Health Care Complaints Commission v Khorami

NCAT Occupational|2022-11-29|Before: Dr J

eld [1997] NSWSC 297; [1997] 41 NSWLR 630 Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 Health Care Complaints Commission v Russ [2021] NSWCATOD 5 Health Care Complaints Commission v Sbirziola [2022] NSWCATOD 118 Health Care Complaints Commission v Sheldrake (No 2) [2017] NSWCATOD 24 Health Care Complaints Commission v Turner [2016] NSWCATOD 163 Health Care Complaints Commission v Wood [2020] NSWCATOD 60 Health Care Complaints Commissioner v Karunaratne (No 2) [2018] NSWCATOD 201 Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242 Independent Commission Against Corruption v Cunneen [2015] HCA 14 Khorami v R; R v Khorami [2021] NSWCCA 228 Lee v Health Care Complaints Commission [2012] NSWCA 80 New South Wales Bar Association v Cummins [2001] NSWCA 284 NSW Bar Association v Meakes [2006] NSWCA 340 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Khorami [2021] NSWDC 760 R v McN [1963] SR (NSW) 186 R v Qutami [2001] NSWCCA 353 Alvares v R, Farache v R [2011] NSWCCA 33 SAS Trustee Corporation v Miles [2018] HCA 55 Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ali Kalantari Khorami (Respondent) Representation: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2021/00200153 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure to any person or entity of the names of the patients set out in the schedule to the complaint or referred to in this decision.

Introduction

On 20 June 2022, for the reasons which the Tribunal then delivered orally, Dr Ali Kalantari Khorami (Respondent) was found to have been convicted of criminal offences pursuant to s 144(a) of the Health Practitioner Regulation National Law (National Law) (Stage 1 hearing). The powers of the Tribunal to suspend or cancel the registration of the Respondent as a medical practitioner pursuant to s 149C(1)(c) of the National Law were thus enlivened. The Tribunal ordered that the proceedings be listed for hearing to determine the protective orders which should be made in those circumstances (Stage 2 hearing).
The Health Care Complaints Commission (Applicant) alleged in its application dated 8 July 2021 that (Exhibit A1 Tab 1): "On October 2018, the practitioner was charged with offences of "aggravated indecent assault" pursuant to s 61M(1) of the Crimes Act 1900 and "administer intoxicating substance with intent to commit indictable offence (indecent assault)" pursuant to s 38(a) of the Crimes Act 1900. The offences were committed at the Woolcock Institute against four patients, being Patients B to E. On 31 December 2018, the practitioner was charged with further offences of "aggravated indecent assault" and offences of "aggravated indecency" pursuant to s 61O(1A) of the Crimes Act 1900. The offences were also committed at the Woolcock Institute against Patients B to E and an additional patient, Patient A. On 9 October 2020, the practitioner was convicted of 22 offences and sentenced to a term of imprisonment of 6 years, with a non-parole period of 3 years and 9 months. The sentence commenced on 25 September 2020 and expires on 24 September 2026, with the non-parole period to expire on 24 June 2024. On 3 August 2020, the practitioner was charged with one additional offence of "aggravated incident assault" pursuant to s 61M(1) of the Crimes Act 1900. The offence was committed at the Woolcock Institute against Patient F. On 15 November 2021, the practitioner was convicted of the additional offence and sentenced to a term of imprisonment of 9 months. The sentence is to commence on 24 March 2024 and expires on 23 December 2024, on which date the practitioner will be eligible for parole. The cumulative non-parole period is 4 years and 3 months."
The Tribunal was satisfied by the evidence adduced by the Applicant at the Stage 1 hearing that the Complaint was made out to the comfortable satisfaction of the Tribunal. The Tribunal's oral reasons for its findings at the Stage 1 hearing do not appear to have been transcribed. In order to better understand the reasons for the Tribunal's decision with respect to Stage 2, we will refer in detail to the facts surrounding the offending conduct of the Respondent which gave rise to the proceedings.
Section 144(a) of the National Law refers to "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". It is not in doubt that the Respondent has been convicted of criminal offences within the meaning of s 144(a) of the National Law.
Section 149C(1)(c) of the National Law provides that the Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if it is satisfied that "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".
In view of the Tribunal's findings pursuant to s 144(a) of the National Law, the provisions of s 149(c) are enlivened. The second element of s 149C(1)(c), namely whether the Respondent is "unfit in the public interest to practise medicine" is thus the focus of current interest.
The Cambridge Dictionary definition of "unfit" is "not suitable or good enough for a particular purpose or activity". The context in which "unfit" finds expression in s 149C(1)(c) creates no obstacle to adopting its ordinary meaning as its legal meaning (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355). The "particular purpose or activity" in this case involves the practice of medicine and the provision of health services.
The Applicant seeks orders that: A the Respondent's registration as a medical practitioner be cancelled pursuant to s 149C(1)(c) of the National Law; B that the Respondent be permanently prohibited from providing health services pursuant to s 149C(5)(a) of the National Law; and C that Respondent not be able to make an application for review of the orders of the Tribunal until 10 years from the date of the Tribunal's orders pursuant to s 149C(7) of the National Law.
The Respondent did not articulate a clear stance with respect to the relief sought by the Applicant. The Tribunal approaches its task on the basis that the Respondent opposes the making of each of the orders sought by the Applicant.

The current proceedings

On 29 November 2022 the Tribunal conducted the Stage 2 hearing of the proceedings. As previously, the Respondent was self-represented, and appeared from the penitentiary in which he is incarcerated.
The documents which became Exhibit HCCC 1 in the Stage 1 hearing were before the Tribunal in the Stage 2 hearing. In addition (HCCC S2-1) the Tribunal had a folder containing a number of further documents upon which the Applicant relied. The Respondent had been served with those documents.
A letter written to the Tribunal by the Respondent and received on 24 August 2022 was received into evidence as Exhibit S2R1. In that letter the Respondent indicated that he wished to rely upon a number of character references which were tendered during his sentencing hearing in the District Court in 2020. Those references are found in HCCC 1 behind Tab 11. The character references were from Dr Masoud Mohammadi, the Respondent's daughter, Aylin Kalantari Khorami, Ana Semnani, Moina Roostaei, Negar Rastgoo and Aida Safarpour Ferenjani.
At the completion of the Stage 1 hearing the Respondent was advised that, as he was incarcerated, and would be at the time of the Stage 2 hearing, the Tribunal would consider favourably any application made by him to have character or other witnesses give evidence without having previously filed a written statement in the proceedings. The Respondent did not seek to call any such evidence at the Stage 2 hearing.

Background to the Stage 2 determination - the Respondent's criminal convictions

In its case outline, under the heading "Seriousness of the conduct", the Applicant referred to the facts and circumstances surrounding the Respondent's offending conduct with each of the 6 patients in respect of whom he was convicted of the criminal offences which gave rise to the present proceedings.
