Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sahebi [2024] NSWCATOD 91 Hearing dates: 3 - 4 June 2024 Date of orders: 04 July 2024 Decision date: 04 July 2024 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member F Denton, Senior Member R Lander, Senior Member R Kusuma, General Member Decision: (1) The respondent's registration is cancelled. (2) The respondent is prohibited from providing any health service as defined in s 5 of the Health Practitioner Regulation National Law (NSW). (3) The respondent may not apply for a review of orders (1) and (2) above for two years from the date of this decision. (4) The respondent is to pay the costs of the applicant of the proceedings as agreed or assessed. Catchwords: HEALTH — professional registration and discipline psychologist - sexual relationship with client – other failures to adhere to appropriate professional boundaries - failure to maintain adequate clinical records – misleading the Psychology Council of New South Wales and the Health Care Complaints Commission - whether constitutes unsatisfactory professional conduct and professional misconduct - what protective orders should be made Legislation Cited: Evidence Act 1995 (NSW), s 140 Health Care Complaints Act 1993 (NSW), s 34A Health Practitioner Regulation National Law (NSW), ss 3, 3A, 4, 5, 139B, 139E, 149, 149A, 149C, 150, Sch 5D, cll 7, 13 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Campbell v Campbell [2015] NSWSC 784 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Gao [2022] NSWCATOD 73 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Lord [2019] NSWCATOD 182 Health Care Complaints Commission v Lu [2023] NSWCATOD 51 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28 Health Care Complaints Commission v Neale [2024] NSWCATOD 16 Health Care Complaints Commission v Ng [2015] NSWCATOD 85 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 32 Lee v Health Care Complaints Commission [2012] NSWCA 80 Morsingh v Health Care Complaints Commission [2022] NSWCA 106 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Richter v Walton [1993] NSWCA 233 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ali Sahebi (Respondent) Representation: Counsel: I Chatterjee (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2024/00014619 Publication restriction: Pursuant to cl 7 of Sch 5D of the Health Practitioner Regulation National Law (NSW), the disclosure of the names of Clients A to D, together with any information or material which could identify them, whether by itself or with other information and material, is prohibited. REASONS FOR DECISION Overview 1. In these proceedings the applicant, the Health Care Complaints Commission (which is also referred to as the Commission or the HCCC), is seeking findings against the respondent, Ali Sahebi, a psychologist, that he is guilty of unsatisfactory professional conduct and professional misconduct within the Health Practitioner Regulation National Law (NSW) (National Law), and the making of consequential protective orders, which arise out of his provision of psychological services to clients in the course of his practice at various places in New South Wales (the practice). 2. We have decided to make: 1. the following findings: 1. that the respondent is guilty of unsatisfactory professional conduct within s 139B(a) and (l) of the National Law; 2. that the respondent is guilty of professional misconduct within s 139E(a) and (b) of the National Law; 1. the following orders: 1. the respondent's registration is cancelled; 2. the respondent is prohibited from providing any health service as defined in s 5 of the National Law; 3. the respondent may not apply for a review of orders (a) and (b) above for two years from the date of this decision. 4. the respondent is to pay the costs of the applicant of the proceedings as agreed or assessed. The background 1. The respondent graduated with the following degrees from Tehran University in Iran: 1. a Bachelor of Psychology degree in 1987; 2. a Master of Arts (Psychology of Exceptional Children) degree in 1990. 1. In 1995, the respondent was first registered as a psychologist in Australia. 2. The respondent spends around half of each year in Iran. From around 2015 to 2021, the respondent worked in private practice in Turramurra and Chatswood in New South Wales. During the COVID-19 pandemic, the respondent ran group therapy programs online and from his residence in Turramurra. 3. During the period from November 2020 to May 2021, each of Clients A to D was a client of the respondent. 4. On 1 August 2021, Client A made a complaint to the Commission about the respondent having engaged in a sexual relationship with her during their therapeutic relationship in April 2021 and May 2021 (the 1 August 2021 Client A complaint). 5. On 16 August 2021, the respondent provided a response to the Commission to the 1 August 2021 Client A complaint (the 16 August 2021 Sahebi response). 6. On 11 November 2021, there was a hearing under s 150 of the National Law before the delegates of the Psychology Council of New South Wales (Associate Professor Christopher Willcox, Dr Lizabeth Tong AM and Mr Robert Lorschy who are referred to as the Council delegates) in relation to the 1 August 2021 Client A complaint (the Sahebi s 150 hearing): 1. at which the respondent gave evidence; 2. at the conclusion of which the Council delegates suspended the registration of the respondent. 1. On 19 January 2022, the Council delegates published their reasons for their decision to suspend the respondent (the 19 January 2022 Council decision). The proceedings The procedural history 1. On 12 January 2024, the applicant commenced proceedings 2024/00014619 against the respondent by filing an application for disciplinary findings and orders and the attached Complaint comprising Complaints One to Four, in which the respondent is referred to as "the practitioner", and which relevantly provides: "3. ORDERS SOUGHT The Applicant seeks the following orders: 1 An order prohibiting the disclosure of the names of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013. In the event the subject-matter of the complaint is proved or admitted, the Applicant seeks: 2. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law with a non-review period of 2 years 3. A prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed; 4. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law, as agreed or assessed. In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149A (caution, reprimand, counsel etc.), section 149B (fine), and/or section 149C (suspension) of the National Law. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a) and/or (I) and/or professional misconduct within the meaning of section 139E of the National Law." 1. On 2 February 2024, the Tribunal made procedural orders for the filing of evidence by the parties. 2. On 2 April 2024, the respondent filed his reply to the complaint in which he admitted particulars 3 and 4 and partly admitted particular 5 of Complaint Two and otherwise denied Complaints One to Four. 3. On 4 June 2024, the applicant was granted leave to amend an Amended Complaint. 4. On 5 June 2024, the applicant filed an Amended Complaint. The Amended Complaint 1. The Amended Complaint relevantly provides (bold text in the original and omitting the strikethrough and underlined text indicating amendments): "COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of psychology is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice of psychology. … PARTICULARS OF COMPLAINT ONE Patient A 1. Between around February 2021 and May 2021, Patient A attended group therapy sessions on Friday evenings at the practitioner's residence on a sporadic basis. 2. Patient A attended private therapy sessions with the practitioner at his professional practice in Chatswood on multiple occasions in March and April 2021, including; a. On or around 31 March 2021 b. On or around 7 April 2021 c. On or around 14 April 2021 d. On or around 21 April 2021 e. On or around 28 April 2021 3. Between around April and May 2021 the practitioner breached professional boundaries by engaging in a personal, intimate and sexual relationship with Client A. 4. Between around March and August 2021 the practitioner breached professional boundaries by engaging in inappropriate personal communications with Client A via text messages, voice message and WhatsApp. 5. In or around May 2021 the practitioner failed to adequately and appropriately terminate the therapeutic relationship with Client A. 6. Between around March and May 2021, the practitioner failed to maintain any clinical records in relation to Client A. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of psychology is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice of psychology. PARTICULARS OF COMPLAINT TWO 1a. From around November 2020 to May 2021 the practitioner inappropriately facilitated a weekly group therapy program, in circumstances where: a. he hosted the sessions at his home; b. following the sessions he socialised, including by drinking alcohol, with his clients. 1b. In the alternative to particular 1a, from around November 2020 to May 2021 the practitioner inappropriately facilitated a group program called 'Knowing self and actualising self', in circumstances where: c. he hosted fortnightly sessions at his home; d. following the sessions he socialised, including by drinking alcohol, with his clients. 1c. In the alternative to particular 1a, from around November 2020 to May 2021 the practitioner inappropriately held fortnightly social gatherings at his home which included current patients. 2. Between around November 2020 and November 2021, the practitioner failed to adhere to appropriate professional boundaries by: a. announcing a group therapy program in a social WhatsApp group chat; b. communicating through WhatsApp with group therapy clients. 3. The practitioner failed to maintain adequate clinical records for group therapy clients and sessions, including; a. sufficient details of treatment to enable continuity of care; b. individual notes for each client as to progress and issues arising in each session; c. English translations of original records and worksheets made in Farsi. 4. The practitioner failed to maintain adequate clinical records including sufficient details of referrals, consent forms, client information and correspondence with other health practitioners, in relation to: a. Client B; b. Client C; c. Client D. 5. Between around mid-2020 and mid-2021 the practitioner inappropriately employed Client D to process Medicare claims whilst she was a current patient. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice of psychology. PARTICULARS OF COMPLAINT THREE 1. The practitioner misled the Council during the course of proceedings held pursuant to s150 of the National Law by making statements to the following effect: a. that Client A was never his patient; b. that he bulk billed Client A in error; c. that payments made to him by Client A were for the hiring of rooms at his professional premises not for psychological services. 2. The practitioner misled the Health Care Complaints Commission during the course of its investigation into his conduct by making statements to the following effect: a. that Client A was never his patient; b. that he bulk billed Client A in error; c. that payments made to him by Client A were for the hiring of rooms at his professional premises not for psychological services. COMPLAINT FOUR The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. 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 the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR 1. The background and particulars of Complaints One to Three are repeated and relied upon individually and in combination. 2. Each of particulars 3 and 4 of Complaint One justify a finding of professional misconduct." The Reply 1. The Reply relevantly provides (bold text in the original): "Ground 1: Particular 1.1: [text set out] Response: How do you define a person as a client or patient? Specifically, how you recognized [Client A] as my patient? Having referral from her GP? Visiting my private practice? attending social gathering (which you call them group therapy)? As she mentioned in her statement and as HCCC claimed in the complaint application, if she attended any type of Group therapy with me, how I charged her? with what mechanism she attended the group? A referral letter from GP? Medicare charged? she paid from her pocket? If there was any type of therapy at my residence and she attended therapy at my place, and she recognized herself as a Patient or Client that attending a formal therapy, then how she paid the costs? Based on what she attended a group therapy running by person who has no relationship or connection without any referral letter, an invoice to her insurance or any type of payment for three months? [Client A] first was my friend, have lots of interactions with me (started from December 2020), and then she went to her GP (31 of March 2021), beyond my awareness and got a referral to receive a service from me. So, my position is that she was first my friend and then she got the referral and not vice versa. My evidence is clear: she reported that she was coming to my gatherings for several weeks from February 2020, but there are only two Medicare records for her dated April 2021. And also, no record or evidence that she paid anything to me at all. So, she was my friend before she gets a referral to become my client. We were good friends from late December 2020 and she came to my father's funeral (11/02/2021), she sang a song in the funeral (which I have the video of her performance). Her GP referral letter dated 31/03/2021, and the date she consulted me is 24/04/2021. It is clear that our friendship started two months before she decided to get referral. From the beginning, she was not my client that I initiated an intimate relationship with her. We were friends and then she asked me to give her appointment that I refused and referred her to another colleague. Particular 2: [text set out] Response: The HCCC reported that [Client A] attended my private practice 5 times as a patient: In her Medicare records it shows two dates and two claims, Which I explained that it was a mistake from my colleagues, The HCCC reported five visits dated: 31 March 2021 7 April 2021 14 April 2021 21 April 2021 28 April 2021 But as her Medicare records shows, she visited me on my office and her Medicare charged only on 24/04/2021 and 11 May 2021, not other dates. If she visited me on the above-mentioned days at my office, and there is no charge in her Medicare record and no payment in another way, and no witness or other evidence, it is clear that she visited me as a friend and not as a client. Particular 3: [text set out] Response: Before she gets a referral letter from her GP to see me, we established a good friendship. There was no Sextual touch or contact between us. There was a friendship and we communicated with phone or wats app. I never accept her as my client, I tried to guide her how to find a The first time she narrated her problem to me, I explained to her that it is beyond my expertise and referred her to my Colleague, Dr Zahra Izadkhah (In Brisbane) and gave her a letter for her GP. In our next meeting [First name of Client A] told me that she contacted Dr lzadkhah, but her therapy cost is $275 and it is too much for her. Particular 4: [text set out] Response: Our friendship started long time before she gets a referral from her GP and I never assume her as a client or patient. Two days after she visited me at my Chatswood office, we went to Barrier Reef Beach Club for lunch and walk, and I asked her if she contacted the Professional, I recommended for her issues? Also told her that I can't be your therapist so I am not charging your Medicare. She agreed and confirmed that it is better we stay friends. As a friend, I was in touch with her via text, voice or other ways of communications. Particular 4: [text set out] Response: As I already reported to HCCC, there was no therapeutic relationship between us. As a friend I accept to guide her and after hearing her issues I referred her to my colleague Dr Zahra Izadkhah, and provided Dr Izadkhah's phone number. Next day I followed up with her and she said that she contacted Dr. Izadkhah and her cost was too much. Then I recommended her to find another person who is doing bulk bill. Particular 5: [text set out] Response: She did not consult me as her therapist or practitioner and although she had a referral from her GP, but I never agreed to accept her as my client. Having a referral from GP does not mean that I accepted her as my Patient or client. Anyone, without practitioner or specialist's awareness or agreement can request a referral from her GP. So She talk to me as a friend and I gave her adevice and report it to her GP. Furthermore, it is my procedure that I am giving my Report to GP and if necessary, request and recommendation for review to the client himself/herself to hand it to his/her GP. The main evidence for this is Patient C and D. You can ask them how I gave them my report to their GP. For all my clients I am handing my communications and reports to them to submit them to their GP. If the GP did fax the referral to me, then I will fax the report in return. Since [Client A] brought her own referral, then in the same day when I referred her to Dr. lzadkhah, I gave her my report to her GP. Complaint two [text set out] Particular 1a [text set out] Response: I had Friday afternoon group therapy in my office for nearly ten years. During Covid -19 period I stopped group therapy. I never hosted any therapy type at my place. It was a socializing group, with cultural celebration for Nowrooz (Iranian New Year), Yalda (The longest night of the year), Australian New Year, My father funeral and other cultural occasions. The group created by a Friend (Mrs Soraya Hassanyar, who was the facilitator of a social group called: Chat and Chai. She asked if she can bring the group into my place. I agreed and we have social group just to break the isolation of Covid-19 period. We always followed the government's guideline. The socializing was not always at my place. We went to a Farm of a group member twice (Mrs Naeemeh Aletaher) twice, to Hoshang ghasemiyan's Place twice, Mrs Parvaneh Fallah's place twice. It was purely a cultural and social gathering and there was noting to do with my psychologist profession. All the members are ready for affidavit or witnessing at court. Musicians and singers are also are available for witnessing. Later on, July 2021 I organised an online Psychoeducational group, called: Self knowing and self-actualizing, which was fully online and there was no place to serve any alcohol. Particular 1b [text set out] Response: 1- The psychoeducational group training called "knowing self and actualising self" was fortnightly and not weekly. 