Health Care Complaints Commission v Hatoum - [2022] NSWCATOD 72 - NSWCATOD 2022 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Hatoum

[2022] NSWCATOD 72

NCAT Occupational|2022-05-17

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Source facts

Court

NCAT Occupational

Decision date

2022-05-17

Source

Original judgment source is linked above.

Judgment (46 paragraphs)

[1]

ced general practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the Medical Council of NSW. (a) At each mentoring meeting the practitioner is to include discussion of the following: • Personal and/or professional development • Personal and/or medical practice issues as they arise • Personal and/or professional boundary issues • Work/life balance and personal wellbeing (b) To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. (c) To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which imposed this condition and any relevant Council decision or report. (d) To be mentored for a minimum period of one year and as subsequently determined by the Council. (9) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. (10) To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. (11) To provide the Medical Council with evidence of the completion, in a timely way, of the ethics course the Practitioner has enrolled in with the University of Sydney. (12) To attend a Medical Council of NSW's Review Interview on a three-monthly basis or as otherwise directed by the Council. (13) To authorise the Medical Council of NSW to forward copies of the decision which imposed these conditions, and any subsequent Council Review Interview or other reports, and any other information relevant to his health and treatment, to the Council-appointed practitioners and to his treating psychologist. Health Conditions: (14) To attend for therapy by a psychologist of his choice (Dr Pignataro if possible). The frequency of treatment is to be determined by the treating psychologist. The practitioner: (a) Is to authorise the treating psychologist to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change) (b) Must provide the Medical Council of NSW with the professional details of the treating practitioner. Orders: (15) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the National Law (16) Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. (17) The Respondent is to pay the costs of the Applicant as agreed or as assessed. Catchwords: OCCUPATIONS - Medical practitioners - Misconduct and discipline - Unsatisfactory professional conduct - Professional misconduct Legislation Cited: Health Practitioner Regulation National Law 2013 (NSW) Crimes Act 1900 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 Crimes (Sentencing Procedure) Act 1993 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Chen v Health Care Complaints Commission [2017] NSWCA 186 Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Gayed v Walton [1997] NSWSC 279 Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158 Health Care Complaints Commission v Coutinho [2020] NSWCATOD 33 Health Care Complaints Commission v Jodlovich [2021] NSWCATOD 127 Health Care Complaints Commission v Muthunesan [2021] NSWCATOD 178 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Rixon [2016] NSWCATOD 24 Health Care Complaints Commission v Russ [2021] NSWCATOD 5 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lee v Health Care Complaints Commission [2012] NSWCA 80 Minister for Immigration and Multicultural Affairs and Ali (2000) 106 FLR 313 NSW Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Pridgeon v Medical Council of NSW [2020] NSWCA 60 Qasim v Health Care Complaints Commission[2015] NSWCA 282 Sudath v Health Care Complaints Commission [2012]. NSWCA 171 Williams v Lewer (1974) 2 NSWLR 91 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) George Hatoum (Respondent) Representation: Counsel: Mr. A Bhasin (Applicant) Dr P Dwyer (Respondent)

[3]

Introduction:

Before the Tribunal is an Application for Disciplinary Findings and Orders filed by the Health Care Complaints Commission (HCCC) on 1 October 2021. That Application seeks an order for the cancellation of the registration of Dr George Hatoum (the Respondent") as a medical practitioner. The cancellation is sought pursuant to s. 149C(1)(c) of the Health Practitioner Regulation National Law 2013 (NSW) (the National Law).
Section 149C(1)(c) of the National Law provides as follows: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (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) …… (b) …… (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.
The "criminal finding for an offence" in the subject case, is a conviction and sentence in the Local Court of NSW of 1 offence of "dishonestly obtain financial advantage by deception" pursuant to section 192E(1)(b) of the Crimes Act 1900 (NSW); and 1 offence of "make false document to obtain financial advantage" pursuant to section 253(b)(ii) of the Crimes Act. The facts behind the charges laid and established against the Respondent, we set out hereafter.
The Respondent filed a Reply to the Application, on 11 April 2022. The Respondent admitted the Complaint as detailed in "Complaint One" in the Application.
The HCCC relied upon the evidence contained in a folder of documents admitted to evidence and marked as exhibit A1. Further it relied on a second folder of documents which was admitted to evidence and marked as exhibit A2. The HCCC then tendered in its case the following documents: 1. Exhibit A3: Facts Sheet H75738163. 2. Exhibit A4: Facts Sheet H74919032. 3. Exhibit A5: Copy letter HCCC to the Respondent dated 7 April 2021. 4. Exhibit A6: Copy transcript of Local Court hearing and Judgment dated 9 December 2020. 5. Exhibit A7: Evidentiary Certificate from AHPRA dated 9 May 2022.
In relation to exhibit A4 the HCCC agreed that it was not the Respondent who received a financial advantage.
In relation to page 15 line 6 of exhibit A6, the HCCC noted that it was acknowledged by the sentencing Magistrate that the financial advantage was not for the Respondent.
The Respondent relied upon the following documentary evidence: 1. Exhibit R1: A bundle of documents. 2. Exhibit R2: Letter dated 13 December 2021 from Advanced Health to the Medical Board. 3. Report of Dr Anthony Pignataro dated 31 March 2022 together with the letter of instruction from the Respondent's lawyer.

[4]

The HCCC case:

The Order sought by the HCCC is as follows: 1. Cancellation of the Respondent's registration, pursuant to s. 149C(1)(c) of the National Law, with a non-review period of two years. 2. A prohibition order prohibiting the Respondent from providing a health service, as defined in s.4 of the Health Care Complaints Act 1993 (NSW), for the same period as any non-review period imposed; 3. An order that the Respondent pay the Commissions costs under clause 13 of Schedule 5D of the National Law.
The HCCC also sought a prohibition order against the publication of the names of persons listed in a schedule attached to the Application. The two persons named in the schedule were both former patients of the Respondent.
In the "Background to Complaint One" The Application set out the following: "In 1994 the practitioner obtained qualifications in medicine from the University of New South Wales, Australia. In 2005, the practitioner obtained Fellowship of the Royal Australian College of General Practitioners. The practitioner is the owner and principle medical practitioner at Bankstown Family Medical Practice. On 2 July 2020, the practitioner was charged with three criminal offences, namely: One offence of "dishonestly obtain financial advantage by deception" pursuant to section 192E(1)(b) of the Crimes Act 1900; One offence of "make false document to obtain financial advantage" pursuant to section 253(b)(ii) of the Crimes Act 1900; and One offence of "conspire with other to cheat and defraud" pursuant to common law. On 9 December 2020, the practitioner was convicted of the offences of "dishonestly obtain financial advantage by deception" and "make false document to obtain financial advantage". The practitioner was fined $1000 and sentenced to a conditional release order pursuant to section 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The terms of the order were that the practitioner must be of good behaviour for a period of 18 months, commencing on 9 December 2020 and concluding on 8 June 2022.
Complaint One in the Application is as follows: "Pursuant to section 144(a) of the National Law, the practitioner has been convicted of criminal offences in NSW."
Section 144 (a) of the National Law includes the following: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner -- (a) Criminal Conviction or criminal finding 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.
The conviction entered against the Respondent was entered on 9 December 2020. The conviction was entered after the Respondent pleaded guilty to the offences set out in the "Facts Sheets" tendered before the presiding Magistrate. Those facts sheets were uncontested. The HCCC has tendered the Fact Sheets in this hearing.
Exhibit A3 is Fact Sheet H75738163. We set out the following extracts from that exhibit.
Police investigating organised defrauding of the Third Party (CTP) personal insurance scheme identified a firm of lawyers as a suspect and associated with that firm identified an individual Mohammad Lawabnih as a suspect.
Through a lawful telephone interception the police identified a relationship between Mohammad Lawabnih and the Respondent.
On 9 March 2016 Patient A was involved in a motor vehicle accident. She suffered a minor neck/shoulder injury. Which required medical treatment.
Patient A originally saw another GP for medical treatment. She submitted a CTP green slip injury insurance claim. She engaged the services of a lawyer to process her claim. A few weeks later she commenced to see the Respondent in relation to her injuries. She saw him a few times in 2016.
Patient A saw the Respondent once in 2017/18 regarding her injuries and once on 11 March 2019. On that occasion it was because she needed additional reports to be provided for her insurance claim.
On 4 March 2019 the solicitors acting for the insurance company against which Patient A made her claim, wrote to the Respondent requesting a complete copy of the clinical records for Patient A.
On 11 March 2019 police lawfully intercepted a phone call between Lawabnih and the Respondent. The Respondent said Patient A had a "terrible file because she does not attend the surgery." Lawabnih told the Respondent: "Ok then fix her up and that's it." The Respondent asked "You will pay me in the end?" Lawabnih said "Yeah when you finish yeah." The Respondent told him "We will get the IT man. The computer expert, ok."
On 2 April 2019 investigators executed a search warrant upon the medical practice of the Respondent. The investigators collected information including all medical records pertaining to Patient A.
The Respondent's medical practice used a software program called "Best Practice". The program stores records. It allows the users to create appointments and keep medical records. An analysis of the records showed that consultations were held for Patient A with the Respondent on six occasions in 2018 and one occasion in 2019. Those consultation records were all created on 12 March 2019 during a 20 minute period under the Respondents personal computer access log in. Further a backdated prescription was created. The medical history was fabricated and done without the knowledge or consent of Patient A and done at the request of Lawabnih. The medical history was created for the purpose of bolstering Patient A's injury claim making her injuries appear worse than they actually were.
When viewed in its entirety the above circumstances show that the Respondent and Lawabnih attempted to defraud the insurance company by overstating the purported injuries sustained by Patient A.
On 2 July 2020 the Respondent attended Bankstown Police Station where he was placed under arrest.
The personal financial advantage to be obtained by the Respondent was limited to a consultation fee.
Exhibit A4 is Fact Sheet H74919032. We set out the following extracts from that exhibit.
At the time of the offence, Patient B was a 29 year old student studying in Australia at Griffith University as a Student Visa Subclass 500 where he was subject to a number of conditions. Two of those conditions were that he was to meet course requirements and to inform his provider (Griffith University) of his current address.
As part of the course participated in by Patient B he was to participate in a 40 week English Language Intensive Course for Overseas Students. Payment for this program was broken into two payment periods. The first payment period was paid for in full and covered the period of 3 September 2018 to February 2019. His second payment was due on 28 January 2019. Patient B did not make that payment.
A telephone conversation was lawfully intercepted between Patient B and Lawabnih. Lawabnih told Patient B to have his wife attend upon the Respondent's medical practice and collect a medical report.
In a further intercepted telephone conversation between Patient B and Lawabnih, Patient B was asked what he needed the medical report to state. Patient B said he would like the report to state that he has seen the doctor two or three times and that from 5 January to the end of March (2019) he was unavailable to attend University. Patient B told Lawabnih he had asked the doctor about psychological issues and was told he would need to go to see a psychiatrist. Lawabnih said he was seeing the doctor tomorrow and will speak to him about it.
On 27 February 2019 a telephone call between Lawabnih and the Respondent was lawfully intercepted. In that conversation the Respondent asked "exactly what are we going to write in it?" Lawabnih said: "that he is from the first month until this month that he needs to see a psychiatrist and his psychological state is tired, problems, he has problems." The respondent asked whether this was "so that they don't charge him for the…." Lawabnih said: "yes, yes, for the period that has gone, that's all." The Respondent also said: "yes and he didn't come and we need to make it that he did come and the IT man will do it." Lawabnih said: "yes he came twice." The Respondent said: "He only came once man." Lawabnih said: "Now don't worry, see, fix it, see how you are going to fix and let me know, I don't have a problem." "They will have them put for you in and envelope, alright." The Respondent said: "Alright, alright."
In a telephone intercept on 27 February 2019 Lawabnih told Patient B to have his wife put money in an envelope and hand it over to the doctor (Respondent) when she collects the report.
On 28 February 2019, Patient B submitted a medical certificate signed by the Respondent to Griffith University. The certificate was presented to explain absences from class by Patient B. The certificate further stated that Patient B suffers from recurrent migraines and is now on medication to control those migraines. In addition, the certificate said that Patient B had been referred to a psychiatrist and was unable to study from 7 January 2019 to 30 March 2019.
Following on the report provided to Griffith University by Patient B, he was exempted from five weeks of tuition fees which equated to $1650.
On 2 April 2019 a search warrant was executed at the Respondent's medical practice in Bankstown. During that search patient files were seized. Patient B's medical records showed Patient B attended the practice on 18 January 2019 for an eye problem. There is no mention of any psychological or migraine issues. The entry was completed by the Respondent. The next entry is dated 26 February 2019, with a note added by the Respondent "wife came in asking for report stating ML will pay." A further entry on 27 February 2019, added by the Respondent, stated that it was the fifth consultation for psychological and migraine issues with Tramadol being prescribed and a medical certificate issued.
On 27 February 2019 a message was sent from the Respondent to Lawabnih requesting the date of birth and spelling of Patient B for the report. That information was provided. The Respondent then asked what dates needed to be covered. Lawabnih stated: "January until March." The respondent then responded "that is done."
On 2 July 2020 the Respondent was placed under arrest.
The personal financial advantage to be obtained by the respondent was limited to a certificate/report fee.
Exhibit A6 is a copy of the transcript taken from the Local Court proceeding on 9 December 2020 when the Respondent was sentenced in relation to the two charges he faced. He entered a plea of guilty. In that transcript the HCCC drew to our attention to certain portions of the sentencing submissions of counsel for the Respondent and remarks made by the learned presiding Magistrate. We note the following from that evidence.
Counsel for the Respondent informed the court that the only fee received by the Respondent for the work performed in relation to Patient B was a fee of $50 for a consultation.
The Magistrate set out the Respondent's personal history (which we will refer to later in these reasons. There is no issue about those circumstances.) She then addressed the offences and the seriousness of same as they appear to have been part of an orchestrated scheme involving "enablers", doctors and lawyers, to defraud insurance companies arising from alleged motor vehicle accidents. M. Lawabnih was identified as an "enabler".
"So these are serious charges, particularly the charge of attempting to obtain financial benefit by deception when at the request of this third person and enabler that he created an embellished medical record to help the lawyers who were part of this larger fraud, clearly in breach of ethical standards as well as the general law, and that also in February he made a false medical report that assisted another man, a migrant. This was clearly a thought out false medical report because in intercepted conversations he asked another person: "what are we going to write in the report?" And eventually he did write a report that falsely said the student had been suffering from migraines for a couple of months when that apparently was not true. There was no basis for it and (the Respondent) clearly knew that he had made that up."
The Magistrate noted that there is no evidence of any uncharged other offences and the police had been investigating this matter for some time.
The Magistrate noted there is no criminal conviction as part of the Respondent's antecedence.
The Magistrate said: "So when I consider the sentence I take into consideration the general concern of deterring fraud in the community; that there is a need for a sentence that deters not only other professionals but persons generally trying to defraud institutions and especially white collar workers who understand what they are doing" (our emphasis).
In the hearing the prosecution sought a custodial sentence. It was submitted that an aggravating feature was that (the Respondent) had abused a position of trust in that doctors are in a position of trust in the community. They provide documents that are relied upon by the community at large.
The Magistrate said: "What Dr Hatoum did was clearly part of a planned organised activity. He knew that he was being required to provide reports for insurance purposes although there is no evidence he knew of the wider web of activity by lawyers, other doctors and the person who approached him about it."
The Magistrate formed the opinion, based on the evidence before her, that the respondent is unlikely to reoffend. She noted the early plea. She noted that the Respondent had undertaken to assist the Prosecution in the prosecution of the intermediary who approached him in relation to the insurance fraud.
The Magistrate declined to take into consideration the extra curial punishment that the respondent had received as a result of being suspended from medical practice.
The Magistrate imposed a fine of $1000 and a conditional release order with conviction under section 91A for a period of 18 months with standard conditions.
Given that there is no issue taken by the Respondent to the facts relied upon by the HCCC, to establish Complaint One, the emphasis in this determination has been on the nature of Protective Orders which the Tribunal should impose. To that end the Evidentiary Certificate forming part of exhibit A1 and also, exhibit A7, contains important information.
The Evidentiary Certificate which appears at Tab 3 of exhibit A1, informs us of the following evidence.
The respondent was granted conditional registration as a post graduate intern in New South Wales on 4 January 1994. Between January 1995 and August 1999 the Respondent was granted general registration as a medical practitioner.
Between 6 August 1999 and 27 May 2003 the Respondent's name was removed from the register due to orders of the Medical Tribunal of New South Wales. That followed a finding of professional misconduct.
Between 28 May 2003 and 20 June 2005 the Respondent was granted conditional re-registration. That registration was subject to conditions.
Between 21 June 2005 and 30 June 2010 the Respondent was granted general unconditional registration in New South Wales.
Exhibit A7 is the Evidentiary Certificate provided by AHPRA & National Boards. That certificate continues the evidence of the Respondents registration as a medical practitioner from 1 July 2010. The certificate establishes that the Respondent was registered as a medical practitioner between 1 July 2010 and 31 July 2020 when his registration was suspended.
Exhibit A7 also provides evidence that between 20 August 2013 and 9 September 2014 the Respondent had conditions imposed on his registration which included: "Not to consult, treat, interview or examine any female patient unless a Medical Council of New South Wales approved female chaperone is continuously present."
The Certificate concludes with a notation that on 31 July 2020 to the current date (9 May 2022) the Respondent's registration is suspended.
The HCCC tended as exhibit A5 a document being a copy letter sent by the HCCC to the Respondent and dated 7 April 2021. This letter outlined the case which the HCCC proposed to bring in this Tribunal against the Respondent. This document was tended to replace one of the documents which formed part of Exhibit A1 and which had been withdrawn from that exhibit by the HCCC.
Included at Tab 6 of exhibit A1 is the "Written Reasons for Decision Dated 7 September 2020" provided by the delegates of the Medical Council of NSW which imposed the suspension order on the registration of the Respondent on 31 July 2020. Part of those reasons included a reciting of evidence provided in relation to complaints made about the Respondent's practice as a medical practitioner and the action taken by the Medical Council in relation to same. We note the following evidence set out in those reasons.
During 1996 and 1997 five complaints were made by patients alleging inappropriate sexual behaviour by Dr Hatoum. In 1999 the Medical Tribunal considered three of these complaints. Three female patients asserted that Dr Hatoum displayed overt and inappropriate sexual conduct during their consultations and made unprofessional sexual comments to them. Despite Dr Hatoum's strong denial of the allegations, the Medical Tribunal accepted the evidence of the three complainants. In the Tribunal's reasons they noted: "There has been no acknowledgement of his actions as constituting gross breaches of his obligations to his patients."
In his application for re-registration the Medical Tribunal permitted him to be registered with conditions. In its determination the Tribunal noted that Dr Hatoum continued to refuse to admit his misconduct.
In 2011 and 2012 complaints were made by two patients, alleging sexual misconduct by Dr Hatoum. The first complainant alleged that Dr Hatoum asked inappropriate questions of a sexual nature and performed an inappropriate vaginal examination during which he asked, "does this feel good?" The second complainant alleged that during the consultation Dr Hatoum touched her inappropriately, kissed her, removed her shirt and bra and put his mouth on her breast and said: "I can give you lunch", while pointing to his penis. Having established that the complaints were made out, the Medical Council, pursuant to section 150, imposed conditions on the Respondent registration which included that he attend a counselling interview at the Council in relation to the complaints.
The Medical Council noted another complaint made in March 2011 and in June 2013 where no action was taken against the Respondent.
The Medical Council noted the Respondent's statement that he has not had a boundary crossing notification since 2013. "He ensures he keeps physically distanced from patients by placing the patient on one side of the desk and himself on the other. He said he doesn't see any unaccompanied female patients."
The decision then dealt with the charges which had been laid against the Respondent (as detailed above). Some evidence was provided by the Respondent and other questions asked of him he declined to answer on legal advice. (We note this hearing took place before the sentence of the Respondent in the Local Court on 9 December 2020.)
In the final paragraphs of its' decision the Medical Council set out the following: "In these circumstances the delegates consider they have formed a reasonable belief that it is appropriate to take immediate action in the public interest. The allegations against Dr Hatoum are significant and go to the heart of public interest considerations. They impact on the reputation of the profession, and on public confidence in the profession and the regulation of the profession. As was noted in Crickitt, "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." [56].
The HCCC included at TAB 8 of exhibit A1 all the documents tendered in the hearing before the Medical Council on 31 July 2021. We have had regard to those documents which provide, inter alia, detail of the earlier complaints made against the Respondent.
The HCCC included in exhibit A1 at Tab 17 a copy of the Medical Board of Australia "Good Medical Practice: A Code of Conduct for Doctors in Australia." March 2014.
The HCCC relied upon exhibit A2 which contained a copy of the decision given by the Medical Council on 21 February 2022 in relation to a hearing pursuant to an application by the Respondent under s150A of the National Law. The HCCC also included in this exhibit a copy of the transcript from that hearing.
In the Reasons provided by the Medical Council and published on 21 February 2022, we were referred to passages by the HCCC in submission. We noted the Medical Council referred extensively to the evidence of Dr Anthony J Pignataro, who also provided oral evidence before us. We will refer to the evidence of Dr Pignataro later in these reasons.
Whilst acknowledging having read the determination of the Medical Council made following a hearing in January this year, we note we are not bound by that determination and we are required to make our own findings and conclusions based upon the evidence we have accepted in this hearing.
The oral evidence of the Respondent, recorded in the hearing conducted on 22 January 2022, is relevant to our determination. In that evidence we had portions of the transcript brought to our attention by the parties in their submissions and we noted the following.
In relation to the offence involving Patient A the Respondent said: "Again, I repeat, that was a grave error of judgement, but I would like to say that at no stage did I do this in order to enrich myself in any way, shape or form, it was simply an error of judgement in an effort to try and assist this young lady who was having a hard time, she had been to hospital not long before I did that, (the offence) with a panic attack and pain associated with the accident. If I may add that these consults that I entered were never invoiced to the insurance company or to Medicare, they were simply entered into the file in order to assist me to write the report, which was to happen in the future. Again, I should not have done it, I did it in an effort to try to assist this young lady who I felt sorry for and, I should not have done it."
When talking about the "enabler" Mr Lawabnih, the Respondent said: "You know, he is the one that introduced her to me, and he requested that I assist in every way possible. The mistake is not his, the mistake is mine, I own up to it, I made the mistake, I sincerely apologise for it, I am not trying to shift blame or anything like that, it is purely, you know - … I should have known better, my relationship with him should have been handled better, and I should not have done what I did."
Still further in relation to Mr Lawabnih the Respondent said: "he was the business development manager for the next door physiotherapy clinic, so he came to see me with a card and I gave it to the police as evidence in the trial that I was a witness against him"….. "he basically came and requested a meeting and saying, "look, we have a lot of clients, some of them don't have a GP, some of them have a GP but some GPs don't deal with CTP or workers compensation, would you be happy to look after some of our clients? And that is how our relationship developed, and then he started referring clients to me, and I tried my best to assist all these clients."
The Respondent said: "There were about 30 to 40 clients that were referred to me to manage their workers compensation or CTP claims…That was over a period of two to three years."
"Initially I thought it was a great working relationship, he would refer lots of clients to me. 90% of them, if not more, we're all male patients, relatively easy, they were in their rehabilitation phase of their claims. Then he started referring new clients. It was an area of some interest of mine. I thought it was very good and that I am also developing more expertise in managing these workers compensation and CTP claims, and I thought it was a very good working relationship."
The police "Took the records of every patient and every invoice that I have seen for the last 20 years. They specifically were looking for these 30 also. They had a list of the names for clients of ours."
The HCCC read the following passage from the transcript to the Respondent's psychologist during the time he was giving oral evidence before us. "Ms Robinson: I mean, it's sort of pretty assertive, let's say, way of talking to you, isn't it? Telling you to fix things. I mean he is not your patient and what role does he have, in relation to your management of your patient? I mean, do you feel that you were sort of bullied by him? Dr Hatoum: Again, I don't want to blame him, the mistake is mine, but the relationship did develop in such a way, I sort of felt obliged, maybe bullied is a way of doing it, but I don't want to be putting myself as the victim here of his schemes. I made the mistake. I own up to it. I should not have done it. My relationship with him probably became unhealthy towards the end of our relationship. We both came from a refugee background, the same Palestinian refugee background, and a lot of the clients were a very similar background and I initially felt that, "oh, look, we are both pushing the same wheelbarrow here trying to assist the clients." I felt good about it, and I thought I was doing a great job. And then I fell into the trap of making a stupid mistake prompted by him, but it was my doing, my decision alone, to make this stupid mistake in an effort to try and assist. Please, I want it to be absolutely crystal clear, at no stage did I try to enrich myself from this scheme or from this falsification of records."
Much of what was said by the Respondent in his evidence before the section 150A hearing has been said before us. As a result we will not quote further from the transcript of that hearing. Suffice to say the Respondent stated over and over again his personal ownership for the actions he took as a medical practitioner, which gave rise to the offences for which he was convicted. He acknowledged that the actions were not the actions of a medical practitioner acting properly and ethically and were misguided.
The Respondent's written evidence was contained in exhibits R1, R2 and R3.
In exhibit R1 the Respondent provided his own statement dated 11 April 2022. That statement is lengthy. We will not repeat history which has already been set out herein. We noted the following evidence of the Respondent in that statement: 1. Between 1995 and 2000 the Respondent practised as a general practitioner full-time. (We note the cancellation of the Respondent's registration occurred in August 1999 as set out earlier.) Between 2004 and 2007 he practised as a career medical officer in the Emergency Department of Fairfield Hospital. In 2005 he passed the exams to be admitted to the Fellowship of the Royal Australian College of General Practitioners. 2. Between 2007 and July 2020 the Respondent practised as a GP in his own medical practice. 3. The Respondent addressed the Complaint raised by the HCCC in this matter. He set out that he had been convicted of two offences on 9 December 2020. He offered assistance to the Police in the prosecution against Mr Lawabnih. The Police provided a letter to the Court advising of that assistance. In May 2021 the Respondent gave evidence in the trial of Mr Lawabnih. 4. The Respondent said he had been honest in his evidence to the s.150A hearing. He adheres to that evidence. 5. Since 31 July 2020 the Respondent has reflected upon his conduct which led to the conviction and sentence he received. He has engaged in education directed to issues with his conduct and he has engaged intensively with a psychologist. That has given him insight into why he acted the way he did giving rise to his conviction. 6. The Respondent has completed the following courses during the time he has been suspended. He considers those courses have "armed him with information and skills" to understand and avoid engaging in similar conduct in the future. 7. "On the Record medical records and documentation." (Avant Mutual Group Limited) 8. "Fundamentals of Medical Ethics". (The Norwegian Medical Association). 9. "Ethical and legal considerations in general practice MCQ's". (The RACGP). 10. "Ethics in treating friends, family members and staff." (The RACGP). 11. "Managing boundaries in patients with mental health issues" (Avant Insurance Ltd.) 12. "Common Medico-Legal issues for GP's" (Avant Insurance LTD.) 13. "Managing Difficult Patients" (Australian Doctor Group). 14. "Ethics, Obligations, Knowledge and Skills- Professionalism in Medicine" (Avant Insurance Ltd). 15. Communication and Consent" (Avant Insurance Ltd.) 16. Wellbeing Weekend" (NSW & ACT RACGP Faculty). 17. The Respondent is enrolled in and undertaking the course entitled "Clinical Ethics" which is a full-time course offered by the Faculty of Medicine at the University of Sydney. 18. Since being suspended the Respondent has been able to spend more time with his family. He has been able to care for his young son who is completing high school. The Respondent has enjoyed exercising with friends. He has learnt to swim and has competed in triathlons. 19. The Respondent stated: "I can assure the Tribunal that I understand the significance of my conduct. It was inappropriate and I am disappointed to think that I have damaged the reputation of the profession which I love." The Respondent is very keen to return to work as a medical practitioner.
The Respondent relied on seven (7) testimonials which are very supportive of the Respondent as a person and as a medical practitioner. One of the testimonials is from his wife who is a medical practitioner. Her reference is found at page 60 of exhibit R1. In that reference we noted the following: 1. She had provided a reference dated 8 October 2020. She adhered to the contents thereof. 2. Since the criminal proceeding she has spoken to her husband on many occasions about his conduct. She opined that the Respondent is embarrassed and very disappointed in himself. He is genuinely remorseful for his actions and it is for that reason that he agreed to and did assist the prosecution of the co-offender. In our discussions, he has explained that his motivation at the time was to help and assist people in particular strife but he recognises that he should have maintained better boundaries and he needed more ability to clearly say "No" when required. He accepts that his behaviour was unethical, illegal and damaged his integrity. 3. The Respondent's wife said that she believed the Respondent will not engage in similar conduct in the future. 4. She opined that the Respondent has tackled his issues with amazing resilience. He has taken over roles within the household so that she can increase her work as a medical practitioner. He has participated in charity work. He participates in a charity group "The Fathering Project". He has trained for long distance bike rides and has assisted with fundraising for the charity on a bike ride from Sydney to Canberra. He has organised community soccer teams and bike riding groups and actively participated into men's Bible study groups.
The Respondent included in exhibit R1 a schedule from the 2020 to 2022 Triennium statement for RACGP, which set out all of the continuing professional development courses he has undertaken. The date range is from 7 March 2020 to 30 October 2021. There are 32 activities he has engaged in which have given him 442 points from 127 hours of course engagement. That far exceeds the requirement of the RACGP.
The Respondent included in exhibit R1 all the material he provided to the Medical Council for the s.150A hearing on 21 January 2022.

[5]

ORAL EVIDENCE OF DR HATOUM.

The Respondent gave oral evidence. In his evidence-in-chief he provided the following further oral evidence.
The Respondent lives in Strathfield, a suburb of Sydney with his wife and two youngest sons. His wife is a medical practitioner. His wife had been in the Local Court when he was sentenced for his criminal convictions.
The Respondent said that the Statement he signed on 11 April 2022 was true and correct (Part of exhibit R1).
In relation to the background to the offences for which he was charged the Respondent was asked when he first met Mr Lawabnih. The Respondent said they had met when Mr Lawabnih had been his patient. The Respondent said that Mr Lawabnih was the "go to person" in the Australian/Palestinian community to help people with any problem they may have.
The respondent confirmed that in relation to Patient B, Mr Lawabnih had asked the Respondent to help Patient B by providing a report. The Respondent said he had met Patient B on two prior occasions. On one occasion Patient B saw him for a consultation and on another occasion Patient B had accompanied his wife when she was consulting with the Respondent.
The Respondent was asked for his reflection on the gravity of his action in relation to Patient B. He said: "I am very embarrassed. I should have been very factual in the report rather than being helping to this refugee from Gaza. He could not afford the university fees. I did not think of my position. The history he gave me was that he had seen other doctors."
In relation to the offences relating to Patient A, the Respondent said he had been trying to assist "this poor unfortunate Lady."
In answer to a question: "What is the gravity, do you think, of making up medical records?" The Respondent said: "I made a grave error of judgement. It was a breach of trust. I am very embarrassed. At the time I was trying to assist an unfortunate patient."
The Respondent was asked if he has found working with Dr Pignataro helpful. He responded: "I grew up in a refugee camp. At no time did I get a chance to reflect on my childhood trauma. Anthony was able to help me reflect on my conduct. It was very helpful. Prior to 2020 I had no psychological treatment. After the refugee camp I went to a boarding school for orphans following the death of my father. I have worked hard to get where I am and seeing what I can do to help others. Anthony helped me to reflect on why I have acted the way I have in the past and how I have behaved in certain ways."
The respondent was asked whether he was proposing to continue seeing Dr Pignataro. He said he was and that he would happily attend upon a psychologist. He was asked why the Tribunal should accept that he has changed. He said "I have been shamed. I have let down my family and the community I serve. My wife and I were the only GPs in our practice. We sold the practice because it became too hard to run. (At this stage of the Respondent's evidence he became quite upset and teary. He elected to proceed with his evidence.)
The Respondent informed us that he had received a number of offers of employment should he be permitted to return to practice. He said the offer in a practice at Burwood would be the most suitable for him. He had received two offers of employment from Burwood medical practices. It would largely be for Arabic speaking patients. He speaks Arabic, English and German following his time at the German boarding school.
The Respondent gave evidence of the continuing medical education he has engaged in and other aspects of his life including interaction with his medical practitioner wife and his daughters who are medical students, which has enabled him to maintain his medical knowledge. He has recently commenced a course at Sydney University on ethics and that course will last six months.

