Health Care Complaints Commission v Amjadi

165B Constitution of Tribunal for complaints, applications and appeals [NSW]

(2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by -

(a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and

(5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a).

1. The Tribunal marked the following documents as exhibits in the hearing:

(a) Exhibit A1: Application to Vary the Tribunal Decision.

(b) Exhibit A2: Affidavit by the Practitioner's solicitor Ms Melanie Nicol affirmed 7 May 2025.

(c) Exhibit A3: Minute of proposed order as sought by the Practitioner.

(d) Exhibit X1: Copy of the Evidentiary Certificate tendered in the Stage One hearing and setting out the conditions imposed by the Medical Council of NSW (Medical Council) on the registration of the Practitioner on 2 August 2022 and current until the making of the order by the Tribunal on 24 April 2025.

(e) Copy of the 24 April 2025 Decision of the Tribunal in this proceeding.

(f) Copy of email forwarded to the Tribunal by the Practitioner's solicitor requesting an urgent listing before the Tribunal.

(g) Copy of email from a Tribunal Sydney Registry staff member to the parties setting out a request from the Tribunal Principal Member herein, for the filing of documents and requesting submission for the hearing of the urgently-listed application.

1. The evidence establishes that this application under consideration became necessary because of advice received by the Practitioner, from his monitoring officer (A/Senior Program Officer, Medical Council of NSW), following an email sent to the Medical Council requesting the approval of Dr Turner and Dr Safvat as principal and co-supervisors of the conditions then applicable to him consequent upon the 24 April 2025 Decision. It is noted that immediately prior to the decision being published, the Practitioner had been practicing as a specialist plastic surgeon subject to conditions imposed by the Medical Council (on 2 August 2022) and those conditions included the requirement for Category A supervision. Both Dr Turner and Dr Safvat were Council-approved supervisors for the conditions dated 2 August 2022.
2. On 30 April 2025, the Practitioner's solicitor wrote to the Medical Council with a request that the Medical Council confirm that the group practice condition only applies to the practice of Plastic Surgery as defined as "body contouring procedures" in the conditions imposed in order 2 of the 24 April 2025 Decision. The Practitioner had been given Medical Council approval for practice at two skin cancer clinics where he does not conduct any body contouring surgery in the 2 August 2022 conditions.
3. The Medical Council replied to the email from the Practitioner's solicitor on 2 May 2025 advising, inter alia, that until a new approval by the Medical Council of the Practitioner's proposed supervisors is notified by the Medical Council, he is unable to practice. Further information from the Medical Council was to the effect that the approval of the Practitioner's supervisors may take 5 to 10 business days after all requested information and documents, required from the Practitioner, have been received by the Medical Council. There were other circumstances set out which may cause further delay.
4. The advice from the Medical Council to the Practitioner's solicitor led to further correspondence between the Practitioner's solicitor and both the Medical Council and the Commission in an attempt to close the period of time between the order of 24 April 2025 and the approval by the Medical Council of the Practitioner's proposed supervisors. That correspondence included advice that the Practitioner would apply to the Tribunal to vary order 2 of the 24 April 2025 Decision so that the conditions would only become effective at the expiration of eight weeks, and that pending that eight-week period he would continue to practise subject to the conditions imposed by the Medical Council on 2 August 2022. It was envisaged that during the eight-week period the Practitioner would place before the Medical Council all of the necessary documents and consents in order to have his existing Council-approved supervisors again approved for the conditions imposed by the order of 24 April 2025.
5. The last proposal of an eight-week stay of order 2 of 24 April 2025 was the subject of a response by the Medical Council which stated that the Medical Council would not commence to consider the appointment of the supervisors for the new conditions until the time the order 2 of 24 April 2025 "resumed effect". Further, the Medical Council advised that at that time the Practitioner would "again have to cease practice until approval is received".
6. As a result of the above exchange of correspondence, the Practitioner sought on 5 May 2025 an urgent listing before the Tribunal to consider an application to vary the conditions imposed by order 2 of 24 April 2025. The Tribunal responded by listing the Practitioner's request at 9.00am on 7 May 2025.
7. In the advice by the Registry, to the parties, that the Practitioner's application would be listed on 7 May 2025, the following request on behalf of the Principal Tribunal Member was included:

(1) The Practitioner's solicitor to have available to file in the Tribunal office an Application for Miscellaneous Orders.

