Health Care Complaints Commission v Amjadi [2025] NSWCATOD 44

(b) When engaged in plastic surgery practice, to practise only in a group practice approved by the Medical Council of NSW where there is at least 1 registered specialist plastic surgeon (excluding the subject practitioner).

(c) The practitioner is not to perform more than four body contouring procedures a week on patients who have undergone massive weight loss and have a BMI of not greater than 30.

(B) Bodylifts/Torsoplasty/Belt Lipectomy/Abdominoplasty

(F) Body-contouring implants (excluding breast implants);

(ii) Massive weight loss is where a person has lost more than half of their bodyweight above that person's BMI

(e) To practice under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.

(f) The terms of the Council's Compliance Policy - Supervision are varied so that:

(A) be a fellow of the Royal Australasian College of Surgeons; and

(B) hold current specialist registration as a Plastic and Reconstructive Surgeon with the Medical Board of Australia.

(g) the practitioner is to authorise the Council-approved Supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis.

(h) Prior to each supervision meeting, the practitioner must forward a copy of their Surgical Procedure log to the Council-approved Supervisor for review and discussion.

(i) At each supervision meeting the practitioner is to review and discuss his practice with particular focus on:

(i) Patient selection of cosmetic/aesthetic patients

(ii) Pre-operative assessment of cosmetic/aesthetic patients

(iii) Post-operative care of cosmetic/aesthetic patients

(iv) Informed consent of cosmetic/aesthetic patients

(v) a review of at least 3 randomly selected medical records of patients who had a Defined Body-Contouring Procedure.

(j) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision of the NSW Civil & Administrative Tribunal regarding Stage 1 and Stage 2 proceedings; HCCC v Dr Amjadi [2024] NSWCATOD 167.

(k) Not to practise until a supervisor has been approved by the Medical Council of NSW.

(l) Within seven days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with his surgical logbook recording all surgical procedures undertaken in the previous month. The record must include the following:

(iv) the name and nature of the surgical procedure;

(v) the location where the surgical procedure took place; and

(vi) any complications arising as a result of the procedure.

(m) The practitioner is to focus his Continuing Professional Development, to the extent that it is available, on:

(vi) Surgery for patients who have undergone massive weight loss

(n) Prior to performing the first three Defined Body Contouring Procedures following the date of the making of these conditions, the practitioner must obtain from his Council-approved supervisor a written statement that supports the practitioner performing the surgical procedure.

(o) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.

(p) These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the National Law.

(q) Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.

(3) The Respondent is to pay 75% of the costs of the HCCC as agreed or as assessed.

(4) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure and publication of the name of any patient referred to in these reasons or in any document filed or tendered in the proceeding is prohibited.

OCCUPATION - medical practitioners - specialist plastic surgeon - appropriate protective orders where guilty of professional misconduct - conditions imposed on licence - costs

Civil and Administrative Tribunal Act 2013 (NSW)

Health Practitioner Regulation (New South Wales) Regulation 2016

Chen v Health Care Complaints Commission [2017] NSWCA 186; [2017] 95 NSWLR 334

Health Care Complaints Commission v Aref [2018] NSWCATOD 133

Health Care Complaints Commission v Bruna [2014] NSWCATOD 31

Health Care Complaints Commission v Burton [2017] NSWCATOD 57

Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156

Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102

Health Care Complaints Commission v Lord [2019] NSWCATOD 182

Health Care Complaints Commission v Perera [2018] NSWCATOD 112

Lee v HCCC [2012] NSWCA 80

Medical Board of Australia v Liang Joo Leow [2019] VSC 532

Medical Practitioners Board of Victoria v Lal [2009] VSCA 109

NSW Bar Association v Meakes [2006] NSWCA 340

Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993)

Riley v Health Care Complaints Commission [2019] NSWCATOD 54

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the disclosure and publication of the name of any patient referred to in these reasons or in any document filed or tendered in the proceeding is prohibited.

1. This is the Stage Two judgment in this matter. The Stage One judgment was delivered on 22 October 2024. The Stage Two hearing took place on 12 November 2024.
2. The relevant Stage One orders are as follows:

(1) The Respondent is guilty of unsatisfactory professional conduct as described in s 149B(1)(a) and s 139B(1)(b) of the National Law.

(2) The Respondent is guilty of professional misconduct as described in s 139E of the National Law.

1. As will be seen hereafter the Tribunal has taken longer than might otherwise be expected to reach a decision in this Stage Two hearing. The determination of the appropriate protective orders to impose has been very difficult to decide.
2. The Health Care Complaints Commission (the HCCC) relied upon the following documents in this Stage Two hearing:

(1) Exhibit A16: HCCC Material Stage Two Proceedings.

(2) Exhibit A17: Paragraphs 35 to 50 of Patient C's statement dated 18 June 2020.

(3) Exhibit A18: HCCC proposed conditions.

(4) Exhibit A19: Copy HCCC document dated 29 October 2024 re Dr Mahyar Amjadi.

1. The HCCC further provided to the Tribunal a written submission which was marked MFI 9 and a written submission in relation to its Cost Application, which was marked as MFI 11.
2. Dr Mahyar Amjadi (the Respondent) relied upon the following documents:

(1) Exhibit R21: The Respondent's Stage Two documents.

(2) Exhibit R22: The Respondent's Affidavit dated 12 November 2024.

1. The Respondent provided a written submission which was marked as MFI 10.
2. When the hearing concluded on 12 November 2024 the HCCC was directed to provide a response to the Conditions proposed by the Respondent on or before 22 November 2024. The Respondent was to provide any further response by 26 November 2024.
3. It is clear that all of the evidence of each party which was before the Tribunal in relation to the Stage One hearing, so far as it remains relevant to this Stage Two hearing, is relied upon by the parties. Additionally, each party accepts that the Stage One decision is also before the Tribunal for this hearing.

Consideration of the HCCC evidence set out in Exhibits A16 and A18

1. This exhibit firstly contains a summary of the Stage One findings. The document has been read by us and we note the number of findings made against the Respondent in full or in part, when compared to the Particular number of Complaint One and Complaint Two.
2. The exhibit then sets out detail of the Respondent's compliance history between 1 October 2019 and the date of the hearing. There is no evidence of the Respondent having failed to comply with any of the conditions placed upon his registration during that five year period.
3. The HCCC particularly relied upon pages 35 to 50 of the statement of Patient C dated 18 June 2020. That document had been in evidence for the Stage One hearing. The evidence was objected to on the basis of relevance and probative value. The Respondent submitted that the failure of the HCCC to provide any document from Dr Sandroussi gives rise to procedural unfairness to the Respondent. The argument was concluded with the HCCC stating its contention that Patient C, the subject of pages 35 to 50 in Exhibit A17, continues at the date of the hearing to suffer the same medical conditions described in the exhibit and remains unemployed. In the absence of evidence or a concession on fact from the Respondent, we cannot see how we can give that last statement weight. We do however accept that Patient C suffered significantly as a result of injury to her organs during the procedure conducted by the Respondent.
4. In submission as to the relevance of the evidence the HCCC submitted the evidence points to the gravity of the Respondent's professional misconduct which gave rise to damage to Patient C's organs.
5. Exhibit A18 sets out conditions which the HCCC urges the Tribunal to impose as part of the protective orders it will make. We will refer to those conditions later in this judgment. The HCCC submitted the conditions would be effective at the recommencement of practice for the Respondent following a period of six months suspension.

1. In relation to the Respondent's exhibits we noted the following:
2. Exhibit R21: This is a folder which contains a copy of the statement made by the Respondent dated 4 November 2024; a summary of the Stage One findings; supplementary references from Dr Safvat and Dr Turner; Supervision reports from Dr Safvat and Dr Turner; The Respondent's Procedure Logs; and detail of continuing professional development undertaken by the Respondent.
3. In the Respondent's statement dated 4 November 2024, we noted the following in particular.

(a) The Respondent commenced undertaking surgery in the massive weight loss area because he saw there was an unmet need in the community. He priced his service to meet affordability for patients who otherwise would be unable to access such surgery.

(b) In 2019 when he faced his first s 150 hearing before the Medical Council of NSW (Medical Council), he realised he was underprepared for the massive weight loss surgery he was undertaking. He set out the reasons for that situation.

(c) The Respondent has read all the patient statements and supporting evidence presented to the Tribunal. He has reflected on each patient's circumstances and expressed remorse for the pain and suffering they experienced.

(d) The Respondent has learnt a great deal in relation to the practice of plastic surgery since he was first required to practice under supervision in 2019. He believes he is safe to practice again in all of the areas of plastic surgery which fall within that specialist medical practice.

(e) The Respondent has suffered personally as a result of the actions taken against him by the Medical Council and the HCCC. He described the number of publications which have been made available following the release of the Stage One judgment. He has been contacted by numerous journalists and reporters seeking comment from him. Some of the publications were factually incorrect. They appeared on the internet and will remain as available to be searched by patients and referring medical practitioners for many years.

(f) Compliance with the conditions and restrictions on practice have been onerous to the Respondent and have placed him in financial hardship. His health has suffered as he has addressed the consequence of his conduct as a surgeon. He has lost weight, suffered anxiety and other conditions.

(g) [REDACTED]. The Respondent has suffered on a personal and professional level in many other ways, which he set out in his statement. He lost his private practice, his academic position and his privileges at five private hospitals. He cannot apply for any new positions in public hospitals until this proceeding has been concluded.

(h) Should he be able to return to practice he will be required to pay an increased professional indemnity premium called a "risk surcharge".

1. The Respondent set out his current practice circumstance. He works at two skin cancer clinics. He operates one afternoon a month at Westmead Private Hospital and one morning a month at Kingsgrove Day Surgery. He has days when he works in rooms at Kingswood, Gymea and Edgecliff. On Friday he assists Dr Safvat at Kareena Private Hospital. He also attends Dr Turner's rooms.
2. In relation to his future plans, we note he states:

(1) He will try to recover his private practice.

(2) He has support of his colleagues and is grateful for their role in assisting him to change the way in which he will practice in the future.

(3) He will strive to practice in the future in a manner which establishes a reputation as a surgeon of excellence.

1. We have read the updated references from Dr Safvat and Dr Turner. Both are supportive of the Respondent being able to return to practice. We have also read the supervision reports and the procedure logbook which form part of Exhibit R21. We have also read the detail of the further education the Respondent has undertaken or subscribed to.
2. We have read the affidavit of Ms Lauren Antonini, solicitor, who annexed copies of published documents reporting on the decision of the Tribunal in the Stage One hearing and also set out postings people had made on the articles published online.
3. The evidence of the Respondent concludes with the tender of a proposal for conditions which he would ask the Tribunal to make. We will refer further to those conditions later in this judgment.

