Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Safi (No. 4) [2017] NSWCATOD 102 Hearing dates: 20 June 2017 Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ, Presiding Member Dr H Haikal-Mukhtar, Professional Member Dr G Yeo, Professional Member M Kelly, Community Member Decision: (1) The registration of the respondent is cancelled with effect from this date. (2) Pursuant to the provisions of section 149 C of the Health Practitioner Regulation National law we fix a non-review period of 18 months with effect from this date. (3) The respondent is to pay the costs of the complainant in the amount of $35,000. Catchwords: Medical practitioner found guilty of professional misconduct of a sexual nature – determination of protective orders – registration cancelled – costs order made. Legislation Cited: Health Practitioner Regulation National Law (NSW). Cases Cited: Health Care Complaints Commission v Dr Safi (No2) [2017] NSWCATOD 69 HCCC v Do [2014] NSWCA 307 HCCC v Litchfield [1997] NSWSC 297 Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75. Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mohamed Payenda Zhouand Safi (Respondent) Representation: Counsel: R Mathur (Applicant) P Strickland SC (Respondent Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth (Respondent) File Number(s): 2016/00378715 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 Health Care Complaints Commission v Dr Safi (No2) [2017] NSWCATOD 69 we found proven a complaint brought by the complainant against the respondent with respect to a consultation conducted by him on 9 February 2012 that; 1. 1. During the consultation, whilst performing a vaginal examination on Patient A the practitioner: 1. inappropriately touched Patient A's clitoris with his fingers and rubbed it with one or two fingers in a circular motion for one to two minutes; 2. inappropriately moved his fingers to the entrance of Patient A's vagina and rubbed it in a circular motion for about two minutes. 1. We also found proven that at the end of the consultation, the practitioner: 1. hugged Patient A; and 2. kissed Patient A on her lips with an open mouth; and 3. sucked on her lips. 1. We concluded that by reason of this conduct the respondent was guilty of professional misconduct in that he had engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. 2. These reasons for decision consider what protective and other orders should appropriately be made consequent upon the above findings and conclusion. Protective Orders 1. It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been most recently, succinctly, referred to in the judgement of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said; 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. We have already concluded that the misconduct of which we have found the respondent guilty carries with it sexual connotations of a most serious kind. The background against which the conduct of the respondent is to be considered is succinctly and appropriately summarised by the following extract from the judgement of the New South Wales Court of Appeal (HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638): Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest." 1. The range of protective orders is set out in sec 149C of the National Law the relevant portions of which are; 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. …… (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. The Evidentiary Material 1. The respondent provided a written statement dated 14 June 2017. He said that no complaint had ever been made concerning improper physical contact with a patient in his practice as a general practitioner before that made by Patient A. Pathology reports indicated that he had sent off almost 600 samples from female patients between 1 January 2004 and 15 January 2013. A few of those samples had been collected by the patients themselves but the bulk were taken by him involving touching the genital area. 2. In July 2013 he established a medical centre with his wife who is also a general practitioner and has continued to work there. Between September 2015 and March 2016 he also worked part-time at another medical centre. He said that he wished to continue working in the medical practice with his wife. If he was unable to do so there was a possibility that the medical practice might close and two of his children who currently work there would lose their jobs. 3. In his statement the respondent said that he had reflected "at length" on his conduct and recognised that he should have taken more time to explain the pap smear and bimanual examination to Patient A particularly because of language and cultural issues. He has sought to improve his practice in this area. Furthermore, he has not performed any intimate examinations on a female patient since the complaint was made and was now "extremely careful" when conducting any physical examination of a female patient. His current pattern is to refer such matters to his wife. If he was required to perform such an examination he would ensure that there was a chaperone or practice monitor present. 