he says that his professional and personal life were disastrously affected by his use of drugs – pethidine, morphine, diazepam and fentanyl. He became a part owner of the Bondi Medical Practice in 2005 and commenced general practice there in January 2009. The consultation which is the basis of the proven complaint took place in the second half of 2009. 3. In the first few months of 2005 and in May 2005, Dr Balafas self-prescribed pethidine. The Medical Board found he had limited insight and suspended him from practice for 8 weeks. A few months later, he came before an Impaired Registrants Panel. The suspension was revoked but several conditions were placed on his registration including that he practise under Level 2 supervision, submit to a drug urine test three times a week and attend for treatment with a psychiatrist and a drug and alcohol specialist. 4. Nearly two years later, in May 2007, Dr Balafas came before a Medical Board panel after he was found to have been self-administering pethidine again. This time the Medical Board found that he had been deceptive about his drug taking for over a year. The Medical Board concluded that he could not continue in the Impairment Program because the safety mechanisms had not worked. The delegates were not impressed by the sincerity of contrition Dr Balafas expressed or by his claim that he now had insight. He was suspended as impaired for a period of 8 weeks. 5. Six months later, in December 2007, the suspension was revoked and further conditions were imposed on Dr Balafas's registration. Those conditions were similar to the conditions imposed in August 2005. Dr Balafas was suspended again for a few weeks following a review interview in March 2008. Dr Balafas had failed to comply with a condition about nominating a supervisor. 6. At a review interview in June 2009, the reviewers found positive progress in the Health Program and recommended a reduction in the urine testing and a reduction to monthly supervision meetings. However, only three weeks later, on 3 July 2009, Dr Balafas engaged in the sexual misconduct we outlined above. Despite four years of conditions on Dr Balafas's registration including counselling, therapy, supervision, monitoring and reviews, Dr Balafas engaged in this behaviour for his own sexual gratification. 7. About seven weeks later another young female patient, Patient B, consulted Dr Balafas. Following a complaint about how he conducted a pap smear, a pelvic examination and a breast examination, Dr Balafas apologised. However, he did not mention the complaint to his treating psychiatrist, his mentor or his supervisor. Ultimately the Tribunal found in the Stage 1 proceedings that Dr Balafas failed to obtain Patient B's informed consent to conduct a pap smear, a pelvic examination and a breast examination. The Tribunal concluded that that conduct amounted to unsatisfactory professional conduct but not to professional misconduct. 8. On 22 October 2009 a psychiatrist, Dr Diamond, assessed Dr Balafas. Dr Balafas claimed at the time that he was not drinking alcohol. He subsequently admitted that that was not true. 9. On 18 June 2010, the Medical Tribunal cancelled Dr Balafas's registration for a minimum of two years: HCCC v Dr John Balafas NSWMT 40029 2009. The Medical Tribunal found that Dr Balafas had deliberately misled his treating addiction specialist and the Council appointed psychiatrist as to the length and extent of his pethidine use. 10. From July 2010 until April 2013, Dr Balafas's registration was cancelled. During that time, he was not practising but still owned the Bondi Medical Centre. In 2013, the Medical Tribunal reinstated his registration subject to practice and health conditions. At that time, the Medical Tribunal was satisfied that despite past deceptive conduct and substance abuse, Dr Balafas is currently not using drugs or alcohol and "has demonstrated a shift or change in character". 11. From 2013 to 2015, Dr Balafas worked under supervision in a general practice in Brookvale, NSW. Since 2015, Dr Balafas has been subject to various conditions designed, in part, to monitor his mental health and ensure that he does not self-administer certain drugs. 12. In November 2015, after the conditions on his registration were eased, Dr Balafas resumed practising from the Bondi Medical Centre where his wife was the practice manager. A year later, on 16 November 2016, Patient A phoned Dr Balafas at the request of NSW Police to put to him her version of what had happened in the consultation on 3 July 2009. We found that Dr Balafas did not make a record of that conversation. That failure constituted unsatisfactory professional conduct: Health Care Complaints Commission v Balafas (No 4) [2021] NSWCATOD 209 at [195] – [202]. 13. We also note that in January 2017, when applying for all the conditions on his registration to be removed, Dr Balafas did not mention the phone call. Dr Balafas's lawyer submits that that was understandable because of the stress he was under and the fact that things had been going well since his reinstatement in 2015. 14. From 2015 when he resumed practising a Bondi Junction, Dr Balafas was under considerable financial and emotional strain. He and his wife were undergoing fertility treatment and complaints about the 2009 consultation had re-emerged. The investigation of those complaints was lengthy. 15. In October 2021, a female patient complained about a consultation the previous month. She had booked for an STI (sexually transmitted infections) test. She says Dr Balafas suggested a swab because any infection may not be picked up by a urine test. Dr Balafas also asked the patient if she wanted to have a pap smear at the same time to which she agreed. When on the table, Dr Balafas said he should check the position of her IUD as he was worried it was in the wrong position. He did not say what this involved and when Dr Balafas put his fingers inside her vagina and pressed down on her pelvis she was horrified. 16. After a s 150 hearing on 4 November 2021, the Medical Council concluded that Dr Balafas's clinical treatment appears to be justified. However, without a practice-based assessment, it was not possible to know whether he is practising in the way he said he was. Dr Balafas's communication was unsatisfactory and the patient felt violated. His failures may have resulted in hm undertaking unnecessary internal vaginal examinations. The Medical Council imposed a condition that Dr Balafas undergo a performance assessment. The investigation was subsequently terminated because the patient was upset and did not wish to pursue the complaint. 17. This fact of this complaint, and the Council's finding about poor communication, is significant. The incident occurred after the Tribunal's hearing but before the Tribunal handed down its decision. Dr Balafas had been cross-examined at length about the need for internal examinations and his conduct and communication when performing those examinations. Despite being acutely aware that his conduct was being scrutinised he, at least, communicated poorly with this patient and she felt violated. 18. Dr Balafas's mental health deteriorated after the Tribunal handed down its decision on 14 December 2021. 