[6]

Cross-examination of the Respondent

The Respondent was cross-examined by Mr Bhasin, counsel for the HCCC. We noted the following in that evidence.
The Respondent was asked why he had falsified records for Patient A. He said: "She was a sole mother. She lived some distance from me. I decided to condense the time/consultations I would normally have to do." The Respondent agreed he had changed the medical records for Patient A. He said that was done without her permission.
The Respondent was asked whether he accepted that the request by Mr Lawabnih to change the records or falsify the records for Patient A, was part of a plan. He said he did not understand that at the time. He agreed he knew he was providing a report/information about Patient A for insurance purposes. He said: "I was trying to assist her to receive what she was entitled to receive. It was an error of judgement on my part. It was not my motivation to get a payout. I was requested to provide a report. The final report would provide her with a payment. At no time did I say that the patient had a percentage disability." The Respondent provided further evidence that he had not taken on the role, or seen as his role, any assessment of loss of use of any part of a patient's body (expressed in percentage terms) in a report to an insurance company.
The Respondent acknowledged that had he provided the report for Patient A she would have obtained a financial advantage from same. He agreed that the final report had not been provided because of the police intervention.
The Respondent was shown the "Remarks on Sentence" which appear in Exhibit A6 at page 17. There, the following was recorded: "What Dr Hatoum did was clearly part of a planned organised activity. He knew that he was being required to provide reports for insurance purposes although there is no evidence he knew of the wider web activity by lawyers, other doctors and the person who approached him about it." The Respondent said in relation to the quote: "I was not aware of Mr Lawabnih's involvement otherwise than referring patients to me. It was not planned on my part."
It was put to the Respondent that his action was more than an "error of judgement". He responded: "yes it was an illegal act, unethical and no doctor should do what I did."
In relation to Patient B the Respondent said he had seen the patient on two prior occasions. On one of those occasions he was accompanied by his wife. The respondent said that on the second occasion the patient had told him he was suffering from depression, struggling with university study and anxiety. That was said during the consultation which was primarily for his wife and it was not recorded in the patient's records. The respondent said: "This happens a bit". He was referring to the practice of one patient being seen for a consultation and another patient accompanying him or her. In that manner they only pay for one consultation.
The Respondent was reminded of his evidence of asking Mr Lawabnih what was to go into the report for Patient B, and in light of that evidence it was put that his evidence of what the patient told him during a time that his wife was in consultation with the Respondent was implausible. The Respondent said that when he saw Patient B on the third occasion it jogged his memory about the visit Patient B had made whilst accompanying his wife in a consultation with the respondent.
The Respondent was asked about the intercept of a conversation between Mr Lawabnih and himself, where Mr Lawabnih had requested a report/medical certificate for Patient B. It was put that during that conversation the Respondent had said that Patient B had only seen him on one occasion. It was suggested that his current evidence was contradicted by the intercepted telephone conversation. The respondent said that at the time he was talking to Mr Lawabnih, he was looking at the medical record for Patient B and could see only one consultation recorded. He had not recalled his conversation with Patient B during the consultation between the Respondent and the wife of Patient B.
In relation to the report which the Respondent prepared for Patient B he had written that the patient had been seen five times. He said that he had written the report in a manner which the reader of the report would understand the Respondent was the medical practitioner who had seen the patient on five occasions. The Respondent agreed he had not referred Patient B to a psychologist, he said that was because he knew at the time the patient could not afford it. When Patient B did see the Respondent the patient was not charged for that consultation.
The respondent conceded he had discussed with Mr Lawabnih modifying his medical records to show that Patient B had more consultations with the Respondent then he actually did. The Respondent was asked if he accepted that on 27 February 2018 he had recorded that Patient B had been seen for psychological and migraine. The respondent said: "No. I put it was his fifth consultation. Not confined to migraine only. He did see me for an eye condition and then he saw me with his wife."
The Respondent denied that there was no basis for saying in the medical report or medical certificate that the patient had been suffering from migraines for two months. The respondent said: "I only had what he told me."
The Respondent was taken to the following "from the sentence remarks of the Magistrate in the Local Court where the following was stated: "Eventually he did write a report that falsely said the student had been suffering from migraines for a couple of months when that apparently was not true. There was no basis for it and Mr Hatoum clearly knew that he had made that up." In response to that portion of the sentence remarks, the Respondent said "I accept her conclusion but I did not have an opportunity to give evidence on that occasion. I know he told me he suffered from migraines. I accepted his history."
The Respondent was asked what he had learnt about his conduct through working with his psychologist. The Respondent said: "I understand that as a result of childhood trauma I behaved and reacted in a different manner. I was focused on helping others rather than the consequences to others as a result of same. Such as the University missing out on a fee." The respondent said that the loss of a fee to the University was not something he had thought of at the time he wrote the medical certificate/report. In relation to the report of Dr Pignataro where it said the Respondent suffered from depression the Respondent said: "I don't accept I have endogenous depression but I accept I have reactive depression. I believe my personality had impacted upon my behaviour. I am working to try and improve myself."
The Respondent conceded that at the time he undertook the actions for which he had been charged, he expected he would be paid although he did not charge Patient B a fee. He understood the Insurance company would pay his consultation and report fee for Patient A.
The Respondent was asked about his reference to "the IT man" in communication with Mr Lawabnih. The Respondent said that he had altered the electronic records himself however, he had told Mr Lawabnih that an IT man would need to be engaged to undertake backdating of records in order to discourage Mr Lawabnih asking him to undertake such an action.
The Respondent was asked whether he only regretted his error when he was caught by police. He responded: "I had seven police who went through my computers for 20 years. They took my phone and my wallet. They asked about 30 to 40 of my patients."
The respondent was asked about his previous infractions. The action taken against him in 1999 was raised. It was pointed out that he was found guilty of the complaints raised against him. He was asked whether he denied that he was guilty. The respondent said he pleaded not guilty and he still says that was the case. The respondent agreed that he had told the Medical Council in 1999 that he was an honest man and trustworthy. He agreed in 2003 he had told the Medical Council that he was an honest and trustworthy person.
The respondent agreed that in 2019 (the year of his offending) he was aware of the need to adhere to the highest levels of professional conduct. He agreed that his actions, for which he had been charged, were not honest, trustworthy and beyond reproach. He conceded that there had been no real change in his character between 2003 and the 2019 offending. He said that in 2003 he did not accept guilt in relation to the complaints made against him. In relation to the 2020 proceeding with the Medical Council he admitted and owned the offences he committed. He denied he had not been honest with the Medical Council. He said: "I have been completely honest and I have owned up to it. I saw a psychologist to find out why I have behaved in this way. Obviously I am not perfect and I have made a mistake. I am very sorry for that."
The Respondent was asked a number of questions by members of the Tribunal. In answer to questions the Respondent said: "I agree I made a mistake however it was not for financial gain as I don't need to do it for money. I don't need the money. I did not get paid for the consultation other than the first consultation. I am not trying to minimise the mistake."
The Respondent was asked about the referrals to him from Mr Lawabnih. When he asked the Respondent to alter records or do something which the Respondent knew he should not participate in, he was asked should that have been a "red flag" about the relationship with Mr Lawabnih. The Respondent said: "my whole relationship should have been a red flag. I should have just refused his demands. I was getting some gratification from accepting the patient from him."
The Respondent was asked whether Mr Lawabnih had asked him to do something which the Respondent had refused to do. The respondent said: "yes. He had asked me to backdate medical certificates and I said absolutely no."
In re-examination the Respondent was asked to specify the supports he currently has. He said his wife is a respected general practitioner. She is a great support for him. He meets with four friends every week for breakfast bible group. He has a number of good friends and he has extended family. He spoke of possible work in the Northern Territory and in central Australia with Aboriginal communities. It was something that he and his wife would like to do.

[9]

The Report dated 23 October 2021.

The respondent had been attending upon Dr Pignataro weekly, between 8 September and 21 December 2020. In 2021 he had been seen fortnightly between 3 February 2021 and 18 August 2021. Since August 2021 he has been attending upon Dr Pignataro at monthly intervals. He remains engaged in the treatment and Dr Pignataro opined the Respondent has been a willing participant.
Dr Pignataro reports that the Respondent has developed insight into his past conduct. There has been no evidence of him denying his misconduct or minimising the seriousness of his misconduct. He has demonstrated regret and accepts that his actions have resulted in the possibility of losing his right to practice.
In relation to the likelihood of the Respondent reoffending, Dr Pignataro opined that the Respondent "understands that his behaviour to serve others as a primary means of validation has been detrimental to him. He understands that his past work ethic of trying to assist others beyond what is reasonably expected of a medical practitioner runs the risk of boundary violations and misconduct. He understands that being validated and liked for what he can do for others was a primary source of esteem. This is no longer apparent. He is appreciative of many sources of validation outside of work that include his marriage, children and his Christianity. His obsessive need for validation was magnified in the way he worked to assist others. He worked hard without realising that at times he was going beyond what he could do for others in need."
Dr Pignataro opined there was no indication that the Respondent is a risk to the community in terms of his competency as a general practitioner. He recommended that if the Respondent was permitted to return to practise then he would work well in a group practice. He would be supported by colleagues and such an environment would also act as a guarantor that no further violations occur. Ongoing psychological intervention would also provide a guarantee to ensure that no further violations occur.
At paragraph 13 of his report Dr Pignataro states as follows: "In my estimation, early developmental experiences have been influential in shaping his identity and relationship functioning. Dr Hatoum has a strong desire to be wanted and noticed, which contrasts to the need to be liked and praised….. I do not believe he has fully processed the disturbed attachment disruption that ensued following the death of his father and the subsequent struggle of his mother to raise numerous children on her own."
Dr Pignataro noted that the Respondent had been the youngest in the family and had been sent to a charitable boarding school. This occurred while the balance of his family remained in the refugee camp.
Dr Pignataro further stated in his report: "I believe Dr Hatoum presented to therapy with a persistent depressive disorder co-morbid with vulnerable narcissistic and compulsive personality traits. Such a presentation would not be obvious in terms of disturbed functioning but in terms of his perception of the quality of his life. Individuals with persistent depressive disorder function without concern but often with a negative subjectivity that life could be different. Being busy as a general practitioner fulfilled his emotional void of feeling unwanted but at a cost."
Dr Pignataro reported that the Respondent has developed insight into his past conduct. He stated: "There has been no evidence from him of denying his misconduct and minimising the seriousness of his misconduct. He is aware and accepts that his conduct at the time was incorrect and inappropriate and that caused reputational damage to self and the medical profession. He has demonstrated regret to me and accepts that his actions have resulted in the possibility of losing his right to practice again…… He understands that his behaviour to serve others as a primary means of validation has been detrimental to him. He understands that his past work ethic of trying to assist others beyond what is reasonably expected of a medical practitioner runs the risk of boundary violations and misconduct. He understands that being validated and liked for what he can do for others was a primary source of esteem. This is no longer apparent….. His obsessive need for validation was magnified in the way he worked to assist others…. There is no indication that Dr Hatoum is a risk to the community in terms of his competency as a general practitioner and the skill that he demonstrates as a general practitioner.

[11]

