BACKGROUND TO COMPLAINT ONE
In 1988 the practitioner obtained a Bachelor of Medicine degree from the University of Damascus, Syria. On 23 October 2002 the practitioner was first registered as a medical practitioner. In 2012 the practitioner obtained Fellowship of the Royal Australian College of General Practitioners. From April 2018 the practitioner commenced working at Complete Care Medical Centre in Campbelltown.
On 30 June 2018 Patient A was aged 17 years old when she first consulted the practitioner in his rooms. She saw the practitioner again on 3 July 2018, 4 July 2018, 7 July 2018, and 22 September 2018.
[2]
PARTICULARS OF COMPLAINT ONE
On 30 June 2018 the practitioner inappropriately provided Patient A with his home address.
On 22 September 2018 the practitioner breached professional boundaries with Patient A by hugging and/or attempting to hug her during the consultation
On 22 September 2018 the practitioner breached professional boundaries with Patient A by hugging and/or attempting to hug her again during the consultation.
On 22 September 2018 the practitioner breached professional boundaries with Patient A by placing and moving his hand on the right side of Patient A's back below her bra strap during the consultation.
On 22 September 2018 the practitioner breached professional boundaries with Patient A by kissing Patient A on her face during the consultation.
On 22 September 2018 the practitioner breached professional boundaries with Patient A by rubbing Patient A's knee and moving his hand up her thigh during the consultation.
On 22 September 2018 the practitioner breached professional boundaries with Patient A when she asked the practitioner to stop rubbing her thigh and he inappropriately failed to immediately stop.
On 22 September 2018 the practitioner inappropriately grabbed Patient A's arm and used physical force to get Patient A to use weighing scales.
On 22 September 2018 the practitioner breached professional boundaries with
Patient A by placing his hands on Patient A's shoulders and attempting to kiss Patient A at the end of the consultation.
The practitioner inappropriately sent text messages to Patient A on the following dates and times, without therapeutic purpose and in breach of his obligation to maintain professional boundaries with Patient A:
i. 22 September 2018 at about 1443 hours;
ii. 22 September 2018 at about 1554 hours;
iii. 22 September 2018 at about 1641 hours;
iv. 22 September 2018 at about 1729 hours;
v. 24 September 2018 at about 1430 hours;
vi. 24 September 2018 at about 165430 hours.
During the period from 30 June 2018 to October 2018 the practitioner inappropriately disclosed personal details of Patient A to his wife including details of his consultations with her, Patient A's name, the practitioner's management of Patient A, and the practitioner's opinion of Patient A, contrary to his obligations under s3.4.1 of the Code of Conduct and the Health Privacy Principle 10 of the Health Records and Information Privacy Act 2002.
The practitioner failed to properly secure his mobile phone, which he used to communicate with patients and which contained clinical information, by leaving it at his home in manner readily accessible by third parties, contrary to his obligations under s8.4.2 of the Code of Conduct.
[3]
COMPLAINT TWO
The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has:
i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
ii. engaged in improper or unethical conduct relating to the practice or purported practice of profession.
[4]
PARTICULARS OF COMPLAINT TWO
From 30 June 2018 - 7 July 2018 the practitioner failed to assess Patient A's competency to consent to his ongoing treatment of her independent of her parents.
From 30 June 2018 to 22 September 2018 the practitioner failed to properly
manage and treat Patient A's complaints to him of having bulimia in that:
a. the practitioner had no experience of treating bulimia and failed to seek specialist advice or assistance during the period he was treating Patient A;
b. the practitioner failed to discuss with Patient A the desirability of involving her parents, caregivers or guardians in managing her illness;
c. despite obtaining a history from Patient A consistent with a high risk of medical and psychological harm resulting from bulimia the practitioner failed to refer Patient B to a psychologist and a dietician until her fourth presentation on 7 July 2018.
[5]
COMPLAINT THREE
The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of profession.
[6]
PARTICULARS OF COMPLAINT THREE
In October 2018 the practitioner inappropriately:
a. asked and arranged for his wife to prepare a statement in which his wife would falsely state that she was the author of the text messages in particular 10 of Complaint One; and
b. presented the above statement to the Medical Council of NSW on 16 October 2018 with the intention of misleading the Council delegates.