1. The Respondent, under oath, affirmed the content of his statement.
2. Since 2020, when the conditions attached to his registration allowed the Respondent to assist in surgeries, he has assisted with about 150 surgeries and been the primary surgeon on 10.
3. The Respondent was cross-examined. He was asked about the type of surgery he has been undertaking since the conditions were imposed on his registration. He described most of his surgery as being day surgery. Most surgery is undertaken to the face area of his patients.
4. The Respondent was cross-examined about the circumstances in which he operated on Patient C. He said he should have declined to undertake the surgery but didn't because she was working in a very remote location and working with refugees. He is now confident he can decline to undertake surgery where he opines it would be too problematic surgically and/or in the healing and scarring.
5. The Respondent was cross-examined about his logbooks which were required to be signed by his supervisor or the surgeon he was assisting.
6. In relation to the work he had done as an assistant surgeon on massive weight loss patients or other plastic surgery operations, the Respondent said he had not undertaken any of that work with surgeons other than Dr Safvat since 2022 as he could not afford to work for nothing. He did work with Dr Safvat who paid him as an assistant surgeon.
7. The Respondent has been the principal surgeon on 3 patients under supervision. That occurred in circumstances where his prior patients sought his services. Two of those operations were in 2023.
8. Asked about his future proposals to undertake "no-gap" surgery for patients, the Respondent said he didn't think it was reasonable to undertake that surgery. He said the amount of time and work involved with such patients makes it unfeasible as a sole practitioner. The Respondent acknowledged that is what he had done in 2018 and 2019 and that he "spread himself too thin". He recognised he was operating at too many hospitals. In 2018 and 2019 he was undertaking 4 or 5 operations per week. He did not have the resources to deal with that workload. In 2019 he "cut" two hospitals as sites where he operated.
9. The Respondent was cross-examined about his operations with Patient C. He explained the circumstances of his coming into contact with Patient C as a nurse and then as a patient. She was working in a remote location in a refugee camp and therefore the pre and post operative consultation process was compromised. He just was not able to say no to her requested procedure. He is now comfortable saying no to patients requesting surgery which he is not prepared to undertake as he does not consider the surgery is appropriate. He now does say no regularly in the practice he does have.
10. The Respondent was cross-examined about a letter he had received from St Luke's Hospital. The letter, dated in 2018, sought assistance with a number of patient complaints.
11. The Respondent was asked about particular findings of the Tribunal which related to Particulars to the Complaint which were not admitted by the Respondent. The Respondent said he accepts all those findings.

1. The HCCC addressed the findings of the Tribunal in the Stage One decision. It submitted:

"a. Informed Consent: the respondent failed to obtain informed consent from patients B, D and E and did not outline the specific risks associated with those patient's surgeries.

b. Pre-operative assessments: the respondent between 23 February 2017 and 27 August 2019, failed to conduct adequate pre-operative assessments of patients B, C and D.

c. Care of Patient A: the respondent performed revision surgeries on Patient A and failed to obtain the advice and assistance of a more experienced colleague.

d. Care of Patient B: the respondent inappropriately performed a bilateral breast lift procedure in circumstances where Patient B was approximately four months postpartum, contrary to clinically accepted practice in relation to surgical modification to breast postpartum.

e. Care of Patient C:

i. the respondent failed to conduct any physical examination of patient prior to her be admitted to Sydney Private Hospital for abdominoplasty surgery; and

ii. During the abdominoplasty procedure the liposuction cannula used by the respondent struck and caused damage to Patient C's pancreas, liver and spleen.

i. The respondent failed to conduct any physical examination of Patient D prior to her being admitted to Sydney Private Hospital for a lower back procedure including liposuction;

ii. prior to performing a bilateral medial thigh lift and bilateral augmentation mammoplasty on Patient D the practitioner failed to conduct any physical examination of her until the day before surgery; and

iii. the practitioner failed to conduct a further physical examination on Patient D prior to her being admitted to Sydney Private Hospital for revision surgery in relation to her bilateral medial thigh lift procedure.

i. the respondent performed a bilateral brachioplasty procedure on Patient E in circumstances where he inappropriately removed excessive tissue from her right arm;

ii. the respondent inappropriately performed revision scar surgery on Patient E's right arm in circumstances where scar revision surgery:

[a] was not clinically indicated given her history of poor contour outcome with constriction bands of tension; and

[b] had a strong possibility of resulting in wound healing complications;

Contraventions of Health Practitioner Regulation (NSW) Regulation 2016 ("2016 Regulation")

h. In the care of Patients A-F, the respondent failed to document:

i. The results of any physical examination and assessment;

ii. information regarding patient's medical history;

iii. preoperative or postoperative images;

iv. information or advice given to patients regarding potential risks, complications, and side effects of surgery;

v. information or advice given to patients regarding benefits and advantages of surgery;

vi. information or advice given to patients regarding type of surgery and planned operative procedure proposed;

vii. information or advice given to patients regarding operative techniques;

viii. information or advice given to patients regarding alternatives to treatment; or

ix. information or advice to patients regarding recovery time and post-operative/after-care treatment; and

i. In the care of Patients A-F, the respondent's records failed to contain sufficient information to allow another medical practitioner to continue management of the patients' cases.

3. Having regard to the definition of professional misconduct in s.139E of the National Law, the Tribunal's judgment entails a finding that the respondent has engaged in sufficiently serious conduct that could justify suspension or cancellation of his registration as a health practitioner. The Decision says:

"[1176] We are satisfied that the respondent did engage in more than one instance of unsatisfactory professional conduct that when the instances are considered together, amount to contact [sic] of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. ...

[1177] We find that the Respondent is guilty of professional misconduct as defined in s 139E of the National Law."

4. In summary, the Tribunal found the respondent:

a. Guilty of unsatisfactory professional misconduct as described in s 149(B)(1)(a) and s 139B(1)(b) of the National Law; and

b. Guilty of professional misconduct as described in s 139E of the National Law."

1. The HCCC seeks the Tribunal impose a period of suspension of six months, and then when resuming practice, the Respondent's registration be subject to conditions (to be addressed later in this judgment). The HCCC also seeks an order that the Respondent pay the HCCC's costs.
2. The HCCC's submission then addressed matters of legal principle which it submitted the Tribunal would act upon in the determination of this Stage Two hearing. It referred the Tribunal to sections of the Health Practitioner Regulation National Law (NSW) (National Law) including Subdivision 6 of Part 8, ss 3(2)(a), 3A, 3B and 149C(1)(c). In particular, the reference in s 3B to the requirement that the protection of the health and safety of the public must be the "paramount consideration" was emphasised.
3. The portion of s 3A (which the HCCC stated was relevant to this determination) was set out in the submission as follows:

"(1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration.

(2) The other guiding principles of the national registration and accreditation scheme are as follows--

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

...

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality."

1. The HCCC then directed the Tribunal's attention to case law which would inform the decision the Tribunal is to make.
2. In the decision of Chen v Health Care Complaints Commission [2017] NSWCA 186; [2017] 95 NSWLR 334 (Chen), per Basten JA the following was said:

"[18] The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration.

...

[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it."

1. In Health Care Complaints Commission v Bruna [2014] NSWCATOD 31 (Bruna) at [88] the Tribunal said:

"In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations:

(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration.

(2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession.

(3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners.

(4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so.

(5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order."

1. In Health Care Complaints Commission v Burton [2017] NSWCATOD 57 (Burton) at [111] the Tribunal said:

"In evaluating whether the conduct found to constitute unsatisfactory professional conduct, is 'sufficiently serious' to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, any mitigating factors and an evaluation of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases, but by reference to the extent to which it departs from proper standards." (citations omitted)

"Consistent with these authorities, the Tribunal is required to consider:-

a. The nature of the wrongdoing reflected in the Complaints established. For that purpose the Tribunal will have regard to:

i. The gravity of the misconduct;

ii. How long ago the misconduct occurred;

iii. What has occurred in relation to the practitioner since the misconduct occurred;

iv. The practitioner's level of remorse and degree of insight, if any, into his misconduct;

v. What, if any, steps have been taken by the practitioner by way of rehabilitation to address the misconduct found proven;

b. The orders required to protect the public, protect the reputation of the profession, and encourage adherence to appropriate conduct by members of the profession and the individual practitioner, in light of the wrongdoing identified."

1. The HCCC then addressed the nature of the wrongdoing on the part of the Respondent as found by the Tribunal. It can be summarised as:

(a) Performing a bilateral breast lift procedure when the patient was only four months post-partum;

(b) Removing excessive tissue from a patient's right arm during a brachioplasty;

(c) Damaging a patient's liver and spleen during an abdominoplasty; and

(d) Inappropriately performing revision scar surgery on a patient where it was not clinically indicated and there was a strong possibility of it resulting in scar tissue.

1. The HCCC points out that the revision scar surgery set out in item (d) above involved four operations, the last two having occurred after the Respondent had appeared before the s 150 hearing on 28 June 2019. The two operations were an abdominoplasty and a scar revision on the right arm.
2. In relation to surgery performed for Patient A, the HCCC points out that the Tribunal found the Respondent had failed to obtain the advice and assistance from a more experienced colleague prior to performing the revision surgeries in June and July 2019. It submits: "the gravity of the surgical skill failures identified" illustrates:

(a) the relative isolation in the way that the Respondent was conducting his surgical practice, combined with an inability on his part to recognise the need for input from a more experienced plastic surgeon; and

(b) The timeframe of the second revision surgery for Patient A was after the first s 150 proceedings.

1. The HCCC points to the concern it says the Tribunal will have about the Respondent's self-reporting of his understanding of the Tribunal's Stage One findings. Further, given the findings in relation to the Respondent's surgical skills and the fact of his restricted practising since 2019, the HCCC submits he has had a limited ability to demonstrate ongoing proficiency in his surgical skills.
2. The submission continues with the HCCC listing all of the possible reasons for the failures found to have been established against the Respondent. It submits that any of those reasons is serious in terms of the Respondent now asserting in his Stage Two evidence that he has real acceptance of his failings or insight into same.
3. The HCCC submits:

"The balance of the particulars found proven fall into three categories:

a. Failure to obtain informed consent;

b. Failure to undertake adequate pre-operative assessments/ physical examinations; and

c. Failure to keep adequate records."