4. In describing the impact that this complaint has had on him the respondent said that he was "deeply distressed and embarrassed", and the defence of the criminal charges was an extremely difficult experience. As a result of practice conditions, he had lost almost all of his female patients and some of their family members. He also encountered difficulty in explaining to long-term female patients that he was again unable to continue treating them. 5. The respondent said that he would be willing to continue practising without seeing female patients, although this would create practical difficulties for him. 6. The respondent's wife also made a written statement dated 14 June 2017. She had worked very closely with her husband for several years and was not aware of any concerns about his conduct with female patients except for the circumstances of Patient A. She considered her husband a trusted doctor and valued his medical opinion. She also referred to a large group of patients from the Sierra Leone community who were treated at the joint practice and who were disappointed at the prospect that the respondent may not be able to continue to treat them. 7. A large number of members of the Sierra Leone community signed a "letter of petition in solidarity with Dr Mohamed Safi" attesting to his trustworthy nature and his services as a reliable general practitioner. They expressed concern that many members of their community and the wider African community would be adversely affected if the respondent was unable to continue to treat them. 8. A character reference was provided by Dr Jim Aroney, a general practitioner dated 7 June 2017. He was the co-owner of the medical centre where the respondent had worked for some time and at which he was engaged when he examined Patient A. He has read our reasons for decision. Dr Aroney found the respondent to have been a polite, professional, honest and highly regarded general practitioner. He was close to his family and, in his opinion, was "one of the least likely doctors to have the character to do what it has been determined that he has done." 9. Dr Aroney referred to the fact that the respondent worked in a surgery across the corridor from that of his wife, a distance of about 5 metres. He thought that the respondent's willingness to work close by his wife, treating her as "an equal" demonstrated "a level of enlightenment towards women that I considered to be exemplary even by contemporary standards." 10. A character reference was provided by Dr Sukanthy Cenan, a general practitioner who worked at the same medical centre as the respondent for about four years. He regarded the respondent as a highly competent doctor with excellent decision-making skills and with good surgical skills. He has read our reasons for decision and despite the findings he said that his wish was for the respondent "to continue to work the same way as before." 11. The respondent gained his medical qualifications in Afghanistan in 1984 and was granted an AMC Certificate by the Australian Medical Council in 1990. He was first registered in Australia on 4 January 1990. The only practice conditions imposed upon his registration arise out of the complaint the subject of these proceedings. The Submissions of the Parties 1. The complainant emphasised that the misconduct found proven against the respondent is "in the most serious category of boundary violations." 2. The complainant also pointed to the fact that the respondent continually, and over a long period, refused to admit that he had engaged in inappropriate conduct of a sexual nature towards Patient A. He had done so since being interviewed by the police on 1 March 2012 and during the course of investigations, his participation in his criminal trial and during his sworn evidence given in these proceedings. It was said by the complainant that because we had rejected the respondent's evidence in finding the asserted misconduct proven that we must have formed a view that his sworn evidence given before us was untruthful and that this was a significant consideration in determining appropriate protective orders. It is true that we did not accept that part of the evidence of the respondent as to the sexual nature of the internal examination and what followed, where it was inconsistent with that of patient A. However, we do not regard this rejection of his evidence in the circumstances of these proceedings as ipso facto characterising him as a person unfit to be registered as a medical practitioner. It is but one element in a wider tapestry of circumstances. 3. The respondent has not conceded that he lied under oath. Again, there are ameliorating aspects to what might otherwise be indicative of a substantial character defect. The Tribunal dealt with a similar situation in Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75. At [9] to [13] the Tribunal said; 9. We note that nowhere in the statement does the respondent actually acknowledge that he engaged in sexual activity with the patient. In submissions, the complainant was highly critical of the failure of the respondent to do so, stating that this was indicative of a lack of insight, remorse and contrition. This was a critical aspect in the formulation of the complainant's submission that the respondent's registration should be cancelled. 10. We do not regard the failure of the respondent to publicly acknowledge that he engaged in sexual activity with the patient as having the profound consequences contended for by the complainant. As we have said, his sworn evidence was to the effect that he did not engage in any sexual activity with the patient. For reasons which we described in some detail in our earlier decision, we determined to accept the un-sworn and untested statement of the patient in preference to the sworn evidence of the respondent that consensual sexual activity had in fact occurred. In circumstances where the respondent firmly maintains that he did not engage in sexual activity with the patient, notwithstanding our finding to the contrary, it would be hypocritical, for the respondent to now concede that he had lied under oath for the purpose of gaining some mitigation in the context of demonstrative remorse and contrition. We do not attribute the same profound consequences of the failure of the respondent to acknowledge the actual sexual activity with the patient as contended for by the complainant. 