(2) The Practitioner to have a letter from Dr Scott Turner consenting to continue as his supervisor in accordance with the requirements of the conditions now imposed upon the Practitioner's registration (as per the 24 April 2025 Decision).

(3) Be ready to assist the Tribunal with submission, and if necessary, relevant authority, addressing whether an amendment to condition (f)(i) by the addition of the following is appropriate and consented to:

"(C) Dr Scott Turner as the 1st appointed supervisor.

(ii) Pending the formal appointment of Dr Scott Turner pursuant to this condition, his appointment as supervisor pursuant to conditions which were in force until the making of the Order 2 herein is to continue."

1. On 6 May 2025 a telephone conversation took place between the Practitioner's solicitor and the Principal of Monitoring at the Medical Council. They discussed the merits of the Practitioner making an application to the Medical Council under s 163A of the National Law so that the group practice condition would only apply to the Practitioner when he was performing body contouring surgery.
2. Following the above telephone conversation the Principal of Monitoring advised by email that the earliest a s 163A application could be considered would be 13 May 2025. In response, the solicitor for the Practitioner advised the Medical Council that an application would be made to the Tribunal to vary the conditions so that the Practitioner could continue to work in the skin cancer area of his practice without the requirement for a group practice. Further requests were made about the requirements of the Medical Council in order to have Dr Scott Turner appointed as the Practitioner's Council-approved supervisor for body contouring surgery.
3. At 3.00pm on 6 May 2025, the Practitioner sent to the Medical Council the Supervisor Consent form signed and completed by Dr Scott Turner, and a copy of his CV.
4. At 7.46am on 7 May 2025 (the day of the hearing) the Medical Council advised the Practitioner's solicitor that the Medical Council had approved Dr Scott Turner as the Practitioner's Category C supervisor for the purpose of conditions 5 to 11, 12 and 14 of his registration. The decision was effective from that time and date. The Medical Council advised that it was declining the request that it participate in this hearing.
5. Part 3 of the Civil and Administrative Tribunal Regulation 2013 (NSW) is as follows:

Part 3 Miscellaneous

9 Additional power to set aside or vary decision determining proceedings

(1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances -

(a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,

(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.

**Note - **

The following provisions of the Act are examples of provisions that expressly confer powers to set aside or vary decisions of the Tribunal -

(a) section 45 (3) (which enables the Tribunal to revoke leave granted to a person to represent a party),

(b) section 53 (4) (which confers a power on the Tribunal to set aside proceedings and decisions involving procedural irregularities resulting from a failure to comply with provisions of the Act or the procedural rules in relation to the commencement or conduct of proceedings),

(c) section 63 (which confers a power on the President or a presiding member to correct obvious errors in decisions of the Tribunal),

(d) section 64 (3) (which enables the Tribunal to vary or revoke a non-disclosure order made under section 64),

(e) section 73 (3) (which enables the Tribunal to vacate or revoke an order with respect to contempt of the Tribunal).

(2) The Tribunal may make an order under this clause of its own motion or on the application of a party.

(3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made.

(4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first -

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if -

(a) an internal appeal or appeal to a court against the decision has been lodged or determined, or

(b) an application for a judicial review of the decision has been made or determined.

(6) A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied.

(7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside.

**Note - **

An example of such a consequent order may be an order for costs in the proceedings.

(8) Proceedings for the purposes of this clause are prescribed for the purposes of section 50 (1) (d) of the Act.

