New South Wales Medical Tribunal CITATION : HCCC v Dr Fareed Bahrami [2008] NSWMT 4 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission Dr Fareed Bahrami FILE NUMBER(S) : 40005 of 2007 CORAM: Puckeridge, QC DCJ CATCHWORDS: Medical Practice Act 1992 (NSW) LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Rhone – Poulenc Agro Chime SA & Ors v Uim Chemical Services Pty Ltd & Anor (1986) 68 ALR 77; CASES CITED: HCCC v Lichfield (1997) 41 NSWLR 630; McBride v Walton (unreported NSWCA 15 July 1994) DATES OF HEARING: 17/03/08 - 19/03/08, 06/06/08 DATE OF JUDGMENT: 6 June 2008 P Stickland SC M Lynch LEGAL REPRESENTATIVES: C Goodhand D Williams R Connors ORDERS: (1) The name of Fareed Bahrami be removed from the register of practitioners of New South Wales;; (2) Pursuant to s63(5) of the Medical Practice Act 1992, the Tribunal orders that an application for review of Order (1) may not be made until the expiration of a period of three years from today;; (3) That the practitioner pay the costs of the Health Care Complaints Commission of and incidental to this hearing. JUDGMENT: JUDGMENT 1 By amended notice of complaint filed before the Tribunal on 17 March 2008, the complainant alleges in complaint one that the respondent Dr Fareed Bahrami has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of ss36-37 of the Medical Practice Act 1992; and in complaint two that the respondent is not of good character. 2 The complainant stated at the commencement of the hearing that the complainant was not proceeding with particular four of complaint one. The particulars in respect of complaint one upon which the complainant proceeded were:- 1) At some time between 19 February 2002 and 13 March 2003, the practitioner altered a photocopy of his registration card issued to him by the New South Wales Medical Board by replacing the word "conditional" with the word "general". 2) On or about 13 March 2003, the practitioner presented the photocopy of the altered registration card to Andrew Greacen JP for him to certify the photocopy is the true copy of the original registration card. 3) On or about 21 March 2003, the practitioner submitted to the RANZCO as a part of his application for the Ophthalmology training scheme a photocopy of the altered registration certified by Andrew Greacen JP as a true copy of the original registration card. 4) At some time between 2 March 2004 and 10 March 2005 the practitioner altered a photocopy of his registration card issued to him by the New South Wales Medical Board by replacing the word "conditional" with the word "general". 5) On or about 10 March 2005, the practitioner presented the photocopy of the altered registration card to a Justice of the Peace for him or her to certify the photocopy as a true copy of the original registration card. 6) On or about 11 March 2005, the practitioner submitted to the RANZCO as a part of his application for the Ophthalmology training scheme, a photocopy of the altered registration certified by a Justice of the Peace as a true copy of the original registration card. 7) On or about 8 March 2007, the practitioner made a false or misleading statement to the Royal Australian and New Zealand College of Ophthalmologists by stating "The conditions upon my registration are mainly related to my health, concerning a bout of major depression which affected me a few years ago". 3 The particulars upon which the complainant relied in respect of complaint two were the same as those relied upon in respect of complaint one but did include particular four which was:- 4) On 5, 6 June and 23 December 2003, the New South Wales Medical Tribunal held an inquiry into complaints alleging that the practitioner was guilty of professional misconduct and had been convicted of criminal offences in New South Wales. On 10 September 2003, the Tribunal found the complaints proved. On 23 December 2003, the Medical Tribunal severely reprimanded the practitioner and imposed conditions on the practitioner's registration. 4 On behalf of the respondent it was submitted prior to commencement of the hearing that there was unfairness to the respondent in raising as a discrete issue particular four as to the character of the respondent. It was submitted that the Medical Tribunal in 2003 considered the complaint then before it and made findings on that complaint and that the principle of double jeopardy would be applicable in any determination by this Tribunal as to whether or not the practitioner was a person of good character. 5 On 18/03/08 it was ruled that no principle of double jeopardy was applicable in the complainant seeking to raise all the particulars in the amended complaint as to complaint two, to show that the respondent was not a person of good character. It was considered that there was no unfairness to the respondent in raising as a discrete issue, particulars relevant to show a pattern of dishonesty on the part of the respondent practitioner. 6 In his opening remarks counsel for the respondent admitted the particulars relied upon by the complainant in respect of complaint one other than particular eight. Counsel for the respondent also admitted the particulars relied upon by the complainant in respect of complaint two with the exception of particular eight. 7 The respondent in evidence before the Tribunal admitted each of the particulars upon which the complainant relied in respect of complaint one and complaint two with the exception of particular eight of both complaints. 8 According to the s192A Evidentiary Certificate, on 23 October 2001 the practitioner's registration was suspended following a s66 inquiry. The practitioner was first registered in NSW on 4 February 1998 in the general category. The practitioner graduated with a Bachelor of Medicine and a Bachelor of Surgery from the University of Otago New Zealand and was, according to the s192A certificate, registered in NSW in the general category in accordance with the provisions of the mutual recognition legislation. 9 Dr Bahrami's suspension was lifted following a review under s66A of the Act on 21 December 2001 and conditions were imposed on his registration. His conditions were modified under s66A of the Act on 9 May 2002 and 26 September 2002. 