Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kaye v Health Care Complaints Commission [2016] NSWCATOD 149 Hearing dates: 18 November 2016 Date of orders: 22 November 2016 Decision date: 22 November 2016 Jurisdiction: Occupational Division Before: R C Titterton, Senior Member Decision: (1) The application for the stay is refused. (2) Costs are reserved. (3) The matter is listed for directions on Friday, 9 December 2016 at 11.00 am. Catchwords: Stay - relevant principles – no question of principle Legislation Cited: Administrative Decisions Review Act 1997 Health Practitioner Regulation National Law 2009 Health Care Complaints Act 1993 Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 Hanna v Medical Council of NSW [2016] NSWCATOD 108 Kesserwani v Chiropractic Council of NSW [2016] NSWCATOD 77 NSW Bar Association v Stevens [2003] NSWCA 95 Polini v Gray (1879) 12 Ch D 438 Wang v Dental Council of NSW [2016] NSWCATOD 90 Category: Procedural and other rulings Parties: Ali Davut Sarikaya (aka David Dakye) (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: J Cohen (Applicant) V Hartstein (Respondent) File Number(s): 1610708 Publication restriction: The Tribunal made a non-publication order, pending the hearing of the appeal, prohibiting the disclosure of the name of "Client A" who filed a complaint dated with the Australian Health Practitioner Regulation Agency on 11 September 2014. REASONS FOR DECISION The application 1. This is an application by Mr Ali Davut Sarikaya (usually referred to as David Kaye and to whom I shall refer as the applicant) for a stay of a decision of the Health Care Complaints Commission (the Commission) made on 6 October 2016 (the Decision). The Decision followed an investigation conducted pursuant to s 23 of the Health Care Complaints Act 1993 (the HCC Act). 2. The Commission found that Mr Kaye had "persistently over a considerable period of time" misrepresented his educational and professional qualifications, was not qualified to carry out counselling services, provided health services in an unsafe and unethical manner, and posed a risk to the health and safety of the public. As a result of these findings, the Commission made a prohibition order under s 41A(2)(a) of the HCC Act prohibiting the applicant from providing any counselling of any description and any other mental health services in a paid or voluntary capacity for a period of six months. At the end of the six month period, the applicant was not to provide any counselling of any description or any other mental health services unless he satisfied the Commission that he had successfully completed a Level 5 qualification in counselling (for instance a Diploma of Counselling) from an accredited institution. 3. The Commission also issued a public statement pursuant to s 41A(2)(b) of the HCC Act. A copy is attached to these reasons. 4. On 31 October 2016, the applicant filed: 1. An application for administrative review of the Decision; 2. An application for stay a stay of the Decision. 1. For the reasons that follow, I have decided to refuse the applicant's application for the stay. I will direct that the application for administrative review be placed in next directions list, which will be held on 9 December 2016 at 11.00 am. On that occasion, directions can be made for management of the appeal. Grounds supporting the stay application 1. There were three grounds agitated in Mr Cohen's oral submissions. The first, and primary, ground was that the Commission erred in finding that there was a risk to the public, in circumstances where there was no evidence of any risk. 2. The second ground was that the Tribunal erred in overlooking, or failing to give sufficient weight to, certain evidence which was before it: namely correspondence from the Swinburne Institute of Technology (Swinburne) dated 7 September 2016, and the fact that the applicant had offered to amend his curriculum vitae (CV) so as remove all reference to qualifications and degrees he did not hold. In relation to this last matter, Mr Cohen submitted that, while there was no issue that Mr Cohen had misrepresented these matters in the past, he was not going to do so in the future, and thus he would not pose any risk to the public. 3. The third ground, which was argued somewhat faintly, was that the Commission may have erred in making it a requirement of the applicant being permitted to provide any further counselling services after a period of 6 months that he obtain a Level 5 qualification in counselling. Mr Cohen submitted that there was no legislative, or other, basis for this requirement. 4. Mr Cohen also submitted that, any past complaints about the applicant's services were limited to complaints about the costs of his services, not about their quality or efficacy. Respondents' submissions 1. The Commission received written submissions from Ms Hartstein, which were amplified in oral submissions. First, she refers to s 60 of the Administrative Decisions Review Act 1997. Section 60(2) provides that the Tribunal may make such orders staying the operation of a decision under review as it considers appropriate to secure the effectiveness of the determination of the application. Section 60(3) provides that the Tribunal may only make an order under s 60 if it considers that it is desirable to do so after taking into account the interests of any persons who may be affected by the determination of the application, any submission made on behalf of the administrator who made the decision (that is the Commission), and the public interest. 