Health Care Complaints Commission v Fouad [2025] NSWCATOD 56

(a) Exhibit A1. Four volumes of documents (2046 pages).

(b) Exhibit A2. Evidentiary Certificate authored by the Dental Council of NSW.

(c) Exhibit A3. Evidentiary Certificate authored by AHPRA.

(d) Exhibit A4. Copy court attendance notice issued to the Respondent and dated 30 January 2024 together with Facts Sheet relating to the Respondent.

(e) Exhibit A5. A USB stick containing footage of the Respondent and alleged offending.

1. The HCCC also provided the Tribunal with an outline of submission document (Marked for identification as MFI1); A Chronology of relevant events created by the HCCC (Marked for identification as MFI2) and a document titled "submission in reply" which was marked for identification as MFI3.
2. The Respondent tendered the following documents in evidence before the Tribunal.

(a) Exhibit R1. Reply to the Application of the HCCC.

(b) Exhibit R2. Statement of the Respondent dated 28 October 2024.

(c) Exhibit R3. An academic transcript for the Respondent from the University of NSW.

(d) Exhibit R4. A University of Sydney academic transcript.

(e) Exhibit R5. A copy of exhibit R2 signed by the Respondent on the day of the hearing.

1. The Respondent also provided a written submission which was marked as MFI 4.

1. In the Application, the HCCC sought the following orders:

"The Applicant seeks the following orders:

1. A direction that the name and address of the witnesses listed in the Schedule to the attached Complaint not be disclosed under clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) ('National Law') and/or an order prohibiting the disclosure of the name/s of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013.

In the event the subject-matter of the complaint is proved or admitted, the Applicant seeks:

2. Cancellation of the Respondent's registration, pursuant to s149C(1)(b) of the National Law or s149C(1)(c) of the National Law, with a non-review period of 5 years.

3. A prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed.

4. An order that the Respondent pay the Commission's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law.

In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149A (caution, reprimand, counsel etc.), section 149B (fine), and/or section 149C (suspension) of the National Law."

1. The Application set out the following under the heading "Background to all Complaints":

"The practitioner completed a Bachelor of Dental Surgery at Cairo University in 1985.

The practitioner completed the Dental Council of New Zealand examination in 2000 and then obtained registration as a dental practitioner in NSW on 20 October 2000.

In May 2005 the practitioner became the owner and principal dental practitioner of Mascot Dental Centre in Mascot, NSW.

On 18 July 2019, the practitioner opened a second dental practice, Top Smile Clinic, in Mascot NSW.

He worked as a dental practitioner at both Mascot Dental Centre and Top Smile Clinic, providing dental care and treatment to patients, at the relevant time.

Between 1 November 2021 and 20 August 2022, the practitioner was charged with criminal offences relating to alleged conduct towards Patients A - E, as outlined in Schedule A and Schedule B to the Complaint."

1. The HCCC then set out Complaint One as follows:

COMPLAINT ONE

Pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence.

PARTICULARS OF COMPLAINT ONE

1. On 22 September 2023 at Sydney Downing Centre District Court the practitioner was convicted of the following offences:

a. Aggravated indecent assault victim under authority of offender contrary to section 61M(1) of the Crimes Act 1900 NSW , as set out in Schedule B to the Complaint at Count 1.

b. Aggravated indecent assault victim under authority of offender contrary to section 61M(1) of the Crimes Act 1900 NSW, as set out in Schedule B to the Complaint at Count 2.

c. Aggravated indecent assault victim under authority of offender contrary to section 61M(1) of the Crimes Act 1900 NSW, as set out in Schedule B to the Complaint, at Count 3.

d. Aggravated sexual touching without consent contrary to section 61KD(1)(a) Crimes Act 1900 NSW, as set out in Schedule B to the Complaint, at Count 5.

e. Aggravated sexual touching without consent contrary to section 61KD(1)(a) Crimes Act 1900 NSW, as set out in Schedule B to the Complaint at Count 6.

f. Aggravated sexual touching without consent contrary to section 61KD(1)(a) Crimes Act 1900 NSW, as set out in Schedule B to the Complaint at Count 7.

g. Intentionally sexually touch a child between the ages of 10 and 16 years contrary to section 66DB(a) Crimes Act 1900 NSW, as set out in Schedule B to the Complaint at Count 8.

h. Aggravated sexual touching without consent contrary to section 61KD(1)(a) Crimes Act 1900 NSW, as set out in Schedule B to the Complaint at Count 9."

"COMPLAINT TWO

The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner contravened section 130(1) of the National Law.

PARTICULARS OF COMPLAINT TWO

1. The practitioner contravened s 130(1) of the National Law by failing to notify the National Board in writing within 7 days of 11 June 2021 after being charged with the following offence punishable by 12 months imprisonment or more:

a. Aggravated sexual touching without consent contrary to section 61KD(1)(a) Crimes Act 1900 NSW (H81460142/Seq 1), as set out in Schedule B to the Complaint at Count 7.

2. The practitioner contravened s 130(1) of the National Law by failing to notify the National Board in writing within 7 days of 11 August 2021 after being charged with the following offence punishable by 12 months imprisonment or more:

a. Aggravated indecent assault victim under authority of offender contrary to section 61M(1) of the Crimes Act 1900 NSW (H81460142/Seq 3), as set out in Schedule B to the Complaint at Count 3.

3. The practitioner contravened s 130(1) of the National Law by failing to notify the National Board in writing within 7 days of 1 November 2021 after being charged with the following offences punishable by 12 months imprisonment or more:

a. Aggravated indecent assault victim under authority of offender contrary to section 61M(1) of the Crimes Act 1900 NSW (H81460142/Seq 4), as set out in Schedule B to the Complaint at Count 2.

b. Aggravated indecent assault victim under authority of offender contrary to section 61M(1) of the Crimes Act 1900 NSW (H81460142/Seq 6), as set out in Schedule B to the Complaint at Count 1.

4. The practitioner contravened s 130(1) of the National Law by failing to notify the National Board in writing within 7 days of 28 February 2022 after being charged with the following offences punishable by 12 months imprisonment or more:

a. Aggravated sexual touching without consent contrary to section 61KD(1)(a) Crimes Act 1900 NSW (H81460142/Seq 7), as set out in Schedule B to the Complaint at Count 4.

b. Aggravated sexual touching without consent contrary to section 61KD(1)(a) Crimes Act 1900 NSW (H81460142/Seq 8), as set out in Schedule B to the Complaint at Count 5.

c. Aggravated sexual touching without consent contrary to section 61KD(1)(a) Crimes Act 1900 NSW (H81460142/Seq 9), as set out in Schedule B to the Complaint at Count 6.