11. The circumstances of a person in a similar situation was a matter referred to in the NSW Court of Appeal in Zaidi v HCCC (1998) 44 NSWLR 82; [1998] NSWSC 335. The Medical Tribunal had cancelled a general practitioner's medical registration after it found that he had sexually assaulted three patients. Despite his strenuous denial of guilt, the Tribunal had found him guilty on the basis of the evidence given in the proceedings. In the absence of an admission of wrongdoing or a demonstration of insight into the need for reform, the Tribunal felt that there was a real risk of the practitioner re-offending. 12. On Appeal, Mason J (as his Honour then was), (with whom Priestley J and Powell J agreed) considered the question of whether the practitioner was required to admit his guilt before an application for re-registration could succeed. Regard was had to the following statement from the judgment of Tauro CJ of the Supreme Judicial Court of Massachusetts in Re Alger Hiss (1975) 333 NE 2d 429 at 437: Simple fairness and fundamental justice demand that the person who believes he is innocent though convicted should not be required to confess guilt to a criminal act he honestly believes he did not commit. For him, a rule requiring admission of guilt and repentance creates a cruel quandary: he may stand mute and lose his opportunity; or he may cast aside his hard maintained scruples and paradoxically, commit what he regards as perjury to prove his worthiness to practise law. Men who are honest would prefer to relinquish the opportunity conditioned by this rule: 'Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt ... may be rejected, - preferring to be the victim of the law rather than its acknowledged transgressor - preferring death even to such certain infamy'. Honest men would suffer permanent disbarment under this rule. Others, less sure of their moral positions, would be tempted to believe to commit perjury by admitting to a non-existent offence (or to an offence they believe to be non-existent) to secure reinstatement. So regarded, this rule, intended to maintain the integrity of the Bar, would encourage corruption in these latter petitioners for reinstatement, and again paradoxically might permit reinstatement of those least fit to serve. 13. In applying the above passage to the circumstances in Zaidi, Mason J stated at [39]: I would not disagree with the principle stated in the passage from Hiss that has been quoted. But the proposition which it states is a narrow one; confession is not a necessary precondition to reinstatement. ('Accordingly, we refuse to disqualify a petitioner for reinstatement solely because he continues to protest his innocence of the crime of which he was convicted': Hiss at 437). I do not understand this Court ever to have asserted such a categorical proposition: see Dawson v Law Society of New South Wales. That said, there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness on one or other of the grounds indicated in the sentence underlined ... (citation omitted)." 1. The complainant relied on another aspect of the position taken by the respondent by way of his "repeated denials and total lack of acknowledgement regarding the proven sexual misconduct." It was submitted that these demonstrated a lack of insight and a failure to make any expression of contrition and remorse for his misconduct. It was said that these matters were significant when determining the need to address the protection and safety of the community, which is a matter fundamental to the work of this Tribunal in considering appropriate protective orders. We agree. Whilst the respondent in his statement was at pains to emphasise the adverse effect of the criminal and other proceedings on him and his family, he did not express any concern for the effect of the conduct which we found proven on Patient A. At the least, it might be expected that the respondent would have expressed insight into the consequences of the findings of misconduct made against him, and contrition and remorse that such a finding might have been made against him personally, albeit he maintained his position that the misconduct did not occur. In other words, if he had been guilty of such behaviour, albeit that he disputed this, such circumstances would be indicative of professional misconduct of a serious kind coupled with an avowed intention that it should never be repeated. 2. The complainant asserted that an appropriate protective order involved cancellation of registration with a non-review period of four years. 3. The respondent's submissions emphasised that his conduct involved a single patient on a single occasion. Furthermore, it occurred whilst the respondent was performing a Pap smear test and conducting a bimanual internal examination which were clinically indicated. Accordingly, the conduct of the respondent was to this extent opportunistic rather than predatory. We agree with this characterisation of the conduct. Although the respondent's conduct is far removed from the predatory activities involving a number of patients which are an unfortunate feature of cases which are heard from time to time by this Tribunal, nevertheless it remains a serious matter for reasons which are so obvious that they do not require repetition. 