On 16 October 2018 the practitioner gave false and/or misleading information to the delegates of the Medical Council of New South Wales:
a. That he had not kissed and/or attempted to kiss Patient A during the consultation on 22 September 2018;
b. That he had not come close to Patient A physically during the consultation on 22 September 2018;
c. That he did not hug Patient A during the consultation on 22 September 2018;
d. That he did not send the text messages in particular 10 of Complaint One;
e. That his wife sent the text messages in particular 10 of Complaint One.
By letters dated 7 November 2018 and 13 March 2019 through his previous lawyers the practitioner provided false and/or misleading information to the Health Care Complaints Commission:
a. He stated that he did not ever kiss Patient A;
b. He stated that he did not ever hug Patient A;
c. He stated that he did not ever send text messages to Patient A.
[7]
COMPLAINT THREE FOUR
The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or
ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration
[8]
PARTICULARS OF COMPLAINT THREE FOUR
Complaint One and the particulars therein are repeated and relied on individually and cumulatively.
Complaint One and Complaint Two are repeated and relied on cumulatively.
The particulars of Complaint Three are repeated and relied on individually and cumulatively.
Dated: 22 February 2022
Larisa Michalko
Director of Proceedings
Health Care Complaints Commission
[9]
SCHEDULE TO COMPLAINT OF THE HEALTH CARE COMPLAINTS COMMISSION
Dr. Hazem Chahoud
Reference in Complaint Identity of person
Patient A [Patient A]
[10]
SCHEDULE B
NSW CIVIL AND ADMINISTRATIVE TRIBUNAL No. 2021/00037004 OCCUPATIONAL DIVISION
HEALTH PRACTITIONER LIST IN THE MATTER OF:
Health Care Complaints Commission. Complainant and
Dr Hazem Chahoud Respondent
[11]
COMPLAINT ONE
The practitioner admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that he engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
The practitioner admits the facts alleged under the heading Background to Complaint One.
[12]
Particulars of Complaint One
The practitioner does not admit particular 1.
The practitioner admits that on 22 September 2018 he breached professional boundaries with Patient A by hugging her during the consultation.
The practitioner does not admit particular 3.
The practitioner does not admit particular 4.
The practitioner admits that on 22 September 2018 he breached professional boundaries with Patient A by kissing Patient A on her face during the consultation.
The practitioner does not admit particular 6.
The practitioner does not admit particular 7.
The practitioner does not admit particular 8.
The practitioner does not admit particular 9.
The practitioner admits that the practitioner inappropriately sent text messages to Patient A on the dates and times alleged in particular 10, without therapeutic purpose and in breach of his obligation to maintain professional boundaries with Patient A, except that the message identified in particular 1(e) was sent at 1630 hours.
The practitioner does not admit particular 11.
The practitioner does not admit particular 12.
[13]
COMPLAINT TWO
The practitioner admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that he engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
[14]
Particulars of Complaint Two
The practitioner does not admit particular 1.
The practitioner admits that he failed to properly manage and treat Patient A's complaints to him of having bulimia in that he failed to seek specialist advice on that condition, and was guilty of the unprofessional conduct admitted in relation to complaint 1.
[15]
COMPLAINT THREE
The practitioner admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice of his profession.
[16]
Particulars of Complaint Three
The practitioner admits particular 1.
The practitioner admits particular 2.
The practitioner admits that the letters identified in particular 3 were sent by his former solicitor and contained false information which reflected his evidence described in particular 2, but states that he did not review or approve the contents of the letters before they were sent.
[17]
COMPLAINT THREE FOUR
The practitioner admits that he is guilty of professional misconduct under section 139E of the National Law in that he engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
[18]
Endnotes
Section 38(2) of the Civil and Administrative Tribunal Act 2013; Clause 2 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) (The National Law).
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14].
Section 3A of the National Law.
Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
Section 3(2)(a) of the National Law.
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [637].
HCCC v Do [2014] NSWCA 307 at [35].
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [637].
Lee v HCCC [2012] NSWCA 80 at [20] and [31].
Sudath v HCCC [2012] NSWCA 171 at [75].
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 March 2022
The HCCC set out the areas of dispute between the parties as disclosed by comparison of the Amended Complaint document and the Amended Reply document.