As the seriousness of the offending conduct is a relevant consideration in the context of the Stage 2 hearing, it is appropriate that we record the facts and circumstances with respect to the Respondent's criminal convictions in some detail.
The submissions of the Applicant accurately, and by reference to patient statements, and the remarks of the District Court Judge who sentenced the Respondent in the criminal proceedings, provided a concise and accurate summary of relevant facts, each particular of which was established by the source documents tendered by the Applicant.
The Respondent's offending conduct related to 6 female patients, all of whom were in his care at the Woolcock Institute where the Respondent was then employed as a Sleep Technician. The Respondent was found guilty by a jury on counts relating to 5 of his victims (Patients A to E) and by a judge sitting without a jury on counts relating to his sixth victim (Patient F). The Respondent's appeal against the former convictions was dismissed by the Court of Criminal Appeal on 24 September 2021 (Khorami v R; R v Khorami [2021] NSWCCA 228). The Respondent did not appeal against the convictions with respect to Patient F which resulted from the judge alone trial.
Clause 5 of Schedule 5D to the National Law is concerned with "evidence of other proceedings". Pursuant to clause 5(1)(a), (b) and (f) the Tribunal may receive the findings and sentencing remarks of the District Court Judge who sentenced the Respondent to imprisonment on 9 October 2020 (HCCC 1 Tab 12) if it is "of the opinion that the Judgment, findings, verdict certificate, decision, determination or evidence is relevant to the proceedings". The Tribunal is of the opinion that the sentencing remarks of Flannery SC DCJ of 9 October 2020 are relevant to the present proceedings.
Reliance upon her Honour's findings as background to the present proceedings involves no procedural unfairness to the Respondent. He has been aware of the findings, and evidence upon which they were based, most of which was evidence relied upon by the Respondent in his sentencing proceedings. The Tribunal's task in determining the appropriate protective orders differs materially, in obvious ways, from the task of a Judge determining an appropriate sentence in criminal proceedings. Consistent with the provisions of the National Law, the Tribunal has reached its own findings and conclusions on the evidence before it with respect to the matters which the statute and the authorities mandate that the Tribunal consider in undertaking its task. The reality that the relevant findings were made on the criminal standard of proof, in proceedings in which the rules of evidence applied, and were either unchallenged, or unsuccessfully challenged on appeal, provides further support for the Tribunal's receipt of, and reliance upon, findings made in the Respondent's criminal proceedings.
The fact that the Tribunal's findings with respect to the Stage 1 proceedings were given orally, and are relevant in the Stage 2 determination renders it necessary to record the details of the Respondent's offending conduct, and its impact upon his victims in these reasons. As will be seen, the seriousness of the Respondent's offending conduct, and his impact on members of the public who were under his care, and particularly vulnerable, assume particular significance when it is remembered that the paramount consideration in these proceedings is the health and safety of the public.
Flannery SC DCJ recorded (HCCC 1 Tab 12 p2) with respect to Patient A, who was aged 23, and a patient at the Institute between 16 and 17 July 2018, that at 12.12 a.m. the Respondent came into Patient A's room, rearranged the blankets covering her, and then "placed his hand on her groin or vagina" (count 1). Shortly thereafter the Respondent again entered the patient's room and, whilst speaking with her "touched himself on the penis. He then took her right arm and laid it out with her right hand hanging over the bed. He then placed the blood pressure cuff onto her right hand and fondled his penis with his right hand while holding Patient A's right arm with his left hand" (count 3). Her Honour found that at 3.01 a.m. the CCTV and sleep study were disconnected until 3.19 a.m. When footage and data recommenced, the CCTV camera was pointing upwards towards the ceiling, moving back down towards Patient A at 3.21 a.m. Her Honour found that, at 6.09 a.m. the Respondent again entered Patient A's room "pulled [Patient A's] right arm and stretched it out, then held her right hand with his left hand while fondling his penis with his right hand" (count 4). At 6.11 a.m. the Respondent "moved his groin area directly into [Patient A's] outstretched hand. He then placed his penis in her hand for about 2 minutes, gently thrusting his hips back and forth" (count 5). Shortly after this, at 6.16 a.m., the Respondent "moved to the base of the bed and pulled the covers up, exposing [Patient A's] feet and lower legs. He moved his hips towards [Patient A's] feet and masturbated for a moment" (count 6). At 6.19 a.m. the Respondent re-entered Patient A's room "moved his hips towards her right hand and touched his penis with his right hand at the same time" (count 7).
Patient B, who was aged 16, was a patient at the Institute between 27 and 28 July 2018. Her Honour found that between 10.28 p.m. and 10.42 p.m. whilst Patient B was asleep the sleep study was paused, but the CCTV continued recording. The Respondent entered Patient B's room and "placed his penis in her left hand, where it remained for 2 to 3 minutes" (count 8). After several minutes the Respondent left the room briefly, re-entered and lifted the covers from the bottom of the bed exposing Patient B's legs and feet. The Respondent then "placed his penis on her feet and moved his hips back and forth" (count 9). The Respondent then walked to the top of the bed, then "walked back to the bottom of the bed and placed his penis on her feet again" (count 10). A short time later the Respondent "pulled his penis out and placed it in [Patient B's] hand while he appeared to take her blood pressure. She woke up and he instructed her to pump her left hand into a fist. He then put two of his left fingers on her wrist while fondling his penis with his right hand" (count 11). Between 11.18 p.m. and 11.31 p.m. the Respondent again entered Patient B's room and "placed his penis on her feet again" (count 13). Between 12.29 a.m. and 12.41 a.m. the CCTV and data were paused. When the video recommenced Patient B "was lying on the very edge of the bed with her bottom exposed". Between 1.17 a.m. and 1.33 a.m. the study was paused again. When it recommenced Patient B "was lying in the same position with a towel placed around her bottom". At 1.36 a.m. the Respondent "entered the room again and stood to the side of the bed, leaning against [Patient B's] bottom while he appeared to adjust sensor leads around her face" (count 14). Between 2.53 a.m. and 3.10 a.m. the study and the CCTV were both paused. At about 5.53 a.m. the study and the CCTV were both paused and did not recommence.
Patient C, who was aged 29, was a patient at the Institute on the night of 3 August 2018. Her Honour found that, at about 11.20 p.m. the Respondent entered Patient C's room and "placed his penis in her hand, while appearing to take her blood pressure. He rocked his hips gently in a sexual motion" (count 15). At 12.09 a.m. the Respondent entered the room and turned Patient C "onto her right side so that she was facing him. He fondled his penis while looking at her" (count 17). At 12.11 a.m. the Respondent "pushed himself up against [Patient C's] bottom while he masturbated and fondled his penis" (count 18). A few minutes later the Respondent re-entered the room "shone the torch at [Patient C's] bottom and then placed his right hand on her bottom" (count 19). Shortly thereafter the Respondent "leaned his groin up against her bottom whilst masturbating" (count 20).