10 On 3 May 2002 the respondent was ordered to enter into a bond to be of good behaviour for a period of three years from 3 May 2002 following his conviction on one count of indecent assault. Following his conviction, a complaint was made in respect of improper or unethical conduct by the practitioner in relation to two female patients. On 23 December 2003 a Medical Tribunal found the practitioner guilty of professional misconduct, reprimanded him and imposed the following conditions on his registration:- Health Related Conditions I. Dr Bahrami is not to prescribe for self medication. II. Dr Bahrami is to attend for treatment by a general practitioner of his choice at a frequency to be determined by Dr Bahrami and the general practitioner. Dr Bahrami is to authorise the treating practitioner to inform the Medical Board of NSW ("the Board") of failure to attend for treatment, determination of treatment or if there is a significant change in health status. Dr Bahrami is to advise the Board within seven (7) days of receipt of these conditions of the name of his treating general practitioner. III. Dr Bahrami is to attend for treatment by a psychiatrist of his choice, at a frequency to be determined by that psychiatrist. Dr Bahrami is to authorise the psychiatrist to inform the Board of failure to attend for treatment, termination of treatment or if there is any significant change in health status. IV. Dr Bahrami is to continue to take any medications prescribed by the psychiatrist or general practitioner. Monitoring Related Conditions V. Dr Bahrami is to attend for review by a Board nominated psychiatrist, initially on a six monthly basis, at the Board's expense. VI. Dr Bahrami is to attend a review interview at the Board in six months or as otherwise directed by the Board. VII. Dr Bahrami is to authorise the Board to forward copies of the Board review interview reports and other information relevant to Dr Bahrami's impairment to the Board nominated psychiatrist and to Dr Bahrami's own treating practitioners. VIII. Dr Bahrami's compliance with employment related conditions is to be monitored and reviewed by the Board's conduct committee and his compliance with health related and monitoring related conditions is to be monitored and reviewed by the Board's health committee. Employment Related Conditions IX. Dr Bahrami is permitted to retain his current position of employment. He may not obtain alternative employment without the prior written approval of the New South Wales Medical Board. X. Dr Bahrami is to inform his employer of these conditions and is to forward to the President of the New South Wales Medical Board on commencement of the employment, a copy of these conditions signed by his employer. 11 The position which was referred to by the Medical Tribunal in the employment related conditions imposed by the Tribunal on 23 December 2003, was a position at a male impotency clinic conducted by an organisation called the Advanced Medical Institute of Australia. The practitioner was granted approval to take up employment with that organisation in 2003. He remains in the employ of that organisation. 12 The practitioner was determined to follow a career in Ophthalmology. In March 2003, that is about three months prior to the commencement of the hearing before the previous Medial Tribunal, the practitioner made application to the Royal Australian New Zealand College of Ophthalmology (RANZCO) for selection assessment for post-graduate vocational training. In the application he stated his then current medical registration number and enclosed a copy of a registration certificate which was certified as a true copy by the person witnessing the statutory declaration at the back of the application form. The statutory declaration was witnessed by Andrew Greacen JP and the registration card attached to the application was certified by Andrew Greacen as a true copy of the registration card. 13 In the application for selection assessment which was made to the RANZCO in March 2003, it was stated that if any restrictions applied so far as the registration of the applicant as a medical practitioner they were to be listed. A copy of the registration certificate which was to be certified as a true copy by the person witnessing the statutory declaration was attached to the application. In the statutory declaration, the practitioner declared that "the statements made and the information shown in this application form and in all attached documents are true and complete." 14 As at the time that the applicant made application to the RANZCO, his registration was subject to the following conditions as imposed by the Medical Board:- 1) That Dr Bahrami is only to work in a public hospital approved by the Board, or Board approved group practice (group is defined as at least 3 practitioners), with one other practitioner always working and on site. 2) That Dr Bahrami is to seek Board approval prior to changing the nature or place of his practice. 3) That Dr Bahrami must not consult treat or examine any female patient unless a third person is continuously present. 4) That if Dr Bahrami works in a group general practice; a) If the patient is under 14, the third person required to be present may be her mother. b) Otherwise the person shall be a female chaperone appointed for this purpose by the practice and with no other concurrent duties in the practice. The principle of the practice is to send to the Board for its approval a list of possible chaperones amongst stating their age, previous occupation or other part time position, and to forward to the Board at the end of each calendar month details of all female patients seen by Dr Bahrami as set out in the attached pro-former record sheet marked as annexure c) Dr Bahrami must notify the principle of the practice and any other practitioner who may be the one other practitioner working on site with him of these conditions and forward to the Board within seven (7) days of commencing employment a copy of these conditions, signed by each one of these practitioners. 5) If Dr Bahrami is employed in a public hospital; a) Female members of the nursing staff may satisfy the requirement in condition 3 above. b) Dr Bahrami must notify the Medical Director and Nursing Unit Manager of the departments in which he is employed, forwarded to the Board within seven (7) days of the commencement of employment, copies of these conditions signed by each one of these persons. 