Health Care Complaints Commission v Elshaimy

The issues to be determined

1. The Complaint consists of four individual complaints. Mr Elshaimy admits three: 1. Complaint 1: being convicted of the subject offences. 2. Complaint 2: failing as required by s 130(1) of the National Law to notify the Dental Board within seven days of being charged on 21 October 2013 with the subject offences and the offence of "robbery armed with an offensive weapon", each punishable with a term of imprisonment of 12 months or more. 3. Complaint 3: failing as required by s 130(1) of the National Law to notify the Dental Board within seven days of being convicted on 11 March 2016 of the subject offences.
2. Mr Elshaimy admits the particulars of Complaint 4 - the background to, and the facts of the subject offences together with the particulars of Complaints 1, 2 and 3 - but not the gravamen of that complaint, namely, the contention that he is not a suitable person to hold registration as an oral health therapist.
3. The main issues to be decided are: 1. Whether Mr Elshaimy is a suitable person to hold registration as an oral health therapist. 2. Whether protective orders should be made and, if so, what orders should be made. 3. Whether Mr Elshaimy should pay some or all of the Commission's costs.

Is Mr Elshaimy not a suitable person to hold registration as an oral health therapist?

1. Before addressing this question it is first necessary to set out the background to the subject offences and Mr Elshaimy's failure to disclose the offences to the Dental Board.

Background to the conviction

1. The following background facts are taken from the decision of the Court of Criminal Appeal in Elshaimy v R [2018] NSWCCA 169 and the particulars of Complaint 4.
2. Following a joint trial with his younger brother and co-offender, Islam Elshaimy, Mr Elshaimy was found guilty by a jury of the offences of aggravated (in company) break and enter and commit serious indictable offence (larceny) (contrary to s 112(2) of the Crimes Act 1900 (NSW)). Mr Elshaimy was acquitted of the offence of conspiracy to commit an armed robbery (contrary to the common law and s 97(1) of the Crimes Act).
3. The subject offences involved the robbery of a hotel in Kings Cross on 14 July 2013 where Mr Islam Elshaimy was then working as a security guard. He introduced Mr Elshaimy to Mr Feng Ye, a manager of the hotel. In early July 2013, Mr Elshaimy, Mr Islam Elshaimy, Mr Ye and Mr Elshaimy's long-time friend, Ammar Chahal, met to devise a plan to rob the hotel.
4. The robbery was planned to coincide with a time when there were no patrons at the hotel and the only staff on duty were Mr Ye and a cleaner. Messrs Elshaimy and Chahal smashed through the door of the hotel with a claw hammer. To make it appear that Mr Ye was not involved in the robbery, Messrs Elshaimy and Chahal tied up Mr Ye after he opened the safe. They took close to $150,000 in takings and left in a getaway car driven by Mr Islam Elshaimy.
5. Mr Elshaimy was charged with offences relating to the robbery on 21 October 2013. On 27 May 2016, Judge Woods QC imposed upon Mr Elshaimy a head sentence of imprisonment of five years and six months, commencing on 8 March 2016 and expiring on 7 September 2021, with a non-parole period of three years and nine months which will expire on 7 December 2019. The Court of Criminal Appeal dismissed an appeal brought by Mr Elshaimy against the severity of that sentence: Elshaimy v R [2018] NSWCCA 169.

Failure to notify the Dental Board of being charged with and convicted of the subject offences

1. Mr Elshaimy admitted in these proceedings that not only did he fail to notify the Dental Board that he had been charged and convicted of the subject offences but, on renewing his registration in 2013, 2014 and 2015, he had declared that he had not been charged with any criminal offences.
2. In these proceedings Mr Elshaimy said that he acknowledged that his failure to disclose his involvement in the offences to APHRA and the Dental Board was dishonest conduct. He conceded that as a consequence of his failure to disclose, the Board was deprived of the opportunity to consider whether he should have permitted to practise after he had been charged. However, he denied making a deliberate or conscious decision to act dishonestly, claiming that he was in "self-denial". When questioned about the reason for his lack of candour, he stated that at that time he probably lacked the "mental and moral health" to admit to the offences.