5. The practitioner contravened s 130(1) of the National Law by failing to notify the National Board in writing within 7 days of 20 August 2022 after being charged with the following offences punishable by 12 months imprisonment or more:

a. Aggravated sexual touching without consent contrary to section 61KD(1)(a) Crimes Act 1900 NSW (H333382098/Seq 1), as set out in Schedule B to the Complaint at Count 7

b. Aggravated sexual touching without consent contrary to section 61KD(1)(a) Crimes Act 1900 NSW (H333382098/Seq 2), as set out in Schedule B to the Complaint at Count 9.

COMPLAINT THREE

The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has:

i. engaged in improper or unethical conduct relating to the practice or purported practice of dentistry.

PARTICULARS OF COMPLAINT THREE

1. Between May 2019 and December 2020, on more than one occasion, the practitioner inappropriately touched Patient D, without consent, while providing her with dental treatment, when he:

a. rested or placed his hand on top of one or both of her breasts;

b. rested his arm on top of one or both of her breasts;

c. placed his dental tools on top of her breast area while working.

2. The practitioner engaged in inappropriate conduct of a sexual nature towards Patient D by reason of his actions set out at Particular 1.

COMPLAINT 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.

PARTICULARS OF COMPLAINT FOUR

1. Complaints Two and Three, and the particulars therein, are repeated and relied upon both individually and cumulatively."

1. In relation to Complaint One, the HCCC annexed to the Application a schedule marked as "Schedule B" which set out details of charges faced by the Respondent and the outcome following the trial. That document is as follows:

SCHEDULE B TO COMPLAINT OF THE HEALTH CARE COMPLAINTS COMMISSION

Dr Bassem Magdy El-Badrawy Fouad

Table of charges and convictions

Aggravated indecent assault victim under authority of offender

Section 61M(1) Crimes Act 1900 NSW

Aggravated indecent assault victim under authority of offender

Section 61M(1) Crimes Act 1900 NSW

Aggravated indecent assault victim under authority of offender

Section 61M(1) Crimes Act 1900 NSW

Section 61KD(1)(a) Crimes Act 1900 NSW

Section 61KD(1)(a) Crimes Act 1900 NSW

Section 61KD(1)(a) Crimes Act 1900 NSW

Section 61KD(1)(a) Crimes Act 1900 NSW

Intentionally sexually touch a child between the ages of 10 and 16 years

Section 66DB(a) Crimes Act 1900 NSW

Section 61KD(1)(a) Crimes Act 1900 NSW

1. As can be seen from the table in Schedule B to the Application, the Respondent was convicted on 8 of the 9 charges. It is noted that the charge detailed at item 8 on the table related to a child between the ages of 10 and 16.
2. The evidence the HCCC relies upon includes statements made by each of the patients identified as Patient A to Patient E. However, given that 8 of the 9 charges faced by the Respondent, at trial, resulted in a guilty jury verdict, we consider the finding of a jury on the criminal standard is very significant.
3. Each of the counsel appearing for the parties directed our attention to the sentencing remarks of Judge Mahony SC DCJ delivered on 22 September 2023, following the Respondent being found guilty of 8 of 9 charges which he had faced at trial before a jury on 23 March 2023.
4. In the sentencing remarks we noted the following in particular.

(1) Remarks in relation to Patient C:

(a) Count 1 concerned Patient C. The evidence established that Patient C first consulted the offender about getting braces in early 2015 when she was 15 or 16 years of age. Initially one of her parents would attend her treatments at the dental practice that she attended at first every two weeks and later her visits became monthly. Eventually she became confident enough to go by herself.

(b) On a particular occasion she went by herself. During the procedure she felt the offender's private part pressed against her thigh and he placed his hand on her breast. She described feeling a lot of pressure and felt that it was unnecessary pressure whilst he was working on her teeth. Patient C gave evidence that it first started a few months into her treatment and then in started happening on almost every visit. At first she thought it was an accident but when it started happening regularly she gave evidence that she did not think it was a mistake and she did not think that it was not intentional.

(c) Count 1 was an occasion where she felt extremely uncomfortable. She was wearing denim shorts and was undergoing a lengthy procedure. During the procedure she could feel his private part pressed against her thigh and he was constantly placing his hand against her breast with pressure. The offender pressed his private part against her thigh for maybe 20 to 30 seconds, and it happened a few times in the one visit. The offender was wearing his dental scrubs and she described the feeling when he was pressing on the top part of her thigh as very warm and "almost like a slug but a warm slug" on her thigh. She manoeuvred herself to the left of the chair to move her thigh away from the offender.

(2) Remarks in relation to Patient B:

(a) Counts 2 and 3 concern the victim Patient B who attended the offender's surgery on 10 November 2016 for a root canal therapy. During the procedure she could feel the offender's groin area pressed against the top of her right arm and it felt "like a bulge like a sausage" pressed against her arm. She could not estimate the time that occurred for but said that it was a long time because of the pain she was suffering and him pressing against her arm. She did not say anything about it but eventually said she needed to get up and when she did so she observed the offender move back and adjust an erection beneath his clothing.

(b) Count 3 concerned the next occasion Patient B attended for root canal therapy on 16 November 2016. On this occasion during the procedure the offender's penis was pressing against her bare right arm between the elbow and shoulder. She could feel direct contact of his penis on her arm and his gown was lifted over her arm. It went on for around five minutes during which she could feel a bare sausage like skin rubbing against her arm. Patient B was in pain during the procedure and told the offender she had to get up. When she got up and went to the bathroom she observed him adjusting his erection beneath his clothes.

(3) Remarks in relation to Patient D:

(a) Counts 5 and 6 concerned Patient D who consulted the offender in 2019 for braces. She attended monthly and then fortnightly for that treatment. Count 5 concerned an occasion in 2021 when she was 16 years old. During the procedure Patient D was in pain and crying and the offender said to her, "its not pain, its just pressure". During the procedure she felt something hard pressing against her head and this happened quite a few times. It was his erect penis. She felt very paralysed and scared because she was in a very vulnerable position and could not defend herself. Following the appointment she complained to her brother.

