Health Care Complaints Commission v Safi (No. 3) [2017] NSWCATOD 83

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Safi (No. 3) [2017] NSWCATOD 83 Hearing dates: On the papers Date of orders: 24 May 2017 Decision date: 24 May 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Decision: Interim order prohibiting dealing with female patients except in limited urgent circumstances until further order. Catchwords: Medical practitioner found guilty of professional misconduct-urgent consent application for interim order pending stage 2 hearing-held appropriate to dispense with public hearing and to make order Legislation Cited: Health Practitioner Regulation National Law Civil and Administrative Tribunal Act Cases Cited: Health Care Complaints Commission v Dr Mohamed Payenda Zhouand Safi (No2) [2017] NSWCATOD69 Category: Procedural and other rulings Parties: Health Care Complaints Commission (Applicant) Dr Mohamed Payenda Zhouand Safi (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) 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

Introduction 1. In a decision published on 9 May 2017 with citation Health Care Complaints Commission v Dr Mohamed Payenda Zhouand Safi (No2) [2017] NSWCATOD69, this Tribunal constituted by four members found the respondent, Dr Mohamed Payenda Zhouand Safi guilty of professional misconduct under section 139 E of the Health Practitioner Regulation National Law. ("The National Law"). The respondent was found to have behaved inappropriately, and in a manner for sexual pleasure whilst conducting an internal vaginal examination of one patient, and to have behaved inappropriately following that examination by hugging and kissing the patient. 2. The proceedings have been stood over for a stage 2 hearing on 20 June 2017 for the purpose of determining what protective orders might appropriately be made. 3. The complainant, the Health Care Complaints Commission ("HCCC") sought an urgent hearing for the purpose of having an interim condition placed on the respondent's registration pursuant to section 165 L (1) of the National Law. This provision is in the following terms: 165L Interlocutory orders [NSW] (1) The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand. (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. (3) The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's or student's registration if- (a) it has found the subject-matter of the complaint against the practitioner or student to have been proved; and (b) the complaint has not yet been finally disposed of; and (c) it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest. 1. Section 165L in turn makes a reference to section 149A of that Act, subsection (1) of which is in the following terms: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner- (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 1. Accordingly, there is a power on an interlocutory basis for this Tribunal to impose conditions on the registration of the respondent during the course of these proceedings.