Bahramy v Medical Council of New South Wales

Held per the Court, dismissing the appeal on questions of law and refusing leave to appeal questions of fact: The concepts of "deregistration" as contained in s 64(1) of the Medical Practice Act 1992 (NSW) and "cancellation" in s 287 of the National Law are relevantly the same. The deregistration of the appellant under the Medical Practice Act constituted the cancellation of his registration for the purpose of s 287(1). [26] The effect of s 287 is that the 2008 decision of the Medical Tribunal continues as if that decision had been made under the National Law by NCAT. [32] The order against the appellant made under s 64 was a continuing order that precluded him from practising as a medical practitioner and was still operative. It therefore constituted a "relevant order" the subject of review pursuant to s 163A. [39]-[40] Health Care Complaints Commission v Do [2014] NSWCA 307, distinguished. It was available to the appellant to cross-examine Dr Diamond on his evidence during NCAT proceedings and the appellant did cross-examine him on the essential matters the subject of the proceedings. NCAT was entitled to come to its own assessment of the credibility of that witness. [44]

Judgment

1. THE COURT: This appeal relates to a decision of the New South Wales Civil and Administrative Tribunal (NCAT) to dismiss an application by the appellant, Mr Farid Bahramy, made under s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law), to be reinstated as a registered medical practitioner. In dismissing that application, NCAT made an order on 16 October 2014 precluding the appellant from making a further application for reinstatement for a period of two years from the date of such order.
2. The appeal was brought under cl 29(1)(d) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), which allows an appeal directly to this Court from a decision made under that Act "for the purposes of" the National Law.
3. As finally argued before this Court, the appeal concerned one principal issue, namely, the jurisdictional question of whether, in light of the decision in Health Care Complaints Commission v Do [2014] NSWCA 307, NCAT had the power to make the orders it did on 16 October 2014. This question contained a number of sub-issues: 1. Whether "cancellation" of a medical practitioner's registration pursuant to the now repealed Medical Practice Act 1992 (NSW) had the same meaning as "deregistration" under the National Law; 2. Whether the Medical Tribunal of New South Wales (the Medical Tribunal) was a "responsible tribunal" for the purposes of the National Law; and 3. Whether an order to deregister a relevant person pursuant to s 64(1) of the Medical Practice Act was a "relevant order" within s 163A of the National Law.
4. The practical implication of the approach taken by the appellant in challenging the jurisdiction of NCAT was that the appellant contended that his application to NCAT was misconceived, as he did not require a reinstatement order to be registered as a medical practitioner, but could seek registration directly pursuant to s 52 of the National Law.
5. Leave to appeal was also sought regarding a number of findings of fact made by NCAT. However, as finally argued before this Court, only one factual finding was the subject of challenge, namely, the credibility findings of NCAT in relation to a Dr Michael Diamond.
6. For the reasons given below, this Court dismisses the appeal, and refuses leave to appeal regarding the appellant's challenge to NCAT's factual findings.

