Bahramy v Medical Council of New South Wales

NCAT Occupational|2017-08-25

Solicitors: Applicant in person Medical Council of NSW (Respondent) File Number(s): 2017/00378807

REASONS FOR DECISION

The applicant applies to the Tribunal seeking an order pursuant to section 163A of the Health Practitioner Regulation National Law (NSW) ("the National Law") that his application for registration as a medical practitioner be approved and that he be reinstated in accordance with section 163A(4)(b) in view of the expiration of a two-year embargo imposed by the Tribunal in 2014.
The practitioner had previously practised, but as a result of proceedings in the Medical Tribunal as detailed below, his name was removed from the register of medical practitioners in 2008. The practitioner has made previous attempts to be reinstated, the most recent being in 2014, but such application was unsuccessful. The practitioner now submits that there is no reason why registration should be denied to him.

Registration as a medical practitioner

On 4 February 1998, the applicant, then known as Fareed Bahrami, was registered as a medical practitioner in New South Wales.

Offences

On 3 May 2002 the applicant was convicted of two offences of "assault with act of indecency" pursuant to s 61 of the Crimes Act 1900 (NSW).
The first offence occurred on 12 January 2001 when the applicant was working as a general practitioner at Edgecliff Medical Centre at Edgecliff. The offence involved the assault of a female patient, aged 20, during the course of a medical consultation. The patient made a complaint to the Health Care Complaints Commission. The incident was also reported to the police.
In the Applicant's response to the Health Care Complaints Commission of 14 September 2001 he denied the patient's allegations and gave a different account of what had happened during the consultation. The applicant later admitted that this account was false during later proceedings before the NSW Medical Tribunal in 2003.
The second offence occurred on 26 September 2001 when the applicant was working as a general practitioner at the Big Bear Medical Centre. The offence involved the assault of a female patient, aged 21, during the course of a medical consultation. The patient made a complaint to the police and to the Health Care Complaints Commission.
The applicant pleaded guilty to both offences in the proceedings in the Local Court on 22 March 2002 and was sentenced on 3 May 2002 in the District Court.
On the first count the applicant was sentenced to 500 hours of community service.
On the second count the applicant received a s.9 bond with the following conditions: 1. To be of good behaviour. 2. To appear before the Court if called to do so at any time during the term of the bond. 3. To advise the Registrar of the Court of any change of residential address by pre-paid registered post. 4. To continue course of counselling with Dr Berkett until such time as Dr Berkett deems it appropriate to terminate same.
Although the s.9 bond refers to a "Dr Berkett", the correct spelling of that doctor's name is Dr Burkitt.

Suspension from Medical Practice

On 23 October 2001, pursuant to section 66(1)(a) of the Medical Practice Act 1992 (NSW), the Medical Board suspended the applicant from practising medicine for an initial period of eight weeks following an Inquiry conducted under section 66 of that same Act. That period was extended to 19 December 2001.

Conditions imposed on Applicant's registration in 2001

On 21 December 2001 pursuant to section 66A of the Medical Practice Act 1992 (NSW), the Medical Board lifted the suspension and imposed the following conditions on the applicant's registration: 1) That Dr Bahrami is to work only in a public hospital approved by the Board or Board-approved group practice, (group is defined as at least three practitioners), with one other practitioner always working and on site. 2) That Dr Bahrami is to seek Board approval prior to changing the nature or place of his Practice. 3) That Dr Bahrami must not consult, treat or examine any female patient unless a third person is continuously present. 4) That if Dr Bahrami works in a group general practice: a) If the patient is under 14, the third person required to be present may be her mother. b) Otherwise, the person shall be a female chaperone appointed for this purpose by the practice and with no other concurrent duties in the practice. c) he principal of the practice is to send to the Board for its approval a list of possible chaperones, stating their age, previous occupation or other current part-time positions and to forward to the Board at the end of as set out ¡n the attached pro-forma record sheet marked as Annexure "A". d) Dr Bahrami must notify the principal of the practice and any other practitioner who may be the one other practitioner working on site with him of these conditions and of his conviction and forward to the Board within seven (7) days of commencing employment a copy of these conditions signed by each one of these practitioners with an acknowledgement that the convictions have been disclosed to them. 5) lf Dr Bahrami is employed in a public hospital a) A female member of the nursing staff may satisfy the requirement in Condition 3 above. b) Dr Bahrami must notify the Medical Director and Nursing Unit Manager of the Department(s) in which he is employed and forwarded to the Board within seven (7) days of commencing employment a copy of these conditions signed by each one of these persons.

Conditions of 19 February 2003

As at 19 February 2003, when his Registration Card for the year commencing 3 March 2003 was issued, the Applicant's registration was subject to the following conditions, imposed by the s.66A Inquiry decision of 21 December 2001 and varied by a subsequent s.66 Review decision of 9 May 2002: Employment Related Conditions 1) That Dr Bahrami is to work only in a public hospital approved by the Board or Board-approved group practice, (group is defined as at least three practitioners), with one other practitioner always working and on site. 2) That Dr Bahrami is to seek Board approval prior to changing the nature or place of his practice and prior to commencing any employment. 3) That Dr Bahrami must not consult, treat or examine any female patient unless a third person is continuously present. 4) That if Dr Bahrami works in a group general practice: (a) If the patient is under 14, the third person required to be present may be her mother. (b) Otherwise, the person shall be a female chaperone appointed for this purpose by the practice and with no other concurrent duties in the practice. The principal of the practice is to send to the Board for its approval a list of possible chaperones, stating their age, previous occupation or other current part-time positions and to forward to the Board at the end of each calendar month details of all female patients seen by Dr Bahrami as set out in the attached pro-forma record sheet marked as Annexure 'A'. (c) Dr Bahrami must notify the principal of the practice and any other practitioner who may be the one other practitioner working on site with him of these conditions and of his conviction and forward to the Board within seven (7) days of commencing employment a copy of these conditions signed by each one of these practitioners with an acknowledgement that the convictions have been disclosed to them. 5) If Dr Bahrami is employed in a public hospital (a) A female member of the nursing staff may satisfy the requirement in Condition 3 above. (b) Dr Bahrami must notify the Medical Director and Nursing Unit Manager of the Department(s) in which he is employed and forwarded to the Board within seven (7) days of commencing employment a copy of these conditions signed by each one of these person. Health Related Conditions 1) That Dr Bahrami is not to prescribe for self-medication. 2) That Dr Bahrami is to attend for treatment by a general practitioner of his choice, at a frequency to be determined by Dr Bahrami and the general practitioner. To authorise the treating practitioner to inform the Board of failure to attend for treatment, termination of treatment or if there is a significant change in health status. Dr Bahrami is to advise the Board within 7 days of receipt of these conditions the name of his treating general practitioner. 3) That Dr Bahrami is not to self-administer any substance detailed in Schedule 4 or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act. In addition, Dr Bahrami shall not self-administer any narcotic derivative, non-prescription compound analgesic or cold medication unless prescribed and taken at the direction of Dr Bahrami's treating practitioner. Dr Bahrami agrees to notify the Board-nominated psychiatrist and the Board of any instances of illness requiring the administration of the medications as described above. ln addition, Dr Bahrami is to provide the Board with written confirmation of such treatment from the treating practitioner within seven days of the prescription being written. 4) That Dr Bahrami is to attend for treatment by either Dr Burkitt or a psychiatrist of his choice, at a frequency to be determined by that practitioner. That Dr Bahrami authorise either Dr Burkitt or the psychiatrist to inform the Board of failure to attend for treatment, termination of treatment or if there is any significant change in health status. 5) That Dr Bahrami continue to take any medications prescribed by either Dr Burkitt, the psychiatrist or general practitioner. Monitoring Related Conditions 1) That Dr Bahrami attend for review by a Board nominated psychiatrist, initially on a 6 monthly basis, at the Board's expense. 2) That Dr Bahrami attend a Review interview at the Board in 6 months or as otherwise directed by the Board. 3) That Dr Bahrami authorise the Board to forward copies of the Section 66 Inquiry Decisions, subsequent Board Review Interview Reports and other information relevant to Dr Bahrami's impairment to the Board-nominated psychiatrist and Dr Bahrami's treating practitioners. 4) That Dr Bahrami's compliance with Employment Related Conditions be monitored and reviewed by the Board's Conduct Committee and his compliance with Health Related and Monitoring Related Conditions be monitored and reviewed by the Board's Health Committee.