15 The practitioner admits that in his application in March 2003 he made no reference to the above conditions and altered the registration card attached to the statutory declaration to show that his status as a medical practitioner was "general". 16 The respondent admits particulars 1, 2 and 3 of both complaints one and two. On those admissions on or about 21 March 2003 the practitioner submitted to the RANZCO as part of his application for the Ophthalmology training scheme a photocopy of the altered registration certified by Andrew Greacen JP as a true copy of the original registration card. 17 In evidence before the Tribunal the respondent practitioner admitted that the conduct as referred to in the particulars of complaint amounted to unsatisfactory professional conduct and acknowledged that it was open to the Tribunal to conclude that the conduct amounted to professional misconduct. He also apologised for his "deceptive behaviour in the past". He said that when he registered with the college for the first time in 2003 the college had changed the selection process and to obtain a training position there was a need first to register with the college and then apply for a position in a training hospital. He also said (p 48 of transcript on 18/03/08):- "I was gravely ashamed of what I had done, the way I had disreputed the profession, the way I had treated two young female patients and I just- I thought if they would know about the conditions imposed upon my registration they would want to know why and I was very ashamed that they would become aware of it. In that year I even didn't apply to any teaching hospital for a training position. The reason I registered was only to have my name as a person who is pursuing a career in Ophthalmology. And I didn't apply for a position either because there was no way I was going to be accepted. There were so many candidates whose academic records and academic attainments were much higher than mine and so I did not make an application. But the whole thing was done because of shame and embarrassment about what I had done two, three years before." 18 According to the statement of evidence of Joanna Starling on 13 August 2007, the practitioner made application to the RANZCO in 2005, 2006 and 2007. In his application dated 10 March 2005 he attached a registration card which he certified as a true copy of his registration card and which showed his status of registration as "general". In the statutory declaration which he made on 10 March 2005 he declared that the information shown in the application form and in all attached documents were true and correct. 19 At a review which the practitioner had with the Medical Board in February/March of 2005, the practitioner advised the Board that he intended to formally apply to commence Ophthalmology training. He stated that the Masters that he was about to complete, although a pre-requisite for Registrarship, did not guarantee him a position in the training program and he would need to compete with other applicants for the scarce number of Registrars positions that would become available. 20 In her statement of evidence of 13 August 2007, Joanna Starling annexed the selection assessment for post-graduate vocation training form. She states that once an applicant for Ophthalmology training has registered with the college and completed a behavioural capability assessment, he/she may apply for training positions to hospital networks as advertised. She states that the hospitals that are members of the training network recruit applicants for employment and the hospital selection committees as she understood it, assessed the applicant's claims against the Ophthalmology training selection criteria and short listed applicants for interviews. The college provides the committees with information with each applicant's behavioural capability. She states that the applicant undertook the behaviour capabilities assessment in 2003. 21 Joanna Starling states that Dr Bahrami was not successful in his applications for selection for specialist training in either 2003 or 2005. She states that the college was not an employer and was not privy to the reasons behind the selection decisions of an employer. 22 The practitioner in his evidence before the Tribunal stated that the considerations which lead him to attach a false registration card in his application in March 2003 caused him to again mislead the college in March of 2005. He admits to the truth of particulars 5, 6, and 7 of the complaint. As at March 2005 the conditions of his registration were the conditions that were imposed by the Medical Tribunal on 23 December 2003. 23 He was asked whether he took any steps subsequent to March 2005 to truthfully inform the college of his conditional registration. (p 49 of transcript of 18/03/08). He answered as follows:- "I did not. I thought about writing a letter to them and basically divulging what I had done, the reasons behind it and everything and then I felt even worse and I thought God if I write that and they become aware of what I've done and the way I've gone about hiding it and the whole deceptive process, what would they think about it. So I just basically decided not to do it." 24 In May 2005 the respondent made an application to the Administrative Appeals Tribunal for a declaration that the Child Protection (Prohibited Employment) Act 1998 not apply to him. The application was made in order that he be able to obtain a position as a Registrar in Ophthalmology at a training hospital. In evidence before the Administrative Decisions Tribunal he stated that he had made application in February 2005 to the RANZCO. He also stated that he had been informed by the Medical Board that if and when the time were to come that he could work in a hospital, the Board would require that he have a supervisor that reports to the Board. When asked whether that would present a problem in terms of him being accepted in a training position, he stated that he could not give a clear answer to the question. 