Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 Hearing dates: 9-10 July 2014, 15 September 2014 and by written submissions dated 25 July, 8 August, 30 September and 3 October 2014 Decision date: 16 October 2014 Jurisdiction: Occupational Division Before: Boland ADCJ (Principal Member) Dr M Friend (Occasional Professional Member) Dr G Yeo (Occasional Professional Member H Kiel (Occasional Lay Member] Decision: The applicant's application under s 163A of the Health Practitioner Regulation National Law (the National Law) for re-instatement to the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency in conjunction with the Medical Board of Australia is dismissed. The applicant is precluded under s 163B (5) of the National Law from applying to the NSW Civil and Administrative Tribunal for a re-instatement order for a period of two years from the date of these orders. The applicant shall pay the respondent's costs of and incidental to these proceedings as agreed and failing agreement liberty to restore before the Tribunal for assessment. Catchwords: ADMINISTRATIVE LAW - Application for re-instatement of medical practitioner - whether practitioner demonstrated he is fit and proper person to be re-instated to the register. Legislation Cited: Civil and Administrative Tribunal Act 2013 Child Protection (Prohibited Employment) Act 1998 (NSW) Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 2336 Ex Parte Tziniolis: Re the Medical Practitioners Act (1966) 67 SR 488 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 81 ALJR 1107 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 HCCC v Philipiah [2013] NSWCA 342 In Re Jason Martin [2010] NSWMT 13 McBride v Walton (unreported NSWCA 15 July 1994) Ohn v Walton (1995) 36 NSWLR 77 Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 (1981) 147 CLR 580 Re Lenehan [1948] HCA 45 (1948) CLR 403 Re Mansoor Haider Zaidi [2006] NSWMT 6 Zaidi v HCCC [1998] NSWSC 335 Category: Principal judgment Parties: Farid Bahramy (previously known as Fareed Bahrami) (Applicant) Medical Council of NSW (Respondent) Representation: Bahramy (Applicant in person) Crown Solicitor's Office (Respondent0 File Number(s): 1420083 Publication restriction: A non-publication order applies in respect of patients named in Complaint made under the Medical Practice Act 1992 dated 31 October 2002 reasons for decision What the Tribunal decided 1On 16 October 2014 the NSW Civil and Administrative Tribunal (the Tribunal) dismissed an application by Mr Farid Bahramy (the applicant) made under s 163A of the Health Practitioner (Regulation ) National Law No 86a (the National Law) to be re-instated as a registered medical practitioner. 2The Tribunal further ordered that the applicant is precluded from making any further application for re-instatement for a period of two years from the date of these orders. 3The Tribunal ordered that the applicant pay the costs of the Medical Council of New South Wales (the Council) as agreed and failing agreement granted liberty to restore before the Tribunal for assessment. 4On 10 July 2014 the Tribunal made an order under Schedule 5D cl 7 of the National Law restricting publication of the patients named in a complaint made under the Medical Practice Act 1992 (NSW) (repealed) on 31 October 2002. 5Below are the Tribunal's reasons for the orders made. Introduction 6These proceedings are to determine whether the applicant, who was formerly a registered medical practitioner, should be restored to the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) in conjunction with the Medical Board of Australia. The gravamen of the proceedings is whether or not the applicant has demonstrated he is now a person of good character and fit to be a medical practitioner. He was de-registered in 2008 and has not practised since that date. 7The applicant is a 50 year old man. He was born in Iran in 1964, and as a member of the Baha'i faith, escaped persecution in that country fleeing as a refugee to Pakistan. He was re-settled in New Zealand where he obtained his medical qualifications graduating in 1995. He moved to Australia where he became registered in 1996 and thereafter worked in a number of hospitals in Perth, Brisbane and rural NSW. 8The applicant wished to become a specialist Ophthalmologist and sought admission to training in that speciality from 1996. He continues in his wish to pursue this speciality. 9A complaint in respect of the applicant's inappropriate sexual conduct with two women patients came before the former Medical Tribunal of NSW (the Medical Tribunal) for hearing in 2003. On 10 September 2003, that Tribunal found complaints of unsatisfactory professional conduct and professional misconduct proved. Subsequently, conditions were imposed on the practitioner's registration. 10The practitioner continued to practise, subject to conditions, until 2008. A further complaint against the applicant was filed in the Medical Tribunal in March 2008 asserting the applicant was guilty of unsatisfactory professional conduct and professional misconduct, and that he was not of good character. The complaint asserted the practitioner had falsified a copy of his registration card, and provided the falsified document to the Royal Australian and New Zealand College of Ophthalmologists (the College) to support his application for registration with the College as a pre-requisite to engage in ophthalmology training. The complaints were established, and in June 2008, the Medical Tribunal made an order cancelling the registration of the applicant as a medical practitioner. The Medical Tribunal further ordered that the practitioner could not apply for re-instatement of his registration for a period of three years. 11In July 2013 the applicant brought proceedings for re-instatement to the register in the Medical Tribunal. He subsequently informed the presiding Judge at a directions hearing in November 2013 he did not wish to pursue his application. However, he changed his mind, and on 19 December 2013 Elkaim DCJ restored his application and stood the matter over for further directions on 17 April 2014. The matter thereafter proceeded in the Health Practitioner Division List in this Tribunal and was heard before us on 9 and 10 July 2014. As the applicant was self-represented, and felt he could not properly make appropriate oral submissions at the conclusion of the evidence, we afforded him the opportunity to make written submissions. To assist him formulate his submissions Ms Lowson, counsel for the Medical Council of NSW, (the Council) agreed to file her submissions before those of the applicant. Is this application affecting by the decision in Health Care Complaints Commission v Do 12The matter was re-listed on the Tribunal's own motion to afford the parties the opportunity to provide written submissions to the Tribunal following publication of the decision of the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA307. Written submissions were received from the Council on 30 September 2014. The applicant indicated at the re-listing that he did not seek to put any further submissions before the Tribunal. However, on 3 October 2014, the Tribunal received further written submissions from him. Those submissions do not address the question of whether a successful re-instatement application is a pre-requisite to him again applying for registration. 13In her helpful submissions on behalf of the Council Ms Lowson referred to the provisions of the National Law including s 149C (5) and noted that as Ms Do was not registered at the time the Medical Tribunal conducted its inquiry, that it could only determine to disqualify her under s 149C(4) 14At [6] Ms Lowson submitted: Effluxion of the time, or fulfilment of conditions, will have the effect that the person is no longer disqualified. If they are no longer disqualified they are no longer subject to a relevant order and could not seek a review under s163A 15However, Ms Lowson acknowledged that a practitioner could, during the operative period of a disqualification order, seek a review under s 163A. 16The submissions at [10] note that the applicant was deregistered pursuant to s 64(2) of the repealed Act. Ms Lowson also pointed out that the language in s 92 of the repealed Act did not contemplate "that a person whose suspension period has ended would apply for a review order under s 92". 