(b) Count 6 concerned another occasion when she was supposed to take her brother with her to the appointment, but he could not attend. On this occasion the offender again pressed his crotch into her right arm for about 20 minutes. He was wearing pants. During the procedure he also placed his hand on her breasts.

(4) Remarks in relation to Patient A:

(a) Count 7 concerned Patient A who attended the offender's clinic on 5 June 2021. After two X-Rays she was advised that she required a procedure to remove her wisdom tooth to which she consented. Following extraction of the tooth the offender had to stitch her gum and during the procedure he was placing the dental tools on the top of her chest and massaging her left cheek.

(b) The offender closed the door and removed his penis from his pants and covered it with his shirt. He was standing to her right side and reaching over to massage her cheek and she described him as making a sound like a moaning sound. Whilst he was massaging her jaw Patient A felt the offender's genital area rubbing against her head. She described it as a hard penis under his pants pressing against her head which went on for about 30 seconds to a minute. Patient A felt in shock and humiliated and then after 30 seconds it stopped and the offender left the room. When he returned he sat on the dentist's chair bent forward with both arms between his legs.

(5) Remarks in relation to Patient E:

(a) Counts 8 and 9 concerned Patient E who attended the offender's surgery in 2019 when she was 14 years of age for braces. Patient E gave evidence that the offender called her Habibi meaning "my love" and "bubba" in Arabic when she attended. He told her she had a nice face and could be a model for his business.

(b) Count 8 concerned an occasion when she was lying supine in the dental chair with her head very close to his groin and thighs. She felt a thrusting motion against the back of her head which she described as, "it felt like he was erecting", meaning that his penis was getting hard. This went on for 3-4 minutes and she described it as a very subtle movement. This occurred in February 2021 when she was 15 years of age.

(c) Count 9 concerned a second occasion when she was 16 years old and again was attending alone and laying supine in the dental chair. On this occasion she remembered sliding herself down on the chair so the offender would not be able to thrust against her again. She described her head being on his knees when he did the same thing but on this occasion it lasted for less than 3-4 minutes. His penis was touching the back of her head, but it didn't last as long because she kept trying to move herself down the seat.

(6) Summary of jury verdicts:

(a) The jury verdicts of guilty to Counts 1-3 and Counts 5-9 on the Indictment meant that the jury rejected the accused's denial of ever intentionally sexually touching any of the five complainants or doing so for sexual gratification. The jury also rejected his explanation that a combination of him suffering two medical conditions, (namely, deep veinous thrombosis ("DVT"), for which he was required to wear compression stockings, together with a lichen planus infection which he treated with anti-inflammatory cream), as well as the fact that during each treatment he wore a dental loupe being a head strap with a lamp operated by a battery which was located on a belt around his waist, at the front of his body, which had caused the complainants or some of them to have a mistaken belief as to what in fact was in contact with them, as the battery itself became warm.

1. There was only one charge which the jury found the Respondent to be not guilty. That charge related to one of the three charges laid in relation to conduct of the Respondent with Patient D. That one charge is now the subject of Complaint Three of the Application before us.
2. Before addressing any further evidence relied upon by the HCCC we turn to consider the documents relied upon by the Respondent.

1. Exhibit R1: Reply to the Application. In that document, which was filed on 14 February 2025, the following is set out:

"Reply to the Application for disciplinary findings and orders

The Respondent accepts that the Background to all Complaints is accurate.

Complaint One

The Respondent admits Complaint One.

Complaint Two

The Respondent accepts that AHPRA was not notified of the charges within 7 days, but denies any deliberate failure to notify AHPRA, as explained in his statement.

Complaint Three

The Respondent denies Complaint Three.

Complaint Four

The Respondent denies Complaint Four."

1. Exhibit R2: Statement of the Respondent dated 28 October 2024. This document was also tendered as exhibit R5 after it had been signed by the Respondent on the day of the hearing before the Tribunal.
2. Given the fact that the Respondent chose not to be present during the hearing before us, it meant that the HCCC was denied the opportunity to cross-examine the Respondent and put matters to him. The consequence is that it is not appropriate to give weight to any statement contained in the exhibit other than admissions, concessions or facts which are uncontroversial. With that in mind we noted the following in exhibit R2.

(1) In addition to the information set out in the "Background to all Complaints" in the HCCC Application, the Respondent set out his academic record and training in Egypt, which he completed prior to obtaining qualifications in New Zealand which were accepted in Australia.

(2) The Respondent set out detail of his employment history in Australia between March 2000 and June 2021.

(3) The Respondent was suspended from practice on 18 June 2021.

(4) The Respondent set out his interests in dental practice and attempts to enlarge his academic achievements.

(5) The Respondent gave detail of his personal health and the impact of some conditions he suffered on his practice as a dentist.

(6) The Respondent detailed his responses to the Application of the HCCC. In relation to Complaint One, he accepts he was convicted for the offences set out. Although he continues to deny all of the allegations, he acknowledged that the patients identified in the Application of the HCCC experienced distress, along with their families, by the matters detailed in the evidence in the trial he faced in 2023.

(7) Although the Respondent stated an intention to pursue "all necessary legal avenues to defend my position and appeal against the conviction", there is no evidence that he has ever lodged an appeal against his conviction and/or sentence arising out of the charges detailed by the HCCC. We also note that during the submission made by the Respondent in the hearing before the Tribunal, his senior counsel informed us that the Respondent had filed a notice of intention to appeal in September 2023. However, we were told that notice expired at the conclusion of twelve months and no appeal has been filed.

(8) The Respondent gave his version of what he concluded was a misunderstanding of what transpired between he and the patients who are the subject of this Application and the complainants in the criminal proceeding. As the Respondent gave evidence in his trial, which took place between 9 and 24 March 2023, his explanation of how the complainants were mistaken about his actions and/or intentions, which explanations were given before the jury who in eight out of nine charges failed to accept his evidence, we also do not accept his evidence in that regard. Additionally, as we have said earlier, in the circumstance where he denied the HCCC to cross-examine him on his evidence, we would not give his evidence, in relation to those matters, any weight.

(9) In relation to Complaint Two, the Respondent states that he did not intentionally fail to notify AHPRA of the charges he faced within seven days of being charged with an offence punishable by imprisonment of 12 months or more. He said that he had thought the Dental Council of NSW would have notified AHPRA following its decision made on 18 June 2021. He also said that when he was charged with an additional count in October 2022, he did notify AHPRA. He attached copies of postal documents which he stated confirmed his assertions. Those documents are contained in exhibit A1 volume 2 at page 350 and following.