2- Actually, the self-knowing Psycho-education group started when I was overseas and the whole program was running online. I sent all the tests and questionnaires via email to participants and they reply via email. Every second Friday from 17:00 pm Sydney time I was running the group online. This psychoeducation group started July 2021, when I was not in Sydney to have a session in my house and serve any alcohol or socialise with group members. I started this group when Medicare and APS announced that to recover from Covid -19 isolation and to promote the mental Health of citizens, Medicare Australia increased the number of GP Mental Health Care plan from 10 visits to 20 and also permitted to have group sessions. Every thing was legal. So, the sessions were totally online and there was no socializing or drinking at all. 3- For all group and individual sessions for my clients I recorded the session notes. Particular 3 and 4: Response: Yes I had shortcoming in this regards. Particular 5: I did not employ Client D. She was looking for an opportunity, as a single mom, to have local experience to be able to get a job in health -related services. She proposed to help me voluntarily, working from home and doing my Medicare claims. I agreed and she was helping me in this regard voluntarily. She was working from home (due to covid -19) and never had any interactions with clients. But it seems inappropriate and I accept that it was wrong. Complaint 3 Particular 1: [text set out] Response: I have already explained that she was first my friend and we have several interactions before she gets a referral from her GP. Therefore, she was not my client first and then I stared intimate relationship with her. She was first my friend and we were very close friends, socializing, going to clubs, travelling around Sydney together, then she applied to get a referral to see me. Therefore I was honest with HCCC when I told them that she was not my client. Also I have witnesses that she hired a room from me and got the keys and remote control from another practitioner (Dr Somayeh Mahintorabi) to share the office when I am away. Also when the Strata of the building wants to renovate the office's Air condition, Mr. Mohsen Musavi, my admin, arranged to get the keys back from her. He is available for interview and witnessing. Complaint four [text set out] Response: From the first time when the HCCC, suspended my registration, I accepted and followed the rules. It is nearly two and half years that HCCC suspended my registration and I never protest or request any review. I did not talk to anyone, except my admin, MR. Mohsen Musavi, and [Client D] about this situation. Therefore, I did not need to justify the suspension of my registration for anyone. With consideration to all the responses I provided to the HCCC complaint, I had no intention to fight with HCCC in the court and ready to accept the fair decision of the Health Care Complaints Commission." The hearing 1. On 3 and 4 June 2024, a combined stage 1 and stage 2 hearing took place. Mr I Chatterjee, a barrister, represented the applicant. The respondent represented himself. 2. We granted leave to the applicant to file an Amended Complaint to correct some typographical errors and dispensed with service of the Amended Complaint on the respondent. 3. The applicant relied on the following documents which were admitted into evidence without objection except as to the documents in (2) below: 1. volume one of the bundle of documents filed on 10 April 2024 other than tabs 1 and 7 (pages 1 to 12 and 276) which was marked as exhibit A1 and included: 1. the 19 January 2022 Council decision; 2. the transcript of the Sahebi s 150 hearing; 3. the statement of Client A with the typed date 24 March 2022 and the handwritten date 12 August 2022 (the 12 August 2022 Client A statement) which includes as annexures: 1. the 1 August 2021 Client A complaint and the accompanying "Statement of the relationship with Mr. Sahabi" (the 1 August 2021 Client A statement); 2. the WhatsApp text messages in Farsi she received from the respondent with English translations by a NAATI credentialled translator (the Client A text messages); 3. the voice messages in Farsi she received from the respondent with English translations by a NAATI credentialled translator (the Client A voice messages); 4. the Provider Service report of Medicare setting out services provided by the respondent to Client A during the period from 1 January 2019 to 1 January 2022 (the Client A Medicare report); 5. the referral of Dr Aminur Rahman (Dr Rahman) dated 31 March 2021 to the respondent (the 31 March 2021 Rahman referral). 1. the statement of Client B dated 20 January 2024 (the 20 January 2024 Client B statement); 2. the statement of Client D dated 27 February 2024 (the 27 February 2024 Client D statement); 3. the report of Dr Sonia Sultan (Dr Sultan), a clinical psychologist, dated 12 April 2023 (the 12 April Sultan report); 4. the medical records of Client A of the medical practice in which Dr Rahman worked for the period from 21 October 2013 to 6 May 2022 which were printed on 9 May 2022 (the Client A medical records); 5. two pages of the bank statements for the account of Client A which included the entries on 15 April 2021 and 26 April 2021 (the Client A bank statements); 6. documents provided by the respondent which include the following: 1. his letter dated 12 April 2021 to Dr Rahman (the 12 April 2021 Sahebi letter); 2. the 16 August 2021 Sahebi letter; 3. his letter dated 8 March 2022 sent to the HCCC in response to a notice dated 1 March 2022 issued under s 34A of the Health Care Complaints Act 1993 (NSW) (HCC Act) (the 8 March 2022 Sahebi letter); 4. his letter dated 10 December 2022 sent to the HCCC in response to a notice dated 29 November 2022 issued under s 34A of the HCC Act (the 10 December 2022 Sahebi letter); 1. volume two of the bundle of documents filed on 10 April 2024 which was marked as exhibit A2 and included the following documents: 2. the statement of Client A dated 11 April 2024 (the 11 April 2024 Client A statement) which was marked as exhibit A3; 3. the evidentiary certificate dated 20 May 2024 of the Australian Health Practitioner Regulation Agency which was marked as exhibit A4. 1. The respondent relied on the following documents which were admitted into evidence without objection except as to the documents in (2) below: 1. the statement of Sayed Mohsen Musavimovahed (Mr Musavimovahed) dated 31 May 2024 (the 31 May 2024 Musavimovahed statement) which was marked as exhibit R1; 2. the statement of Soraya Hasanyar (Ms Hasanyar) dated 2 June 2024 other than para [6] (the 2 June 2024 Hasanyar statement) which was marked as exhibit R2; 3. the reference of Nahid Javadi (Mr Javadi) dated 22 February 2024 (the Javadi reference) which was marked as exhibit R3; 4. the reference of Sarvin Rodd (Mr Rodd) dated 21 February 2024 (the Rodd reference) which was marked as exhibit R4; 5. the reference of Meena Omid (Ms Omid) dated 21 February 2024 (the Omid reference) which was marked as exhibit R5; 6. the reference of Leila Golchinfar (Ms Golchinfar) dated 19 February 2024 (the Golchinfar reference) which was marked as exhibit R6; 7. the reference of Hooman Barhaghi (Mr Barhaghi) dated 26 February 2024 (the Barhaghi reference) which was marked as exhibit R7; 8. the reference of Dr Abbas Ranjbar (Dr Ranjbar) dated 21 February 2024 (the Ranjbar reference) which was marked as exhibit R8. 1. Client A, Mr Musavimovahed, and the respondent gave oral evidence. 2. The applicant relied on its written submissions dated 1 June 2024 (the HCCC submissions) and its counsel made oral submissions in chief and in reply. 3. The respondent made oral submissions. 4. At the conclusion of the hearing, we made a non-publication order in respect of Clients A to D pursuant to cl 7 of Sch 5D of the National Law and reserved our decision. The issues 1. The following issues arise for determination: 1. issue 1: whether the respondent engaged in the conduct constituting Complaints One to Three, and whether any such proved conduct constitutes unsatisfactory professional conduct; 2. issue 2: whether by reason of any such proved conduct for Complaints One to Three, the respondent engaged in professional misconduct constituting Complaint Four; 3. issue 3: whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law; 4. issue 4: the costs of the proceedings. 1. Before considering these issues, it is appropriate: 1. to set out the applicable provisions of the National Law; 2. to explain the applicable legal principles; 3. to summarise the evidence of the parties; 4. to summarise the submissions of the parties. The applicable provisions of the National Law 1. Part 1 (ss 1-10) contains provisions dealing with preliminary matters. Section 3 specifies the objectives and guiding principles of the National Law, and relevantly provides: 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; and … (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 … 1. Section 3A specifies the particular objective and guiding principle of the National Law in New South Wales, and 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. Section 4 specifies how functions under the National Law are to be exercised, and provides: 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A. 1. Section 5 contains definitions, and relevantly provides: 5 Definitions In this Law— … health service includes the following services, whether provided as public or private services— (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services. 1. Part 8 Division 1 (ss 138-139I) contains provisions dealing with preliminary matters in relation to health, performance and conduct. Section 139B contains a definition of unsatisfactory professional conduct of a registered health practitioner, and 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— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (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 contains a definition of professional misconduct of a registered health practitioner, and provides: 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. Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and relevantly 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 … if— (a) it finds the subject-matter of a complaint against the practitioner … to have been proved; or … 1. Section 149A specifies the general powers of the Tribunal to caution, reprimand, impose conditional and take other actions, and relevantly provides: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; … 1. Section 149C specifies the powers of the Tribunal to suspend or cancel registration in certain cases, and relevantly 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 … (5) If the Tribunal suspends or cancels a registered health practitioner's … registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … concerned, or … to pay costs to another person as decided by the Tribunal. … (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. The applicable legal principles The proof of facts 1. In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52]. 2. In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), Dixon J commented at 362: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..." 1. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171 (Neat Holdings), the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said: "[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations omitted) 1. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact. 2. In approaching this issue we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126]-[127] (Leeming JA, with Basten JA at [1] and Gleeson JA at [37] agreeing); Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [85]-[87] (Payne JA, with Leeming JA at [1] and Simpson AJA at [118] agreeing). 3. In Health Care Complaints Commission v Ng [2015] NSWCATOD 85 at [128]-[130] the Tribunal set out the following observations on assessing the credit of a witness: "[128] We found the recent discussion by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73] to [79] to be of considerable assistance. To paraphrase his Honour: (1) Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence is of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. (2) The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] Keane JA; referred to with approval by Leeming JA in New South Wales v Hunt [2014] NSWCA 47 at [56]. (3) A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. [129] His Honour also referred at [75] to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, who stated at 431: a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." [130] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 at [57]; In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7]." 1. The second aspect of the rule in Browne v Dunn is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) at [69]-[70], [137]. The relevance of character evidence 1. In Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158 at [47], Stein JA made the following observations in an appeal from the Medical Tribunal (with Powell JA at [1] and Rolfe AJA at [54] agreeing): "[47] Nonetheless, it is plain that the Tribunal is not entitled to take character into account in considering whether a practitioner is guilty of unsatisfactory professional conduct. It is difficult to see, given the admission of careless conduct by the respondent, (which was accepted by the Tribunal) what probative force such evidence would have. It had no relevance to the consequences which might flow from the inadvertent error. It could, of course, be relevant to credit. But the mistake made by the practitioner involved no issue of credibility. The character evidence was, by its very nature, relevant to penalty, should the Tribunal get to that issue." 1. In Health Care Complaints Commission v Gao [2022] NSWCATOD 73 at [73]-[79], the Tribunal enunciated the following principles with respect to character evidence: "[73] The Respondent has raised character evidence in his defence. Although the Tribunal is not bound by the rules of evidence (s 2, Schedule 5D to the National Law, s 38(2) Civil and Administrative Tribunal Act 2013 (NSW)), the common law principles, and statutory provisions which govern character evidence are instructive for present purposes. [74] There is no statutory definition of character evidence, but the description advanced by Kirby J in Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 (although in dissent with respect to the merits of the case) is cited in the Civil Trials Bench Book published by the NSW Judicial Commission, which states that "character refers to the aggregate of qualities which distinguish one person from another, or the moral constitution of a person: it embodies the permanent and unchanging pattern of the nature of the individual concerned". [75] Evidence of "good character" includes evidence of the accused's general good reputation, and evidence of the accused's favourable disposition (Stirland v Director of Public Prosecutions [1944] AC 315), which may be proved in a number of ways, and does not simply consist of evidence that the accused has not previously been convicted of an offence (Melbourne v R [1999] HCA 32; (1999) 198 CLR 1). [76] Evidence of good character is not merely evidence which may make it more likely that the accused's evidence is credible, but also whether it is unlikely that the accused committed the offences charged, or, in these proceedings, committed the acts alleged against him (TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, at [35] Gleeson CJ, and [94] McHugh J). The evidence can only make it unlikely, rather than improbable, that the accused is guilty of the conduct alleged against him (R v Stalder (1981) 2 NSWLR 9). [77] We apprehend that the Respondent's reliance upon character evidence in these proceedings is for both those purposes. Thus, Counsel for the Respondent submitted that his good character makes it unlikely that the Respondent would be guilty of the conduct alleged by Patient A, and unlikely that he would not tell the truth about his conduct (Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353, at [359], Eastman v R (1997) FCR 9, at [147], TKWJ v The Queen [2002] HCA 46, at [94]). [78] The raising of good character requires a conscious decision on the part of the accused (R v Bartle [2003] NSWCCA 329, at [129]-[136]), and is not raised when a witness simply volunteers the evidence (PGM v R (2006) 164 A Crim R 426, at [35]). We are satisfied that the Respondent has squarely raised character in these proceedings, and not merely made emphatic denials of guilt (R v Skaf [2004] NSWCCA 74, at [223]-[226], R v El-Kheir [2004] NSWCCA 461, at [50]). [79] The significance of the evidence of character in the present proceedings is limited. Although the Applicant has not expressly raised Patient A's good character, or inferentially raised it in a manner which would be required if the Tribunal was bound by the rules of evidence, we do not consider that the character of Patient A, or that of the Respondent ultimately makes it more or less likely that the evidence of the Respondent should be preferred to that of Patient A, or that the converse should apply because each is a person of good character." The finding of unsatisfactory professional conduct 1. In Health Care Complaints Commission v Aref [2018] NSWCATOD 133 (Aref) at [18]-[20], the Tribunal considered the meaning of unsatisfactory professional conduct in s 139B(1)(a) and (l) of the National Law: "[18] In making a finding of unsatisfactory professional conduct per (a), the Tribunal must compare the conduct of the practitioner with a standard 'reasonably expected'. In HCCC v Simonson [2017] NSWCATOD 87 the Tribunal noted at [9]: 'Obviously, there will be many cases where there is no one bright line which typifies the relevant knowledge, skill or judgement or care of such a practitioner. In most cases, the expected standard of relevant knowledge, skill or judgement or care of a practitioner will fall within a band, sometimes narrow and sometimes broader.' [19] 'Improper' and 'unethical' are not defined in the National Law. The assessment of what constitutes improper or unethical conduct is based upon their ordinary meaning. In the professional disciplinary context there is necessarily some overlap between the two words. [20] 'Improper' conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: HCCC v Phung (No 1) [2012] 1 NSWDT 3 at [68]; HCCC v Fisher [2016] NSWCATOD 62 at [57]; HCCC v Flekser [2016] NSWCATOD 1 at [119]. Improper and unethical conduct may be dishonest, disreputable to the profession, in breach of explicit professional standards such as codes of conduct, guidelines and competencies, and may also be determined by reference to the views of reasonable members of the profession: Slezak, Dr Peter [2011] NSWMPSC 10 at [83] and [87]." The finding of professional misconduct 1. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen) at [19]-[20], Basten JA (with Leeming JA at [23] agreeing) relevantly said: "[19] ... The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. … [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. …" 1. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 (Litchfield), the New South Wales Court of Appeal (Gleeson CJ, Meagher and Handley JJA) at 638 said in relation to professional misconduct: "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards." The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law 1. In Lee v Health Care Complaints Commission [2012] NSWCA 80 (Lee) at [19]-[21], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. 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. 3. 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. [21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], Meagher JA (with Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "[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. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88]. The significance of a finding of dishonesty against a practitioner 1. In Lee at [67], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) made the following observation as to the significance of a finding of dishonesty against a practitioner: "[67] … Cases of dishonesty are very serious. Cases of recklessness are also serious. This is particularly so where the protection of the public is at stake and the default is one that leaves patients exposed to a risk against which the practitioner is required by law to provide protection." 1. In Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 32 (Wingate) at [43], Basten JA (with McColl JA at [1] and Harrison J at [81] agreeing) referred to the duty of full and frank disclosure of misconduct which applies both to members and applicants for membership of professions such as law and medicine. The exercise of the power of the Tribunal to reprimand the practitioner 1. In Health Care Complaints Commission v Lord [2019] NSWCATOD 182 at [41]-[42], the Tribunal considered the difference between a caution and a reprimand: "[41] In Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 (Dowla (No 2)), the Tribunal considered at [42] the difference between a caution and a reprimand under s 149A(1)(a) of the National Law and cited with approval the decision of the Victorian Civil and Administrative Tribunal in Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 (Coleman), in which the Tribunal explained at [14]: [T]he ordinary meaning of the words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences. In Peeke v Medical Board of Victoria (unreported, Marks J. 19 January 1994). His Honour commented on a view that had been expressed to the effect that to impose a reprimand was to trivialise a serious lapse in professional standards. His retort was succinct - I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications. [42] As noted by the Tribunal in Dowla (No 2) at [44], a reprimand, if imposed, will appear on the record of a practitioner's registration maintained by the Australian Health Practitioner Regulation Agency (AHPRA): s 225(j). In contrast, the National Law does not require AHPRA to record a caution on practitioner's record." 1. The Tribunal has held that the concept of general deterrence and the need to uphold public confidence in the standards of the profession in an appropriate case will be adequately addressed if the misconduct of the practitioner is denounced, in the sense of being openly condemned, by reprimanding him: Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [94]-[95]; Healthcare Complaints Commission v Hollenbach [2019] NSWCATOD 118 at [553]; Health Care Complaints Commission v Lu [2023] NSWCATOD 51 at [60]. The exercise of the power of the Tribunal to impose conditions on the practitioner's registration 1. In Litchfield the New South Wales Court of Appeal (Gleeson CJ, Meagher JA, Handley JA) allowed an appeal from the decision of the Medical Tribunal under the Medical Practice Act 1992 (NSW) that the practitioner be suspended from practising medicine for nine months, that he attend for assessment by a psychiatrist appointed by the Medical Board, who was to report to it within the period of suspension, and that for the following twelve months he should practise in a position approved by the Medical Board. The Court at 639 over-ruled Richter v Walton [1993] NSWCA 233: "Mr Joseph submitted that we should over-rule the decision in Richter v Walton where this Court by majority set aside an order of the Tribunal removing the appellant's name from the register and substituted an order imposing conditions prohibiting the appellant, except in the case of an emergency, from seeing a female patient except in the continuous presence of a female chaperone. The majority thus found that the appellant could not be trusted to observe proper professional standards in his conduct towards female patients unless a female chaperone was present throughout. With the greatest of respect the necessity for imposing such conditions on the appellant's registration demonstrated that he was unfit to practise medicine and in those circumstances the only appropriate order was one dismissing his appeal. The dissenting judgment of Priestley JA was entirely correct, and the majority decision should be over-ruled." The exercise of the power of the Tribunal to cancel the registration of the practitioner and to specify a non-review period 1. In Chen at [21]-[22], Basten JA (with Leeming JA at [23] agreeing) considered the operation of s 149C of the National Law: "[21] Finally, in 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. …" 1. In Chen at [88], Payne JA (with Basten JA at [1] and Leeming JA at [23] agreeing) considered the operation of s 149C(7) of the National Law: "[88] … a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order." 1. In Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28 (Morsingh OD (No 3)) the Tribunal found that the practitioner engaged in inappropriate conduct which included sexual touching towards a female patient on a single occasion. The Tribunal relevantly decided to cancel the practitioner's registration, to fix a non-renewal period of two years, and to make a prohibition order against the practitioner. 2. In Morsingh v Health Care Complaints Commission [2022] NSWCA 106 (Morsingh CA) the New South Wales Court of Appeal relevantly dismissed an appeal by the practitioner against the cancellation of his registration as decided in Morsingh OD (No 3). Mitchelmore JA at [87]-[88] (with White JA at [1] and Basten AJA at [103] agreeing) rejected the submission that cancellation of the practitioner's registration was unreasonable. Her Honour had earlier at [76]-[79] relevantly set out the findings of the Tribunal: "[76] The Tribunal ultimately concluded that Dr Morsingh had used his consultation with Patient A to "indulge his own social and sexual inclinations" and found that the circumstances were sufficiently serious to justify cancellation of registration: Stage 2 Decision [56]-[57]. … [77] The Tribunal stated that such factors "alone" made Dr Morsingh's actions "sufficiently serious to justify suspension or cancellation of his registration as a medical practitioner": Stage 2 Decision [57]. In addition, the Tribunal noted that rather than admit the conduct and address the reasons for it, Dr Morsingh had sought to discredit Patient A: Stage 2 Decision [59]-[60]. The Tribunal stated that it could not be satisfied that a practitioner who was persistently untruthful about matters that are centrally relevant to the complaints, and persistently sought to undermine the victim's truthful account of those matters, was capable of acting with integrity and observing the high ethical standards that apply to the medical profession, or that they are a suitable repository of trust and confidence. It considered that such circumstances created a greater need for specific and general deterrence (Stage 2 Decision [65]-[66]), noting that Dr Morsingh had not admitted several of the allegations including as to sexual touching: Stage 2 Decision [67]. … [79] In response to the list of cases on which Dr Morsingh relied for the purposes of comparison, the Tribunal did not consider any of them was on all fours with his case: Stage 2 Decision [72]. Although the impugned conduct related to a single consultation over the course of many years of practice, Dr Morsingh had not addressed the issues in a constructive way, and the Tribunal's paramount consideration had to be the protection of the health and safety of the public: Stage 2 Decision [73]. Dr Morsingh had not apologised for his behaviour, "much of which he has not acknowledged", and he had not expressed any remorse or contrition: Stage 2 Decision [76]. The Tribunal expressed its conclusion regarding Dr Morsingh's registration at [77]-[78] of the Stage 2 Decision: "We have given close consideration to the question of whether Dr Morsingh could continue to practise under supervision with a condition requiring him not to consult with or treat females over the age of 11 years old except in an emergency. We do not consider that such a course would be sufficient to denounce misconduct of the kind which is the subject of this matter, either to Dr Morsingh or to the general body of medical practitioners. In order to protect the public, denounce the crossing of professional and sexual boundaries and maintain public confidence in the medical profession, it is appropriate to cancel Dr Morsingh's registration as a medical practitioner under s 149C(1)(b) of the National Law." The exercise of the power of the Tribunal to make a prohibition order 1. The meaning of "substantial risk" in s 149C(5) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 (Menz (No 2)) at [19]: "[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." The exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law 1. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46], Emmett JA (with Meagher JA at [1] and Beech-Jones J at [50] agreeing) set out the principles relevant to the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law: "[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by 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 (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied. [43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). [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. [45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. [46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. …" 1. In Health Care Complaints Commission v Neale [2024] NSWCATOD 16 (Neale) at [8]-[10], the Tribunal relevantly said: "[8] In its submissions with respect to costs dated 4 August 2023 the Applicant identified the relevant statutory provisions with respect to costs and a number of the principles relevant in that regard. As is not in doubt, costs are awarded to compensate a successful party, rather than punish an unsuccessful party and, as a general rule, follow the event (HCCC v Philipiah [2013] NSWCA 342). [9] The presumption that a successful party is entitled to receive its costs is generally only displaced where there has been some disentitling conduct by the successful party (Oshlack v Richmond River Council (1998) 193 CLR 72 [1998] HCA 11, Health Care Complaints Commission v CSM [2016] NSWCATOD 125, Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154). [10] A respondent bears the onus of establishing a basis for any departure from the general rule (Health Care Complaints Commission v Livermore [2021] NSWCATOD 115). If the successful party is found to have engaged in disentitling conduct the general rule may be departed from." The evidence of the applicant The documentary evidence The Client A text messages 1. The Client A text messages comprise the following text messages: 1. text messages between members of the "Friday group" during the period between on or prior to 17 April 2021 to 5 September 2021 (the Friday group text messages); 2. text messages between the respondent and Client A during the period between 2 April 2021 to 5 August 2021 (the personal text messages). The Friday group text messages 1. The Friday group text messages relevantly include the following messages: "Sat, Apr 17 [8.54am] Entertainment list for 23rd April: [nine names and specified food or drink items omitted] Entertainment list for 30th April [one name and specified food item omitted] [9.57am] Big thanks to Dr. Sahebi for last night get together and your valuable and rich class [emoji depicting a red flower and raised pair of hands held together] Greetings to all my friends, I will bring orange cake for 30th April. Wish you happiness. We will be happy and will have a good time anywhere we are while with Dr. [emoji depicting two raised pair of hands held together] [10.35am] Dear friends, Many referrals have been requested from you and the ones who attend private and group consultations, the sessions have concluded. Please consider the following. 1- People who have not provided their referrals from GP, please go and see you GP and get the letter. 2- People who do not have Medicare are welcome to the group, you are our guests and do not need to pay. 3- The names mentioned below should receive their reports and review requests to GP from me and refer to the same GP for referrals. 4- I sincerely thank people who have already brought their second letter before this note. People who need to bring review letter: [19 names omitted] I will directly fax your GP letters today and send you the copy privately. Please print it and go to the same GP who referred you and request a review. I thank you for your attention and kindness. …" The personal text messages 1. Some of the original personal text messages include or comprise emojis. The personal text messages relevantly include the following messages: "Tue, 23 Feb [11.20pm] [First name of Client A]: Hello dear Mr. Sahebi, I am [First name of Client A] who attended your class last week and I enjoyed it. I am pleased to meet you. I am a translator and also work with a group of physically disabled people and I am sure your advice would be beneficial to me and my clients. I would appreciate if you add me to the group. Regards [Emoji depicting flower] Thu, 25 Feb [7.34pm] [First name of Client A]: Hi doctor, I thought I would remind you to add me to the group. Thanks [Emoji depicting three flowers, three raised pair of hands held together and three flowers] Fri, 26 Feb [8.34pm] [First name of Client A]: Thank you so much. [Emoji depicting three flowers, three raised pair of hands held together and three flowers] Wed, 31 Mar [8.34pm] [voice message of Client A omitted] [8.36pm] [First name of Client A]: Hi, I have doctor`s letter, I am not familiar with some of the items mentioned in my medical history and was not aware that I had those many issues. [Emoji depicting a slightly smiling face] [8.40pm] [voice message of the respondent set out on [68] below] [8.42pm] [First name of Client A]: Ok. Thu, 1 Apr [10.50pm] [First name of Client A]: Dear Dr. Sahebi, Sorry to message you late, these days an issue is bothering me, and I was worried that I would forget. Please send me the invoice so I can pay the consultation fee. Thanks. Have a good night. [11.10pm] Sahebi: Take it easy. [Emoji depicting a character holding a red heart shaped balloon] Fri, 2 Apr [12.11am] [First name of Client A]: So, we will fix it on Wednesday. Thu, 15 Apr [7.12pm] Sahebi: $50 for each session. [7.25pm] [First name of Client A]: Hi, ok, thanks. [8.32pm] PAYMENT SENT [text redacted] When: Today, 15 Apr 2021 Reference: payback Description: Payback [8.37pm] [Emoji depicting a character holding a red heart shaped balloon sent by the respondent] [9.15pm] [Emoji depicting a bunch of red, pink and white flowers sent by Client A] [9.15pm] [Emoji depicting a character holding a red heart with an adjacent red heart sent by Client A] Sat, 24 Apr [3.31pm] PAYMENT SENT [text redacted] When: Today, 24 Apr 2021 Reference: Books 4 the greys Description: Books 4 the greys [3.35pm] PAYMENT SENT [text redacted] When: Today, 24 Apr 2021 Reference: payback Description: Payback [3.36pm to 8.22pm: a series of text messages by Client A and the respondent including those set out below and four voice messages by the respondent] [First name of Client A]: Hi, I paid for 4 session of consultation as well, with your permission Sahebi: It was not necessary. Pay at the end of each session. Thanks. So, for how many sessions have you paid now? [First name of Client A]: For 4 sessions, sorry I though it is ok. [First name of Client A]: It is ok for me too. Great, the pure is the best. Thanks. Thanks, then I will call you around 9 to see if you have made it home. [First name of Client A]: Great, I will see you. Sahebi: Dear [First name of Client A], I got home Sun, 25 Apr [11.33am to 8.33pm: a series of text messages by Client A and the respondent including those set out below and one voice message by the respondent] Sahebi: Dear [First name of Client A], thank you. You made a special and unique night for me, great thanks. [First name of Client A]: I thank you as well, I had a great night with you. I hope the rest of your day is great and you have a good time. Ok, for sure. I am going for a beach walk [First name of Client A]: I called, call me anytime you are free, I will see what to do. Sahebi: My dear [First name of Client A], what time do you come? [First name of Client A]: I thought I come a bit late so you can concentrate on your work. What time do you think it is best? Sahebi: I am at your services, I am free from now till 10:30 and after that I will be free after 2 AM. [First name of Client A]: Ok so I'll get ready to come. Sahebi: Hurry up and come, I am waiting Fri, 30 Apr [11.39am to 1.27pm: a series of text messages by Client A and the respondent including those set out below. One text message by the respondent is an emoji depicting a line of eight red hearts with the largest in the foreground and the smallest in the background] Sahebi: [First name of Client A], my love, I miss you, look after yourself, you are so precious [First name of Client A]: Hi my dear, you look after yourself too. Sahebi: Dear, whose love were you? Sahebi: Your love, you are my life. Sahebi: I love you. Kisses for you [First name of Client A]: Love you. May your day be filled with happiness. I'll see you tonight. Sahebi: I am happy that I'll see you in the afternoon. [First name of Client A]: Oh, I am drying from exhaustion Sahebi: You need massage then, I am at your service" The Client A voice messages 1. The Client A voice messages relevantly include the following messages: "31/03/21- Dear [first name of Client A], hi, thank you for sending, send me a photo of your Medicare card to see its number and which number you are. Thanks a lot "28/04/21- My god that my [first name of Client A] is worried, my dear, I told you I am sick, I mean when you are unwell, if I could stay awake, I would have asked my love to come over, but I was really sick, so tired, …. I lay in bed, someone had sent a clip about one of the greats of psychology, as he was telling his life story, I fell asleep. I was waiting to see if you called to ask you to come over and sleep next to each other, but I was scared, really scared that you get sick, do not get sick our girl, my beautiful, lovely [first name of Client A]" "28/04/21- Hi Dear [first name of Client A], … I am invited to a lunch on Saturday, [name omitted] and others also coming from… they stay over at our place, you can stay over too if you like, we can drink, you and I and …. I will give you a room to sleep and will give them my own bedroom to sleep in, I will sleep up the top where I have the class, you can sneak in and come to me if you want to stay with me. If not, I will drop you home, you drink and enjoy. Let`s organize this together." "07/05/21- what do I say? What do I say? It was in your eyes, you made me crazy, I am enchanted by you, love your eyes, if you pass by the street any night, or in the middle of the night, if you encounter someone like me, enchanted wandering dervish, close your eyes, or don't look at him like that, if any look burns you like this, the whole world would be burnt down by now. It is all in your eyes, you made me crazy, I am enchanted by you." "08/05/21- Dear [first name of Client A], hi, I hope you are well, …, but in my sleep, I was thinking about you, I love you my unbelievable beautiful honey." "12/05/21- Dear [the Farsi word meaning "who has beautiful eyes"], my love, …, you come over whenever you like, till one thirty, I am at your service, I will lick you all over, I want you, you are so dear, so loveable, my dear friend, my love, …" "13/05/21- Dear [first name of Client A], my [the Farsi word meaning "who has beautiful eyes"], I hope you are well, good day. It is Thursday, 12:08 and it is nearly three hours that I have not seen you and I miss you. I have beautiful time with you, your presence is heart-warming and beautiful, your being is beautiful, your presence is full of life and wisdom, I love you. …" The Client A Medicare report 1. The Client A Medicare report records that the respondent provided services to Patient A on 14 April 2021 and 21 April 2021. In each case the service was "Professional attendance for the purpose of providing psychological assessment". The 31 March 2021 Rahman referral 1. In the 31 March 2021 Rahman referral, Dr Rahman referred Client A to the respondent for his care and advice. The 12 April 2021 Sahebi letter 1. In the 12 April 2021 Sahebi letter, the respondent set out his diagnosis of Client A's symptoms which were not in his area of practice and expertise, advised that he was unable to help her, and requested Dr Rahman refer her to a psychologist or psychiatrist that works with those symptoms. The Client A medical records 1. The Client A medical records which were printed on 6 May 2022 included the 31 March 2021 Rahman referral and a "BOIMHC Mental Health Plan for Client A dated 31 March 2021 (the Client A mental health plan), but did not include the 12 April 2021 Sahebi letter. The Client A bank statements 1. The Client A bank statements relevantly record the following payments to the respondent: 1. $200.00 on 15 April 2021 with the notation "payback"; 2. $40.00 and $200.00 on 26 April 2021 with the notations "Books 4 the greys" and "payback" respectively. The 19 January 2022 Council decision 1. In the 19 January 2022 Council decision, the Council delegates relevantly stated: "… Delegates' concerns raised during the Hearing … 3. The complaint involves an allegation made by a person who indicated that Dr Sahebi had engaged in a sexual relationship with her when she was his patient, Dr Sahebi adamantly denied the complaint. He described his relationship with the complainant as a friendship and furthermore, cited his physical inability to participate in sexual activity. 