17Ms Lowson directed the Tribunal's attention to Meagher JA's reference to s 52 noting: Although the language of s 52 does not entirely reflect the language of cancellation and suspension, it is reasonably open to conclude that 'the applicant's position of being deregistered under the repealed Act has the effect that (i) He is not a suitable person to hold general registration; (ii) He is disqualified from being registered in the health profession unless and until he obtains a review order' 18The legislation, including the transitional provisions, and exclusive NSW provisions and their juxtaposition to provisions which apply nationally is complex and potentially confusing. It is relevant to note that s 64 of the repealed Act used the word "deregistration" rather than the language in the National Law namely "cancel", but those terms are broadly analogous. It is also relevant to note that the repealed Act contained a specific provision (s 14) that provided where a person had been de-registered that person could only again apply for registration "on a review under Division 3 of Part 6" of the order de-registering the person. No equivalent provision to s 14 is found in the National Law. 19Thus, it is clear that the provisions in the repealed Act required a de-registered medical practitioner to seek a review of the order that cancelled his or her registration to regain registration. There was no requirement, as is presently the case with the national scheme, to apply for registration to a National Board. The transitional provisions of the National Law (s287 and 292) are not exclusive NSW provisions. However, the provisions have the effect that a decision made under the repealed Act continues as if it had been made under the National Law. 20It must also be borne in mind that NSW is a co-regulatory jurisdiction. NSW did not embrace the national model first enacted in Queensland and adopted in other States and Territories, but enacted a number of unique NSW provisions including, in particular, Part 8 (Health, performance and conduct). (see Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)). The review provisions are found in Division 8 of Part 8 and are unique to NSW. But s 52 is not an exclusive NSW provision. Rather it is a provision which has application outside NSW, and provides the criterion for registration in other jurisdictions as well as NSW. The section does, by the incorporation of the words "or a law of a co-regulatory jurisdiction" in s 52(1) (d), recognise the existence of specific NSW provisions. 21While Meagher JA's discussion about Ms Do re-applying for registration once her period of disqualification has elapsed are obiter, his Honour's comments are serious and of significance. The Tribunal is cognisant of the comments of the High Court in Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; 81 ALJR 1107 at [134] about the recognition by a lower court or tribunal of serious obiter statements in considering his Honour's discussion. 22It may be argued that there is some ambiguity in Meagher JA's comments about what is meant by an "operative order". However, this Tribunal finds that the reasoning in Health Care Complaints Commission v Do that a practitioner, who was not registered at the date of a Tribunal's orders, and in respect of whom a disqualifying period has elapsed, need not apply for a re-instatement order, has no application in the facts of this case. Here, there is an order, which has cancelled the applicant's registration. The effect of that order precludes him from practising. That is, there is, as described in [48] in Health Care Complaints Commission v Do, an order which is still operative. That order may be reviewed under s 163A and a re-instatement order made under s 163B. 23In reaching the conclusion set out above the Tribunal has taken the following matters into consideration. First, the legislature specifically included review provisions in Part 8. Read in isolation, it may be argued that s 52 does not, on its face, preclude an applicant in NSW, whose registration has been cancelled, from seeking to be re-registered by a National Board without a re-instatement order. However, the Tribunal's conclusion that a re-instatement order is a pre-requisite to the applicant again applying to the National Board for consideration of eligibility for registration is re-enforced by the explicit terms of s 163 (1) (c). If s 52 alone provides the avenue for re-registration for a NSW applicant, then s 163B (1) (c) and the definition in s 163B (3) would be otiose.. 24If this Tribunal's interpretation of the relevant provisions of the National law is incorrect, it is clear that the applicant has, as is provided in the National Law, exercised his discretionary right to apply under s 163A for a re-instatement order. As the inquiry under s 163B has been conducted, and the decision of the Tribunal was reserved at the time of publication of Health Care Complaints Commission v Do, to complete the inquiry by publication of reasons and the making of orders is in accordance with the principles in both s 3 of the Civil and Administrative Tribunal Act and Schedule 5D cl 11 of the National Law. The parties' submissions 25It is the applicant's contention that he has not engaged in any "illegal or fraudulent activities" since his name was removed from the register, nor has he been subject of any complaints to "the authorities". He submits that he has done his best to re-educate himself regarding the issues which led to his de-registration. 26It is the practitioner's assertion that "overall he now has a significantly better understanding of the expectations of society, other professional bodies, and the medical profession, from a typical medical practitioner." He further submits that he has gained wisdom from the punitive experiences he has suffered in removal of his name from the register, that he has learnt "to assess situations promptly, and adopt protective measures, which without causing harm to any parties, would protect him from any unwitting and inadvertent implications and complications" (supplementary written submissions at [vii]). 27The applicant advised the Tribunal that, whilst he seeks unrestricted registration, he would not oppose an order which re-instates his registration, but subject to conditions, provided he has full registration by February 2015 [transcript 10 July 2014 p 136]. This is because the applicant wishes to commence his specialist ophthalmology training later in 2015. 28By contrast, the Council opposes the applicant's application. It is submitted by Ms Lowson that the applicant has failed to discharge the heavy onus he bears to demonstrate he is now of good character, and should be restored to the register. Rather, she submits that the applicant's conduct of, and involvement in, these proceedings "demonstrates the continued existence of the personality traits that contributed to the findings of the former Tribunal in 2008 that he was not of good character". 29In the event that the Tribunal is minded to permit the applicant's application for re-registration, Ms Lowson submits his registration should be subject to rigorous practice and health conditions. Proposed conditions are annexed to Ms Lowson's written submissions provided to the Tribunal on 25 July 2014. Transitional Provisions 30As a consequence of the enactment of the Civil and Administrative Tribunal Act, Schedule 1, Division 2, cl 3 the Medical Tribunal was abolished effective on 31 December 2013. The Medical Tribunal's functions were taken over by the Tribunal. Pursuant to the transitional provisions in the Civil and Administrative Tribunal Act (see Schedule 1, Div 3 Sub-Div 2, cl 7 (2) and (3)) the matter is now in the Tribunal for finalisation. Clause 7 (3) (b) provides the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had the Civil and Administrative Tribunal Act and the relevant amending Acts not been enacted, continue to apply. As a consequence the law to be applied is the National Law in force up to 31 December 2013. Background 31The following matters, unless noted by us to be an assertion, are found to be matters established to the requisite civil standard. 32The applicant was born on 3 March 1964. 33In 1995 he obtained the qualifications MB.BS from the University of Otago, New Zealand. 34On 4 February 1998 the applicant was first registered with the then NSW Medical Board. 35Complaints of indecent assault were reported by two female patients to police (in April 2001 and September 2001). 36On 23 October 2001 following an inquiry under the now repealed Medical Practice Act 1992 (NSW) (the repealed Act) the applicant was suspended from practice for a period of 8 weeks. The suspension was continued for a further 8 weeks on 19 December 2001, but revoked by order of Blanch CJ on 21 December 2001. 37The applicant was charged with, and pleaded guilty to, two counts of assault with act of indecency in the District Court of NSW. On 3 May 2002 he was sentenced by McGuire DCJ. Convictions were recorded and he was placed on bond to be of good behaviour for a period of three years and required to serve 500 hours of community service. 38On 9 May 2002, following a further inquiry under s 66K of the repealed Act, conditions were placed on the practitioner's registration. The conditions were later reviewed but remained unchanged. 39On 18 February 2003 the delegates of the Medical Board approved the applicant's employment at a male impotency clinic. 40On 10 September 2003 the Medical Tribunal, having conducted an inquiry into a complaint against the applicant, found complaints of unsatisfactory professional conduct and professional misconduct (which had been admitted by the practitioner) proved. Notwithstanding the finding of professional misconduct, the Medical Tribunal determined that the applicant should not be suspended or his registration cancelled. Rather the Medical Tribunal indicated it proposed to reprimand the applicant and placed conditions on his registration. Orders of the Medical Tribunal imposing conditions on the applicant's registration were subsequently made on 23 December 2003. The Medical Tribunal's orders included an order that the conditions could not be reviewed for a period of three years. 41In 2005 the applicant applied to the then Administrative Decisions Tribunal ("the ADT") seeking dispensation from the provisions of the Child Protection (Prohibited Employment) Act 1998 (NSW) to enable him work with children. The ADT made the order sought subject to the practitioner's compliance with conditions imposed by the Medical Board. The applicant did not inform the ADT that he had forged his registration card so that card showed he had general registration, not conditional registration, and forwarded it to the College. However, on 21 October 2008, the applicant wrote to the Registrar of the ADT advising that he had been "grossly untruthful with the Administrative Decisions Tribunal in 2005 and had the Tribunal been made aware of my previous wrong doings, it would have taken a different course of action". 