2. Ms Hartstein then refers to various well-known decisions which are authorities for the following propositions: 1. Polini v Gray (1879) 12 Ch D 438: in civil litigation a stay of the operational decision pending appeal is granted were a successful appeal would be useless or futile promise to stay were granted; 2. NSW Bar Association v Stevens [2003] NSWCA 95: where a decision has been made in the public interest, the protection of the public as a matter entitled to significant weight; 3. Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306: each case must turn on specific facts, and the range of relevant considerations is broad. Nevertheless, the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight. 1. Ms Hartstein submitted there is no evidence to balance against the public interest in protecting the public by refusing the stay. Consequently, the Tribunal should find that the correct and preferable decision is to dismiss the application for a stay. Evidence 1. At the hearing, Mr Cohen filed a bundle of materials to make good his submission that the Commission erred in failing to give sufficient weight to evidence before it. Ms Hartstein did not object to the tender of these documents, but indicated that the Commission needed to file certain documents itself to give the Tribunal the whole picture of what was before the Commission. In the result, both parties filed bundles of material at the hearing, each of which was admitted without objection. The Commission's legal representatives were not entirely sure whether or not the documents sought to be tendered by the applicant were before the Commission, but indicated that they were content for the Tribunal to deal with all documents as though they were in fact before the Commission at the time it made the Decision. Principles relevant to this application 1. In Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, the President of Tribunal (Wright J), summarised the principles to be applied in determining whether or not to grant a stay pending the determination of an appeal (see par [9]). In summary, those principles included the following: 1. The onus is on an applicant for a stay to make out a case that it is appropriate for the court or Tribunal to make such an order. 2. An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. This is similar to, if not the same as, the considerations applied by the Courts where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay. 3. The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision. 4. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. 5. In exercising the discretion, the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. 6. Finally, the overriding principle in an application for a stay is to ask what the interests of justice require. 1. Bentran was a decision concerning a claim in the Consumer and Commercial Division of the Tribunal. The appeal the subject of the present stay application is brought in the Occupational Division of the Tribunal. In considering a practitioner's application for a stay, the Tribunal must consider the protection of the health and safety of the public, which is the paramount consideration of the Tribunal: Kesserwani v Chiropractic Council of NSW [2016] NSWCATOD 77 at [16]; Wang v Dental Council of NSW [2016] NSWCATOD 90 at [22]. Consideration 1. The applicant's counsel primary submission was that there was no evidence of risk to the public warranting the prohibition order. 2. I disagree. The thorough and detailed Decision exhaustively considers the evidence before it in coming to the following relevant findings: 1. The applicant persistently over a considerable period of time misrepresented himself as holding a Bachelor of Arts with a major in psychology from Swinburne; 2. The applicant was fully aware he did not hold that degree 3. The applicant misrepresented himself in his CV (and even in his submissions to the Commission) in holding a Graduate Diploma in Counselling psychology from the Royal Melbourne Institute of Technology; 4. The applicant misrepresented himself in holding a Bachelor of Arts with Honours when he was not entitled to use that post-nominal qualification; 5. There was no evidence that the applicant held qualifications in psychology or counselling from any university, or evidence that he held any level 5 qualification from any accredited institution that would qualify him to practice as a counsellor; 6. The applicant wilfully misrepresented himself as holding university qualifications in psychology and university qualifications as an honours level to Client A, the Commission, the Australian Counselling Association and organisations who referred patients to him for psychological assessment and counselling 1. Given those factual findings, the Commission concluded that: 1. The applicant was not qualified to carry out counselling services. 