Health Care Complaints Commission v Behi - [2025] NSWCATOD 18 - NSWCATOD 2025 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Behi

[2025] NSWCATOD 18

NCAT Occupational|2025-02-07|Before: Ms J

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2025-02-07

Before

Ms J

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

Introduction

Riaz Behi (the Practitioner) was registered as a chiropractor on 22 December 2000. His registration was suspended on 30 July 2019.
By application filed 20 September 2024, the Health Care Complaints Commission (the Applicant) seeks protective orders under s 149C(1) of the Health Practitioner Regulation National Law (NSW) (the National Law).
The primary complaint arises from criminal charges, and subsequent convictions, in relation to aggravated non-consensual sexual intercourse and aggravated sexual touching by the Practitioner of Patient A.
In a Reply by the Practitioner dated 24 October 2024 (Exhibit 4), he stated that he did not contest the grounds of the complaint. However, in a letter to the Applicant dated 9 December 2024 (Exhibit 5), the Practitioner stated: "Whilst I accept the conviction gives rise to such disciplinary action that the Commission seeks I wish to make it abundantly clear that I continue to maintain my innocence as to all the sequences of all charges that led to my conviction".
The Practitioner continues to maintain his innocence before us.
He also states he does not agree that he is guilty of unsatisfactory professional conduct as asserted in Complaint One because he failed to give proper written notice of the charges, as he met with the regulatory authority within seven days of being charged with the relevant offences.
The Practitioner states that he would not contest an order cancelling his registration with a non-review period of five years, but that the commencement date of the non-review period should be backdated to 25 July 2019. The Practitioner says that each party should bear its own costs.
On 27 June 2022, the Practitioner was convicted on 13 charges and is currently serving a term of imprisonment. He is due for release on 19 September 2027.
On 11 November 2024, the Registrar of the New South Wales Civil and Administrative Tribunal (the Tribunal) made an order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW), for the Commissioner of Corrective Services to produce the Practitioner or to cause the Practitioner to be produced before the Tribunal by audio visual link (AVL) on 7 February 2025 at 10:00am. He appeared at the hearing by AVL.

[5]

The meaning of "unfit in the public interest to practise the practitioner's profession"

The National Law does not contain a definition of unfitness to practise in the public interest. That concept falls to be interpreted in light of the objectives in s 3 and s 3A of the National Law (Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 ("Limboro") at [14]).
In this case there is a clear nexus between the criminal offences and the practice as a chiropractor in respect of which the Practitioner's registration was granted. As the Tribunal observed in Health Care Complaints Commission v Hachem [2022] NSWCATOD 169 at [116], in order to be fit to practise as a chiropractor, a person needs to have a very clear understanding of inner personal boundaries, the need for consent and what is appropriate and inappropriate touching.
The relevance of these criminal offences however can be seen to have an additional dimension when considering whether the Practitioner is unfit in the public interest to practise his profession. The term "public interest" is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as standards to which human conduct is to be held.
In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 ("Crickitt") at [56(7)(f)]: "A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits."
In Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 ("Karimi") at [123(6)(b)] the Tribunal referenced the statement in Crickitt and slightly reframed it: "The 'public interest' consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession".
In Ghosh v Medical Council of New South Wales [2020] NSWCA 122, Brereton JA at [9] (with whom Emmett AJA at [135] and Simpson AJA at [136], generally agreed) cites this proposition from Karimi with apparent approval.
Whether a practitioner is unfit in the public interest to practise requires the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction upon the practitioner in terms of any insight, contrition and remorse (see Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]).
Whether a practitioner is unfit in the public interest to practise must be assessed in light of a holistic inquiry into suitability. This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and any investigation or sanction. All of these considerations, past or present, must inform an assessment of the current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration (see Limboro at [22]).

[7]

"The circumstances of the offence"