42On 14 June 2006 a change of name certificate was issued by the Registrar of Births, Marriages and Deaths, NSW in which the applicant's name was changed from Fareed Bahrami to Farid Bahramy. 43On 7 October 2008 the applicant was awarded a Graduate Diploma in Medicine (Ophthalmic Science) from the University of Sydney. 44On 11 December 2012 the applicant was awarded the degree of Master of Ethics and Legal Studies from Charles Sturt University. The applicant's academic transcript reveals he obtain credits for work previously completed including a high distinction in the subject "Ethics and Social Welfare" and a credit in "Legal and Ethical Issues in Hlth". 45On 2 February 2013 the applicant was awarded the degree of Master of Medical Statistics from the University of Newcastle. The applicant undertook both Masters degrees by correspondence. 46By letter dated 6 November 2013 the applicant wrote to the Crown Solicitor's office about the tax invoice he received from the College. He stated: Although the outcome would not have been different and I still would have been de-registered, as the nature of the acts per se warranted deregistration, in addition to other contributing factors, had this evidence been placed before the Tribunal in 2008, at least the media would not have made a presentation that the writer committed the fraudulent conduct to put himself in an advantageous position, and that it had been a pre-requisite to have unconditional registration to register with the College. 47Notwithstanding the applicant acknowledged in the letter the outcome of the Tribunal proceedings would not have been different if the tax invoice had been tendered, he criticised the conduct of both counsel appearing for the HCCC and representing him "deciding not to put this evidence before the Tribunal" and commented "This is most likely a good example of lawyer misconduct". He asserted the relevant receipt was in material produced under subpoena. 48The applicant wrote a further letter to the Crown Solicitor dated 13 November 2013 complaining about the conduct of the HCCC's senior counsel in the 2008 proceedings in cross examining him when he was aware of the invoice in the subpoenaed documents. 49After the applicant filed his application in these proceedings, an appointment was made by the Council for him to be assessed by Dr Michael Diamond (Dr Diamond) Consultant Psychiatrist on 11 October 2013. The applicant declined to attend the appointment, and Dr Diamond was then provided with five volumes of material relating to the former proceedings, including a number of expert medical reports. Dr Diamond prepared a report dated 31 October 2013 (the first report). 50Subsequently, the applicant agreed to see Dr Diamond, and he prepared a second report dated 11 March 2014 (the second report). The issues 51Although the Tribunal was supplied with voluminous material by the Council, the issues to be determined, although finely nuanced and of some complexity, were not numerous. We discern the following matters required determination: (1)has the applicant learnt from his past mistakes, and gained true insight into his behaviour; (2)does the applicant's behaviour since 2008 demonstrate reformation of his then identified character defects; (3)if the Tribunal finds the applicant should be re-registered is it necessary to impose conditions on his registration; and (4)what conditions would be appropriate. 52A subsidiary, but important consideration is the applicant's proposals for his return to practice, and the reality or otherwise of his proposed speciality training in ophthalmology. Relevant legal principles and the National Law 53It was accepted by the applicant that he bears the onus of proving he is a person of good character, and is presently qualified to be registered as registered medical practitioner. It was not in dispute that the standard of proof to be applied by the Tribunal in determining the applicant's application is the civil standard of proof, that is, on the balance of probabilities. Because of the nature of the jurisdiction, as set out in s 3 (2) (a) and s 3A of the National Law, is protective of the public, the Tribunal must be satisfied to a high level of probability that the applicant is "fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence". (see In Re Jason Martin [2010] NSWMT 13; Briginshaw v Briginshaw (1938) 60 CLR 336) In summary, the onus an applicant bears in a review applicable is a high onus. 54This application is brought under Division 7 of Part 8 of the National Law. Section 163A (1) provides a person may apply to the appropriate review body (in this case the Tribunal) for the review of a "relevant order". Section 163A (4) (b) defines a "relevant order" to be "an order that a person's registration as a registered health practitioner be cancelled". 55The Tribunal's powers on review relevant to this application are found in s163C. That section relevantly provides as follows: (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following-- (a) dismiss the application; ......... (c) make a reinstatement order; (3) A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if-- (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 56The Tribunal's obligations in conducting the inquiry for review of the earlier order are found in s 163B. That section provides: (1)A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2)The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3)In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. 57Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. The relevant parts of s 3, for the purposes of this hearing, are as follows: (2) The objectives of the national registration and accreditation scheme are-- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and ... (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; ... (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 58As in all applications in which the Tribunal in NSW is involved under the National Law, the guiding principle and object in s3A applies. That section provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 59Although determined prior to the introduction of the National Law, principles dealing with re-registration applications under repealed legislation remain relevant and apposite to this application. Those principles are not in doubt and have been discussed in many decisions of courts, including the High Court of Australia, intermediate appellate courts, as well as tribunals. (see Re Lenehan; [1948] HCA 45; 77 CLR 403; per Latham CJ, Dixon and Williams JJ at [33] Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488; Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Zaidi v HCCC [1998] NSWSC 335 per Mason P at 15; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637).) 60In In Re Jason Martin the Medical Tribunal explained the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction being exercised is for the protection of the public. 61Although decided in the context of lawyers who have been removed from the roll of practitioners, the principles enunciated in such cases are generally apposite to these proceedings. The High Court has made it plain that the power to re-instate should "be exercised with great caution and only upon solid and substantial grounds". However a court (or a tribunal) should exercise its discretion having regard to the facts of each case (see Lenehan). 62While found in a dissenting judgment, the remarks of Kirby P (as his Honour then was) in Dawson have been adopted and applied in other decisions in the Medical Tribunal and other health practitioner disciplinary tribunals. His Honour explained: There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance. 63In In Re Jason Martin the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner will behave in the future and remarked that "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant". The Tribunal explained "in making that assessment [the tribunal] may draw inferences from what has happened in the past and in particular, what led to his [her] being removed from the Register". 64When considering issue of "good character" the principles set out in HCCC v Karalasingham [2007] NSWCA in the reasons of Basten JA are instructive. His Honour, at [45] explained the words " 'not of good character' do not bear a special or technical meaning. " His Honour went on to discuss situations, by reference to authority, where personal conduct, as distinct from professional misconduct, may be relevant to the question of a practitioner's good character. His Honour cited, with apparent approval, the factors set out in the decision of McBride v Walton (unreported NSWCA 15 July 1994) as follows: 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 practise medicine, one must consider: (a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's 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. 65We propose to examine the evidence and make findings by reference to the elements of character identified in McBride v Walton to address the issues identified in earlier in these reasons. The applicant's submissions and evidence 66The applicant lodged with the Tribunal prior to the hearing a document described as "Outline of Submissions by the applicant". He submits that prior to January 2001 he was a person who enjoyed a good reputation, and that, on 12 January 2001, he made "a fatal error" as a result of being "highly despondent and highly sexually frustrated". He goes on to explain his subsequent actions of fraudulent and criminal conduct as attributable to the shame he experienced as a result of his conduct in 2001. 