Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Naiyer (No 2) [2014] NSWCATOD 58 Hearing dates: 28 May, 2014 Decision date: 06 June 2014 Jurisdiction: Occupational Division Before: F Marks Acting Judge(Principal Member) Dr V Sutton (Medical Member) Dr V de Carvalho (Medical Member) Dr J Mair (Lay Member) Decision: Complaint 3 has been made out. The respondent is found guilt of professional misconduct Registration cancelled. Costs reserved. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. Category: Principal judgment Parties: Health Care Complaints Commission (Complaint) Dr Mohammed Adnan Naiyer (Respondent) Representation: Counsel S McNaughton SC (Complaint) M Lynch (Respondent) Health Care Complaints Commission (Complaint) Norton Rose Fulbright (Respondent) File Number(s): 1420075 Publication restriction: Order made prohibiting details identifying or tending to identify patients reasons for decision INTRODUCTION 1In Health Care Complaints Commission V Naiyer (No 1) [2014] NSWCATOD 54, 13 May 2014, this Tribunal as currently constituted found that Complaints 1, and 2 (the details of which are set out in that Decision) had been made out, and reserved for further consideration after submissions whether Complaint 3 had been made out and what orders should be made by the Tribunal in all the circumstances. These Reasons for Decision deal with these matters. They should be read in conjunction with the earlier decision. 2In essence, Complaint 1 concerned the conduct of an internal physical examination on a young, single female patient in circumstances where it was not necessary to undertake it, and it was not sufficient for the purpose for which it was said to have been undertaken, and the details of which the respondent had failed to record. In essence, Complaint 2 covered circumstances applying to 2 patients. With respect to Patient B, a young single female, the respondent had inappropriately suggested to her that she meet him for coffee, and had thus failed to maintain appropriate professional boundaries and had sought to initiate an inappropriate personal relationship. With respect to Patient A, the respondent had inappropriately "nuzzled" the breast of a young single female patient whilst conducting an examination using a dermascope. We found that the respondent had engaged in inappropriate conduct of a sexual nature towards this patient. PROFESSIONAL MISCONDUCT 3We specifically reserved for submissions and further consideration whether the respondent, by reason of the matters referred to in connection with Complaints 1 and 2, was guilty of professional misconduct under section 139E of the National Law. This was the subject of Complaint 3. This involves a consideration of whether the unsatisfactory professional conduct which we have found, is of a sufficiently serious nature to justify suspension or cancellation of the registration of the respondent as a health practitioner. 4In his submissions, counsel for the respondent emphasised that apart from the incident with the use of the dermascope, all of the other conduct complained of when taken individually was of a less serious nature and certainly not sufficiently serious to justify cancellation of registration. With respect to the use of the dermascope, it was submitted that the findings that we have made leave open the question of whether what occurred on that day was inadvertent on the part of the respondent rather than something that he had engaged in deliberately. On this basis it was submitted that this incident even taken in conjunction with all of the other incidents did not amount to professional misconduct. Whilst it is true that we did not overtly say that the respondent deliberately or intentionally placed his lips upon the breast of the patient, we did comment that it was inconceivable on the evidence that this could have occurred whilst using the implement in the manner in which it was intended to be used, and whilst it was being used by the respondent in the manner in which he said he had used it on that occasion. The inference which can be drawn from this conclusion is obvious. It is not consistent with some unintended, accidental contact. 5In assessing whether the conduct of the respondent which we have found to have taken place is sufficiently serious to be considered under section 139E, we have regard to the standard of conduct which is expected of every medical practitioner, particularly a male dealing with a female patient. 6There are observations relevant to this matter contained within the judgement of the New South Wales Court of Appeal in Health Care Complaints Commission V Litchfield (1997) 41 NSWLR 630. At 638, the Court (Gleeson CJ, Meagher JA and Handley JA) said; "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest". 