2003 proceedings in the Medical Tribunal

On 10 September 2003, the Medical Tribunal comprising Deputy Chairperson Sidis and Tribunal members Dr Donald Grimes, Dr Esther Kok and Ms Moira Brophy found the applicant guilty of professional misconduct, and the complaints the subject of those proceedings proved.
Complaint one, as made by the Commissioner, Health Care Complaints Commission, was that the applicant "has been guilty of professional misconduct and/or unsatisfactory professional conduct within the meaning of sections 36 and 37 of the Medical Practice Act 1992 (NSW) in that he engaged in conduct which demonstrates a lack of adequate judgment or care in the practice of medicine and has engaged in improper or unethical conduct relating to the practice of medicine".
The particulars of complaint one were that: "On or about 12 January 2001 at the Edgecliff Medical Centre at Edgecliff the practitioner consulted a female patient, Patient A. On about 26 September 2001 at the Big Bear Medical Centre at Neutral Bay the practitioner consulted a female patient, Patient B. During the consultation with Patient A: 1. The practitioner, having become sexually aroused whilst examining Patient A's shoulder area, inappropriately proceeded to perform further physical examinations of Patient A and have Patient A remove items of her clothing during those examinations. 2. The practitioner inappropriately pressed his erect penis against Patient A's right hip area whilst testing her shoulder mobility. 3. The practitioner inappropriately touched Patient A in the chest area whilst she was lying on the examination table where there were no proper clinical indications to physically examine Patient A's chest area. 4. The practitioner inappropriately pressed his erect penis against Patient A's right hip area whilst testing her shoulder mobility for a second time. 5. The practitioner inappropriately exposed Patient A's buttocks and touched her on the buttocks and thighs in circumstances where there were no proper clinical indications to examine Patient A's buttocks and thigh area. 6. On 14 September 2001 the practitioner furnished the Commission with information for the purposes of the Health Care Complaints Commission Act 1993, namely information contained in paragraphs 2, 3, 4, 5, 8 of the practitioner's letter to the Commission dated 14 September 2001, knowing that it was false and misleading in material particulars, contrary to the provisions of Section 99 of the Health Care Complaints Commission Act 1993. During the consultation with Patient B: 1. The practitioner inappropriately touched Patient B on her back and buttocks whilst she was lying on the examination table in circumstances where there were no proper clinical indications to examine Patient B's back and buttocks. 2. The practitioner inappropriately touched Patient B on her stomach, ribs and pubic area whilst she was lying on the examination table in circumstances where there were no proper clinical indications to examine Patient B's stomach, ribs and pubic area. 3. The practitioner inappropriately touched Patient B's chest and breasts whilst she was lying on the examination table in circumstances where there were no proper clinical indications to examine Patient B's breasts and chest. 4. The practitioner inappropriately touched Patient B's back, buttocks, thighs and perineal area whilst she was lying on the examination table in circumstances where there were no proper clinical indications to examine Patient B's buttocks, thighs and perineal area. 5. The practitioner placed Patient B's hand next to his erect penis and moved her hand over his erect penis a number of times. 6. The practitioner inappropriately placed his hand on Patient B's pants and asked Patient B if he could pull her pants down."
Complaint two, as made by the Commissioner, Health Care Complaints Commission, was that the "applicant has been convicted of criminal offences in New South Wales".
The particulars of complaint two were that "On 3 May 2002 the practitioner was convicted in the District Court at Sydney of two counts of Assault with Act of Indecency, contrary to section 61L of the Crimes Act, 1900".
On 23 December 2003 the Medical Tribunal imposed the following conditions on the Applicant's registration: Health Related conditions i. Dr Bahrami is not to prescribe for self-medication. ii. Dr Bahrami is to attend for treatment by a general practitioner of his choice, at a frequency to be determined by Dr Bahrami and the general practitioner. Dr Bahrami is to authorise the treating practitioner to inform the Medical Board of New South Wales ("the Board") of failure to attend for treatment, termination of treatment or if there is a significant change in health status, Dr Bahrami is to advise the Board within 7 days of receipt of these conditions of the name of his treating general practitioner. iii. Dr Bahrami is to attend for treatment by a psychiatrist of his choice, at a frequency to be determined by that psychiatrist. Dr Bahrami is to authorise the psychiatrist to inform the Board of failure to attend for treatment, termination of treatment or if there is any significant change in health status. iv. Dr Bahrami is to continue to take any medications prescribed by the psychiatrist or general practitioner. Monitoring related conditions i. Dr Bahrami is to attend for review by a Board nominated psychiatrist, initially on a 6 monthly basis, at the Board's expense. ii. Dr Bahrami is to attend a Review interview at the Board in 6 months or as otherwise directed by the Board. iii. Dr Bahrami is to authorise the Board to forward copies of the Board Review interview reports and other information relevant to Dr Bahrami's impairment to the board-nominated psychiatrist and to Dr Bahrami's own treating practitioners. iv. Dr Bahrami's compliance with Employment Related Conditions is to be monitored and reviewed by the Board's Conduct Committee and his compliance with Health Related and Monitoring Related Conditions is to be monitored and reviewed by the Board's Health Committee. Employment related conditions i. Dr Bahrami is permitted to retain his current position of employment. He may not obtain alternative employment without the prior written approval of the New South Wales Medical Board. ii. Dr Bahrami is to inform his employer of these conditions and is to forward to the President of the New South Wales Medical Board on commencement of the employment, a copy of these conditions signed by his employer. 2. These conditions may not be reviewed, varied or discontinued by the New South Wales Medical Board for three years.