67The applicant submits that he has taken steps to educate himself "in why acting ethically by members of society is important for the society to function well. And, why for the medical professionals in particular, any unethical conduct is unacceptable". He goes on to note the consequence for a medical practitioner of behaving unethically will result in punitive measures. 68At paragraph [7] of his submissions the applicant states: The applicant has learnt that a medical practitioner has to be upright, transparent, and absolutely trustworthy in all his dealings with various sectors of society. That no wrong act is acceptable, regardless of the excuse and the explanation put forward for having committed the act. 69Although the presiding member of the Tribunal drew the applicant's attention to the fact that the National Law requires the Tribunal to examine the applicant's fitness at the date of the hearing to be re-registered, in both his written and oral evidence the applicant focused on past issues and grievances. At [19] in his statement he referred to the fact that he could have obtained registration with the College in 2003 and 2005 notwithstanding his conditional registration. The applicant did obtain registration with the College in March 2006 notwithstanding his conditional registration and was provided with a tax receipt. The applicant noted "Furthermore, had this evidence been presented to the 2008 Tribunal, the applicant might have been viewed in a less dim light by the Tribunal". 70In his oral evidence before us the applicant cast blame on counsel who appeared for him at the 2008 hearing for failing to tender the receipt obtained from the College, and for the reliance placed by his counsel on the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589, rather than those relating to double jeopardy, in challenging one particular of the complaint. He also referred to the fact that it was a professional member of the Tribunal, not his counsel, who drew attention to the fact the applicant had written to the Prince of Wales Hospital, where he was seeking an ophthalmology training position, advising that his registration was subject to conditions. 71The applicant also said in his oral evidence that "that I still had done the wrong thing, signing a statutory declaration" (Transcript 9 July 2014 p 11). He explained that: My wrong doings arose from ignorance and I educated myself in the areas that I did and I needed and I was deficient. So I believe it was deficiency in knowledge and that is why I did all those studies. That I have done those studies and considering the expenses that I've that, I don't believe I would do anything like what I did again (Transcript 9 July 2014 p 13) 72At [25] of his submissions the applicant compared and contrasted the difficulties he experienced as a refugee, and the effect on his life of losing his registration, explaining he believed "that the psychological and emotional impacts upon him during the past few years have been quite profound; in some respects worse than the earlier experiences". 73The applicant provided details of the frugal life-style he has lived since de-registration, and his regret at not being able to continue to financially assist his parents who remain living in Iran. 74At [28] the applicant stated he had been seeking employment unsuccessfully since he completed his second Master's degree in May 2013 and is awaiting eligibility for Newstart benefits. 75The practitioner referred to consulting Dr Eric Fisher, (Dr Fisher) a general practitioner seeking advice and guidance concerning this application for the six weeks prior to filing his submissions. 76The applicant provided as annexures to his statement details of continuing professional studies undertaken by him since 2008. He said, in addition to his formal post-graduate studies, he regularly read various medical journals, including the Medical Journal of Australia, had attended meetings, conferences of the College, some general educational sessions run by the Central Sydney General Practice Network in 2010, completed courses including courses in academic writing, and received daily emails from the Australian Doctor. The applicant's evidence about his educational activities post 2008 was not subject to any challenge and we accept it as accurate. The applicant's referees 77The applicant relied on references from his dentist, Dr Joseph Klar, (Dr Klar) his General Practitioner, Dr Graham Chin, (Dr Chin), his former employer's Chief Executive Officer, Mr Jack Vaisman, (Mr Vaisman) and his accountant, Ms Kamalah Chandrasekhar (Ms Chandrasekhar). The Tribunal heard evidence from Dr Klar during the hearing by telephone. Dr Chin did not make himself available for cross-examination. Ms Chandrasekhar and Mr Vaisman were not required for cross-examination. 78Dr Klar said in answer to questions posed to him in cross-examination that he had a conversation with the applicant who told him he was de-registered and that there had been a finding he was not of good character. He explained his impression of the applicant was that he was truthful and sincere. But he said his association with the applicant was a professional one as his treating dentist, rather than a private relationship. He explained that the applicant had told him he had learnt a big lesson because of his de-registration and was a changed man. Dr Klar stressed he could only report his impressions at the time of his consultations with the applicant, and that "he came to me for dental treatment and I only know him from that side. I don't know his private side or any other part" (Transcript 9 July 2014 p 48). 79We accept that the applicant did speak to Dr Klar during the regular periods he saw him for dental care. We also accept the applicant was candid in telling Dr Klar that he was de-registered and the shame he felt as a result of his actions. But there are considerable limits to the weight which we can place on this reference. Dr Klar's only association with the applicant is one of a treating professional, and his knowledge of the applicant is confined to conversations during dental appointments. 80Dr Chin, who did not make himself available for cross-examination, explained in his reference that he has seen the applicant as his general practitioner since 2008, usually bi-annually. Although Dr Chin did not refer to being informed of the findings of the two previous Tribunals, he did avert to discussion with the applicant about the role of doctors in society. We accept that the practitioner has engaged in some discussion of ethical issues with Dr Chin. But, as with Dr Klar, he does not possess any personal information about the applicant other than the applicant's own reporting during professional consultations. As we explained to the applicant during the hearing, we can give little weight to Dr Chin's reference in light of his unavailability for cross-examination. 81Mr Vaisman reference has limited relevance to this application. He has had no real contact with the applicant since 2008 when he ceased working at the Advanced Medical Institute (the male impotency clinic). He explained that, during the period the applicant was employed at the clinic, the applicant was "a most conscientious and caring doctor". 82Ms Chandrasekhar's reference is of little assistance to us. She has prepared the applicant's tax returns since 2002. Her knowledge of the applicant is limited to professional consultations for accounting purposes. We accept that the applicant has told her about the psychological impact of his deregistration. 83We found considerable merit in the submission made by Ms Lowson that the applicant failed to adduce any evidence from professional colleagues, his university supervisors, or his proposed supervisor of ongoing research, which could have supported his application. We further accept there is weight to her submission that the applicant should have adduced evidence from Dr Fisher, or a suitably qualified expert psychiatrist or psychologist, to satisfy the onus he bears in these proceedings. The underlying qualities of character shown by previous conduct and misconduct 84While we are not, in accordance with the National Law, re-examining the applicant's conduct at the time of the previous hearings we have regard to the findings of those Tribunals to assess whether or not deficiencies in the applicant's character, particularly those identified by the 2008 Medical Tribunal have been remedied. In so doing we are conscious of the comments of the Court of Appeal in Litchfield where their Honours said: In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolas; Medical Practitioners Act (1966) 67 SR (NSW) 448 at 611; 84 WN (NSW) (Pt 2) 275 at 286: '....reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.' 