The Standard of proof was addressed. The HCCC submitted:
"The HCCC bears the burden of proof. The Tribunal is not bound by the rules of evidence. [1] Whilst neither the Briginshaw civil standard nor section 140 of the Evidence Act 1995 directly apply to the Tribunal's decision making, the principles remain relevant, and the Tribunal should be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding. [2] "
In Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 the Tribunal said:
"12. The standard of proof we must apply when making findings about these matters is the civil standard - "on the balance of probabilities". It was said by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 that:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
13. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
14. However, the Tribunal is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, Leeming JA with whom Gleeson JA agreed. While we are not bound to adopt the approach set out in Briginshaw or in s 140 of the Evidence Act, that general approach may be justified. When deciding whether the evidence is sufficient to meet the civil standard of proof, we will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding."
In this determination we will make findings on the foundation of the requirements of s 140 of the Evidence Act 1995 (NSW) and the guidelines established by Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Those requirements and guidelines are well established and will serve us well in the determination of this Complaint. We understand that should the Complaint be established to our satisfaction there is the potential for serious consequences to the Respondent's ability to continue to practice medicine in Australia.
The HCCC also set out the principles which it said would guide the Tribunal in the determination of the Complaint. It submitted as follows:
"Part 8 of the National Law outlines the relevant principles for complaints in relation to health practitioners. The relevant principles include:
a. The protection of the health and safety of the public is paramount; [3]
b. The Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community; [4]
c. Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; [5]
d. Deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession; [6]
e. Protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession; [7]
f. The Tribunal's jurisdiction is primarily protective, not punitive; [8]
g. It is unavoidable that protective orders may be incidentally punitive; [9] and
h. The Tribunal is subject to rules of procedural fairness. [10] "
With the exception of paragraph (h) above, those principles become relevant once the Complaint has been established. The principles set out will inform the determination of any protective orders which we will consider imposing, should we be satisfied the Complaint has been established.
The HCCC submission sets out a relevant chronology and summary of the evidence given in the hearing before us. It also sets out portions of the transcript from the s 150 hearing which is relied upon in this hearing. Those parts of the transcript which are re-stated are relied upon to support the finding that Complaint Three. We will refer to that evidence later in these reasons.
Portions of the evidence of Patient A are highlighted in the submission. The HCCC provided a lengthy submission which addressed matters of credit for both Patient A and the Respondent.
The submission of the HCCC then meticulously addressed each of the Complaints numbered One to Four and provided concluding submissions. It finally addressed Stage 2 considerations and provided a basis to support the Protective Orders it was seeking in this hearing.
We will refer further to the detail of the submissions of the HCCC as we consider each of the four Complaints which have been moved on by the HCCC in the hearing before us.
Submission of the Respondent
The Respondent provided oral and written submissions. We will refer in these reasons to the written submissions as counsel for the Respondent told us that his oral submission would be replicated and concluded in writing.
The opening paragraph of the submission is as follows:
"Dr Chahoud accepts that he committed professional misconduct on 22 September 2018. It was serious and potentially career-ending misconduct. The question is whether, in exercising its discretion to make protective orders, the Tribunal should now cancel Dr Chahoud's registration. The Tribunal's protective order "should be limited to that which is reasonably necessary to provide the required level of public protection."
(The cases cited as support for this paragraph were stated as follows: Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 [83], citing Prakash v Health Care Complaints Commission [2006] NSWCA 153 [101].)
In the submission the Respondent addressed matters relating to the imposition of Protective Orders and also the conduct which was complained of by Patient A and then the HCCC in its Complaint document. We will refer to those submissions as we consider the evidence said to support each of the Four Complaints moved on by the HCCC.
Complaint One
We have set out earlier in these reasons a copy of the Complaint and the Reply and we do not repeat the content of those documents verbatim here. The complaint is of unsatisfactory professional conduct under s 139B(1)(a) and/or s 139B(1)(l) of the National Law. The Respondent admits he is guilty of unsatisfactory professional conduct under s 139B(1)(a) only. He does not admit Particulars 1, 3, 4, 6, 8 and 9 to Complaint One. There is a critical difference between "does not admit" and "deny" in a pleading of the nature used in the Reply document filed in this case. The words "does not admit" requires the HCCC to satisfy the Tribunal that the evidence relied upon establishes the Particular set out in the Complaint document.