Patient D, who was aged 19, was a patient at the Institute for 2 nights between 14 and 16 August 2018. On the second night of Patient D's admission the Respondent was her Sleep Technician. Her Honour was satisfied beyond reasonable doubt that the "cup of orange juice" which the Respondent instructed Patient D to drink "contained oxazepam and temazepam, two different sleeping pills" (count 21).
Patient E, who was aged 29, was a patient at the Institute on 29 to 30 August 2018. Her Honour found that, at about 12.15 a.m., while Patient E slept, "the CCTV camera moved towards the ceiling, so that the bed and [Patient E] were no longer in the frame. The camera remained there until 12.21 a.m. After the camera had been lowered, [Patient E's] position was different and a pillow was in a similar position to where it had been with the other victims". The camera was again moved to face the ceiling between 1.39 a.m. and 2.17 a.m. At 2.18 a.m. Patient E "awoke to feel the offender touching her breasts" (count 22). At 2.54 a.m. the Respondent's hand "moved towards [Patient E's] groin" (count 23). Patient E then felt the Respondent "touching and caressing her vagina in a circular motion over her underwear" (count 24). Shortly thereafter the Respondent "stood next to the bed facing [Patient E] and rubbed his groin area over his pants" (count 25).
For the reasons which her Honour recorded, Flannery SC DCJ found that the Respondent's offending conduct was in the "serious category". Her Honour observed in that regard that "each of the victims spent the night at the Woolcock seeking a solution to their difficulty with sleep, and instead of getting the data that would enable their problem to be diagnosed, they were indecently assaulted or drugged by the person collecting the data, at a time when they were particularly vulnerable, being either asleep or isolated in their room". The facts upon which her Honour based her conclusion with respect to the seriousness of the Respondent's offending conduct were established beyond reasonable doubt before a jury, and not disturbed by the Court of Criminal Appeal.
Her Honour accepted that "the most significant factor here is the offender's gross breach of trust" involving victims who were "vulnerable" and offences which "involved some planning, as the offender manipulated the camera for some of the offences and, in respect of count 21, brought the intoxicating substance with him". The objective facts recounted by Flannery SC DCJ clearly established each of those matters.
Although undisturbed on appeal, and relevant in the context of criminal sentencing, her Honour's evaluation of the seriousness of the Respondent's offending conduct for criminal sentencing purposes does not materially advance the determination of the present proceedings. On any view of it, the Respondent's offending conduct was serious, particularly having regard to the circumstances in which it occurred, matters which assume particular significance in proceedings where the "paramount consideration" is the health and safety of the public.
Flannery SC DCJ referred to the material relied upon by the Respondent at his sentencing hearing. Although the Respondent's absence of a criminal record and other matters to which Her Honour referred were relevant for criminal sentencing purposes, those matters assume very limited significance for present purposes, as it is to be expected that a medical practitioner will, other than with respect to the conduct which may have given rise to disciplinary proceedings pursuant to the National Law, have no criminal convictions, or findings of guilt in criminal proceedings, and otherwise be of good character.
In these proceedings the Respondent did not seek to rely upon the evidence of Dr Seidler, a psychologist who gave evidence on his behalf in the criminal sentencing proceedings. That evidence is found at HCCC 1 Tab 10. Save to the extent that Flannery SC DCJ referred to that evidence, we will not do so. Our approach may not assist the Respondent's case, but we are satisfied that it cannot unfairly affect it.
Flannery SC DCJ accepted that, prior to the offences which gave rise to his sentencing hearing, the Respondent was "a person of good character and that he is well regarded by his family, friends and colleagues". Her Honour further recorded that it was "troubling that he continues to maintain that he was engaging in legitimate medical practise when he committed the offences and that some of the victims consented. This does mean that it is difficult to have confidence that he will not reoffend". As will be seen, two years later, in his submissions to the Tribunal, the Respondent expressed sentiments which are consistent with the thrust, if not the terms, of Her Honour's findings.
Also relevant for present purposes, and reinforced by the statements of the Respondent during the Stage 2 hearing, is that her Honour was "satisfied that if he were to work in a health related area again there is a moderate risk of his reoffending", although, as submitted on his behalf "it is unlikely that he will be in a setting that will allow him to offend in the future. In that event, I accept his risk of reoffending would be lower". The Tribunal does not need to attempt to quantify the magnitude of that risk. Unless the Tribunal is satisfied that any protective orders which it might make would not constitute an unacceptable risk to the health and safety of the public, it cannot make such orders.
That the Respondent expressly disavowed intending to pursue employment in any "health related area", except as a medical practitioner during the Stage 2 hearing also reinforces the significance of her Honour's finding. Her Honour took into account that the Respondent "will almost certainly never practise medicine in this country again and will struggle to find work in a health related field". That finding was not inconsistent with the submissions made to the Judge on the Respondent's instructions.
Flannery SC DCJ's sentencing remarks reveal that the submissions made on behalf of the Respondent found favour in some instances and, in others, although not accepted, warranted close consideration. Nothing which we have discerned from the record of the proceedings in the District Court supports the criticisms of his legal representation in those proceedings which the Respondent articulated before the Tribunal. The Respondent is consistent in that regard. He also does not accept blame for his offending conduct, preferring instead to blame his victims, his former lawyers and the justice system.
Patient D provided a victim impact statement in the criminal proceedings on 17 July 2020. After recounting what occurred to her and the distress which she suffered as a consequence, Patient D concluded her statement by saying: "I have thought about this constantly for almost 2 years and I will recall it for the rest of my life. I was never an anxious person but now I am. I'm scared he may find me and blame me for alerting the police and stopping his actions, and that he will seek retribution against me. I feel I will be constantly looking over my shoulder and it is not fair that I have live like this, when I have done nothing wrong."
Patient E provided a victim impact statement in the sentencing proceedings. After recounting what occurred to her, Patient E referred to her attendance upon a psychiatrist who diagnosed her with Post-Traumatic Stress Disorder who referred her to a therapist, and to the two different medications prescribed to help deal with her symptoms. Patient E described a "6 month manic episode where I accumulated debts and destroyed close personal relationships - an episode that was triggered by acute stress", "falling behind", and being unable to complete a university course.
Patient B's mother provided a victim impact statement describing the impact of the Respondent's offending conduct on her daughter, which included being unable to sleep, being "jumpy", with her mind "constantly returning to memories that were suppressed, but are now coming to the fore", to being prescribed sleeping tablets, regular medical treatment through her GP for her mental health every 1 to 2 weeks, and being "too scared" to attend any formal psychological or sexual abuse counselling.