(10) In relation to Complaint Three, the Respondent denies the Complaint and said it was the subject of count 4 (see annexure B to the Application document) for which he was found not guilty.

(11) In relation to Complaint Four the Respondent denies the complaint, however, he acknowledges the convictions he had entered against him in the criminal proceeding will mean he is facing a cancellation of his registration.

(12) The Respondent addressed matters arising under Stage Two. Again, he was not available for cross-examination on any of the matters he set out. He set out that if he is permitted to continue to practise he would fully disclose his medical condition to his patients. He set out the further study he is proposing to undertake. He set out the short online courses he has undertaken since May 2022. He set out his plan for the future. He plans to return to dentistry when permitted by the Tribunal orders. He set out the personal impact of the criminal proceeding he faced and the suspension of his registration as a dentist by the Dental Council of NSW. He has sought professional help from medical, therapeutic and counsellor practitioners.

1. We have had the opportunity to read the content of exhibits R3 and R4. We note exhibit R5 is identical to exhibit A2 with the exception that the document is signed by the Respondent.

Finding and determination in relation to Complaint One.

1. The HCCC seeks a finding that the Respondent has been convicted of a criminal offence as referred to in s 144(a) of the Health Practitioner Regulation National Law (NSW) (National Law). Although there is no issue that the Respondent has been convicted of a criminal offence (the Respondent admitting Complaint One), the evidence supporting the Complaint is set out in the Certificate of Conviction set out at page 316 of exhibit A1 volume 2.
2. The HCCC included detail of ss 144 and 149C of the National Law in its submission as follows:

"5. Section 144 of the Health Practitioner Regulations National Law 2010 (NSW) ('the National Law') sets out the bases for making a Complaint:-

144 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.

6. Section 149C relevantly provides as follows:-

149C (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied--

(a) the practitioner is not competent to practise the practitioner's profession; or

(b) the practitioner is guilty of professional misconduct; or

(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or

(d) the practitioner is not a suitable person for registration in the practitioner's profession."

(emphasis added in original document)

1. The HCCC detailed the facts which were established in relation to each of the eight charges of which the Respondent was found guilty by a jury.
2. The HCCC submits in relation to Complaint One (and Complaint Four) as follows:

"18. The National Law requires the Tribunal to consider the circumstances of the offending conduct in determining whether the respondent is 'unfit in the public interest' to continue to practise as a dentist. The applicant contends that the only logical conclusion is that the circumstances of the respondent's offending render him unfit to practise as a dentist, for reasons including:-

a. The offending conduct occurred at the same time as the respondent was performing dental work in the patients' mouths or, for Patient A, rubbing her jaw muscle.

b. The conduct was sexual in nature, and as demonstrated by the evidence of Patients A and E that the respondent got an erection whilst pressing his penis against their heads, was for his sexual gratification.

c. The patients had reposed their trust in the respondent to perform dentistry work that was in some cases, painful and prolonged, and from which the patients could not easily extract themselves. They were physically within the control of the respondent, lying prone and extremely vulnerable.

d. Given that dental work often involves painful and/or difficult work, such as extractions or root canal work, each of the patients had emotional vulnerability that was exploited by the respondent. The dental chair is an intrinsically stressful location, and instead of assuaging that stress the respondent exploited the respondent's emotional vulnerabilities.

e. For those patients with long term financial commitments to the respondent, there was also financial vulnerability that the respondent exploited.

f. The conduct only occurred against female patients, three of whom were in their late teens or early twenties, and one of whom was a minor.

g. The later-in-time conduct was recorded, with the recording presumably being available to the respondent. Whilst the availability of the CCTV footage plainly assisted the criminal prosecution of the respondent, it raises issues about the abuse of the patients' trust in relation to the filming of sexual conduct involving them. Even if there is some implicit consent to the CCTV footage being taken, as the sexual conduct was not consented to, any consent is of limited relevance."

"20. Additionally, having regard to the fact that this Tribunal is concerned with the conduct of health professionals including those such as the respondent who is self-employed, and as such is part of a co-regulatory system that manages the workplace conduct of health practitioners, it is relevant to consider more broadly the respondent's conduct qua a dentist. For example, and separately to the criminal conduct of rubbing his penis on patients' arms, thighs and heads the respondent:-

a. regularly touched his crotch area within view of the patients

b. after touching his crotch area with his gloved hands, proceeded to insert his fingers inside patients' mouths wearing the same gloves

c. rested implements on patients' bibs, involving touching patients' breasts

d. rested his arm and/or hands on patients' breasts or otherwise touched patients' breasts with his hands or arms

e. pulled his penis out of his trousers whilst a patient was lying prone in the dentist chair."

1. In relation to the last set out submission we note that as part of the evidence the Tribunal has seen, was a portion of a recording taken from the Respondent's own recording on CCTV of his conduct in relation to one of the named patients, the subject of this complaint. In that portion of the video recording, we observed a number of the conducts specified in the HCCC submission above. Otherwise, the statements of each of the patients the subject of this complaint provide ample evidence.
2. The HCCC then referred the Tribunal to some decisions to assist in this determination. The references included the following:

"21. The Tribunal usefully considered issues relevant to the Tribunal's jurisdiction when considering cancellation of registration in context of 'fitness to practice' in Health Care Complaints Commission v Richards [2024] NSWCATOD 45:-

The relevant authorities were summarised by the Tribunal in Health Care Complaints Commission v Morris [2022] NSWCATOD 120 at [82]- [86] as follows:

82. In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14] the Tribunal stated: 'The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A.'

83. The following principles emerge from the Tribunal's decision in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]:

(1) 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 the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35];

(2) s 149C(1)(c) is not subject to a requirement of 'probable permanent unfitness', but rather requires an assessment of 'the practitioner's current fitness to practise': Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]- [69];

(3) In construing s 149C(1)(c) the Tribunal needs to take into account the objectives of the National Law which relevantly include 'the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered'. Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner 'unfit in the public interest to practise the practitioner's profession';

(4) The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances.

84. Whether a practitioner is unfit in the public interest to practise will require 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 on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51].