25 Following the hearing before the Administrative Appeals Tribunal, the Tribunal declared that the Child Protection (Prohibited Employment) Act 1998 did not apply to the respondent in respect of the two offences of assault with acts of indecency for which he was convicted in the District Court on 3 May 2002. The declaration was made on the following conditions:- i) That the respondent comply with all conditions flowing from these convictions that are imposed on him from time to time by the New South Wales Medical Board. ii) For such time as the respondent is under the supervision of the New South Wales Medical Board and/or the NSW Medical Tribunal in relation to these convictions the respondent to provide a copy of the order of the Administrative Decisions Tribunal to any employer who employs him in child related employment. iii) The registry to serve a copy of the orders on the Registrar of the New South Wales Medical Board within seven (7) days of the decision. 26 At the Administrative Decisions Tribunal hearing the respondent was also asked whether or not he had offended against the bond imposed by the District Court on 3 May 2002 and he replied "not at all". 27 In 2005 the respondent made application for a Registrar position at the Prince of Wales Hospital. His application was unsuccessful and the respondent by letter dated 30 September 2005 requested advice as to why his application was unsuccessful. By letter dated 7 October 2005 the respondent was advised that an essential criteria for applying for an Ophthalmology Registrar is that the applicant is eligible for general (unrestricted) registration with the New South Wales Medical Board. In her statement of evidence of 13 August 2007, Joanna Starling stated that the pre-requisites for college registration for matching and the behavioural capabilities assessment include registration to practice medicine in either New Zealand or a state or territory of Australia. 28 On 8 March 2006, Joanna Starling states that the RANZCO received the respondent's application to register for specialist training. In that application the respondent stated that he completed the behavioural capabilities assessment in 2003 and sought to use any assessment report from that year in the 2006 selection process. 29 The respondent in 2006 again attached with his application and his statutory declaration his registration card and on this occasion the registration card showed that his status as a medical practitioner was conditional. In the application itself he wrote "N.A" where it was asked, "if applicable, list any restrictions that apply to your registration." 30 In her statement of 13 August 2007, Joanna Starling states that on receipt of the application for registration in 2006 it was noted that the certified copy of Dr Bahrami's registration card recorded that his registration status was "conditional". She states that she compared this document with the certified copies of Dr Bahrami's registration cards attached to his 2003 and 2005 applications and then sent a facsimile to the New South Wales Medical Board to clarify whether Dr Bahrami could take a place in the training program without the special permission of the Board. 31 Contact was made with the respondent by the Board, after receipt of the facsimile from Joanna Starling. The respondent was asked whether he had mislead any other person or organisation as to his registration status. In a letter dated 30 March 2006 to the Board, the respondent replied as follows to that enquiry:- "Regretfully, yes. Photocopies of my registration cards with 'conditional' status were altered and the conditional phrase was replaced with 'general' status. Photocopies of the altered copies were presented to some acquaintances of mine who were qualified to verify copies of such documents and as they knew I was a doctor, they unsuspiciously signed the copies without scrutinising the original document. I am embarrassed to say that I abused their trust. The reasons behind these misleading acts were not the fact that my registration status was conditional, but the shame and embarrassment associated with perhaps having to divulge my criminal convictions to the college and some of its high ranking members with whom I had worked in the past and had done my best to leave them with a good impression." 32 A further application for training was made by the respondent in March 2007 and received by the college on 6 March 2007. By letter dated 7 March 2007 the respondent was advised that one of the eligibility criteria to join the training program is that of unconditional (full) registration and as it was noted that the respondent had only conditional registration, his application for selection in 2007 to start training in 2008 was not accepted. The letter of 7 March 2007 also noted that the necessary criteria of full medical registration was referred to in the frequently asked questions section on the website but was possibly less clear in the eligibility section. 33 By letter dated 8 March 2007, the respondent wrote to the college providing a certified copy of his current registration certificate. He stated that the change in registration status started from 3 July 2006 and attached a letter from the Board dated 3 July 2006 which stated that his registration category of "general with conditions" was to reflect the fact that the respondent was entitled to general registration in NSW based on his qualifications and training but that conditions were imposed on his registration. 34 The letter from the respondent to the RANZCO of 8 March 2007 also stated, "the conditions upon my registration are mainly related to my health concerning a bout of major depression which affected me a few years ago." This statement forms the basis of particular eight of complaint one and complaint two. 35 The respondent has submitted that the Tribunal could not be comfortably satisfied that the statement in the letter of 8 March 2007 was either false or misleading. The respondent has submitted that the conditions imposed by the Medical Tribunal on 23 December 2003 did mainly refer to the health related conditions and differed from the conditions which had been imposed upon him by the Medical Board. The conditions imposed by the Medical Tribunal did not require that the practitioner must not consult, treat or examine any female patient unless a third person is continuously present. 