Factual and procedural background

1. The appellant was born in March 1964 in Iran. He left Iran as a refugee in 1984 and arrived in New Zealand in January 1987 where he enrolled in high school. The appellant attended Otago University School of Medicine, and obtained a Bachelor of Medicine/Bachelor of Surgery in 1995. He then moved to New South Wales and, on 4 February 1998 was first registered with the then New South Wales Medical Board as a medical practitioner.
2. In 2001, complaints of indecent assault were made against the appellant by two female patients, on two different occasions in different hospitals. On 23 October 2001 the appellant was suspended from medical practice for a period of eight weeks, which was extended until 21 December 2001. As a result of the complaints, the appellant was also charged with, and pleaded guilty to, two counts of assault with acts of indecency. He was sentenced on 3 May 2002, and was placed on a three year good behaviour bond and required to serve 500 hours of community service.
3. In 2003, the then Medical Board held an inquiry into the appellant's actions. It returned a finding that he had engaged in unsatisfactory professional conduct and professional misconduct. The Board placed conditions on the appellant's registration, including that he could not "obtain alternative employment without the prior written approval of the New South Wales Medical Board" and that he was to "inform his employer of these conditions". A number of other conditions were placed on the appellant limiting his interactions with female patients. The appellant was, however, permitted to retain his job at the time, being a position at a male impotency clinic.
4. The appellant continued to practise as a medical practitioner until 2008. On 14 June 2006, by way of a change of name certificate issued by the New South Wales Registry of Births, Marriages and Deaths, the appellant changed his name from Fareed Bahrami to Farid Bahramy.
5. On 17 March 2008 an amended notice of complaint was filed with the Medical Tribunal alleging that the appellant was guilty of unsatisfactory professional conduct, professional misconduct and was not of good character. The particulars of this complaint were, in brief, that the appellant had falsified a copy of his registration card to give the impression that his registration was "general" rather than "conditional", and had presented this falsified copy in his applications for medical training courses, as well as, in the course of such applications, making false and misleading statements in relation to the reasons for the conditions upon his registration. In addition, the appellant made an application to the Administrative Decisions Tribunal (the ADT) in 2005 seeking to be permitted to work with children, and did not inform the ADT that his registration card was forged.
6. On 6 June 2008, the Medical Tribunal held the acts of misconduct to be proved against the appellant and that the appellant was not of good character. The Tribunal relevantly made the following orders; 1. The name of [the appellant] be removed from the Register of Practitioners of NSW; 2. Pursuant to s 63(5) of the Medical Practice Act, an application for review of Order 1 may not be made until expiration of the period of 3 years from [6 June 2008].
7. The appellant has not been registered or practised as a medical practitioner since that order was made.
8. The appellant sought to bring proceedings before the Medical Tribunal for reinstatement to the register of medical practitioners in July 2013. Due to the change in the legislative scheme outlined below, NCAT, in its Occupational Division, heard the appellant's matter on 9 and 10 July 2014. On 16 October 2014, NCAT dismissed the appellant's application and it is this decision that the appellant now challenges on appeal.

Legislative scheme

1. Before 1 July 2010, the relevant legislation regulating the appellant's deregistration and application for review was the repealed Medical Practice Act. It was under this Act that the Medical Tribunal made orders against the appellant in 2003 and 2008.
2. Section 64 of the Medical Practice Act provided for deregistration or suspension of a medical practitioner, as follows: "64 Tribunal can suspend or deregister in certain cases (1) The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person): (a) that the person is not competent to practise medicine, or (b) that the person is guilty of professional misconduct, or (c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence render the person unfit in the public interest to practise medicine, or (d) that the person is not of good character. (1A) The Tribunal must by order direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person) that the person has contravened an order or condition of the person's registration that is a critical compliance order or condition under section 61. (2) An order that a person be deregistered is an order that the person's name be removed from the Register or (if the person has already ceased to be registered) that the person not be re-registered. (2A) If the Tribunal makes an order under this section in respect of a person and it is satisfied that the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following: (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently, (b) place such conditions as the Tribunal thinks appropriate on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 10AK (1) of the Public Health Act 1991 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (2B) If the Tribunal is aware that a person in respect of whom it is proposing to make a prohibition order is registered under a health registration Act other than this Act, the Tribunal is, before making the prohibition order, to notify the board constituted under that other Act of the proposed order and give that board an opportunity to make a submission. (3) An order may also provide that an application for review of the order under Division 3 of Part 6 may not be made until after a specified time."
3. The review provisions of the Medical Practice Act were contained in Pt 6, Div 3 of that Act, s 92-94. Those provisions are fairly similar to the current review provisions in Div 8 of Pt 8 of the National Law and, in particular, to s 163A and s 163B. Accordingly, it is not necessary to separately refer to those provisions.
4. On 1 July 2010, the National Law came into force and took effect in New South Wales. The following definitions are of relevance: "corresponding prior Act means a law of a participating jurisdiction that - (a) was in force before the day on which the jurisdiction became a participating jurisdiction; and (b) established an entity having functions that included - (i) the registration of persons as health practitioners; or (ii) health, conduct or performance action responsible tribunal means a tribunal or court that - (a) is declared, by the Act applying this Law in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of this Law as applied in that jurisdiction, or (b) is declared, by a law that substantially corresponds to this Law enacted in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of the law of that jurisdiction. Note. See section 6C of the Health Practitioner Regulation (Adoption of National Law) Act 2009 which declares that the Civil and Administrative Tribunal is the responsible Tribunal for the purposes of the Health Practitioner Regulation National Law."
5. Section 163A provides a right of review, as follows: "163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of - (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made - (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section - decision-making entity means the following - (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division or under Subdivision 5 of Division 3; (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court. relevant order, in relation to a person, means any of the following orders made by a decision-making entity - (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession."
6. Section 287 of the National Law deals with the question of disqualifications and conditions and is a transitional provision: "287 Disqualifications and conditions relevant to applications for registration (1) This section applies if - (a) under a corresponding prior Act or another law of a participating jurisdiction, a person's registration in a health profession had been cancelled in that jurisdiction by an entity; and (b) in cancelling the person's registration the entity also made any of the following decisions - (i) a decision to set a period during which the person was disqualified from applying for registration, or being registered, in a health profession in the participating jurisdiction; (ii) a decision to set conditions under which the person might reapply for registration in the profession; (iii) a decision to set conditions that must be imposed on any future registration of the person in the profession; and (c) immediately before the participation day, the decision was still in force. (2) From the participation day, the decision continues as if it had been made under this Law by the responsible tribunal for the participating jurisdiction."
7. Section 52 of the National Law is also of relevance to the present appeal: "52 Eligibility for general registration (1) An individual is eligible for general registration in a health profession if - (a) the individual is qualified for general registration in the health profession; and (b) the individual has successfully completed - (i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or (ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; and (c) the individual is a suitable person to hold general registration in the health profession; and (d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and (e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83."
8. The appellant's principal contention was that NCAT had no jurisdiction to make the order given the decision of this Court in Do.