7It is only necessary to refer to the findings which we have made concerning the conduct of the respondent in connection with the unnecessary physical examination and the nuzzling of the breast of one patient together with the inappropriate breach of the personal boundary of the other patient, to be able to conclude that the conduct is of a most serious kind. It clearly falls within that which is contemplated by section 139E. We so find. Complaint 3 has been made out, accordingly. WHAT CONSEQUENTIAL ORDERS SHOULD BE MADE 8It is next necessary to consider what orders should be made consequential upon the findings that all of the Complaints have been made out. The mere fact that a finding has been made of professional misconduct does not automatically result in cancellation or suspension of registration. The Tribunal must consider what orders are appropriate in all the circumstances. 9The complainant submitted that the respondent should be deregistered for a minimum period of two years. It emphasised the protective nature of the National Law, the need to maintain proper ethical and professional standards for the benefit of the public generally and the profession, and the protective nature of the jurisdiction as opposed to one which is essentially punitive. Furthermore, there needs to be taken into account the deterrent effect that an order will have on other health practitioners. We should add that all of these matters are well established within a significant body of case law and do not require any further amplification. 10In addition to the reference to matters of a sexual nature in Litchfield, which we have extracted above, there are a number of other authorities of this Tribunal and at appellate level which are to the same effect; namely that misconduct of a sexual nature is a very serious matter and must be dealt with accordingly. Again, this is a matter which is so obvious that it requires no elaboration. 11There was tendered into evidence on behalf of the respondent a number of character references predominantly from the medical practice from which the respondent now practices. These attested to his good character and his skills as a medical practitioner. Furthermore, there was tendered a document which, for present purposes, showed compliance by the respondent with a practice condition imposed in 2011 requiring him to use a chaperone when treating female patients. 12In his submissions, counsel for the respondent emphasised what he characterised as the less serious nature of the conduct of the respondent. Furthermore he said that the respondent continued to perform a valuable role in the practice in which he has worked without problems since 2011 and that in the circumstances he should be permitted to continue to practice medicine, albeit with a practice condition requiring the continued use of a chaperone. 13We have already stated that in our opinion the misconduct of the respondent which we have identified is of a most serious kind. 14There is one further matter that we take into account in determining what orders should appropriately be made in these proceedings. The respondent has said with respect to the incident where he asked the patient out for a cup of coffee that what he did was not incorrect according to the culture which applied in his native India, but he has now realised that this conduct was inappropriate and that he would not engage in that conduct again. Apart from this, the respondent has never at any stage acknowledged that his conduct has been inappropriate, nor has he expressed any contrition or remorse for what occurred. In one sense, this is not surprising because the respondent has at all times maintained that none of the incidents occurred, or at least occurred in the manner contended for by the complainant. However if we were to give the respondent the benefit of the doubt and allow him to continue to practice medicine, albeit subject to appropriate practice conditions, it would also be necessary for the Tribunal to be comfortable that conduct of this kind would not occur again. In the absence of any statement by the respondent concerning his attitude to conduct of this kind as found by the Tribunal, we are deprived of any level of comfort about any such future conduct. This is another reason which, in our opinion, would militate against accepting the submissions made on behalf of the respondent. 15Given the serious nature of the misconduct as we have found, and for the reasons set out above, we are of the opinion that it is appropriate in all the circumstances that an order be made cancelling the registration of the respondent for a period of 18 months. COSTS 16The complainant sought an order for costs. We are unsure as to the attitude of the respondent with respect to a costs order. Normally, in this jurisdiction, costs follow the event unless there are circumstances which would dictate that a contrary order should be made. It is possible that the parties might reach sensible agreement concerning costs. In the event that no such agreement can be reached, we will reserve costs to enable the respondent to make submissions. 17ORDERS (1)the registration of the respondent is cancelled, with effect 28 days from this day (2)the respondent may not apply for review for 18 months from this day (3)the Tribunal should undertake any review (4)costs are reserved with liberty to apply, which must be exercised within one month of this date 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. Registrar 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. Decision last updated: 06 June 2014