The victim impact statements are admissible and relevant pursuant to clause 5(1)(g) of Schedule 5D to the National Law. It is readily apparent from the victim impact statements that the Respondent's conduct had a profound and enduring impact on the health of those victims of the Respondent's offending conduct.
Patient F, who was aged 22, was a patient at the Institute on 7-8 February 2018. It was agreed in the Judge alone trial with respect to Patient F's allegations before Weinstein SC DCJ, as Weinstein J then was (R v Khorami [2021] NSWDC 760) at [53] that: "On 7 and 8 February 2018 the accused was the technician assigned to monitor [F] for the evening throughout her sleep study at the Woolcock Institute. Second, it is not in dispute that [F] is depicted in the bed in the CCTV footage - and that the accused is the person who enters the room at various times."
Our earlier observations with respect to the Applicant's reliance upon findings made in the Respondent's criminal proceedings are relied upon in support of receiving the findings recorded by Weinstein SC DCJ with respect to Patient F into evidence pursuant to Clause 5 of Schedule 5D to the National Law.
His Honour found [94] that CCTV footage of 8 February 2018 was "very clear" and recorded the "camera zooming in towards and focusing on the crotch of the complainant" on two occasions, the Respondent entering Patient F's room and putting his "leg and knee up onto the bed and has his crotch just above the complainant's outstretched left hand. He then looks down at his crotch on two occasions. Whilst his knee is up onto the bed he continues to adjust the wires near the complainant's head looking down towards his crotch. He continues this for about a minute and then gets off the bed and leaves the room. I cannot see the accused's crotch making contact with the complainant's outstretched hand."
Weinstein SC DCJ found [95], that after meeting the accused at the Institute Patient F "changed into her pyjamas" and complied with the Respondent's request that she take off her bra "as he said that it would interfere with the study".
His Honour recorded [96] the evidence of Patient F in the following terms: "The accused then asked the complainant if he could hover his hands over her, to which she consented. He hovered his hands from the top to the bottom of her body and stopped at her stomach and said that part was blocked which linked up to her neck. He asked her if she had a neck pain. I note here that Exhibit A-13, to which the accused certainly had access, being a questionnaire completed on arrival at the Institute and which described neck and jaw pain being the physical complaints which might affect the complainant during her sleep study. In any event, the complainant consented to the hovering of the accused's hands. At some point the accused said to the complainant "Do you like sex?" and started asking her about sex, telling her that it releases muscle tension, which the complainant found bizarre. I note that the summary of text communications contained in Exhibit A-14 records text messages from the complainant to her then boyfriend, where she wrote "Please try and stay awake a little longer this place is creepy aha", "Jesus he asked if I like sex" and "He's talking about energy"."
His Honour further recorded [98] that the "complainant recalled waking up during the night on two occasions. On the first occasion she said he was over her head on the side. The accused said that she had been bumping the wires off and that he was readjusting them on her left side. On the second occasion, the accused was over her legs. It was very dark, and he asked her if she wanted him to do pranic healing on her legs, to which she replied no thanks."
Weinstein SC DCJ at [100] found Patient F to be "a candid and honest witness. In my view, she did her best to tell the truth and she made no attempt to embellish her evidence. I accept her evidence."
His Honour referred in detail to the evidence of the Respondent [101]-[113]. After reviewing the Respondent's evidence, His Honour found [114]: "I am unable to accept the evidence of the accused. He was evasive in cross-examination and would not or could not admit some matters that were corroborated in written documents. He went out of his way to deny that the complainant was under this authority, when it was clear that at the very least, he was a highly skilled babysitter for the complainant whilst she was sleeping at the institute on the night of 7 and 8 February 2018. I found his evidence most unsatisfactory and not credible. I therefore put it to one side, as it is for the Crown to prove its case on the evidence that it brings."
Under the heading "Consideration", his Honour recorded his findings, beyond reasonable doubt that: 1. the Respondent intentionally touched [F's] hand with his genitals without her consent, knowing that she was not consenting and that he had no lawful excuse [126]; 2. the assault was accompanied by an act of indecency. The touching of [F's] hand with the accused's genitals was an act which right minded people would consider contrary to community standards of decency, had a clear and obvious sexual connotation which derived from the area of the body to which the assault was directed and from the area of the body used by the accused [127]; 3. Patient F did not consent to the assault, she was sleeping, and consented only to the accused manipulating the wires to which she was connected [128]; 4. the Respondent knew at the time of the assault that Patient F was not consenting and the assault occurred whilst Patient F was under the authority of the Respondent [130].

Applicant's contentions

In support of the relief sought by it, the Applicant submitted (20) that the circumstances of the Respondent's offending rendered him unfit in the public interest to practise medicine because he: "took advantage of patients who were vulnerable because they were: (a) young females aged 16 to 29; (b) alone; (c) in an unfamiliar environment; (d) sleeping or partially asleep; (e) wearing pyjamas or loose clothing, with their bras removed; (f) suffering from various medical conditions or sleep disorders for which they were seeking assessment/treatment; (g) basically confined to their room; (h) isolated from family and friends overnight; (i) under the practitioner's care."
The evidence comfortably establishes each of the particulars, which amply support drawing the inferences sought by the Applicant. The Respondent's offending conduct constituted a gross breach of trust with respect to persons who were vulnerable, and virtually completely at his mercy, for the reasons submitted by the Applicant.
The Applicant further submitted (21) that the Respondent's conduct posed a risk of harm to each patient and in fact did cause harm to some patients. The impact on Patients B, D, E and F identified by the Applicant is comfortably established by the evidence of each of those patients.
Under the heading "Planning and concealment" (22)-(24), the Applicant relied upon the planning and steps to avoid detection of his offending conduct which were taken by the Respondent. These included, for Patient D, bringing a drug to the Institute and drugging Patient D with temazepam concealed in orange juice. Albeit unsuccessfully, the Respondent at various times took steps to avoid detection by the CCTV recording devices present in the rooms where each of Patients A to F was sleeping. In our view, the seriousness of the Respondent's conduct was exacerbated by these actions.
By reference to the relevant Code of Conduct, the Applicant submitted that the conduct of the Respondent was "inconsistent with the ethical standard expected of registered medical practitioners" (25). The Applicant referred to a number of provisions of the Code of Conduct (26)-(27). We agree that the conduct of the Respondent was entirely inconsistent with the ethical standards expected of registered medical practitioners.
The Respondent at various times sought to rely upon the fact that his offending conduct had not occurred in the course of his practise of medicine. As submitted by the Applicant (26), there is no requirement in the National Law that there be a direct nexus between the occurrence of the offending conduct and the professional role (Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at 17). It would be surprising, having regard to the paramount consideration mandated by s 3A of the National Law, if there such a requirement.