4. Dr Sahebi and the complainant are both from culturally and linguistically diverse (CALD) backgrounds and Dr Sahebi indicated that the redacted translations of WhatsApp communications between himself and the complainant were merely literal translations of words and did not accurately or correctly reflect intended cultural and poetic nuances. 5. Two Medicare payments appear to have been made in relation to treatment sessions attended by the complainant. However, Dr Sahebi denied that the complainant had ever been his patient and explained that erroneous payments had been made to Medicare by a member of his Administrative Staff in the complainant's name. Dr Sahebi stated that the complainant is a social worker and that she had requested renting a consulting room at his practice, and that her advanced rental payments had been mistakenly forwarded to Medicare, unbeknown to him. … The paucity of relevant documentary evidence provided by Dr Sahebi to substantiate his assertion that the complainant has never been his client, coupled with his adamant concern that the WhatsApp translations of the redacted communications between the complainant and himself are inaccurate, - have rendered this complaint process temporarily unresolved pending further investigation. The literal translations of the communications between Dr Sahebi and the complainant, viewed without the cultural nuances Dr Sahebi ascribed to the communications between himself and the complainant, appear very damning of his behaviours towards a person who had been billed via Medicare as a patient of his. …" The witnesses Client A 1. The evidence of Client A comprised the following: 1. the 1 August 2021 Client A complaint; 2. the 12 August Client A statement; 3. the 11 April 2024 Client A statement; 4. her oral evidence. The 1 August 2021 Client A statement 1. In the 1 August 2021 Client A statement in which there is no para [35]), Client A relevantly set out details of her relationship with the respondent: "… 6- One day in February my colleague told me that I could go to Dr. Sahebis class as he was not going on that Friday. He also said that his wife was going there too and I could be with her. 7- I contacted [Client B], my colleagues wife, and I arranged my entrance with her as I was feeling shy. 8- I went to the class on that Friday at 6pm, 6pm was the usual time for starting the class on every Friday. 9- When I arrived, [Client B] came to me to take me through, the class was in the backyard of the Drs house. 10- After the class I went to the doctor and said hello to him and thanked him for letting me in. 11- People went downstairs via a corridor and I saw some food and beverages, I knew that people have some entertaining time after the class, I left as I was not comfortable to stay as it was my first time there. 12- My colleague told me that I would need a referral from my GP to give it to Dr. Sahebi so he can have me in his classes officially. Also I should ask Dr. to add me to his whatsapp group. 13- I got the referral letter from my GP. I sent a message to the Dr. thanked him and asked him to add me to the group on the 23rd of February. He didnt reply to me. I sent a reminder message to him on the 25th. He added me and I thanked him again on Whatsapp. 14- I sent him the doctors referral on the 31st of March. 15- He asked me to send him my Medicare card too. I did that sent on wahtsapp. 16- I was attending his classes every Friday. … 17- One Friday night after the class I asked him to give me a time for counseling as a patient I also told him that I need it desperately. Dr. told me that he was booked fully for two years and has got no time. Then as if he remembered something he said that he had one cancellation which were on Wednesdays and i could go to his office at 10am on Wednesdays. Mr. Sayed was present at the time of the conversation. He gave me the address. 18- I attended the office on the Wednesday 31rst of March. I was there for an hour. I saw another client of him after I went out of the room, I asked dr. how would I pay, he said that the receptionist was not there, he would sent me the bill then I could pay. 19- I spoke about my problems including the ADHD, low in energy, feeling sleepy and some symptoms of depression. I bought a medication which was prescribed by a psychiatrist and I wasnt sure if that would help me with the depression I was experiencing too, he advised me to take it as it is going to be effective for ADHD and fixing the low energy problem. 20- I didnt receive the bill. I messaged him on the next day asked him for it, he sent me a love heart sticker and said take it easy 21- I replied that we would fix it on next Wednesday then 22- I had a session on the 7th, I couldnt focus on a particular subject to talk about as my mother passed away two days prior to the session but I didnt tell him, ... I apologized and told him due to some circumstances and problems I couldnt focus. I talked about some problems with my daughter which was about buying a house project and how it didnt work. Session ended and I asked how to pay, he said he will send me the details. I didn't receive it. 23- I went to the office on Wednesday the 14th for the third session, finished the session, same thing happened again with the payment. He texted me the next day, Thursday the 15th April with the details and said $50 for each session. I paid $200 form my account to his, I explained that its for the past three sessions and the next session in advance. He sent me a love heart in response. 24- … 25- I was attending the group sessions regularly, every second week I was cooking to take some food with me and taking some sweets too. 26- On Friday night some people were drinking after or before food and I went to the kitchen to make myself a tea, Dr and few others were there drinking their alcohol and jokingly a friend and I told dr. Ali, can you give us some advice how to drink alcohol too as we have problem with driving. He said that we could stay overnight in his place as there is plenty of places for us to sleep. He said that we could do it next week. 27- I went there on the next Wednesday as usual, I asked him for some advice.attend the next session on next Tuesday at his house as he stays home on Tuesdays and he sees clients from there, I said ok. 28- He called me on the 19th or 20th, I dont remember and said that he has some other clients at the office so he wont stay home and he has to get out anyway so the session would be held at the same office again. I said ok. 29- On Tuesday, 21st April, I went to the session at the office, spoke about my moms death and how sad I was, spoke my daughter moved to Canberra just a week before my moms death and I felt down and low. I told him that I was feeling lonely a bit and so on … 30- The next Friday, 23rd went to the group session and again I was with two other girls and me and another girl asked how could we drink, he said that he was serious and we could stay overnight or he could drive us back home. I felt embarrassed and I said we dont want to give you hassle that was just a joke, he said he wouldnt mind it at all and emphasized that he was serious. 31- When I was leaving with three of the girls, he came to say goodbye to us, he called my name and said dont forget next week, ok? Stay on the plan, ok? I was a surprised as he only called my name and he didnt mention what it was about for the next week. …, I said ok and left. 32- I sent him another $200 for 4 sessions in advance on Saturday, 24th and sent him the payment receipt. He responded that I didnt need to pay in advance and I could pay each session at a time. I said sorry as I didnt notice it was wrong. He said it was ok. I made that payment straight after Friday night so I wanted to say its not about getting any benefits or taking advantage because I was invited for drink or we spoke a bit friendlier while talking about that subject. I wanted to send this message that things are still formal between us. 33- He responded me via voice message on whatsapp and said that it was ok and even good. He said do not forget next week, He sent another voice record straight after that saying you can come over tonight for the drink, its only drink and no music unfortunately, when he said that as if there was a private little party as he used it in plural and I felt there would be some other guests maybe his close friends. And he said choose your favorite drink and let me know to get it for you. … 34- I thought he might have felt empathic towards me as I told him I was feeling lonely, my daughter moved to Canberra, mother passed away, some financial issues. Too much pressure and he wants to be friends as well and that might be a part of friendly therapy. I said ok I sent a voice record responding him on whatsapp and asked him should I take my own drink as I thought he might have other guests and I might become a member of his close friends. He said that I didnt need to take anything, he has got drinks at home. 36- I went to his house at night, I saw no one except himself, he welcomed me well. we started talking about different things then he asked me which one of his drinks is my favorite. He opened a good quality Whisky and we started drinking, I dont know and I never remembered how physical connection started, I became vigilant in bed and during the intercourse, I was still feeling drunk but I was conscious and shocked as I didnt expect that, he was showing me strong passion and love, I asked what are we doing and what is this, he said that he likes and loves me so much that he wanted to stay with me and be my partner (the word I used in his sessions while I replied to his question what was missing in my life, and I said the biggest one is a life partner) he was emphasizing on that word which created some questions in my mind as I knew he was married, I asked how that was possible? He said thats possible … 37- we were seeing each other often and whenever we were finding a chance, he seemed so interested in me and expressing so much love to me that I justified my sin, I thought love is sacred and God would love it too. he was telling me that I was ok to get in his place at any time and he would copy a key for me (never happened), so I was going to his place even when he was teaching online, I was making tea and doing my things until he finished then we were going to bed room like husband and wife. 38- we were getting close and I was feeling in love, I still had questions at the back of my mind but relying on him as a master, till towards the end of the first week he told me that we need to talk about some serious stuff too and we should somewhere one days in the weekend and we do talk, I said I hope the talk is about good stuff, he said absolutely. 39-On Friday night as usual, group session was held in his house, The session was normal, I looked brighter and happier more than before and I enjoyed it a lot, after the session, I went out, he told me that I should stay around till everyone was out he would call me and I could get back in. we did so. 40- we went to a beach on Sunday, he started telling me about his marriage and the wife who was in overseas, she comes to Aus for a month or two in a year, she will come permanently when she retires, he also told me that he has plan to go back to Iran soon, I was shocked and asked like when, he is waiting for the quarantine to be over and I told him that you definitely could postpone it because of our relationship which is very fresh, he said absolutely. He also told me that a married person falls in love with someone else when they have problem in their marriage, he didnt open up more and I didnt ask more as I tried not to bombard him by questioning also because I was shocked and worried, I kept quiet somehow, we went back to his house. 41- The relationship was growing stronger and deeper; I was so happy and felt loved and cared. Until one day he said the he heard that the trips were permitted and he is considering it. I asked him to postpone as long as possible, he assured me of that. He was worshipping my body and always stating that he likes me as I was different to him, my dignity and my ideology were much appreciated by him. After two weeks of our relationship, … 42- After couple of days he sent me a text, stating that his ticket was booked for Sunday the 16th of April and he needs to see his sons. I was really shocked when I saw that message, his attitude was not the same, prior to this, he was always trying to send me voice records and love messages more, but I noticed he was a bit dull. When I saw him at the end of the night, he promised me that he would always stay with me and find some ways to stay as strong as a partner and he would have the partners role in my life. He stayed all night awake, making love with me, make commitments, he made stronger commitment to our relationship as a partner, emphasizing again on the word partner, repeating that he promises me for the life, he would never touch another woman and so on, that was a turning point to me in a way that I felt I was in a good and secured relationship and I felt that I was in love with him. We had an extraordinary night. He said that he would have a busy day as he was traveling and there were many other things he needed to manage. He said that he will leave early and I could sleep in. 43- I woke up a bit later, I felt that I am the luckiest and happiest woman, felt different. I called him, we spoke a bit and one text message. I sent him texts stating that I feel in deep love now and sending few more love messages, he never saw my messages as they were delivered but not seen. I was fully ignored that day and night till late night in which he texted me saying formally that he is staying in his sons house and he might sleep over, he sent another text with some attachments for me to print, he said that he was going home. I asked if he was going to sleep soon, he said no but why, I said I was going to bring the prints. He replied that it was ok and he will leave the door unlocked for me. 44- I went there, went to his bedroom, he was asleep, I just laid down, he woke up and I asked him what happened, he said that he was too busy, I said that yes off course and I understand that, but as he went to a party at night, I slept that night in his place. I could feel that he didnt want me anymore and I felt fully ignored and he was pushing me away. The next day, we communicated here and there, he was supposed to leave on Sunday the 16ht of May, I saw him for a goodbye, he was very warm and welcoming to me again, he said that he would contact me from Qatar airport and as soon as he arrives in Iran. 45-communication and connection was very different, short, not often, and whenever he spent a bit more time, he was talking sexually not about love or any kindness. I found it insulting as I never wanted to be in just physical relationship and I never told him that I need such a relationship or conversation. …" The 12 August 2022 Client A statement 1. In the 12 August 2022 Client A complaint, Client A relevantly gave the following evidence: "… 22. I understood the majority of attendees to Mr Sahebi's sessions were his patients, and numbers were limited to between 15 and 25 patients. 23. Each session was held usually on a Friday between 6pm to 8pm. 24. The sessions generally began with a one hour speech by Mr Sahebi, and this was followed by a question and answer session about psychology and life coaching. There were practical activities and diagrams displayed to the class. 25. When I began attending in early February 2021, I felt I benefitted and learned some coping methods, including the 'shaping' of my thoughts and lifestyle. 26. After each session, there was a social gathering including food, drinking alcohol and dancing. The consumption of alcohol was quite light, and mainly by the men, with the exception of the Persian new year which was a large celebration. I usually did not drink as I was driving. Most people stayed on for the social element and the atmosphere was like a church group. 27. On Friday 9 April 2022, When I saw Mr Sahebi in the kitchen with his friend Mr Sayed, I opened up the conversation and asked him if he has a private session vacancy. I explained that my issues are serious and I really need to see a good psychologist. I said I felt that he was an excellent psychologist as I had attended the life coaching for some sessions by that time. 28. He first said he has no availability for another two years, but after a minute as he was checking with Mr Sayed, he said that there is one cancellation on Wednesdays at 10am. 29. I accepted the appointment and asked the address of his clinic. Mr Sayed gave it to me and it was confirmed that way. 30. When I saw Mr Sahebi on 14 April 2021, I was a little wary of him and recall telling him that I was already in a relationship at the time and that I was dating. I even asked him for some consultations about that dating as I was feeling low in confidence. I wanted to keep our relationship purely professional. 31. On 18 April 2021, my mother passed away and as I couldn't go back to Iran to see her, I was deeply affected. 