The Oral evidence of Dr Pignataro

Dr Pignataro identified his three reports which were dated 30 November 2020, 23 October 2021 and 31 March 2022. He said to the best of his knowledge they were true and correct. He stands by the opinions expressed in those reports. He said that the Respondent had always been a willing and cooperative participant in the therapy he was providing.
Dr Pignataro had read the FAQ sheets provided to the Local Court for the sentencing of the Respondent and he had read the remarks on sentence delivered by the presiding Magistrate.
Dr Pignataro said his assessment was that the Respondent had insight into the cause of his conduct.
In answer to a question about the impact of the Respondent's childhood experiences upon his development Dr Pignataro said: "It was a very important developmental incident. He arrived in Australia without English and went into year 10 and then on to university. All of this was based on his own self reliance. The murder of his father would have shaped his view of the world. He became self-reliant at a very young age. He presents in a very controlled manner. He sees the world in a very expansive way. He has a sense of belonging which is very important to him. In his early years belonging was very important. He is private, solution focused. In relation to his personal history it took a long time for him to talk openly about that.
Dr Pignataro was asked about his first report where he opined that the Respondent had shown considerable remorse and insight in relation to his actions. He was asked what he based that opinion on. He said: "At the time of the offending the Respondent's primary motivation was to make others happy by having their problems go away. It was that which we see in his offences. He was serving a plan to help others not himself. That behaviour also served as an anxiety defence. His requirement to feel that he belongs was served by helping others as a GP."
In relation to genuine remorse Dr Pignataro said that the Respondent had said that his decisions were wrong. Dr Pignataro opined that he thought there was no risk at all of the Respondent re-offending. He set out his reasons for that opinion. He said there was no evidence of his exploiting patients or being involved for financial gain.
Dr Pignataro was asked if he thought the personality vulnerabilities of the Respondent might lead him to go above and beyond again in the future. Dr Pignataro said that this experience has been a learning experience for him. He said: "I don't believe he will offend again in that way."
Dr Pignataro was cross-examined by counsel for the HCCC.
He was asked about the first report and his diagnosis of persistent depressive disorder, co-morbid with vulnerable narcissistic and compulsive personality traits. He was asked if that was still his opinion at current time. Dr Pignataro said that he thinks the Respondent now has "insight into his personality and the personality traits are no longer as prevalent as when he first began to see me."
He was asked if the Respondent is suffering today from any depressive disorder. He said he may have reactive depression at the moment, because of his concerns about the proceedings, but the persistent nature of the disorder has lifted.
In relation to vulnerable narcissistic and compulsive personality traits, Dr Pignataro was asked if those aspects were still evident today. Dr Pignataro said: "He will have residual features of the traits but none will impact the way it did before." All his needs are still there but they are there in a healthy way. They do not adversely impact his capacity to decide, his capacity to carry out decisions, his capacity to conduct himself. His self-image is not one where he is grandiose. He does not have an inflated image of himself as a doctor. There is nothing which impacts his function.
Dr Pignataro said: "One of his personality traits at the time of the offending suggested that he did not have an active filter which told him that what he was about to undertake was against the law and could put his vocation at risk. His filter was compromised. He was in a relationship with the enabler where he is accommodating the request of the enabler. His filter about what was right or wrong was compromised by the need to please and accommodate. He does have a filter. Back then it was compromised."
Members of the Tribunal asked Dr Pignataro: "What tools have you given him which he can use in the future if he is faced with a similar situation and thereby put his filter at a higher presence in his mind than it did when he was offending?" Dr Pignataro said: "I have highlighted two regulatory mechanisms by which he operates. One he rationalises problems so as to suppress any concerns he has. I have indicated to him that he should be referring to colleagues where there are problems before making decisions which are detrimental to him. He does not have to rely on his own abilities to solve problems when he is feeling overwhelmed with a problem."
Dr Pignataro was asked: "Would his compromised filter continue to operate for a considerable period after the offence to deprive him of the ability to see what he had done was wrong?" Dr Pignataro said he did not think that the Respondent continued to compromise himself on a daily basis. He said: "There was a particular relationship with the enabler which he probably found difficult to manage. I am sure he would have understood he was in a compromised position."
Counsel for the HCCC asked Dr Pignataro: "Given that his filter was compromised at the time he was dealing with the enabler, does that mean that at that time he would not have appreciated that what he was doing was wrong?" Dr Pignataro said: "He knew he was in a situation but perhaps he did not think twice about the seriousness of what he was doing."
Dr Pignataro was asked: "What about a week later. Would he have been able then to realise he had done something wrong?" Dr Pignataro responded: "To understand the psychological structure he was acting in a way to serve the enabler was compromising his ability to act as a GP. He possibly did worry about it a week later."
Part of the evidence of the Respondent in the section 150 A hearing was read onto the record. It recorded answers to questions asked by the members of the Medical Council panel on page 19 commencing at line 34. The questions related to the point in time when the Respondent realised that what he had done was wrong. Dr Pignataro was asked about the Respondents thought process at the time he committed the offences. He said he did not think the Respondent thought about any aspect of what he was doing other than helping the patient at that time. He did not think the Respondent was thinking about the consequences to himself of that action.
He was asked whether the Respondent was able to think about the character of the act he was committing. Dr Pignataro said the Respondent had a great need to serve/help others and not thereby think about the consequences. It is typical of a narcissistic personality. He would not have reflected on what he was doing and that it was wrong. He would not have had that reflective capacity to reflect upon the fact that he had done something wrong. He did not think of fraud at the time of dealing with that patient. He would not have thought of the consequences to him of his actions.
Dr Pignataro was asked whether the therapy he had engaged in with the Respondent was designed to enable him to be able to recognise when he was engaging in activities which were wrong, as in, dishonest. Dr Pignataro said: "We spoke at length about the need to work within the boundaries and his capacity to decide and act appropriately given the circumstances. Not to be coerced by others for whatever relationship they may offer. We spoke about developing an interpersonal style, that he utilises social supports, that he reflects on decisions, he does not make any impulsive decisions. We spoke a lot about his decision-making capacities."
Dr Pignataro was asked if he would describe the actions of the respondent as impulsive. He responded by saying that his actions were "accommodating".
He was asked if he accepted there was a degree of planning in the activities which gave rise to the offending. Dr Pignataro said the Respondent was agreeable to some plan.
The witness was asked to look at page 10 of his first report where the words: "not related to financial gain". He was asked if that statement was based upon what he had been told by the Respondent. Dr Pignataro said: "No. Not at all. He does not have a grandiose notion of obtaining financial gain in order to feel good about himself or develop a sense of self-importance."
Dr Pignataro was asked when it was that he had first seen the police statement of facts in relation to the offences for which the Respondent was charged. He said he would have had the statement around the time that he wrote the first report. He was asked about parts of that statement relating to financial gain. Dr Pignataro said that the Respondent was not there to exploit the patient. He was aware that the Respondent expected to receive a fee for his service. (We note the HCCC clarified that the fee anticipated by the Respondent was the same fee that any patient would have paid the Respondent for a consultation). Dr Pignataro said the Respondent did not have the intent to make a financial gain from the client in any substantial way.
Dr Pignataro was asked if the Respondent had expressed any understanding of the disadvantage that flowed to the CTP insurer. Dr Pignataro said: "He has shown significant regret about the whole process. At times he has had difficulty describing that. I don't think he fully realised the extent at the time of the offending."
In relation to paragraph 11 of the first report, Dr Pignataro was asked: "You expressed an opinion that the Respondent had considerable protective factors." Those factors were set out in that report. He was asked if he thought those protective factors render the prospect of reoffending as lower. Dr Pignataro replied in the affirmative.
Dr Pignataro was asked if those protective factors existed at the time of the offending. He replied: "Yes". He was then asked why those protective factors would have a greater impact upon the Respondent today and mean that he would be unlikely to reoffend? Dr Pignataro responded: "He is no longer under pressure from the enabler." He said in the future the Respondent would be able to use the cognitive resources which he has learned through therapy so that he would not fall into that trap. Dr Pignataro said: "There is no evidence that he exploited any person. There is no evidence of a true grandiose narcissist where he takes advantage of others. His father was murdered. At the age of six he was sent to a boarding school for 9 years. He arrived in Australia unprepared for English and the culture shock. He stepped into a school where he was bullied. He did not know what it was like to be in a relationship which was secure and fulfilling and comforting until he met his wife. That relationship served to secure him and give him a different consciousness and different reality that life can be safe. That people can be trusted and reliable. That he can live with another knowing that he can rely on the other person. He was working with his wife. The bonds that he has are in the practice and outside of the practice. The pressures of the business perhaps did overwhelm him, his reliance on others had slipped away, he did not consider using a mentorship in relation to issues relating to the business. He rationalised his problems and concerns away without really addressing them.
The HCCC asked: "Does he still have that tendency to rationalise problems away?" Dr Pignataro said: "Yes it's very strong he is obsessive. People who are obsessive do not disclose their concerns. It has taken 18 months for me to loosen him up and Dr Hatoum has spoken to me candidly on a number of occasions about aspects of his life."
In answer to questions from the Tribunal. He was asked how long he considered the Respondent should continue to work with him in therapy. He said: "His prognosis is good. He has a lot of insight. He has been compliant with treatment. He has made changes in his life. He has developed insight into those regulatory mechanisms of rationalisation, suppression and altruism. He is committed to seeking treatment beyond today's hearing. I believe in the next 12 months he would be in a better position to be free of those concerns and to be happier with the outcome". Dr Pignataro said he believed he had a good therapeutic relationship with the Respondent.
Dr Pignataro told us he has no concern about the Respondent making clinical decisions. He was confident the Respondent would be able to ethically address a difficult situation. He is confident that the Respondent does understand risk. His capacity has been heightened by his own experience. He is confident that the Respondent could say no to a needy patient who might be asking the Respondent to take some action which is outside appropriate boundaries for GP's. He did not consider the Respondent was vulnerable to offend in other ways.
Dr Pignataro recommended the Respondent continue with therapy to ensure that the behaviours which are changing continue to change and remain in place. He opined that the Respondent would need an additional 6 to 12 months of therapy to meet that aim.
Dr Pignataro was asked why the offending in 1999 and subsequently had not been a learning experience for the Respondent. Dr Pignataro said that the offences were different in nature. They have not re-occurred so there has not been a reoffending of that conduct. We are now seeing him present in a way we have not seen before. This therapy has allowed him to look into his own intra-psychic functioning. By doing that it allows us to know that he is aware now of how he was and how he is. His new level of insight allows us comfort with the idea that he has the support of professionals around him, to allow him to practice in a way that will guarantee him the ability to serve others.
The tribunal asked: 'If we are determined to permit the Respondent to return to practice what would you recommend we consider in terms of supports for him?' Dr Pignataro said: "Working in a group practice. Having a clinical mentor. Working in an area which does not involve managing CTP claims. Continuing with ongoing therapy. Otherwise providing whatever the Medical Council needs to ensure he is practicing as required.
Dr Pignataro was asked what the personal impact upon the Respondent could be if the Tribunal was to determine cancellation . "If it is a cancellation my deepest worry would be a major depressive disorder. Significant family disharmony. Stress. He has had more than 18 month already not practising. A cancellation would be detrimental to him and given his vulnerabilities, vulnerable narcissists are prone to suicidality. I would be deeply concerned that if there were a cancellation, there would be a significant mental health concern and I would have a concern for that family's wellbeing as well. A tight knit family that work together that struggled together and a child with special needs as well. The impact would be felt right across the family unit. That is the worst-case scenario. The best-case scenario is that the Respondent would work with the restrictions which might be placed on him. I am hoping he will be able to return to practice".
Dr Pignataro was asked: "Does the Respondent now have an understanding that his great desire to serve others may be preyed upon by people such as "the enabler" we have heard about in this hearing?" He responded "Yes. He is aware of that and that there must be caution in the way in which he conducts himself to ensure he does not get caught up being asked to go beyond what he can do".
Dr Pignataro said if the Respondent had any doubts or concerns when he was in practice, we would work through those in our sessions. He could also utilise a clinical mentor or a senior supervisor. That would rely on him recognising a concern.
Dr Pignataro said that the Respondent now understands that he has a need to show caution when dealing with others.
Dr Pignataro was asked questions in re-examination. Dr Pignataro said that in relation to being able to recognise and respect appropriate boundaries, he was of the opinion he has developed the ability to do so.

[14]

Submissions of the HCCC

The HCCC provided written submissions which were provided to the Tribunal on the first day of the hearing. In those submissions, which largely addressed the Protective Orders it sought, we noted the following in particular.
The parties have agreed that the hearing will be the determination of both the establishment of the HCCC case and the imposition of any necessary Protective Orders. In this case the Complaint as detailed in the HCCC Application to the Tribunal is admitted by the Respondent.
NOTE: To the extent that it is necessary to do so under the National Law, in this case where there is an admission of guilt by the Respondent, we have considered the evidence, which we have detailed herein and we determine we find the Complaint set out in the Application to have been established to our satisfaction.
The HCCC emphasised in its submission that "in protecting the community the Tribunal must take into account the maintenance of the standards of the relevant profession and the preservation of public confidence in the that profession. [1] "
The HCCC submitted the onus of proof rests on the Commission in this proceeding. It then addressed the application of the "Briginshaw principle".
The HCCC then turned to address the "Power to Suspend or Cancel". It set out the following submission which we include in these reasons: "POWER TO SUSPEND OR CANCEL 14. The Tribunal's power to make protective orders is enlivened where it finds the subject-matter of a complaint to have been proved, or it is admitted by the respondent: s 149 National Law. The Tribunal's paramount consideration is the protection of the health and safety of the public: s 3A National Law. 15. Under s 149C(1)(c) the Tribunal may suspend or cancel the respondent's registration if it is satisfied that he has been convicted for an offence, and the circumstances of the offence render him unfit in the public interest to practice as a medical practitioner. In Health Care Complaints Commission v Russ [2021] NSWCATOD 5, the Tribunal identified the following relevant principles in considering whether the circumstances of an offence rendered a practitioner unfit in the public interest: i. 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 (citing Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]) (at [37]). ii. An assessment of the practitioner's current fitness to practice is required, and is not subject to a requirement of "probable permanent unfitness" (citing Chen v Health Care Complaints Commission [2017] NSWCA 196 at [67]-[69]) (at [38]). iii. The question is whether the circumstances surrounding the offence currently render the practitioner unfit to practice in the public interest. Those circumstances 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 (at [39]). 16. As the Tribunal observed in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [57(7)(f)] (in the context of s 150 proceedings): A consideration of the public interest will always include the need for patients to have confidence … 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. 17. This expectation of ethical conduct finds expression in the Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia" (March 2014) (Code of Conduct) (CD1 tab 7): "Professional behaviour 8.1 In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct." 18. The Tribunal would be satisfied that the circumstance of the respondent's offences renders him unfit in the public interest to practice as a medical practitioner for the following reasons."
The HCCC then submitted each of the offences were intrinsically serious, involving calculated acts of dishonesty that were an egregious breach of the ethical standards required of a medical practitioner and the general law (RoS 15.44-16.12). It further submitted each of the offences involved an abuse of the respondent's position as a medical practitioner, by taking advantage of the public's trust in the medical profession and the presumption that doctors will act honestly. Additionally the HCCC submitted that the falsification of medical records, as occurred with Patient A poses risks to health and safety of patients as such records inform future decision about care and treatment, and may be relied upon by other practitioners.
Finally, in emphasising the serious nature of the Respondent's offending, the HCCC submitted the circumstances of the relevant offending reveal defects of character and integrity, and while reformations of character can occur they are the exception not the norm, with clear proof of reformation required: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [72] (Barrett JA, MacFarlane JA and Tobias AJA agreeing).
The HCCC then turned to address "Protective Orders". Under that heading the HCCC submitted: "If the Tribunal is satisfied that the circumstances of the respondent's offending enliven its discretion to cancel or suspend his registration, whether it should do so involves a matter of degree and judgment. [2] Such an exercise requires an assessment of the conduct itself as well as any remorse or insight, shown by the respondent. [3] As Basten JA noted in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. [4] "
The HCCC submitted that the considerations which the Tribunal would address in determining the Protective Orders to apply would lead it inevitably to a conclusion that cancellation rather than suspension would be the appropriate protective order given the seriousness of the nature of the Respondent's offending.
Further the HCCC submitted the Respondent's "significant professional disciplinary record would be an important matter to consider in the making of a Protective Order. We have referred to that record earlier in these reasons.
Finally, the HCCC submitted we would not lose sight of the need to set a proper level of deterrence to the medical profession in the Protective Order we impose.
The HCCC also addressed submissions to the costs order it seeks. We will refer to those submissions towards the end of these reasons.

[15]