In this case, the Practitioner cannot and does not dispute that he has been convicted of five counts of aggravated sexual intercourse and eight counts of aggravated sexual touching.
What he seeks to say however is that he was innocent of the charges upon which he was convicted and that innocence is a circumstance of the offence which we should take into account when considering what protective orders to make. Whilst maintaining innocence, the Practitioner indicated that he continued to seek that the matter be dealt with "on the papers" and he neither wished to lead any evidence about his innocence nor to dispute any of the material in Exhibit 1 and in particular the findings made by Judge Huggett on sentencing. In those circumstances the preponderance of evidence before us supports the jury's verdict and the findings of the sentencing judge. On that basis we make the findings which follow to our reasonable satisfaction.
The Practitioner was arrested on 18 July 2019.
On 21 March 2022, the Practitioner was charged with the following 13 offences committed upon Patient A between 31 January 2019 and 4 April 2019: 1. In counts 4, 6, 7, 8 and 13, Sexual Intercourse without Consent whilst under Authority (aggravated sexual intercourse) pursuant to s 61J(1) of the Crimes Act; and 2. In counts 1, 2, 3, 5, 9, 10, 11 and 12, Sexual Touching without Consent whilst under Authority (aggravated sexual touching) pursuant to s 61KD(1)(a) of the Crimes Act.
Sections 61J(2)(e) and 61KD(2)(b) of the Crimes Act provide one element of "circumstances of aggravation" can be that at the time of the commission of the offence, the victim was under the authority of the Practitioner.
By way of legislative guidepost, the five s 61J(1) offences each have a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years imprisonment, and the eight s 61KD(1)(a) offences each have a maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years imprisonment.
The Practitioner first stood trial between 22 February and 8 April 2021 in relation to these 13 offences and the jury was discharged after they were unable to reach any verdicts.
The second trial commenced on 8 February 2022. On 21 March 2022, the jury returned unanimous verdicts of guilty in relation to all counts. Judge Huggett presided over the second trial. Her Honour sentenced the Practitioner on 27 June 2022. The jury found the elements of each count against the Practitioner proved beyond reasonable doubt.
At the sentencing hearing, the Crown and counsel for the Practitioner were not in agreement regarding the factual basis upon which the Practitioner was to be sentenced. Judge Huggett observed it was incumbent upon her when sentencing the Practitioner, consistently with the elements of the offences as found by the jury, to make further factual findings regarding the circumstances in which the offences were committed. What now follows in [40] to [69] is largely drawn from part of the longer factual findings by her Honour in her reasons for the sentence.
On November 2018, Patient A travelled to Australia on a working holiday visa. She was aged 30 or 31 when she arrived. She spoke limited English and enrolled in an English language school in the Haymarket area and by early 2019 was living with an Australian host family. Patient A could speak very basic English words and short sentences and often communicated using Google Translate and/or by writing things down and/or having others write things down.
When Patient A was 17 years of age, she had hurt her lower back in a fall and began to experience back pain. In her late 20s, she began to experience groin pain and had sought acupressure, chiropractic and relaxation massage treatment. She had also suffered cervical cancer. Some lymph glands and part of her uterus had been surgically removed which had caused some scarring to her abdomen.
A third party suggested to Patient A that she should attend the Practitioner for treatment.
At that time, the Practitioner was a part owner of the Back Guys Chiropractic Clinic in York Street, Sydney. He had been a chiropractor for over 18 years. His qualifications entitled him to be referred to as "Dr Behi". Patient A attended the first two treatments on 5 January 2019 and 17 January 2019 with the third party. Both attendances were uneventful and took place in a usual therapeutic manner.
At the second appointment, the Practitioner gave Patient A a flyer advising her (through the third party) of a package deal of 20 treatments for $1,200, which meant the treatments would be less expensive than if they were paid for individually. Due to the extent of Patient A's injuries and the Practitioner's opinion of the treatment she required, he recommended this package deal.
The third party also booked and attended the third appointment on 22 January 2019 and the next on 24 January 2019. It was around this time that the third party purchased the session package deal which he paid for using his credit card. At some point around the time of these appointments, the Practitioner gave Patient A his mobile telephone number.
Patient A generally attended the appointments on Tuesdays and Thursdays and would typically book the next appointment at the end of that appointment, either with the Practitioner or with the receptionist.
The Practitioner used "hand signals, gestures and sound effects" to try to communicate with Patient A and on occasions used Google Translate to communicate with her. Patient A's fifth appointment was on 29 January 2019. She attended alone. Amongst other things, she and the Practitioner had a conversation using Google Translate about the scar on her abdomen and whether the treatment was helping to move the lymph around the hip joint. During this appointment, the Practitioner said he was going to change the treatment in order to partly focus on the scarring.

[19]

The messages of 11 and 12 April 2019 (Exhibits DH and L at trial)

