Danaei v Medical Council of New South Wales [2024] NSWCATOD 116

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Danaei v Medical Council of New South Wales [2024] NSWCATOD 116 Hearing dates: 8 – 9 July 2024 Date of orders: 01 August 2024 Decision date: 01 August 2024 Jurisdiction: Occupational Division Before: Acting Judge Levy SC, Principal Member Dr J Fogarty, Senior Member Dr H Haikal-Muhktar, Senior Member M Christenssen, General Member Decision: (1) Pursuant to s 163(1)(c) of the Health Practitioner Regulation National Law (NSW) 2009, the applicant Dr Aliyar Danaei, may apply to the Medical Board of Australia for registration to reinstate him as a medical practitioner subject to the practice and health conditions listed in the Appendix to these reasons. (2) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) 2009. (3) Pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) 2009, the applicant is to pay the respondent's costs of these proceedings on the ordinary basis as agreed or assessed. Catchwords: OCCUPATIONS — registration of medical practitioners — application for re-registration after expiry of disqualification period — male general practitioner disqualified from registration following findings of unsatisfactory professional conduct and professional misconduct — violation of professional boundary between doctor and patient — sexual relationship with a vulnerable female patient — whether previous Tribunal findings on 24 December 2021 expressing concern over former registrant's insight into past misconduct and his mental health issues have been clearly and sufficiently addressed and displaced by appropriate remedial steps — assessment of likelihood of reoffending — whether public health and safety would be adequately protected if the practitioner were to be reinstated at this time notwithstanding the previous Tribunal findings on 24 December 2021 — reinstatement subject to practice and health conditions Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64(1) Health Practitioner Regulation National Law (NSW) 2009, s 3, s 3A, s 3B, s 139B, s 139E, s 149C, s 149E, s 163A, s 163B, s 163C NCAT Procedural Direction 3, clauses 19(c) and (d) Cases Cited: Ameisen v Medical Council of NSW [2013] NSWCATOD 49 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Coe v Health Care Complaints Commission [2013] NSWMT 12 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 Dawson v Law Society of NSW [1989] NSWCA 58 Evatt v New South Wales Bar Association (NSW Court of Appeal unreported, 12 April 1972) Evatt v New South Wales Bar Association (NSW Court of Appeal unreported, 15 December 1981) Ex Parte Lenehan (1948) 77 CLR 403; [1948] HCA 5 Haber v Health Care Complaint Commission [2018] NSWCATOD 16 Health Care Complaints Commission v Danaei (No 2) [2021] NSWCATOD 216 Health Care Complaints Commission v Danaei [2021] NSWCATOD 188 HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 Jan v Health Care Complaints Commission [2021] NSWCA 350 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Ng v Health Care Complaints Commission [2018] NSWCATOD 105 Paric v John Holland Constructions Pty Ltd [1985] HCA 58 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Re Mansoor Haider Zaidi [2006] NSWMT 6 South Eastern Sydney Area Health Service v Edmonds [2007] NSWCA 16 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 92 Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Texts Cited: E Brooks, M H Gendel, S R Early, D C Gundersen & J H Shore, "Physician Boundary Violations in a Physician's Health Program: A 19-Year Review" (2012) J Am Acad Psychiatry Law 40(1), 59-66. Category: Principal judgment Parties: Dr Aliyar Danaei (Applicant) Medical Council of New South Wales (Respondent) Representation: Applicant (self-represented)