2006 Conditions

As at 5 May 2006, the Applicant's registration was subject to the following conditions: Employment Conditions 1. Dr Bahrami is permitted to retain his current position of employment. He may not obtain alternative employment without the prior written approval of the New South Wales Medical Board. 2. Dr Bahrami is to inform his employer of these conditions and is to forward to the President of the New South Wales Medical Board on commencement of the employment, a copy of these conditions signed by his employer. 3. These conditions may not be reviewed, varied or discontinued by the New South Wales Medical Board for a period of three years. Health Conditions 1. Dr Bahrami is not to prescribe for self-medication. 2. Dr Bahrami is to attend for treatment by a general practitioner of his choice, at a frequency to be determined by Dr Bahrami and the general practitioner. Dr Bahrami is to authorise the treating practitioner to inform the Medical Board of New South Wales ('the Board') of failure to attend for treatment, termination of treatment or if there is a significant change in health status. Dr Bahrami is to advise the Board within 7 days of receipt of these conditions of the name of his treating general practitioner. 3. Dr Bahrami is to attend for treatment by a psychiatrist of his choice, at a frequency to be determined by that psychiatrist. Dr Bahrami is to authorise the psychiatrist to inform the Board of failure to attend for treatment, termination of treatment or if there is any significant change in health status. 4. Dr Bahrami is to continue to take any medications prescribed by the psychiatrist or general practitioner. 5. Dr Bahrami is to attend for review by a Board-nominated psychiatrist, initially on a 6 monthly basis, at the Board's expense. 6. Dr Bahrami is to attend a Review Interview at the Board in 6 months or as otherwise directed by the Board. 7. Dr Bahrami is to authorise the Board to forward copies of the Board Review interview reports and other information relevant to Dr Bahrami's impairment to the board-nominated psychiatrist and to Dr Bahrami's own treating practitioners. 8. Dr Bahrami's compliance with Employment Related Conditions is to be monitored and reviewed by the Board's Conduct Committee and his compliance with Health Related and Monitoring Related Conditions to be monitored and reviewed by the Board's Health Committee.

Change of name

On 14 June 2006 the applicant's change of name, from Fareed Bahrami to Farid Bahramy, was registered by the Registry of Births, Death and Marriages.

2008 proceedings in the Medical Tribunal

On 17 March 2008 the Commissioner, Health Care Complaints Commission, filed an amended notice of complaint.
Complaint one was that the respondent has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of ss. 36-37 of the Medical Practice Act 1992 (NSW). Complaint two was that the respondent was not of good character.
The particulars of complaint one upon which the complainant proceeded were: 1) At some time between 19 February 2002 and 13 March 2003, the practitioner altered a photocopy of his registration card issued to him by the New South Wales Medical Board by replacing the word "conditional" with the word "general". 2) On or about 13 March 2003, the practitioner presented the photocopy of the altered registration card to Andrew Greacen JP for him to certify the photocopy is the true copy of the original registration card. 3) On or about 21 March 2003, the practitioner submitted to the RANZCO as a part of his application for the Ophthalmology training scheme a photocopy of the altered registration certified by Andrew Greacen JP as a true copy of the original registration card. 4) At some time between 2 March 2004 and 10 March 2005 the practitioner altered a photocopy of his registration card issued to him by the New South Wales Medical Board by replacing the word "conditional" with the word "general". 5) On or about 10 March 2005, the practitioner presented the photocopy of the altered registration card to a Justice of the Peace for him or her to certify the photocopy as a true copy of the original registration card. 6) On or about 11 March 2005, the practitioner submitted to the RANZCO as a part of his application for the Ophthalmology training scheme, a photocopy of the altered registration certified by a Justice of the Peace as a true copy of the original registration card. 7) On or about 8 March 2007, the practitioner made a false or misleading statement to the Royal Australian and New Zealand College of Ophthalmologists by stating "The conditions upon my registration are mainly related to my health, concerning a bout of major depression which affected me a few years ago".
The particulars of complaint two as made by the Commissioner were the same as those relied upon in respect of complaint one but did include particular four which was: 4) On 5, 6 June and 23 December 2003, the New South Wales Medical Tribunal held an inquiry into complaints alleging that the practitioner was guilty of professional misconduct and had been convicted of criminal offences in New South Wales. On 10 September 2003, the Tribunal found the complaints proved. On 23 December 2003, the Medical Tribunal severely reprimanded the practitioner and imposed conditions on the practitioner's registration.
On 6 June 2008, the Medical Tribunal comprising Justice Puckeridge QC and Tribunal Members Dr D Child, Dr J Ng and Ms A Gray found, inter alia, that on the acts of misconduct proved by the complainant and the evidence before the Tribunal the respondent is not of a good character. The Tribunal ordered: 1) The name of Fareed Bahrami be removed from the register of practitioners of New South Wales; 2) Pursuant to s. 63(5) of the Medical Practice Act 1992, the Tribunal order that an application for review of Order (1) may not be made until the expiration of a period of three years from today; 3) That the practitioner pay the costs of the Health Care Complaints Commission of and incidental to this hearing.

2013 application for review

In December 2013 the applicant made a second application for reinstatement to the register of medical practitioners (having made, and withdrawn, an application earlier in 2013).
The application was heard in July and September 2014.
On 16 October 2014 the Tribunal delivered its decision dismissing the application for reinstatement and precluding the applicant from making a further application for two years - Bahramy v. Medical Council of New South Wales [2014] NSWCATOD 116.

Appeal

The applicant appealed to the New South Wales Supreme Court of Appeal, as of right, and sought leave in respect of factual findings.
In a judgment delivered on 7 December 2015 the Court dismissed the appeal as of right, and declined leave to appeal factual findings: Bahramy v. Medical Council of New South Wales [2015] NSWCA 307.

Current Proceedings

The applicant filed an application for reinstatement on 20 October 2016.

Evidence and Submissions

In support of his application which is dated 20 October 2016, the practitioner relies upon both oral and written evidence provided by: Dr Christopher J Lennings, clinical psychologist; Dr Michael Reid, general practitioner; and Dr David W Harding, clinical psychologist.
The respondent ("the Council") opposes the orders sought. The respondent relies upon the evidence of Dr Peter Klug, forensic psychiatrist. Dr Klug provided two written reports, namely on 3 May 2017 and 17 August 2017, and provided oral testimony.
The issues raised on this application are of significance for the applicant. The Tribunal is required to determine whether it is the public interest that the applicant's name be restored to the register of medical practitioners. Such question gives rise to issues concerning the fitness of the applicant to practise and whether, if the Tribunal were minded to make an order for reinstatement, any conditions should be imposed. Accordingly it is necessary to consider in detail the evidence provided in support of his application.