Consideration

1. The Medical Tribunal on 6 June 2008, by order 1, ordered that the appellant's name be removed from the New South Wales Register of Practitioners. Strictly, the Tribunal should first have made an order under s 64(1) that the appellant be deregistered. Section 64(2) then provided that an order that a person be deregistered is an order that the person's name be removed from the Register. It operated automatically on a deregistration order being made pursuant to s 64(1). Order 2 made by the Medical Tribunal on 6 June 2008 was made in accordance with s 64(3) of the Medical Practice Act (although it referred wrongly to s 63(5)). Notwithstanding these clerical errors or slips in the Tribunal's orders, they have been acted upon on the basis that they are proper orders of the Tribunal and should be so treated.
2. By definition contained in s 5 of the National Law, the Medical Practice Act was a "corresponding prior Act" for the purpose of s 287(1)(a) of the National Law. That subsection provides that the section applies if, relevantly, under a "corresponding prior Act", a person's registration in a health profession has been cancelled in the participating jurisdiction (in this case New South Wales) by an "entity" and in cancelling the person's registration the "entity" has also made, relevantly, a decision to set a period during which the person is disqualified from applying for registration: s 287(1)(b)(i).
3. By s 287(2) from the participation day (1 July 2010), the decision of the "entity" cancelling a person's registration continues as if it had been made under the National Law by "the responsible tribunal for the participating jurisdiction".
4. A number of points arise out of s 287. First, there was no exactly equivalent provision in the Medical Practice Act which empowered the Medical Tribunal to cancel a medical practitioner's registration: rather, as already noted, the power in s 64(1) was to direct that the relevant person be deregistered. However, in our view, and as noted at [18] by NCAT, the concepts of deregistration and cancellation of registration are relevantly the same. Given that s 287 is in Pt 12 of the National Law which contains the Transitional Provisions and is, therefore, itself a transitional provision, the deregistration of the appellant under the Medical Practice Act constituted the cancellation of his registration for the purpose of s 287(1). Accordingly, the decision of the Medical Tribunal of 6 June 2008 continues as if it had been made under the National Law by "the responsible tribunal" for the participating jurisdiction, namely, New South Wales.
5. The second question relates to the identity of the "responsible tribunal" for the purposes of s 287(2). That term is defined in s 5 of the National Law as set out above at [18].
6. The definition of "responsible tribunal" makes reference to "the Act applying this Law in a participating jurisdiction". The Act so referred to is the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) (the Adoption Act). Section 6C of the Adoption Act provides as follows: "The Civil and Administrative Tribunal is declared to be a responsible tribunal for the purpose of the Health Practitioner Regulation National Law" (emphasis in original)
7. However, in its earlier form, s 6C of the Adoption Act was as follows: "Each Tribunal is declared to be a responsible tribunal for the purpose of the Health Practitioner Regulation National Law" (emphasis in original)
8. The term "Tribunal" in s 6C was originally defined in the Adoption Act to mean "a Tribunal established under section 165" (of the National Law). That section relevantly established the Medical Tribunal as the Tribunal for the medical profession. On 1 January 2014, NCAT was established by the CAT Act. Pursuant to the CAT Act, s 7 and Sch 1, cll 2 and 3, the Medical Tribunal was abolished. The transitional provisions of the CAT Act provided that "unheard proceedings" in the Medical Tribunal were taken on and from 1 January 2014, to have been duly commenced in NCAT and were to be heard and determined by NCAT: CAT Act, Sch 1, cl 7(1). See Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [15]. As explained in Qasim at [15]: "Clause 7(3) of Sch 1 to the CAT Act had the effect that in determining the complaint [NCAT] had and could exercise all of the functions which the Medical Tribunal previously had and that the applicable version of the National Law was that which would have applied if the amending legislation had not been enacted: see generally Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 at [34]-[43] (Sackville AJA, Basten and Ward JJA agreeing). As such, the version of the National Law applicable to [NCAT's] determination of the complainant was that in force at [the date of the NCAT decision] (the applicable National Law)."
9. The effect of the introduction of NCAT therefore is that NCAT is declared to be the responsible tribunal for the purposes of s 5 of the National Law.
10. Accordingly, the effect of s 287(2) is that the decision of the Medical Tribunal on 6 June 2008 continues as if that decision had been made under the National Law by NCAT.