32. I went to Dr Sahebi's office for a consultation session on the 21 April 2021 but I didn't mention about my mother's death as I wanted to solve the problems with my daughter as I found that more urgent. 33. On the Friday evening gathering, 23 April 2021. someone told the others that my mother had passed away and everyone including Dr Sahebi offered their condolences to me. 34. I attended Mr Sahebi's office again on Wednesday 28 April 2021, and he thought me some methods of mindfulness. 35. On Friday 30 April 2021 I attended the life coaching at his house as usual. This time I made a joke at the kitchen while some other girls were there and remarked 'why only men were drinking alcohol and why didn't they share it with us'. 36. He said that I could, but I said that I was joking as we need to drive which we would not be able to do. He said that he would provide us a 'sleeping space' next time and he would let us sleep there. I told the girls it was a good idea and we could have a full night together like camping. 37. At the end of that night, when I and three other girls were saying goodbye to Mr Sahebi, he called my name and said I should not forget the next week. I was wondering why he only called my name and not the others, but I said to myself he must have been tipsy and it happened by mistake. 38. He left a voice message on Whatsapp on Friday the 30 April 2021 and asked me what type of drink I would like and he said that they would not have music on Saturday, the night I was invited. 39. On 1 May 2021, I remember that I went in and there was no one else but me. We started talking about general things and he brought an expensive Whisky and we started drinking. 40. I do not remember everything that occurred on that night as I drank alcohol. However I do remember that Mr Sahebi gave me some drinks, and I did not notice when I became drunk. 41. I became conscious when I was in bed, but I cannot recall how I got there. 42. I remember clearly having sexual intercourse with Mr Sahebi. I actually became conscious during the intercourse. 43. He was extremely sexually active in bed with me, with the stamina of a 20-year-old man, 44. He showed a great deal of love to me and it felt like he took me to 'paradise'. 45. In a later visit, Mr Sahebi kissed my toes one by one, which is a huge thing to do in my culture, and led me to believe that he was truly in love with me. 46. I do recall that I became conscious in the middle of this night, waking up next to him. 47. I did not feel that I gave full sexual consent to him as I had drunk too much. I feel the sexual relationship should not have happened and that he took advantage of me when I was feeling depressed. 48. I do not remember what happened that night whilst I was drunk and unconscious. 49. In the following weeks after that night I felt I was in a full relationship with him. He led me to believe that he was in a broken marriage and there was no relationship between them like husband and wife. He told me this when we went for a walk and drink near a beach on the following weekend. 50. He sent me many messages which I perceived to be sexualised in nature. 51. Mr Sahebi always invited me to his place, and the messages record how he claimed to be at my 'service'. 52. In clause 42 of my statement in support of my complaint …, I stated that Mr Sahebi's ticket was booked for 16th of April (2021). This date should have been 16 May 2021. 53. At that time, he began to pull away from me, mentioning his wife more and more. 54. I felt as though he had pre-planned the short relationship with me, knowing that he would return to Iran." The 11 April 2024 Client A statement 1. In the 11 April 2024 Client A complaint, Client A relevantly gave the following evidence: "… 3. I had a key to Mr Sahebi's office. This was given to me by another psychologist, Somaya when Mr Sahebi left Australia to Iran. I do not recall the date, but it was some time in 2021. 4. Mr Sahebi said that I could use his office as my office as NDIS provider - but I never did. I never even entered the office with the key. … 6. Friday sessions were held every week in 2021 to my knowledge. Ten sessions were supposed to be bulk billed under Medicare. Everyone in group was therefore asked to bring a referral for this. 7. Course information was circulated in the WhatsApp group. Hand outs were given mostly in that WhatsApp group and sometimes in the class itself. Sometimes members would be asked to print out the handout and bring it to class. 8. In my statement dated 12 August 2022 (the statement), the date on Paragraph 27 should read 9 April 2021. This was an error. 9. In the statement, at paragraph 39 I describe my visit to Mr Sahebi's house on 1 May 2021. I do not recollect if there were further sessions after this. … 11. In the statement Annexures C and D are complete records of my WhatsApp messages and interactions with Mr Sahebi. I do not have these messages any more on my mobile phone. … 14. I have been advised that there are discrepancies between the exact dates in the statement and in the complaint. I do not recall the exact dates, and the dates given were true to the best of my recollection at the time. … 16. When Mr Sahebi left for Iran after our sexual relationship, I was angry and told him that his sessions were not that great. I had paid for 8 sessions and only attended about 5. I did not complete the sessions. I then asked for the remaining sessions to be refunded. He refunded me the whole amount for all 8 sessions. …" The oral evidence of Client A 1. In cross-examination, Client A gave the following evidence: 1. she went to the respondent's residence on 16 May 2021 which was the day of his flight; 2. she did not report the respondent's sexual intercourse with her when she was drunk to the police or friends because she was in a very emotional state, culturally it is not easy to report, and she thought he had acted out of love; 3. she did not pay any money to the respondent for the group sessions; 4. she completed a form for the group session which was kept by the respondent; 5. she rejected the respondent's suggestion that there were two groups, one social and the other therapeutic. 1. In answer to questions from members of the Tribunal, Client A gave the following evidence: 1. she attended five individual sessions and between eight and ten group sessions with the respondent; 2. the last group session she attended was the last Friday before the respondent left for Iran; 3. she first had sexual intercourse with the respondent on 24 April 2021 and daily for the next couple of weeks apart from two days when he went to Brisbane and one day when she had a friend from Canberra. Client B 1. The evidence of Client B comprised the 20 January 2024 Client B statement. The 20 January 2024 Client B statement 1. In the 20 January 2024 Client B statement, Client B relevantly gave the following evidence: "… 5. Mr Sahebi used to hold psychology classes on most Fridays at his office in Chatswood or in Dougherty Community Centre (Chatswood), and my husband and I had attended a couple of those classes between 2015 to 2018. 6. Due to the Covid-19 restrictions and social distancing, Mr Sahebi held the last series of his classes in the back yard of his house from November 2020, so we could gather there with enough distance from each other. 7. I attended the new series of these classes from November 2020 until May 2021. 8. The format was first a one-hour question and answer session followed by an explanation of a specific psychology subject for another hour. 9. The classes were arranged on WhatsApp, and Mr Sahebi would send out questionnaires which we would answer by WhatsApp. He would then give us feedback over WhatsApp or in class. … 11. We were told that each of us would receive three private online sessions after seven online group sessions of the self-evaluation course, but due to some restrictions for Mr Sahebi, the course did not reach the seventh session. 12. After most of sessions, we would have a social party in the front yard, where food and sometimes some beers and alcohol would be served and some class members brought alcohol and beers to the party. 13. Those social gatherings had helped us and other classmates well to build great friendships especially during Covid-19 isolations and I believe they stopped us going through depression and anxiety, thanks to Mr Sahebi. 14. I understand that [Client A] who worked with my husband, [first name of Client C], had noticed that my husband had been leaving his workplace earlier on Friday afternoons to get to Mr Sahebi's classes. She then asked [first name of Client C] about the classes and told him that she was looking for a good psychologist. 15. So she asked my husband to be introduced to Mr Sahebi and to be added to Friday group classes as well as making private session's appointments with him. 16. My husband asked Mr Sahebi for private appointments for [first name of Client A], but he had told [first name of Client C] that he had been too busy to visit new patients. He had also told us that due to the social distancing restrictions, he could not add new members to the group for a while until some members leave the group. 17. In February 2021 I asked Mr Sahebi to add [first name of Client A] to the WhatsApp group and he did so, therefore she attended her first class in late February. 18. She then attended some sessions (I did not notice how many she attended) and she mentioned me that she was attending some private sessions also. …" Client D 1. The evidence of Client D comprised the 27 February 2024 Client B statement. The 27 February 2024 Client D statement 1. In the 27 February 2024 Client D statement, Client D relevantly gave the following evidence: "… 4. During Covid-19 I realised that Dr Sahebi has no 'secretary'. I suggested to him that I can help him with his paperwork from home. He agreed and taught me how to process the Medicare Claims. 5. I had a full-time job somewhere else, so I was helping Dr Sahebi and processed his bulk-billing claims for 3- 4 hours per week. 6. Due to isolation and restricted life style during Covid-19, some people from Persian Community asked him to arrange a gathering to cope with Covid-19. He suggested a social gathering separate to his psychology work, as he did not wish to mix with people as their doctor. 7. This social gathering was held once or twice per month and usually on a Friday, if the Covid-19 restrictions permitted. I sometimes attended them but not always. I do not recall which gatherings I attended. 8. The gatherings had dancing and music, food and drinking (mostly alcoholic). … 10. I recall some people asked Mr Sahebi about their personal problems but were told by him to make an appointment to discuss them. 11. I was not attending all gatherings but when I was present, no psychology related matters were discussed and nothing was handed out to the attendees at the social gatherings. 12. I stopped working for Dr. Sahebi in mid-2021 when Dr Sahebi went Overseas and there was no Medicare claim to proceed." Dr Sultan 1. The evidence of Dr Sultan comprised the 12 April Sultan report. The 12 April Sultan report 1. In the 12 April Sultan report, Dr Sultan has set out her experience and qualifications, her agreement to be bound by the expert's code of conduct, the documents she had been provided with by the Commission (which largely correspond with the documents comprising A1 and ExA2), has relevantly referred to the facts which she assumed and expressed the opinions in relation to several questions (italics in the original): "Mr Sahebi's Practice … 2. Assuming [Client B's] version of events, please provide your opinion in relation to the appropriateness or otherwise of Mr Sahebi providing group therapy to his patients. In your response, please address: a. The appropriateness or otherwise of communicating through WhatsApp to participants; Mr Sahebi's choice to communicate through WhatsApp with his clients is risky and may be seen as unprofessional as it is a form of social media. The standard expected of a Psychologist would be to communicate group details through email and hide recipients emails (undisclosed recipients) so as to observe client confidentiality. WhatsApp shares client information with the group and makes it difficult to control the interaction of group members. The Code of Ethics stipulates that Psychologists safeguard the confidentiality of information obtained during their provision of psychological services (Confidentiality A.5.1). This is considered below the standard expected of a Psychologist. b. The appropriateness or otherwise of hosting a social gathering involving food and alcohol with participants following the group therapy; and any other issues you consider relevant. Mr Sahebi's social gatherings involving food and alcohol following group therapy is below the standard expected of a Psychologist. It is a very clear violation of a number of general principles in the Code of Ethics. The choice to socialise with clients and consume alcohol is significant below the standard expected as it places the Psychologist and clients in a vulnerable position. General Principal C: Integrity refers to Reputable behaviour (C.1) and the need for Psychologists to avoid in engaging in disreputable conduct that reflects on their ability to effectively practice. 3. Please provide your opinion in relation to the adequacy of Mr Sahebi's records for patients who attended the Knowing Self and Actualising Self Group. In you response, please also consider Mr Sahebi's decision to document the records in the Farsi language. Mr Sahebi's records for his patients who attended the Knowing Self and Actualising Self Group are very brief and may not be considered adequate. The notes provided may be considered below the standard expected of a Psychologist. According to the Ethical Guidelines on Record Keeping (6. Record content) Psychologists provide sufficient detail in their records (6.2) to enable planning for continuity if the delivery of psychological services should another Psychologist need to take over care. Dr Sahib has failed to document individual notes for each patient following the group session. Brief individual notes are expected for each patient in the form of progress notes outlining presentation at assessment and issues arising (session notes 6.4 iii). In addition, Mr Sahebi's decision to record his notes in the Farsi language is not adequate as there needs to be a duplicate copy of the notes in English as well as another Psychologist may need to access the notes in unforeseen circumstances. On this basis the documentation of the notes in the Farsi language is a breach of the guidelines and is below what would be expected of a Psychologist. The Ethical guidelines on record keeping, specifically Records management (8.6) suggests that Psychologists in private practice develop develop advance contingency planning for records management in the event of unexpected illness or emergency that may affect their ability to practice. 4. Please provide your opinion in relation to the adequacy of Mr Sahebi's records for his one-on-one sessions with patients, being [Client B], [Client C], and [Client D]. Mr Sahebi's records for his one-on-one sessions with the three patients listed above are very brief and lack the detail expected of a Psychologist. The progress notes may be considered below the standard expected of a Psychologist as they lack sufficient detail regarding for example, referral information, client information, consent form for treatment, any correspondence with other professionals etc. This is a breach of the guidelines in relation to Records content (6.4). 5. Please provide your opinion in relation to the adequacy of Mr Sahebi's records for his group sessions with patients. As stated previously in question 3 Mr Sahebi's records for his patients who attended the groups are inadequate and below the standard expected for a Psychologist as they lack detail and do not make reference to each individual patient who attended each session. In reference to the Ethical guidelines on record keeping (6. Record content) and session notes 6.4 (iii) Mr Sahebi's notes are not in line with what would be expected of a Psychologist. 6. Please provide your opinion in relation to the appropriateness or otherwise of Mr Sahebi employing a patient, [Client D] at his psychology practice. In your response, please refer to Mr Sahebi's clinical records for [Client D] and [Client D's] statement. Mr Sahebi employing his patient [Client D] at his practice leaves open a number of risks and is considered below the standard expected of a Psychologist. The standard reasonably expected of a Psychologist would be to employ someone independent to complete his administrative work. This is considered significantly below the standard as it blurs the professional boundaries. [Client D] in her statement indicates that a friend referred her to him for counselling and that she offered to help him with his paperwork from home in the form of processing Medicare claims. In reference to the Ethical guidelines for managing professional boundaries and multiple relationships the responsibility for maintaining professional boundaries rests with the Psychologist not the client (Conflict of Interest 2.1). In some situations engaging in multiple relationships can not be avoided (e.g., small rural communities) however in this situation it could have been avoided. Mr Sahebi's clinical records indicate that [Client D] offered to help him as a favour for providing her with treatment and he declined her offer. As previously indicated this decision is a breach in regard to professional boundaries (B.3 Responsibility). [Client A] 7. Assuming [Client A's] version of events, please provide your opinion as to whether Mr Sahebi observed appropriate professional boundaries in his therapeutic relationship with [Client A] between February and May 2021. Assuming [Client A's] version of events Mr Sahebi has not observed appropriate professional boundaries in his therapeutic relationship with [Client A] and his practice is considered significantly below the standard expected for a Psychologist. [Client A's] statement highlights a significant number of issues that are not consistent with a professional relationship. [Client A] indicates that Mr Sahebi provided her with psychological therapy in relation to her parenting and increasing confidence. She also attended the life coaching sessions and the Friday group. Mr Sahebi's decision to invite [Client A] into his home and consume alcohol with her suggests that he has drifted away from any evidence based treatment for 'confidence building' and violated General Principal C: Integrity. His decision to socialise with his patient with the use of alcohol may be perceived as exploiting a vulnerable individual (C.4). C.4.1 states that Psychologists do not exploit people with him they have or had a professional relationship. 