Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Saedlounia (No. 2) [2017] NSWCATOD 77 Hearing dates: 20 April 2017 Date of orders: 18 May 2017 Decision date: 18 May 2017 Jurisdiction: Occupational Division Before: J L O'Meally ADCJ, Principal Member Dr George Abouyani, Professional Member Dr Hadia Haikal-Mukhtar, Professional Member Y Rowling, Lay Member Decision: (1) Pursuant to s 149C(4)(a) of the National Law the Tribunal declares that if the respondent were still registered as a medical practitioner the Tribunal would have cancelled his registration for a period of two years. (2) Pursuant to s 149C(4)(b) of the National Law the practitioner is disqualified from being registered as a medical practitioner for a period of two years. (3) Pursuant to s 149C(4)(c) of the National Law the Tribunal requests that the Medical Practitioner Board of Australia record in the National Register kept and maintained on behalf of that Board by the Australian Health Practitioner Regulation Agency the fact that the Tribunal would have cancelled the respondent's registration had he still been registered at the date of this decision. (4) The respondent will pay the costs of the applicant as agreed or assessed. Catchwords: Unsatisfactory professional conduct – professional misconduct – medical practitioner no longer registered – Tribunal would have cancelled registration for two years if registered – practitioner disqualified from registration for two years Legislation Cited: Health Practitioner Regulation National Law (NSW) 2009 (No. 86a) Civil and Administrative Tribunal Act (NSW) 2013 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Saeid Saedlounia (Respondent) Representation: Counsel: P G Aitken (Applicant) No appearance (Respondent) Solicitors: Health Care Complaints Commission (Applicant) No appearance (Respondent) File Number(s): 2016/00378710 Publication restriction: Pursuant to Schedule 5D clause 7 of the Health Practitioner Regulation National Law (NSW), publication or disclosure of the name, address or any evidence or information which might tend to or lead to the identification of the names of patients identified in these proceedings is prohibited. REASON FOR DECISION 1. In a decision published on 11 January 2017 the Tribunal made findings against the respondent of unsatisfactory professional conduct in respect of Patient A and Patient B and of professional misconduct in respect of Patient A. 2. Two members of the Tribunal, the Principal Member and the Community Member, were of the view that professional misconduct had been established in respect of Patient A, but the two Medical Members of the Tribunal were not so satisfied. By operation of s57(3) of the Civil and Administrative Tribunal Act (NSW) 2013 (CAT Act) the finding of professional misconduct was sustained. The matters in respect of which the Medical Members disagreed with the finding of professional misconduct were contained within particulars 5 and 8 of Complaint One set out in the decision published on 11 January 2017. The Medical Members wish it to be noted that the basis upon which they were not satisfied professional misconduct was established is that the symptoms of Patient A described to the respondent in a written statement by him, exhibited in the proceedings, would normally warrant an abdomino-pelvic examination. The other two members were influenced by the description of the examination given to the Tribunal by Patient A himself. They were also influenced by the fact that, apart from statements made by the respondent, who did not give evidence, and against whom findings of dishonesty had previously been made, the respondent took no part in the proceedings despite being made aware of them. 3. Those findings which are the findings of the Tribunal by operation of s57(3) of the CAT Act are particulars 5(a) and (b) and 8(c) and (d) of Complaint One. They amount to professional misconduct. 4. Before proceeding further, it should be observed that sufficient notice was given to the respondent that a Stage II hearing was to take place following the decision in Stage I. It was noted in the decision published on 11 January 2017 that the Tribunal was satisfied that the respondent had had adequate notice of the proceedings. We are similarly satisfied that the respondent had sufficient notice of this hearing and was given sufficient opportunity to participate in them. 5. Between the handing down of the decision published on 11 January 2017 and some time before 3 March 2017 the respondent had engaged solicitors to act for him in the Stage II proceedings. On 3 March 2017 Ms Davis from Avant Law appeared before the Tribunal as a matter of courtesy and announced that though those attorneys had been instructed to appear, their instructions had been withdrawn. The respondent again has taken no part in proceedings before the Tribunal. 