Dr Lennings

Dr Lennings, clinical psychologist, has been consulted by the applicant since 2005 for the purpose of medicolegal reports. Dr Lennings again saw him in 2014, and on 19 May 2017 the applicant and Dr Lennings consulted by Skype for 67 minutes. As a result a report was produced dated 25 May 2017.
In the report Dr Lennings states that, in his early reports, he found that the applicant was "a low risk in regard to a likely further sexual offence" and said that in his 2014 report, he found that such risk had even further abated. His report states, inter alia: "30. A psychological construction of Mr Bahramy's approach is that Mr Bahramy has an idealised self-image and cannot accept behaviours that contradict that image. Thus he was unable, and continues to find it difficult, to make a meaningful declaration of wrongdoing but must provide a tortuous account of things so as to defend himself from a simple ownership of wrongdoing. When this was put to him Mr Bahramy said "look I did wrong, I suffered……" but then indicated that he was trying to find why things went so wrong, again emphasising his intellectual approach to issues and his self-serving linking of having done wrong and his suffering. This is his survival mechanism and has not changed over time, and seemingly is unlikely to do so. However, in his defence it should be acknowledged that learning by consequences entails suffering at times, and despite his habit to referring [sic] to his suffering rather than that of his victims' or the institutions and principals he had traduced, suffering is relevant to his learning about what not to do in the future. It should also be noted that Mr Bahramy does understand his victims suffered and does understand he breached principles he should not have - what he cannot do is sound convincing when he says these things because he understands them intellectually but remains insulated from an emotional acceptance of these things because of the extent to which he sees himself as the victim of his own stupidity and all the costs that he, and his family of origin, have had to pay as a consequent). 31. Sexual Risk. There has been no sexual misconduct since 2001 and none before. He says there are no complaints about his behaviour; he noted that in 2007 and 2008 he was working in men's sexual health. He says as a function of that there was some consultation with female patients in regard to libido and sexual health, but says there were no complaints. He denies the use of hard-core pornography, but will watch some SBS shows that can be sexually explicit, although he does not report seeking out such material. He tells me that he continues to masturbate, but at a low frequency (roughly once a fortnight) justifying that it is apparently good for prostate (although he is unable to document where he has heard this). Nonetheless he reports a low libido, difficulty in achieving an erection and no sexual pre occupation or hyper sexuality. Given the passage of time there appears to be no appreciable risk that he is likely to reoffend, despite my comments in 2005 about the relationship between opportunity and proclivity."
Dr Lennings undertook further personality testing and came to the following view: "45. Opinion. In conclusion Mr Bahramy said he did a lot of wrong things, 46. Mr Bahramy came back to his desire to register as a medical practitioner, even with conditions, versus not being able to practice [sic] medicine. He believes that it would be unfair that he would not be registered again. Ultimately the issue for Mr Bahramy is that he has done as much as can be done to minimise risk of further unprofessional behaviour within the restrictions placed on him by his personality and experiences in his formative years. His self absorption and intellectualisation is such that if the issue is does he know right from wrong, and will he be motivated to do the right thing, then he has done all he can possibly do to demonstrate that in the last period of his life (since 2008). If the issue is can he gain emotional insight and understand the emotional dimensions of his behaviour, then he is stuck. Mr Bahramy does have an understanding of the emotional life of others, but his understanding is filtered through his considerable intellect and his self-absorption or survivor mentality. A major obstacle to Mr Bahramy developing a sense of "true" emotional empathy sees [sic] to be his need to defend himself from shame. This has not been successfully managed despite significant psychotherapy. That is amongst his many attributes the capacity for emotional empathy is not one of them, although he can intellectualise an understanding of others. The question then arises is it sufficient for a medical practitioner to have an emotional awareness of the dimensions of his behaviour and the emotions of others, or must they be capable of experiencing emotionally charged empathy? If it is the later, then Mr Bahramy will continue to struggle to meet the requirements to be registered."

Dr Michael Reid

Dr Reid is a general practitioner. He was first consulted by Dr Bahramy during late 2016. In his view, the applicant exhibited genuine remorse. He said: "3. … He should be supervised in his clinical practice for a significant period of time. Although reoffending sexually is most unlikely, he should not consult with female patients unless supervised, again for a significant period of time. Such strategies would be very effective. 4. I believe genuine remorse exists now. It may have developed slowly and as a result of formal education in professional ethics but I do believe Mr Bahramy is now genuinely ashamed and sorry about his offenses and past behaviour. 5. I believe any sexual misconduct inside or outside of clinical practice is extremely unlikely. 6. Similarly, dishonest conduct in general is also extremely unlikely as a result of his acquired understanding of ethical behaviour, of what is right and wrong generally. 7. See Question 3. I have nothing further to add. 8. I do not believe he has any psychiatric or chronic illnesses that would restrict his ability to practise medicine."

Dr David Harding

Dr Harding, clinical psychologist, has been consulted by the applicant since April 2017 for treatment, having been referred by his general practitioner, Dr Reid, for treatment of stress. At the time of preparing his report he had consulted with him on four occasions. Dr Harding provided a psychological report dated 19 June 2017, stating inter alia: "In relation to his sexual assault of two female patients in 2001, Mr Bahramy, in our meetings, has consistently expressed guilt and remorse for his actions. In this regard I note that Dr Klug reports Mr Bahramy "appeared to show a lack of empathy for them" (i.e. the sexual assault victims). This however has not been the case in interviews with me. Further, even though Mr Bahramy may have expressed himself more emotionally with me (than with Dr Klug), it is my opinion that it would, irrespective be very difficult, and unreliable to view him as showing "a lack of empathy" without providing examples of a clear pattern of un-empathic behaviour. Similarly, Dr Klug reports Mr Bahramy does not "spontaneously refer to alterations in his attitude or any insight into why he might be viewed as not being of good character. To me this indicates that he has gained no emotional insight". Dr Klug makes further reference to not being convinced that Mr Bahramy's recent studies in ethics and law have led to any changes in "emotional status" or that an attempt by Mr Bahramy to outline his understanding of the elevated status (and expectations) society bestows on the medical profession, demonstrated "true emotional insight". In my opinion these statements appear highly speculative and based on little confirmatory evidence. In addition, within the context of a high-stakes decision-making process (i.e. suitability to practice [sic] medicine) and bearing in mind the rights of the both [sic] individual and society more broadly, then more precise and compelling evidence of an ongoing pattern of problematic behaviour is required. In relation to Mr Bahramy's personality and character structure, I strongly support the detailed description provided by Dr Lennings, not only given its greater descriptive precision, but also given the multiple contacts he has had with Mr Bahramy. This increased precision and repeated contacts adds significantly to the validity and reliability of his findings. With this in mind and when considering the Tribunal's specified "terms of reference", I agree in whole, with Dr Lennings' responses, which in summary do not identify an impediment to Mr Bahramy regaining his medical registration. I further support the need for Mr Bahramy to undergo a period of professional mentoring, given the length of time he has been de-registered, and for him to continue with his psychological self-improvement treatment."