85. 'Public interest' also may be taken to encompass the goal of broader protection of the reputation and standing of the profession, such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]. However, we are cognisant of the remarks of Harrison J in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (albeit in the context of proceedings under s 150 of the National Law) of the concept of public interest being linked to the health and safety of the public.'

22. As explained by the Tribunal in Health Care Complaints Commission v Gott [2023] NSWCATOD 54, since Morris the Tribunal has found in Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [92]- [93] that the requirement in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 at [68] referred to above that there be a nexus between the criminal conduct and the practice of the practitioner's profession does not apply in considering whether a person is unfit in the public interest to practise for the purpose of s 149C(1)(c), preferring instead the test as formulated in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56(7)(f)] and Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123(6)(b)] which were respectively as follows:

'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.'

'123(6)(b) 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.'

23. Whether a practitioner is unfit in the public interest to practise must be assessed in light of a holistic inquiry into suitability. As the Tribunal stated in Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [22]:

'... 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 since any investigation or sanction. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. ...'

24. As the respondent has refused to participate in these proceedings, there is no evidence that the fact of the convictions has caused the respondent to reflect on his conduct or and no evidence to demonstrate remorse or contrition. There is no evidence that the respondent has sought treatment for any condition that caused him to engage in this conduct with his patients. Overall, there is nothing on which this Tribunal could rely to be satisfied that the conduct the subject of the offences, which occurred in 2016 and again in 2021, would not occur again. There is no doubt that the respondent is unfit, in the public interest, to practise his profession."

1. The matters raised by the HCCC as to the Respondent's "fitness to practice" are matters which we will address when we consider the protective orders which we will impose in this matter.
2. It is sufficient to say in relation to Complaint One that we find the complaint established.

Finding and determination in relation to Complaint Two.

1. In relation to Complaint Two the HCCC relies on the correspondence from AHPRA which is contained at volume 1 page 40 at [22-24] and page 493 to establish that the Respondent failed to notify AHPRA within seven days of his being charged with an offence punishable by 12 months imprisonment or more. Such notification is required by s 130 of the National Law.
2. In its submission the HCCC set out the following relevant provisions of s 130 of the National Law:

"130 (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event.

(2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.

...

(3) In this section 'relevant event', in relation to a registered health practitioner, means--

(a) the practitioner is charged with--

(i) a scheduled medicine offence; or

(ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or"

1. By letter dated 5 April 2022, Annabelle Jacob, Legal advisor, National Information Release Unit of AHPRA wrote to the HCCC in response to its letter of 22 March 2022, which sought a report as to whether the Respondent had informed AHPRA that he had been charged with criminal offences on 11 June 2021 by the NSW Police and/or whether AHPRA had been notified by the Respondent of further charges laid against him in October or November 2021 or March 2022. The response from AHPRA was that a search of its records held for the Respondent showed no record of receiving a notification from the Respondent in relation to any charges laid against him on or following 11 June 2021. The subject letter forms part of exhibit A1 and is found in volume 2 at page 373. There is a second letter from AHPRA to the HCCC dated 16 February 2024, which confirms no notification from the Respondent was found in the records of AHPRA in relation to his being charged on any of the dates 11 June 2021, 11 August 2021, 1 November 2021, 28 February 2022 or 20 August 2022.
2. On page 139 of exhibit A1 volume 3 there is a copy of an email from a legal advisor at AHPRA again advising that AHPRA has been unable to locate any record of the Respondent having notified AHPRA of any criminal charges or convictions. That response followed the HCCC providing AHPRA with copies of the documents the Respondent had provided in purported compliance with s 130 of the National Law in respect of additional charges he had received following the original June 2021 charge which the Respondent admits he did not provide to AHPRA.
3. There was no objection to the admission into evidence of the subject letter from HCCC.
4. There is no issue that each of the charges laid against the Respondent on the dates set out in Complaint Two of the Application was laid on the nominated dates nor is there any suggestion that the specified charges were not captured by the wording of s 130 of the National Law.
5. To the extent necessary we do find that the stated charges set out in Complaint Two were laid on the dates stated and that on each date he was charged with at least one offence which is captured by s 130 of the National Law.
6. In reply to this Complaint Two the Respondent accepts that AHPRA did not receive any notification from him as required by the provisions of s 130. He says however, such an omission was not deliberate on his part.
7. In his statement the Respondent gave some additional detail to his Reply document. He said that in relation to the charges laid on 11 June 2021, he received notification from the Dental Council advising a s 150 hearing would be conducted on 18 June 2021. Following that hearing he had his registration suspended and he believed the Council had notified AHPRA. No basis for that belief was provided. What flows from the Respondent's statement is a clear admission that in relation to the charge laid against him on 11 June 2021 he did not fulfil his obligation under s 130 of the National Law so far as notifying AHPRA of a relevant charge.
8. The Respondent states that in October 2022 he was further charged with a relevant criminal charge, in relation to which he was required to notify AHPRA. The Respondent stated that he has "previously explained, I sent letters dated 25 August 2021, 19 October 2021, 29 December 2021 and 11 July 2022 to AHPRA notifying of the charges he had received. He cited records he has provided to the HCCC supporting that contention.
9. The letters allegedly sent by the Respondent to the HCCC, as above listed, were not attached to his statement, however, MFI5 provided by the Respondent contained copies of pages 353, 354, 359 and 369 of exhibit A1.
10. In support of the Respondent's assertion he understood the Council had notified AHPRA of his having been charged with a relevant criminal offence, the documents contained in exhibit A1 volume 2 at page 348 contain a copy of a letter from the Dental Council of NSW to the Respondent advising that on 18 June 2021 the Council had decided to suspend his registration. The Council advised it aimed to provide written reasons within a month. Thereafter, in that letter, the Council said it had notified AHPRA that the Respondent's registration had been suspended. The Council did not state it had advised AHPRA of the reason for the suspension. It did advise it had also notified the HCCC.
11. At page 350 and 351 of exhibit A1 volume 2 there is a copy of a notification dated 25 August 2021 and apparently signed by the Respondent. The document notified of a charge the subject of s 130 of the National Law. Page 352 of the exhibit is a copy of a letter signed by the Respondent and addressed to "Dear Sir". It states: "I would like to notify AHPRA that the police added another charge of indecent assault (sexual touch) for another alleged patient." The letter is dated 25 August 2021. The Respondent stated he had received the document from the police on 21 August 2021.
12. At pages 353 and 354 there are documents which appear to have been generated by Australia Post and dated 25 August 2021. The documents provide prima facie evidence that the Respondent did notify AHPRA on that occasion.
13. Likewise, there is a document dated 19 October 2021 being a notification on an AHPRA document as required by s 130 of the National Law. That document is accompanied by a letter dated 19 October 2021 and signed by the Respondent. There are then Australia Post generated documents which bare the date 19 October 2021 and show an address for delivery as AHPRA.
14. There is a third lot of documents in similar form dated 28 and 29 December 2021.
15. There is a fourth lot of similar documents dated 11 July 2022 (notifying wrongly of a conviction of a relevant s 130 charge). The letter accompanying the notification document made clear the Respondent was notifying AHPRA that the police had added another relevant s 130 charge to those he has previously been charged with.
16. The schedule marked B attached to the Application complaint document shows the dates upon which the Respondent was charged as: 11 June 2021, 11 August 2021, 1 November 2021, 28 February 2022 and 20 August 2022. The schedule shows charge number 8 as not having a charge date set out. In the hearing the HCCC informed the Tribunal that date was 26 September 2022.
17. The evidence relied upon by the Respondent in relation to Complaint Two, which we have set out above, show a letter dated 25 August 2021 advising of a charge on 21 August 2021; a letter dated 19 October 2021 advising of a charge on 14 October 2021; a letter dated 29 December 2021 advising of a charge on 23 December 2021; and a letter dated 11 July 2022 advising of an additional charge (no date set out).
18. As can be seen there is a discrepancy between the dates the Respondent states he was provided with the further charges (the first being on 11 June 2021 in relation to which the Respondent admits he did not provide advice to AHPRA), and the dates stated as the charge date on annexure B to the Application document.
19. The documents provided by the Respondent to show he had notified AHPRA were provided to AHPRA by the HCCC via an email dated 13 January 2025 and responded to by email dated 14 January 2025. In the response the AHPRA officer again asserted that AHPRA can find no record of receiving any notice from the Respondent as alleged by the Respondent in the documents provided. The officer then pointed to a number of unusual aspects of the documents provided. We do not repeat what was stated thereafter as it amounts to a suggestion that the documents provided by the Respondent are not authentic records of the Australian Post Office. If such an allegation was established then it would amount to a very serious offence by the Respondent in relation to his conduct as a person the subject of the National Law.
20. The HCCC submits that we should accept the evidence provided by AHPRA that no notice has been received by AHPRA of the Respondent's charges as required by s 130 of the National Law and consequently Complaint Two should be found to be established.
21. We are here challenged by the tension between the reliability of the evidence provided by the Respondent, the fact that he has not made himself available for cross-examination, and the seriousness of making a finding that the Respondent, and/or another person on his behalf, has engaged in conduct designed to fabricate evidence to avoid a finding under Complaint Two of the Application. We are certainly concerned about the differences between the stated dates of charges as set out in Schedule 2 to the Application complaint document and the dates the Respondent said he received the charge documents. We do not however, lose sight of the possibility that the police may not have formally charged the Respondent on the dates the charge documents were created.
22. Following from the matters we have set out under the Complaint Two finding and determination heading, we do accept AHPRA cannot find any evidence amongst its records of the Respondent notifying it of any charge or conviction the subject of s 130 of the National Law. We are unable to find that the Respondent did not send notifications to AHPRA of his charges as he has stated and which is stated in the documentary evidence he has provided. We do find that he failed to notify AHPRA of the charge he received on 11 June 2021.
23. We find that Complaint Two has been established in relation to the charge the Respondent received on 11 June 2021.