HCCC Oral Submissions

The HCCC also made oral submissions at the conclusion of the hearing before us. In those submissions we noted the following in particular. We do not set out submission which is a repeat of that which we have recorded above.
The HCCC submitted that the Tribunal cannot go behind the conviction when dealing with a case brought under s.149(1)(c) of the National Law. The HCCC referred to the decision in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FLR 313 at paragraph 42, and Sudath v Health Care Complaints Commission [2012] NSWCA 171.
The HCCC submitted: 1. "There is no dispute as to the facts of the offending. The HCCC does not have to establish the facts underlying the conviction. It is put that it was not open to the respondent to seek to explain his conduct in relation to the findings made in the LC on those facts. The questions asked of the Respondent were designed to test the characterisation of his offending. In his answers he sought to depart from the facts which had been agreed below. That is relevant to assess his genuine insight into his offending. To the extent he resiled from the agreed facts that indicates a failure of insight. That is most evident in relation to Patient B involving the provision of a medical certificate. The explanation given by the Respondent was to the effect that his conduct in that provision of the Medical certificate involved an embellishment because he misled whoever was receiving the certificate into thinking he had personally seen the patient on 5 occasions where he had not personally seen him rather he was reflecting the history which had been provided to him by the patient. That differed from the Facts sheet tendered in the Local Court and the finding of the Magistrate were that there was no basis for him including references to migraines and that was false. Thus the submission is that the Respondent has sought to minimise the nature of his offending which is indicative of a lack of insight into his offending. 2. The case run by the Respondent has tended to detract from the seriousness of the offending by the emphasis on the lack of personal benefit which flowed to the Respondent from the offending. That emphasis should not be given excessive weight in circumstances where these offences were intrinsically serious offences, in particular the intention to defraud a CTP insurer. The offences involved calculated acts of dishonesty. In each case there was a discussion between the Respondent and the enabler as to what was required to be done. They were not spontaneous acts of charity in light of the circumstances of his patients. Each required and egregious breach of the ethical standards of a medical practitioner and the general law. The Respondent knew that the fraudulent records would be provided as part of a fraudulent activity. The offence in relation to Patient B was a clearly thought out false medical report because the Respondent asked the enabler what was to be written on the report. 3. Each of the offences involved an abuse of the Respondent's position as a medical practitioner. It was because of his position as a medical practitioner that he was able to facilitate the offence thereby taking advantage of the public trust in the medical profession and the presumption that doctors will act honestly. 4. The operation of the CTP insurance scheme and industry depends almost entirely on the integrity of the medical profession to act honestly in providing evidence upon which the insurance companies might be able to rely. This criminal conduct goes to the heart of the integrity of the profession. 5. Preparedness to falsify medical records poses a risk to the health and safety of the public. Those records are relied upon by other medical practitioners when treating those patients. 6. Circumstances of the offending revealed defects in character and integrity. The authorities refer to the possibility of reformation of character being able to occur however, the Tribunal will require clear proof of reformation. 7. Matters relevant to the exercise of discretion when considering protective orders. The first matter to consider is insight and personality traits.
The HCCC submitted that the Respondent has sought to minimise the seriousness of his offending. It submitted that was revealed most clearly where the Respondent was asked about the distinction between "error of judgement" and dishonesty. He sought to portray or excuse his conduct by describing it as a sense of altruism and concern for patients.
It was submitted that the Respondent has a limited understanding of the concept of dishonesty. That was revealed most clearly where the Respondent was asked about the distinction between "error of judgement" and dishonesty. The Respondent appeared to be suggesting that as he had no intention to personally profit from the transaction it fell into the category of "error of judgement" rather than an act of dishonesty.
The HCCC submitted that the evidence of the Respondent that he did not appreciate that he had done anything illegal until he was the subject of a police raid, illustrates a lack of understanding by the Respondent of the seriousness of his conduct and the concept of dishonesty. It is not adequately explained by pressure imposed by Mr Lawabnih. As such, it is submitted that the Tribunal would have serious concerns about the Respondent's insight.
It is submitted that there is an inconsistency in the evidence of the Respondent in saying that he did not understand he was doing anything wrong and at the same time telling Mr Lawabnih that he would have to get the "IT man" in order to backdate consultations in his records. If he did understand that what he was about to do was wrong, then there is a concern that he went ahead and committed the offence knowing that what he was doing was wrong.
Dr Pignataro spoke of the respondent having enduring traits of rationalisation and suppression when he was breaching appropriate boundaries which means that the Respondent poses a continuing risk that he would not identify when he was breaching appropriate boundaries. Further, all of the protective measures which Dr Pignataro spoke of were in place at the time of the offending.
The HCCC submitted that the Tribunal would have little confidence that there has been any reformation in the character and insight of the Respondent.
The HCCC submitted that the Tribunal would not overlook the Respondent's disciplinary record which is significant. It is submitted that the heavy burden which the Respondent carries to satisfy the Tribunal that he has had a reforming of his character, will be made all the more difficult where there is a history of earlier complaints and action taken by regulatory authorities. The records set out at Exhibit A1,Tab 8C are relied upon in support of this submission. Those records illustrate flaws in the character of the Respondent.
The HCCC drew attention to the counselling of the Respondent in 2014 where he was again reminded of the qualities of integrity and trustworthiness which need to be displayed by medical practitioners. (see ExA1, Tab 8A).
It was submitted that the Tribunal would be concerned that the Respondent has not learnt the lessons which should have been learned through the prior interactions he had with the regulatory authorities.
The HCCC submitted there is a particular need for cancellation in this case because it involves dishonesty and goes to conduct which is really central to the integrity of the profession.
In relation to the evidence of Dr Pignataro of the projected outcome to the Respondent personally should his registration be cancelled, the HCCC said the Tribunal should ignore that evidence as irrelevant. The particular evidence which is referred to in this submission is the possibility of self-harm.
The HCCC did helpfully refer us to the decision in NSW Bar Association v Meakes [2006] NSWCA 340 at paragraph 113. His Honour noted: "The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose."
It was submitted that what falls from that decision is that a protective order should not stray from being protective into being punitive.

[16]

Submissions of the Respondent

The Respondent also provided written submissions at the commencement of the hearing before us. In those submissions we particularly noted the following matters.
The Respondent commenced his submission by recalling that the offending which gave rise to the circumstances he now finds himself in occurred in February and March 2019. He was fined $1000 and sentenced to a conditional release order pursuant to section 9(1)(a) of the Crimes (Sentencing Procedure) Act 1993 (NSW). The terms of the order were that he must be of good behaviour for a period of 18 months commencing 9 December 2020. The sentence, in part, reflected the fact that the Respondent had entered an early plea of guilty and had also assisted police with the prosecution of Mr Lawabnih, the person described as "the enabler".
The Respondent submitted: "It is well understood that the protection of the public is paramount in proceedings involving a breach of the National Law (S3A). However, the legislation is clear that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality" (Section 3(3)(c))."
The Respondent set out details of his background and employment to the date of the offence. He addressed the sections of the National Law which he submitted had application to this determination. He further submitted as follows: "26. Protecting the health and safety of the public is not confined to protecting future patients from the risk of harm; the Tribunal can appropriately take into account matters such as maintenance of standards and the general standing of the profession: see, for example, Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; HCCC v Cheung [2018] NSWCATOD 10. "27. However, any protective orders made by the Tribunal should not result in "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the legislation" (Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88] citing NSW Bar Association v Meakes [2006] NSWCA 340 at [114]). "28. The Tribunal has a wide discretion relating to disposition of a complaint establishing professional misconduct. The circumstances of the particular case will determine the appropriate disposition: HCCC v Karalasingham [2007] NSWCA 267 at [67] (Basten JA). 29. In Aref [2018] NSWCATOD 133, the Tribunal stated: As the paramount consideration is the protection of the health and safety of the public, imposition of restrictions on the practice of a health professional are only to be done in pursuit of this higher objective. Such a determination of necessity and appropriateness are made by considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at [34]."
In support of the submission that cancellation or suspension should not be a protective order which the Tribunal would consider making, the Respondent addressed the heading "Insight". The Respondent relied upon his written and oral evidence to establish the Respondent has expressed genuine remorse for his offending. The references which he provided to the Tribunal are relied upon to evidence that he has expressed remorse to his friends and associates.
The Respondent relies upon the evidence of Dr Pignataro to establish that he has insight and that he is most unlikely to re-offend. Further the evidence establishes, so it is submitted, that the Respondent has shown dedication to reform and repair through the continued and intense therapy work he has committed to with Dr Pignataro.
It is further submitted that Dr Pignataro has been able to re-visit the Respondents horrific childhood experiences and his necessity for self-reliance in his life struggle, to assist him to understand why he has offended and to give him psychological tools to avoid further offending. It is submitted the evidence of Dr Pignataro would be accepted by the Tribunal and in particular his expressed opinion that the Respondent would not present a risk as a medical practitioner.
The extensive number of references provided by community members to the Respondent and tendered in this hearing would be accepted by the Tribunal as evidence of good character.
The submission set out the offers of employment for the Respondent which are in evidence. Further the amount of continuing education having been undertaken by the Respondent shows a significant commitment to remaining up to date with medical treatments and diagnosis.
The Respondent submits that the Tribunal would be able to impose conditions as an appropriate protective order. The Respondent provides the following suggested conditions: Practice Conditions 1. To practice only in a Group General Practice, with at least three (3) other doctors; 2. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 3. To practise under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. The terms of the Council's Compliance Policy - Supervision are varied so that: i. The practitioner is required to meet with his Council approved supervisor monthly; ii. The practitioner is to authorise the Council-approved supervisor to forward reports to the Council (in a Council-approved format) on a 6-monthly basis. b. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with a particular focus on: • Clinical management and patient outcomes • Medical record documentation • Compliance with conditions • Ethics in medical practice c. To authorise the Medical Council of NSW to provide the proposed and approved supervisors with copies of the conditions on the practitioner's registration and of the decision which imposed this condition. d. Not to practise until a supervisor has been approved by the Medical Council of NSW. 4. To attend for treatment by a registered psychologist of his choice. The frequency of the treatment is to be determined by the treating psychologist. The practitioner: a. is to authorise the treating psychologist to inform the Medical Council of NSW of any of the following: i. failure to attend for treatment; ii. termination of the treatment; or iii. a significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating psychologist. 5. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Additional Orders 1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

[17]

The Oral Submissions of the Respondent

Dr Dwyer, counsel for the Respondent, commenced her submission by referring the Tribunal to the recent decision of the New South Wales Court of Appeal Pridgeon v Medical Council of NSW [2020] NSWCA 60 ("Pridgeon") at paragraph 66. There the following words were read onto the record: "The fact that Dr Pridgeon faces serious criminal charges could not, without more, require the Tribunal to take the "significant step" to which it referred. The public interest is not obviously served by the suspension of a competent and experienced doctor whose medical skills are not in question and whose services are in demand simply because he has been charged with offences in respect of which he would appear to have a good arguable defence."
The Respondent submits that whilst the circumstances of Pridgeon were different to those faced by the Respondent in this case, in that Dr Pridgeon had not been convicted of the offences for which he had been charged, it is submitted that the words of the Court of Appeal do have application in this case as there is no complaint made against the Respondent about his skill and competency as a medical practitioner.
A submission was made that at the date of hearing before us the Respondent had been suspended from practice for nearly 2 years. That, it is submitted, is a relevant consideration. Had he not been suspended for that period of time, it is submitted that the "public interest" may well have required a cancellation of his registration as a deterrent at the very least. However, it is submitted, that the deterrent aspect of protective orders has been attended to by notice that the Respondent was suspended for a period of two years. If the submission of the HCCC was successful and the Respondents registration was cancelled for two years, then that would mean that the Respondent had been out of practice as a medical practitioner for four years. It is submitted that such an outcome is not in the public interest.
In relation to s.149C(1)(c) a submission is made that the Respondent does not admit that the circumstances of the offence render the Respondent unfit in the public interest to practice his profession.
The Respondent referred us to a number of decisions upon which the Respondent relied. Those decisions are as follows: Health Care Complaints Commission Complaints Commission v Russ [2021] NSWCATOD 5 (Russ); The Council of the NSW Bar Association v EFA [2021] NSWCA 339 (EFA); Health Care Complaints Commission v Hasan [2022] NSWCATOD 52 (Hasan).
In Russ at paragraph 51 the Tribunal said: "51. Where a complaint made under the National Law is admitted, the Tribunal may exercise the powers in Sub-div 6, Div 3 of Pt 8 of the National Law, which include the powers to caution, reprimand and to impose conditions on a practitioner's registration. Given we are not satisfied that the circumstances of the offence render Ms Russ unfit in the public interest to practise, the power to suspend or cancel Ms Russ's registration cannot be exercised: s 149C(1)(c) of the National Law."
In Russ it was accepted by the Tribunal that the offence was committed outside of the practice of medicine (supply of cocaine).
In paragraph 37 of Russ the Tribunal said: "37. Section 149C(1)(c) requires the Tribunal to evaluate whether "the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession". We accept, as the Commission contends, that the term "public interest", which is not defined by the National Law, 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]."
In the matter of Pridgeon the Court of Appeal recognised that the concept of public interest also included the consideration of the benefit of a good doctor exercising their skills in the community.
The Respondent submitted that in EFA at paragraph 5, in dealing with serious misconduct, because the Court of Appeal found that it was not professional conduct which led to the complaint against him. At paragraph 5 and following, the Court said: "5. Conduct that would justify a finding of unfitness to engage in legal practice is not necessarily conduct that must result in such a finding. There is a range of conduct that would justify, but not necessarily result in, such a finding, and there is a range of conduct with respect to which reasonable minds might differ on whether it did, in fact, demonstrate unfitness. Section 297(1)(b) of the Uniform Law is concerned with the capacity of conduct to establish unfitness: [164]. 6. As "poorly judged, vulgar and inappropriate" as the Tribunal correctly found the respondent's conduct to be, the Tribunal did not err in finding that it was not conduct that would justify a finding of unfitness on the part of the respondent. Unfitness is not measured by the objective circumstances of the conduct alone and, on the evidence before the Tribunal, the respondent had engaged in an isolated instance of appalling conduct. There was nothing, on the evidence, to add to the respondent's conduct that would warrant a finding of unfitness for the purposes of s 297(1)(b) of the Uniform Law: [171]-[173]. Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1, referred to."
It Is submitted that the Tribunal will look at the circumstances of the Respondent as he comes before the tribunal now and that the Tribunal would find that the answer to the threshold question posed by s.149C(1)(c) of the National Law, is that the circumstances surrounding the relevant offence do not render the Respondent unfit to practice in the public interest. Further, should the Tribunal be against that submission, it would not then proceed, in the circumstances of this case to impose a cancellation or suspension of the Respondents registration.
It is submitted that at no stage has the Respondent sought to minimise the seriousness of the offending for which he has been convicted. That can particularly be seen in the transcript for the section 150A hearing.
The evidence of the Respondent in the hearing before us, was also submitted to show the acceptance by the Respondent, that his offending was more than just an error of judgment, "it was more than that. It was illegal. It was unethical. It was not becoming of a doctor or any profession". It is submitted that by those words the Respondent was genuinely taking responsibility for the seriousness of his offending.
It is submitted that it is a critical consideration that the Respondent was not motivated by greed. His anticipated reward for his offending action was the receipt of a fee for service which was no greater than that any patient would have been charged. It is submitted that the motivation for the offending by the Respondent in relation to Patient A was to enable that patient to obtain the outcome she was entitled to.
In relation to the offending in the case of Patient B the Respondent submitted that Patient B had not been entitled to Medicare. The Respondent was of the opinion that Patient B was suffering from stress. The Respondent accepts that there was no basis for saying in the medical certificate that Patient B had suffered from migraines for months. The Respondent charged no fee for providing Patient B with the offending medical certificate.
It was submitted that if the Respondent was unfit in March 2019 to practice the Tribunal would find, on the evidence, that the Respondent is fit to practice today. That in part arrives because of the extensive therapy the Respondent has undertaken with Dr Pignataro. It is further submitted that the therapy was very confronting for the Respondent who had to relive significant childhood trauma.
In relation to the support available to the Respondent, it was submitted that his wife, who has provided evidence in this hearing in the form of a reference and who was present in the Local Court at the time the Respondent was sentenced, is a very important ongoing support for the Respondent. She is fully aware of the offending for which the Respondent was convicted and sentenced.
The Respondent also referred to the references which were contained in exhibit R1 and the supportive nature of same. The references support a conclusion that the Respondents skill as a medical practitioner is needed in the community and is respected.
The Respondent submitted that there is clear evidence of reformation of character in relation to the Respondent. That evidence is contained in the reports and oral evidence of Dr Pignataro and of the Respondent himself.
The decision in Hasan and in EFA was drawn to the attention of the Tribunal and in particular the decision of the Court of Appeal in relation to proportionality and intervening consequences for the respondent of the complaints, the convictions, the sentencing and the suspension from practice.
In EFA commencing at paragraph 195 and following, the Court of Appeal said: " 195. The question for this Court is what measure is called for to mark the Court's intolerance of conduct of the kind in question and to convey its intolerance to others who might be tempted similarly to engage in conduct that is demeaning to women and perpetuates unacceptable attitudes. We consider that, notwithstanding (as we have already mentioned) that the objective of disciplinary orders is protective and not punitive, some guidance may be taken from two well established principles of sentencing law: (i) proportionality and (ii) weight that may be given to extra-curial punishment. It is appropriate to note the level of extra-curial punishment (in some respects going far beyond any action the Court could take) that has already been visited on the respondent. This includes: • notwithstanding the non-publication orders, a level of public notoriety and humiliation; • a four year period of anxiety, while the Council's investigations proceeded; • a further period of anxiety since the filing of the Council's appeal; • severe impact on the respondent's mental health, detailed in the reports of Dr Bowers and Dr Nielssen; • the termination of the respondent's marriage and disruption to his family; • a very significant quantifiable cost resulting from the variation in the terms of the respondent's policy of professional indemnity insurance for 2022, with an unquantifiable potential penalty in forthcoming years (already, the annual cost has dwarfed the maximum fine this Court could impose); and • an unquantifiable but real and significant impact on the respondent's practice. 196. Bad as the respondent's conduct was, and deserving of condemnation, so far as the evidence goes, it represents an isolated instance of departure from accepted norms of conduct. It is an instance of the "human frailty" that Kitto J recognised in Ziems and was again recognised by the High Court in A Solicitor. It needs to be seen in proportion to what the conduct has already cost the respondent in personal and emotional, as well as financial, terms. 197. In light of the financial penalty already effected by the respondent's insurer we reject the Council's contention that a fine ought to be imposed. That leaves for consideration the question of counselling. 198. The Tribunal saw no need for an order for counselling and gave its reasons, those being, essentially, that the incident was isolated, that the evidence shows insight by the respondent into his conduct, and that there is no likelihood that the respondent would conduct himself in a similar way in the future. 199. We agree with those reasons. It is notable that, although the Council has proposed, in general terms, that the respondent be required to undertake a course of counselling, it has not put forward any proposal nor identified any suitable course. This Court could not make any order that could reasonably be enforced. 200. The consequence of these conclusions is that, the Council's appeal should be dismissed. The Council should pay the respondent's costs of the appeal."
The Respondent addressed the collateral consequences which flowed from the suspension order made by the Medical Council in July 2020. Those include the following:

He has been without employment for nearly 2 years.
The respondent has not had the protection of a non-publication order.
He has sold his business (medical practice).
He has undertaken treatment with Dr Pignataro.
He has undertaken medical education including courses in ethical conduct.
He will complete a University of Sydney ethical course within six months.
He has continued to engage in continuing professional education and has accumulated 442 points where only 130 points are required.