We accept, as submitted on behalf of the Applicant (29), that there was "an indirect nexus between the offending and medicine". It is clear that, at the time of his offending conduct, the Respondent was providing health services. No rational basis for concluding that what the Respondent has been found on the criminal standard of proof to have done with 6 patients at the Institute could not or would not occur if he were permitted to practise medicine. All patients of a medical practitioner are to some extent vulnerable in some way. When a patient enters a doctor's consultation room, the patient is almost entirely at the mercy of the conduct of the doctor.
The circumstances in which the Respondent's offending conduct occurred involved greater oversight than would be likely in a consultation room in which only the patient and the doctor are present. The opportunity, and likelihood of reoffending conduct is greater in those circumstances. As observed earlier, Flannery SC DCJ's assessment of the risk of the Respondent reoffending was influenced by the improbability of his again practising medicine.
To construe s 149C(1)(c) in the manner asserted by the Respondent would in our view place an impermissible gloss on the words of the statute and be contrary to the principles of statutory interpretation (Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Independent Commission Against Corruption v Cunneen [2015] HCA 14); SAS Trustee Corporation v Miles [2018] HCA 55).
Unlike some provisions of the National Law which are limited to conduct in the practice of medicine, s 149C(1)(c) contains no such express or implied limitation. To the extent that it might be necessary, which we do not believe it to be, decisions involving professionals, whose right to practise has been terminated because of conduct unrelated to the practice of the relevant profession, provide support for this construction (see Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, New South Wales Bar Association v Cummins [2001] NSWCA 284 ).
The Applicant submitted (31), correctly in our view, that: "While working as a sleep technician, the practitioner was not a "registered health practitioner" within the meaning of the National Law but was an "unregistered health practitioner" who was still subject to the Code of Conduct for Unregistered Health Practitioners issued under Schedule 3 of the Public Health Regulation 2012. As an "unregistered health practitioner", the practitioner was required (under clause 3(1) of Schedule 3) to provide health services in a "safe and ethical manner"."
The Applicant's submission (33) gains support from the judgment of Johnson J in the Court of Criminal Appeal, at [331] that the Respondent "possessed training and experience concerning the use of drugs which he utilised for the purpose of the commission of this offence. He may not have been holding himself out as a medical practitioner at the time when this offence was committed, although he did mention to more than one victim that he was a medical practitioner. However, he utilised knowledge which he had as a medical practitioner for the purpose of drugging Patient D with the intention of sexually exploiting her during the course of her overnight sleep study".
We also accept the submission of the Applicant (34) that the Respondent's duties to care for the sleep study patients were "similar to practise as a medical practitioner and he used his training as a medical practitioner in carrying out his functions as a sleep technician" (Khorami v R; R v Khorami at [353]). As the Applicant submitted, and Johnson J recorded "the Respondent was working in a responsible health-related activity caring for patients, on a one-to-one basis, during overnight sleep studies. There were technical skills required of him in the discharge of his duties which involved various forms of health checks and the application and use of sensors to be attached to the bodies of patients".
The Respondent informed some of his victims that he was a doctor and, as the Applicant submitted, wore clothing similar to that worn by a doctor, held a clipboard, took patients' measurements and recorded data. We accept that the discharge of the Respondent's duties required "technical skills" from him which had similar features to those involved in the practice of medicine.
The submission of the Applicant with respect to the Respondent using his training as a medical practitioner "to go beyond his functions as a sleep technician, offer medical advice and mention his medical training to gain patient trust" (35) resonate with the Tribunal. The Tribunal cannot accept that the Respondent's offending conduct was so unrelated to the practice of medicine as to render it unsafe or unfair to rely upon it in the evaluation of the Respondent's fitness to practise medicine.
The reasonable expectations of the Respondent's patients were as submitted by the Applicant (36)-(37).
The Applicant further submitted (38), correctly in our view, that medical practitioners: "enjoy a special position in the community and they have rights and privileges that are not available to many other people so the community must be able to approach medical practitioners safe in the knowledge that what will occur in a consultation is appropriate medical examination and procedure, and nothing else. The Commission submits that the patients spent the night at the Institute seeking a solution to their medical difficulties with sleep, and instead of getting the data that would enable their problem to be diagnosed and treated by their health professionals, they were indecently assaulted or drugged by the person collecting the data. The Commission submits that the practitioner's conduct has the potential to bring the profession into disrepute."
The Applicant further submitted that the Respondent "repeatedly displayed a lack of insight". Particulars of the asserted lack of insight were provided with respect to each of the Respondent's patients. The Applicant submitted that the "egregious breaches of trust with six female patients, which were proved beyond reasonable doubt warranted a ten year non-review period of the cancellation of his registration" (49). It is not in doubt that the Tribunal has the power to select the appropriate non-review period pursuant to s 149C(7) of the National Law.
We are mindful of the caution against relying upon a "range" of orders made in other disciplinary proceedings (Lee v Health Care Complaints Commission [2012] NSWCA 80) and that we must determine each case on its own facts and circumstances.
The essential basis upon which the 10 year non-review period was sought by the Applicant was submitted [48] to be because: "(a) the practitioner has not accepted responsibility for his conduct; (b) the practitioner pleaded not guilty; (c) the practitioner appealed against some of his convictions; (d) the practitioner has not yet developed insight; (e) a lengthy period is required to enable a practitioner to demonstrate remediation; (f) a lengthy period is needed to signal to the profession and the public the seriousness of the conduct."
We have reservations about reliance upon the second and third of those matters. Ultimately, not relying upon either of those matters does not change anything.
The Applicant sought a prohibition order pursuant to s 149C(5)(a) of the National Law on the basis that the Respondent poses a "substantial risk to the health of members of the public" and thus should be prohibited from providing "health services or specified health services for the period specified in the order or permanently".
The relevant principles in relation to such relief were submitted to be: 1. the protection of the health and safety of the public must be the paramount consideration (s 3A National Law); 2. a prohibition order is aligned with the protective purposes of the National Law (Health Care Complaints Commission v De Lore [2020] NSWCATOD 72); 3. breach of a prohibition order is an offence (s 102(3) Public Health Act 2010; 4. the Tribunal may make a prohibition order for a specified period or permanently (s 149C(5)(a) National Law); 5. the Tribunal may prohibit the person from providing health services or specified health services (s 149C(5)(a) National Law); 6. the Tribunal's power to make a prohibition order is broad, it can cover a range of registered and unregistered health services (Health Care Complaints Commission v Sheldrake (No 2) [2017] NSWCATOD 24); 7. the onus is on the Commission to establish that the practitioner poses a substantial risk to the health of members of the public (Health Care Complaints Commission v Borthistle [2017] NSWCATOD 56); 8. a "substantial risk to the health of members of the public" means a risk that is material, real or apparent on the evidence presented and not a risk that is without substance or speculative (Health Care Complaints Commission v Collins [2021] NSWCATOD 132); 9. the question of whether a person poses a substantial risk must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services (Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172); 10. the Tribunal may consider whether, if the practitioner were to work in certain practice areas, the proven conduct might be repeated (Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25); 11. the Tribunal may consider the nature of the conduct, the length of time the practitioner engaged in the conduct and any evidence of (or lack of) remediation (Health Care Complaints Commission v Dawes [2015] NSWCATOD 8); 12. the Tribunal may consider the possibility that the practitioner will engage in the provision of unregistered health services to patients and whether, if the practitioner were permitted to provide health services to those patients during the interim period while his registration was cancelled, it would substantially diminish the protective purpose of any cancellation order and may undermine confidence held in the profession (Health Care Complaints Commission v De Lore [2020] NSWCATOD 72).