We also here note the difference between subsections (a) and (l) of s 139B(1). In the Reply document the Respondent does not admit he engaged in "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession." Those words are taken from s 139B(1)(l).
As can be understood, the determination of the disputed Particulars and portions of the Complaints rests, at least in part, on our determination of matters of credit, and the reliability of the parties' evidence. We have addressed that matter earlier in these reasons and rely upon our findings and determination there set out.
In the submission of the HCCC it sets out the following in relation to the manner in which the Tribunal will determine whether the sections, set out above, have been satisfied to establish either unsatisfactory professional conduct and/or professional misconduct. The submission is:
"Complaints 1 and 2
88. Complaints 1 and 2 allege that the Respondent is guilty of unsatisfactory professional conduct pursuant to both s 139B(1)(a) and (l). The Respondent's amended reply is silent in relation to s 139B(1)(l). He admits so far as his admissions that he is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a).
89. Complaint 3 alleges that the Respondent is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(l).
90. In Health Care Complaints Commission v Saab [2020] NSWCATOD 145, the Tribunal found at Paragraph 650 as follows:
"In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 the Tribunal referenced the evaluation, assessment or characterisation required of the conduct alleged in order to be established as unsatisfactory professional conduct. It stated at [25]-[26] as follows:
Determining whether the "knowledge, skill or judgment" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such.
In disciplinary proceedings in relation to s 139B(1)(l) of the National Law, the determination of the question as to whether "any other improper or unethical conduct relating to the practice … of the practitioner's profession" has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct."
Complaint Four:
This complaint is made pursuant to s 139E of the National Law. It alleges the Respondent is guilty of professional misconduct. To establish the complaint it is necessary for us to find either that the Respondent is guilty of either:
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The Respondent admits this Complaint Four and in the written submission stated: "Dr Chahoud accepts that his conduct as a whole warrants a finding of professional misconduct. No objection is taken to AS [170] - [178]."
To support this Complaint the HCCC repeats the Particulars relied upon for each of Complaints One, Two and Three. The Particulars of Complaints One and Two are relied upon cumulatively and the Particulars to Complaint Three are relied upon individually and cumulatively. The point made by the HCCC by the framing of Particular 3 to Complaint Four is that the HCCC contends each of the Particulars to Complaint Three evidence such serious misconduct that each would, by itself alone, warrant a finding against the Respondent pursuant to s 139E of the National Law.
The Respondent admits he is guilty of professional misconduct under s 139E of the National Law. He, however, restricts that admission to the second limb of s 139E, namely; "more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration."
The HCCC pursues a finding that the Respondent is guilty of professional misconduct under both subparagraph (a) and (b) as defined by s 139E of the National Law.
The HCCC provided an extensive submission addressing this Complaint Four. Part of that submission we set out below:
174 In determining whether a finding can be made of professional misconduct, the Tribunal must determine whether as outlined in HCCC v Perroux [2011] NSWDC 99 at [18] "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration".
175 The Respondent's conduct was of such a nature that the unsatisfactory professional conduct displayed by him is of a sufficient nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law.
176 In Health Care Complaints Commission v Selim [2021] NSWCATOD 27 the Tribunal noted:
"It is trite to say that the public requires and expects from a medical practitioner transparently honest conduct in every aspect of their dealing with the public, a patient and with other sections of healthcare organisations/structures. Every aspect of the medical practitioner's actions, undertaken on behalf of a patient, must be shrouded in transparent honesty. This is so fundamental to the trust the public needs to have in a medical practitioner, that a failure in this aspect of the patient/practitioner relationship will, in our view, generally satisfy the requirement of section 139E(a) of the National Law. There could be no argument, which we can envisage, to contradict the proposition that the public need to be protected against exposure to medical practitioners who lack integrity."
177 The following passage was relied upon in the matter of HCCC v Richard Allen (Matter No 40016 of 2009, 2 July 2010). At paragraph 64 the Tribunal in that matter observed:
"Dr Allen had an obligation to ensure that information provided to the Board was accurate. This Tribunal expects that any medical practitioner appearing before it or the Board or when called upon to make a statement that is to be relied upon before the Board will be honest and frank in his/her dealings with the Board. Any limits or uncertainty in their knowledge should be made clear."