36 As was stated in Rhone – Poulenc Agro Chime SA & Ors v Uim Chemical Services Pty Ltd & Anor (1986) 68 ALR 77 there are cases which show that an omission to mention a qualification in the absence of which some absolute statement is rendered misleading is conduct which should be regarded as misleading. Whilst a number of conditions imposed by the Medical Tribunal did relate to his health, the reason for the conditions was not stated by the respondent. In his evidence before the Tribunal the respondent stated that at the time he wrote the letter of 8 March 2007 the statement he considered was an accurate one. He said he did not believe that the statement was misleading and that there were about seven or eight other conditions imposed on his registration which were health related. The respondent also stated that he still felt shame from his offending behaviour which resulted in his conviction and sentence on 3 May 2002 and the Medical Tribunal's determination in December 2003. 37 The Tribunal considers that the statement in the letter of 8 March 2007 that the conditions upon his registration mainly related to his health is a statement which, without any mention being made as to the monitoring related conditions and the employment conditions, was misleading. The Tribunal considers that it can be inferred that the respondent was endeavouring to avoid informing the college of the reasons why conditions were placed in his registration. The Tribunal is not satisfied that the statement in the letter of 8 March 2007 was false. 38 The respondent in his evidence has conceded that particulars 1, 2, 3, 5, 6 and 7 of complaint one do amount to unprofessional conduct and that the Tribunal is entitled to come to the conclusion that such proven and admitted unprofessional conduct amounts to professional misconduct. In HCCC v Lichfield (1997) 41 NSWLR 630 it was stated that the gravity of professional misconduct is to be measured by the extent to which it departs from proper standards. In submitting his application to the RANZCO in March 2003 with an altered registration card and in presenting a photocopy of an altered registration card to a Justice of the Peace for the purpose of that person certifying the photocopy to be a true copy of the original registration card, the Tribunal considers that to be a departure from proper standards accepted by the majority of the medical profession. The Tribunal considers such conduct constitutes unsatisfactory professional conduct of a serious nature and amounts to professional misconduct. 39 The conduct of the respondent as admitted in particulars 5, 6 and 7 of complaint one shows an intention by the respondent to repeat his unsatisfactory behaviour and to deliberately deceive the RANZCO as to his registration status. The Tribunal considers such conduct represents a departure from the high standards of moral rectitude required of a medical practitioner (see McBride v Walton NSWCA 15 July 1994) and to be unsatisfactory professional conduct of a serious nature and amounts to professional misconduct. 40 The Tribunal is satisfied that the complainant has proved that the statement in the letter of 8 March 2007 to the RANZCO and referred to in particular eight of complaint one is misleading, but in the circumstances where his application for training had been unsuccessful and he had attached a true copy of his registration card with his application the Tribunal does not consider that any such unprofessional conduct (being a misleading statement to a professional body) is professional misconduct within the meaning of s37 of the Medical Practice Act 1992. 41 The Tribunal is satisfied to the requisite degree that the complainant has proved particulars 1, 2, 3, 5, 6 and 7 of complaint one, and has proved that the statement referred to in particular 8 is misleading. 42 In the particulars to complaint two it is stated that on 3 May 2002 His Honour Judge McGuire ordered that the practitioner under s9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be of good behaviour for a period of three years from 3 May 2002 in relation to his conviction for one count of indecent assault. The complainant has submitted that the actions of the respondent as particularised in 1, 2 and 3 of complaint two shows that the respondent was willing to partake in such deceitful behaviour shortly after the bond was imposed and prepared to falsely declare that the registration card attached to his application was a true copy of his registration card and showed his true registration status. The complainant further submits that the respondent's conduct as particularised in paragraphs 5, 6, and 7 of complaint two showed a pattern of dishonest behaviour which is continuing as shown by the misleading statement in the letter of 8 March 2007 as particularised in paragraph 8 of complaint two. 43 The respondent submits that the complainant must demonstrate the respondent is not of good character as at the date of the hearing before this Tribunal (see HCCC v Karalasingham 2007 NSWCA 267 ) . The respondent submits that he has attended all medical reviews as required by the conditions of his registration and also sought advice from a psychiatrist not nominated by the Medical Board and also attended ethics seminars conducted by the St James Ethics Centre. It is submitted on behalf of the respondent that on the evidence before the Tribunal, it could not be satisfied that as at the date of the hearing the respondent is so dishonest as not be considered a person of good character. The respondent submits that the deceptive conduct of the respondent to the RANZCO needs to be considered in the circumstances that it was the one body that was sought to be deceived and arose out of shame and embarrassment of his inappropriate behaviour towards two female patients. The respondent has submitted that the dishonesty as shown by the proven particulars of complaint two was to avoid shame and did not demonstrate such a fundamental flaw in his character so as to make him unfit to practice medicine. 44 The Tribunal in determining complaint two does not take into account in considering whether or not the respondent is a person of good character, his conduct for which he was convicted and sentenced by the District Court in May of 2002 and as a result of which a Medical Tribunal made a determination in 2003. This Tribunal confines itself to the complaint as particularised in complaint two of the complaint of 17 March 2008. However, this Tribunal does take into account the Tribunal in its determination in 2003 did state that the practitioner's response to the misconduct reported by patient A was blatantly dishonest and calculated to attack the character of patient A. 45 The respondent submits that the Tribunal would be satisfied that he has rehabilitated himself so far as any dishonest behaviour as demonstrated by his response to the misconduct as reported by patient A in 2001. The respondent submits that as a result of continuing counselling from Dr Allnutt and other medical practitioners he has gained insight into the wrongful nature of his conduct and that the Tribunal would now be satisfied as to his honesty in his dealings with all professional bodies and associations. It is submitted that the statement in the letter of 8 March 2007 as referred to in particular 8 when correctly analysed is not false. 