2. The applicant provided a health service in an unsafe and unethical manner. 3. The applicant breached the following clauses of the Code of Conduct for Unregistered Health Practitioners: 1. cl 3(1): namely that a health practitioner must provide health services in a safe and ethical manner. 2. cl 3(b)1): a namely that a health practitioner must not provide services that he or she is not qualified to provide, 3. cl 12(1): namely that a health practitioner must not engage in any form of misinformation or misrepresentation in relation to the products or services he or she provides or as to his or her qualifications, training or professional affiliations. 1. The Commission identified eight ways in which, by misrepresenting his training, experience and qualifications, and in providing treatment he was not qualified to provide, the applicant posed a risk to public health and safety. I will mention but two. 2. First, the Commission stated that misrepresenting qualifications and training engendered a false belief, in those who sought assessment and treatment from the applicant, that he had the skills and ability to accurately and appropriately diagnose symptoms, design treatment regimes specific to their needs, and to provide the most appropriate and effective treatment, but when there had been no objective formal assessment of the applicant's competence to do so. 3. Secondly, incomplete training and the absence of minimum qualifications as a counsellor, combined with dishonesty, necessarily means that the applicant does not have the ability to recognise and act on the "red flag" situations of needing to refer a patient. 4. The Tribunal considered an application for a stay in Wang v The Dental Council of NSW (referred to above). There the Tribunal granted the stay application. However, unlike the circumstances here, the Council had allowed the practitioner to continue to practise, and had placed no conditions on her right to practise (save for ordering that she co-operate with a Council review of review of her understanding and application of the Guidelines and the Code). Here, the Commission has made the very serious factual findings set out above and prohibited the applicant from providing services. 5. The applicant submits that the Tribunal failed to have regard to, or failed to give sufficient weight to, a letter dated 7 September 2016 from Swinburne addressed to "to whom it may concern". The letter, signed by a Dr Ben Bullock, states: RE: Bachelor of Arts (Psychology) The above named degree completed by David Sarikaya in 1997 is an accredited AQF level 7 Bachelor Degree. 1. The Commission Decision refers to prior correspondence from Swinburne, the effect of which is that the applicant had been a student at Swinburne for one semester in 1996, and that a copy of his academic transcript for that semester showed he completed one subject was granted an exemption for three other subjects. Swinburne advised that the applicant had applied for graduation for a Bachelor of Arts in 2008, but he was deemed ineligible for graduation. Further correspondence in 2009 explained to the applicant he had not met the requirements of any accredited psychology award, and that while he could apply for a psychology fourth-year program and receive an informal document, he could not receive an official certificate or award. Swinburne further advised that the applicant's application for enrolment into a Bachelor of Arts (Honours) Psychology in 2010 had been rejected. 2. The letter from Swinburne of 7 September 2016, on which the applicant relies, is not referred to by the Commission in its decision. The Commission submits that this is understandable, as the letter had been retracted or withdrawn. 3. This submission is well-founded. As part of its investigations, the Commission made enquiries with Dr Bullock about the letter signed by him. It wished to discuss how the letter came about, and its contents. Dr Bullock explained that he had received correspondence from the applicant on 5 September 2016. Dr Bullock said that his judgment that the applicant's degree was equivalent to AQF level 7 was based on the documents supplied by the applicant, and after Dr Bullock had had discussions with colleagues. Further correspondence with Dr Bullock explained, in considerable detail, the actual subjects that had been completed by the applicant at Swinburne. Eventually, Dr Bullock sent an email to Ms Eleninovski of the Commission on 28 September 2016. Here, Dr Bullock states: In light of the new documents supplied to me in your previous email I would like to retract my letter dated 7th September 2016, stating that [the applicant] completed a Bachelor of Arts (Psychology) at Swinburne University. 1. This email was expressly referred to by the Commission at par [5.71] of the Decision where it concluded: * Mr Kaye did not "complete" a Bachelor of Arts (Psychology) at Swinburne University. * Completing all third-year subjects in a Bachelor of Arts does not in itself constitute the completion of a three-year sequence of subjects. * Mr Kaye has not completed the three-year sequence of subjects in psychology. As per his Swinburne transcript he did not complete, Psychology 100, Psychology 101, Cognition and Human Performance, Development Psychology, Social Psychology, or Design and Measurement 2A. The subjects would need to be completed before he could be deemed to hold a three-year sequence of subjects in psychology. 