1. This Complaint Three relates to the one count of which the Respondent was not convicted as shown in Schedule B to the Application document. The HCCC makes clear that the Particulars to this complaint identify the touching by the Respondent with his hand and with his arm on the breast of Patient D who was at the time of the alleged conduct under the age of 16 years.
2. In the submission provided by the HCCC the circumstances of the touching and arm contact with Patient D's breasts is set out together with the supporting evidence relied upon. We here include that submission:

"Complaints Three and Four

29. Patient D was 14 years old in 2019 and 15 years old in 2020. In her police statements she gave the following evidence:-

May 2019 - Dr Fouad reached for a tool and as he was doing this, he lightly rested his hand, I believe it was his right hand, on my chest, on top of my right breast. I didn't think anything of it until my mum pointed it out.

The next time it happened [unsure of timeframe] it was exactly the same...I felt him place his hand on the right side of my chest over my breast. Again I believe it was his right hand.

Late in 2020 I noticed ...Dr Fouad was doing it more...he was putting his hand on my breast more often...he put his tools on the bib...and the bib was covering my breast area. [In oral evidence Patient D agreed that the instruments were on the bib on the chest area, no breast area] I know he was doing it on purpose because he only did it when it was just me and him in the room. When his assistants were in the room he still put his tools on my bib but they moved him and placed them back on the tray.

30. Patient D then gives evidence about the occasions in 2021 when the respondent pressed his crotch area against her arm and head. One of the convictions was in respect of this evidence. In oral evidence Patient D stated that breast touching also occurred on the first occasion in 2021 when the respondent pressed his crotch into her arm and head.

31. It is an available inference that the respondent's incidental breast touching was a part of the respondent's overall strategy in normalising behaviour with Patient D culminating in him engaging in the sexual touching of his penis against parts of her body in 2021.

32. The conduct continued over multiple occasions, and is contrary to the expectations of patients and the community at large that a dentist will avoid touching any patient on areas that are considered to be private and sexual in nature.

33. The conduct caused Patient D to take steps to protect herself by having family members attend with her, emphasising the ways in which the respondent's conduct impacted on patients and their families. Patient D was under the age of 16 when the conduct commenced. The degree of impropriety involved in touching a patient's breasts whilst providing dental services is sufficiently serious that the Tribunal would consider cancelling the respondent's registration, and pursuant to Complaint Four the applicant seeks a determination that, if the respondent was still registered (assuming that cancellation will be made as a consequence of Complaint One), the Tribunal would have cancelled his registration.

34. In the alternative the combination of Complaints Two and Three together are sufficiently serious to justify cancellation."

1. We have had the opportunity to see the transcript of the oral evidence of Patient D given 9 March 2023 during the trial of the Respondent in the District Count of NSW. We have also seen the written statement she provided to the Police. Both the statement and the transcript of evidence are contained in exhibit A1 volume 1.
2. In the written submission of the Respondent, he says in relation to Complaint Three:

"The respondent accepts the nature of the contact with Patient D (that his hands rested at times over the bib covering the breast area) however, he denies this was done for sexual gratification."