1. The HCCC points out the importance of obtaining informed consent, that being elevated in importance as a plastic surgeon needs to know the patient accepts the after-appearance of an operation, which is undertaken not only for physical health improvement but also for an improved cosmetic appearance. The expectation of the patient must be realistic in light of the extent of the surgery required and available evidence of outcomes, for similar patients undertaking body contouring surgery after massive weight loss, provided as a guide for final appearance after scarring has settled.
2. The result of the findings of the Tribunal is such that the HCCC submits:

"[O]verall the proven particulars support a protective order of suspension, both to bring home to the respondent the seriousness of his professional misconduct, but also uphold the high standards that most plastic surgeons are meeting, and to maintain the standards of the profession as a whole."

1. The HCCC then addressed the insight and rehabilitation undertaken by the Respondent. Each of those topics were addressed extensively. It addressed the changes the Respondent says he has made in his pre-operative procedures. It submits the Tribunal should not accept that the Respondent has made any substantial changes to those procedures, sufficient to avoid further failures.
2. The particular vulnerabilities of massive weight loss patients was addressed by the HCCC. The HCCC submitted that whilst endeavouring to meet a need in the community for massive weight loss (MWL) surgery, at an affordable rate, the Respondent disregarded:

(1) Whether he was prepared for high volume complex surgeries;

(2) Whether the performance of procedures on MWL patients was in all instances, in the particular patient's best interests;

(3) The need for greater management of the pre and post operative aspects of complex operations within a patient cohort with higher risk of complications;

(4) The fact that many of the patients had issues with support networks at home during their recovery period; and

(5) The significance of cosmetic outcomes for patients who presented for body contouring procedures, despite his acknowledgement that such surgeries were classified as "aesthetic surgeries".

1. Further the HCCC submitted that "Even if the fact that the respondent was 'spread out too thin' was driven by his professed altruistic desire to help this vulnerable cohort of patients, this did not obviate his professional obligation". It submits: "Ultimately these responsibilities are necessarily borne directly and solely by the plastic surgeon who is responsible for the successful outcome of surgeries for patients, irrespective of the price point for the surgery." It submits: "This lack of insight of the respondent into the paramountcy of the protection and safety of the public under the National Law is a cause of concern." It submits: "In the circumstances, the Tribunal should be cautious in concluding that the respondent's analysis of his unique psychological susceptibility has enabled him to act in the best interests of the patients."
2. The HCCC then addressed the level of remorse asserted by the Respondent. It submits: "It is notable that the respondent is sorry for the pain which the patients have suffered but does not take any responsibility for this suffering or attribute the suffering to any of his proven impugned conduct. Instead, he says the suffering of his patients is the "effect of the surgical complications".
3. The HCCC seeks an order for costs. It submits: "The applicant seeks an order that the respondent pay its costs as agreed or as assessed, but seeks to be heard further in this regard in the event that the respondent presses for a different costs order." As will be seen later in this judgment, further submissions on costs were provided by the HCCC.
4. As the written submission of the Respondent specifically addresses the HCCC proposed conditions to be attached to the Respondent's registration, we set that proposal out here.

"Proposed Conditions - HCCC v Amjadi

Dr Mahyar Amjadi (505496)

Conditions

1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice.

2. When engaged in plastic surgery practice, to practise only in a group practice approved by the Medical Council of NSW where there is at least 1 registered specialist plastic surgeon (excluding the subject practitioner).

3. Not to perform Defined Body Contouring Procedures on a person who

(a) is seeking a Defined Body Contouring Procedure, and

(b) who has been the subject of Massive Weight Loss

("MWL patient")

where:

(c) Defined Body Contouring Procedures means

(i) Arm lifts/brachioplasty

(ii) Body lifts/ Torsoplasty/Belt Lipectomy

(iii) Abdominoplasty

(iv) Buttock lifts/Gluteoplasty

(v) Lipectomy

(vi) Thigh lifts/Thighplasty

(vii) Body-contouring implants (excluding breast implants);

and

(d) Massive Weight Loss is where a person has lost more than half of their bodyweight above that person's BMI.

4. Subject to Condition 3, to perform no more than four Defined Body Contouring Procedures per week.

5. Subject to Condition 3, when proposing and before performing Defined Body Contouring Procedures, the practitioner must obtain from a Council-approved Plastic Surgeon a written statement that supports the practitioner performing the surgical procedure.

(a) Council-approved Plastic Surgeon means a Plastic Surgeon who:-

i. is a fellow of the Royal Australasian College of Surgeons,

ii. holds current specialist registration as a Plastic and Reconstructive Surgeon with the Medical Board of Australia,

iii. has at least 5 more years' experience than the practitioner as a fellow in Plastic and Reconstructive Surgery; and

iv. is not employed by the practitioner, or have a business/financial relationship with the practitioner.

(b) When obtaining the written statement, the practitioner must forward the patient's full medical record to the Council-approved Plastic Surgeon for review.

(c) The written statement is to confirm that the Council-approved Plastic Surgeon is satisfied prior to the procedure:

(i) The practitioner has explained to the patient all material risks associated with the procedure(s) including in relation to complications and expected recovery;

(ii) The practitioner has obtained informed consent;

(iii) The practitioner undertook at least 2 face-to-face pre-operative consultations with the patient;

(iv) The patient has been appropriately selected for the proposed surgical procedure; and

(v) If the patient is based inter-state or in a regional/remote location, that there is an appropriate plan to manage the patient post-operatively.

(d) The practitioner must maintain a log listing all patients for whom he has obtained the written statement referred to in this condition. The log is to include:

(i) The full name and date of birth of the patient;

(ii) Whether the patient lives interstate and/or will have to travel for the procedure;

(iii) The nature of the surgical procedure(s);

(iv) The name of the Council-approved Plastic Surgeon who provided the written statement;

(v) A copy of all written statements obtained as an appendix to the log, regardless of whether the Council-approved Plastic Surgeon supported or did not support the procedure(s)

("the Log")

(e) The practitioner must forward to the Council a copy of the Log within seven days of the end of each calendar month. Before forwarding the Log to the Council the practitioner must forward the log to the Council-approved Plastic Surgeon to verify the contents of the Log.

(f) To authorise the Medical Council of NSW to provide the Council-approved Plastic Surgeon a copy of the decision which imposed this condition, or any other decision or report as determined by the Council.

(g) Subject to Condition 3, not to propose or undertake any Defined Body Contouring Procedure:

i. until a Plastic Surgeon has been approved by the Council; or

ii. If the Council-approved Plastic Surgeon does not support the practitioner performing the surgical procedure(s).

6. When undertaking any Defined Body Contouring Procedure, to practise under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.

(a) The terms of the Council's Compliance Policy - Supervision are varied so that:

i. The Council-approved Supervisor must:

be a fellow of the Royal Australasian College of Surgeons; and

hold current specialist registration as a Plastic and Reconstructive Surgeon with the Medical Board of Australia,

must be a different person to the Council-approved Plastic Surgeon

ii. the practitioner is to authorise the Council-approved Supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis.

iii. Prior to each supervision meeting, the practitioner must forward a copy of their Surgical Procedure log to the Council-approved Supervisor for review and discussion.

(b) At each supervision meeting the practitioner is to review and discuss his surgical practice with the approved Supervisor with a particular focus on:

i. Patient Selection

ii. Post-operative management

iii. Surgical outcomes, including any complications arising as a result of procedures undertaken (and specially advising of any unplanned return to theatre and/or any post-operative infection).

iv. Communication with patients

v. a review of at least 5 randomly selected medical records of patients who had a Defined Body-Contouring Procedure.

(c) Within the first 6 months of supervision and in addition to supervision meetings, the practitioner is to undertake monthly in-person observation sessions of patient consultations with the Council-approved Supervisor. These sessions are to alternate between:

i. The practitioner observing the Council-approved Supervisor undertaking at least 3 patient consultations

ii. The Council-approved Supervisor observing the practitioner undertaking at least 3 patient consultations

iii. Observation sessions are to particularly focus on communication with patients, informed consent, appropriate explanation of complications, risks and recovery, and patient assessment.

iv. Observation sessions are to be of at least 1 hour in duration.

v. Details and feedback about the observed consultations are to be discussed during the supervision meetings and recorded in the supervision reports.

vi. Within 1 month of completing the observation sessions, the practitioner is to submit a reflective report for the Council's consideration, outlining:

The practitioner's learnings from the observation sessions

How the practitioner will incorporate the learnings from the observation sessions into their future practice

(d) To authorise the Council to provide proposed and approved Supervisors with a copy of the decision which imposed this condition, and any other decision or report as determined by the Council.

(e) Subject to Condition 3, not to undertake any Defined Body Contouring Procedure until a Supervisor has been approved by the Medical Council of NSW.

7. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all procedures undertaken in the last month. The record must include the following:

(a) the full name and date of birth of the patient

(b) the date and time of each procedure

(c) the name and nature of the surgical procedure

(d) the location of the procedure

(e) MBS item number

(f) any complications arising as a result of the procedure (and specifically advising of any unplanned return to theatre and/or any post-operative infection)

(g) if any Defined Body Contouring Procedure were performed in the preceding month:

i. The date of the written statement advising that the Council-approved Plastic Surgeon supported the proposal to undertake the surgical procedure.

(h) The full name and signature of the Council-approved Supervisor confirming that the procedure was discussed at a supervision meeting.

8. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.

9. These conditions may be altered, varied, or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW).

10. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of residence is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia."

Brief Oral Submission of the HCCC on the day of the hearing

1. When the HCCC presented its oral submission through its counsel, we raised with her the dilemma we felt we were facing in framing protective orders in this matter. The dilemma arises largely because of the time which has elapsed since the conduct of the Respondent, which we have found is professional misconduct. During that time, he has been supervised in the conduct of his practice as a plastic surgeon and has conducted his practice whilst being subject to stringent conditions attached to his registration. He has largely been restricted to performing the removal of lesions detected by GPs practising in skin care (particularly the detection of potential cancers, including melanoma) when he has operated without having to have a supervisor with him observing the procedure. Additionally, he has assisted in operations on massive weight loss patients. He has conducted a very small number of those surgeries as the primary surgeon (under supervision).
2. We informed the HCCC counsel that we were struggling to see how a suspension of the Respondent's registration, together with the imposition of conditions would be an appropriate protective order. We asked the HCCC to assist us with submission on that subject, which she did.
3. In her oral submission, and in response to our request above outlined, counsel set out the following:
4. The HCCC emphasised the requirement to protect the public, to provide both specific and general deterrents, to protect the public trust in the profession, to protect the reputation of the profession and to protect public safety.
5. The HCCC asked the question "What has changed for the Respondent in this case since the first s 150 hearing in 2019?" The HCCC submitted the Respondent has spent three to five years not undertaking the very surgery which led to the complaints before the Tribunal. It submitted he has not had an opportunity to put into place his proposals on obtaining informed consent from patients seeking to have massive weight loss surgery.
6. The HCCC addressed matters relating to proposed conditions. It suggested that the Tribunal could consider using patient BMI as a restriction on the Respondent's surgery. That is, restrict or supervise his surgery on patients with a greater BMI than a stated number.
7. The HCCC addressed the cost application it seeks. It responded in short form to the written submission of the Respondent which opposed an order for costs being made in the favour of the HCCC. The aspect of the cost dispute which was addressed related to the HCCC not being successful in relation to Complaint Four. That complaint sought a finding that the Respondent is not competent within the meaning of s 139(a) of the National Law. It submitted that should the Tribunal accept the Respondent's submission in relation to a requirement for a costs order in favour of the HCCC to be substantially discounted, then a reduction in the order of a small percentage might be considered by the Tribunal to be appropriate.
8. In a submission in reply the HCCC argued that its pursuit of a finding as sought in Complaint Four was justified given the evidence it was placing before the Tribunal at the commencement of the Stage One hearing.