The Applicant submitted that each of the above criteria was satisfied on the evidence before the Tribunal, and also relied on the statements of the Respondent during the hearing to which reference will shortly be made.
Although the Respondent disavowed any interest in or intention to pursue employment other than as a medical practitioner in his statements to the Tribunal during the hearing of these proceedings, the objective matters identified by the Applicant (53) provide substantial support for finding the likelihood of his seeking to do so if his registration as a medical practitioner is cancelled, as does his history of qualifications and employment since 2012.
Objectively, if, as the Respondent claims, cancellation of his registration as a medical practitioner will cause financial hardship for him, which the Tribunal accepts is likely, it is to be expected given his age and absence of other qualifications or experience, that the Respondent would seek employment involving the provision of health services. For the reasons it outlined, the Applicant submitted (54) that any prohibition order should be cast "in the broadest possible terms to cover all health services as defined under s 4 of the Health Care Complaints Act 1993".
The Applicant submitted, correctly in our view, (56) that when considering whether to make a prohibition order under s 149C(5) of the National Law the Tribunal would also consider that there is currently a permanent prohibition order under s 41A(2)(a) of the Health Care Complaints Act 1993 (NSW) which was made by the Commission on 19 February 2021. The order remains and has never been challenged by the Respondent.

The Respondent's case

The Respondent gave evidence at his Judge alone trial with respect to Patient F's allegations (R v Khorami [2021] NSWDC 760 at [42]). Having regard to the Judgment of Weinstein SC DCJ, the Respondent was aware of the distinction between giving evidence on oath or affirmation and not doing so. Independently of what would have been said to the Respondent in the criminal proceedings, the Tribunal endeavoured to explain to him the difference between giving evidence on oath or affirmation and making an unverified statement, and the potential implications of either course. Ultimately, for the reasons which follow, nothing turns on the Respondent's election not to give evidence on affirmation, and to simply rely upon his unverified statement.
The Respondent relied upon his letter to the Tribunal of 24 August 2022 and the material referred to in that letter. The Respondent submitted that he was representing himself "with very little knowledge of law in this matter from the correctional centre because it is not affordable for me to pay and get any private legal representative and have got [sic] refused from NSW Legal Aid and the Law Society of NSW pro bono to represent legally in this matter".
The Respondent acknowledged that he had received the outline of the Applicant's case in June 2022. Without suggesting that legal representation would have made no difference to the outcome of these proceedings, the combination of the seriousness of the Respondent's offending conduct, which has been found proved beyond reasonable doubt, and the statements he has made, or not made, limit the extent to which having legal representation could possibly have produced a different result in these proceedings.
The Respondent submitted that "This is the first time in my life in and out of Australia I have got a legal problem and indeed I strongly believe it will be the last one forever so I am asking you to give [a] second chance to me".
We accept that, prior to the conduct which gave rise to the Respondent's criminal convictions, and led to these proceedings, he had not committed any offences or been guilty of any offending conduct. In support of his contention that he was unlikely to reoffend, the Respondent relied upon the finding of Flannery SC DCJ at [14] that Dr Seidler, a forensic psychologist who gave evidence on his behalf, considered (HCCC 1 Tab 12, page 14) that the Respondent had "an average risk relative to convicted male sexual offenders, and on the dynamic risk factors he had a low risk of reoffending", such assessment having been "premised on the basis of his account being accepted". Her Honour further recorded that Dr Seidler considered that "if he was being disingenuous and his motivation was a function of sexually abusive intent, his risk of reoffending would be in the moderate range". Although we do not find that the Respondent was "disingenuous" in his statements to the Tribunal in these proceedings, in the absence of greater candour and insight than the Respondent exhibited, and supportive expert opinion evidence, we are not able to afford his claims that he would not reoffend if he were in a position to do so any significant weight.
Dr Seidler was recorded by Flannery SC DCJ as further considering that "There was no evidence that he would offend in any other way than he had previously" and that "Any future victims were likely to be young women who consulted him in some medical context" in which case Dr Seidler "thought his primary motivation would be sexual gratification". Those findings provide cogent support for finding that permitting the Respondent to practise in any "medical context" would constitute an unacceptable risk to the health and safety of the public. The provision of health services is likely to be in a medical context.
Dr Seidler recommended that the Respondent participate in "a deniers programme". The Respondent's statements to the Tribunal suggest that such recommendation was entirely appropriate - the Respondent continues to be a "denier". There is no evidence that the Respondent has participated in such a programme, or attempted to do so. There is no evidence that the Respondent would have the capacity to undertake such a programme in his current circumstances. In view of the Respondent's continued denials of misconduct it is unlikely that he would have participated in a "deniers programme" if he could have. Flannery SC DCJ's findings in reliance upon Dr Seidler's evidence provides cogent support for a finding that the Respondent is unfit to practise medicine.
As the Applicant submitted, and Flannery SC DCJ accepted, the Respondent's offending conduct occurred just after he had been registered as a medical practitioner, and before he had even commenced practice as a medical practitioner in this country. As recorded earlier, the Respondent's offending conduct occurred in the context of his provision of health services.
The prospect of the Respondent reoffending assumed significance at his sentencing hearing in the District Court. Having regard to the statutory provisions governing these proceedings, and the expectations of the community and the medical profession, a finding that there is a relatively low risk of the Respondent reoffending against the criminal law does not assist his case. Even a relatively low risk of repetition of the Respondent's offending conduct raises concerns for the health and safety of the public if the relief sought by the Applicant is refused. Pivotal to determining whether the Respondent is "unfit" to practise medicine in this case, is whether his doing so unacceptably risks the health and safety of the public (Health Care complaints Commission v Limboro [2018] NSWCATOD 117).
The Respondent submitted, correctly, that he went into custody in September 2020. He was on bail from October 2018. There is no suggestion that the Respondent has breached the conditions of his bail, or committed any breaches of discipline whilst incarcerated. That does not assist the Respondent's case - a medical practitioner would be expected to obey the law. There is no reason to doubt that the Respondent has undertaken the courses in hospitality, work safety and art to which he referred in his statement. Whether, as he contends, the Respondent has "perfectly and completely rehabilitated up to now" is another matter.