Evidence of the Council

In his report dated 3 May 2017, Dr Klug, forensic psychiatrist, having reviewed much material and having held a discussion with the applicant made the following observation: "Mr Bahramy, when I enquired about how he feels the prevailing system has acted toward him, said that at times he has tried to blame the system but that his insight now is "if you do something wrong you should cop it on the chin". He reiterated that "no wrong is acceptable". He does not, however, spontaneously refer to alterations in his attitude or any insight into why he might be viewed as not being of good character. To me this indicates that he has gained no emotional insight."
Dr Klug relevantly concluded: "My opinion is that Mr Bahramy continues to display a lack of emotional insight and an inability to translate his knowledge of ethics and law into true insight. Despite his assertion that he experiences shame about his wrongdoings there is little to indicate that there is any depth of emotion or that it has significantly altered his attitudes and behaviours. At times he appeared to express remorse and regret but in the context of the interview as a whole it was difficult to accept these expressions of emotion at face value. I come to my opinion with some concern for Mr Bahramy. He presented as a pleasant and affable man with a severely adverse history of being persecuted for his religious faith in Iran, having to flee the country, living in two refugee camps over about twenty-seven months, before migrating to New Zealand. His history indicates that he is a very intelligent and extremely hard-working person. Nevertheless, I cannot resile from my views concerning the issues noted above. In response to your specific questions: 1. Does the applicant now have genuine insight into the inappropriate nature of his conduct that resulted in him being deregistered in NSW? I do not believe that Mr Bahramy has genuine insight for the reasons noted above. Insight can be categorised into intellectual insight and emotional insight. Mr Bahramy provides little to suggest that he has attained the latter which is necessary for an alteration in emotional attitudes and behaviour. 2. Are you able to identify character defects that contributed to the applicant's past misconduct, and if so are you able to identify whether the applicant could, and has, overcome these character defects? Mr Bahramy has a troublesome narcissistic aspect to his character. There is an emphasis on a sense of entitlement in that he has unreasonable expectations of receiving favourable treatment or compliance with his expectations. There are features of his being interpersonally exploitative in that he attempts to take advantage of others to achieve his aims. He also appears to lack true empathy for others and this is particularly so with respect to the offences against the women in 2001. He generally presents and arrogant and haughty demeanour. It can also be noted, and Dr Diamond has made reference to this as well, that there is an aspect of his behaviour in that he wants to be treated as special and can only be understood by other high status people or institutions. 3. Please advise any strategies that would need to be developed by the applicant to avoid engaging in fraud, dishonesty or sexual misconduct should he be permitted to return to the practice of medicine. Please provide your opinion as to the likely success of those strategies. Given Mr Bahramy's long history of unacceptable behaviour, and his continuing lack of true insight, empathy and remorse, as well as his failure to alter his emotional stance, it is difficult to envisage that any strategy would be successful in altering his attitudes and behaviour so that he may again practise medicine. 4. In your view, does the applicant have genuine remorse for committing the misconduct for which he was deregistered in NSW? In my view, as I noted above, he does not appear to experience genuine remorse about his misconduct for which he was deregistered. 5. What is the applicant's risk of engaging again in sexual misconduct in a general practice or other clinical setting as a medical practitioner, should he be permitted to return to the practice of medicine? It is difficult to assess the risk of his engaging again in sexual misconduct. Given his lack of empathy, with respect to the effect a sexual assault is likely to have on a woman, it is impossible to say that the risk is negligible. 6. What is the applicant's risk of engaging again in dishonest conduct in a general practice or other clinical setting as a medical practitioner, should he be permitted to return to the practice of medicine? In my view, given my opinion above, it is difficult to discount the likelihood that he, given opportunities in the future, would engage in dishonest conduct in a clinical setting."
In his supplementary report dated 7 August 2017, Dr Klug commented upon the report of Dr Michael Reid referred to above and of Dr Christopher Lennings and of Dr David Harding. Having identified matters which he disagreed with the opinions of such persons, Dr Klug stated his opinion as follows: "My opinion is unchanged. I am not swayed by the statements in the reports by Dr Harding or Dr Reid. Dr Harding makes general statements about the profession of medicine and asserts Mr Bahramy's emotional insight should not be the primary focus of attention and simply states that Mr Bahramy understands the difference between right and wrong without any justification. Dr Reid states that Mr Bahramy has attained emotional and intellectual insight and has no narcissistic character traits, again without clear reasoning. Dr Reid also states that even if such attitudes were present that it is a non-issue because Mr Bahramy's risk of reoffending is low. Interestingly, Dr Reid also states that Mr Bahramy was fortunate to have been allowed to continue practising after his sexual offences and affirms that he should have been deregistered after lying about his conditional registration. He simply states that the price Mr Bahramy has paid is now too high for these offences. These opinions by Drs Harding and Reid are essentially views rather than reasoned opinions. Dr Christopher Lennings makes reference to a prior underlying depressive state and prior impulse dycontrol. He remained concerned with respect to the nature of the offences committed by Mr Bahramy. He notes that Mr Bahramy lied and dissembled to gain advantage for himself. He, however, believes that Mr Bahramy has benefited from psychotherapy and has now taken responsibility for his behaviour. He denies the presence of any current psychiatric illness but refers to Mr Bahramy's character traits of self-absorption, intellectualisation, lack of emotional insight and a poor capacity for true emotional empathy. He regards Mr Bahramy as not having a fully developed "emotional system". Nevertheless he states that Mr Bahramy has "learnt the hard way" about right and wrong and that there is no longer any significant likelihood of sexually reoffending or of misconduct. I find these various views difficult to reconcile."
The Tribunal has had the benefit of cross-examination of all of the above experts, and makes its findings based upon its consideration of the evidence so adduced.