Employment history

1. After graduating with a degree in oral hygiene from the University of Sydney in 2010 and obtaining registration as an oral health therapist, Mr Elshaimy commenced part-time employment in dental practices in Double Bay and Liverpool. Shortly after his arrest in October 2013, Mr Elshaimy was sacked from the Double Bay practice. He continued to practise in Liverpool practice until shortly before the commencement of his criminal trial in Februray 2016. He became a co-owner of the Liverpool practice in January 2014. He sold his interest in that practice in 2016 after being convicted.
2. In these proceedings Mr Elshaimy said that he loved his work as an oral health therapist; it was what he had "always wanted to do" and, if permitted, he intended to return to practice after his release. He said that before his conviction he had aspired to become a dental practitioner.

Family relationships

1. Evidence given in the criminal trial reveals that Mr Elshaimy comes from a close and loving family.
2. He is married with two young children.

Period of incarceration

1. According to Mr Elshaimy, prison authorities informed him that it is likely that he will be eligible for home detention six months before the expiry of the non-parole period of his sentence on 7 December 2019
2. While in custody Mr Elshaimy has applied himself assiduously to his studies. He is currently undertaking a building and construction course at TAFE. Since February 2018, he has been attending a TAFE campus, five days per week under a Work Release / Education and Vocational Training Program.

Insight into the offending conduct

1. In the District Court trial, when asked whether he had played any part in the planning of, or execution of the robbery of the hotel on 14 July 2013, Mr Elshaimy replied "Absolutely not".
2. In these proceedings, in cross examination, Mr Elshaimy denied giving false evidence to the District Court. He stated he "fully accepted" the findings made by the jury. In examination-in-chief, Mr Elshaimy stated that while he took full responsibility for his conduct at the time he was "young, dumb and caught up in a lot of stupid things". He offered as a possible explanation: a misguided attempt to reclaim a lost youth after spending long hours studying and working to support himself through school and university. He said he had no intention of making the same "stupid mistakes" and that he was extremely regretful for the pain and disappointment he had caused his family. He claimed that he was not the same person he had been when he entered custody and has reflected on his "many mistakes" and their impact on others. In re-examination, he stated that, while he did not physically participate in the robbery, he was involved in its planning.
3. In his remarks on sentencing, Woods J stated at p 12 (R v Islam Elshaimy (District Court (NSW), 27 May 2016, unrep) that he was satisfied beyond reasonable doubt that Messrs Elshaimy, Islam Elshaimy, and Chahal were the three people involved in the robbery: Probably it was Islam who was driving the car, but it does not really matter, the three of them were in it - they were there, took part in it and I do not see any point in distinguishing finding relations of culpability; they were all heavily involved.

Prospects of rehabilitation

1. In his remarks on sentencing, Woods J referred to the evidence tendered on behalf of Mr Elshaimy which showed that Mr Elshaimy had been a gifted pupil at school, winning a prize for religious studies; he had ambitions to be a dentist; and, that his family and friends had been "shocked and devastated" by his involvement in the robbery. Referring to the numerous character references tendered on his behalf, His Honour made special mention of Mr Elshaimy's former school principal who provided a reference stating that the offending conduct is out of character, and in his opinion, Mr Elshaimy would never reoffend. Woods J remarked that it was "a tragedy" that Mr Elshaimy and his brother Islam, who was about to graduate as a teacher, "should have involved themselves in this madness as they did".
2. As the Court of Criminal Appeal observed, it is implicit from the positive findings made by Woods J in his sentencing remarks that, in his opinion, Mr Elshaimy's prospects of rehabilitation "were very sound (even despite the gravity of the offence he had committed, and his refusal to admit his guilt thereof)": see Elshaimy v R [2018] NSWCCA 169 at [56].