The Respondent submitted that, having regard to the "punishment" imposed upon him with respect to his criminal convictions "maximising my sentence in this civil matter will be very extreme punishment for me". In submissions on behalf of the Respondent in the District Court it was submitted that the Court would take into account [15] "as extra curial punishment the fact that the offender would never be able to practise in this country as a doctor or in any medical field".
It was accepted by Flannery SC DCJ [16] that if the Respondent "were to work in a health related area again there is a moderate risk of his reoffending, although (as submitted on his behalf), it is unlikely that he will be in a setting that will allow him to offend in the future. In that event, I accept his risk of reoffending would be lower". Her Honour also took into account that the Respondent "will almost certainly never practise medicine in this country again and will struggle to find work in a health related field".
Clearly, and legitimately, the Respondent sought to minimise the custodial sentence which was inevitably going to be imposed upon him by the District Court in reliance upon the loss of his ability to practise medicine. We are of course not bound by the findings of the sentencing Judge in the criminal proceedings, but that causes no difficulty, as they align comfortably with the findings which we will record, and the principles governing these proceedings.
The Respondent complained that, because of the Covid-19 pandemic there were "restrictions, limitations and even cancellations of privileges" associated with his incarceration. That is irrelevant to our determination of the appropriate protective orders and resulted from the Respondent's own criminal conduct.
The Respondent submitted that the "criminal matter what I have been convicted is not related to my GP job (as a medical doctor) but is related to my night sleep technician job. According to the Australian Medical Association sleep technician job has not been listed as a registered or non-registered health care job". In what way that could ameliorate the seriousness of the Respondent's offending conduct, and its implications with respect to his fitness to practise medicine has not been suggested, and is not apparent to us. For the reasons recorded earlier, the Tribunal does not accept that the Respondent's offending conduct needed to be in the course of practising medicine in order to enliven the power to cancel his registration. As also recorded earlier, the Respondent's offending conduct occurred in the course of providing services which were at least ancillary to the provision of health services which fell within s 4 of the Health Care Complaints Act.
The definition of "health service" in s 4 of the Health Care Complaints Act "includes" a series of particular services, the scope of a number of which is potentially broad. The context in which "includes" finds expression in s 4 does not reveal a legislative intention that the particular health services which it identified were intended to be exhaustive, or that "includes" should be interpreted as if it read "means" (R v McN [1963] SR (NSW) 186). In Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242, it was held that the definition of "medical treatment" as including treatment by a registered medical practitioner, registered dentist, registered physiotherapist or masseur was exhaustive, and did not extend to professions not mentioned in the Act. The legislation defined some terms as "including" and others as "meaning". We do not consider that the decision in Lamont creates obstacles to finding that the Respondent was providing health services at the time of his offending conduct.
Although we do not need to make a finding, in view of the services which the Institute provided to its patients, and the Respondent's role in the provision of those services, it is difficult to accept that the Respondent was not providing "health services" at the time of his offending conduct. Construing the term in that way would promote the purpose or object underlying the Act, and should be preferred to the construction advanced by the Respondent, which would not in accordance with s 33 of the Interpretation Act 1987 (NSW).
As the submissions of the Applicant amply demonstrate, the Respondent was engaged in the provision of services which were integral to the provision of health services at the time of his offending conduct. The number of his victims, the nature of his conduct, and the circumstances in which it occurred are directly relevant to the risk to the health and safety of the public if the Respondent is permitted to retain his medical registration or provide other health services.
The Respondent relied upon his character references. The Tribunal has taken those into account in the Respondent's favour. Given their relative antiquity, they have limited weight. Moreover, in proceedings in which the paramount consideration is the health and safety of the public, and the issue is the Respondent's current fitness to practise medicine (Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158), other matters assume far greater significance than how a number of members of the community of good character previously experienced the Respondent's conduct.
The Respondent relied upon the financial hardship which he and his family will suffer if he is unable to practise medicine. The Tribunal accepts that the loss of his registration is likely to cause financial hardship for the Respondent and any members of his family who are dependent upon him. As the authorities to which we will later refer amply confirm, that is a consequence of the Respondent's offending conduct and, if his registration is cancelled due to his unfitness, that is because of the need to do so in order to protect the health and safety of the public. In protective proceedings of this kind, we give scant weight to the financial consequences of cancellation of registration for the Respondent, or the granting of any other relief sought by the Applicant.

Cancellation or suspension of the Respondent's registration

As is not in doubt, s 149C(1)(c) of the National Law is enlivened in the present circumstances. The critical issue is whether the Applicant establishes that "the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession".
That provision must be considered in the light of the statutory requirement that the health and safety of the public is the paramount consideration when determining these proceedings. In the present circumstances, no difficulty attends the distinction between the public interest and the health and safety of the public - they are inextricably linked.
Whether a practitioner is unfit in the public interest to practise requires consideration of the nature of the conviction and the circumstances in which the offence was perpetrated (Health Care Complaints Commission v Turner [2016] NSWCATOD 163). Whether a practitioner is unfit in the public interest to practise requires the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse (Health Care Complaints Commissioner v Karunaratne (No 2) [2018] NSWCATOD 201). The circumstances in which the Respondent's offences were committed have been referred to earlier in these reasons. The offending conduct of the Respondent involved breaches of virtually every standard expected of a medical practitioner. The Respondent revealed that his convictions have had no impact on him in terms of insight, contrition or remorse, and disturbingly, indefensible allegations against his victims.
Whether a practitioner is unfit in the public interest to practise requires consideration of the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and there is a close nexus between the criminal conduct and a professional role and responsibilities, the public's ability to entrust their care to those health professionals may be imperilled if the convicted practitioner is permitted to continue to practise. The serious nature of offending conduct and the length of time over which it occurred, and number of victims of that offending conduct may cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a convicted practitioner who lacks rehabilitation and insight (Health Care Complaints Commission v Wood [2020] NSWCATOD 60). Those observations have relevance to the Respondent.
The Tribunal may take into account both the objective nature and seriousness of the practitioner's offending conduct, as well as the subjective matters pertaining to the practitioner as they impact upon fitness in the public interest to practise his or her profession (Health Care Complaints Commission v Conte [2021] NSWCATOD 37). As recorded earlier, the Tribunal has taken these matters into consideration. So doing only strengthens the Applicant's case.
The term "public interest", though not defined by the National Law, has been held to be "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" (Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at 37). The "public interest" also encompasses broader principles of "the protection of the public as it relates to the reputation of the profession in the eyes of the public and a recognition of the trust reposed in a practitioner by the public" (Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 at 67). To fail to cancel the Respondent's registration would do a grave disservice to the overwhelming majority of medical practitioners who practise medicine safely and ethically, and would risk unfairly damaging the reputation of the profession in the eyes of the public.