178 Accordingly, on the above facts and in accordance with the evidence, the Tribunal should find that the Respondent is guilty of professional misconduct pursuant to s 139E of the National Law.
The submission of the HCCC on Stage 2.
Appropriate Protective Orders
183 The HCCC seeks that the Respondent's registration as a Medical Practitioner be cancelled for a period of 3 years.
184 The HCCC seeks the following protective orders:
1. Pursuant to s149C(1)(b) of the National Law the practitioner's registration as a medical practitioner is cancelled.
2. Pursuant to s149C(7) the practitioner may not apply for a review of the cancellation order for a period of three years from the date of the decision.
3. The Commission is awarded its costs as agreed or assessed.
4. A non-publication order is made over Patient A.
185 The HCCC submits that the Respondent's conduct in the present case is clearly serious and capable of attracting the proposed protective orders.
186 The Respondent's denials of the more serious aspects of his alleged conduct towards Patient A for Complaint 1, also evidence his ongoing lack of insight and failure to acknowledge the gravity of his conduct and impact that his conduct had on Patient A.
187 The Respondent has not provided character references or evidence of his recent job offer. He did not make Dr Ooi available for cross examination, despite his pending application to the Council to have Dr Ooi supervise him, which is yet to be approved. His evidence about his proposal to work with Dr Ooi was vague and non-specific.
188 The Respondent has also last year been readmitted to the Impaired Registrants Panel (IRP) by the Council and his involvement is ongoing, including seeing Dr Atherton, psychiatrist on a regular basis.
189 The Respondent did not provide any evidence in relation to his mental health, including to address the significant insight issues raised in these proceedings. His evidence was that other than seeing Dr Atherton through the IRP, he has not received any recent treatment for mental health. The Tribunal should find that the Respondent has not taken adequate steps to address his significant insight issues in these proceedings and his insight continues to pose a risk to the health and safety of the public.
190 The Tribunal should find on the evidence that there are no protective orders open on the evidence that will protect the health and safety of the public.
191 In Health Care Complaints Commission v Buys (No 3) [2020] NSWCATOD 102 at [17]:
"The respondent also emphasised that he had been punished by the publicity which had surrounded the finding of professional misconduct which had been made against him, the impact that this had had on his family and his practice, and the damage sustained to his reputation in the local area where he had been practising. Whilst these are unfortunate consequences for the respondent and his family, it must be emphasised that his circumstances are caused solely by the fact that he engaged in a course of misconduct of a serious kind, justifying a finding that it constituted professional misconduct. To this extent his authorship of his own misfortune is irrelevant in determining what protective orders should be made."
192 In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA with Basten JA agreeing found at [35] as follows:
"The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
193 In Lee v Health Care Complaints Commission [2012] NSWCA 80 ("Lee") Barrett JA with McFarlan JA and Tobias AJA agreeing found at [34] as follows:
"In cases of the present kind, therefore, this Court should proceed on the basis that:
(a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern;
(b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct";
(c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers;
(d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle;
(e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection; and
(f) the Medical Tribunal, as a specialist tribunal, brings special skill and experience to the task of formulating protective orders."
194 In Lee Barrett JA at [20] to [21] considered the exercise of powers by Tribunals to make protective orders and concluded:
"Essential to a proper assessment of a Tribunal's discretionary judgement in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters are explained by Basten JA in Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102: (2009) 74 NSWLR 523 at [83]. His Honour made several important points:
1 The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.
2 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.
3 The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
195 In Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 the Tribunal concluded at [42]-[46] as follows:
"The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in health professions.
In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection":
(a) any need to protect the public against further misconduct by the practitioner;
(b) the need to protect the public through general deterrence (of other practitioners);
(c) the need to protect the public by reinforcing high professional standard and denouncing transgressions;
(d) the maintenance of public confidence in the profession;
(e) the desirability of making available to the public any special skills possessed by the practitioner.
This statement was approved in Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [24] applying the National Law.