Statutory framework

1. The expression "not a suitable person to hold registration" is not defined by the National Law. Section 55 of the National Law provides some guidance as to its meaning. Headed "Unsuitability to hold general registration", s 55 of the National Law states that a National Board may decide that an individual is not a suitable person to hold general registration, if, among other things: … (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (h) in the Board's opinion, the individual is for any other reason - (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely.
2. The meaning of the expression "not a suitable person to hold registration" in s 144(e) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 (Brush) at [72]- [73]: [I]n considering whether [the practitioner] "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills.
3. That interpretation was cited with approval by the Tribunal (A/J Boland presiding) in Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 at [116]-[118] and by the Court of Criminal Appeal (Hoeben CJ, Johnson J and Latham J) in Jung v R [2017] NSWCCA 24 at [56].
4. Section 144 of the National Law states: The following complaints may be made about a registered health practitioner: (a) A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) A complaint the practitioner is not competent to practise the practitioner's profession. (d) A complaint the practitioner has an impairment. (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. (Emphasis added.)
5. We accept, as was argued on behalf of Mr Elshaimy, that having regard to the text and context, the expression "is otherwise not a suitable person" in s 114(e) should be interpreted as being a reference to the matters listed in the preceding four paragraphs. Adopting that approach, it falls to the Commission to establish that Mr Elshaimy is not a suitable person to hold registration in the profession of oral health therapy on grounds other than those listed in paragraphs (a) to (d) of s 144 of the National Law. The fact of his conviction is not relevant to the assessment of whether Mr Elshaimy "is otherwise not a suitable person". Nonetheless, the offending conduct which gave rise to that conduct remains relevant to that assessment.

Submissions by the parties

1. The Commission contends that Mr Elshaimy is not a suitable person to hold registration for the following reasons: First, the offending conduct, while unrelated to Mr Elshaimy's practice as a health practitioner, is nonetheless relevant to an assessment of his character. The conduct was of a serious nature and pre-meditated. Second, the only apparent explanation for Mr Elshaimy's participation in the crime was, as found by Woods J, greed. Third, the Commission asserts that to this day Mr Elshaimy refuses to fully accept culpability, pointing to Mr Elshaimy's denial in the criminal trial of any involvement in either the planning or execution of the robbery and his insistence in these proceedings that he gave truthful evidence in the District Court proceedings.
2. Mr Elshaimy, on the other hand, contends that the Commission has failed to establish that he is not a suitable person to hold registration. First, while accepting that the offending conduct was serious in nature, it was, nonetheless, a one-off incident after having no previous involvement of any kind with the law. Second, he asserts that his immaturity and relative youth at the time of the offence provides some explanation for this uncharacteristic behaviour. Third, the favourable assessment made by Woods J of his prospects of rehabilitation, which he claims to have realised. Finally, he rejects the assertion made by the Commission that he refuses to accept moral culpability for his conduct.