6. It should be noted that whilst there was disagreement between members of the Tribunal on whether professional misconduct had been established, the Tribunal was unanimous in its view that unsatisfactory professional conduct had been established in respect of both Patient A and Patient B. It should also be noted that notwithstanding the differences referred to, the Tribunal is unanimous on the orders which should be made as a consequence of its findings. 7. At the outset we should remind ourselves that the Tribunal's jurisdiction is primarily protective in nature. We must give consideration to the maintenance of standards of the medical profession, preservation of public confidence in the profession and protection of the community. 8. By s 3A of the Health Practitioner Regulation National Law (NSW) 2009 (No. 86a) (the National Law) we are required to consider protection of the health and safety of the public as the paramount consideration. 9. Deterrence of the type of conduct we have found is an important part of maintaining the standards of the medical profession. The high professional standards of the profession are to be reinforced in order to protect the community. 10. Because the respondent, for whatever reason, chose not to participate in these proceedings the Tribunal has no information which might shed light on the reason for his behaviour, nor why his judgment, skill and knowledge fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience. We have been satisfied that the inappropriate prescribing Panadeine Forte for Patient A, his failure to examine that patient for the complaints made upon initial presentation, namely an infected finger, and to examine the previous history demonstrate unsatisfactory professional conduct of a high degree. 11. Similar observations might be made in respect of his utterly inappropriate remarks to Patient B in respect of her cancer treatment in the presence of her family, including her children. 12. In respect of Patient A, the ultimate findings of professional misconduct made by the Tribunal were of a sexual nature and are sufficiently serious to justify suspension or cancellation of the respondent's registration were he still registered. It should be observed that the failure of the respondent to participate in the proceedings does not enable us to conclude that the respondent might have insight into his behaviour. In the manner in which the case has proceeded, and upon the material before us, which includes proceedings taken under s 150 of the National Law, there is no basis upon which we could be satisfied that the respondent would not repeat the conduct, nor that he has any understanding of the inappropriateness of it. The significance of the remarks made by the Medical Council in the s 150 proceedings, referred to in the Stage I proceedings, that "the delegates have significant reservation about the [respondent's] capacity to be truthful in his dealings with the Council" and earlier proceedings taken, which involved a history of breaching conditions of practice, strengthen our reservations. 13. It is significant, also, to observe that there is no evidence before us that, at any stage since the complaints were first made, the respondent has taken steps to rectify his conduct. 14. The findings we have made demonstrate the respondent's conduct is a serious breach of the standard that the public has a right to expect in a medical practitioner. We agree with the submissions of the applicant that, given the nature of the allegations and findings against the respondent, the need to protect the public through general deterrence and the need to protect the public by reinforcing high professional standards and denouncing transgressions and the maintenance of public confidence in the profession, a period of cancellation of the respondent's registration would have been warranted had he remained registered. We also accept that an order disqualifying the respondent for the same period would be adequate to send a strong message to other practitioners that misconduct of the type found in these proceedings can not be condoned. 15. The applicant has applied for an order for costs, and for what it's worth, a costs order should be made. 16. ORDERS The orders we make are these: 1. Pursuant to s 149C(4)(a) of the National Law the Tribunal declares that if the respondent were still registered as a medical practitioner the Tribunal would have cancelled his registration for a period of two years. 2. Pursuant to s 149C(4)(b) of the National Law the practitioner is disqualified from being registered as a medical practitioner for a period of two years. 3. Pursuant to s 149C(4)(c) of the National Law the Tribunal requests that the Medical Practitioner Board of Australia record in the National Register kept and maintained on behalf of that Board by the Australian Health Practitioner Regulation Agency the fact that the Tribunal would have cancelled the respondent's registration had he still been registered at the date of this decision. 4. The respondent will pay the costs of the applicant as agreed or assessed. ********** 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: 18 May 2017