1. The Particulars to Complaint Three, are as follows (for convenience, we repeat that which we have earlier set out):

"1. Between May 2019 and December 2020, on more than one occasion, the practitioner inappropriately touched Patient D, without consent, while providing her with dental treatment, when he:

a. rested or placed his hand on top of one or both of her breasts;

b. rested his arm on top of one or both of her breasts;

c. placed his dental tools on top of her breast area while working.

2. The practitioner engaged in inappropriate conduct of a sexual nature towards Patient D by reason of his actions set out at Particular 1."

1. In relation to Particular 1(c), the oral evidence of the patient in the trial of the Respondent is that the dental tools were placed on the bib which was covering her chest as opposed to covering her breasts.
2. Patient D clearly was concerned about the conduct described in Complaint Three. Her evidence both in statement form and given at the trial made clear she believed the Respondent was placing his hands and arms on her breasts for a reason not associated with a proper dental purpose.
3. The Respondent points to no evidence before the Tribunal to explain why it was necessary for a proper dental purpose or practise, to place his hand or arm on Patient D's breast. (We note the burden of proof lies with the HCCC).
4. The Respondent admits (in his Reply document) that he did rest his hands at times over the bib covering the breast area of Patient D. Further, even if it was appropriate in the circumstances to give weight to the statement of the Respondent (given he did not make himself available for cross-examination) there is nothing in his statement to explain why it was a necessary part of the dental procedure he was administering to Patient D that he rest his hand or arm on her breast.
5. The Respondent in oral submissions, submitted that the conduct admitted by him in Complaint Three was not an admission that he engaged in that contact for a sexual purpose. He submitted that to be satisfied the HCCC had established Complaint Three it would be necessary for the Tribunal to be satisfied the stated conduct engaged in by the Respondent was for an intended sexual purpose.
6. Patient D was a minor at the time of the alleged conduct of the Respondent. She was clearly uncomfortable and confronted with the Respondent's conduct as complained of in this Complaint Three. So much so that she was prepared to subject herself to cross-examination in a criminal trial.
7. In order for us to be satisfied Complaint Three is established we need to find that the Respondent engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. The detail set out in Particular 1 to Complaint Three, is admitted by the Respondent. We do not accept that we have to find a sexual intent in the admitted conduct in order to find the Complaint Three established.
8. We cannot see any proper medical/dental purpose in the dental procedures the Respondent carried out with Patient D, for him to bring any part of his body, be it a hand or an arm, into contact with Patient D's breasts. If the Respondent did have the intention to conduct himself in that manner for a sexual purpose then it is clearly inappropriate and unethical and illegal. If the Respondent's conduct, as admitted for Complaint Three, was without regard to the impact of such actions on Patient D, then it was reckless and entirely inappropriate.
9. In relation to Particular 2, which alleges the conduct of the Respondent was of a "sexual nature" we find such an allegation is an extremely serious one to make. We agree that there is an available inference that if the conduct could not have been for a proper medical/dental purpose relating to Patient D and the procedure the Respondent was conducting with her, then it must have been for another purpose and the prospect that it was for a sexual purpose looms large as one such purpose.
10. Although the HCCC is not required to prove the Respondent acted for a sexual purpose in this Complaint Three, it does have to establish that on the civil standard. Given the gravity of the finding sought by the HCCC, although we have grave concerns about the Respondent's intentions, we are not satisfied the HCCC has established he acted out of a pursuit of sexual gratification for himself. We also find that such a finding, as sought by the HCCC in Particular 2, is necessary for us to be satisfied Complaint Three is made out. We are satisfied on the basis of Particular 1 alone that Complaint Three is established. The Respondent's conduct, as described in Particular 1 and as accepted by us as established, was highly inappropriate.

1. The HCCC seeks a finding that the combination of the findings made in relation to Complaints Two and Three evidence established conduct on the part of the Respondent which is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration. Alternatively, that if the Tribunal has found more than one instance of the Respondent engaging in 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.
2. We have found Complaint Two established. We have found Complaint Three established.
3. We find that the conduct of the Respondent in relation to Complaint Three alone was of such a serious nature as to justify a suspension or cancellation of his registration.

1. By far the most serious aspect of this case is the evidence of the Respondent being convicted by a jury of eight out of nine charges of aggravated indecent assault (times 3 in relation to Patient B); Aggravated sexual touching without consent ( times 2 in relation to Patient D); Aggravated sexual touching (times 1 for Patient A) and Intentionally sexually touch a child between the ages of 10 and 16 years (times 1 for Patient E) and Aggravated sexual touching without consent (time 1 for Patient E). All those charges were established before a jury on the criminal standard of proof.
2. The HCCC seeks a cancellation of the Respondent's registration pursuant to s 149C(1)(b) or s 149C(1)(c) of the National Law, with a non-review period of five years. The Respondent, in his written submission, acknowledged that Complaint One alone would give rise to a cancellation order. He seeks however that the non-review period be two years.
3. In the submission provided by the HCCC we were referred to a number of decisions of the NSW Court of Appeal, a decision of the Supreme Court and decisions of the Tribunal. We have set those decisions out earlier in this judgment. Some of the decisions address the wording of s 149C(1)(c), which we have set out herein, and in particular the words of that sub-section "and the circumstances of the offence render the practitioner unfit in the public interest to practice the practitioner's profession."
4. From the authorities quoted we noted the following:

(a) The term "unfitness to practice in the public interest", although not defined in the National Law, is to be read in light of s 3B of the National Law. That section states as follows:

3B Objective and guiding principle [NSW]

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

(b) 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 the standards to which human conduct is to be held.

(c) Section 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of "the practitioner's current fitness to practise"

(d) In construing s 149C(1)(c) the Tribunal needs to take into account the objectives of the National Law which relevantly include "the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered".

(e) As a result of the conviction, is the conduct of the Respondent so egregious as to render him unfit in the public interest to practise his profession.

(f) The determination of whether the Respondent is unfit in the public interest to practise will require the Tribunal to take into account not only the offences, but also the circumstances in which they were committed.

(g) The Tribunal will take into account relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse.

(h) "Public interest" also may be taken to encompass the goal of broader protection of the reputation and standing of the profession.