85In 2003 the Medical Tribunal's primary focus in determining whether the applicant should be de-registered was to assess the risk that the applicant may, in the future, engage in further inappropriate sexual behaviour with female patients. In its summary and findings the Medical Tribunal, although noting some concerns about the applicant's personality trait of "single mindedness", ultimately concluded it was satisfied the practitioner would not re-offend. The Tribunal, however, was of the view that ongoing conditions on the applicant's registration were essential. At paragraphs [3] to [4] under the heading "Summary and Findings" it is recorded: The practitioner's misconduct was of a very serious nature. It demonstrated a disregard for the rights of the patients involved to proper and ethical medical treatment. The practitioner conceded that he ignored signs of distress, particularly in the case of Patient B. The practitioner conceded that his conduct had involved elements of non-violent aggression. The practitioner's response to the misconduct reported by Patient A was blatantly dishonest and calculated to attack the character of Patient A. 86In the proceedings before the Medical Tribunal in 2008 complaint 2 of the complaint asserted that the practitioner was "not of good character". At [70] the Medical Tribunal found that complaint proved. In doing so it recorded at [69]: While 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 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. 87In assessing the applicant's character we first refer to his oral evidence given in cross-examination. The applicant's answers throw light on his understanding of ethical responsibilities post the 2008 proceedings, and expose his current attitudes and character attributes. We will thereafter refer to the evidence of Dr Diamond, the expert retained by the Council. 88At the commencement of cross-examination of the applicant by Ms Lowson he was asked about the findings of the Tribunal in 2008. This was unsurprising as the applicant in his material in support of his application drew attention to his complaints about the conduct of the 2008 proceedings, and professionals with whom he has been involved including the counsel who appeared before the Medical Tribunal, and Board appointed psychiatrists. Material produced under summons from the University of Sydney and Charles Sturt University was revealing of the applicant's attitude to university personnel. 89The applicant initially said he was unable to answer the question whether or not he accepted the Medical Tribunal found he was not a person of good character. He went on to say that this was because the Tribunal did not have all the facts before them, and the precedent used in the proceedings was not the right one. 90The basis upon which the applicant made his claim of failure to provide correct evidence was the failure of counsel appearing at the hearing to provide to the Tribunal from the subpoenaed material the tax receipt for registration with the College in 2006 when the College was advised his registration was conditional. 91The applicant asserted the actions which led to the cancellation of his registration were "ignorance and naivity [sic]"... He attributed his de-registration to "one fatal error" (the first sexual assault). When questioned about the second sexual assault he explained it arose because he had "false confidence" that nothing was going to happen, and that he did not know about ethics and the law. (Transcript 9 July 2014 p 14). He went on to say that he should have been instructed by the delegates of the Board or perhaps two or three of the psychiatrists he saw after the first complaint about ethical issues. 92When the applicant was questioned about the falsification of his medical registration he said he did not think at the time it would have an effect on his medical career and that his actions were ones taken in ignorance and shame (because of the earlier findings of his inappropriate sexual behaviour). However, he did concede that his conduct was wrong (Transcript 9 July 2014 page 16). 93The applicant adamantly denied that his action in providing the falsified registration card to the College was motivated by his desire to get into the ophthalmology training scheme. He asserted that the earlier Tribunal's reasoning at [47] disclosed the underlying error. He also complained about the Tribunal's reasoning at [56]. The applicant, however, acknowledged to the presiding judicial officer that he had not filed an appeal against the Tribunal's decision and explained that he had not done so on legal advice. 94We note that [56] of the Medical Tribunal's reasons is not a finding. Rather the paragraph sets out the submissions made to the Tribunal by the HCCC. Given the applicant's post graduate studies in law, and his clear superior intelligence, it was of concern to us that he read this paragraph as a finding of the Tribunal. 95Further at [47] the Tribunal focused on the discrepancy between the applicant's statement that he had forged the registration certificate because of the "dark stain on his past" (the sexual assaults) and subsequent evidence that he did not "want to improve his chances by deliberately misinforming the college of his conditional registration". The paragraph discusses not only the misinforming of the College, but goes on to record "In 2005 he was certainly made aware that unconditional registration was an essential criteria as a Registrar in Ophthalmology at the Prince of Wales Hospital". The Tribunal referred to the College informing the applicant in 2006 "of the need for full registration before acceptance at the college". 96We accept that the applicant did obtain registration with the College in March 2006 when he properly declared his conditional registration status, and it was after the College became aware of the falsified records in 2006 that the registration requirement with the College changed. The applicant had clearly placed false information before the College in 2003 and again 2005. In 2006, while he used a correct registration card, the applicant completed a form in which he wrote N/A in response to the question "if applicable, list any restrictions that apply to your registration" (reasons of the former Tribunal at [30]. The conclusions reached by the Tribunal in [48] encompass all the evidence before it. 97We refer to this aspect of the 2008 Medical Tribunal's reasoning, not because we are examining the correctness or otherwise of the Tribunal's findings, but because the evidence is revealing of the applicant's fixation on persons or institutions he perceives have treated him unfairly or harshly. His attitude to the 2008 Medical Tribunal proceedings overlooks or seeks to minimise or rationalise the significant adverse findings about his actions and character. 98As we will discuss more fully when considering Dr Diamond's evidence, the applicant's attitude to his counsel's conduct of his case, his narrow and selective reading of the former Medical Tribunal's reasons, and fixation on the question of the tax invoice, demonstrated cogently his propensity to blame others for his past actions, or failures. His attitude demonstrates a lack of genuine insight to his own wrongful actions. 99The applicant was cross-examined at some length about his correspondence with the University of Sydney when he was undertaking post-graduate studies in ophthalmology. He acknowledged he had written emails in which he criticised his supervisor and asserted markers of his thesis exhibited bias towards him. He explained that this was at a period when he was "really upset" having his registration cancelled, but denied he was attacking the professionalism of the markers. 100The final area of cross examination of the applicant was directed to assertions he made to the Charles Sturt University to gain extensions for work due for the Master's course. He grudgingly accepted that he had lied to the university, initially referring to his statements as "an exaggeration" by claiming a family member had died in about September 2009, that he was required in November 2009 to fly to Brisbane to organise his partner's father's funeral, and that in 2010 he had told the university his illness caused problems with his work and study in circumstances where he had not worked since 2008. The applicant acknowledged that he had misled the university by referring to his work (Transcript 9 July 2014 p 73). 101The applicant did not have a family member who died in September 2009 rather the applicant acknowledged the death was that of a close friend, and that he knew the university would not consider the death of a friend, rather than a family member, an adequate excuse for lateness of his assignments. He also conceded, in accordance with earlier evidence given by him, that he did not have a partner between 2008 and 2010, that the person referred to as his partner was a Persian woman friend with whom he has had a sexual relationship but who was not his "partner". He also conceded that he did not have to organise the funeral, but rather attended as a gesture of respect. As noted above, the applicant referred to his conduct as an exaggeration rather than a lie, and only reluctantly agreed when pressed by Ms Lowson, that he had been untruthful in dealing with university authorities. 102On the second day of the hearing the applicant sought to "retract" answers he had given to questions posed to him in cross-examination the previous day on the asserted basis of privilege against self-incrimination. He sought to draw the Tribunal's attention to authorities and articles on inappropriate cross-examination, not directed to the issue of self-incrimination, but rather directed to questioning "deliberately employed to defeat the truth". 