Consideration

1. The Commission bears the burden of establishing on the balance of probabilities that Mr Elshaimy is currently not a suitable person to hold registration as an oral health therapist. In support of that contention the Commission relies on the particulars of each complaint.
2. Prior to the offending conduct Mr Elshaimy had no involvement with the law. After graduating from University of Sydney he quickly secured employment and went on to become a co-owner of an apparently successful suburban dental practice. As the character evidence tendered in the criminal proceedings reveals, many people of good standing considered this act of "madness", as aptly described by Woods J, to be entirely out of character. That assessment is consistent with the references tendered on behalf of Mr Elshaimy in these proceedings. Mr Elshaimy's aunt and uncle each attested to the fact that Mr Elshaimy comes from a loving and stable family and that the offending conduct was out of character with Mr Elshaimy's upbringing and his application to his studies and employment. His uncle wrote that he had visited Mr Elshaimy in custody and found him to be "penitent and humbled by the poor choices he had made". His aunt echoed that opinion writing that Mr Elshaimy is "most remorseful" for the "immense worry, concern and shame" he has inflicted on his immediate family.
3. While unrelated to his profession, the offending conduct was, nonetheless, serious in nature and evidenced a disregard for community standards and the law. The inescapable conclusion is that at the time the offences were committed Mr Elshaimy was not a person of good character. Given the nature of the obligations imposed and the privileges conferred on health practitioners, it almost goes without saying that a person who is not of good character is not a suitable person to hold registration.
4. While the Commission bears the onus of establishing that Mr Elshaimy is not a suitable person to practise, given his proven involvement in conduct which evidences bad character, the evidentiary onus, in practical terms, shifts to Mr Elshaimy who must be able to point to some positive evidence of reformation. Given the gravity of his misconduct, that onus is heavy. As Walsh JA commented in obiter in Ex parte Tziniolois; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at [461]: Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited some serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show some years later he has established himself as a different man.
5. The following in our view assists Mr Elshaimy's claim of having reformed. First, the uncontradicted evidence that the subject robbery in 2014 was the first and only time he had been involved in criminal activity. This is not a case of a person with a long history of criminal conduct. Second, his relative youth at the time. While not excusing the conduct, youth and immaturity go some way to explaining why the lure of easy money caused Mr Elshaimy to deviate from the values instilled by his family and which he had apparently adhered to up until that time. Third, the objective evidence supports Woods J's positive prognosis of Mr Elshaimy's prospects of rehabilitation. Mr Elshaimy is apparently considered by prison authorities to be a model prisoner as evidenced by the fact that he has been permitted to leave gaol unescorted to attend TAFE and has been earmarked for release on home detention before the expiration of his non-parole period. This, together with the fact that he has elected to use his time in custody productively to prepare himself for his return to the community, is a positive indicator of reform. Further, he is assisted by his self-report, supported by the observations of his aunt and uncle, that he deeply regrets his actions and the attendant shame and grief it has wreaked on his family.
6. While these are positive indicators of reform, in our view there is insufficient material to rebut the presumption that Mr Elshaimy is not a person of good character. In reaching that conclusion we note that for the past three years Mr Elshaimy has been living in a controlled and artificial custodial environment. The real issue is whether Mr Elshaimy will be able to demonstrate that he is a person of good character once in the community. In addition, it is of no small significance that Mr Elshaimy failed to disclose the facts of being charged and convicted to the Dental Board. It is a hallmark of a person's suitability to practise that they can be trusted to deal candidly with the regulatory authorities charged with the responsibility of ensuring that only those persons who meet the high standards demanded by the National Law practise as health practitioners. Health practitioners must be demonstrably ethical and trustworthy. He has not yet proven that he can be trusted and act ethically outside of a controlled, highly supervised environment. While we do not doubt that Mr Elshaimy has the potential to rehabilitate himself and has, indeed, made significance progress towards that goal, the acid test will be his behaviour when he is released on parole and thereafter.
7. We are satisfied that currently Mr Elshaimy is not a suitable person to practise.

Whether protective orders should be made and, if so, what orders should be made ?

1. The Commission urges the Tribunal to make an order to cancel Mr Elshaimy's registration. In addition, the Commission urges the Tribunal to disqualify Mr Elshaimy from seeking review of any cancellation order made for a period of between three and five years. The Commission submits that the "false evidence" given by Mr Elshaimy in the District Court favours the making of a longer non-review period.
2. We understand that Mr Elshaimy accepts that a cancellation order is appropriate if a finding is made that that he is not a suitable person to practise. He contends, however, that the length of the disqualification period proposed by the Commission is excessive and unnecessarily punitive. In support he points to a number of decisions made by NCAT and its predecessor tribunals where the Tribunal imposed a lesser disqualification on the subject health practitioner but Mr Elshaimy asserts the conduct the subject of the complaint was he contends of a more serious nature. These decisions include: 1. Health Care Complaints Commission v Mathad (No 3) [2018] NSWCATOD 100: The practitioner was convicted of one count of stalk or intimidate under s 13(1) of the Crimes (Personal and Domestic Violence) Act 2007 and one count of common assault under s 61 of the Crimes Act. The Tribunal found that the practitioner was guilty of professional misconduct and was not suitable to hold registration. The Tribunal cancelled the practitioner's registration and disqualified him for seeking review of the cancellation order for two years. 2. Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116: The Tribunal found that the practitioner had carried out dental treatment on 69 patients in aged care facilities that was invasive, irreversible and, in most cases, unnecessary. The majority of patients were unable to give consent to that treatment and the practitioner had not sought to obtain consent from any substitute decision maker. The practitioner was convicted of five counts of assault and three further counts of aggravated assault. Describing the conduct the subject of the complaint at [138] as the "most serious kind […] require[ing] strong denunciation", the Tribunal found the practitioner guilty of professional misconduct and not being a suitable person to hold registration. The Tribunal cancelled the practitioner's registration and disqualified him from seeking review of the cancellation order for two years.
3. In Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA (with whom Macfarlan JA and Tobias AJA agreed) considered the question of whether, in making disciplinary orders under the now repealed Medical Practice Act 1992 (NSW), there was any utility in undertaking a survey of previous orders imposed by the then Medical Tribunal: at [22]-[33]. After examining the authorities, Barrett JA summarised the applicable principles at [33] : (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.