11. The next question is whether the order of the Medical Tribunal that the appellant be deregistered pursuant to s 64(1) of the Medical Practice Act, is equivalent to the cancellation of his registration within the meaning of s 287(1) of the National Law and thus a "relevant order" within the meaning of s 163A of the National Law. It is at this point that the obiter remarks of Meagher JA in Do at [45]-[48] become relevant.
12. The effect of those remarks seems to be as follows. First, his Honour was of the view that a disqualification order made under s 149C(4)(b) of the National Law did not have the consequence that the health practitioner could not reapply for registration under Pt 7 after any disqualification period had expired unless she had first obtained a reinstatement order under s 163B.
13. Secondly, the basis of the view so expressed was that under s 149C(4) in the case of a person who is "no longer registered" (as was the case with Do whose registration had expired), the Medical Tribunal, if it decided that if the person was still registered it would have cancelled the person's registration, may decide that the person is disqualified from being registered for a specified period. In the case of Do such a decision was made and she was disqualified from being registered for a specified period which had expired. This being so, there was not at the time the Medical Tribunal sought to deal with her matter a "relevant order" capable of review pursuant to s 163A, given the definition of "relevant order" in subpara(b) of s 163A(4).
14. There was no such order extant in respect of Do. First, her registration had never been cancelled: it had expired by effluxion of time; secondly, she was not disqualified from being registered as her disqualification period had also expired. There was therefore no operative or extant "relevant order" which could be reviewed.
15. Meagher JA nevertheless noted that a disqualification order made under s 149C(4)(b) would be a "relevant order" within the meaning of s 163A and, therefore, subject to review if at the time the Tribunal dealt with the matter the disqualification was still in place. Thus, pursuant to s 149C(5) the Tribunal is empowered, amongst other things, to cancel a registered health practitioner's registration and if it does so, it may make what is there referred to as a "prohibition order" which prohibits the person from providing health services for a period specified in the order or permanently. His Honour accepted that such an order would be a "relevant order" for the purpose of s 163A and therefore subject to review.
16. Equally, if a person's registration was cancelled by the Tribunal pursuant to s 149C(5), then his Honour accepted, at [46], that that would be a "relevant order". However, the point his Honour makes at [47] is that a disqualification order for a specified period made pursuant to s 149C(4)(b) of the National Law is no longer a "relevant order" after the period of disqualification expires. This being so, there is nothing to review as a consequence of which the practitioner is eligible to apply under s 52 (which is in Div 1 of Pt 7 of the National Law) for registration. That section provides that an individual is so eligible if, relevantly, the individual is not disqualified from applying for registration: see s 52(1)(d). Do was not so disqualified because her period of disqualification had expired. She was therefore entitled to apply for registration under s 52. Of course, she may well have been found unsuitable to hold general registration on one or more of the grounds referred to in s 55 of the National Law.
17. Section 52 does not apply in the present case as the appellant is, in effect, disqualified from "being registered" as his registration was "cancelled" and has never been reinstated. At [48] Meagher JA emphasised the fact that a Tribunal could, in effect, only review under s 163B an order or decision that was "still operative". The appellant's deregistration was indeed still operative: he was disqualified by that deregistration from being a registered medical practitioner which deregistration by virtue of s 287(2) continued as if made under the National Law by NCAT, being the responsible tribunal for New South Wales: see [32] above.
18. NCAT in the present case dealt with this jurisdictional issue at [12]-[23] of its reasons. At [19] it held that the transitional provisions (ss 287 and 292) had the effect that a decision made under the Medical Practice Act continues as if it had been made under the National Law. At [22], it distinguished Do on the basis that in the present case, unlike the facts in Do, there is a continuing order that precludes the appellant from practising and which is still operative. Hence it may be reviewed under s 163A and a reinstatement order made under s 163B if appropriate. In the Court's view, NCAT's decision on the jurisdictional issue as applied to the facts of the present case, was clearly correct. For the foregoing reasons NCAT had jurisdiction pursuant to s 163A to review the deregistration decision of the Medical Tribunal of 6 June 2008.