103When Ms Lowson submitted that her cross-examination had been entirely proper, and consistent with her ethical obligations and that of the Crown as a model litigant, the practitioner asserted "it was not related to Ms Lowson's cross-examination or anything like that". However, when Ms Lowson returned to this topic later on the second day of the hearing the applicant explained he had raised the authorities and articles saying "And I objected to some aspect of the cross-examination yesterday". When it was put to him that he felt that the cross-examination had fallen into the categories of "unfairness", or designed to defeat the truth, the applicant replied "I just felt like, you know, some of the questions were very harsh". 104Ms Lowson in her submissions refers to the applicant's stance in relation to the cross-examination on two bases. First, she asserts that the applicant's failure, if it is a failure, "to appreciate the serious nature of allegations of this sort" demonstrates "a potentially dangerous (in a professional sense) combination of ignorance on the one hand, and lack of restraint on the other". Alternatively, she submits the applicant was aware it was an improper attack on the Council, and that he made it "without regard to whether it was properly made". Ms Lowson submits the applicant's conduct demonstrates a propensity to engage in conduct such as his correspondence with the Crown Solicitor's Office asserting bias and prejudice in Dr Diamond's first report, allegations of bias against the reviewers of his treatise, and counsel in the 2008 proceedings. 105Ms Lowson submits that the applicant's unwillingness to acknowledge he was being critical of the Council, and suggesting that it was "the authors of the quotes who said these things" demonstrates a form of "dissembling and is inconsistent with the applicant having insight into his character deficiencies, and certainly reflects an absence of reform of character". Dr Diamond's evidence and assessment of the applicant's character 106Dr Diamond is a highly qualified consultant psychiatrist. He was retained by the Council to provide expert evidence in these proceedings. He was present, without objection by the practitioner, during the whole of the hearing. Thus, Dr Diamond had the opportunity before he gave evidence not only to express his opinion based on his reports and interview with the applicant, but was able to comment on aspects of the applicant's answers to questions posed to him in cross-examination. 107Dr Diamond was not cross-examined by the applicant until the final day of the hearing. As the applicant raised concerns there were inaccuracies in Dr Diamond's report he was advised on the first day of the hearing that he could challenge any aspect of Dr Diamond's reports in cross-examination. The applicant's cross examination of Dr Diamond was limited, and directed to minor factual matters in his reports. Dr Diamond made appropriate concessions about minor matters in his second report. He was an impressive witness. 108We will discuss Dr Diamond's evidence when considering the following identified issues. Relevant factors going to the issue of good character and conduct as identified in McBride v Walton 109We propose to deal with these factors by reference to the applicant's conduct and attitudes displayed in respect of his dealings with the tertiary institutions in which he was enrolled. We also examine his attitude to, and risk of further inappropriate sexual conduct, as well as our assessment of his personality traits as those traits affects his fitness to practise, and his insight into his past offences. We will then discuss evidence relating to his change of name, and the steps the practitioner has taken post 2008, including completion of two Masters degrees with particular reference to his study of ethics, to support this application. The practitioner's correspondence with the University of Sydney and Charles Sturt University 110The practitioner initially objected to material produced under summons from the University of Sydney and Charles Sturt University being produced in these proceedings. We have already discussed the cross-examination of the applicant concerning representations made to the two universities which were untrue. 111We have also taken into account the applicant's criticism of his supervisor at the University of Sydney, Dr Paul Beaumont, (Dr Beamont), and his complaints about the reviewers of his treatise. He continued that criticism in his answers given in cross-examination. When asked whether it was his lack of statistical expertise which caused his failure in his treatise, the applicant responded saying his present knowledge would have empowered him "to let's say compensate for other inadequacies and incompetency" implying ongoing criticism of Dr Beaumont. 112The applicant did, however, candidly acknowledge that the university had contacted him complaining that he had plagiarised documents, and agreed that he had done so. We accept that no significant weight was sought to be placed on this aspect of the applicant's evidence and it is likely that his actions at the time were based on ignorance of the need to properly attribute authorship. 113The applicant's conduct in respect of Dr Beaumont and other professionals disclosed in the records produced from the universities, and which became exhibits before us, demonstrates a frequently repeated pattern of conduct in which the applicant seeks to "shift the blame" from himself to others. It was significant the applicant maintained a rigid view, notwithstanding Dr Diamond had signed the Expert Code of Conduct, that Dr Diamond, or any other expert, would not shift his or her opinion in oral evidence from the opinions expressed in a report or make appropriate concessions. 114The episodes of the applicant's conduct in which he seeks to shift the blame are carefully recorded in Dr Diamond's second report. They include blaming the failure of the police to contact him immediately after the first sexual assault for his reoffending with the second sexual assault victim, the conduct of barristers who appeared at the 2008 hearing which he attributes as resulting in adverse findings against him, that the Medical Board had acted against him because the Board did not like him, and criticism of the Board appointed psychiatrists. Assessment of risk of inappropriate sexual behaviour and attitude to sexual assault victims 115Dr Diamond, in his first report at page 29, opines that the risk of further sexual misconduct by the applicant is low. We accept Dr Diamond's opinion on this topic. Rather, he notes it is the applicant's propensity to offend in other ways, when prioritising his needs over the needs of others, which remains an issue. 116The applicant acknowledged in cross-examination that he had admitted to Dr Diamond, and recorded in his outline of submission at [15], that in respect of the sexual assault on patient A, he had identified from her records that, in the circumstances of a complaint, he was more likely to be believed than her. He acknowledged that this element of his conduct had not been disclosed in the 2003 proceedings. 117While we are not directly focused on the risk of further sexual abuse of patients by the applicant, his disclosure to Dr Diamond, and his concession before us of his deliberate targeting of Patient A discloses a disturbing aspect of the applicant's character. We also note that Dr Diamond opines in his second report at page 28 that, while the applicant has suffered significantly because of his actions, he is remorseful. However, Dr Diamond then, while noting the applicant has apologised to his victims, opines his deceptive conduct in altering the documents "does not convince me that the remorse that he has extends to the effect that his conduct has on other people". We agree with and accept Dr Diamond's assessment. It accords with our assessment of the applicant's attitude displayed in his evidence before us. We find he did not demonstrate any remorse about his targeting of Patient A. The applicant's personality traits 118The applicant's personality traits are a recurring theme in the two earlier Tribunal findings, and the expert reports. It is those very personality traits, and their effect on his fitness to be a registered medical practitioner, which became the central or determinative issue in these proceedings. 119It is accepted by Dr Diamond, and by us, that the applicant is a highly intelligent man who has overcome great adversity in the past. The very obsessive character traits and self-preservation ability which stood the applicant in good stead in his escape from Iran, survival in a refugee camp and his determination to qualify as a medical practitioner are now, in a different context, the subject of scrutiny. 120Dr Diamond's discussion of the applicant's personality traits is found in his second report at page 23 where he summarises the evidence of other psychiatrists on whom the practitioner attended including Dr Murray Wright and Dr Burkitt... Dr Diamond notes; Within the material however are many descriptions of his personality characteristics that on review of the full clinical record reveal aspects of his character very clearly. These include the obsessive personality traits that underpin his drive to achieve and goal of a career as an ophthalmologist. The material demonstrates the reliance on gaining information and formal qualifications as a way of proving credibility and suitability in the face of a failure to understand that information does not directly equate with wisdom, knowledge and insight. Dr Wright clearly identified these characteristics in his report of 2002. They have persisted. 