1. In those circumstances, the Tribunal does not accept a submission that the Commission overlooked the letter of 7 September 2016: the letter had been withdrawn; the applicant had never been earned or been awarded a Bachelor of Arts (Psychology) at Swinburne. So much seems to be recognised by the applicant himself in his amended CV which was before the Tribunal. 2. At page 21 of the Decision the Commission refers to the applicant's "astounding lack of insight into the manner in which he misrepresents his qualifications" (and therefore continues to be a risk to public health and safety). In my view, his submission that the Commission failed to take into account the email of 7 September 2016 is further justification of that finding. 3. I draw a similar conclusion in relation to the submissions in relation to the applicant's updated CV. It may be of some relief for the public to know that the applicant now recognises that he should not misrepresent as qualification. But the applicant fails to appreciate that it is the very lack of qualifications which prevent him from providing the services he seeks to provide. Until such time he acquires appropriate qualifications in counselling, he should not be offering counselling services. 4. The final matter raised by the applicant was the issue of whether the Commission was correct to impose a requirement that the applicant obtain a Level 5 qualification in counselling. No evidence or any materials at all were provided to the Tribunal to assess this submission. However, the Tribunal notes that the Decision states that the Level 5 qualification in counselling was required, "as a minimum", "in line with the standards set by the Australian Qualifications Framework" (AQF). The AQF website relevantly states: The Australian Qualifications Framework (AQF) establishes the quality of Australian qualifications. The AQF is the national policy for regulated qualifications in the Australian education and training system. It incorporates the quality assured qualifications from each education and training sector into a single comprehensive national qualifications framework. … The AQF provides the standards for Australian qualifications. It is an integrated policy that comprises: The learning outcomes for each AQF level and qualification type The specifications for the application of the AQF in the accreditation and development of qualifications The policy requirements for issuing AQF qualifications The policy requirements for qualification linkages and student pathways The policy requirements for the registers of: organisations authorised to accredit AQF qualifications, organisations authorised to issue AQF qualifications and AQF qualifications and qualification pathways The policy requirements for the addition or removal of qualification types in the AQF, and The definitions of the terminology used in the policy. The organising framework for the AQF is a taxonomic structure of levels and qualification types each of which is defined by a taxonomy of learning outcomes. The taxonomic approach is designed to enable consistency in the way in which qualifications are described as well as clarity about the differences and relationships between qualification types. 1. The website then discusses ACF "levels". AQF levels and the AQF levels criteria are said to be an indication of the relative complexity and/or depth of achievement and the autonomy required to demonstrate that achievement. AQF level 1 has the lowest complexity, and AQF level 10 has the highest complexity. 2. Thus the summary for "Level 5 – Diploma" criteria states: Graduates at this level will have specialised knowledge and skills for skilled/paraprofessional work and/or further learning and for "Level 6 – Advanced Diploma Associate Degree" states: Graduates at this level will have broad knowledge and skills for paraprofessional/highly skilled work and/or further learning 1. In my view, it is not unreasonable that a counsellor hold diploma or equivalent which gives him or her specialised knowledge and skills for their work. However, whether or not the imposition of this requirement by the Commission offends some legislative or statutory requirement I cannot determine on the materials provided to me. In my view, this submission neither individually or cumulatively with the other submissions provides a proper basis on which to grant a stay. 2. In my view, the evidence before the Commission entirely justifies its Decision to prohibit the applicant from providing counselling services, initially for six months, and thereafter until he obtains ACF Level 5 or equivalent qualifications. That conclusion remains justified in light of the evidentiary material adduced before me in these proceedings (which was simply material which was before the Commission). It follows therefore, that in my view, the applicant is unlikely to succeed in his appeal to the Tribunal. 