Health Care Complaints Commission v Naiyer (No1) [2014] NSWCATOD 54

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Naiyer (No1) [2014] NSWCATOD 54 Hearing dates: 28,29 30 April, 1,2 May 2014 Decision date: 13 May 2014 Jurisdiction: Occupational Division Before: F Marks ADCJ (Principal Member) Dr V Sutton (Medical Member) Dr V de Carvalho (Medical Member) Dr J Mair (Lay Member) Decision: 1 The tribunal finds that Complaints 1 and 2 have been made out Catchwords: Medical Practitioner -complaints of unsatisfactory professional conduct and professional misconduct-stage 1 hearing conducted-factual findings made-proceedings stood over for stage 2 hearing on appropriate relief Legislation Cited: Health Practitioner Regulation National Law (NSW) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Mohammed Adnan Naiyer (Respondent) Representation: Counsel S McNaughton SC (Complainant) Health Care Complaints Commission (Complainant) Norton Rose Fulbright (Respondent) File Number(s): 1420075 Publication restriction: Order made prohibiting details identifying or tending to identify patients

reasons for decision

INTRODUCTION 1These proceedings are constituted by an Amended Notice of Complaint. The complainant, HCCC brings 3 complaints against the respondent, Dr Mohammed Adnar Naiyer. Each of the complaints alleges a breach of the provisions of the Health Practitioner Regulation National Law ("the National Law"). 2Both parties requested that, in dealing with these proceedings, the Tribunal should engage in a two-stage process. The first stage would involve the hearing of evidence and a consideration and determination of whether the complaints had appropriately been made out. If the Tribunal was satisfied that the complaints had been made out and that it was appropriate to make findings accordingly, it would then embark upon the second stage of the process which would involve a consideration of what orders should be made in all the circumstances. This would give the parties an opportunity to make submissions about the nature and extent of the orders which should be made having regard to the findings made in connection with the first stage. This is a course which is regularly adopted in appropriate cases, especially those involving contested factual circumstances, as is the case in these proceedings. We indicated to the parties that we were prepared to accede to this request, and this Decision is concerned solely with the first stage of the process. 3The first complaint alleges that the respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law. It is based upon circumstances pertaining to a patient of the respondent, known in the proceedings as "Patient A". It is alleged that whilst in practice as a general practitioner in a city on the New South Wales north coast, the respondent failed to record any details of an external examination of her genital and anal region, and an internal pelvic examination conducted on 27 June 2011 as required by law, that in denying that he had carried out such examination the respondent knowingly provided false information to the Health Care Complaints Commission contrary to law, that in the circumstances it was unnecessary to carry out the physical examination, and that the physical examination was not sufficient to detect a sexually transmitted disease because it did not include a visual speculum examination. 4The second complaint alleges that the respondent has been guilty of unsatisfactory professional conduct, also within the meaning of section 139B. It is asserted that he demonstrated that the knowledge, skill or judgement possessed, or care exercised, by him, in the practice of medicine were significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It was also alleged either as an additional matter or in the alternative that he engaged in improper or unethical conduct relating to his practice of medicine. 5The second complaint is based firstly upon circumstances pertaining to a patient of the respondent, known in the proceedings as "Patient B", who consulted the respondent on 1 July 2011. It is alleged that at the conclusion of the consultation the respondent asked Patient B when he was going to see her again, whether he could have coffee with her or "coffee at night", and gave her his personal mobile telephone number. When the patient sent a text message to the respondent inquiring whether he had a family, the respondent is alleged to have telephoned this patient and told her that they were overseas, asking "Is that okay?" It is asserted with respect to this patient that the respondent failed to maintain appropriate professional boundaries and sought to initiate an inappropriate personal relationship with her. 6This second complaint is based also on matters affecting Patient A which were asserted to have occurred during a consultation on 5 July 2011. Whilst purporting to use a dermatoscope to examine a mole on her right breast, the respondent was said to have placed his head close to the breast and placed his lips on her breast. Furthermore, whilst he was conducting the examination he is said to have moved his head around in a circular motion over the top of her breast. It is alleged that it was not clinically necessary for the respondent to have examined her breast using a dermatoscope and that he engaged in inappropriate conduct of a sexual nature towards this patient. 7The third complaint alleges professional misconduct by the respondent under section 139E of the National Law. It is said that he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounted to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. The particulars relied upon to sustain this complaint are those which we have summarised above referable to the first and second complaints.