Health Care Complaints Commission v Dr Baez [2014] NSWCATOD 3

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Baez [2014] NSWCATOD 3 Hearing dates: 11,12,13,18 and19 November 2013 Decision date: 03 February 2014 Jurisdiction: Occupational Division Before: Colefax SC DCJ Dr M Giuffrida Ms J Houen Dr M Cox Decision: Complaints made re Patients A, C and D proved. Complaint made re Patient B not proved. Catchwords: Sexual misconduct; professional misconduct Legislation Cited: Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 6 CLR 336 Director-General, Dept of Community Services, Re; Sophie [2008] NSWCA 250 Palmer v Dolman [2005] NSWCA 361 Gianoutsos v Glykis (2006) 65 NSWLR 539 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Fabian Baez (Respondent) Representation: Ms Stern SC (Complainant) Mr Boulten SC (Respondent) Health Care Complaints Commission (Complainant) Dibbs Barker (Respondent) File Number(s): 40025/12 Publication restriction: Suppression order re names of patients A, B, C and D

REASONS FOR DECISION

Introduction: 1The Health Care Complaints Commission has made complaints against Dr Fabian Baez in connection with allegations of sexual misconduct against four women said to have been patients of Dr Baez at the time of the asserted acts. 2Dr Baez was first registered as a medical practitioner in Australia on 5 February 1997 and he remained registered until 1 January 2008. From 1 January 2008 Dr Baez has not been a registered medical practitioner. 3The hearing before this Tribunal in connection with the complaints was conducted on 11, 12, 13, 18 and 19 November 2013. In that hearing the Commission was represented by Ms Stern SC and Dr Baez was represented by Mr Boulten SC. The parties requested the Tribunal to first (and separately) consider whether the complaints (or any of them) were made out before considering the question of appropriate protective orders - and costs. The Tribunal agreed to this course. At the conclusion of that hearing the Tribunal reserved its decision. 4The Complaint was originally filed in the Tribunal on 8 July 2011. On 4 October 2013, at a directions hearing before the Deputy Chairperson, leave was granted to the Commission to file an Amended Complaint. The formal hearing on the Amended Complaint began before a fully constituted Tribunal on 11 November 2013. However during the hearing, and specifically on 12 November 2013, leave was granted by consent to the Commission to file a Further Amended Complaint. 5In its final form, the Further Amended Complaint, in general terms, made the following allegations against Dr Baez - all of which he has denied through correspondence by his solicitors; and in one instance in a recorded interview with officers of the Commission. Dr Baez, however, did not give evidence at, nor attend, the hearing. No explanation for his absence was provided by Mr Boulten. 6First, in relation to Patient A, that he inappropriately touched and spoke to her in a consultation following a liposuction procedure. 7Secondly, in relation to Patient B, that he sexually assaulted her during an acupuncture session by digitally penetrating her vagina. 8Thirdly, in relation to Patient C, that he had sexual intercourse with her on two or three occasions in exchange for the provision of one session of Botox injections. 9Fourthly, in relation to Patient D, that he had an extramarital sexual affair with her. 10It will be seen therefore that, in relation to Patients A and B, there are potential criminal law considerations to be conscious of.