1. The Respondent's submission is dated 13 November 2024. We noted the following in relation to that submission in particular.
2. The Respondent commences his submission with the following:

"The Commission seeks a suspension order for a period of 6 months. The respondent submits that a period of six-months suspension, or in fact any period of suspension is not warranted or 'necessitated' or required when proper consideration is given to all the circumstances of this case and when applying the principles of law relevant to protective orders. The Commissions proposed protective orders are punitive rather than protective in nature."

1. The Respondent submits, in relation to the conditions the HCCC seeks to be imposed following a period of suspension, that the proposed conditions "fail completely to pay due regard to the 5 years of extensive supervision the respondent has successfully complied with under the scrutiny of not one, but two supervisors approved by the Medical Council." He submits the conditions fail to recognise the Respondent has assisted in more than 150 cosmetic body contouring surgeries since May 2020. Further he submits the proposed conditions urged by the HCCC exposes "the unreasonableness of the Commissions proposed conditions (which) ignore the positive content of more than 100 monthly supervision reports, all submitted to and monitored by, the Medical Council."
2. The response of the Medical Council to the Respondent's practise over the last five years is said to have been ignored by the HCCC in its proposed conditions. The Respondent submits:

"[T]he Medical Council has removed a total ban on all cosmetic surgery unless a supervisor was present (Category A supervision), and removed the prohibition on acting as an assistant in body contouring procedures. Since July 2021 the respondent has been permitted to conduct functional breast reduction procedures and since August 2022 he has been permitted to assist in body contouring procedures with no condition which precluded massive weight loss patients, when acting as an assistant."

(footnotes omitted)

1. As a summary of his position in relation to protection orders the Respondent submitted:

"These submissions address the relevant principles applicable in determining an appropriate protective order and the evidence relied upon to establish that the respondent presently does not pose a risk to the health and safety of the public if conditions are imposed, given the extensive education, re-training and supervision completed in the preceding five years. The appropriate protective order is one of a reprimand and conditions."

1. The Respondent then addressed the evidence which he submitted is relevant to protective orders. The submission recites evidence tendered in the Stage One hearing which consisted of supportive emails from patients of the Respondent.
2. The Respondent pointed to the evidence of the HCCC expert witness Dr Sanki. In particular:

"Of note is the evidence of Dr Sanki in relation to the patient demographic relied on in the Amended Complaint. She acknowledged that for patients in the lower socioeconomic group there is a 'high bar' to meet to have body contouring procedures in the massive weight loss cohort performed in a public hospital as a public patient and as a result few are performed. She noted the resulting disadvantage to patients 'like' Patients K and L who may have limited financial means. Dr Sanki also confirmed that many such patients access their superannuation for the bariatric surgery with insufficient funds for the expected subsequent necessary surgery of body contouring and revision surgery. Dr Sanki acknowledged that few if any Plastic and Reconstructive Surgeons are offering the body contouring procedures for a 'no gap fee' including herself. Dr Sanki acknowledged the 'serious' and 'sad' problem this presents. At no time in her evidence did she impugn the respondent's decision to perform these procedures on a no gap fee.

Dr Sanki's ultimate opinion was that the 'mistakes' made by the respondent are likely to be limited to the time spent with patients and managing patient expectations. Dr Sanki agreed that because the respondent had been denied admission to the Australian Society of Plastic Surgeons, he had a disadvantage in his ability to learn from colleagues after his graduation. Further, that given she has never observed Dr Amjadi in theatres 'I can't make a comment about his actual clinical skill and ability'. Dr Sanki's opinion was that the respondent required no more than monthly supervision regarding cases and outcomes."

(footnotes omitted)

1. The Respondent also drew attention to the evidence and findings made by the Tribunal in the Stage One decision in relation to Dr Sanki, as follows:

"i. 'My current opinion is that his supervisors feel that he is performing to a good standard and therefore he should be allowed to practice body contouring procedures': Decision [401]

ii. Dr Sanki recommends that this should be done with a 'level of supervision' such as an audit process: Decision [401]

iii. This 'supervision' would involve 'discussing the number of body contouring and plastic surgery cases; his major and minor complications rates; and a 'mentor' to discuss difficult cases with: Decision [402]

iv. That she saw nothing in the supervision reports that suggested the respondent required Category A type supervision in theatres: Decision [403]".

"The Tribunal at [496]-[499] and [500] -[504] further notes pertinent aspects of Dr Sanki's evidence where she repeats that meeting with an approved supervisor monthly to review cases and outcomes was effectively all that was needed. Further, Dr Sanki gave evidence that if the respondent was permitted to continue with body contouring patients in the massive weight loss patient, the surgery should be limited to four procedures per week: Decision [504].

No aspect of Dr Sanki's oral evidence supports the Commissions proposed condition of suspension or the terms of their proposed conditions requiring two supervisors or the extent and depth of the requirements surrounding the engagement with those two supervisors. That is to say, the Commissions own expert does not support the proposed conditions."

1. The Respondent then addressed the evidence of the HCCC witness Dr Stern. In that submission the evidence of Dr Stern was recited as follows: "If a practitioner has achieved a competent level of expertise in a given area of a broad speciality such as plastic and reconstructive surgery, it would be a pity for that practitioner not to be able to carry out the work in which they have expertise."
2. Further the Respondent quoted the following evidence from Dr Stern:

"I think the only opinions I have provided have surrounded body contouring surgery in major weight loss patients. I haven't been provided with any suggestion or evidence that other aspects of his plastic surgical practice are in any way deficient. So, I haven't - other than the fact that he has satisfied the examiners for fellowship of the Royal Australasian College of Surgeons, which is a fairly exacting standard of knowledge and he satisfied his surgical supervisors over five years, that his technical skills at that time and his manner of dealing with patients was, certainly at least adequate, to allow him to progress. I've got no evidence in front of me to say that other aspects of his speciality practise are anything other than exemplary."

1. The Respondent referred to the evidence of Dr Safvat, one of his supervisors approved by the Medical Council, in particular his evidence in relation to further supervision of the Respondent. The Respondent submitted in relation to that evidence: "he did not believe that direct observation of the respondent's surgery was 'necessary' when considering the health and safety of the public and that "I don't really feel that he needs a lot of supervision". He went further and said that he did not believe supervision for more than two to three months was required in this regard or supervision or more than 'five or six cases.'"
2. The Respondent submits: "No aspect of Dr Safvat's evidence, who is an approved supervisor of the Medical Council, supports the suspension and conditions advocated for by the Commission."
3. The Respondent referred to the evidence of Dr Turner who has been a supervisor of the Respondent. There the submission states:

"The Tribunal noted the pertinent aspects of Dr Turner's oral evidence relevant to stage two protective orders at [776]- [781] where Dr Turner said that he did not believe that 'it was necessary' for the respondent to be the subject of supervision should he choose to do body contouring surgery with massive weight loss patients. This opinion is shared by Dr Safvat, as noted above. Dr Turner said that the respondent's clinical judgement was sound and appropriate and that he was confident that if the respondent's restrictions were removed he would operate and practice at a standard acceptable to the Tribunal. Dr Turner further spoke to the respondents character his honesty and integrity and contrary to the Commissions submissions at AWS2 [54]-56]- his demonstrated regret, remorse and contrition."

(footnotes omitted)

1. The Respondent concludes the submission in relation to the evidence of the Respondent's two supervisors as follows:

"It is of note that Dr Safvat and Dr Turner have observed and been in discussion with the respondent on a monthly basis for close to five years. A rational conclusion therefore is that their opinion carry's considerable weight regarding the appropriate restrictions on the respondent's registration to meet the paramount objective - the health and safety of the public. No aspect of their sworn evidence before the Tribunal, supports a suspension or the Commissions proposed conditions."

1. The Respondent then addresses matters arising in his own evidence before the Tribunal. The Respondent submitted that the Tribunal would be satisfied:

"The process of ongoing reflection and self-analysis has involved six hearings before the delegates of the Medical Council, spanning three years; reviewing 14 patient records and complaints; 23 volumes of material; filing a detailed statement in NCAT addressing the allegations and encompassing reflections regarding each patient; and attending and participating in a nine-day hearing. It is impossible to capture the exhaustion, devastation, self-reflection, insights, humiliations, regrets and remorse of the respondent in words or paragraphs of a statement or submission.

His actions over the last five years should speak volumes regarding his character and commitment in righting past wrongs and to his dedication to the profession of medicine."

(footnotes omitted)

1. The Respondent then addressed "Legal Principles Underpinning Disciplinary Proceedings" and the "Appropriateness of a Reprimand and Conditions" in this case. We will address those matters shortly.
2. The Respondent then addressed the HCCC application for the Respondent to meet its costs of the proceeding. We address this submission later in the decision.