At paragraph [416] of President Ward's reasons, he says: "The most compelling evidence in my view is that comprised by the Apil 2019 messages (see exhibits DH and L). The [practitioner's] response to the [Patient A's] messages, far from being a denial of sexual misconduct (other than the denial of licking her body) accepts that there was sexual conduct at least in February and his protestation that he only said he found her sexually attractive to placate her is something that was open for the jury to find self-serving and implausible."
Both the other judges agreed with those comments and Button J said, "I consider that the text messages of the [practitioner] provide significant support for the Crown proposition that the disputed occasions of sexual contact had indeed occurred".
On 11 and 12 April 2019, there were text messages between Patient A and the Practitioner. Both used Google Translate to communicate in their languages. There were some inaccuracies in translating Japanese into English and vice versa.
In those text messages, the Practitioner wrote: "I would like to apologise when I see you on todays appointment. I felt that I was attracted to you and you were attracted to me. However, when you told me to stop, I stopped. Since then I havent done anything to you. Last time I did not lick you and I even did not know how to do that. It was impossible. It has nothing to do with me. Last time I tried a different type of massage with a massage machine thats why I used it. Sometimes people complain they pain when they do I change my treatment. I apologise for your uterus pain but no previous patient ever complained. I am good person. I am sorry to felt disgusted. I am asking you whether you can give me a chance to talk to you. It doesnt have to be in my clinic. We can meet up at a food court in the city then you will see that I am genuine and that I didnt mean to hurt you. I have a young family and this will cause a lot of pain. I urge you an opportunity to apologise to you and to show you I was trying my best to fix your back. Can we go to the town so that we can talk and I can explain and apologise? I am going overseas from tomorrow for 2 weeks but I dont want you to feel this way. I want to explain to you that I thought that I was attracted to you and you attracted to me but you said stop no so I felt embarrassed and I was a fool so I didnt know what to say. I felt sorry in February but since then I was only focusing on improving your back. I have been trying my best for this and I havent done anything inappropriate since February So that you succeed in test. I didnt touch there and licked you anywhere. I feel bad that you feel this way. I hope that you come to see me today. I can also give you a refund a balance of the treatment fee. I really tried my best to fix your back. [First name of Patient A] where you attracted to me? I want to explain to you again so you can see my intention In February I was strongly attracted to you. I also felt you had a similar feeling As I felt that you responded to my touch, I received more massage Even after I touched you all over because you enjoyed it very much, we laughed together. To be honest I thought we were going to have sex. So when you told me to stop I felt you felt the same way and also I was embarrassed and ashamed I crossed the line with myself and a patient Ive never done this before! I have never been unprofessional in the 20 years of my professional work. So when you asked me why I did it I told you I don't know because I didn't know what to say. Also, it is difficult for us to communicate with each other. I feel really bad since then all I did was I thought I could improve your back. It was much better then when we started it wasn't fixed yet I massaged your high back I tried different stretch and I used electronical machine, which is used on many of my patients. I used it more often than my own hands. It is not a vibrator it is for treatment massage I used it hoping it helped you to relax your massage. I am sorry you actually felt the pain from it my intention was to try my best to fix you Ive never licked you and I don't understand why you think so. I wouldn't do that especially because you said no to me. I understand my act made you feel so bad unprofessionally Im sorry I liked you and I thought you liked me. When you said no I regrated [sic] and ashamed of my choice so I didn't know what to say I can see how uncomfortable you felt afterwards but since you said no to me in February I focused on your back. I think you can see that I am worried this might not be translated correctly into Japanese and this could create misunderstanding for us For instance you call massage machine vibrator. It means something else in English and it could be misunderstood I don't know if you were talking about it all wrong so if we sit next to each other we could immediately check so we won't misunderstand each other I want to correct this but I want to make sure you don't feel bad. I am leaving overseas with my children today and won't be able to send or receive SMS from this number for the next 2 weeks. If you want to contact me or ask me or tell me anything please send an email to sydneychiropractic@gmail.com. Also then you can sent me you bank account details I will give you refund $240 which is left for your treatment. I hope you accept my apology and you feel better after reading this message." [errors in the original]

[23]

Non-review period

We turn now to the question of the imposition of a time period before the Practitioner may seek to review, under s 163A of the National Law, the cancellation of his registration.
Subsection 149C(7) of the National Law provides an order for cancellation may provide that an application for review of that order may not be made until after a specified time.
In final submissions, the Applicant confirmed the protective order sought was a cancellation of the Practitioner's registration as a chiropractor with a non-review period of five years from the date we made orders. The Applicant hinted that the non-review period could be less than five years if the Tribunal was so minded.
As earlier indicated, the Practitioner's primary position in relation to the non-review period is that it should be backdated to the date of his suspension, namely 30 July 2019. This would mean that if the non-review period was five years, it would have already expired at the date of our order and upon our cancelling his registration, he would be immediately at liberty to apply for re-registration.
The Practitioner has indicated in written documents that he did not intend in the future to seek re-registration as a practitioner. He confirmed before us that that is still his position, although he also said that he may in the future change his mind about that.
The Practitioner explained that the reason why his criminal proceedings took a long time to finalise was largely due to not being able to obtain but eventually being able to obtain, legal aid for representation in his criminal proceedings including for his appeal to the Court of Criminal Appeal.
Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [74] makes it clear that "time served" between the suspension of the registration and a hearing before the Tribunal might only be relevant if some action is taken in that time by the practitioner to remediate the difficulty that has led to the suspension. It's trite to observe that when exercising our discretion to impose an order under s 149C(7) we must consider the unique facts and circumstances of this case.
The Practitioner has not sought to adduce any evidence, expert or otherwise. that he has sought or obtained any treatment or assistance.
We acknowledge Judge Huggett's prediction that the time the Practitioner will spend in prison was in itself a strong deterrent and a force in reshaping his thinking. Her Honour also found that the offences were out of character and notwithstanding the Practitioner's continued denial of the offences, was satisfied the Practitioner's risk of reoffending was low.
Whilst Her Honour found in those circumstances that the Practitioner had a reasonable prospect of rehabilitation, we have no actual evidence of any.
As we have said we are comfortably satisfied that the Practitioner is guilty of the behaviour that we have described in detail. The Practitioner's maintenance of his innocence of the offences creates difficulties in relation to our consideration of any insight that he may have obtained since the sentencing. We have no evidence the Practitioner has obtained or is likely to obtain any professional assistance whilst he is incarcerated. In fact, the Practitioner's current position is that he doesn't need any. This position arises out of the maintenance of his innocence. The Practitioner needed to acknowledge what he did to Patient A in 2019 for the Tribunal to have any confidence that he would not reoffend.
The predominant consideration is the protection of the public. A significant non-review period is required to ensure the safety of the public by denouncing the Practitioner's serious crimes and sending the message that the Tribunal is focused on maintaining the integrity of the profession.
We conclude that the non-review period should be five years from the date of this order. This would mean that the earliest time that the practitioner could seek re-registration as a chiropractor is the end of February 2030.