8. Assuming [Client A's] version of events, please provide your opinion on the appropriateness or otherwise of the text messages sent by Mr Sahebi to [Client A] during the course of the therapeutic relationship with reference to subject matter, language, tone and familiarity of the text messages. Assuming [Client A's] version of events, the text messages sent by Mr Sahebi to [Client A] during the therapeutic relationship are unprofessional and fall significantly below the standard expected of a Psychologist. Making reference to her as "his love" and "being at her service" are serious breaches and not consistent with a professional relationship (B.3 Professional Responsibility). Criteria B.3. (g) stipulates that Psychologists are aware of, and take steps to establish and maintain proper professional boundaries with clients and colleagues. Further, the ethical guidelines for Managing professional boundaries when using the internet and telecommunication technologies suggests that Psychologists use professional language to maintain appropriate boundaries regarding SMS or email use (10.1). As previously inidicated, the tone used in the messages between Mr Sahebi and [Client A] and the familiarity of the text messages are not consistent with a professional relationship. Text messages or email between a Psychologist and patient are typically to set up appointments or provide brief support. 9. Assuming [Client A's] version of events, please provide your opinion on the appropriateness or otherwise of Mr Sahebi commencing a sexual relationship during the course of the therapeutic relationship. Assuming [Client A's] version of events, Mr Sahebi's decision to commence a sexual relationship with her during the course of the therapeutic relationship is unprofessional and a serious breach of the code of ethics. It falls significantly below the standard expected of a Psychologist. The code of Ethics - General Principles C.4.3 indicates that Psychologists do not engage in sexual activity with a client or anybody who is closely related to one of their clients. 10. Assuming [Client A's] version of events, please provide your opinion on Mr Sahebi's management of the termination of the therapeutic relationship with [Client A]. Mr Sahebi's termination of the therapeutic relationship according to [Client A's] version of events is unprofessional and not what would be expected of a Psychologist. [Client A] states that she felt that Mr Sahebi began pulling away from her and terminated treatment because he had a trip booked overseas. This indicates that very little care was shown for [Client A's] psychological wellbeing and there appears to be no mention of referring her onto another Psychologist for ongoing care. A Psychologist has a professional responsibility (code of ethics B.3) to ensure that they are making appropriate decisions regarding the psychological wellbeing of their patients. On this basis Mr Sahebi's management of the termination of therapy is considered significantly below the standard expected of a Psychologist. 11. Assuming [Client A's] version of events, please provide your opinion in relation to the appropriateness of Mr Sahebi's decision not to document his care and treatment of [Client A]. Mr Sahebi's decision not to document his care and treatment of [Client A] is a serious breach of the Code of ethics and significantly below the standard expected of a Psychologist. Psychologists are legally required to document treatment sessions as outlined in the Ethical Guidelines on record keeping (6.1 Records content). Records management guidelines (8.1) suggests that Psychologists ensure that all client records are stored in a manner that keeps them safe from damage or loss. ..." The evidence of the respondent The witnesses The respondent 1. The evidence of the respondent comprised the 16 August 2021 Sahebi letter, his oral evidence at the Sahebi s 150 hearing, the 8 March 2022 Sahebi letter, the 10 December 2022 Sahebi letter and his oral evidence at this hearing. The 16 August 2021 Sahebi letter 1. In the 16 August 2021 Sahebi letter, the respondent relevantly stated (bold text in the original): "… In [the 1 August 2021 Client A statement] there are lots of truths, but she twisted the reality and mixed the dates and events. 1- It was shocking for me to see that [Client A] claimed that I was her Psychologist and accused me that I abused her sexually. … 4- My relationship with [Client A] has nothing to do with my professional life. We became simply friends in a social gathering and for some reasons that I explained later, I decided to cut my relationship and friendship with her. 5- [Client A] never was my Client and I never delivered any Psychological services or intervention to her. 6- We meet each other in my house gathering which happened on Friday evenings in my house. ([address omitted]). It is a gathering we chat, partying and have food, drink and dance. 7- We became good friends and enjoyed each other's company both in group gathering (party) and one by one interactions. 8- She is an amazing person full of ideas and thoughts with great cultural and social awareness. 9- There was nothing secret of this friendship. We went to pubs and clubs together. 10-She visited me at my house three times by herself during nights which was my working hours. 11-I had some online courses with overseas participants. I was working from 20:00 pm (Sydney time) to 4:00 am (Sydney time). 12-In her statement she claimed that after attending my gatherings for several weeks, she got a referral from her GP to see me. It is clear that our relationship has begun before she decided to consult with me about her personal issues. 13-Everyone can go to his/her GP and ask for referral. Having a Referral from GP does not mean that I agreed to see her or I am accepting her or I did deliver any services to her. 14-After establishing our friendship, partying and dancing together for several weeks, one night, when we were in the party and I was drinking beer with another person, she approached me and asked me if she can talk about some issues she is dealing with? 15-I told her that I am not giving appointment to anyone who is coming to my house gathering for two years. After two years I may see you as a client. But if you tell me for what reason you need help then I may be able to give you advices and recommend you to someone. 16-I told her that if I found any free time I will let you know. 17-I am sharing my office with another colleague, that is why I am working only two days per week. 18-The week after, my colleague informed me that she is not going to office and I can use it. 19-I text [First name of Client A] that on Wednesday I am free. 20- She came to my office and talked about her issues and the new medications her psychiatrist prescribed her. 21-I realized that she is suffering from ADHD and Psychosomatic problems which is not my area of practice. 22-I told her that this is beyond my expertise and I do not work with ADHD at all. I encouraged her to see a therapist. 23-In several occasions I noticed that she has some issues with her Ex-husband and her adult children. I asked If she wants to share with me as a friend? 24-She mentioned that she needs to see a psychologist and does not want to share with me. 25-She asked me if I can recommend anyone. 26-I Recommended my colleague [name omitted], from Brisbane and gave [Client A] her number [telephone number omitted]. 27-[Client A] contacted her but due to the cost she was charging ($275), [Client A] decided not to go with her. 28-Again I recommend her to see a therapist and get help, because I was witness that she is engaged with some hot stuff that can't deal with them by herself. She never opened up about her issues. But I could guess that it relates to her daughter and ex-husband. 29-She ensured me that she will find someone and will get an appointment with a Psychologist or a therapist. 30-After two weeks' close relationship with her I realized that she strongly believes in Para psychology, divination and prophecy. 31-She expressed that God created love between us and she gave us this gift. 32-She also told me that she had a dream that I kissed her and have sexual behaviors with her in front of others in my house. … 36-Part of this statement is true. She came to my place, had lots of whiskeys and became sick and vomited a lot. 37-I guided her to bed and back to do my online course (from 12:30 midnight to 4:30 am). 38-I slept on Coach in the sitting room till 8:00 am. 39-When she woke up, she was embarrassed and sorry about that. She said I wanted to drink together and make love but I do not know why this happened? 40-I embraced her and told her that: Sorry [First name of Client A]. It is nearly two years that I had no sex, because I can't do sex. I am fully disable and dysfunction in this area. 41-She did not believe it and keep questioning me that how come that you are traveling to Iran and I heard that there are lots of opportunity in Iran? 42-I explained to her that may be there are opportunity but I have no sexual desire and ability to do sex. But She was not believing it and showed in her face. 43-Next Saturday, we went to Long Reef club (Close to Dee why) and I told her about my own family life and that due to my sexual disability we are in the process of adopting a child and that is why my wife is in Overseas to facilitate the adoption process. 44-She became upset and recommend me not to do the adoption because she had a first-hand experience within her family which is a challenging and stressful process. 45-After that night she came to my place I think two more times staying awake till 12.00 or 1:00 am and then went to bed while I had my on-line courses till 4-5 am. 46-I really loved her attitude, her mannerism, her character and Ideas. I told her that I am very happy to have such a deep friend and I want to stay friend, but only social friend. … 64-One more thing about her payment into my account: 1- In the Friday gathering group I raised the issue of donation for sending books to the Gail for inmates. This was a request from a political prisoner in Iran to donate some books for young inmates in Gail. 2- That is why I sent my bank details to all the group members to send their donation then I organize the books to be send to the Gail. 65- [Client A] donated $40 dollars and I noticed it. 66-I never noticed that she paid more money into my account. I realized it weeks latter. 67-I asked her why you deposited $400? Into my account? 68-She said I know you are charging $50 so I paid for eight sessions to come and see you. 69-I explained to her that I never delivered any service to you and I am not going to see you as my client. You are my lovely friend. 70-I asked her to give me her bank details to send her money back. 71-She smiled and said she will. But she did not until last week. 72-That day, she also mentioned that we are in friendly relationship and better not to mix with your professional side. 73-On 1st of August 2021 she sent me a watsapp text, gave me her bank details and asked me to pay her $400.00 money back. 74-I did deposit $400 dollars via my St George bank account. Conclusion and my two main statements: 1- [Client A] was not my Client. Therefore, her claims are not within the area of commission's activity. 2: I had an accident some years ago and since then I lost my erection and am absolutely sexually dysfunctional. How can I have intercourse, even as she claimed, after drink? I am ready for any medical or forensic examinations in this regards. …" The oral evidence of the respondent at the Sahebi s 150 hearing 1. The respondent gave the following evidence at the Sahebi s 150 hearing: 1. on the question of whether he treated members of the social group (Tcpt, p 34): "DR TONG: …. Dr Sahebi, in relation to the social group you have, which is purely social, according to your report, how many people from those groups that are held socially actually refer themselves to you for treatment? DR SAHEBI: From the group actually some people knew that I am a psychologist, and they came to me, but I always told them that I never accept any person from this group as my client, and this is what happened to [Client A] as well. …" 1. as to his encounter with Client A referred to in the 16 August 2021 Sahebi letter at [40] (Tcpt, p 36): "ASSOC PROF WILLCOX: Okay. So you've actually slept together for the night, but you're saying - - - DR SAHEBI: No. …. So in the morning she woke up and she came to the kitchen to have coffee, and she was laughing and she say that, "Did we have sex together", and I said, "No, [First name of Client A]. It's not possible for me to do that." 1. as to the text messages between himself and Client A on 25 April 2021: "Dear, you made a special and unique night for me, great, thanks."; "I think it was well. I had a great night with you." (Tcpt, pp 38-39): "ASSOC PROF WILLCOX: So this was another night - - - DR SAHEBI: Yes. Now, we - - - ASSOC PROF WILLCOX: - - - you two spent together. DR SAHEBI: No, no. We – she had one – a singing teacher from Iran online, so because I was practicing singing as well and she said, "Did you want me to come there and my teacher is teaching me, wire the device so we can just practice together." And we – I said, "Yes, that's fine. I have classes up to" – "I think at 2 or 3 o'clock in the morning. What time is yours", and she said that, "I can arrange with him to teach us later." So – and I said, "Yes, I'm happy, really, to do that", and as you can see in the evidence that she gave, we sing a lot for each other just to show that – how we are – we are progressing. So that night was really good because we tried just to show the teacher that how we are singing and she gave us some lessons. And after that, because I am doing some theatre as well, so I played two poetries as a theatre for her as a perform – I perform for her and then she – I think that she performed three or four songs beautifully, beautifully, lovely song, and then – that's really good. ASSOC PROF WILLCOX: I do apologise. I will just interrupt that, because of time. But you're essentially saying that communication was to do with music. It had nothing to do with anything else. DR SAHEBI: No, not at all." 1. as to the first of his voice messages to Client A on 28 April 2021: "I was waiting to see if you called to ask for you to come over and sleep next to 25 each other." (Tcpt, pp 39-40): "ASSOC PROF WILLCOX: That's fine, but you're asking – you were hoping that she would be in contact with you and that she would come over so you could sleep next to each other. DR SAHEBI: Yes, if that – that's what I'm explaining to you, that we have it at my home so – because my son and I we live together, so next to each other means that we have two separate beds next to each other. And so she was coming sometimes and sleeping there and when I was finishing my – when I was finishing my courses, so I was just going and sleep in the next bed over there. So this is the setting of my bedroom, so – not that we only have one bed, so that's two separate single beds next to each other." 1. as to the second of his voice messages to Client A on 28 April 2021: "I will sleep up the top where I have the class. You can sneak in and come to me if you want to stay with me." (Tcpt, pp 40-41): "ASSOC PROF WILLCOX: … Now, that seems to be an invitation for her to come and sleep with you. … DR SAHEBI: So when I just say that to her, that's because we have one from the top. And then there is some – there is some misunderstanding in the translations as well, that – for example, the love sign sending they say, "This is a love sign." I am sending this to everybody that I communicate and I have proof for that, that this is just – it's not really love – sexual love, so I send it. And then when I – when I talk to in Persian there are some words that they translated in a bad manner. For example, I said (response not in English). This is a very formal language that – sincerely yours, and they say that they translate it as "I love you". That's – (response not in English) doesn't mean, "I love you". And then "You can come sit next to me", they say that, "You can sneak in", say that, "You can come up to the place" – "to the upper deck", so – but it says that, "You can sneak in." That's another thing in translation that I want to – just to let you know at the beginning I told you that there are two issues. One is that there are plenty of things in the translation that's not really accurate. ASSOC PROF WILLCOX: Okay. So you're saying you didn't ask her to sneak up and come and stay with you. You just asked her to come up and stay with you. DR SAHEBI: Exactly, exactly, because she was coming nearly every second night and sometimes every night she was coming there. She was doing her own job and I was just teaching and after that we'd talk, and then sometimes she was – just get in my car to go and see her daughters or something. That was a very, very normal close friendship together." 1. as to his second voice message to Client A on 12 May 2021: "I will lick you all over, I want you. You are so dear, so lovable, my dear friend, my love." (Tcpt, pp 41-42): "ASSOC PROF WILLCOX: Now, which part of that do you think is mistranslated? DR SAHEBI: I explained this. I explained in my last statement that this is a metaphor "licking you", so it's not realistic literal terms. It's really affectionate and caring that normally that's saying to the daughters or sons, because "I'm licking you" it's a shortened term for, "I'm licking you like a cow that licks her calf." That's the metaphor in Persian language and this is a really, really wrong one that they just – you know, they get just the word, not the translation of the content. ASSOC PROF WILLCOX: Well, that being the case, however, it says more than just "licking". … So this goes beyond the metaphor of cow with calf, as I read it. DR SAHEBI: Okay, so I treated the Persian ones first. Now, the statement is – but, again, this is a translation. The statement says that (response not in English) means that you are lovely person and you are really dear, and you are great friend. You are great friend and you are my dear friend. So it doesn't mean anything sexual in here, so this is a really – because I was really interested in her and she was really great person, I really love her mannerism and everything, her soul, attitude, everything, personality was great. So – and I was here, I'm just appreciating her qualities, so there is nothing really in this if a Persian, you know, speaker just read it to see that – if there is anything here, I said that, "You are very dear", so – and then" 1. as to his voice message to Client A on 13 May 2021: "It's nearly three hours that I have not seen you and I miss you. I have beautiful time with you. Your presence is heart warming and beautiful. Your being is beautiful. Your present is full of life and wisdom. I love you." (Tcpt, p 47): "ASSOC PROF WILLCOX: … Now, this sounds like a relationship. DR SAHEBI: No, no, no. Again, again, again, it's – as I told you, this is the – the word (response not in English) they translated to love you. (response not in English) means that yours sincerely, so you are a great person. Oh no, it means that – yes, sincerely yours, but it's not really love you (response not in English) but it doesn't mean that I love you at all. So that's why – so what – what – I don't deny that it was a – a good relationship between us and we enjoyed really each other's company and we talk about lots of beautiful things, and she was really bright and – and so I enjoyed her company and we talked about lots of things and – and really sometimes I – I just missed her communication and everything, so I – I'm not denying that at all. But what I – I mean is that there was no really sexual contact at any – any" 1. as to his third voice message to Client A on 14 May 2021: "I thought I'd see you so the pain of desire lessens. I will see and have more desire. Love you." (Tcpt, pp 47-48): "DR SAHEBI: That's a – that's a one of the poetries from the – from Saadi. It's a – it's a – it's in the one of the masters of singing just – just sing that, and this is – this is one of the beautiful songs. So I just read that one for her. This is not the – this is not my word. This is the one – one poem from one – one of the famous poets that ..... yes, so that's – that's just one - - - ASSOC PROF WILLCOX: Yes. I take it that it's a beautiful piece of work, but you have - - - DR SAHEBI: Yes. ASSOC PROF WILLCOX: - - - chosen to quote this part to her in the context of your relationship with her. DR SAHEBI: Yes, that's – yes, that's – that's – that's something that I – I say that. 15 I'm not denying that there was a very good relationship, and so a very good friendship with her, so I was really like just to – to spend time with her, but what I mean is that this is not really erotic or a sexual context. This is a – just a, you know, affection and – and emotional." 