Consideration

The Tribunal found, in its 2014 Reasons for Decision for refusing reinstatement that the applicant's evidence was self-serving or "at least designed to minimise or excuse his inappropriate conduct which has continued up to 2013". The Tribunal also observed: "Our assessment of the applicant's lack of insight, his behaviour in respect of professionals, including academics, psychiatrists and barristers post 2008 and his attempts to minimise his false evidence to the universities to gain extensions of time for assignments cogently demonstrates that while he has an academic understanding of ethical issues, that academic understanding is not translated into his day to day conduct."
The Tribunal is not bound by the decision of the previous Tribunal: in Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403, the High Court of Australia said (inter alia) at [28]: "The duty of the court is to determine in what manner the court should exercise its discretion in the particular circumstances of each case. Generalisations relating to questions of character and moral fitness, such as the statement quoted from Ex parte Macauley (1930) 30 SR 193 should not be treated as if they were propositions of law."
This Tribunal is mindful of those observations. The Tribunal will not treat the 2014 decision as binding upon it, in the same way that the 2014 Tribunal observed [at 84]: "While we are not, in accordance with the National Law, re-examining the applicant's conduct at the time of the previous hearings we have regard to the findings of those Tribunal is to assess whether or not deficiencies in the applicant's character, particularly those identified by the 2008 Medical Tribunal have been remedied."
Accordingly, the issue for determination by the Tribunal is whether the applicant, since the 2014 decision, has demonstrated change such as to establish that the applicant has now overcome the shortcomings referred to in the 2014 decision. The onus of doing so rests upon the applicant. Further, the factual background of the applicant is a necessary consideration.
In its decision, the Tribunal in 2014 considered that a two-year period should be imposed before the applicant could reapply for registration. It said, in imposing such restriction, that it "properly balances the factors which presently disqualify the applicant, with his cultural background and the severe financial and other hardship he has suffered."
In reaching such conclusion, the 2014 Tribunal, in accepting the evidence of Dr Diamond, said at [137]: "But we also found his [the applicant's] evidence to be self-serving or at least designed to minimise or excuse his inappropriate conduct which has continued up to 2013. We were satisfied that while he has an academic understanding of ethical obligations, that understanding is not translated into appropriate actions in the Post 2008 period. Further, we are satisfied, for the reasons discussed above, that he does not currently display any real insight into the events which brought him for the two previous Medical Tribunals, or his conduct in respect of people, particularly professionals, post those hearings. Nor do we find the applicant demonstrated true remorse for the effect of his actions on his victims".
This Tribunal is required to determine whether it is now satisfied that, with the passage of time since the last Tribunal decision, the applicant has demonstrated that the shortcomings identified in 2014 have now been rectified. In particular the Tribunal must determine "Whether the practitioner's conduct post of misconduct demonstrates that public and professional confidence may be re-posed to him to uphold and observe the high standards of moral rectitude required of a medical practitioner": see Basten JA in HCCC v Karalasingham [2007) NSW CA quoting an extract from McBride v Walton (unreported NSWCA 15 July 1994). At [45), Basten JA said that the words "not of good character" do not have a special technical meaning."
In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 (CA), the Court of Appeal observed that it should not be assumed that (in cases of application for reregistration) that the applicant has become a "reformed person". The court quoted Holmes JA in Ex parte Tziniolis; Medical Practitioners Act (1966) 67 SR (NSW) 448 at 611; 84 WN (NSW) (Pt 2) 275 at 286: "… Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years gone by and is not printed anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man".
Despite the above, the Tribunal is also mindful of the observations of Kirby P in Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 where his Honour said: - "There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance."
The applicant submits that he is now "a very different man from 2008…". This Tribunal notes that the 2014 Tribunal recorded that the applicant had benefited from his attendances upon a person described as Dr Fisher and the Tribunal referred to the fact that it was unfortunate that the applicant had not continued his consultations with Dr Fisher. Before this Tribunal, no reference to Dr Fisher had been made by the applicant.
The applicant has referred to sessions he has undertaken with psychologists between 2003 and 2017. It is apparent from such chronology that no psychological assistance has been received or sought by the applicant from the date of the 2014 decision and until April 2017 when the applicant first consulted Dr David Harding.

Matters of Concern

The Tribunal takes note of the following matters: 1. In respect of the applicant's convictions, it is important to note the applicant's motivation. With respect to his first victim in 2001, he perpetrated an indecent assault in circumstances where he calculated that the risk of detection was low because he believed that if the victim complained, she would not be believed. He told the Tribunal that this was part of the reason why he selected this victim. 2. In respect of the second act of indecency in 2001, the applicant waited until a reasonable period had expired after the first incident before he perpetrated his assault on the second victim. He told the Tribunal of his belief that no complaint would be made by the first victim and the lack of consequences from the first assault led him to believe that his chance of being detected in respect of his assault on the second victim would be negligible. 3. The Tribunal considers that the motivation in each case suggests a mindset which is deeply concerning. 4. The applicant on two separate occasions falsified his record of medical registration, as below. He prevailed upon unwitting friends or acquaintances to witness his false statutory declaration. 5. The applicant used his falsified credentials for the purpose of his application for the Ophthalmology training scheme. The 2014 Tribunal found that the applicant had misled the University of Sydney in respect of the applicant's post-graduate studies in ophthalmology. The applicant, in 2002/2003 had photocopied his registration card by replacing the word "conditional" with "general"; the applicant then presented the altered registration card to a justice of the peace and requested him to certify the photocopy was a true copy of the original registration card; and repeated such conduct in 2004/2005. The applicant submitted such particulars to the Royal Australian and New Zealand College of Ophthalmologists [RANCZO] the certified copies of the altered registration cards as true copies of the originals. When the discrepancy was discovered, the applicant made a false statement to RANZCO in 2007 to the effect that the conditions on his registration related to health, namely "major depression", in circumstances where he knew this to be untrue. 6. The Tribunal also found that he had lied to the Charles Sturt University when he sought to gain an extension of time for work due for his Master's course. In respect of the latter incident, the applicant claimed that he was required to travel to Brisbane in November 2009 to organise his partner's father's funeral which was untrue; further, in 2010 he told that university that his illness caused problems with his work and study, in circumstances where he had not worked since 2008. The applicant acknowledged that he had misled the University. 7. The applicant was removed from the Register of Practitioners in 2008. 8. Following the applicant's second application for reinstatement which was determined in 2014, the applicant vindictively made baseless allegations against a medical specialist, Dr Michael Diamond, who had provided evidence for the Medical Council of NSW. The allegations resulted from the fact that the applicant had covertly tape-recorded a medico-legal consultation arranged by the Medical council of NSW with Dr Michael Diamond for the purpose of giving a report on the current status of the applicant. Such allegations against Dr Diamond were included in the applicant's notice of appeal and the allegation of perjury was included in the applicant's appeal. 9. The appeal was dismissed. This Tribunal concludes that the allegations against Dr Diamond were made because of the applicant's malice and ill will towards Dr Diamond because Dr Diamond wrote an adverse report. We are satisfied that the appeal was motivated by vindictiveness.

