Health Care Complaints Commission v Safi [2017] NSWCATOD 26

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Safi [2017] NSWCATOD 26 Hearing dates: 6 February 2017 Date of orders: 06 February 2017 Decision date: 06 February 2017 Jurisdiction: Occupational Division Before: Marks ADCJ, Principal Member Decision: Application for interim non-publication order declined Catchwords: Health practitioner-complaint alleging misconduct of a sexual nature-application for interim non-publication order of name of respondent-principle of open justice-application dismissed. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v Dr A [2012] NSWMT 10 HCCC v Dr Gow [2008] NSWMT 3 Health Care Complaints Commission v CNU [2016] NSWCATOD 50 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Mohamed Payenda Zhouand Safi (Respondent) Representation: Counsel: R Mathur (Complainant) M Carruthers Solicitor (Respondent)

Solicitors: Health Care Complaints Commission (Complainant) HWL Ebsworth (Respondent) File Number(s): 1620153 Publication restriction: Non-publication order with respect to the identity of or any material which might tend to identify Patient A

REASONS FOR DECISION

Background 1. These proceedings arise out of complaints brought by the Complainant, the Health Care Complaints Commission against the Respondent, Dr Mohamed Payenda Zhouand Safi alleging unsatisfactory professional conduct and professional misconduct as defined in the Health Practitioner Regulation National Law (NSW) ("the National Law"). The allegations centre around and arise out of a consultation conducted by the Respondent with Patient A and allege inter alia misconduct of a sexual nature. 2. At the commencement of the proceedings the respondent made application for a non-publication order under the provisions of Clause 7 of Schedule 5 D to the National Law. The provisions of that Clause are in the following terms; Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)- (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published- (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to- (a) a person who requested the direction; and (b) the complainant or the registered health practitioner or student concerned, as appropriate; and (c) another person the person presiding thinks fit. (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (5) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty- (a) in the case of a corporation, 150 penalty units; or (b) in any other case, 20 penalty units. 1. The application was heard by me and determined by me sitting alone, being the person presiding in the proceedings before the Tribunal, Having heard the submissions of the parties at the commencement of the hearing of these proceedings, I made an order dismissing the application for an interim non-publication order, indicating that I would deliver written reasons. These Reasons for Decision constitute my reasons for having dismissed the application. 2. It is common ground in the proceedings that as a result of a complaint brought by Patient A to the NSW Police Service arising out of the consultation which is the subject of these proceedings the Respondent was arrested by police and charged with certain alleged offences. The Respondent participated in a committal proceeding and then in a criminal trial. He was acquitted of all charges. 3. In support of the application for a non-publication order Ms M Carruthers, solicitor, made a number of submissions based in part on the fact that the Respondent had already been exposed to the ignominy of criminal proceedings arising out of the same conduct and had been acquitted. 4. Ms Carruthers submitted that the fact that these proceedings might become general public knowledge unless an interim non-publication order were made would expose the respondent to adverse publicity, especially in circumstances where he had already been acquitted after a criminal trial. She asserted that a non-publication order had been in force during the criminal trial and the fact of his acquittal should dictate that a cautious approach should be taken to publication of these proceedings. Furthermore, it was said that the respondent works in a general practice with his wife, who also practices as a medical practitioner under the same family name. It was asserted that his wife's reputation might also be damaged by the publication of the respondent's name in connection with these proceedings.