The Respondent's brief oral submission made at the conclusion of the Stage Two hearing

1. The senior counsel for the Respondent submitted there were five limbs to the decision a Tribunal makes in relation to a suspension of a practitioner's registration. The limbs are: (1) Consideration of ss 3 and 3A of the National Law; (2) The seriousness of the proven complaint; (3) Matters relevant to specific deterrence; (4) Matters relevant to general deterrence; and (5) Reputation of the profession.
2. The Respondent then addressed the possible imposition of conditions on his registration. He submitted that a condition which restricted his surgery on massive weight loss patients to those with a BMI less than 30 would be an appropriate condition in this case.
3. In relation to proposed Condition 5 as set out in the HCCC document, the Respondent submitted the conditions were unnecessarily onerous. He pointed to the cost to him of complying with the condition. He raised the prospect of impossibility in finding a supervisor prepared to take the Respondent with the proposed condition. He submitted there were aspects of proposed Condition 6 as sought by the HCCC which were unnecessarily onerous. He agreed that proposed conditions numbered 8 to 10 would be appropriate.
4. The Respondent submitted that proposed Condition 2 would impact on his skin practice. He argued that there does not appear to be any case to impact the Respondent's skin practice. There is no evidence of any complaint being raised since 2019 about the Respondent's work as a surgeon removing skin lesions such as melanoma.
5. In relation to the cost argument, the Respondent submitted the fact that Dr Sanki was cross-examined by him in relation to Complaint One is not a circumstance which would move the Tribunal to refuse to discount the costs awarded to the HCCC in this case.

1. The Respondent provided the following proposed conditions (attached to submission dated 25 November 2024), which he titled as "Amended Proposed Conditions".

"AMENDED PROPOSED CONDITIONS OF THE RESPONDENT

HCCC & AMJADI - 23/00024599

Conditions

1. To notify the Medical Council of New South Wales prior to changing the nature or place of his practice.

2. The practitioner is not to perform more than four body contouring procedures a week on patients who have undergone massive weight loss.

3. For the purpose of condition two:

a. Body contouring procedures are defined as:

i. Arm lifts

ii. Body lifts

iii. Buttock lifts

iv. Lipectomy

v. Thigh lifts

b. Massive weight loss is defined as weight loss equivalent to at least five body mass index (BMI) units.

4. To practice under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.

a. At each supervision meeting the practitioner is to review and discuss his practice with particular focus on:

i. Patient selection of cosmetic/aesthetic patients

ii. Pre-operative assessment of cosmetic/aesthetic patients

iii. Post-operative care of cosmetic/aesthetic patients

iv. Informed consent of cosmetic/aesthetic patients

b. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision of the NSW Civil & Administrative Tribunal regarding Stage 1 and Stage 2 proceedings; HCCC v Dr Amjadi 2024 NSWCATOD 167.

c. Not to practise until a supervisor has been approved by the Medical Council of NSW.

5. Within seven days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with his surgical log book recording all surgical procedures undertaken in the previous month. The record must include the following:

the date and time of each procedure;

Medicare item number;

the patient's full name and date of birth;

the name and nature of the surgical procedure;

the location where the surgical procedure took place; and

any complications arising as a result of the procedure

6. The practitioner is to focus his Continuing Professional Development, to the extent that it is available, on:

a. Patient selection

b. Pre-operative assessments

c. Post-operative care

d. Informed consent

e. Body contouring surgery

f. Surgery for patients who have undergone massive weight loss

7. To attend for treatment by a psychologist or counsellor of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner:

a. to inform the Medical Council of NSW of any termination of treatment, against the treating practitioners advice;

b. to inform the Medical Council of NSW of a significant change in health status which may impact the health and safety of patients

c. to provide the Council with the professional details of the treating practitioner/s.

8. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.

9. These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

10. Sections 125 to 127 of Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.

1. Each of the parties addressed the law to be applied to the making of a protective order by the Tribunal. We agree with and adopt the following from those submissions.
2. Section 149C(1)(c) of the National Law empowers the Tribunal to suspend or cancel a health practitioner's registration where the practitioner has been found to have engaged in professional misconduct. Although, the Tribunal, having found professional misconduct, is not bound to impose protective orders involving suspension or registration.
3. The objectives of the national registration and accreditation scheme are, inter alia, "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner, are registered": s 3(2)(a) of the National Law.
4. Section 3A of the National Law sets out guiding principles of the National Law. The relevant parts of s 3A, for the purposes of this hearing, are:

(1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration.

(2) The other guiding principles of the national registration and accreditation scheme are as follows--

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

...

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

1. It is uncontroversial that where the Tribunal decides a complaint or considers the making of protective orders "the protection of the health and safety of the public must be the paramount consideration": s 3B of the National Law.
2. Orders are not intended to punish the practitioner, but to protect the public and the "statutory language in the National Law does not involve any element of moral turpitude" (Chen at [67).
3. In Chen per Basten JA, the Court of Appeal said:

"[18] The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration.

...

[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it."

1. The applicable principles in assessing the gravity of misconduct were usefully distilled in Bruna at [88]:

"In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations:

(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration.

(2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession.

(3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners.

(4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so.

(5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order."

"In evaluating whether the conduct found to constitute unsatisfactory professional conduct, is 'sufficiently serious' to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, any mitigating factors and an evaluation of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases, but by reference to the extent to which it departs from proper standards." (citations omitted)

1. The function of the orders resulting from the decision is not to underscore a punitive response, but to affect a mode of continuing public protection. As was stated in Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [25]:

''[I]mposition of restrictions on the practice of a health professional are only to be done in pursuit of this higher objective [protection]. Such a determination of necessity and appropriateness are made considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals:" see also Lee v HCCC [2012] NSWCA 80 at [34].

1. In the context of a discussion about public confidence when considering the public interest in the disciplinary jurisdiction, Niall J said in Medical Board of Australia v Liang Joo Leow [2019] VSC 532 at [94]: "In assessing how the public might view the facts, it is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered response, having regard to all the competing factors."
2. In Medical Practitioners Board of Victoria v Lal [2009] VSCA 109 at [59] the court stated:

"Like the goodwill which attaches to a business, however, public confidence in the medical profession is not turned on and off like a switch. Public confidence is won - or lost - gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high."

1. In Lee v HCCC [2012] NSWCA 80 at [31], Basten JA said:

"There is also the point that the purpose of orders in cases of professional misconduct differs significantly from the purpose of sentencing in the criminal field. As was explained in Director-General, Department of Ageing, Disability and Home Care v Lambert (above) at [83], the overwhelming emphasis in the present type of case is on the protection of the public, with notions of punishment relevant only incidentally if and when material to the achievement of the protective purpose. While protection of the public plays a significant part in the sentencing of criminal offenders, considerations of punishment, individual deterrence and general deterrence have a very prominent role that is, generally speaking, subsidiary in the exercise of a protective jurisdiction."

1. The Respondent addressed the topic of "Appropriateness of a Reprimand and Conditions" in this matter. In relation to that submission we accept the following.
2. In NSW it has been said in a number of cases that a reprimand in itself acts as a deterrent both directly and indirectly: NSW Bar Association v Meakes [2006] NSWCA 340 (per Basten JA) and further, upholds and reinforces the standards of and confidence in the profession: Riley v Health Care Complaints Commission [2019] NSWCATOD 54 at [155]; Health Care Complaints Commission v Perera [2018] NSWCATOD 112; Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156.
3. A reprimand may be all that is necessary to indicate there is no further need for deterrence: Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102; Health Care Complaints Commission v Lord [2019] NSWCATOD 182. As Marks J said in Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at p6) a reprimand, "certainly does not trivialise a serious lapse of professional standards. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications".
4. We note the submission of the Respondent on this topic of "Reprimand" that:

"General deterrence and the good repute of the profession is and can be reflected in a protective order that results in a reprimand and conditions responsive to assisting the respondent's re-integration to body contouring procedures. The Commission has relied on no evidence to support a submission that suspension is required or necessary and their proposed conditions are in fact contrary to the expert evidence before this Tribunal."

Should the Tribunal impose a period of suspension or a Reprimand?

1. We note at the outset of addressing this heading, that the Tribunal made a finding that the Respondent is guilty of professional misconduct. Such a finding flows from the Tribunal being satisfied the established conduct of the Respondent was sufficiently serious as to warrant the Tribunal ordering the cancellation or suspension of the Respondent's registration as a medical practitioner. The finding that the Respondent is guilty of professional misconduct does not mean the Tribunal must impose one of the alternate protective orders identified in s 139E of the National Law.
2. We have concluded that in this case the Tribunal should not impose a protective order which includes either cancellation or suspension of the Respondent's registration. Rather we conclude that a protective order which applies the sanction of a Reprimand together with the imposition of conditions on the registration of the Respondent is the appropriate protective order to impose in the unique circumstances of this case.
3. In reaching that conclusion we have considered the following matters as being the most important and impactive to our decision.

(a) Complaint Four of the HCCC case in Stage One, that the Tribunal find the Respondent is "not competent within the meaning of section 139(a) of the National Law in that he lacks the sufficient knowledge and skill to practise as a specialist plastic surgeon" was not established to our satisfaction. It flows that we are satisfied at the date of our decision on Stage One, that the Respondent is a competent specialist plastic surgeon. That decision however, needs to be underpinned and supported, by the application of conditions to his registration.

(b) The conduct the subject of the Complaint against the Respondent occurred between 2017 to 2019. At the commencement of that time the Respondent was a newly accredited plastic surgeon. Since 2019 the Respondent has been the subject of conditions imposed upon his registration. Those conditions included the requirement for him to be supervised by an approved supervisor (Medical Council of NSW approved).

(c) As the years have passed since the first s 150 hearing conducted into the Respondent's conduct, which hearing gave rise to the imposition of conditions, the Medical Council has, over time, varied those conditions to a form which became less onerous and restrictive on the Respondent's practice as a specialist plastic surgeon.

(d) The first conditions placed upon the registration of the Respondent arising from the complaints which were heard by the Tribunal in the Stage One hearing, were imposed on 1 October 2019. The conditions included a prohibition against undertaking any of the specified body-contouring surgeries named, even as a surgical assistant. Thereafter the conditions were varied on 20 December 2019; 22 September 2020; 27 November 2020; 19 July 2021 and 2 August 2022.

(e) On 2 August 2022 the Medical Council, pursuant to s 150A, varied the conditions attached to the Respondent's registration to include, inter alia, the following:

(i) Not to perform any body-contouring surgery. For the purpose of this condition body-contouring surgery is defined as including: Arm lifts; Body lifts; Buttock lifts; Lipectomy; Thigh lifts; Body contouring implants excluding breast implants. The Respondent may undertake standard abdominoplasty and liposuction procedures under Category A supervision and in accordance with Condition 6(c).

(ii) Not to perform any breast reduction surgery with the exception of functional breast reduction surgery.

(iii) May assist with body-contouring surgery in the role of a surgical assistant as defined by condition 2(i) to 2(vi) and where the primary surgeon has specialist registration in plastic surgery and this surgeon is primarily responsible for the procedure and is present in the operating theatre at all times during the procedure. (there is further requirement in relation to the recording of any such procedure).