In HCCC v Do [2014] NSWCA 307 Meagher JA, with whom the other members of the New South Wales Court of Appeal agreed, reflected the first four of those factors when he stated:
"The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That object is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice." [35]
In HCCC v Do, the Court of Appeal held that the Tribunal had fallen into legal error by focusing only upon the risk of recurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct, nor the full implications of the findings that the practitioner's skill and judgement had fallen significantly below the standard reasonably expected: [39]. In so doing the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by s3A and 4 of the National Law: [40]."
196 In Prakash v HCCC [2006] NSWCA 153 Basten JA at [91]:
"The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of practitioners. There is also 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. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted."
197 The HCCC submits that the Tribunal should be satisfied that the proposed orders are necessary to protect the public and there is a need for general deterrence in this matter.
198 In Chen v Health Care Complaints Commission [2017] NSWCA 186 Payne JA at [88] observed:
"The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order."
199 In Health Care Complaints Commission v Luque [2019] NSWCATOD 129
The setting of a non-review period is not to punish the practitioner but to protect the public. NSW Court of Appeal jurisprudence has indicated that the fixing of a period of non-review has a 'twofold operation' in that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time: Chen v HCCC [2017] NSWCA 186; HCCC v Do [2014] NSWCA 307."
200 The duration of the conduct, the period in which the Respondent has lacked and continues to lack insight, the seriousness of the conduct, are all factors which support a three year non-review period. Dr Chahoud's propensity to attribute his own failures to others require both specific and general deterrence. The Code of Conduct which is in evidence at Tab 39 states at 8.10 that Dr Chahoud had an obligation to co-operate with investigations:
Doctors have responsibilities and rights relating to any legitimate investigation of their practice or that of a colleague. In meeting these responsibilities, it is advisable to seek legal advice or advice from your professional indemnity insurer. Good medical practice involves:
8.10.1 Cooperating with any legitimate inquiry into the treatment of a patient and with any complaints procedure that applies to your work.
8.10.2 Disclosing, to anyone entitled to ask for it, information relevant to an investigation into your own or a colleague's conduct, performance or health.
201 The Respondent has caused harm to the reputation of the medical profession and confidence in general practitioners to appropriately manage vulnerable patients. "A health professional who cannot be trusted to tell the truth presents a risk to the public because, without candid admissions by a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented." (HCCC v Picones [2018] NSWCATOD 56 at [104]-[105]).
Costs
The HCCC seeks a costs order in its favour. In support of that order it provides the following submission:
Costs
202 The HCCC submits that the Respondent should be ordered to pay the HCCC's costs.
203 An order for costs is discretionary, however, it is commonly held that costs will follow the cause.
204 In HCCC v Philipiah [2013] NSWCA 342 Meagher JA, Emmett JA and Beech-Jones J held at [44] and [46] in relation to costs orders and the consideration of a Respondent's individual financial circumstances:
"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.
The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside."
205 Accordingly, the HCCC submits that it would be appropriate for a costs order to be made in these proceedings as sought by the HCCC.
The Respondent made the following submission on costs:
"Costs
60. Dr Chahoud has experienced considerable financial hardship as a result of his misconduct and the consequential restrictions on his ability to practice. However, as noted at AS [204], it is not an appropriate basis for the exercise of the discretion to award costs that an order may cause hardship to the party against whom the order is made.
61. In the decision cited at AS [204] (Health Care Complaints Commission v Philipiah [2013] NSWCA 342.), the Court of Appeal also found:
[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing …
[45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs …
62. In this case, the complaints of unsatisfactory professional conduct and professional conduct were admitted. Whether the Tribunal nonetheless considers it appropriate to apply the general rule that costs follow the event will depend on the extent to which the Tribunal upholds the disputed particulars. It is submitted that Dr Chahoud's admission to the essential elements of each complaint justifies a departure from the general rule."
The decision, above set out, quotes from the decision of Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 which was a decision of the Occupational Division of NCAT and concerned an action brought against a medical practitioner. The Tribunal for that decision included Cole DCJ, the Deputy President.
In relation to matters of "Factual Background" the Respondent provided a general address on those matters and then addressed specific Particulars supporting the Four Complaints. The matters addressed under "Factual Background" are as follows:
"Factual background
6. No issue is taken with the principles set out in the applicant's submissions (AS) at [3] - [4]. The factual summary from AS [5] - [51] is also generally accepted. However, the following factual contentions ought not be upheld by the Tribunal.