In relation to the aspect of "general deterrence" it is submitted that can be affected by a decision to return the Respondent to practice with a Reprimand. That action seen as being in addition to a period of suspension which had extended to 22 months at the date of the hearing would be sufficient to satisfy the requirements of section 149C(1)(c) of the National Law.
The Tribunal was reminded of the multiple job offers which the Respondent has received by way of support. Those offers are included in the references in evidence together with the oral evidence of the Respondent. The Respondent will continue to work with Dr Pignataro as he is advised to do so by Dr Pignataro. The evidence being that 6 to 12 months of reinforcing and supportive therapy will assist the Respondent having returned to practice.
It was submitted that the HCCC has failed to address any submissions to the prospect of the Tribunal imposing conditions although clearly it was given the opportunity to do so.

[22]

The term "public interest" is not defined in the National Law.

In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56], cited with approval in Health Care Complaints Commission v Jodlovich [2021] NSWCATOD 127, the Tribunal made the following observations: A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits.
In Chen v Health Care Complaints Commission [2017] NSWCA 186, cited with approval in Health Care Complaints Commission v Jodlovich [2021] NSWCATOD 127, the Court of Appeal set out the following relevant principles when determining the appropriate orders under s 149C(1)(c) of the National Law: (1) "Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct." (per Basten JA at [20]) (2) While s 149C(1)(c) refers to fitness, it does not describe either permanent or temporary unfitness as relevant in enlivening the cancellation power: (Payne JA at [68]) (3) "The statutory language in the National Law does not involve any element of moral turpitude. Unlike the cases relied upon by the appellant here, which all involve some degree of moral culpability, there is no occasion to imply a test of "probably permanently unfit" to reflect an assessment of the character of the practitioner." (Payne JA at [67]) (4) "Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it." (Basten JA at [21]).
In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Basten JA observed: … The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted. (emphasis added)

[24]

Purpose of orders are protective in the public interest and not punitive with respect to the individual.

In Health Care Complaints Commission v Coutinho [2020] NSWCATOD 33 the Tribunal stated: 34. In considering what protective orders are appropriate, the relevant principles are as stated in Lee v Health Care Complaints Commission [2012] NSWCA 80 , where the Court of Appeal held: 20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83] . His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards. 35. The protective effect of an order can operate either in its direct effect on the practitioner, or by acting as a deterrent to repetition, both by the practitioner and as a deterrent to others: Health Care Complaints Commission v Litchfield (1997) NSWLR 630 . (emphasis added)

[25]

Interpretation of 149C(1)(c) is not subject to any 'probably permanent' limitation upon the fitness finding required'.

Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158, Mr Bakarich was a registered pharmacist who intimidated a complainant over a complaint sent to the HCCC over a four day period.
In [62] - [85] the Tribunal stated: Proper interpretation of 149C(1)(c) 63. Section 149C(1) enlivens the power to cancel or suspend a practitioner's registration and provides that, "[t]he Tribunal may suspend ... or cancel the registered health practitioner's registration if the Tribunal is satisfied" of any one of the four matters identified in s 149C(1)(a)-(d). Section 149C(1)(c) provides: 149C TRIBUNAL MAY SUSPEND OR CANCEL REGISTRATION IN CERTAIN CASES [NSW] (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-- … (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 … 64. The parties agree that, as explained by Payne JA in Chen, s 149C(1)(c) is "not subject to any 'probably permanent' limitation upon the fitness finding required": at [69]. 65. In addition, the parties agree that in determining whether s 149C(1)(c) is satisfied the Tribunal must have regard to all the circumstances surrounding the subject offence. 66. While not addressed by either party, in our view the use of the definite article "the" indicates that in assessing whether the practitioner is relevantly unfit to practise, the task required by s 149C(1)(c) must be undertaken by reference to a single offence. If, as here, the practitioner is convicted of more than one offence, the additional offences might constitute "circumstances of the offence", but nonetheless the evaluation of unfitness must be undertaken by reference to "the offence". 67. The Commission did not nominate which of the second offences rendered Mr Bakarich relevantly unfit to practice. We proceed on the basis that the relevant offence is the offence of assault occasioning actual bodily harm. In these reasons we will refer to that offence as the "subject offence". 68. The parties disagree about whether the task of evaluating whether the "circumstances of the offence, render the practitioner unfit in the public interest to practise the practitioner's profession" should be undertaken by reference to the time that evaluation is undertaken, or the time the offence was committed. The Commission contends that that evaluation should be undertaken by reference to the time the offence was committed; Mr Bakarich contends that the relevant time is the time the Tribunal exercises the discretion to suspend or cancel, or not to suspend or cancel, the practitioner's registration. Mr Bakarich submits that it would be an "absurd result" if the evaluation of a practitioner's fitness to practise was made at the time the offence was committed, giving as an example, a practitioner convicted of an offence while under the influence of illicit drugs. He argues that if the interpretation advanced by the Commission were to be accepted, the Tribunal would be required to ignore evidence highly relevant to the practitioner's current fitness to practise, such as rehabilitation undertaken in the intervening period since the offence was committed. 69. It is a fundamental precept of statutory interpretation that legislation is to be construed in context: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. So, too, is the purpose of the legislation: s 33 of the Interpretation Act 1987 (NSW). The objectives of the National Law 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": s 3(2)(a). 70. Focussing much more tightly on s 149C(1), placing s 149C(1)(c) in its immediate context, that is, in the context of the other clauses of sub-section (1), is of assistance in interpreting how s 149C(1)(c) should be construed. Clauses (a), (b) and (d) all appear to relate to a practitioner's status at the time the Tribunal is considering the decision whether to cancel or suspend his or her registration. This is clear from the use of the present tense in each clause. 71. Section 149C(1)(c) is somewhat different, but only to a minor degree. It uses the perfect tense ("has been") in relation to a finding of guilt of an offence but then uses the present tense ("render") in relation to the circumstances of the offence. By using the present tense of the word "render", the provision brings clause (c) into line with the other provisions, all of which refer to the practitioner's current status. 72. The question for the decision-maker seeking to apply s 149C(1)(c), therefore, is whether the circumstances surrounding the relevant offence currently render the practitioner unfit to practise his or her profession in the public interest. Nonetheless, that evaluation has a narrow focus and is to be undertaken solely by reference to "the circumstances of the offence". … Conclusion 131. In exercising the discretion to make disciplinary orders, we are obliged to give paramount consideration to the health and safety of the public: s 3A of the National Law. While the paramount consideration, the health and safety of the public is not the only consideration. As Basten JA pointed out in Prakash, in formulating disciplinary orders the adverse consequences for the practitioner are also relevant. 132. An order cancelling Mr Bakarich's registration will undoubtedly have adverse consequences not only for Mr Bakarich and his family, but for current and future patients of the pharmacies that he and his wife own and the broader community. While as the Commission contends, it is not inevitable that cancellation will mean Mr Bakarich and his wife will not be able to on-sell their pharmacies, we accept that given the regulatory environment in which those pharmacies operate, there is considerable uncertainty about whether they will be able to be on-sold to a third party. The financial consequences likely to be suffered by Mr Bakarich, his former wife and their children, will be significant. Further, while the evidence falls short of establishing that patients who currently use those pharmacies will be unable to access an alternative OTP supplier, we accept that their closure will, result in the loss of a valuable service available to those patients and the community at large. In addition, we accept that the closure of those pharmacies is likely to jeopardise the ongoing viability of the associated medical centre and, if this occurs it will result in the loss of a valuable service available to current and future patients. 133. These considerations weigh heavily against the exercise of the power to cancel or suspend Mr Bakarich's registration. However, the issue of risk remains. We are not satisfied that currently there is no real and material risk that if confronted by an aggressive or demanding patient, Mr Bakarich might as he did with Person C, "snap" and respond aggressively. While the conditions proposed by Mr Bakarich go some way to reducing that risk, unless and until Mr Bakarich has undertaken structured and regular treatment and the success or otherwise of that treatment can be assessed, the risk he poses even with the proposed conditions, while low, is nonetheless unacceptable. 134. Therefore, we have concluded that it is proper and appropriate to make a cancellation order. (emphasis added)
The interpretation that the application of s 149C(1)(c) relates to the practitioner's current fitness to practice is approved in Chen v Health Care Complaints Commission [2017] NSWCA 186: 67. The statutory language in the National Law does not involve any element of moral turpitude. Unlike the cases relied upon by the appellant here, which all involve some degree of moral culpability, there is no occasion to imply a test of "probably permanently unfit" to reflect an assessment of the character of the practitioner. 68. There is no textual basis for the appellant's submission that the "probably permanently unfit" condition provides a "bright line" in s 149C(1) between when cancellation is appropriate and when suspension (or some lesser order) should be preferred. The Tribunal here made an express finding that it was satisfied under s 149C(1)(b) that the appellant was guilty of professional misconduct. Section 149C(1)(b) is to be contrasted with 149C(1)(c). The former does not refer to the concept of fitness at all, whether permanent or temporary. The latter refers to fitness but does not describe either permanent or temporary unfitness as relevant in enlivening the cancellation power. 69. The appellant's submission that the "probably permanently unfit" qualification should be implied into the chapeau of s 149C(1) should be rejected. If inserted in the chapeau, the implied qualification would presumably also qualify a power to suspend which is of its nature finite. Even if the qualification were limited to the cancellation power, such an implication would do violence to each of the sub-sections of s 149C(1), in particular ss (a), (b) and (d) which do not refer at all to the concept of "fitness". Section 149C provides a detailed statutory scheme as to when the cancellation power is enlivened and s 149C(1) provides that, "[t]he Tribunal may … cancel the registered health practitioner's registration if the Tribunal is satisfied" of any one of the four matters identified in s 149C(1)(a)-(d). Three of those sub-paragraphs do not refer to fitness at all and the fourth, s 149C(1)(c), is not subject to any "probably permanent" limitation upon the fitness finding required. 70. The suggested limitation of "probably permanent unfit" in s 149C(1) would also be inconsistent with the separate powers of cancellation in s 149C(2)-(3) where no such limitation applies. The appellant did not justify why the suggested limitation would apply only to s 149C(1), and not also to ss 149C(2) and (3) which also deal with cancellation, nor did she present any arguments to explain how any such limitation might apply in the context of those sub-sections. Section 149C(2)(a) also refers to the concept of "unfit". If this implied condition were to be read into the chapeau of s 149C(2), there would be two separate conditions of unfitness. The suggested implication is inconsistent with the language of the section as a whole. 71. A requirement of probably permanent unfitness is also inconsistent with the statute's contemplation that a practitioner is able to re-apply for registration under s 149C(7). That sub-section contemplates that a practitioner may apply to have the question of whether he or she lacks fitness to practise re-visited. The emphasis in such an application is on the practitioner's current fitness to practise, rather than an assessment of "probable permanent unfitness". (Emphasis added)

[27]

Summary 1 - Meaning of "unfit in the public interest to practise"

In Health Care Complaints Commission v Jodlovich [2021] NSWCATOD 127, the HCCC prosecuted three complaint against Dr Jodlovich: for fraud contrary to s 192G(b) of the Crimes Act 1900, failing to notify AHPRA within seven days of being charged and convicted of a criminal offence and failing to disclose he had been the subject of complaints made to the HCCC. The Tribunal held that all of the complaints were proven and that Dr Jodlovich is unfit in the public interest to practice medicine. In [27] - [32]: Appropriate protective orders Tribunal's powers 27. The objective and guiding principle in s 3A of the National Law is that when exercising functions under that law, "the protection of the health and safety of the public must be the paramount consideration". Under s 149C of the National Law, the Tribunal may suspend or cancel a doctor's registration in certain circumstances. One of those circumstances is where the doctor has been convicted of an offence "and the circumstances of the offence render the practitioner unfit in the public interest to practise . . .": National Law, s 149C(1)(c). 28. Another circumstance which triggers the Tribunal's discretion to suspend or cancel a practitioner's registration is if he or she is guilty of professional misconduct: National Law, s 149C(b). We have found Dr Jodlovich to be guilty of professional misconduct. We must determine whether that finding justifies suspending or cancelling his registration independently of whether he is "unfit in the public interest to practise". We will first consider whether Complaint One justifies suspension or cancellation and then ask the same question in relation to Complaint Three. Does the conviction mean that Dr Jodlovich is unfit in the public interest to practise? Meaning of "unfit in the public interest to practise" 29. When determining whether Dr Jodlovich is unfit in the public interest to practise, we must only take into account "the circumstances of the offence": National Law, s 149C(1)(c). The term "public interest" is not defined in the National Law. In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56], the Tribunal made the following observations: 30. 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. 30. In Chen v Health Care Complaints Commission [2017] NSWCA 186 the Court of Appeal set out the following relevant principles when determining the appropriate orders under s 149C(1)(c) of the National Law: (1) "Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct." (per Basten JA at [20]) (2) While s 149C(1)(c) refers to fitness, it does not describe either permanent or temporary unfitness as relevant in enlivening the cancellation power: (Payne JA at [68]) (3) "The statutory language in the National Law does not involve any element of moral turpitude. Unlike the cases relied upon by the appellant here, which all involve some degree of moral culpability, there is no occasion to imply a test of "probably permanently unfit" to reflect an assessment of the character of the practitioner." (Payne JA at [67]) (4) "Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it." (Basten JA at [21]). 31. The relevant circumstances of the offence include the nature and seriousness of the offence and Dr Jodlovich's motivation for committing the offence including his state of mind at the time. We must determine whether in all those circumstances, Dr Jodlovich is currently unfit in the public interest to practise. 32. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91], Basten JA stated that: The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. … 50. This offence had a devastating impact on the victim, Dr Lyons, and involved dishonest criminal conduct that may bring the practice of medicine into disrepute. Even though Dr Jodlovich's offence did not relate directly to patient safety, public confidence in the high standards of the medical profession should be maintained. The circumstances of the offence, particularly that it involved premeditated dishonesty in relation to the sale of one of Dr Jodlovich's cosmetic medicine businesses, mean that Dr Jodlovich is unfit in the public interest to practise. We consider it appropriate, taking into account all the circumstances outlined above, to cancel his registration and impose a non-review period of one year.

[28]

Summary 2 - Assessment is current rather than at the time of the offence; Circumstances of the offence is broad; Public interest is also broad.

