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. The constitution of the Tribunal 1. The manner in which the Tribunal is to be constituted for the purpose of dealing with this application is provided for in section 165 B of the National Law. Subsection (5A) provides that when making an ancillary decision or an interlocutory decision as those expressions are defined in the Civil and Administrative Tribunal Act, the Tribunal is to be constituted, inter alia, by a senior judicial officer within the meaning of section 165 B (2) (a). It is not in contention that I am such a person, and accordingly if the order which I am asked to make can be characterised as an interlocutory decision, I am empowered to do so. 2. An interlocutory decision is defined in section 4 of the Civil and Administrative Tribunal Act to include, in effect, any interlocutory issue before the Tribunal other than a number of matters which are specifically provided for, and which do not include this matter. 3. In my opinion this is clearly an interlocutory issue because it involves the making of an interim order pending a final order. Accordingly, I am empowered to make the order sought if it is appropriate to do so. A public hearing? In general terms, the hearings of matters before this Tribunal are to be conducted in public unless there are special circumstances which would militate otherwise. In general terms, as these disciplinary proceedings were held in public, the making of an interlocutory order of the kind sought would normally be conducted in the course of a public hearing. 1. However, the parties have indicated they have reached agreement for the imposition of an interim condition, including the terms of that condition and The complainant has asked that it be made urgently in the interests of the protection of the health and safety of the public. Impliedly, the parties have requested that I make an order without conducting a public hearing. 2. The power to dispense with a hearing of the matter is the subject of section 50 of the Civil and Administrative Tribunal Act which is in the following terms: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. Before commencing to consider the desirability of dispensing with a hearing I note that it is the intention of the complainant to renew the application for an order of suspension of the respondent's registration at the adjourned stage 2 hearing on 20 June 2017, such an application having been foreshadowed at the completion of the stage 1 hearing. Accordingly, there will be an opportunity to review the interlocutory order which I am asked to make on 20 June next. 2. As I have previously stated, the respondent has consented to the making of an interlocutory order imposing a practice condition on his registration limiting his ability to deal with female patients. In circumstances where a medical practitioner has been found guilty of misconduct involving inappropriate sexual and other contact with a patient, it is not unusual for an interlocutory order to be made couched in terms appropriate to the factual circumstances pertaining to the proceedings. Such orders are governed by the necessity to protect the safety of the public. Hopefully, it is not necessary to provide authority for such a fundamental proposition. 3. Having regard to the circumstances which pertain to these proceedings which are fully set out in the published decision referred to, the essence of which I have previously set out, I am of the opinion that it is appropriate to make the interlocutory decision sought by the complainant and agreed to by the respondent. Furthermore, given the consent position of the parties I am satisfied that the issues for determination can be adequately determined in the absence of the parties and by reference to the brief notification that the interlocutory orders sought are consented to pending the further hearing on 20 June 2017. Furthermore, I am satisfied that the parties have been afforded an opportunity to make submissions about the proposed order. In all the circumstances, I dispense with a hearing of this interlocutory application under subsection (2) of section 50. Orders 1. For the reasons which I have set out I make the following orders; 1. the following condition is imposed upon the registration of the respondent with immediate effect and until further order, namely; "To not attend, consult, treat, interview or examine any female patient unless in the event of a medical emergency, meaning an event where it is not possible or reasonable to have the patient, being a person who has a serious or life-threatening or urgent condition, seen by another medical practitioner or be transferred to the nearest hospital." 2. the complainant is directed to take whatever steps are necessary to ensure that all relevant authorities are informed of the imposition of the above condition. 3. the proceedings are stood over for further hearing on 20 June 2017 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: 24 May 2017