7. AS [21] relates to the formal admission made by Dr Chahoud during the course of the proceedings, that:
"From at least 2001, Dr Chahoud was aware of the need to exercise caution when treating young female children alone, as a result of a complaint made about his conduct while he was employed at Launceston General Hospital."
8. The HCCC's summary at AS [20] is not supported by the evidence, as tabs 38 and 38A of Exhibit A1 were not admitted. The relevant evidence is contained in Exhibit R6: the allegation "that a medical practitioner sexually assaulted a child patient at the Launceston General Hospital in 2001" was "dismissed" by the Medical Council of Tasmania "based on a significant body of material gathered in the investigation."
9. AS [47] recites Patient A's evidence about Dr Chahoud creating a video recording on "my third visit" of four visits. In fact, there were five visits,6 so Patient A could be referring to 4 July 2018 or 7 July 2018. Dr Chahoud's evidence was that he did not ever record a video or take a photograph of Patient A.7
10. Complaint 1 contains no particulars relating to the third consultation, and whether Dr Chahoud used his phone to communicate with patients or stored clinical information on it was the subject of withdrawn particular 12. Whether any video was recorded on Dr Chahoud's phone was not addressed by the forensic evidence which the Medical Council expected the HCCC to obtain,8 and which the Tribunal did receive at Tabs 11 and 12 of Exhibit A1. It is unnecessary and inappropriate for the Tribunal to make findings about AS [47] in these circumstances."
We note that in relation to paragraph 8 of the Respondent's submission (above) we did not have regard to the content of Tabs 38 and 38A of Exhibit A1 as those documents were not relied upon by the HCCC after the parties agreed to a statement which would satisfy the Respondent's objection to that evidence.
We note in relation to paragraphs 9 and 10 of the Respondent's submission there is no "Particular" to any of the Four Complaints which we are considering, which sets out details of alleged videoing of Patient A or photography of Patient A and it is therefore not necessary for us to make a specific finding in relation to same. Such allegation made by Patient A may be relevant to general findings of credit should we feel it is/was necessary to address same.
The HCCC referred to the decision of the Tribunal in Health Care Complaints Commission v Selim [2021] NSWCATOD 27. In relation to that decision we note a search of NCATOD published decisions shows publication is restricted. We would however adopt part of the words said to have fallen from the Tribunal in that determination namely:
"It is trite to say that the public requires and expects from a medical practitioner transparently honest conduct in every aspect of their dealing with the public, a patient and with other sections of healthcare organisations/structures. Every aspect of the medical practitioner's actions, undertaken on behalf of a patient, must be shrouded in transparent honesty. This is so fundamental to the trust the public needs to have in a medical practitioner, that a failure in this aspect of the patient/practitioner relationship will, in our view, generally satisfy the requirement of section 139E(a) of the National Law. There could be no argument, which we can envisage, to contradict the proposition that the public need to be protected against exposure to medical practitioners who lack integrity."
The evidence we have set out in these reasons and the findings we have made satisfy us that the Respondent is guilty of professional misconduct as defined by both s 139E(a) and (b) of the National Law. The findings made against the Respondent by us, demonstrate seriously unsatisfactory professional conduct on the part of the Respondent. The seriousness of that conduct is such that we conclude it justifies the suspension or cancellation of the practitioner's registration. It is not appropriate to rank the seriousness of his conduct in each of the Complaints made, as established by our findings, however, we find the conduct of breaching professional boundaries through actions which have no legitimate medical purpose are amongst the most serious of examples of professional misconduct which is likely to be complained of by a patient. Further, and of no less serious nature, we find fabricating evidence to place before the Medical Council in a s 150 hearing and then continuing to lie about a practitioner's actions and role in alleged conduct, complained of in that hearing, is clear evidence of professional misconduct.
Having made the findings set out above we now turn to consider the imposition of Protective Orders.
We conclude that in this matter a costs order is warranted. We accept the submission of the HCCC. We conclude there is nothing in the conduct of this case which would warrant any departure from an order that the Respondent pay all of the costs of the HCCC. We will accordingly make a cost order.