(i) "Public interest" also may be taken to encompass maintaining the trust of the public in the profession.

(j) Whether a practitioner is unfit in the public interest to practise must be assessed in light of a holistic inquiry into suitability.

(k) The assessment of whether the Respondent is unfit in the public interest to practice involves an assessment which 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 since any investigation or sanction. All of these considerations, past and present, must inform an assessment of current suitability to practise within a legislative framework of public protection in which the health and safety of the public are the paramount consideration.

1. In the submission of the HCCC it makes the point that:

"as the respondent has refused to participate in these proceedings, there is no evidence that the fact of the convictions has caused the respondent to reflect on his conduct and no evidence to demonstrate remorse or contrition. There is no evidence that the respondent has sought treatment for any condition that caused him to engage in this conduct with his patients. Overall, there is nothing on which this Tribunal could rely to be satisfied that the conduct the subject of the offences, which occurred in 2016 and again in 2021, would not occur again."

1. We have considered the extracts from the decisions to which we have been referred, as above set out, and we have determined that the conduct of the Respondent, as found by a jury to have been inflicted on a number of female patients, to be so egregious as to render him unfit in the public interest, to practise his profession as a dentist or to engage in any health service, as defined in s 4 of the Health Care Complaints Act 1993 (NSW) (Health Care Complaints Act).
2. In relation to the circumstances in which the offences were committed, we note that all of the offences involved female patients. All the offences took place at the time the Respondent was conducting a dental procedure on the patient. Two of the patients were minors at the time the offences took place. The offences involved the Respondent bringing his exposed genitalia into contact with his patient during the dental procedure. In relation to Complaint Three the conduct involved the Respondent touching the patient's breasts and also resting his arm on her breasts during the dental procedure.
3. The Respondent was charged in relation to Patient A, Patient D and Patient E, with an offence under s 61KD(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act). That section is as follows

61KD Aggravated sexual touching

(1) Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent and in circumstances of aggravation intentionally -

(a) sexually touches the complainant, or

(b) incites the complainant to sexually touch the accused person, or

(c) incites a third person to sexually touch the complainant, or

(d) incites the complainant to sexually touch a third person,

is guilty of an offence.

1. We have set out that section of the Crimes Act to show that the requirement for a conviction is the jury finding that the Respondent "intentionally sexually touched" those patients.
2. A number of charges which the Respondent was convicted of were charges that he assaulted a patient and at the time of the assault he committed an act of indecency being the pressing and rubbing of his penis against a part of her body in circumstances of aggravation, namely that at the time the patient was under his authority by reason of him being a dentist performing a procedure on the patient.
3. One of the charges for which the Respondent received conviction was laid pursuant to section 66DB of the Crimes Act. It was a charge which required the jury to be satisfied the Respondent intentionally sexually touched a child between the ages of 10 and 16.
4. The HCCC points out that as the Respondent has failed to make himself available for cross-examination in the hearing, and in fact did not attend the hearing, there is no acceptable evidence, upon which the Tribunal could give meaningful weight, of any contrition, acceptance of the convictions being correctly entered, meaningful remorse for the harm caused to the victims, including the requirement to have them give evidence in a lengthy criminal trial.
5. The HCCC submits that all of the relevant considerations which might normally be seen in a Stage Two hearing are either not available or are so overpowered by the egregious nature of the offending as to make such considerations, by comparison, not of significant weight; including circumstances such as the length of the Respondent's practice as a dentist during which he has not been the subject of complaints found to have been established, the age of the Respondent and the impact upon his possible returning to practice should he be prevented from practice for a lengthy time. The Respondent noted that he had been suspended on 18 June 2021 and therefore had not practiced for four years at the date of the hearing.
6. We have considered all of the submissions on behalf of the Respondent made both in writing and in the hearing before us and we conclude the Respondent is not fit in the public interest to practise dentistry or to engage in any health service as defined in s 4 of the Health Care Complaints Act. That section defines "health service" as follows:

"health service includes the following services, whether provided as public or private services -

(a) medical, hospital, nursing and midwifery services,

(b) dental services,

(c) mental health services,

(d) pharmaceutical services,

(e) ambulance services,

(f) community health services,

(g) health education services,

(h) welfare services necessary to implement any services referred to in paragraphs (a)-(g),

(i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices,

(j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services,

(j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services,

(k) services provided in other alternative health care fields,

(k1) forensic pathology services,

(l) a service prescribed by the regulations as a health service for the purposes of this Act."

1. Given all of the matters we have considered in this judgment, we conclude that the Respondent's registration should be cancelled. We also conclude that there should be a non-review period of five years as sought by the HCCC.
2. In making the cancellation order we have concluded that the order is necessary based upon Complaint One alone. We conclude that our findings in Complaints Two, Three and Four merely confirm a cancellation is the appropriate order to make. Such an order not only flows from the nature of the Respondent's misconduct, it includes the requirement for specific and general deterrence, the requirement to uphold the safety of the public, to uphold the reputation of the profession of dentistry as a whole and to maintain the confidence of the public that the regulatory bodies for health professionals in this State, and in Australia, will act in a way to ensure the public safety is protected.

1. The HCCC seeks an order that the Respondent pay the HCCC's costs of the proceeding as agreed or as assessed. The Respondent in oral submission conceded the usual order for costs was appropriate. That concession we take to acknowledge that in proceedings in this Tribunal, brought under the National Law and as set out in clause 13 of Schedule 5D of the National Law, costs will follow the cause unless there is some circumstance relating to the presentation of conduct of the successful party, which should give rise to a different order in relation to the payment of costs.
2. In this case we cannot find any conduct on the part of the HCCC which would cause us to depart from making the order sought by the HCCC in relation to the payment of its costs.

1. We propose to make the following Protective Orders and orders relating to prohibiting the publication of specific evidence which was placed before the Tribunal in this proceeding and hearing. The Orders are as follows:

(1) The Respondent's registration is cancelled pursuant to s 149C(1)(c) and s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) (National Law). An application for review of this order under Division 8 of the National Law is prohibited for a period of five years from the date of this order.

(2) The Respondent is prohibited from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993 (NSW), for a period of five years from the date of this order.

(3) Pursuant to clause 13 of Schedule 5D of the National Law, the Respondent is to pay the Commission's costs of this proceeding as agreed or assessed.

(4) The publication or broadcast of the name of any patient or witness in this proceeding or in any evidence received in this proceeding, is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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.