(iv) The Respondent was required to provide monthly reports of all procedures he has undertaken in the prior month.

(v) To practice under Category A supervision when performing any cosmetic surgery procedures. There are further requirements for any such surgery. Further, prior to undertaking any abdominoplasty procedures he is required to discuss and obtain approval from his supervisor.

(f) The evidence shows that the Respondent has complied with all the conditions imposed upon his registration during the period 1 October 2019 until the date of the hearing.

(g) During the time the Respondent has been under the conditions above specified, he has assisted in supervised cosmetic/body-contouring surgery on approximately 150 occasions. He has also been the primary surgeon on 10 operations. Most of his surgeries have been day surgeries and involve face surgery. He works at two skin cancer clinics. He operates one afternoon a month at one private hospital and one morning a month at a day surgery facility.

(h) The evidence of the HCCC witness Dr Sanki and the two supervisors called by the Respondent, Dr Turner and Dr Safvat, are, in different ways as we have identified above, supportive of the Respondent continuing practice as a plastic surgeon and not suggesting suspension as an appropriate protective order. They also support the imposition of conditions.

(i) We are satisfied the Respondent has developed insight into the circumstances which gave rise to the complaints being made against him and the action taken by the Medical Council and the HCCC. That insight is evident in his evidence which we have set out in these reasons.

(j) We find the Respondent has expressed genuine remorse for the suffering of his patients which arose because of his surgery upon them.

(k) We accept that the Respondent has gained a considerable amount of experience and management skills working with his supervisors as an assistant surgeon with them. This has advanced his experience well beyond that of a newly practicing plastic surgeon, as he was in 2017.

(l) In terms of deterrence to other medical practitioners, we have noted the impact upon the Respondent of the complaints made against him and then actioned upon by the Medical Council, the HCCC and then the Tribunal in its Stage One judgment. The Respondent's reputation is in tatters, he is a humiliated and humbled man who will need to perform with excellence in his profession, achieving results with his surgery which meet and exceed the expectations of his patients over many years before he will be regarded by his peers as a surgeon of high repute. He has suffered the loss of academic and public hospital positions and has been the subject of media reports which target his professional peers. He has suffered financially, and we accept he is now suffering financial hardship. His health has suffered. He has lost weight and suffered anxiety and other conditions. [REDACTED].

(m) The HCCC cross-examination of the Respondent about the massive weight loss surgery he has assisted in, gave rise to the Respondent saying he has not participated in any of such surgery since 2022. He told the Tribunal the reason was that he could not afford to work as an assistant for no fee. Dr Sufvat did pay him to assist in surgeries and he assisted in 2023.

(n) In terms of his future as a practising specialist plastic surgeon, the Respondent has support from a number of colleagues, including in particular, the two supervisors who he has worked with since 2019. There are others who we heard from in the Stage One hearing. He has undertaken additional education which was detailed in the hearing.

(o) We accept the Respondent has developed an ability to be able to "say no" to patients who he considers are unsuitable for the type of plastic surgery he is being asked to perform. We note his oral evidence relating to the surgery he undertook for Patient C and the reasons which undermined his ability to decline to perform the surgery she was requesting.

(p) The Respondent's consent process for the patients the subject of the Complaint was of great concern to us. The patients must have an opportunity to consider the impact upon their bodies of operations they seek and weigh up all of the benefits they desire with the possibility or probability of an adverse outcome, including the appearance of scar tissue or the shape of residual skin. We are satisfied the Respondent appreciates the evidence which was given about his consent practices and the timing of them. He asserted he was undertaking that process in a more thorough manner.

(q) The Respondent's pre-operative procedures were the subject of complaint. He has had the opportunity to see the pre-operative procedure utilised by his supervisors, at least on the day of the operation. Again, we accept the Respondent does now understand the necessity for pre-operative procedures to be undertaken in a thorough manner.

(r) We are satisfied that the Respondent now has the insight and confidence to be able to consult with colleagues to obtain a second opinion about a proposed procedure for a patient where he has some concerns about the appropriateness of undertaking the case or to seek assistance from another surgeon who has experience in that type of procedure. He gave evidence that he had referred a patient to another surgeon for a second opinion.

(s) The complaint also addressed the Respondent's failure to properly record information on patient records. Here again the Respondent has had to undergo audits of his patient records whilst the subject of conditions since 2019. He has had to discuss with his supervisors his record keeping. We accept that he does understand what is required to make an adequate and acceptable patient record.

(t) In terms of public confidence in the medical profession and the role and function of its regulatory bodies, we are satisfied public confidence can be maintained with the imposition of a Reprimand and the attaching of conditions of practice to the Respondent's registration. We are confident that members of the public who may read this judgment will see the supervising role of the Medical Council in the practice of the Respondent since 2019 and the role of his professional supervisors. The restriction on the practice areas for the Respondent is also a matter which will maintain the confidence of the public in the regulatory bodies of the profession.

(u) In relation to specific and general deterrent in the profession, we are satisfied the Respondent, having been the subject of the complaints we have dealt with in this proceeding, the controls of the Medical Council through the imposition of restrictive conditions, and the personal consequences of that action, will ensure he does not come to notice again.

(v) In relation to general deterrence, we are satisfied that members of the profession who read this judgment will see what has become of the Respondent as a result of the conduct we have found established in this hearing. We have set out in this judgment how the complaints made against him have led to consequential personal catastrophes for him.

(w) We are satisfied that with the imposition of a Reprimand and the imposition of conditions on his registration, the safety of the public will be well guarded.

(x) We have taken into account in reaching our decision in this matter the nature and duration of the Respondent's impugned conduct. We have in mind the serious impact upon the identified patients, in this proceeding, of the surgery he performed across the 2017 to 2019 years.

(y) We are satisfied that the Respondent continuing to practice under our proposed conditions will protect the health and safety of the public. We are satisfied the Respondent will practice in a competent and ethical manner.

1. As stated, we propose to impose a protective order which includes a Reprimand against the Respondent. That, we conclude, is a protective order of substance. It will be recorded in the records of AHPRA. We will also match that order with conditions to be imposed upon the Respondent's registration as will be seen hereafter.

Should the Tribunal require the imposition of conditions upon the Respondent's registration?

1. The HCCC seeks conditions be made by the Tribunal to be attached to the registration of the Respondent as a specialist medical practitioner. The Respondent recognises that conditions will be imposed, even if the Tribunal was to conclude that a caution was appropriate as a protective order.
2. At the conclusion of the Stage Two hearing, the Tribunal directed that the HCCC is to respond to the Respondent's proposed conditions by 22 November 2024. The Respondent was to have until 26 November to provide any further response in relation to the HCCC proposed conditions. The HCCC provided a response to a document which the Respondent had provided titled "Amended Proposed Conditions of the Respondent". In that email the HCCC set out the following:

"The applicant maintains its position that the appropriate conditions are the ones proposed by the applicant (noting, however, the discussion with the Tribunal regarding the method of identifying patients in relation to whom the respondent is prohibited from performing body-contouring surgeries).

In order to assist the Tribunal the applicant sought feedback from the MCNSW limited to the question of whether the respondent's proposed conditions were capable of being monitored by MCNSW. MCNSW has advised that the respondent's proposed conditions would have to be amended as per the attached document in order to meet minimum monitoring requirements. In addition, MCNSW advised that:

1. Condition 2 is not capable of monitoring without a definition of 'massive weight loss' and 'body contouring'. Again, as these are the respondent's proposed conditions, adding these definitions went beyond the remit of the MCNSW providing commentary as to the monitorability of the proposed conditions.

2. Condition 5 is not in a form that is capable of being monitored by MCNSW, but the changes required to make it subject to monitoring would involve substantial amendment so as to change the condition in a material way

MCNSW continues to support the conditions as proposed by the applicant."

1. In the same email of 19 November 2024 the HCCC provided red tracked amendments to the Respondent's Proposed Condition document which had been provided to the Tribunal on 13 November 2024.
2. The HCCC had provided to the Tribunal on the day of the hearing of the Stage Two case, a set of conditions which were marked as Exhibit A18.
3. On 25 November 2024 the Respondent provided a further written submission (as directed by the Tribunal) together with his final version of the Revised Proposed Conditions which he had presented at the time of the hearing.
4. In the submission of the Respondent dated 25 November 2024 we noted the following in particular.

(1) The Respondent set out the content of the email from the HCCC to the Tribunal and the Respondent dated 19 November 2024. Further the Respondent stated: "On 22 November 2024 the Applicant sent an email to the Registry/Tribunal withdrawing the statement in the earlier email that 'The Medical Council continues to support the conditions as proposed by the Applicant.'

(2) As to Condition 2, the Respondent has defined the term "body contouring procedures" by adopting the definition placed on the Respondent's registration by the Medical Council in 2019. The amended document also contains a definition of the term "massive weight loss."

(3) The HCCC submits that the Respondent's Proposed Condition 5, regarding focus areas for CPD education, is not capable of being monitored. This does not appear to be correct. First, along with all registered medical practitioners, the Respondent's annual registration mandates the submission to his College, namely the college of Plastic and Reconstructive Surgeons, a record of CPD courses completed. This can be requested and reviewed by the Medical Council. Secondly, all CPD courses are publicly available and accessible by the Medical Council. A quick cross check by the Medical Council regarding CPDs completed by the Respondent on an annual basis and CPD courses available will quickly evince his compliance/non compliance with proposed Condition 5. Condition 5 as proposed by the Respondent is directly responsive to limitations in his practice as identified and found by the Tribunal.

(4) The HCCC's submission that their Red Tracked changes to the Respondent's originally proposed conditions are necessary to meet 'minimum monitoring requirements' is a statement unsupported by sworn evidence from the Medical Council, untested by the Respondent given it was not raised during the two-day Stage Two hearing and is unsupported and inconsistent with the Medical Council of NSW's Compliance Policy - Supervision Category C document.

(5) Red Tracked Condition 6 purports to represent 'minimum monitoring requirements' yet no submission is made to justify why a treating psychologist, or counsellor should inform the Medical Council on every occasion when an appointment is not kept by the Respondent, noting the myriad of reasons why this may occur that have nothing to do with a lack of engagement with therapy. The Respondent's Amended Proposed Conditions provide the necessary framework to provide monitoring and preserve privacy.

(6) The Respondent submits:

"The Respondent's Amended Proposed Conditions are appropriate; responsive to the proven findings made against him by the Tribunal; give due regard to the 5 years under which the Respondent has practised with supervision and conditions; are not financially oppressive; promote supervision rather than providing barriers in finding a supervisor prepared to undertake the time consuming requirements; and allow for a complete and safe reintegration of the Respondent who remains a Fellow in Plastic and Reconstructive Surgery."