46 In his evidence before the Tribunal, the respondent said (p52 of transcript of 18/03/08) that in altering his registration card from general to conditional he "lied about something in an awful way about a dark stain on my past and that was basically the whole purpose of hiding it, but I did not take advantage in any other way wanting to improve my chances in any respect." 47 The respondent's evidence subsequent to his evidence as referred to the preceding paragraph would appear to contradict his statement that he did not want to improve his chances by deliberately misinforming the college of his conditional registration. He said that he did not believe that in 2003, 2005 and 2006 unconditional registration was a pre-requisite to being accepted by the RANZCO. In 2005 he was certainly made aware that unconditional registration was an essential criteria for selection as a Registrar in Ophthalmology at the Prince of Wales Hospital. In 2006 he was certainly made aware by the college of the need for full registration before acceptance at the college. In the application of March 2003 under the heading "registration" it is specifically stated "if applicable list any restrictions that apply to your registration." Immediately under that statement, applicant is asked to enclose a copy of the applicant's registration certificate that is certified as a true copy by the person who witnesses the statutory declaration at the back of the application form. The respondent also said (transcript p57 of 18/03/08) that from 2003 onwards the process for acceptance into an Ophthalmology training program changed. He said prior to 2003 anyone who had passed their primary exams as set by the college were automatically accepted into the training program provided they could get a training position with any teaching hospital but from 2003 onwards, anyone wishing to pursue a career in Ophthalmology had to register with the college first and then apply. 48 On the evidence before it, the Tribunal considers that the respondent did want to improve his chances of obtaining a position as a Registrar in Ophthalmology at a training hospital by being accepted at the RANZCO and was prepared to deliberately misinform the college of his registration status for that purpose. 49 The respondent was prepared to make a false declaration in 2003 and in 2005 that the registration certificate was "true and complete" when it stated that his status as a medical practitioner was "general". The respondent said that when he made the declaration he knew that that statement in the declaration was false and knew it was wrong to make such a false declaration, but justified it foolishly in his mind by saying that he was not causing any harm and was just covering his shame. 50 The respondent said in evidence that he did not know the gravity of his conduct in making a false declaration but that had now been explained to him by his legal team, it was also explained to him the potential consequences of making a false declaration which again at the time he didn't know. 51 The respondent said that since about June/July of 2003 he had been seeing a Dr Allnutt. He said that in February 2008 when Dr Allnutt asked him about his conduct in making a false declaration and providing a false registration card to the RANZCO, he told Dr Allnutt that he considered such conduct as being something not related to patients and a relatively minor issue. In his evidence he said that at the time did not understand the gravity of what he had done (p67 of transcript of 18/03/08). 52 The following question and answer appears on the same page:- Q: The question to you is this, how is it possible that in 2003 having practiced as a doctor since 1995 that you believed that making a false declaration and making a false registration card was a relatively minor issue? How is that possible? A: Well I practice medicine I must say and it doesn't mean – I acknowledge that I should have known, I should have known the gravity and the seriousness of what I'm doing. But I must say as a medical practitioner I am not a person who's dealing all the time with the legal documents and so forth. 53 Whether or not the practitioner was aware of the criminal nature of his conduct in making a false declaration and providing a false registration card, he was aware (as the letter to the Board dated 30 March 2006 shows) that he abused the trust of persons to whom he presented the altered copy of his registration card for certification when he presented applications to the college in 2003 and 2005. 54 The respondent said that when he made his application to the college in 2003, he did not consider he was in breach of a bond to be of good behaviour by providing a false registration card to the college. Nor did he regard such conduct as misconduct as he did not consider that it related to the practice of medicine. He considered that the good behaviour bond imposed upon him in 2002 related to his sexual misconduct. 55 The respondent was questioned about differing statements which he made to the Medical Tribunal in December 2003 and to the Administrative Decisions Tribunal in May 2005 (p101 of transcript of 18/03/08). The respondent was also questioned as to why he did not inform the Medical Tribunal in December of 2003 of providing a false registration card and a false declaration to the RANZCO. The respondent stated that he did not consider that such actions were related to the actions in respect of which complaint had been made by the HCCC. He was questioned in relation to not disclosing to the Administrative Decisions Tribunal that he was in breach of his bond in making a false declaration. Again, the respondent stated that such actions were not relevant to the conduct which resulted in the conditions being imposed by the Medical Board in December 2003. 