Further Considerations

As already referred to, the consultation between Dr Klug and the applicant was also the subject of a tape-recording at the insistence of the applicant. On this occasion it was not made covertly. The New South Wales Police had already interviewed the applicant as an investigation into an apparent breach of the legal provisions prohibiting recording of conversations without the consent of another party in relation to his recording of the interview with Dr Diamond without Dr Diamond's knowledge or consent.
Whilst there is nothing illegal in the conduct of the recording during such interview, it displays a disturbing personality trait of the applicant. The applicant demonstrated by insisting upon a tape-recording that he was anticipating that Dr Klug would not support his application. The applicant's cross-examination of Dr Klug demonstrated an aspect of the applicant's character which we find to be incompatible with a character required of a medical practitioner. The malice which the applicant bore towards Dr Klug because his reports were adverse to the applicant's interests, was obvious from the questions he asked in cross-examination of Dr Klug.
The applicant appeared before this Tribunal in the same manner as he appeared before the 2014 Tribunal, namely respectful, polite and well mannered. However the Tribunal was concerned by several matters.
Firstly, the applicant produced receipts for subscriptions for the New England Journal of Medicine which demonstrated, he claimed, his educational readings for the years 2015, 2016 and 2017. The applicant included 18 emails received from such Journal which he stated were offered to the Tribunal as examples of emails from the journal received in 2016 in support of his claim that he was continuing to stay up-to-date with his medical reading in 2016. Clearly the implication was that the Tribunal should accept that he read such journals sequentially in those years. However the Tribunal observed that the 18 emails had all been received by him from the journal in 2017. When questioned, the applicant acknowledged that he had inadvertently deleted from his computer, emails from the journal received by him in 2016, so he substituted emails received in 2017 as evidence of his reading in 2016. In his written submissions, the applicant acknowledged that he should not have included such information but put them forward merely to show that he had continued his educational activities. Such conduct, whilst apparently trivial, nevertheless concerned the Tribunal because it shows the applicant was essentially misleading the Tribunal.
Secondly, it is pointed out to the applicant that when he consulted Dr Klug for the purposes of his medico-legal interview at the request of the respondent, he asked Dr Klug whether he had any objection to the interview being tape-recorded. Dr Klug accepted that was the applicant's wish; however, it is apparent that, unknown to Dr Klug, the tape recorder was already recording and had been recording for 9½ minutes before the request to record the interview was made. The Tribunal finds that such conduct by the applicant was at the very least, evasive, if not deliberately misleading. The applicant did not acknowledge that he was already recording the conversation and the prevarication suggests a lack of candour. The request was made by the applicant in words to the effect as follows: "Will it be okay to do the recording of our conversation?" Dr Klug: "Are you recording?" Applicant: "Do you mind if I start recording? Okay, what I'll do I'll just start recording and then email you straight away a copy or airdrop it to you if you have Wi-Fi."
Thirdly, it is apparent from the submissions made before us by the applicant this year the applicant describes as "leading questions". The applicant claims that such conduct "contradicts the legal requirement of being impartial in making an assessment". The applicant also submits: "The conclusion arrived at by the expert witness proved not to be in accord with the statements that the applicant had made to him during the interview, but what the applicant had failed to express spontaneously when the leading questions were put to him by the expert witness. The report produced by the expert witness showed to contain a number of paragraphs repeated in the body of the report, indicating that the expert witness had not read the report in a careful fashion to pick out such major mistakes before signing it and sending the report to the respondent".
It is correct that the report contains a duplication of paragraphs which was described by Dr Klug as a word-processing error. The Tribunal does not regard such error as significant: however the fact that the applicant challenges Dr Klug's integrity in the circumstances of a medico-legal interview is concerning to the Tribunal. The Tribunal finds no disparity as alleged by the applicant between the questions asked by Dr Klug and his report. Nor were the questions asked by Dr Klug "leading questions", that is, questions which suggest or contain an answer. The applicant approached this issue on the basis that Dr Klug was giving false evidence.
The applicant claimed before the Tribunal to have some prospect of working with a well-known and eminent Sydney ophthalmologist. However, the ophthalmologist had not provided any indication of such a prospect to the applicant. The applicant had written to the ophthalmologist making enquiries, but a reply was sent indicating that once the applicant had been reregistered he could contact the ophthalmologist. The applicant has clearly exaggerated his alleged association with the ophthalmologist, as confirmed in a letter provided by the ophthalmologist to the Tribunal.
The applicant included in his curriculum vitae that he had been engaged in philanthropic work. On questioning, he conceded that such assertion was effectively baseless. The same observation resulting from his statement that he was involved in matters of "World Peace" and "World Affairs". These are but further examples of overstatement by the applicant of the true facts.
The applicant has secured an internet address which includes "Dr". The applicant acknowledged he applied for such name knowing that it implied that his occupation is as a medical practitioner.