1. as to his second voice message to Client A on 16 May 2021: "I am not ashamed. Love your athletic body." (Tcpt, p 49): "DR SAHEBI: Okay, that's a – that's another metaphor – that was what I wanted to just to explain that. When – now, we have the one metaphor that we say that (response not in English) it means that this is not just meant to – to women. This is a man to man, woman to woman, that your – your body is – your body is – well, I admire your body; that's it. But it's – this is not sexual at all. You can just check this one with anyone that this is a metaphor. So (response not in English) it means that when – when the person is energetic and healthy person – a healthy person, they call him athletic. Say that you are athletic and your body is athletic, so it's not a really sexual – when the body is – is shaped or sexualised, so it's – this is something with the ..... when the body is – the person is really energetic, you say that, "Oh, you – your body is athletic."" 1. as to the following evidence relating to Medicare (Tcpt, pp 50-51);: 1. his voice message to Client A on 31 March 2021: "Send me a photo of your Medicare card"; 2. the information derived from the text message between himself and Client A on 15 April 2021: "the costs of sessions being $50 sent to the complainant with a response saying $200 had been sent"; 3. the information derived from the text message between himself and Client A on 24 April 2021: "the $40 for the books, for the graze it says, and the complainant sending another $200"; 4. his voice message to Client A on 24 April 2021: "You do not need to prepay. You can post-pay. Okay to pay after your session."; 5. the Client A Medicare report: "ASSOC PROF WILLCOX: Now, that would suggest you had a session. DR SAHEBI: No. Actually, I explained that I think that she deleted some part of my conversation with her because she asked me if she can use my room for her handicapped and for disabled services that she's going to establish, and I said that, "Yes, you can – you can use it." And she kept – she say that, "I don't want to use it for free. How – how can I hire?" I said that, "The other psychologists who are using my office, they are paying $50 per session. You can pay that as well." And then so she said that, "Can I have a key?", and I gave her the key, so she – she used the – the office, and then she say to me that, "I paid for – for $200." I said, "Why did you pay $200? You can pay every – every session you are using my office." And then the – the reason that I ask her to send me the Medicare card is that when I saw her and then she – she explained about her ADHD and all the issues, so I told her that, "This is not my expertise and I have to refer you to someone else. It's not really my area, and I write to your GP. Would you please just give me your Medicare card just to – to write my report to your GP." And then I ask her to – to refer you to someone else. And also, I gave her the number and the name of the – the other professional to contact, and she contacted her as well. And she wrote to me that, "Oh, she's very expensive. She say they charges $75 or $265 and I don't – I can't really pay that." So this is something which is missing from this communication. So that $50 because I'm not charging that $50 of them. That $50 – the first $200 I noticed that. The other $200 I never noticed that until I was in the – when I was sending my – my bank statements to – to my accountant, I realise that another $200 is here, so what is this? And then I realised that she paid, and I asked her that, "Why you pay another $200?" And she said, "Look, I just paid for the using the office." And I said that, "You don't need to – to pay that. Whenever you use it, so you pay. And then give me your number – your account number just I sent the $200 to you." And she said that, "No, no, no." Two days, I think – or one day or two days before I was sent any letter from commission, I receive a text from her that, "Would you – this is my account number. Would you please just deposit the $400 into my account because I'm not using – I'm not using your room." And I said, "Yes, for sure," and I sent back the money. And I just stated in my statement that this – this was the issue. For the two – two claims on the Medicare, if I knew that my admin just claimed her, so for sure for just to wiping everything every evidence if I had anything with her, so I was able just to write to – to Medicare that something, you know, happened here and by mistake we – we claimed something and then paid money to them because it happened several times to me that I realised that my – my admin just did some – something wrong and I just wrote to – to Medicare and back the money to them – returned the money to them. So" The 8 March 2022 Sahebi letter 1. In the 8 March 2022 Sahebi letter, the respondent relevantly set out the questions from the HCC (which we have put in italics) and his answers (with bold text in the original): "… Please provide further details about the group sessions in early 2021 you held every Friday ('the sessions'), including but not limited to: a. What was the purpose of the sessions? e. How long have you been running the sessions? f. How do you choose which clients attend? g. How did you publicise or advertise the sessions? As I explained in my first report, there was no psychological session every Friday at my place. I was overseas for more than 7 months and due to Australian Government's Covid-19 entry restrictions, I was not able to travel to Sydney. Finally, I arrived late October 2020 to Sydney. On December 2020 I invited some friends for a gathering to my place. In the gathering we chat, had tea, coffee and beer and have some musician to play Persian instruments and friendly sing songs Some of my friends told me that since I was overseas, they never see each other and have no gathering at all and asked me to break the isolation, if possible, have a regular gathering every second Friday somewhere. I accepted and we had two friendly gatherings on every second Friday with my close friends only. They asked if they can invite some of their own friends to attend the gathering to enjoy the environment and break their isolation and socialize with other Iranian. People were coming to my place with my personal invitation. I told them that we have restrictions to have only 15 people in any place, I have invited 15 friends but we do not know who is attending and who is not coming to gathering, therefore we can't accept new people. Then someone suggested to create a WhatsApp group to know who is attending and if someone is not coming then they can invite their friends to the social gathering. We had just one more gathering that the Covid-19 Restriction (Quarantine) for Christmas period happened and then we had no gathering till Late January. I need to emphasize that these gatherings were not Psychology or mental health sessions at all, and was not related to my profession. Meanwhile, I received a message from APS in my email that due to Stress related to covid-19 and Quarantine Medicare extended 10 Mental Health care plan sessions to 20 sessions and also permitted Tele-Health. To help the isolated people during the Quarantine, in the WhatsApp group I informed the group that the Mental Health Care Plan is not only for people who are suffering from disorder. To promote mental health and prevent disorder during these stressful days, we can utilize this opportunity. Then I announced in WhatsApp group that, since we have fun and social gathering every second Friday, I am going to run a mental health promotion program on other Friday entitled: "Knowing self and actualizing self". Then clearly, I announced that one Friday is a gathering for fun, chat and music, and the door was open to everyone, the second Friday is "Knowing self and actualizing self" program. I posted the sessions plan in WhatsApp asked the group (55 people who were coming on and off to the social gathering if they are interested to use this opportunity and break their isolation and promote their mental health, they can register their own name and then take the program plan to their GP and request Mental Health Care plan. From 55 People in gathering WhatsApp group, 37 people expressed their interest and registered their name for the program: Here is the list of the participants I am copying from WatsApp. [38 names omitted] Then I created another WhatsApp group for this program and added these 38 Participants and started the program only with these group. I sent all the assessment tools in pdf format for them, and created a file for each participant. I requested them to fill the forms and scales and send it to me privately. Then administrated all the scales and sent the results and the profile of each person directly and privately to his/her own email. The format of program included group therapy (Fridays 17-20.00 pm) 180 minutes and individual session (45 minutes session every second week). Total Sessions 16 group and six individual sessions. The program started when we were in the Quarantine. b. What address were the sessions held at? At the beginning, three sessions held at [residential address of the respondent omitted]. then due to Quarantine and number restrictions we moved to Zoom program. One of the participants [name omitted] volunteered to manage the zoom sessions to send the link every week to group members. The individual session for some of them happened in my office; [office address of the respondent omitted]), and some others preferred to have their individual sessions on Skype or WhatsApp as a telehealth. … h. Did you bill clients for the sessions? What was the pricing structure? As I emphasized earlier, no one billed for social gathering (including [Client A] who attended several Fridays and twice came to my office. Her Medicare records shows that she was billed only twice for attending my Chatswood office (by mistake of my staff) which I already explained about this. As She reported in her complaint form, she attended my house several times (including my father's funeral and Persian New year) but never ever billed and paid anything. Others were exactly the same. All the Knowing self group members had their own individual sessions as well as group. i. Did you bulk bill any of these appointments or process them through Medicare? If so, under what item number(s)? Yes. I developed the program for Quarantine period to promote the mental health of citizens and help them break their isolation and prevent mental disorder issues. Therefore, I bulk billed for every two group therapy sessions (6 hours) only one GP Mental Health Care plan session (Item Number: 91167, 93334 or 80010) Depends on telehealth or face to face individual sessions. …" The 10 December 2022 Sahebi letter 1. In the 10 December 2022 Sahebi letter, the respondent relevantly: 1. provided the name and contact details of "My sex therapist" and "Dr's Prescription of Medicines I was using" which is dated 3 April 2019 and referred to "Tadalafil 40 mg tab 1 tab on demand ← ¼ everyday" (the 3 April 2019 list of Sahebi medication) in answer the following question from the HCC (which we have put in italics): "1. You submitted a response to the Commission dated 16/8/2021 stating at paragraph 40 that you have a sexual dysfunction as a result of an accident. Please provide the names for any treating practitioners you have seen for this, as well as a list of any medication prescribed for same." 1. provided no documents in answer the following question from the HCC (which we have put in italics): "1. In your response to the Psychology Council NSW dated 8/11/2021 you stated at paragraph 8 that you rented your office space to [Client A]. Please provide a copy of rental agreements or contracts signed by [Client A] when renting a room from you, or any other evidence of the room being rented by her." The oral evidence of the respondent at this hearing 1. In his examination in chief, the respondent gave evidence: 1. as to the Friday night groups: 1. the Friday night group was formed to break the isolation of COVID-19. It started in December 2020. Some gatherings occurred at his place, and some occurred at six or seven other places. At these gatherings there was conversation about serious issues, but no formal speech or class. He did speak at the gathering following the death of his father and on 21 March 2021 about goal setting in the context of the celebration of the Iranian New Year. The group finished when he went overseas. None of the members of the social group made any Medicare payments to him. Patient A attended the social group; 2. he sent a message to the WhatsApp group about a "Knowing Self" group which required participants to get a referral from a general practitioner. It met online. Documents were sent by WhatsApp or email. He administered the result. He conducted five or six sessions. He was told he could not work overseas and received Medicare payments. He sent a message to the group. Patient A was never a member of this group; 3. in summary there was a social group and a psychological education group which were different to each other; 1. as to his relationship with Client A: 1. he denied that he had a sexual relationship. In 2019 he had an accident and as a result he was totally impotent and was not capable of any form of sexual intercourse; 2. in relation to the 31 March 2021 Rahman referral, Client A was coming from February without a referral. She did not pay anything; 3. as to the five dates in para [2] of the particulars of Complaint One there was no claim on Medicare and he received no payment; 4. he gave the 12 April 2021 Sahebi letter to Client A to take to her general practitioner. 1. In cross-examination, the respondent gave extensive evidence over two days which was largely repetitive of his evidence at the Sahebi s 150 hearing. We have only set out the evidence of the respondent given in cross-examination where it was new or differed from his evidence at the Sahebi s 150 hearing: 1. as to the 16 August 2021 Sahebi letter at [15], he was not taking new clients for two years because he was full; 2. he agreed that some people who came to the social group were his clients which was contrary to his evidence at the Sahebi s 150 hearing; 3. he said that the group session notes and list of participants for Knowing & Self Actualizing Self Group which recorded 11 fortnightly sessions between 8 January 2021 and 14 May 2021 which he provided to the HCCC in response to a notice issued under s 34A of the HCC Act contained incorrect dates as this group started in late June or early July 2021. He had no explanation for this mistake; 4. he first said that Client B was not a client between November 2020 and May 2021. He then said that Client B was a client from January 2021; 5. he said that the Friday group text message at 10.35am on 17 April 2021 was sent by Mr Musavimovahed; 6. he agreed that most of the 19 people recorded in the Friday group text message at 10.35am on 17 April 2021 came to social gatherings and were clients; 7. he accepted that he was negligent in his record keeping; 8. he said that he gave evidence at the Sahebi s 150 hearing that current clients did not attend the social gatherings to protect himself. He agreed that he lied to the Council delegates and he had a duty to tell the truth; 9. he said that Mr Musavimovahed was unable to retrieve WhatsApp messages for the therapeutic group, and that he did not think to ask Client B for these messages; 10. he said that there were no Knowing Self classes from November 2020. There were three sessions in May 2021 and then they were online when he was in Iran. He disagreed with the evidence of Client B in the 20 January 2024 Client B statement at [6]-[8]; 11. he denied that his evidence in the 16 August 2021 Sahebi letter at [65] was false; 12. he denied that he asked for Client A's Medicare card to bulk bill for psychological sessions. He said that there was no charge for group sessions; 13. he accepted that Client A was originally a friend but then became a client on 31 March. She was a client because staff charged her. He had to accept responsibility for this. He then said he never provided her with services, but just made suggestions. 1. In re-examination, the respondent gave evidence that the social group originally did not have clients, but then clients came. Client A was never part of the therapeutic group. Mr Musavimovahed 1. The evidence of Mr Musavimovahed comprised the 31 May 2024 Musavimovahed statement and his oral evidence. The 31 May 2024 Musavimovahed statement 1. In the 31 May 2024 Musavimovahed statement, Mr Musavimovahed gave the following evidence: 1. social gatherings to break the covid-19 isolation which were held every second Friday at different places, including the respondent's house, started in December 2020 ([2]-[5]); 2. he witnessed that on one night in March 2021 at a social gathering Client A approached the respondent and asked him for a counselling session but he told her that he was not accepting any clients from this group ([8]). The oral evidence of Mr Musavimovahed 1. In cross-examination, Mr Musavimovahed gave evidence: 1. he assisted the respondent in his office from 2020 to May 2021 by keeping records of patients; 2. there was dinner and alcohol at the social gatherings; 3. when asked whether the 19 people named in the entry for 17 April 2021 in the Friday group text messages came to the social gatherings, said they probably came but not all the time as sometimes they were available and sometimes they were not available; 4. if the social gathering was held at the respondent's house, it started with him giving a talk. He denied that the respondent spoke for 30 to 45 minutes. 