56 The complainant has submitted that the Tribunal could not be satisfied that the practitioner has rehabilitated himself or that any deceptive conduct as shown by his submission of a false registration card and false declaration would not be repeated. The complainant submits that the letter of 8 March 2007 is at the very least misleading and shows a continuing pattern of seeking to deceive professional bodies and associations. The complainant submits that the reason for his conduct was not shame but a real risk that if the fact of his conditional registration was disclosed then the chances of him becoming a Registrar in Ophthalmology in a public hospital was "either nil or virtually nil." 57 The complainant submits that the particulars in complaint two show that the respondent is not a person of good character. 58 In HCCC v Karalasingham 2007 NSWCA 267 it was stated that the words "not of good character" do not bear some special or technical meaning, but are used in their ordinary meaning. It was further stated that in relation to membership of a profession it was necessary to consider aspects of character which are relevant to the exercise of professional functions. In that case reference was also made to what was noted by Walsh JA in Ex parte Tziniolis: Re the Medical Practitioners Act 84 WN (2) 275 where His Honour stated:- "I think, that we are entitled to enquire into what may be described as personal misconduct, as distinct from professional misconduct, in determining in this case whether or not the applicant is a man of good character, whilst recognising that there may be some kinds of conduct deserving of disapproval which have little or no bearing of the question whether or not it is shown that an applicant for registration as a medical practitioner is a person of good character." 59 In McBride v Walton (unreport. NSW CA 15 July 1994) it was stated that to determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practice medicine, one must consider:- a) Whether the misconduct can be satisfactorily explained as an error of judgement rather than a defect of character; b) The intrinsic seriousness of the misconduct qua fitness to practice m medicine; c) Whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the normal qualities of character; d) The motivation which may have given rise to the proven episode of misconduct; e) The underlying qualities of character shown by previous and other misconduct; and f) Whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner. 60 In determining whether or not the practitioner is of good character the Tribunal has taken into account each of the matters referred to by the court in McBride v Walton (unreport. NSW CA 15 July 1994). The Tribunal does not consider that the misconduct as referred to in the particulars as to complaint one and found to be proved to the requisite degree was an error of judgment. The practitioner's conduct in altering his registration card and submitting that false registration card to the college with an application in which he falsely declared that the information in the attached registration card was true and complete was deliberate and was repeated on two occasions. The Tribunal considers that such deliberate actions by the practitioner demonstrate an underlying defect in his character. The respondent's explanation of shame for his behaviour does not excuse his deceitful conduct as found proved by the Tribunal. 61 The Tribunal considers that the practitioner's misconduct does have a direct bearing on his fitness to practice. The practitioner in the course of the practice of medicine would be required to give certificates as to the fitness of patients and medical conditions of persons. He would be required to make statutory declarations eg. For necessary professional indemnity insurance. The public and all professional bodies and associations would expect high standards of probity in their dealings with members of the medical profession. 62 Aspects of the respondent's character were considered by the Tribunal in its determination in December 2003 in referring to the respondent's initial response to the Commission's letter concerning the complaint made by patient A. The Tribunal noted that the respondent not only denied her allegations but set out a dishonest and detailed version of events and attempted to explain the complaint by patient A by suggesting that she was a young woman of questionable character stating that she used unseemly language and generally behaved in an abusive and aggressive manner. Subsequently in his evidence to the Tribunal, the respondent conceded that all that he had stated in relation to patient A was untrue and agreed that her statements as to his conduct were accurate. 63 The differing accounts of the evidence of the respondent before the Medical Tribunal in 2003 and the Administrative Decisions Tribunal in 2005 as to whether one of the female patients felt comfortable as to his examination which he took as an invitation to proceed with indecent behaviour would support the submission of the complainant that the respondent tailors his evidence to suit his particular purpose. 64 Whilst the Tribunal does not consider that the misleading statement in the letter of 8 March 2007, by itself, is so serious as to justify suspension from practice or removal of the practitioner's name from the register, the Tribunal considers that the misleading statement shows that the respondent is prepared to dissemble when confronted with his own dishonest behaviour. The respondent's explanation was that his deceitful conduct as found proved arose from shame which he experienced as a result of his inappropriate behaviour towards two female patients. He also stated that he knew that his deceitful behaviour was wrong. The Tribunal considers that the respondent was prepared to embark upon a deceitful course of conduct for the purpose of being accepted by the RANZCO and commencing a career in Ophthalmology. 