**Note - **

A hearing is not required for proceedings that are prescribed for the purposes of section 50 (1) (d) of the Act.

(9) This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings.

1. The order which is made by the Tribunal today is made with the consent of each party. Each party is represented and had the opportunity to make submissions. Thus the power to vary the Tribunal order made as a final order on 24 April 2025 is enlivened.
2. The order made this day is made more than seven (7) days following the making of the Tribunal order on 24 April 2025. As such, "an extension under section 41 of the Act" is required. In the circumstances of this case, it is appropriate to grant that extension of time to the Practitioner to make the Application now before the Tribunal.
3. Having considered the evidence and the submissions made by the Practitioner's senior counsel, I determine it is appropriate and proper to make the order sought.
4. The circumstance which gave rise to the subject application having to be made, arose as a result of the Tribunal imposing conditions which varied from those proposed by the Commission and which the Commission had sought advice on from the Medical Council, in relation to wording and general appropriateness for the Practitioner. The proposed variation to that Commission's proposal was not provided to the Medical Council for its consideration prior to the making of the Tribunal order.
5. The subject case is not illustrative of a unique circumstance in relation to the Tribunal imposing new conditions on a practitioner at a time when that practitioner is practising under existing conditions, imposed on their registration, by the Medical Council.
6. Unless an order specifically provides for the continuation of existing conditions imposed on the registration of a practitioner at the time of that order and for a specific period of time, the making of an order by the Tribunal will have the effect of bringing to an immediate end the operation of conditions then existing. Thus a practitioner would find him/herself unable to continue any form of practice until the new conditions have been complied with. Thus the requirement for supervision, at any level, by a Council-approved supervisor, will be expected to take some time to be administratively considered and approved by the relevant delegate of the Medical Council.
7. The subject case provides an example of the consequence to a practitioner of the imposition of a new set of conditions by the Tribunal where the practitioner has been, immediately before the making of the order for the new conditions, permitted to practise under supervision and/or a condition put in place by the Medical Council.
8. Clearly in this case, neither the Practitioner nor the Commission were aware of precisely what conditions the Tribunal might impose as part of the orders it made on 24 April 2025 and therefore neither was in a position to alert the Tribunal to the consequence for the Practitioner which has occurred here.
9. The conditions which were made on 24 April 2024 included the following:

"(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."

1. Although that condition clearly gives the Medical Council the ability to recast a condition framed by the Tribunal and which may have an unintended consequence, it is clear that the Medical Council has its own procedures (required by both the National Law and its own rules) in considering and making any such variation or removal of a condition and those procedures may take some time to implement.
2. In this case it can be seen that the Medical Council considerably abridged the time which it would normally require to approve a supervisor for a practitioner. The practitioner is clearly appreciative of that and the Tribunal acknowledges the Medical Council was able to see the circumstances which had befallen the Practitioner were such that required urgent action on the part of the Medical Council, which it was able to provide.
3. Unfortunately for the parties and the Tribunal, all the action which has been required to attend to the circumstance set out in this judgment comes at a cost. The purpose of providing this judgment is to raise awareness of the potential impact of the Tribunal imposing a condition on a practitioner who has been permitted to practice under Medical Council imposed conditions until the making of a different set of conditions upon the determination of a particular proceeding.
4. The orders of the Tribunal will be as follows:

(1) The Practitioner (Dr Amjadi) is granted leave to make the application set out in exhibit A1.

(2) Orders 2(b) and 2(d) made by the Tribunal on 24 April 2025 are varied as follows:

2(b) To perform defined body contouring procedures only when practising within a plastic surgery practice that is a group practice approved by the Medical Council of NSW where there is at least 1 registered specialist plastic surgeon (excluding the subject practitioner).

(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

(3) The Application filed this day by the Practitioner (Dr Amjadi), to vary the Conditions contained in order 2 of the Tribunals orders made 24 April 2025, is otherwise dismissed.

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.