Findings

The applicant raised an allegation that the 2014 Tribunal was biased. Such allegation was based upon the fact that one of the Tribunal members, a psychiatrist, operated in the same practice as Dr Diamond. It transpires that such Tribunal member apparently operated independently of Dr Diamond. No objection was made by the applicant at that hearing. This Tribunal cannot find now that there was actual or apprehended bias in the 2014 Tribunal. However the Tribunal agrees with the applicant that it was unfortunate that there should have been any possible relationship of any kind between a witness and the Tribunal.
The conduct displayed by the applicant in the circumstances is incompatible with the requirements of a medical practitioner. It demonstrates a looseness with the truth; yet the applicant fails to perceive that absolute honesty, integrity, frankness and reliability are requirements for qualification as a medical practitioner.
The Tribunal is satisfied that if any situation arose which did not serve the applicant's interests; the applicant would defend the indefensible. A medical practitioner, in the course of his professional duties, will be placed in a position where he or she deals with patients, fellow practitioners, health workers and other members of the public. The Tribunal has no confidence that the applicant, if faced with an issue involving an error or shortcoming which he may have committed, would have the integrity to acknowledge the error.
Such conclusion coincides with the findings of the 2014 Tribunal and Dr Klug, namely that the applicant "continues to display a lack of emotional insight and an inability to translate his knowledge of ethics and law into true insight". Dr Lennings essentially holds the same opinion when he said at para 42 of his report: "Somewhat unexpectedly, Mr Bahramy also scored high on the Openness factor. Such people have an interest in novelty (in his case mostly because of his high level of intellectual curiosity about things) and variety and tend to be sensitive of their own feelings and have a "greater than average ability to recognise the emotions of others". This apparent sensitivity appears contrary to Mr Bahramy's presentation over the years (other than his sensitivity to his own emotional state). As raised above I believe that Mr Bahramy has worked on himself over the years and now does have a good capacity at an intellectual level to recognise the emotional state of others. Nonetheless, this does not necessarily translate into high empathy as such an expression is blocked by the intense focus he brings to bear on achieving his goals." (Emphasis added)
The Tribunal considers that the expressions of remorse made by the applicant do not constitute remorse in the sense of genuine regret: rather, the expressions of remorse are made because the applicant perceives it necessary to make such expressions of remorse in view of the circumstances to which he has been reduced and in the hope that it would assist him in presenting himself as a reformed character.
The Tribunal finds that the applicant's repeated acts of misleading conduct, sometimes involving half-truths and deception, for example the tape recording at the commencement of the Klug interview, cannot be overlooked. One of the acts of dishonesty (the provision of false information to a university) occurred whilst the applicant was undertaking studies in ethics. The calculated attempts to subvert the law, as detailed above in relation to the fraudulent altering of his credentials; the repeated lying and the vicious attacks made on Dr Diamond satisfy the Tribunal that the applicant does not possess the requisite qualities of character of integrity and honesty which are essential qualification for registration of a medical practitioner.
The Tribunal notes that the publication of the Australian Health Practitioner Regulation Agency entitled "Registration Standard: Criminal History" published on 1 July 2015 addresses the question of convictions of medical practitioners and of the matters to be taken into consideration. It is recognised that certain concessions may be made, for example where the offences are acknowledged, whether the offence was an aberration and there has been evidence of good conduct or rehabilitation since the offence. However where there is a pattern of behaviour, such factor militates against registration. This Tribunal must be confident that the applicant is a fit and proper person to practise: See Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [65] where Toohey and Gaudron JJ said that conduct "may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question".
In accordance with the established authorities, this Tribunal must consider the quality of the character of the applicant. It has been held that the term "good character" is not a "summation of acts alone, but relates rather to the quality of a person": it is to be judged by acts and motives, behaviour and the mental and emotional situations accompanying that behaviour: see Ex parte Tziniolis at 475-476 per Holmes JA. Further, it has been held that "conduct may show a defect of character incompatible with a membership of a self-respecting profession": see Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 (2 July 1957).
Ultimately, the Tribunal must have regard to the overriding consideration of the protection of the health and safety of the public (see s 3A of the National Law). Further, the Tribunal must be satisfied that the applicant has "sufficient physical capacity, mental capacity, knowledge and skill" to practise: see s139(a) of the National Law.
It is disturbing that the applicant did not seek to obtain psychological assistance until he was referred to clinical psychologist Dr Harding by his general practitioner Dr Reid, in April of 2017. The applicant complained to Dr Reid that "he has experienced significant stress associated with a long-term effort to regain his registration as a medical practitioner." He did not suggest that he needed treatment because of personality defects that were referred to in the 2014 decision.
The Tribunal notes that the applicant has not been diagnosed with a "personality disorder". However the reports highlight aspects of his personality that assist the Tribunal to understand that the applicant has an obsessive and narcissistic personality style with a "self-preservation ability". The applicant is clearly single-minded and driven, self-centred, self-absorbed and lacks empathy. His attitude is noted to be defensive and he has a strong tendency to blame others, especially professionals, as we have already referred to above.
Whilst he is ready to blame himself for his past actions, there is no evidence that has any genuine sympathy for the victims of his assaults. Dr Klug, whose evidence we consider is more informative and reliable than that of Dr Harding and Dr Lennings, considers that there is a lack of emotional empathy demonstrated by the applicant, and that he lacks true empathy for others. The applicant's reference to the fact that he has made a "fatal error", when he talks of the indecent assaults, fails to address any concern for the victims. Rather, the applicant acknowledges that the "fatal error", or that he "shot himself in the foot", has had serious consequences for himself. The Tribunal considers that the opinion of Dr Lennings, emphasised at para 42 of his report, in its final sentence, essentially agrees with the ultimate conclusion of Dr Klug.
The Tribunal considers that the circumstances are not dissimilar to that considered in Medical Tribunal of New South Wales in the matter of Dr William McBride and the Medical Practice Act, number 40022 of 1995 (decision 1 May 1996), where the Tribunal found that it was unable to place: "their trust and confidence in that practitioner to be scrupulously honest and straightforward in the event that some conflict should in future arise between his duty to be honest and self-interest."
The Tribunal had found: "a serious degree of intellectual and moral dishonesty" and that such was "demonstrated by his denials, evasions, attempted justifications…".
The applicant may have benefited from seeking psychological assistance on regular occasions from 2014. He has not done so. The Tribunal is puzzled by the fact that he has waited for the expiration of the two-year period of suspension before making another application without taking heed of the matters referred to in the 2014 decision. Had psychological counselling been provided over an extended period, it may have provided him with some insight into his personality and enabled him to overcome its shortcomings. However we have seen no demonstration that there has been any change in his attitudes, as demonstrated by his attack on Dr Klug's evidence. Alternatively, it could have been that the applicant felt that such treatment was unnecessary for him. If this were the case, it would be a demonstration of his personality defect, namely a lack of insight. In 2014 the Tribunal expressed its concern that Dr Fisher, who had been assisting the applicant, had not provided evidence.
There was no reason offered to this Tribunal why the applicant had not sought assistance following the 2014 decision to address issues identified in the 2014 decision including matters relating to his personality and particularly his evident lack of insight into his conduct. There was no evidence presented of any psychological assistance being received or sought by the applicant from the date of the 2014 decision until April 2017 as is discussed above.
The Tribunal notes that the applicant has not been involved in employment at least since 2014, and indeed possibly since 2006. Instead the applicant has lived on Centrelink payments. This is unfortunate since, had there been some evidence of his inter-relationship with fellow employees, it may have assisted the Tribunal.
The applicant claims to have searched for work. The Tribunal finds it unusual that the applicant has apparently not sought employment in work where his training could have been utilised, for example as a medical technician.
The Tribunal has been referred to the Registration Standard entitled "Recency of Practice", published on 1 October 2016. Such standard draws attention to numerous issues to be determined where a practitioner has been not engaged in practice of the profession. For present purposes, we do not consider that it is necessary to address this standard further.
The Tribunal notes the extensive conditions which have been formulated by the respondent in the event that the Tribunal was minded to allow the application. Such conditions may be useful if the applicant makes a future application. However the Tribunal concludes that a further period of two years is necessary to enable the applicant to seek further psychological assistance before he makes any further application for re-registration. The Tribunal's decision is not to be taken as implying that the applicant should never be re-registered. The Tribunal notes the applicant's academic record, favourable comments of his academic tutors, his attendance at two conferences since 2014, and his keen interest in the practice of medicine. However, there must be an insight instilled into the applicant which will demonstrate to him that practice in this profession requires total candour, frankness and honesty. There is no place for half-truths, misleading or deceptive conduct by a practitioner, irrespective that circumstances may arise where the practitioner is liable to criticism or not be in the practitioner's interest.
The Tribunal does not consider that there has been any fundamental change in the applicant's insight since the Tribunal made its decision in 2014. It follows that the application is dismissed.
Before any further application for re-registration is made, it will be necessary for the applicant to undergo intensive psychological counselling for the purpose of overcoming his current character traits as discussed above which led to the dismissal of his application.
The Tribunal notes the application for costs made by the respondent. In the circumstances, the Tribunal sees no reason why the applicant should not pay the costs of the proceedings.

ORDERS 1. The applicant's application under section 163A of the Health Practitioner Regulation National Law (the National Law) for reinstatement to the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency in conjunction with the Medical Board of Australia is dismissed. 2. The applicant is precluded under section 163B (5) of the National Law from applying to the NSW Civil and Administrative Tribunal for a reinstatement order for a period of two years from the date of these orders. 3. The applicant is to pay the costs of and incidental to these proceedings of the Medical Council of NSW as agreed and failing agreement liberty to restore before the Tribunal for assessment.

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 25 October 2017 - Pursuant to UCPR r36.17: 58 'HCCC' amended to 'Medical Council of NSW' Case List, [54]: citation 'Tzinolas' to 'Tziniolis' and (1956) to (1966) [54] first line of quote - 'at' to 'but' 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: 25 October 2017

Medical Practice Act 1992(NSW)

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