Leave to appeal against factual findings

1. As we have not accepted the appellant's principal argument and he did not formally seek to withdraw his application for leave to appeal, it is appropriate that we deal with the question whether leave to appeal should be granted to appeal against certain of NCAT's factual findings and if leave is granted, to consider those findings. As we have already observed above at [5], the principal challenge was in respect of the acceptance of Dr Diamond's evidence, with which we deal below. We also make brief reference to the other challenges.

Ground 2(a): Challenge to Dr Diamond's evidence

1. The Medical Council's principal witness in the proceedings brought by the appellant was Dr Diamond, consultant psychiatrist, who had been retained by the Medical Council to psychiatrically examine the appellant. NCAT accepted Dr Diamond's opinions on all matters upon which he reported, in respect of which, NCAT observed, accorded with their own assessment.
2. On the hearing of the appeal the appellant sought to adduce, by way of further evidence in this Court, a tape recording of the consultations he had with Dr Diamond for the purposes of the proceedings. The appellant informed the Court that the basis of this application was because Dr Diamond had erroneously recorded matters that he, the appellant, had said during the course of those consultations in such a way that demonstrated that Dr Diamond was biased.
3. We reject this application. As the appellant had made this recording during the course of the consultations, he had it available to him for the purposes of cross-examination of Dr Diamond during the NCAT proceedings. If he wished to challenge the accuracy of Dr Diamond's reports by reference to the tape recording, that was the occasion to do it. In any event, as a perusal of the appellant's cross-examination of Dr Diamond's evidence revealed, the essential matters of which the appellant complained as not having been accurately recorded by Dr Diamond were the subject of cross-examination and, on occasions, the subject of appropriate concessions by him.
4. We consider that there was no other basis upon which NCAT's acceptance of Dr Diamond's opinions which, as we have mentioned, accorded with the opinion to which NCAT was entitled to come on its own assessment of the appellant, was erroneous. Accordingly, we refuse leave to challenge this finding.

Grounds 2(b)-2(e)

1. The appellant complained in ground 2(b) that the Medical Tribunal that determined his 2008 application did not have before it a particular tax invoice. This Court is not concerned with an appeal from the decision made in 2008. The appellant next complained in ground 2(c) that he had been advised by his legal representatives not to appeal from that decision. That also is not a matter relevant to the present appeal. Likewise, the matters raised in paras (2)(d) and (e) relate to matters to the 2008 proceedings. The appellant appropriately recognised that to be the case. Leave to appeal in respect of those matters is refused.

Grounds 2(f)-(h): appellant's good character, hardship in not being able to practice and compliance with conditions imposed in 2003

1. The appellant also agreed that none of these matters raised challenges to NCAT's factual findings. Leave to appeal is also refused in respect of these paragraphs.

Orders

1. The Court makes the following orders:
2. Appeal dismissed;
3. Leave to appeal in respect of the New South Wales Civil and Administrative Tribunal's factual findings is refused;
4. The appellant is to pay the respondent's costs of the appeal.

Amendments 08 December 2015 - Typographical errors corrected at [16], [38] and [39] 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: 08 December 2015