3. The only submission that was put on the balance of the convenience ground was that the applicant was no longer able to practice as a counsellor. The Commission objected to this submission on the basis that there was no evidence of this. I indicated that it was axiomatic that, the prohibition order having been made, the applicant was not working as a counsellor or deriving income from his services. That may be so, but there is no evidence of, for instance, of the impact of the Decision on the applicant's financial position, the impact that the decision has on his well-being and that of his family (if he has one), and the impact of his suspension for his patients and for his practice generally. But even if there had been evidence of these matters, which there was not, they must be taken into account within the context against which the stay application is being considered. That is, the prohibition order was put in place for the protection of the public and in the public interest. The greater the justification for the making of the prohibition order, the less consideration should be given to the significance of the impact upon the applicant, his family, his patients and his practice: in this respect see the remarks of Marks ADCJ in Hanna v Medical Council of NSW [2016] NSWCATOD 108 at par [60] and following. Conclusion 1. For the above reasons, it follows that the application for a stay of the Decision should be refused. Costs 1. The costs of the application are reserved. Other 1. While not specifically discussed at the hearing, the usual practise is to protect the identity of patients of the subject practitioner. Accordingly, I make a non-publication order, pending the hearing of the appeal, prohibiting the disclosure of the name of "Client A", who filed the complaint in respect of the applicant with the Australian Health Practitioner Regulation Agency on 11 September 2014. ORDERS 1. The Tribunal orders that: 1. The application for the stay is refused. 2. Costs are reserved. 3. The matter is listed for directions on Friday, 9 December 2016 at 11.00 am. ******* ATTACHMENT A The NSW Health Care Complaints Commission conducted an investigation into the professional conduct of counsellor, Mr David Kaye (aka Ali Davut Sarikaya). Mr Kaye represented himself to Client A, the Commission and others as holding university qualifications in psychology and counselling. Specifically Mr Kaye represented himself as holding a Bachelor of Arts with honours, a Bachelor of Arts with a major in Psychology and a Graduate Diploma in Counselling Psychology. Mr Kaye also used the title doctor and the post-nominal PhD. Mr Kaye made these representations through his use of his CV, letters, reports, business cards, emails and through verbal advice to Client A and others. Further, the evidence regarding Mr Kaye's PhD indicates that it is in theology and not related to his practice in counselling or psychology. The evidence also showed that it was obtained from an American, online, non-accredited institution called "The American College of Metaphysical Theology" (ACMT). The ACMT website has been decommissioned but prior to this the website stated that "ACMT programs are not designed to meet any particular local, state of national licensing or credentialing laws. Mr Kaye was warned against using the title doctor and post-nominal PhD in his work as a counsellor as it is unethical and likely to mislead clients into believing he held an accredited doctorate which related to his practise as a counsellor. Despite this advice Mr Kaye continued to use the title doctor and post-nominal 'PhD' in his practise as a counsellor. The Commission's investigation found that Mr Kaye has no formal qualifications in psychology or counselling. He does not have a Bachelor of Arts with a major in Psychology and he does not have a Graduate Diploma in Counselling Psychology. Mr Kaye has misled clients and others persistently over a number of years in to believing that he has the relevant credentials required to deliver counselling services when this was simply not the case. He has been deliberately deceptive in his conduct. The Commission's investigation has found that Mr Kaye provided counselling services to Client A when he did not hold any qualifications in counselling. On the basis of the above evidence the Commission found that Mr Kaye breached the following clauses the Code of Conduct for Unregistered Practitioners in that he: ● Failed to provide a health service in a safe and ethical manner ● Provided counselling services to a client in circumstances where he did not hold the appropriate qualifications ● Misrepresented himself as holding university qualifications in psychology and counselling Through his actions, Mr Kaye has deprived both client A and countless other clients over the years the opportunity to receive the care and treatment that they required from an appropriately qualified practitioner. During the Commission's investigation Mr Kaye failed to acknowledge this, or the fact that he has no formal qualifications in Counselling. However, prior to the finalisation of the investigation Mr Kaye, in his final submissions, acknowledged that the claims he made about his qualifications were misleading to the client and the public generally. 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: 02 December 2016