[24]

Complaint One - Unsatisfactory Professional Conduct under s 139B(1)(b)

Complaint One was that the Practitioner was guilty of unsatisfactory professional conduct because he failed to notify the National Board in writing within seven days that he had been charged on 18 July 2019 with offences punishable by 12 months imprisonment or more.
Complaint One was, at the suggestion of the Tribunal, withdrawn by the Applicant. There is some need to discuss the circumstances leading to the withdrawal of Complaint One as it is relevant to the consideration of costs.
Sections 130(1) and (3)(a)(i) of the National Law requires all registered health practitioners to notify the National Board in writing of any "relevant event" within seven days of becoming aware that a relevant event has occurred in relation to the practitioner. A relevant event includes that the practitioner has been charged with an offence punishable by 12 months imprisonment or more (s 130(3)(a)(i) of the National Law).
Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes: (b) Contravention of this law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, …
There was some confusion at the hearing as to the relevant entity to whom written notice needed to be given, with the suggestion by the Practitioner that a notice to the Australian Health Practitioner Regulation Agency (AHPRA) was sufficient. The Practitioner reported during his criminal trial that following his arrest in 2019, he informed AHPRA of the charges and was told he could not continue to practise until the trial was resolved (Exhibit 1, page 283, Sentencing remarks paragraph 95). He also incorrectly stated (in Exhibit 4) that the Applicant had alleged in Complaint One that he had failed to give notice to AHPRA where in fact what the Applicant asserted was that the Practitioner had failed to give notice to the National Board.

[26]

What happened in this case?

On the material that we had, it was uncontroversial that the Practitioner had been charged on 18 July 2019 and that written notice was required by 25 July 2019. Page 20 of Exhibit 1 indicates a news article about the Practitioner being charged and getting bail was published on 19 July 2019. The Chiropractic Council of New South Wales contacted the Practitioner on 23 July 2019 giving notice of the s 150 hearing scheduled on 30 July 2019 and the s 150 hearing took place on that day. The Chiropractic Council is a different body from both the National Board and APHRA. It is not the National Board as prescribed under Regulation 4.
The Practitioner asserted that he had met with the regulatory authority within the seven day period. We are satisfied that the meeting to which the Practitioner refers was the s 150 hearing conducted by the Chiropractic Council which took place just outside the seven day period. The Practitioner asserted that one of the persons present at the s 150 hearing was also a member of the National Board. It appears that one of the delegates at the s 150 hearing may also have been a board member of the National Board but was not attending the s 150 hearing in that capacity.
The Practitioner accepts that he had not provided any written notice to the National Board, but emphasises the fact that he had been contacted by the Chiropractic Council within the seven day period from being charged and assumed that that was sufficient.
The other matter of relevance was that in opening written submissions the Applicant indicated that whilst the Practitioner's failure to provide written notice of the criminal charges, which were serious in nature, warrants disapproval, the Applicant did not seek any protective order arising from a finding of unsatisfactory professional conduct, but rather submitted that the publication of the finding itself would be sufficient to meet the purposes of individual and general deterrence.
The Practitioner had served the Applicant with a notice to produce all records that were relevant to his assertions about Complaint One. The Applicant had not produced any documents in response to that request. The Practitioner foreshadowed that he wished to make an adjournment application of the whole hearing because no documents had been produced and if any were to be produced then he would need time to look at them.
Given all those circumstances and in particular the possibility that the proceedings would not be able to continue and would need to be adjourned, we suggested to the Applicant that Complaint One be withdrawn. The Applicant sought instructions and then did so.