4. The respondent also emphasised that this "one-off" incident was uncharacteristic of the practice of medicine by the respondent over a long period of time involving treatment of many hundreds of female patients. Furthermore, the respondent has continued to practice medicine for over five years without further incident. 5. It was the submission of the respondent that an appropriate protective order would involve either suspension together with the imposition of appropriate practice conditions at the end of the suspension period, or if this was not acceptable to the Tribunal an appropriate order would take the form of cancellation of registration with a non-review period of one year. Consideration 1. The evaluation of what are appropriate protective orders in these proceedings involves the exercise of a value judgement having regard to the several principles to which we have earlier referred and the significance of the matters which were the subject of emphasis in the competing submissions of the parties. 2. We commence our consideration by observing that the transgression of sexual boundaries in the doctor-patient relationship is a most serious matter and involves serious misconduct, albeit that it occurred once only with one patient and was opportunistic rather than predatory in nature. Conduct of this kind may be regarded as conduct which demonstrates that the respondent is not a fit and proper person to practice medicine. 3. This latter aspect is normally considered against the backdrop of any expression of insight by the practitioner into the seriousness of his or her misconduct, and any expression of contrition and remorse for what has occurred, and especially its impact upon the patient. These are matters which are peculiarly in the knowledge of the practitioner. If they are to be established, the practitioner bears the burden of doing so, albeit to the normal civil standard of proof. There is no hint of any such material adduced by the respondent. To some extent it may be said that avowing a different approach to his method of communicating with patients and avoidance of the treatment of female patients after this incident is indicative of some degree of insight, but this does not constitute, in our opinion, any expression of remorse or contrition. On this basis, as the complainant submitted, we have not been provided with any significant degree of comfort that the respondent might not engage in further conduct of this kind. These circumstances enliven a requirement that some element of protection should be imposed. These circumstances also create concern about the extent of the protection and its duration. 4. In the absence of any knowledge of the reason why the respondent engaged in the serious misconduct as we have found, it is impossible to assess whether and to what extent he might again engage in such misconduct in the future. One might think that it would be unlikely that he would do so, but it is inappropriate to so conclude on the basis of a vague understanding of how we would conduct ourselves in these circumstances or how we might think the respondent would conduct himself in the future. We know little of his personality and we are not competent to make such an assessment in the absence of a great deal of additional information. The fundamental requirement of this Tribunal to have regard to the protection of the public demands that we must be given a degree of comfort that the respondent is unlikely to offend again based on an appropriate evidentiary platform before we could consider that he no longer poses an inappropriate risk if he were permitted to continue to practise, even after a period of suspension. In these circumstances, we must conclude that by reason of the serious nature of the respondent's misconduct that he is not currently fit to practice medicine, and will remain so for the indefinite future. We acknowledge the now well-established principle that a medical practitioner who should be restrained from treating female patients is thereby ipso facto unfit to practice medicine generally. Indeed, the respondent did not contend to the contrary. 5. In addition to these matters we must have regard also to the general deterrent effect that the creation of a protective order will have on other practitioners together with the enhancement of the confidence of the public in the integrity and reputation of the medical profession. 6. In our opinion an appropriate protective order requires that the registration of the respondent be cancelled for the reasons which we have set out above. Furthermore, because we are lacking in any substantive information concerning insight, contrition and remorse an appropriate non-review period should be 18 months. We propose to order accordingly. Costs 1. The complainant sought a costs order. As this is a costs jurisdiction and costs normally follow the event, we propose to adopt the consent position reached by the parties namely that the respondent should pay the costs of the complainant assessed in the sum of $35,000. Orders We make the following orders; 1. The registration of the respondent is cancelled with effect from this date. 2. Pursuant to the provisions of section 149C of the Health Practitioner Regulation National law we fix a non-review period of 18 months with effect from this date. 3. The respondent is to pay the costs of the complainant in an amount of $35,000. ********** 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 Amendments 30 June 2017 - Amendment to paragraph 1 under section 63 Civil and Administrative Tribunal Act 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: 30 June 2017