65 The Tribunal considers that the proven misconduct of the respondent does not demonstrate that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner. 66 Dr Paul Beaumont, Ophthalmic surgeon, in a report to the Medical Tribunal has stated that he could understand the great temptation to falsify documents in order to get into Ophthalmology training and to avoid the shame of past actions. The Dr also states in the letter to the Tribunal (exhibit 1) the following:- "He (Dr Bahrami) has shown himself to be repeatedly dishonest in this regard and one would think from first principles that when temptation is equally great in the future, he will be equally dishonest unless counselling can alter his cultural attitudes. The one factor that I see that is greatly in his favour is his insight. The fact that he is ashamed and knows his behaviour is unacceptable… On the basis of my experience of seeing the standards of my fellow practitioner's work I would much rather the public be exposed to a slightly dishonest practitioner with insight than one without. The question is 'is he still essentially a truthful and trustworthy person entitled to the confidence of his fellow professionals, patients and others.' The answer is probably, but I would like to see more of Fareed over an extended period before committing myself to saying a definite yes." 67 This Tribunal is committed to determining whether the respondent is a truthful and trustworthy person entitled to the confidence of his fellow professionals, patients and others. The practitioner has stated that he knew he was wrong in falsifying his medical registration card and representing to the college that it was a true copy of his then status. The shame that he said he had regarding his past conduct did not prevent him from engaging in such further misconduct. The misleading statement in the letter of 8 March 2007 shows obfuscation as to the reasons why the conditions were imposed and does not allow the Tribunal to conclude that the practitioner is a truthful and trustworthy person entitled to the confidence of his fellow practitioners. Lack of insight as to the gravity of his conduct in making a false declaration until the seriousness of his conduct was brought to his attention by his legal representatives also does not allow the Tribunal to be confident that the practitioner is aware as at the date of the hearing of the high standards of probity required of members of the medical profession. 68 The Tribunal is aware that any order is to be protective of the public rather than punitive. The Tribunal considers that the public and members of the medical profession are entitled to expect that members of the profession will be aware of the high standards of probity expected of them and would not deliberately make false declarations and alter documents. The Tribunal is not satisfied that as at this time the respondent is aware of the high standards of moral rectitude which is required of a member of the medical profession to ensure the trust of the public. The Tribunal does not consider that the respondent's explanation of shame is any excuse for his serious unprofessional conduct in deliberately falsifying documents to be submitted to a professional training association and deliberately making a false declaration. 69 Whilst accepting that the respondent's background is a matter to be taken into account in determining the nature of his conduct, the practitioner must abide by the standards accepted by the majority of the medical profession. The complainant has submitted that the Tribunal would be concerned as to the lack of frankness on the part of the respondent in his failing to tell the Tribunal in 2003 of his dishonesty in making the false declaration in March 2003 and altering his then registration card. The complainant has also submitted that the Tribunal would be concerned as to the failure to inform the Administrative Decisions Tribunal in May 2005 of his deceitful behaviour in 2003 and the repeat of such behaviour in March 2005. The Tribunal accepts the submission made on behalf of the respondent that there was no legal obligation on the part of the respondent to inform the Tribunal in 2003 or the Administrative Decisions Tribunal in 2005 of his deceitful conduct. The Tribunal also accepts that the failure to advise the Tribunal in 2003 or the Administrative Decisions Tribunal of his deceitful conduct does not form any basis of the complaint against the practitioner. However, the Tribunal considers that the respondent's evidence before it as to these matters showed that the respondent in justifying his conduct in his own mind was minimising or attempting to minimise what he knew was wrong. The Tribunal cannot confidently determine that the respondent will accept the high standards of probity demanded of a member of the medical profession when he states that he was unaware of the gravity of the criminal act of making a false declaration and only became aware of the gravity of his conduct when advised by his legal team. 70 The Tribunal considers that on the acts of misconduct proved by the complainant and the evidence before this Tribunal the respondent is not of good character. 71 The Tribunal considers that the appropriate order that is to be made is that the name of Fareed Bahrami be removed from the medical register. 72 The Tribunal considers that the respondent not be able to apply for re-registration until after the expiration of a period of three (3) years. The Tribunal has considered the evidence put forward on behalf of the respondent and accepts that he has all necessary technical qualifications to be registered as a medical practitioner and has overcome a number of obstacles in becoming qualified as a doctor. The Tribunal notes that the respondent has recently completed a Masters degree in Ophthalmology. However the Tribunal does not consider that as at this time the respondent has the necessary character to fulfil his ambitions and to further his career in medicine. On any application to be re-enrolled on the register the respondent will be required to show that he is aware of the high standards expected of members of the medical profession and of the need for honesty in all dealings with the public and professional bodies and associations. ORDERS 1) The name of Fareed Bahrami be removed from the register of practitioners of New South Wales; 2) Pursuant to s63(5) of the Medical Practice Act 1992, the Tribunal orders that an application for review of Order (1) may not be made until the expiration of a period of three years from today; 3) That the practitioner pay the costs of the Health Care Complaints Commission of and incidental to this hearing. Dated: Judge A.F. Puckeridge QC Dr Donald Child Deputy Chairperson Member Dr Jude Ng Ms Annette Gray Member Member ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.