In Health Care Complaints Commission v Muthunesan [2021] NSWCATOD 178: H.PROTECTIVE ORDERS Circumstances render the practitioner unfit in the public interest 84. The Tribunal may suspend or cancel the protective orders if the circumstances of the offence/s render the respondent unfit in the public interest: s 149C(1)(c) of the National Law. The relevant principles were recently outlined by the Tribunal in Health Care Complaints Commission v Russ [2021] NSWCATOD 5: a. the assessment is current rather than at the time of the offences, but is directed at the circumstances of the offence only: "The question for the decision-maker seeking to apply s 149C(1)(c), therefore, is whether the circumstances surrounding the relevant offence currently render the practitioner unfit to practise his or her profession in the public interest. The Tribunal must look back to the circumstances of 2018-19 and make that assessment in the present. Nonetheless, that evaluation has a narrow focus and is to be undertaken solely by reference to "the circumstances of the offence" - at [39]; b. the circumstances of the offence are broad, in keeping with the public protection purposes of the National Law. "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." - at [42] c. the public interest is also broad: "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: - at [37], citing Pharmacy Council v Ibrahim [2020] NSWSC 708; 85. For the reasons set out below, the Commission submitted that the circumstances of the respondent's conviction do render him unfit in the public interest to practice nursing, and the Tribunal should cancel his registration.
In the application of the principles and guidelines falling from the above decisions and references we determine as follows.

[29]

Determination

The determination of this matter causes the Tribunal to grapple with the conflict between the principles of "public interest policy" (see s.149C(1)(c)) and the benefit to the community of having access to an otherwise competent medical practitioner.
Further, where in the findings and determinations of a sentence for a criminal conviction, matters of deterrence to the medical profession and the community at large are included, what part in the formulation of Protective orders does deterrence to the medical profession need to play. In the sentence remarks provided by the learned Local Court Magistrate, we note she used the following words: "So when I consider the sentence I take into consideration the general concern of deterring fraud in the community; that there is a need for a sentence that deters not only other professionals but persons generally trying to defraud institutions and especially white collar workers who understand what they are doing."
In addition to the above matters, we are also faced in this determination, with a circumstance where the Respondent practitioner has been forbidden to practice since 31 July 2020, thus he has been out of practice for a period of almost two years. In this case, as set out earlier, the HCCC are seeking a cancellation order and a restraint against the Respondent being able to apply for re-registration for a period of two years. That would mean a period of almost four years out of practice before he could again apply to the Tribunal. In addition to those four years the Respondent would have to wait his turn before the Tribunal. Currently that would mean a delay of about nine months.
We have also in this matter been concerned about the Respondent's record of complaints made against him and determined by a period of cancellation in 1999 (until re-registered in May 2003). His re-registration was accompanied by conditions on his registration until June 2005. There was a further imposition of conditions on his registration in 2013 following a further complaint. That historical intervention by the supervising bodies of medical practice in Australia, followed complaints about the Respondent's alleged professional misconduct exhibited against female patients.
The offences for which the Respondent was convicted and sentenced demonstrated a different category of professional misconduct. We are nonetheless faced with the presentation of a medical practitioner who has demonstrated prior acts of professional misconduct and unsatisfactory professional conduct, as above set out, and we are clearly faced with determining whether, on balance, he should be permitted to return to practice in the relatively near future or whether his conduct does not permit us to have any measurable confidence that he is capable of conducting himself, as a medical practitioner, in a manner which is expected under the National Law and the Code of Conduct principles published by the Medical Board of Australia and forming part of exhibit A1 in this hearing.
We turn now to apply the principles, which we have outlined above, to the determination of the appropriate protective orders which we consider ought to be made in this case.
We firstly set out our agreement with the submission of the HCCC that: "The offences were intrinsically serious, involving calculated acts of dishonesty that were an egregious breach of the ethical standards required of a medical practitioner and the general law (RoS 15.44-16.12). Each of the offences involved an abuse of the respondent's position as a medical practitioner, by taking advantage of the public's trust in the medical profession and the presumption that doctors will act honestly. Additionally, the falsification of medical records poses risks to the health and safety of patients as such records inform future decision about care and treatment and may be relied upon by other practitioners. The circumstances of the relevant offending reveal defects of character and integrity, and while reformations of character can occur they are the exception not the norm, with clear proof of reformation required: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [72] (Barrett JA, MacFarlane JA and Tobias AJA agreeing)".
We further record here our concern in relation to the offence which involved the Respondent providing a false medical certificate for Patient B. The importance to the community at large, in particular the commercial portion of same, being able to rely upon the correctness of a medical certificate as part of an efficient and productive working society, cannot be underestimated. There are financial consequences which frequently flow from the provision of a medical certificate to an employer. One such example is the payment of sick pay for which the employee is not required to exchange personal exertion or effort (work). It is a funding by an employer to an employee because that employee is not medically fit for work. Thus, it is very important to a functioning society that employers continue to accept medical certificates as evidence that the employee is unfit for work and should consequently be paid as if he/she was fit and attending to their normal working activity.

[31]

Does s.149(1)(c) require the Tribunal to choose "a criminal finding for an offence" being, in this case, one of the offences for which the Respondent has pleaded guilty and consider the other "criminal finding for an offence" he was convicted of, as part of "the circumstances of the offence"? (see HCCC v Bakarich)

We have had regard to the determination of the Tribunal in the matter of Bakarich. Without wishing to express a view on the interpretation in that decision of the words of s.149(1)(c) "a criminal finding for an offence" and "circumstances of the offence", we propose to consider each of the "criminal findings" for which the Respondent was convicted and sentenced individually and also collectively as we consider the circumstances of the offences, as each offence is different in terms of medical practise, and yet each involved patent acts of dishonesty.
As we have set out, the Respondent involved himself in two criminal acts using his position as a medical practitioner to perpetrate each. We accept from the evidence of Dr Pignataro that the Respondent was a vulnerable person at the time of the offending, arising from his exposure to trauma and life in a war zone and a refugee camp. Because of that vulnerability and the standing he held in the Palestinian Australian community, he was drawn into a criminal activity by an "enabler" who was, we accept, unknown to the Respondent, possibly deeply involved in criminal activity involving defrauding insurance companies through fraudulent claims (CTP) for personal injury damages arising from alleged or actual motor vehicle accidents. In order to commit the offence the Respondent had to fabricate his medical records in relation to Patient A. He did that at the request of the enabler and at the time we accept he knew what he was doing was wrong, although we accept, he had not thought through that he was committing a criminal act. We do accept that the Respondent probably did have empathy for Patient A and the fact that her circumstances made it difficult for her to have attended upon him as was required in relation to the rehabilitation of her injuries suffered in a motor vehicle accident. Because of her failure to attend the Respondent did falsify his records so as to portray that she had consultations with him at times when she did not.
We accept that the Respondent did not have regard to the broader consequences of his actions with Patient A, that is that he was being drawn into an orchestrated and significantly large criminal group who were defrauding the motor vehicle insurance industry. However, we do find that he should have been aware of the potential consequences of what he probably saw as a minor infraction of his ethical standards at the time he fabricated the medical records of Patient A.
In relation to the criminal offence which the Respondent committed with Patient B, the Respondent knew he was being asked to write an inaccurate and misleading medical certificate for a patient. He knew what the purpose of the medical certificate was. He knew that the result of the medical certificate, if it achieved the stated aim by Patient B and the enabler, was that an educational facility would be deprived of a fee which had been properly and legally earned.
We accept that the Respondent did feel a high degree of empathy for this patient as the patient's background in certain ways mirrored his own. This patient was from Palestine and had been a refugee. We accept that the Respondent was informed that Patient B was living in Australia pursuant to a visa which had as a condition that he undertake the course in English at the University. Thus, what was presented to the Respondent was that unless he provided the medical certificate then Patient B would be in breach of his visa conditions. Being presented with such a patient with such potentially adverse consequences to him if the medical certificate was not provided, we accept, would have posed a very significant dilemma for the Respondent. Nonetheless, the ability for the Respondent to realise the enormity and consequences of this act of falsification was, we accept, not at the forefront of his mind at the time and may not have been there at all.
Drawing the above findings together we are satisfied that the "circumstances of the offending" at the time the offending took place, would have rendered the Respondent unfit in the public interest to practise medicine. We will turn to consider hereafter whether that is true at the date of this determination or not.
The evidence of Dr Pignataro has been of great assistance to us in this determination. He has outlined his opinion about the emotional and psychological functioning of the Respondent at the time of the offending. He has looked for and said he found the root cause of aspects of the Respondents functioning which led him to be offending in the manner he did. As we have set out earlier, Dr Pignataro opines that the Respondent has changed his thought processes in very significant ways through the intense therapy he voluntarily engaged in with Dr Pignataro since about September 2020. We will consider hereafter whether we can conclude that the Respondent has reformed himself with the benefit of that therapy and if so, what guarantees we can accept that he will not re-offend in the future if permitted to return to medical practise.

[32]

Has remorse and Insight been demonstrated by the Respondent?

The Respondent in both his written and oral evidence expressed remorse for his actions which led to his being charged, convicted and sentenced. When expressing that remorse he used the phrase "an error of judgement". Because of that description the HCCC in its cross-examination of the Respondent tested him on the use of those words and whether he was seeking to minimise the nature of his offending. We have set out that evidence earlier in these reasons and note that when pressed on the use of those words the Respondent made clear that what he had undertaken in the offending actions was "an illegal act, unethical and no doctor should do what I did."
When the Respondent used the words last set out above, in his oral evidence, we observed the Respondent appeared genuine and contrite. We have accepted that the Respondent understood that his action was criminal, unethical and not in keeping with the proper practice of medicine by a medical practitioner.
We have set out earlier the evidence of Dr Pignataro. He expressed his opinion with words to the effect that the Respondent is genuinely remorseful for his actions and the impact it has had upon his family and patients.
We wish to note the importance of the evidence of Dr Pignataro and why we have determined to accept his evidence.
Dr Pignataro was an impressive witness. He gave his evidence in a balanced and measured way as best we could detect. There was no challenge to his credentials. Although being a witness engaged by the Respondent, the number of visits which the Respondent had undertaken with Dr Pignataro suggested to us that he was genuine in his attempt to reform himself. He also expressed in his oral evidence, great confidence in Dr Pignataro.
Whilst we acknowledge it is a difficult task for a treating therapeutic psychologist to give evidence in a case such as this one and give evidence in a measured and objective manner, which does not damage the therapeutic relationship which was firmly based on the establishment of rapport with the patient, we were impressed with the manner in which he was able to highlight some of the Respondent's faults in his personality and his actions and thereafter explain how that had been exposed in their therapeutic sessions. He was as objective a witness, in that circumstance, as could really be expected.
Further we acknowledge that Dr Pignataro has seen far more of the Respondent and had far greater exposure to him than we as a Tribunal would ever have. The number and frequency of sessions which Dr Pignataro has conducted with the Respondent is, in our view very significant in this determination. In our view, the commitment the Respondent has made to continuing therapy with Dr Pignataro supports a conclusion that the Respondent is genuine in his desire to reform and ensure he does not again offend in any manner.

[34]

Reformation. Is there real evidence of reformation in relation to the Respondent which the Tribunal can rely upon?

Dr Pignataro gave evidence which supported a conclusion that the Respondent has probably reformed. We have highlighted the evidence of Dr Pignataro in these reasons which leads us to that conclusion. To the extent that it is necessary to do so we here state that we are satisfied the Respondent has provided real evidence that he has probably reformed. In particular we refer to the following passages from the evidence of Dr Pignataro. We group some of his evidence which touches on this topic here: 1. Dr Pignataro stated that: "Both clinical interview and objective assessment findings do not indicate the presence of risk factors such as impulsivity, manipulativeness, and/or irresponsibility that are associated with the risk of reoffending. Dr Hatoum arrived in Australia as a refugee. His early years were defined by war, the murder of his father, living in camps in Lebanon and being sent to a boarding school as his mother could not cope with raising six children. His early developmental years were shaped and defined by loss." 2. Dr Pignataro reports that the Respondent has developed insight into his past conduct. There has been no evidence of him denying his misconduct or minimising the seriousness of his misconduct. He has demonstrated regret and accepts that his actions have resulted in the possibility of losing his right to practice. 3. In relation to the likelihood of the Respondent reoffending, Dr Pignataro opined that the Respondent "understands that his behaviour to serve others as a primary means of validation has been detrimental to him. He understands that his past work ethic of trying to assist others beyond what is reasonably expected of a medical practitioner runs the risk of boundary violations and misconduct. He understands that being validated and liked for what he can do for others was a primary source of esteem. This is no longer apparent. He is appreciative of many sources of validation outside of work that include his marriage, children and his Christianity. His obsessive need for validation was magnified in the way he worked to assist others. He worked hard without realising that at times he was going beyond what he could do for others in need." 4. Dr Pignataro opined there was no indication that the Respondent is a risk to the community in terms of his competency as a general practitioner. 5. Dr Pignataro reported that the Respondent has developed insight into his past conduct. He stated: "There has been no evidence from him of denying his misconduct and minimising the seriousness of his misconduct. He is aware and accepts that his conduct at the time was incorrect and inappropriate and that caused reputational damage to self and the medical profession. He has demonstrated regret to me and accepts that his actions have resulted in the possibility of losing his right to practice again 6. He was asked about the first report and his diagnosis of persistent depressive disorder, co-morbid with vulnerable narcissistic and compulsive personality traits. He was asked if that was still his opinion at current time. Dr Pignataro said that he thinks the Respondent now has insight into his personality and the personality traits are no longer as prevalent as when he first began to see me." 7. In relation to vulnerable narcissistic and compulsive personality traits, Dr Pignataro was asked if those aspects were still evident today. Dr Pignataro said: "he will have residual features of the traits but none will impact the way it did before." All his needs are still there but they are there in a healthy way. They do not adversely impact his capacity to decide, his capacity to carry out decisions, his capacity to conduct himself. His self-image is not one where he is grandiose. He does not have an inflated image of himself as a doctor. There is nothing which impacts his function. 8. Dr Pignataro was asked whether the therapy he had engaged in with the Respondent was designed to enable him to be able to recognise when he was engaging in activities which were wrong, as in, dishonest. Dr Pignataro said: "We spoke at length about the need to work within the boundaries and his capacities to decide and act appropriately given the circumstances. Not to be coerced by others for whatever relationship they may offer. We spoke about developing an interpersonal style, that he utilises social supports, that he reflects on decisions, that he does not make any impulsive decisions. We spoke a lot about his decision-making capacities". 9. The HCCC asked: "Does he still have that tendency to rationalise problems away?" Dr Pignataro said: "Yes it's very strong, he is obsessive". He said people who are obsessive do not disclose their concerns. It has taken 18 months for me to loosen him up and Dr Hatoum has spoken to me candidly on a number of occasions about aspects of his life." In answer to questions from the Tribunal. He was asked how long he considered the Respondent should continue to work with him in therapy. He said: "His prognosis is good. He has a lot of insight. He has been compliant with treatment. He has made changes in his life. He has developed insight into those regulatory mechanisms of rationalisation, suppression and ultraism. He is committed to seeking treatment beyond today's hearing. I believe in the next 12 months he would be in a better position to be free of those concerns and to be happier with the outcome". Dr Pignataro said he believed he had a good therapeutic relationship with the Respondent. 10. Dr Pignataro told us he has no concern about the Respondent making clinical decisions. He was confident the Respondent would be able to ethically address a difficult situation. He is confident that the Respondent does understand risk. His capacity has been heightened by his own experience. He is confident that the Respondent could say no to a needy patient who might be asking the Respondent to take some action which is outside appropriate boundaries for GP's. He did not consider the Respondent was vulnerable to offend in other ways. 11. Dr Pignataro recommended the Respondent continue with therapy to ensure that the behaviours which are changing continue to change and remain in place. He opined that the Respondent would need an additional 6 to 12 months of therapy to meet that aim.
Dr Pignataro said in his oral evidence that in relation to being able to recognise and respect appropriate boundaries, he was of the opinion the Respondent has developed the ability to do so.

[38]

Will a return to practice now, with or without the imposition of conditions, "maintain the public confidence in the standards of medical practitioners"?