1. We conclude that in addition to the imposition of a Reprimand on the Respondent, it is appropriate as a protective order to require the Respondent to practise his specialist medical practice under conditions which are to be the subject of alteration, variation or removal by the Medical Council of New South Wales which council is to be the appropriate review body for the purposes of Part 8, Division 8 of the National Law.
2. The Conditions we propose are as follows:

(a) To obtain Medical Council of NSW approval prior to changing the nature or place of his practice.

(b) When engaged in plastic surgery practice, to practise only in a group practice approved by the Medical Council of NSW where there is at least 1 registered specialist plastic surgeon (excluding the subject practitioner).

(c) The practitioner is not to perform more than four body contouring procedures a week on patients who have undergone massive weight loss and have a BMI of not greater than 30.

(d) For the purpose of condition (c):

(i) Body contouring procedures are defined as:

(B) Body lifts/ Torsoplasty/Belt Lipectomy/Abdominoplasty

(F) Body-contouring implants (excluding breast implants);

(ii) Massive weight loss is where a person has lost more than half of their bodyweight above that person's BMI

(e) To practice under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.

(f) The terms of the Council's Compliance Policy - Supervision are varied so that:

(i) The Council-approved Supervisor must:

(A) be a fellow of the Royal Australasian College of Surgeons; and

(B) hold current specialist registration as a Plastic and Reconstructive Surgeon with the Medical Board of Australia,

(g) The practitioner is to authorise the Council-approved Supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis.

(h) Prior to each supervision meeting, the practitioner must forward a copy of their Surgical Procedure log to the Council-approved Supervisor for review and discussion.

(i) At each supervision meeting the practitioner is to review and discuss his practice with particular focus on:

(i) Patient selection of cosmetic/aesthetic patients

(ii) Pre-operative assessment of cosmetic/aesthetic patients

(iii) Post-operative care of cosmetic/aesthetic patients

(iv) Informed consent of cosmetic/aesthetic patients

(v) A review of at least 3 randomly selected medical records of patients who had a Defined Body-Contouring Procedure.

(j) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision of the NSW Civil & Administrative Tribunal regarding Stage 1 and Stage 2 proceedings; HCCC v Dr Amjadi [2024] NSWCATOD 167.

(k) Not to practise until a supervisor has been approved by the Medical Council of NSW.

(l) Within seven days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with his surgical logbook recording all surgical procedures undertaken in the previous month. The record must include the following:

(i) the date and time of each procedure;

(ii) Medicare item number;

(iii) the patient's full name and date of birth;

(iv) the name and nature of the surgical procedure;

(v) the location where the surgical procedure took place; and

(vi) any complications arising as a result of the procedure

(m) The practitioner is to focus his Continuing Professional Development, to the extent that it is available, on:

(i) Patient selection

(ii) Pre-operative assessments

(iii) Post-operative care

(iv) Informed consent

(v) Body contouring surgery

(vi) Surgery for patients who have undergone massive weight loss

(n) Prior to performing the first three Defined Body Contouring Procedures following the date of the making of these conditions, the practitioner must obtain from his Council-approved supervisor a written statement that supports the practitioner performing the surgical procedure.

(o) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.

(p) These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the National Law.

(q) Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.

(r) [REDACTED].

1. In reaching the conclusion that the above conditions are appropriate in the circumstances of this case, we have determined as follows:

(1) The conditions are to form part of the protective order we are proposing to make. It is the combination of a Reprimand and the Conditions which we determine will protect the safety of the public and fulfil the obligations of the Tribunal to meet the requirements of the purpose of imposing protective orders which we have referred to in this judgment.

(2) We have departed from the proposed conditions provided by the HCCC and modified the proposed conditions urged by the Respondent for the following reasons:

(a) Condition (a). We prefer the wording of the HCCC proposal for this condition.

(b) Condition (b). We note this condition accords with the evidence of the Respondent that he will be sharing rooms with Dr Turner. However, the meaning of the words "group practice" has not been defined and is not the subject of any submission from either party. However, as both the HCCC and the Respondent in their separate documents use the same words we will adopt those. It is to be recognised however, that we understand such words do not mean the requirement for a formal partnership between the Respondent and another plastic surgeon. What is required is that they share the same premises from which to conduct their separate practices.

(c) Condition (c) is common to each proposal in terms of the number of body contouring procedures the Respondent may undertake in any one week. We have however, added a further provision which accords with evidence given at Stage One and which we consider is appropriate to operate for so long as the Medical Council continues to require the Respondent to practice subject to these conditions. That is a requirement that the Respondent not operate on a person with a BMI greater than 30.

(d) Condition (d). We have created an amalgam of the parties' similar provision.

(e) Condition (e). We take the view that the proposed condition (e) of the HCCC is too onerous and unnecessary in the circumstances in which the Respondent now finds himself. We propose to require the Respondent to practice under Category C supervision in accordance with the Medical Council of NSW Compliance Policy - Supervision as varied from time to time) and as subsequently determined by the appropriate review body. We have set out the criteria to be a supervisor, which we have adopted from the HCCC proposal. We have addressed the focus and requirements of supervision. Our determination is not as proscriptive as the HCCC proposed.

(f) In Condition (n) we propose that in relation to the first three Defined Body Contouring Procedures following the date of the making of these conditions, the Respondent must obtain from his Council-approved supervisor a written statement that supports the Respondent performing the surgical procedure. We have considered the evidence given in the Stage One hearing about the practicalities and cost to the Respondent of complying with the proposed condition of the HCCC which sets out the requirements for the Respondent to recommence undertaking defined body contouring procedures. We are confident the Respondent is a different plastic surgeon today than he was between 2017 and 2019. We are confident he has grown in his approach to his practice as a plastic surgeon. We also bear in mind that conditions should only be as onerous as they necessarily have to be to protect the health and safety of the public.

(g) [REDACTED].

(h) Conditions (o), (p) and (q) are common to both parties' proposals and we consider the conditions appropriate to impose.

1. Each of the parties provided written submissions in relation to the extent to which the Tribunal might make a costs order in favour of the HCCC. We now outline those submissions.

1. The Respondent commenced his written submission on costs by addressing the circumstance that Complaint Four was not proved. The submission is that as a consequence, the HCCC should pay the whole of the Respondent's costs of defending Complaint Four.
2. The Respondent also submits the Respondent should only be required to pay 50% of the HCCC's costs of establishing Complaints One, Two and Three noting that only half of the material tendered addressed those complaints and the balance was addressing Complaint Four.
3. The Respondent pointed to the evidence presented in support of Complaint Four by the HCCC which was evidence relating to the competence of the Respondent as a surgeon prior to the end of 2019. However, the test for the Tribunal is the competence of the Respondent at the date of the hearing.
4. The Respondent submits that the expert evidence relied upon by the HCCC for Complaint Four at no time supported a finding that the Respondent was not competent as a plastic surgeon. The Respondent submits that the HCCC should have withdrawn Complaint Four when it amended the Complaint document in December 2023.
5. The Respondent then addressed matters of general legal principle relating to the making of a costs order. We noted the following in particular in that submission.
6. The Respondent submitted:

"The following general rules about the exercise of the costs discretion, specifically in the context of proceedings under the National Law, emerge from the appellate authorities including Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (at [42]-[45]); Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [84]- [85]; and Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 18230 at [47]- [53]:

i. The discretion is a judicial discretion and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion.

ii. As a general rule, costs of proceedings before the Tribunal should follow the event.

iii. However, there are factors that might militate against the Commissions recovery of costs, or all costs, where the Commission is the "successful" party namely,

a. The degree to which the Commission is unsuccessful, for example a failure to prove not competent despite proving professional misconduct relating to different patients under review;

b. Where the Commission failed to establish all of the particulars of a Complaint alleged, though this may only be appropriate where discrete elements of the conduct complained of are not established, rather than a numerical calculation of the number of paragraphs of particulars upheld or rejected;

c. Where there has been oppressive conduct by the Commission in the way it has prosecuted the proceedings, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing."

"A number of other general principles have arisen in the determination of costs in the context of civil litigation that inform the evaluative assessment in an application for costs in the disciplinary jurisdiction:

a. Underlying the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair having regard to what the Court considers to be the responsibility for each party for the incurring of the costs. (Commonwealth v Gretton [2008] NSWCA 117 at [121].)

b. Where there is a mixed outcome in proceedings, the question of apportionment is a matter of discretion. 'Mathematical precision' is 'illusory' and the exercise of the discretion will often depend on matters of 'impression and evaluation'. (Dodds v Family Investments Pty Ltd v Lane Industries [1993] FCA 259; (1993) 26 IPR 261, cited in James & Ors v Surf Road Nominees Property Ltd & Ors (No 2) [2005] NSWCA 296 at [36])

c. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires. (Gray v Richards [No 2] [2014] HCA 47 at [2].)"

"It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made."

1. The Respondent submitted a detailed analysis of the material tendered by the HCCC in the Stage One hearing. It submitted out of a total of 7,093 pages of material, 3,054 related solely to the eight patients the subject of Complaint Four. Additionally there were further documents tendered by the HCCC through their expert witness called to support Complaint Four, Dr Sanki.
2. The Respondent then turned to the evidence he tendered to refute the case brought through Complaint Four. He submitted that 1,970 pages of a total of 4,010 pages tendered by the Respondent related solely to the eight patients the subject of Complaint Four. In addition, extensive cost was incurred in the writing of the submission presented to the Tribunal for the Stage One hearing.
3. The Respondent submits that the conduct of the HCCC in pursuing Complaint Four should disentitle them to 100% of their costs of the proceeding and should require that the Respondent be compensated for his costs of defending Complaint Four.

1. The HCCC written submission on costs was provided to the Tribunal on 13 November 2024 and was marked as MFI 11. The submission is short and we set it out in full.

"APPLICANT'S SUBMISSIONS ON COSTS

1. In Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 the Court of Appeal held as follows:-

6 Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which the appellant was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). 
> >

7 As the appellants submit, the commencing position is that costs follow the event so that a successful party is entitled to costs. In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 (at [24]). A similar approach is adopted in the Court of Appeal. If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 (at [27]).
> >

8. Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 (at [18]) per Hislop J (with whom Beazley JA and Tobias JJA agreed).

9. In the Court's view, the contributory negligence issue was a separable issue from the damages issue on which the appellants succeeded. A separable issue for these purposes can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James and Ors v Surf Road Nominees Pty Ltd and Ors [No 2] [2005] NSWCA 296 (at [34]). The respondent should not have to pay the costs of that issue.

