Health Care Complaints Commission v Sarfraz [2015] NSWCATOD 75

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sarfraz [2015] NSWCATOD 75 Hearing dates: On the papers Decision date: 20 July 2015 Jurisdiction: Occupational Division Before: Boland J ADCJ Decision: 1. Leave granted to the Health Care Complaints Commission to make an oral application to withdraw the application for disciplinary findings and orders (with annexed complaint) filed 7 January 2015 in respect of Dr Ali Sarfraz. 2. The Tribunal consents to the application being withdrawn under Sch 5D cl 12 of the Health Practitioner Regulation National Law. 3. The application for disciplinary finding and orders is dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) 4. No order as to costs. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act – Whether in the interests of the public for complaint against a medical practitioner to be withdrawn. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Cases Cited: Quach v NSW Civil and Administrative Tribunal [2015] NSWCA 63 HCCC v Khan [2014] NSWCATOD 79 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Ali Sarfraz (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Gajic Lawyers (Respondent) File Number(s): 1520003

Reasons for decision

Introduction 1. On 7 January 2015 the Health Care Complaints Commission (HCCC) referred a complaint to the Tribunal about Mr Ali Sarfraz, then Dr Ali Sarfraz, (the practitioner). The HCCC sought that the Tribunal make disciplinary findings and orders under the Health Practitioner Regulation National Law (the National Law) about the practitioner, including an order that his registration be cancelled. 2. The complaint to be prosecuted by the HCCC asserts that the practitioner has an impairment within the meaning of s 5 of the National law. The complaint also asserts the practitioner is not competent to practise medicine within the meaning of s 139 of the National Law. 3. On 27 March 2015 the matter was listed before me for a directions hearing. At that time it was noted the practitioner intended to surrender his registration, and it was submitted by the practitioner's solicitor it would be appropriate for the HCCC to withdraw the complaint. The practitioner's solicitor asserted that, despite cognitive difficulties, the practitioner had capacity to give her firm instructions. The matter was stood over for a further directions hearing on 17 April 2015 for the proposed withdrawal to be considered by the Director of Proceedings, HCCC. 4. On 17 April 2015 the parties appeared before his Honour, A/Judge Marks and requested a further adjournment as, at that time, the practitioner had not yet surrendered his registration. 5. On 1 May 2015 at a further directions hearing written submissions were received by the Tribunal from Ms R Lewis on behalf of the HCCC. An order was made requesting the Registrar ask the Medical Council of NSW (the Council) to nominate suitably qualified persons to act as occasional members of the Tribunal for the purposes of hearing the complaint. Following a nomination of proposed members by the Council, on 2 June 2015 the President, the Hon. Justice Wright, appointed Dr Joanna Hely, Dr Alison Read and Mr Andrew Dixon as occasional members of the Tribunal to hear the complaint. 6. It was determined that the matter could be heard "on the papers" and in accordance with Schedule 5D cl 12(3) by a senior judicial officer as the member presiding. 7. After reading the application, correspondence to the Tribunal and the statement of Ms Ragini Mishra Lewis (Ms Lewis) I determined that it was not in the interests of the public for the application for disciplinary orders to proceed to a hearing and that the complaint should be withdrawn and the application dismissed. The reasons for my decision follow.