19. On 23 December 2021, the Tribunal imposed a condition that Dr Balafas not treat any female patients. The following day Dr Balafas contacted a female patient by phone saying he thought he would check in with her to see how she was going. He said he also wanted to wish her a Merry Christmas. After the patient told Dr Balafas that she was spending Christmas with her family away from Sydney, Dr Balafas allegedly said it would be good to see her when she returned. When asked what he meant by that, Dr Balafas allegedly said he had some test results that he wanted to go over with her. The patient queried they were the results that they had already discussed from a couple of months ago. Dr Balafas said he would check his computer and assured her that everything was OK. The patient said she wondered whether the long pauses and silences during the phone call were because Dr Balafas was under the influence of drugs or alcohol. 20. Dr Balafas's lawyer submitted that if Dr Balafas has relapsed and is abusing drugs or alcohol, he has responded to treatment in the past and with the right treatment, he would respond positively again. 21. After the phone call, Dr Balafas looked for the patient on Instagram and sent a request to follow her. He accepts that he should not have done that. Dr Balafas does not deny most of the allegations but says that his sole intention of telephoning her was to thank her for her support and to wish her a Merry Christmas. He says he was feeling devastated and depressed after the Tribunal gave its decision. Dr Balafas acknowledged that the patient felt "very uncomfortable" and he apologised. The complaint is still under investigation. 22. On four occasions in 2022, Dr Balafas has been arrested for alleged offences involving his wife. At a review interview on 1 December 2016, Dr Balafas described his wife, who also worked at the medical practice, as "the biggest supervisor of all". Considering the allegations against him, he can no longer make that claim. Conclusion 1. Dr Balafas has radically and fundamentally departed from the standards members of the medical profession are expected to observe. He does not admit that he asked Patient A to turn over on to her stomach during the pelvic examination, that he inserted his fingers into her vagina or that he touched her clitoris. At a review interview in June 2017, he described that complaint from Patient A as "bizarre" and "without foundation". He told a psychiatrist, Dr Diamond, that there was no truth to the complaints by Patient A or Patient B. This conduct is extremely serious and Dr Balafas continues to deny it. 2. As well as the conduct itself, recent complaints from two other patients, mean that Dr Balafas has not learnt from his previous mistakes and cannot be trusted to comply with conditions on his registration. He communicated poorly with a patient when conducting an internal examination and contacted a patient when there was a condition on his registration that he not treat females. 3. There is a real risk of Dr Balafas re-offending. We are obliged to protect future patients from the risk of harm. 4. As outlined above, Dr Balafas has not been fully frank with the regulatory authorities or his psychiatrist. He lied to his psychiatrist about his alcohol consumption and deliberately misled his treating addiction specialist as to the length and extent of his pethidine use. He has failed to disclose information which he should have disclosed to his psychiatrist. There can be no reason for that other than that he wished to conceal that information. Being under stress is no excuse. Dr Balafas has responded positively to drug and alcohol treatment in the past, but we are not persuaded that he will do so again. 5. We acknowledge that we should not make an order which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the legislation: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]. We were urged to show restraint because the public is already protected. On 9 March 2022 the Council exercised its power under s 41P(1) of the National Law to place a condition not to practise medicine on Dr Balafas's registration. This was with Dr Balafas's consent as is required by that section. Section 41P(3) states that "If the registered health practitioner . . . withdraws the practitioner's . . . consent, the Council must take the action necessary to give effect to the withdrawal." There are no constraints on Dr Balafas withdrawing his consent. For this reason we do not accept that the public is adequately protected. 6. We consider that cancellation of his registration is the appropriate order in that the public is protected because Dr Balafas cannot practise until he satisfies the Tribunal that he is no longer a risk to the health and safety of the public. However, given Dr Balafas's present situation, including the charges against him, we estimate that it will take a considerable period of time before Dr Balafas can demonstrate that he is competent to practise without risk to the health and safety of the public. 7. To deter all doctors from engaging in similar misconduct and to uphold public confidence in the standards of the medical profession, the appropriate period of cancellation is 3 years. Application for prohibition order 1. The Commission also sought a prohibition order preventing Dr Balafas from providing any health services until his registration is re-instated. Given the breadth of the definition of "health services" in section 4 of the Health Care Complaints Act 1993, such an order would prevent Dr Balafas from having any contact with patients. 2. Such an order is justified. There is a risk that is real and material that Dr Balafas will engage in further misconduct. Apart from the proven complaints, further complaints have been made against Dr Balafas. We have identified the significance of those complaints above. Costs 1. The Commission applies for its costs. Dr Balafas did not oppose a costs order. 2. Under Schedule 5D, clause 13 of the Health Practitioner Regulation National Law (NSW) (National Law), the Tribunal has the power to require the Commission, a registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another. The presumption is that a successful party is entitled to its costs: HCCC v Dinakar [2009] NSWMT 8; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67]. The onus is on the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]. Because costs are intended to compensate the successful party, the general rule will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: Arian v Nguyen [2001] NSWCA 5 at [36]; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40] and [69]. Orders 1. Under s 149C(4)(a) of the National Law, if Dr Balafas was still registered, the Tribunal would have cancelled his registration. 2. Under s 149C(4)(b) of the National Law Dr Balafas is disqualified from being registered for 3 years. 3. Under s 149C(4)(c) of the National Law the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 4. Under s 149C(5)(a) of the National Law Dr Balafas is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 until reinstated as a medical practitioner. 5. Under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2022