1. In answer to questions from members of the Tribunal, Mr Musavimovahed gave evidence that 18 to 20 people attended social sessions every second Friday night. They were invited through a WhatsApp group. Ms Hasanyar 1. The evidence of Ms Hasanyar comprised the 2 June 2024 Hasanyar statement. The 2 June 2024 Hasanyar statement 1. In the 2 June 2024 Hasanyar statement, Ms Hasanyar has given evidence that social group gatherings which were held at different places, including the respondent's house, started in December 2020, and she was the logistic person to organise music, food and entertainment ([2], [5]). Mr Javadi, Mr Rodd, Ms Omid, Ms Golchinfar, Mr Barhaghi and Dr Ranjbar 1. The character evidence of Mr Javadi, Mr Rodd, Ms Omid, Ms Golchinfar, Mr Barhaghi and Dr Ranjbar was respectively contained in their references. The Javadi reference 1. In the Javadi reference, Mr Javadi states that he has been a patient of the respondent since 2019 for both his personal and family issues. He has found the respondent to be highly professional and very knowledgeable. He has recommended the respondent to any of his friends who need professional help in Sydney. The Rodd reference 1. In the Rodd reference, Mr Rodd has expressed his sincere appreciation for the respondent's exceptional professionalism and effectiveness during their consultations. The Omid reference 1. In the Omid reference, Ms Omid states that she was under the care of the respondent for more than ten years. She really appreciates his personality and his knowledge in his field and is really thankful to him "for saving my life and my children on such a difficult time in my life". The Golchinfar reference 1. In the Golchinfar reference, Ms Golchinfar has expressed her sincere gratitude for the exceptional and invaluable support the respondent had provided her during the sessions of lockdown. She is grateful to have had the opportunity to work with such a skilled and caring psychologist. The Barhaghi reference 1. In the Barhaghi reference, Mr Barhaghi states that he has been a patient of the respondent for the last few years. Throughout his interactions he has been impressed by the respondent's integrity and ethical standards, which consistently demonstrate respect for clients' confidentiality and autonomy, upholding the highest professional and ethical guidelines. He cannot recommend highly enough the respondent who is an outstanding psychologist because of exceptional skills, a compassionate approach, and unwavering commitment to clients' well-being. The Ranjbar reference 1. In the Ranjbar reference, Dr Ranjbar states that he and his wife received a mental health support from which was very helpful for him to recover his mental health condition after isolation during the covid. He expresses his appreciation of the professional work of the respondent and hopes its continuation in the future. The submissions of the applicant The HCCC submissions 1. In the HCCC submissions, the applicant after setting out an overview of the proceedings including appropriate protective orders, and a summary of the Complaints One to Four, the statutory framework together with its judicial consideration and legal principles as to proof, dealt with each of the Complaints. Complaint One 1. The applicant has summarised the evidence of Client A and made the following submissions: 1. her account in this regard is corroborated by Client B both about her introduction to the "group", but also the content and manner in which these "sessions" were run; 2. no copy of the 12 April 2021 Sahebi letter exists on her referring doctor's records; 3. the respondent asserted that the billing of Medicare for two sessions with Client A in April 2021 was an error by his administrative staff, but no evidence on the issue has been led by him; 4. the respondent asserted that the payment of $200.00 to him by Client A on 15 April 2021 was for use of his office by her, but no evidence on the issue has been led by him; 5. contemporaneous messages between and the respondent over the period from 1 May 2021 and over the following weeks are obviously intimate; 6. there are numerous other messages that on their face seem to be declarations of love or desire from the respondent. Complaint Two 1. The applicant relies on the following evidence: 1. the evidence of Client A and Client B as to the existence and content of the group therapy sessions, and in particular that they were mixed social and professional gatherings; 2. the evidence of Dr Sultan. Complaint Three 1. The applicant submits that if Complaint One is proven, then the respondent's statements as particularised in Complaint Three are likely to be false. Complaint Four 1. The applicant made the following submissions: 1. if Complaint One is proven, then the respondent has undoubtedly engaged in professional misconduct; 2. if Complaint Two is proved, then the cumulative effect of the respondent blurring professional boundaries by engaging in an ongoing basis both socially and professionally with his clients (including involving one client with the administrative aspects of his practice), taken with his poor record keeping, and the use of social media to administer the groups, is arguably professional misconduct. However, it accepts however that this conduct is clearly of a different nature to Complaints One and Three. Appropriate protective orders 1. The applicant seeks the following protective orders: 1. the cancellation of the respondent's registration for two years on the basis of the gravity of his misconduct, in particular with respect to the formation of a sexual and intimate relationship with Client A, and the consequent need for general deterrence and the maintenance of confidence in the psychology profession; 2. the imposition of a non-review period of two years; 3. a prohibition order preventing the respondent from providing any health service for the same period. The oral submissions of the applicant 1. In his oral submissions, counsel for the applicant reinforced the HCCC submissions. In addition, he made the following submissions: 1. the evidence of Client A should be preferred to the evidence of the respondent, which was conflicting, confused and self-serving; 2. the respondent should pay the costs of the applicant of the proceedings as agreed or assessed on the ordinary basis. The submissions of the respondent 1. In his oral submissions, the respondent substantially repeated his evidence in the 16 August 2021 Sahebi letter and at the Sahebi s 150 hearing. In addition, he made the following submissions: 1. he had been suspended for two and a half years; 2. he accepted that there was lots of unsatisfactory conduct as alleged in Complaint Two; 3. he had provided great service to the community as testified to by his character witnesses; 4. he would need to have supervision; 5. he does not have a job, and wants an opportunity to earn an income; 6. he opposed an order for costs because of his financial position. Issue 1: whether the respondent engaged in the conduct constituting Complaints One to Three, and whether any such proved conduct constitutes unsatisfactory professional conduct Introduction 1. Before considering Complaints One to Three in turn, we have made findings as to the credibility and reliability of witnesses having regard to the principles applicable to the proof of facts. The credibility and reliability of witnesses Client A 1. We are satisfied that Client A was a credible and reliable witness for the following reasons: 1. the manner in which she gave her oral evidence was forthright; 2. while she accepted that she could not remember dates, there was a consistency in her written and oral evidence as to the sequence of events; 3. her version of events is supported by the contemporaneous documentary evidence both as to her status as a client of the respondent and her sexual relationship with him; 4. her participation in a psychological education group of the respondent is corroborated by the unchallenged evidence of Client B. Mr Musavimovahed 1. The evidence of Mr Musavimovahed substantially went to the issue of whether Client A was a client of the respondent. We are not satisfied that Mr Musavimovahed was a credible and reliable witness as he had a poor recollection of events except in relations to matters that he perceived were adverse to the respondent's interests. However, we consider that it is significant that notwithstanding that he provided administrative assistance to the respondent in the practice, he failed to give any evidence that the Medicare claims for services provided to Client A were made in mistake. The respondent 1. We are not satisfied that the respondent was a credible and reliable witness for the following reasons: 1. he admitted that he lied in giving his evidence at the Sahebi s 150 hearing in an important matter; 2. he gave implausible evidence on the central issues of whether Client A was his client and he had a sexual relationship with her; 3. he failed to adduce any corroborative evidence for his implausible evidence in circumstances where the Council delegates had expressed concerns about this evidence in the 19 January 2022 Council decision including: 1. evidence that he was impotent and incapable of sexual intercourse. The inclusion of Tadalafil in the 3 April 2019 list of Sahebi medication is inconclusive because its date is two years prior to the sexual relationship with Client A in April 2021 and May 2021. While the drug Tadalafil is prescribed for erectile dysfunction, its inclusion in the 3 April 2019 list of Sahebi medication does not establish the respondent was impotent or that he was taking this drug between 24 April 2021 and 16 May 2021; 2. evidence that text and voice messages in Farsi he sent to Client A between 24 April 2021 and 16 May 2021 did not have a sexual connotation; 3. evidence as to the complete Friday group WhatsApp messages which he could have requested from any member of the group in circumstances where he alleged in his evidence at the Sahebi s 150 hearing that Client A had deleted text messages; 1. his evidence was inconsistent with the unchallenged evidence of Client B; 2. he gave implausible explanations for contemporaneous evidence that was inconsistent with his evidence that Client A was not his client. For example, his explanation that he recorded the incorrect dates for 11 fortnightly sessions between 8 January 2021 and 14 May 2021 on the group session notes and list of participants for Knowing & Self Actualizing Self Group was implausible. Conclusion 1. Where there is a conflict in their evidence, we prefer the evidence of Client A to the evidence of the respondent. 2. Further, we reject the evidence of the respondent given at the Sahebi s 150 hearing and repeated in his oral evidence at the hearing that the specific words drawn to his attention did not have a sexual connotation, but were expressions of a close friendship. Complaint One 1. The following two questions underly the particulars of Complaint One: 1. whether Client A was a client of the respondent; 2. whether the respondent had a sexual relationship with Client A. Whether Client A was a client of the respondent 1. We are satisfied that Client A was a client of the respondent for the following reasons: 1. this was the consistent evidence of Client A; 2. the request by the respondent to Client A for a referral from her doctor, the provision of the 31 March 2021 Rahman referral and the Client A mental health plan to the respondent, the request by the respondent to Client A to send him a photo of her Medicare card, the text messages between the Client A and the respondent and the payment of the total of $400.00 by Client A to the respondent on 15 April 2021 and 26 April 2021, and the claim by the respondent to Medicare for the provision of services to Client A on 14 April 2021 and 21 April 2021 are consistent with the evidence of Client A; 3. the evidence of Client A as to her attendance at psychological education classes from February 2021 was corroborated by the evidence of Client B. Whether the respondent had a sexual relationship with Client A 1. We are satisfied that the respondent had a sexual relationship with Client A for the following reasons: 1. this was the consistent evidence of Client A; 2. the evidence of Client A was corroborated by the text and voice messages containing romantic and erotic language sent by the respondent to Client A from 24 April 2021 to 16 May 2021. 1. In the light of the oral evidence of Client A and the personal text messages between her and the respondent we find that their sexual relationship commenced on the evening of Saturday 24 April 2021 and continued on a daily basis with a couple of exceptions until shortly before 16 May 2021. He commenced and maintained this sexual relationship for his own sexual gratification. Conclusion 1. We are satisfied that the applicant has established the particulars of Complaint One. 2. We accept the evidence of Dr Sultan in her answers to questions 7 to 11 in the 12 April Sultan report. 3. In the light of our findings and the principles in Aref at [18]-[20], we are satisfied that by reason of the conduct specified in the particulars of Complaint One the respondent engaged in unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law. Complaint Two 1. In the light of our findings in relation to particular 1 of Complaint One, the evidence of Client A and the respondent and the contemporaneous Friday group text messages, we are satisfied that the applicant has established particulars 1 (a) and 2 of Complaint Two. 2. In the light of the concession of the respondent in his Reply which was properly made, we are satisfied that the applicant has established particulars 3 to 5 of Complaint Two. 3. We accept the evidence of Dr Sultan in her answers to questions 2 to 6 in the 12 April Sultan report. 4. In the light of our findings and the principles in Aref at [18]-[20], we are satisfied that by reason of the conduct specified in the particulars of Complaint Two the respondent engaged in unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law. Complaint Three 1. In deciding that the applicant has established particular 2 of Complaint One we rejected the evidence of the respondent that Client A was never his client, that he bulk billed Client A in error and that the payments totalling $400.00 made to him by Client A, leaving aside the $40.00 paid on 26 April 2021, were for the hiring of rooms at his professional premises not for psychological services. 2. We are satisfied that the respondent gave this evidence to the Council and the applicant knowing that it was false. 3. In the light of our findings and the principles in Aref at [20], we are satisfied that by reason of the conduct specified in the particulars of Complaint Three the respondent engaged in unsatisfactory professional conduct within s 139B(1)(l) of the National Law. Issue 2: whether by reason of any such proved conduct for Complaints One to Three, the respondent engaged in professional misconduct constituting Complaint Four 1. Having regard the principles in Chen at [19]-[20] and Litchfield at 638, we make the following findings: 1. the respondent by his conduct specified in particular 3 of Complaint One and in Complaint Three engaged in professional misconduct within s 139E(a) of the National Law; 2. the respondent by his conduct specified in Complaints One to Three engaged in professional misconduct within s 139E(b) of the National Law. Issue 3: whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law Introduction 1. The parties are in disagreement as to the manner in which the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law. Consideration 1. In view of our findings in the stage 1 decision we are satisfied that we are entitled pursuant to s 149(a) of the National Law to exercise the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law against the respondent. 2. In determining whether, and if so in what manner, we should exercise the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law, we have had regard to the following matters: 1. the most serious aspect of Complaint One was the sexual relationship between the respondent and client A. This conduct alone is sufficient to warrant the cancellation of the respondent's registration; 2. the serious nature of the respondent's conduct was aggravated by the vulnerability of Client A due to her status as his client; 3. the respondent was not a credible and reliable witness. In particular, he was persistently untruthful in his evidence about the status of client A as his client and his sexual relationship with her. This dishonesty was an egregious breach of his duty of full and frank disclosure of misconduct referred to Wingate at [43]. Consistent with Lee at [67], we regard this dishonesty as being very serious. We consider that this dishonesty has created a greater need for specific and general deterrence; 4. the respondent has adduced no evidence that demonstrates any insight as to the reasons for his conduct towards Client A or that he has put in place measures to safeguard against a reoccurrence. Rather than admit his conduct and address the reasons for it, the respondent has neither apologised for his behaviour nor expressed any remorse or contrition. On the contrary, he has continued not to acknowledge his conduct toward Client A; 5. the character references are unsatisfactory as it is clear that none of the referees disclose that there have been informed of the allegations against the respondent in the Complaint. 1. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in [50] to [61] above, and the matters set out in [139] above, we are satisfied that it is appropriate to cancel the respondent's registration pursuant to s 149C(1)(b) of the National Law. In making this decision we have had regard to Morsingh OD (No 3) and Morsingh CA in which the nature of the sexual conduct of the appellant with the patient was not as extensive, and his response to the complaint was similar, to that of the respondent. Given that he engaged in the most serious conduct of Complaint One for his own sexual gratification, his dishonesty, and lack of insight, contrition and remorse, we do not consider that it is appropriate to reprimand the respondent. While recognising its potential for serious adverse implications, a reprimand would not be sufficient to denounce the professional misconduct of the kind which we have found, either to the respondent himself or to the general body of psychologists. Further, having regard to the principles in Litchfield at 639 which we consider apply equally to the exercise of the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law, we do not accept that it would be appropriate to impose conditions on the respondent's registration with respect to female clients. 2. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in Menz (No 2) at [19], and the matters set out in [139] above, we are satisfied that the respondent poses a substantial risk to the health of members of the public, and it is appropriate to make the prohibition order against the respondent sought by the applicant pursuant to s 149C(5) of the National Law. 3. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in Chen at [22] and [88], and the matters set out in [139] above, we are satisfied that it is appropriate to fix a non-renewal period of two years pursuant to s 149C(7) of the National Law for the cancellation of the respondent's registration and the making of the prohibition order against the respondent. But for the respondent's dishonesty and lack of lack of insight, contrition and remorse, we would have imposed a shorter non-renewal period. Issue 4: the costs of the proceedings 1. Having regard to the principles in Philipiah at [42]-[46] and Neale at [8]-[10], we have decided pursuant to cl 13 of Sch 5D of the National Law to order the respondent to pay the applicant's costs of the proceedings as agreed or assessed. Orders 1. We make the following orders: 1. The respondent's registration is cancelled. 2. The respondent is prohibited from providing any health service as defined in s 5 of the Health Practitioner Regulation National Law (NSW). 3. The respondent may not apply for a review of orders (1) and (2) above for two years from the date of this decision. 4. The respondent is to the costs of the applicant of the proceedings 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. 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