121When asked to comment on the identification of character defects that contributed to the applicant's past misconduct, and whether or not he has, or could overcome these defects, Dr Diamond referred to the applicant's narcissistic traits "which refer to his sense of entitlement and exploitation of any situation that might give him a sense of having a right to special consideration, special recognition or special regard for his needs as opposed to consideration of the needs of others" 122Dr Diamond also opined: The expression of underlying personality traits that comprise the character defects that have caused him so much difficulty is evident to the present. This is not surprising since the character of an individual refers to persistent, identifiable aspects of their personality that are not likely to disappear. The possibility that attenuation of personality traits can occur with therapy, maturity or both, bears consideration. It is often the purpose behind long term therapy aimed at helping individuals with personality dysfunction to cope better in their lives. (second report page 27) 123When asked to comment on any other information relevant to the re-instatement application Dr Diamond explained: The Medical Tribunal of 2008 identified and described the reasons for their finding that the Applicant was deficient in his character. The character of a person arises from their underlying personality traits primarily but can be affected by the acquisition of knowledge, maturation and the development of appropriate insight into the conduct that leads to identification of character deficiency. The character of a person does not shift easily. Personality structure is pervasive and persistent in its form over the long term. The practitioner's insight into past mistakes and remorse 124We have already referred to Dr Diamond's view of the practitioner's lack of remorse for his victims, and our acceptance of his opinion. We accept that the applicant's actions have caused him suffering, loss of prestige, and income. He has been unable to support his parents in Iran or to tell them about his de-registration, and to that extent we accept he is remorseful. But our assessment of the applicant's evidence, particularly his single minded focus on the tax invoice, rather than a considered view of all his conduct in respect of the College, and those he involved in his falsification of documents lead us to concur with Dr Diamond's opinion on lack of insight into past mistakes and any appropriate remorse. The applicant's change of name 125While not of a matter which was extensively canvassed by Ms Lowson in her submissions, the practitioner was cross-examined about his actions in changing his name. 126We accept that he first changed his name in New Zealand for practical purposes. We also accept his evidence that after the 2003 proceedings his name and the findings of the Tribunal about his sexual assault could be obtained by a Google search. 127It was not in dispute that although the applicant changed his name in 2006 from Fareed Bahrami to Farid Bahramy he did not commence, in a consistent manner, to use his new name until after the 2008 proceedings. 128The applicant was cross-examined about why he had delayed the use of his new name and it was suggested to him that he delayed in using the new name until after the 2008 proceedings to avoid publicity about those proceedings. While the applicant did not inform the Medical Board about his change of name, we accept his explanation that whilst he was not registered he did not realise the necessity to notify the Board about that change. We also note his inconsistent use of the new name, or combination of his old and new names in correspondence with the university. 129While the applicant may have thought a change of name would disguise or disassociate him from the 2003 findings and subsequent publicity, we are not satisfied his only motive in not adopting the new name in 2008 was for the sole purpose suggested by Ms Lowson. We therefore do not place significant weight on this evidence. Steps taken by the practitioner since 2008 130We have earlier in these reasons summarised the applicant's evidence about the education he has undertaken since these proceedings. We also note that, before the 2008 proceedings, he undertook an ethics course at the St James Ethics Centre, and enrolled in a course of ethics at Monash University. 131Dr Diamond opined that while the applicant acknowledged his actions in falsification of documents was wrong and he had engaged in studies of ethics, this did not address underlying personality issues. 132Dr Diamond expressed his opinion on this issue in his oral evidence as follows: A. Well I think for people who are absolutely and totally ignorant of any understanding of an ethical position or a code of ethics or a code of conduct within a professional domain clearly the first step in that process is to acquire that information and to acquire that information it can go well beyond simply reading it in printed form but it really needs to be thought about, it needs some professional collegiate activity that can allow for questioning, the knowledge base can be enhanced by further dissertation or maybe even in some ethics courses there's an opportunity for seminars, the submission of papers or examination questions to build that knowledge base into a much more comprehensive one than the simple factual material that is provided. Once that has been achieved, and that's not always straightforward or rapid, but once that's been achieved there are multiple layers of understanding of an ethical position that emerge in the course of professional practice and it's that process that occurs in a professional pathway and once that knowledge is known that allows people to really clearly see what the ethical issues are that arise in the course of practice, what the dilemmas are, what the complexities are, where the guidelines are clear, where the guidelines are not clear and from there to be able to reach an ethical position or to understand a code of ethics and apply it with something more than just knowledge but also with some wisdom, some experience and some ability to practice professionally in a competent and ethical manner. So it really does require quite a considerable process that goes well beyond simply studying a course of ethics. 133Following this general explanation Dr Diamond explained once ethical knowledge had been obtained that "there are multiple layers of understanding of an ethical position that emerge in general practice". He went on to explain that "all elements of practice carry with them a degree of ethical consideration but most of that occurs as a second nature to individuals who understand the responsibilities they carry within their profession". Dr Diamond agreed with the proposition put to him by Ms Lowson that the "second nature" was something missing from the applicant's make up. 134Our assessment of the applicant's lack of insight, his behaviour in respect of professionals, including academics, psychiatrists and barristers, post 2008 and his attempts to minimise his false evidence to the universities to gain extensions of time for assignments cogently demonstrates that while he has an academic understanding of ethical issues, that academic understanding is not translated into his day to day conduct. Conclusions re-instatement 135Dr Diamond in his second report described the applicant's presentation at interview. He noted that he was well dressed, and maintained a pleasant demeanour and maintained composure throughout the interview. However, he then went on to note: He related in an intense and controlling manner. His answers were over-inclusive and often self-serving throughout the course of the interview. His thought processes demonstrated his obvious intelligence although his interpretation of information was often concrete and aimed at problem-solving rather than demonstrating depth of thought or insight. 136The Tribunal's observations of the applicant's conduct during the hearing, and our assessment of his written material closely accords with that recorded by Dr Diamond in his second report. 137We found the applicant to be polite, well groomed, and highly intelligent. But we also found his evidence to be self-serving or at least designed to minimise or excuse his inappropriate conduct which has continued up to 2013. We were satisfied that while he has an academic understanding of ethical obligations, that understanding has not translated into appropriate actions in the post 2008 period. Further, we are satisfied, for the reasons discussed above, that he does not currently display any real insight into the events which brought him before the two previous Medical Tribunals, or his conduct in respect of people, particularly professionals, post those hearings. Nor did we find the applicant demonstrated true remorse for the effect of his actions on his victims. 138We find, contrary to the applicant's outline of submissions at [7], which we reproduced earlier in these reasons at [57,] he has not been trustworthy in his dealings with the two universities. 139We appreciate that the applicant, who is in so many respects a single minded and driven man, and who to his credit, has overcome tremendous adversity in his life, will be bitterly disappointed by the outcome of these proceedings. We accept he has in the past overcome adversity, and since the two Tribunal proceedings experienced profound hardship both emotional and financial. He has no family support in Australia, partner or close colleagues to whom he can turn for advice or support. Our task, however, must be focused on the protection of the public, and maintenance of high standards of membership of the medical profession which carries with it many privileges and benefits and also significant responsibilities. At the present time we do not find that the applicant has satisfied the onus to establish that he is of good character and as such a fit and proper person to be a registered medical practitioner. 