Consideration

1. While cancellation is but one of the suite of orders available to be made in the exercise of the power to make protective orders under Part 8 of the National Law, given our finding that Mr Elshaimy is not a suitable person to hold registration, we consider it the appropriate order in the circumstances of this case.
2. While the National Law directs that, in exercising the power to make protective orders, the health and safety of the public is the paramount consideration, the jurisdiction exercised is nonetheless protective not punitive. No order should be made which has more serious consequences for the practitioner than is reasonably necessary for the execution of the protective purpose: NSW Bar Association v Meakes [2006] NSWCA 340 at [114].
3. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA at [22] commented on the effect of making an order under s 149C(7) which precludes a practitioner the subject of a cancelation order from seeking re-registration for a period of time: The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make.
4. This is not the occasion to decide whether a range or pattern, which reveal some unifying principle which might assist us in the task of deciding whether an order imposing a disqualification period should be made, and, if so, the length of that period, is discernible from the protective orders made by NCAT and its predecessor tribunals. Nonetheless, we accept the proposition advanced by Mr Elshaimy that the disqualification period imposed by the respective Tribunals in Mathad and Istephan are for a significantly lesser period than the three to five year disqualification period that the Commission urges us to make in this case. Notably the conduct found proven in Istephan, appears to be of a very egregious nature. It is impossible, however, to make a proper comparison of two egregious courses of conduct of such different kinds. Moreover, we are not in a position to make an appropriate comparison of the relevant subjective features of the Istephan case and this case. Finally, we note that different Tribunals may exercise their discretions differently (within reasonable bounds). It would be inappropriate, in our view, to regard the Istephan case should not, as setting a benchmark for all subsequent cases although it may, of course, provide some assistance
5. The practical effect of being subject to a custodial sentence means that Mr Elshaimy is unable to resume practice until at least the commencement of the non-parole period in December 2019. We think it is appropriate to extend the period Mr Elshaimy is precluded from seeking registration for a further 19 months from that date. This will coincide with the end of the head sentence imposed by the District Court. By that time, Mr Elshaimy will have been in the community for just under two years and will have had the opportunity to demonstrate that the optimistic assessment made by Woods J of his prospects of rehabilitation was not misplaced.

Should an order for costs be made?

1. The Commission seeks an order that Mr Elshaimy pay its costs in these proceedings. Mr Elshaimy formally opposed that application.
2. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40].
3. In this case there is no suggestion of any disentitling conduct on the part of the Commission or any other factor which might justify a departure from the "usual rule". We have decided to exercise the power to order Mr Elshaimy to pay the Commission's costs, as agreed or assessed.

Orders

1. We make the following orders: 1. Mr Elshaimy's registration as an oral health therapist is cancelled. 2. Mr Elshaimy is precluded from applying for a re-instatement order under s 163A of the Health Practitioner Regulation National Law (NSW) until 7 September 2021. 3. Mr Elshaimy must pay the Commission's costs, as agreed or assessed.

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: 25 January 2019