10. As to the grounds of appeal which were abandoned, the Court is of the view that some allowance should be made having regard to their late abandonment.

11. As to the extent to which the appellants should lose the benefit of the first costs order, the appellants are correct that it is often difficult to decide, in retrospect, how much time was occupied upon one issue or the other in the course of an appeal. Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James and Ors v Surf Road Nominees Pty Ltd and Ors [No 2], citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 (at 272). Doing the best it can, having regard to the significance the contributory negligence issue played in the appeal, the Court is of the view that the respondent should bear only seventy-five per cent of the costs of the appeal, such costs to include the costs of this application

2. In this case the respondent contends that the applicant should pay his costs of defending Complaint 4 on the basis that the applicant failed to establish Complaint Four. That failure, however, did not deprive Complaint Four of relevance for the purposes of Stage Two, particularly having regard to the Tribunal's finding at first instance that it accepted "...the opinion of Dr Sanki that based upon the cases she reviewed she considered the Respondent was not fit to practice [sic] during the 2018 and 2019 years".

3. This is a significant finding. Moreover, if the evidence concerning the eight patients who were the initial and primary focus of Dr Sanki's opinion had not been called in Stage One, it may well have formed part of Stage Two (with a concomitant increase in the length of time required for Stage Two).

4. It is also relevant that the respondent himself tendered and relied upon material produced by and tendered through Dr Sanki, including material relevant to the respondent's defence of Complaint One. This indicates that there is no bright line separating the evidence in relation to Complaint Four to the evidence generally.

5. Ultimately these proceedings have as their aim the protection of the public and the upholding the reputation of the profession. It was incumbent on the HCCC as the regulator to put the material, including the incompetence complaint, before the Tribunal. Overall, the applicant has been successful in establishing professional misconduct over the respondent's objection and has proved particulars of Complaint One that were denied by the respondent; it would be erroneous to make any order other than that the respondent pay the applicant's costs. Strictly in the alternative, if the Tribunal does form the view that Complaint Four is separable - notwithstanding that Dr Sanki's cross-examination spanned the issues of the complaint as whole - there is no basis for the applicant to pay the respondent's costs thereof."

1. The costs arguments in this case largely arise because of the failure of the HCCC to establish the case it brought against the Respondent in Complaint Four. Complaint Four sought a finding and consequent order that the Respondent "is not competent within the meaning of section 139(a) of the National Law". The Complaint Four, if established would have had a serious impact upon the Respondent's ability to practice his profession. In such circumstances the Respondent fought the complaint rigorously through his legal representatives.
2. There was a significant amount of documentary evidence relied upon by the HCCC in support of Complaint Four. The Respondent submitted there were 3,054 pages of a total of 7,093 pages of documents tendered by the HCCC in the Stage One hearing which addressed matters relating to the HCCC Complaint Four case. In response the Respondent tendered 1,970 of a total of 4,010 pages, in relation to Complaint Four. The Respondent supplied those figures (which we accept) to illustrate how much an issue Complaint Four created for each of the parties to the proceeding.
3. The difficulty for the HCCC in prosecuting Complaint Four was that the Tribunal was required to make its decision based upon the clinical skills and knowledge which the Respondent held at the date of the hearing and not at the time he treated the patients selected by the HCCC as the basis for its case. The time which elapsed between the time the Respondent had treated the patients and the date of the hearing was, in all cases, nearly five years and as much as seven years in relation to some of those patients. As such the evidence established that whatever the deficiency may have been in the level of competency demonstrated by the Respondent in his surgical practice in the years 2017 to 2019, the HCCC could not establish incompetence at the date of the hearing.
4. The Respondent's case includes a submission that the HCCC had an opportunity to discard its case in Complaint Four when it amended the Complaint document in late 2023 or February 2024. The Respondent submits the HCCC should have not pursued Complaint Four in this hearing. As it did so and failed to establish its case, the result should impact upon the Tribunal's decision on the costs application now pressed by the HCCC.
5. The Respondent submits he should only be required to meet 50% of the HCCC's costs of establishing Complaints One, Two and Three noting that half of all the material tendered by the HCCC addressed those complaints only. The Respondent also submits the HCCC should pay the Respondent's costs of defending Complaint Four.
6. As stated earlier in this judgment, the HCCC case is that if there is to be a reduction in the amount of its costs which it seeks to recover through the cost order it seeks, that reduction would be a small percentage of the totality of its costs.
7. In determining this application, we accept the following as guidance arising from the cases relied upon by the parties in their submissions.

(1) The making of a costs order requires the exercise of a discretion by the Tribunal. It is a judicial discretion.

(2) As a general rule, costs of the proceeding should follow the event.

(3) Matters which might give rise to a departure from the general rule include assessing the extent to which the HCCC was unsuccessful in proving a part of its case which the Respondent was required to, and did, successfully defend.

(4) Where the conduct of the successful party is found to be disentitling as to some proportion of the costs claim.

(5) Where there is a mixed outcome in the proceeding, the question of apportionment is a matter of discretion.

(6) The fact that the order for costs to be paid, by a party, may cause hardship to that party, is not a matter which should impact upon the exercise of the discretion.

1. The HCCC submits that although it did not establish Complaint Four, its expert witness Dr Sanki was accepted and relied upon by the Tribunal in reaching its conclusions at Stage One and may well be relied upon in this Stage Two determination. Further, the HCCC submits that if the cases which were set out in Stage One as relevant to Complaint Four, had not been placed into evidence at that time, they may well have been placed before the Tribunal in this Stage Two hearing. That would have led to a longer hearing in Stage Two than that which we have experienced.
2. The HCCC further reminds the Tribunal that the Respondent, in his cross-examination of Dr Sanki, tendered evidence through and obtained oral evidence form Dr Sanki in support of his defence to the balance of the Complaint document upon which the HCCC was successful.
3. The HCCC submits that if the Tribunal does form the view that Complaint Four is severable from the balance of the Complaints then the Tribunal would consider the way in which the Respondent built his case through the evidence of Dr Sanki. It submits that the Tribunal would not order the HCCC pay any part of the Respondent's costs.
4. The Tribunal proposes to make a costs order which requires that the Respondent pay 75% of the costs of the HCCC as agreed or as assessed in the absence of agreement.
5. In making that order the Tribunal views Complaint Four as severable from the balance of the complaints pursued by the HCCC in this proceeding. The HCCC did have the opportunity, close in time to the Tribunal hearing to withdraw Complaint Four having considered the difficulty of establishing the current state of competency of the Respondent so distant from the procedures upon which the HCCC was resting its' case. We accept that the HCCC may have sought to call the evidence of the patients it relied upon for Complaint Four, in this Stage Two section of the proceeding and it may have been permitted to do so. We also accept the submission of the HCCC that the expert witness it provided to the Tribunal for Complaint Four was the subject of cross-examination which addressed, at least in part, matters relevant to the balance of the Complaints. The evidence of Dr Sanki the Tribunal found of assistance also in relation to the determination of Complaint Four and other aspects of the case brought by the HCCC.
6. In this Stage Two hearing the Respondent has relied upon the evidence of Dr Sanki, in part, to support his case in relation to both rejecting the HCCC proposal for a suspension order and also in the formulation of the conditions he proposes are appropriate.

1. We will make the following protective orders which includes the imposition of conditions upon the Respondent's registration:

(1) Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW) (National Law), the Respondent is reprimanded.

(2) The following Practice Conditions are imposed on the Respondent's registration:

(a) To obtain Medical Council of NSW approval prior to changing the nature or place of his practice.

(b) When engaged in plastic surgery practice, to practise only in a group practice approved by the Medical Council of NSW where there is at least 1 registered specialist plastic surgeon (excluding the subject practitioner).

(c) The practitioner is not to perform more than four body contouring procedures a week on patients who have undergone massive weight loss and have a BMI of not greater than 30.

(d) For the purpose of condition (c):

(i) Body contouring procedures are defined as:

(B) Bodylifts/Torsoplasty/Belt Lipectomy/Abdominoplasty

(ii) Massive weight loss is where a person has lost more than half of their bodyweight above that person's BMI

(e) To practice under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.

(f) The terms of the Council's Compliance Policy - Supervision are varied so that:

(i) The Council-approved Supervisor must:

(A) be a fellow of the Royal Australasian College of Surgeons; and

(B) hold current specialist registration as a Plastic and Reconstructive Surgeon with the Medical Board of Australia.

(g) the practitioner is to authorise the Council-approved Supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis.

(h) Prior to each supervision meeting, the practitioner must forward a copy of their Surgical Procedure log to the Council-approved Supervisor for review and discussion.

(i) At each supervision meeting the practitioner is to review and discuss his practice with particular focus on:

(i) Patient selection of cosmetic/aesthetic patients

(ii) Pre-operative assessment of cosmetic/aesthetic patients

(iii) Post-operative care of cosmetic/aesthetic patients

(iv) Informed consent of cosmetic/aesthetic patients

(v) a review of at least 3 randomly selected medical records of patients who had a Defined Body-Contouring Procedure.

(j) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision of the NSW Civil & Administrative Tribunal regarding Stage 1 and Stage 2 proceedings; HCCC v Dr Amjadi [2024] NSWCATOD 167.

(k) Not to practise until a supervisor has been approved by the Medical Council of NSW.

(l) Within seven days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with his surgical logbook recording all surgical procedures undertaken in the previous month. The record must include the following:

(i) the date and time of each procedure;

(ii) Medicare item number;

(iii) the patient's full name and date of birth;

(iv) the name and nature of the surgical procedure;

(v) the location where the surgical procedure took place; and

(vi) any complications arising as a result of the procedure.

(m) The practitioner is to focus his Continuing Professional Development, to the extent that it is available, on:

(i) Patient selection

(ii) Pre-operative assessments

(iii) Post-operative care

(iv) Informed consent

(v) Body contouring surgery

(vi) Surgery for patients who have undergone massive weight loss

(n) Prior to performing the first three Defined Body Contouring Procedures following the date of the making of these conditions, the practitioner must obtain from his Council-approved supervisor a written statement that supports the practitioner performing the surgical procedure.

(o) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.

(p) These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the National Law.

(q) Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.

(3) The Respondent is to pay 75% of the costs of the HCCC as agreed or as assessed.

(4) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure and publication of the name of any patient referred to in these reasons or in any document filed or tendered in the proceeding is prohibited.

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.

25 June 2025 - Redactions made to order (2)(r), pars 17(g), 108(1), 117(r), 118(g), 145(2)(r)