The effect of the evidence of Dr Pignataro is, we accept, that any risk of the Respondent reoffending is small should he be returned to practice now. Further Dr Pignataro opines that conditions imposed upon the Respondent's registration will further contain and minimise that risk.
The Respondent is, on the evidence before us a competent medical practitioner. There is no evidence before us of any complaint which attacked his competency. The complaints have been about boundary crossing with female patients and most recently criminal conduct as particularised in this determination.
The absence of the Respondent from practise deprives the community of a competent medical practitioner. In this case the evidence is that the Respondent has serviced a needy and special section of the community in which he has lived, practiced and socialised. He has the background of having been a refugee from Palestine. He speaks Arabic, German and English. The majority of his clientele were Arabic speaking. His evidence is that many of his patients are financially deprived and have difficulty meeting his ordinary fee for a consultation. They often attend as a couple, each with medical problems and in the hope they will be charged only one consultation fee. The Respondent's evidence to us suggests he is generous with his services for such patients.
The Respondent had his registration suspended on 31 July 2020. He has been out of practice for 1 year and 11 months at the time we are deciding this case.
Conditions can be imposed on the registration of the Respondent if the Tribunal was to enable the Respondent to return to practice forthwith or even if it imposes a suspension of his Registration as part of the Protective Orders.
If the Tribunal was to order a cancellation of the Respondents registration, albeit with an order allowing him to apply again to the Tribunal for re-registration within a short period (say 3 months), that would mean, with the delay experienced in the Tribunal at current time, a hearing date would not be available to him for about nine months from the date hereof. We do not consider the evidence which he could or would place before the Tribunal at that time to support his application would differ in any meaningful way from that which we have seen in this hearing.
The requirement to apply to the Tribunal again for an order permitting him to apply for re-registration following a cancellation period, would probably be costly to the Respondent and possibly have an impact upon his health.

[39]

Could the imposition of Conditions sufficiently contain the possibility of further offending by the Respondent?

The Respondent has placed before us a proposal for conditions he would be prepared to have attached to his registration if he was permitted to return to practice. We have set out those conditions earlier in these reasons. The HCCC declined to provide any draft conditions which it would seek should the Respondent be permitted to return to practice.
Dr Pignataro recommended a condition that the Respondent practise in a group practice so that he has support of fellow practitioners to whom he can turn to for advice should he be challenged with a patient or a dilemma associated with ethical practice or boundary crossing. He also recommended that a condition be imposed which required the Respondent to continue in therapy with Dr Pignataro for six to twelve months after return to practice to assist in cementing the advances which have been achieved by the Respondent through his therapy with Dr Pignataro. We consider that would also allow for the Respondent to have a trusted sounding board for any difficulties which the Respondent may encounter in practise during that time.
As set out earlier, we did receive further evidence from the Respondent, with the consent of the HCCC following the closing of the evidence in the hearing of this matter on 17 May 2022. The Respondent provided evidence that he would consent to an order that he provide the Medical Council with evidence of his completing the course he had commenced with the University of Sydney in ethics.
The Respondent further consented to supervision conditions being entered against his registration if permitted to return to practice. The Respondent proposed the supervision be at category level "C" of the Medical Council of NSW Compliance Policy - Supervision. However, the conditions recommended by Dr Pignataro would be more consistent with category level "B" Supervision. That would ensure the supervisor was at all time the Respondent was practising immediately available at the same medical practice.
Dr Pignataro also recommended that the Respondent does not work in an area which involves managing CTP claims.
We consider that if we were able to impose conditions on the registration of the Respondent to operate upon his resumption of practise, that would be a good protective measure against reoffending by the Respondent.

[40]

What is the possible impact upon the Respondent of having his Registration cancelled for any length of time as sought by the HCCC.

This was a topic which the Tribunal members raised with Dr Pignataro. We have earlier set out the evidence on this matter as follows: "Dr Pignataro was asked what the personal impact upon the Respondent likely to be if the Tribunal was to determine cancellation . "If it is a cancellation my deepest worry would be a major depressive disorder. Significant family disharmony. Stress. He has had more than 18 month already not practising. A cancellation would be detrimental to him and given his vulnerabilities, vulnerable narcissists are prone to suicidality. I would be deeply concerned that if there were a cancellation, there would be a significant mental health concern and I would have a concern for that family's wellbeing as well. A tight knit family that work together that struggled together and a child with special needs as well. The impact would be felt right across the family unit. That is the worst-case scenario. The best-case scenario is that the Respondent would work with the restrictions which might be placed on him. I am hoping he will be able to return to practice."
The HCCC submits that evidence is irrelevant and should not be considered in this determination. We would disagree with that submission and consider it is relevant at least in helping the Tribunal understand the complexity of the personality and psychological makeup of the Respondent. We do not see anywhere in the National Law any provision which excludes from our consideration of such a matter. It raises for our consideration that if there is to be a return to practice by the respondent in the not too distant future, a good supportive environment in which he can work will be very important for him and that may be accommodated by carefully crafted conditions which could only be prescribed by us if we opted for Protective orders which did not include cancellation.

[41]

Conclusion

The question which s.149(1)(c) requires us to answer is: "Is the Respondent now 'unfit in the public interest to practise' medicine?" We conclude, on balance, the answer to that question is "No". We conclude that after a period of suspension, which we propose to impose, and with the supportive conditions attached to his registration, the respondent can resume practise as a medical practitioner fit in the public interest to practice medicine. We conclude that at the end of that period of suspension there is no longer any necessity to deprive the public of the services of a competent medical practitioner which we are satisfied the Respondent is.
The fact that almost two years of suspension, visited upon the Respondent by the order of the Medical Council (no criticism intended), has been in place by the time we are required to make our determination, changes the outcome which we feel would have been appropriate had we had this matter before us in July 2020. Had the matter been before us at that time we would have seriously considered cancellation of the Respondents registration for the period now being urged upon us by the HCCC.
Further, unlike Qasim v Health Care Complaints Commission, [5] we do take into account the actions the Respondent has undertaken in an endeavour to reform himself and his practise of medicine. We accept he has made a genuine attempt to reform, address the root cause of his prior misconduct and to continue to keep himself informed with the development of the practise of medicine.
The dilemma we face in formulating appropriate Protective orders at this time is that the Respondent has already been prevented from practicing medicine for almost two years. Proportionality of imposing a Protective order which recognises that fact, gives rise to different outcome. Further and very importantly in our view, the Respondent has been attending upon Dr Pignataro since September 2020 and we have the benefit of that expert evidence from Dr Pignataro. That presents a very different picture of the Respondent than that which would have been available in July 2020.
We conclude the Respondent is ready to be returned to practise subject to determining what period of suspension we should apply to his registration in our Protective orders.

[43]

The Conditions to be imposed in conjunction with a period of suspension.

The conditions we impose will be very restrictive we accept upon the Respondent. These conditions can be reviewed by the Medical Council at the conclusion of 12 months of practice under the conditions and at the request of the Respondent.
As set out earlier the Respondent suggested conditions which he would be accepting of and which he said, coupled with a Reprimand would be an appropriate Protective order.
There are some significant differences between those proposed by the Respondent and those we propose to impose. The Conditions we propose should be imposed are not prescribed by us to punish the Respondent, rather they are to protect the public and support the Respondent over the next 12 months or so, in the his return to practice and to give him his best opportunity to be able to continue for many years as a good and ethically practising General Practitioner. We recognise that the Respondent has a great deal to offer as a GP. He particularly has a cohort of patients who share the same backgrounds as the Respondent and who can clearly feel comfortable in his presence and have confidence in his skill.
The conditions we consider are necessary to protect the public and support the Respondent's return to appropriate and ethical practice differ to those suggested by the Respondent in the following ways. 1. We propose to restrict the number of hours and days each week that the Respondent can practise medicine. The Respondent seeks no restriction on those matters. We propose that he restrict his days of practise to 5 days per week and no more that 35 hours of practise across that 5 day period. We also propose to restrict the number of patients he treats in any one hour of practise and also the number of patients he treats on any day. The reason we seek such a restriction is to ensure the Respondent is not placed under a pressure of work which restricts his capacity to have at the forefront of his mind, during that practise, the requirements of good medical practice. We also note the stated intention of the Respondent to restrict his days of practise when he returns to practise. 2. We will require the Respondent to report to the Medical Council of NSW, within seven days of the completion of each calendar month, providing detail of his compliance with the above restriction. 3. The Respondent suggests supervision at Category C in accordance with the Medical Council of NSW Compliance Policy. We are proposing to require Category B supervision. The difference between the two categories is that with Category B the supervisor has to be at the Practice whenever the Respondent is working as a medical practitioner. We propose that category of supervision because we require the Respondents supervisor to be immediately available to provide advice should a circumstance arise where the Respondent requires his supervisors opinion in relation to an ethical or boundary issue he is experiencing. Whilst acknowledging Category B supervision will be more difficult to organise than Category C supervision, we do not consider the condition to be excessively onerous upon the Respondent. 4. We propose the meetings with the Respondent's supervisor be every week for the first 12 weeks with monthly reports from the supervisor during that 12 week period. He proposal of the Respondent is that the meetings with the supervisor be monthly with the supervisor being required to provide reports every 6 months. We consider that weekly meetings during the initial stages of the Supervision will be necessary and important to ensure the Respondent is practising appropriately and is not encountering problematic ethical or boundary issues. This is also a protective matter for the public. 5. The matters to be discussed by the Respondent with his supervisor also need to be slightly modified from those suggested by the Respondent. We will target particular areas of practice we consider the Respondent will require the greatest degree of supervision and support. 6. The duration of the supervision period we propose to define as not less than 12 months. We consider the Respondent will require that period of supervision in order to cement the work he has been undertaking and will continue to undertake with Dr Pignataro. 7. In addition to supervision, we will require the Respondent to undertake a mentorship relationship with a mentor of his choice, approved by the Medical Council of NSW. We consider that provision will provide the Respondent with additional and different support to that which will be undertaken by his supervisor. 8. In order to ensure the Respondent does not unintentionally work outside of the restrictions the conditions will impose we will require the Respondent to authorise Medicare Australia to exchange information about his claims upon Medicare which information might allow the Medical Council of NSW to monitor compliance by the Respondent with the Conditions attached top his registration. 9. We will require the Respondent to provide to the Medical Council of NSW evidence of his completion of the ethics course he has commenced with the Sydney University and which he told us he would complete. 10. We agree with the Respondent that the Medical Council of NSW will be the body appointed for the purpose of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 11. We propose that the Respondent attend the Medical Council for a review interview on a three monthly basis or as the Medical Council of NSW directs. 12. We also propose that the Respondent is to authorise the Medical Council of NSW to provide to his Medical Council approved Supervisor and Mentor and psychologist with copies of this decision, the conditions imposed and reports from the review interviews.
In addition to the above conditions, we propose to make Health conditions which we will require the Respondent to comply with. We see those conditions as necessary to support the recovery of the Respondent to a standard of medical practice which is necessary to comply with the "Good Practice Guidelines" of the Medical Council. Of great importance to us is the continued attendance by the Respondent upon his psychologist Dr Pignataro. The Respondent said he would continue to attend upon Dr Pignataro in his evidence.
We propose to impose the following orders and conditions which we consider will act as a further safeguard against repeated misconduct by the respondent and will be protective of the public and maintain confidence of the public in the medical profession as a whole.

[44]

orders 1. The Tribunal having noted the order made by the Medical Council of NSW on 31 July 2020 suspending the registration of the Respondent, the Tribunal now suspends the registration of the Respondent pursuant to s. 149C of the National Law, until 16 August 2022. Upon the conclusion of the order for suspension made herein the following conditions are imposed on his registration. Practice conditions: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 3 registered medical practitioners (excluding the subject practitioner) and where there is predominantly one other registered medical practitioner always on site. 3. To practise no more than 35 hours per week and no more than 5 days per week. 4. To treat, no more than 4 patients per hour or 25 patients in any one day. 1. This condition does not prohibit the practitioner from providing emergency medical services to a patient in compliance with section 139C(c) of the Health Practitioner Regulation National Law. 2. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 1. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a statement of the hours worked, the number of patients seen and the number of hours spent in consultation with his supervisor in the preceding month. 2. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 1. The terms of the Council's Compliance Policy - Supervision are varied so that the frequency of the practitioner's review meetings with his supervisor is to be weekly for the first 12 weeks of the practitioner recommencing practice, with the provision of monthly reports to the Medical Council of NSW during the first 12 weeks. 2. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: • professionalism and professional ethics including the maintaining of appropriate professional boundaries with patients; • recent developments in clinical practice; • workload management; • clinical performance including review of medical records and clinical outcomes. 1. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition and any relevant Council decision or report. 2. Not to practise until a supervisor has been approved by the Medical Council of NSW. 3. To be supervised for a minimum period of one year and as subsequently determined by the Council. 1. To nominate an experienced general practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the Medical Council of NSW. 1. At each mentoring meeting the practitioner is to include discussion of the following: • Personal and/or professional development • Personal and/or medical practice issues as they arise • Personal and/or professional boundary issues • Work/life balance and personal wellbeing 1. To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. 2. To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which imposed this condition and any relevant Council decision or report. 3. To be mentored for a minimum period of one year and as subsequently determined by the Council. 1. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 2. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 3. To provide the Medical Council with evidence of the completion, in a timely way, of the ethics course the Practitioner has enrolled in with the University of Sydney. 4. To attend a Medical Council of NSW's Review Interview on a three-monthly basis or as otherwise directed by the Council. 5. To authorise the Medical Council of NSW to forward copies of the decision which imposed these conditions, and any subsequent Council Review Interview or other reports, and any other information relevant to his health and treatment, to the Council-appointed practitioners and to his treating psychologist. Health Conditions: 1. To attend for therapy by a psychologist of his choice (Dr Pignataro if possible). The frequency of treatment is to be determined by the treating psychologist. The practitioner: 1. Is to authorise the treating psychologist to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change) 1. Must provide the Medical Council of NSW with the professional details of the treating practitioner. Orders: 1. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the National Law 2. Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. 3. The Respondent is to pay the costs of the Applicant as agreed or as assessed.

[45]

Submissions on Costs

No submission was made by the Respondent on the application of the HCCC that the Respondent pay its' costs.
The HCCC provided submission on costs sought by it and set out that the Commission seeks an order that its' costs, as assessed or agreed.
The HCCC submitted that "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. [6] 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. [7] There has been no such conduct here and the Commission should be awarded its costs."
The Respondent has not made a submission on costs however, we accept there has been no concession made that the Respondent should pay all of the costs of the HCCC.
We here set out some decisions which set out legal principles and guidance in the determination of a cost application made by the HCCC in this case.
In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 [42] to [45] the Court of Appeal cites examples of where a costs order may be appropriate. The decision reinforces that the awarding of costs requires the exercise of a discretion by the Tribunal, which discretion is a judicial one and "must be exercised according to proper fixed principles and rules of reason and justice"(Williams v Lewer (1974) 2 NSWLR 91 at 95). Further the court said that "costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party." The court said: "The normal price to be paid for a practitioner's disputing a complaint and loosing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commissions' costs".
In this case the HCCC has not been successful in seeking an order for the cancellation of the registration of the Respondent as a medical practitioner. The Respondent has also not been successful in seeking that the Tribunal only impose a Reprimand as a Protective Order rather than a cancellation or a suspension of his registration.
We accept that the HCCC brought a case which it was required to bring against the Respondent. The actual protective order sought by it was a very small part of the case in terms of the evidence which was placed before us. The order sought by the Respondent was not an over reach in our opinion. As we have said had this case come before us at an earlier time we would have seriously considered a cancellation order.
There was nothing about the conduct of the case by the HCCC which in our view would warrant a reduction in the costs which it should be able to recover in this hearing. The HCCC conducted a case which drew to our attention relevant and important facts. It was of great assistance to us in the evidence it provided and in the testing of the Respondents evidence and that of his principal witness Dr Pignataro.
We propose to make an order that the Respondent pay the costs of the HCCC as agreed or as assessed.

Health Care Complaints Commission v Hatoum

At a glance

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Decision date

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Judgment (46 paragraphs)

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Legislation Cited (6)

Cases Cited (37)

Cited By (1)