140In these circumstances we do not find it necessary to discuss the health and practice conditions which the Council propose in the strict alternative to dismissal of this application. However, in case we are wrong in our assessment of the present unfitness of the applicant to be registered, we agree the type of conditions proposed by the Council would be appropriate. We note that they are not the type of conditions which the applicant advocated should be placed on his registration. The applicant's current qualifications and desire to engage in specialist training in ophthalmology. 141No evidence was adduced by the applicant about meeting the current qualifications to obtain general registration save for details of some courses engaged in since 2008 and other reading of relevant publications. He did however address this topic in his final submissions. 142The Council put in issue in its final submissions whether or not the applicant meets the current registration requirements. In light of our findings on the issue of re-instatement it is unnecessary we address this topic. We note however relevant evidence is likely to assist any future Tribunal asked to determine a review under s 163A of the National Law. 143We also note, and accept, Dr Diamond's opinion that the applicant's pursuit of specialist training in ophthalmology appears lacking in reality given his past history, limited experience in relevant practice, and his age. Period before the applicant may re-apply for re-registration 144The Council sought that a period of three years should elapse before the applicant may again apply to be re-registered. While relevant factors are finely balanced, we do not find a three year period of preclusion is warranted in this case. Dr Diamond has highlighted in his reports the many contributing factors which have influenced the applicant's professional life including his profound isolation and the "distinct difference from his medical colleagues and peers" which apply to this man. We also note Dr Diamond's opinion, which we find to be balanced and insightful, about the applicant's personality characteristics including narcissistic traits and obsessional drives with an overlay of cultural features. Those are longstanding characteristics and features and may not easily be changed. Thus, we accept a realistic period of time for appropriate therapy is required. But we do not discount, as Dr Diamond explained, with appropriate therapy, such character traits may be changed. 145We also consider Dr Diamond's assessment of the reality, or the unreality, of the practitioner at his age, level of experience, and background including the findings of professional misconduct, gaining admission to specialist training to be relevant to the applicant's future aspirations. His evidence in his written submissions is to the effect that if his registration is restored he would not engage in general practice, or work in the area of male impotency. The outcome of these proceedings may cause the practitioner to realistically reflect on his professional goals, and to give serious consideration in any further application for restoration to the register of the type of conditions now proposed by the Council. 146We do take into account that the applicant has, in the past, gained some insight into his conduct by his attendance on Dr Fisher. It is unfortunate that the applicant did not re-commence seeing Dr Fisher until approximately 6 weeks prior to filing his documents in these proceedings. In his oral evidence he also alluded to the fact he may consult a psychologist for assistance. It may be that these proceedings, including review and reflection on the matters raised by Dr Diamond and recounted in his oral evidence, may lead to the applicant seeking further professional assistance which assistance may facilitate a change in attitudes and understandings of his character. Taking these matters into account we find that any restriction on re-application should be limited to a period of two years. Such a restriction properly balances the factors which presently disqualify the applicant, with his cultural background and the severe financial and other hardship he has suffered post 2008. Costs 147At the conclusion of the proceedings Ms Lowson submitted that the Tribunal should make an order that the applicant pay the Council's costs of and incidental to the proceedings. The applicant opposed that course and sought there should be no order as to costs. Relevant principles costs 148The relevant principles to be applied in respect of costs applications in disciplinary proceedings are subject of well- known appellate authority (see Ohn v Walton (1995) 36 NSWLR 77). 149These proceedings under s 163A require the hearing of an inquiry (s 163B). Schedule 5D cl 13 (a NSW provision of the of the National Law) provides: The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or other any of person entitled to appeal (whether as of right or because leave to appear has been granted) at any inquiry or an appeal before the Tribunal to pay the costs to another person as decided by the Tribunal. 150Clause 13 (2) and (3) provide a regime for obtaining a costs certificate from the Tribunal, and for the costs order to be enforced and judgment obtained in the District Court. Although not applicable to these proceedings, which were commenced prior to the introduction of the Civil and Administrative Tribunal Act, cl 4 now excludes the operation of s 60 of the Civil and Administrative Tribunal Act. 151Section 60 (4) (b) of the Civil and Administrative Tribunal Act provides that Tribunal may, if costs are ordered by the Tribunal, order that they may be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 (NSW) or on any other basis. As the National Law has no NSW or other provision which enables a cost effective and timely manner for costs to be assessed if agreement is not reached between parties, s 60 (4) (b) would fill that vacuum. It is perhaps regrettable that such provision is not included in the National Law as it would obviate the necessity for the Tribunal to act in a costs assessing role if agreement on costs cannot be reached, rather than the parties being able to avail themselves of the expertise and experience of a qualified costs assessor. 152Additionally, s 175B, which is found in Div 14A of Part 8 of the National Law, as discussed by the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 below, provides a source of power to award costs "for the proceedings". 153The question of the power to award costs is subject of discussion by Meagher JA, with whom Basten and Emmett JJA agreed, in Health Care Complaints Commission v Do [2014] NSWCA 307 albeit in the context of an appeal under s 162 A of the National Law. After referring to the power in s 175B of the National Law which has national application by reason of s 201, his Honour noted :in respect to the power to award costs That is a provision having national operation pursuant to s 201 it should not be subject to local rules. It should be treated as conferring an unfettered discretion on the Tribunal. 154His Honour then referred to the decision of the Court of Appeal in Health Care Complaints v Philipiah [2013] NSWCA 342 as follows: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power. Whatever the true extent of the power conferred on this Court in respect of costs of this appeal, it is appropriate to adopt the same approach as would have been adopted in the Tribunal, namely that there was an unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs. 155In these proceedings the applicant has been unsuccessful. While we accept he is impecunious, there are no justifiable reasons advanced by him which would see departure from the usual compensatory rule as applicable. Accordingly, we are satisfied it is appropriate to make an order that the applicant pay the Council's costs as agreed. If agreement as to the quantum of costs cannot be agreed, the costs may be determined by this Tribunal. ORDERS 1. The applicant's application under s 163A of the Health Practitioner Regulation National Law (the National Law) for re-instatement to the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency in conjunction with the Medical Board of Australia is dismissed. 2. The applicant is precluded under s 163B (5) of the National Law from applying to the NSW Civil and Administrative Tribunal for a re-instatement order for a period of two years from the date of these orders. 3. The applicant is to pay the costs of and incidental to these proceedings of the Medical Council of NSW as agreed and failing agreement liberty to restore before the Tribunal for assessment. 4. Pursuant to Schedule 5D cl 7 of the National Law and s 68 of the names of the patients set out in the Complaint under the Medical Practice Act 1992 (repealed) dated 31 October 2002 shall not be published to any person save and except the parties to these proceedings. 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 Amendments 17 November 2014 - typographical errors Amended paragraphs: 35, 36, 140, 144, 145 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: 02 December 2014