The unfitness referred to in s 149C(1)(c) of the National Law has been held not to require "probable permanent unfitness", but rather an assessment of "the practitioner's current fitness to practise", the issue thus being whether the Applicant comfortably satisfies the Tribunal that the circumstances surrounding the Respondent's offending conduct currently render him unfit to practise medicine (Chen v Health Care Complaints Commission [2017] NSWCA 186; 95 NSWLR 334 at 67-71).
The Applicant contended that, having elected not to give evidence on oath or affirmation, the Tribunal should give the Respondent's statements limited weight (R v Qutami [2001] NSWCCA 353, Alvares v R, Farache v R [2011] NSWCCA 33). The Tribunal accepts that his doing limits the Tribunal's capacity to assess the current veracity or genuineness of any statements made by the Respondent, or the level of insight which informs them. In the circumstances of this case, that limitation is more apparent than real.
We accept that, although the Respondent's statements were not verified on oath or affirmation and thus can be afforded only limited weight in favour of the Respondent's case, it does not follow that the Respondent's unverified statements cannot be relied upon when they are unhelpful to his case. That is particularly so when, as in this case, the distinction between verified and unverified statements has been explained to the Respondent by a judge on two occasions.
In the course of his submissions to the Tribunal the Respondent asserted that he had been "wrongly convicted" of the criminal offences which gave rise to the current proceedings. It is difficult to accept that the Respondent could genuinely believe that to be the case in circumstances where he unsuccessfully appealed to the Court of Criminal Appeal with respect to his offending conduct related to Patients A to E, and did not appeal his conviction with respect to Patient F. The Respondent's implied criticism of the Counsel who represented him does not reflect well on him, having regard to the sentencing remarks of Flannery SC DCJ with respect to victims A to E and the Reasons for Judgment of Weinstein SC DCJ in the Judge alone proceedings with respect to Patient F.
The Respondent said of his victims "they destroyed my life", that Patient F "absolutely lied" and that at least one of his victims "did it for money". Whilst, as we have recorded earlier, we do not hold against the Respondent the fact that he pleaded not guilty to all of the charges against him, his steadfast refusal to acknowledge that he has been found guilty of those offences provides ample support for the Applicant's criticisms of his lack of insight. Moreover, the fact that the Respondent cannot, or will not, acknowledge what admissible evidence in criminal trials with and without a jury established beyond reasonable doubt that he had done, must mean that the risk of doing similar things again if he is in a position to do so is real. Put bluntly, the Respondent sees nothing wrong in anything that he has been found to have done with respect to Patients A to F.
In making protective orders, the task undertaken by the Tribunal has consistently been described as centring "not on punishment as such but on the protection of the public and the maintenance of proper professional standards" (Lee v Health Care Complaints Commission [2012] NSWCA 80). In Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; [2009] 74 NSWLR 523 at [89] Basten JA said that the specific purpose for which orders are made is "protective in the public interest and is not punitive with respect to the individual", although such orders "may be punitive in effect" and that punitive effect "may be relevant in formulating a protective order". His Honour further observed that 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".
Quite apart from the absence of any evidence establishing the matters to which Basten JA referred, the statements made by the Respondent to the Tribunal during the hearing, a number of which we have referred to, suggest the contrary. The Respondent continues to refuse to accept culpability in any measure with respect to his offending conduct. In those circumstances, there must, objectively, be a real risk of a repetition of that conduct if the Respondent is in a position to do so.
The authorities recognise that the Tribunal cannot assume that a medical practitioner has reformed without clear proof, and more than the mere passage of time without misconduct (Lee at [73]). The authorities also suggest that reformation is the exception rather than the norm (Health Care Complaints Commission v Litchfield [1997] NSWSC 297; [1997] 41 NSWLR 630). The Tribunal must be satisfied that the practitioner has demonstrated "integrity, trustworthiness, high moral and ethical values and a capacity to comply with relevant obligations and codes of practice such that it is appropriate for the practitioner to be held out to the public as a person worthy of their confidence" (Dawson v Law Society of New South Wales [1989] NSWCA 58; Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115).
Nothing to which the Respondent has referred demonstrates the qualities which the authorities establish are necessary for him to be held out to the public "as a person worthy of their confidence". On the contrary, the Respondent's statements with respect to his offending conduct and the victims of it are counter indicative of "reformation", or of fitness to be registered as a medical practitioner.
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] the Court of Appeal noted that: "Protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
In our view, failing to cancel the Respondent's registration would be contrary to each of the objectives to which the Court of Appeal referred.
In the Criminal Law, prior good conduct and an otherwise unblemished record of professional service may materially mitigate the severity of the sentence which is imposed for offending conduct. As noted earlier, the Tribunal has taken the Respondent's prior good conduct into consideration in his favour. The Tribunal is also mindful of the fact that the Respondent's offending conduct occurred before he had even commenced to practise medicine.
It is difficult to imagine misconduct which more compellingly establishes unfitness to practise medicine, and calls for orders in the terms sought by the Applicant, either in the public interest or to protect the health and safety of the public than does the conduct which has been established on the criminal standard of proof against the Respondent. The Tribunal's failure to order the cancellation of the Respondent's registration would also fail to signal to the community and the medical profession how gravely such conduct is viewed. Rather than allaying such concerns, the Respondent's statements to the Tribunal tangibly support the concerns upon which the Applicant relies in support of its application.
The community is entitled to feel "safe" when consulting a medical practitioner or a health service provider. We have earlier referred in these reasons to the findings of Flannery SC DCJ with respect to the risk of the Respondent reoffending. In our view, any risk of conduct by a medical practitioner of the kind found against the Respondent in the criminal proceedings is unacceptable, and, in the absence of compelling evidence of insight, contrition and rehabilitation, incompatible with retention of the rights and privileges of a medical practitioner for so long as that risk exists. The Respondent's continuing denial of responsibility for his actions and attempts to blame his victims for his present plight also support cancellation of his registration necessary both in the public interest and in order to protect the health and safety of the public.
The Tribunal is mindful of the requirement that any protective orders which are made should not result in more serious consequences for the Respondent than is reasonably necessary in the execution of the protective purpose of the legislation (NSW Bar Association v Meakes [2006] NSWCA 340 at 113). For the reasons recorded earlier, the Tribunal is satisfied that the relief sought by the Applicant does not offend that principle.
We are comfortably satisfied in all the circumstances that it has been established that the Respondent is unfit in the public interest to practise medicine. As we have earlier recorded, the Respondent's offending conduct involved gross breaches of trust with respect to vulnerable patients and, contrary to his assertions, although not in the course of his practice of medicine, arose within a clinical setting in which the Respondent performed clinical duties and, as his victims' evidence makes clear, held himself out as having qualifications and experience as a medical practitioner.
Failing to cancel the registration of the Respondent would also comprehensively fail with respect to specific and general deterrence, be failing honourable and ethical members of the medical profession, and the public, and be likely to undermine confidence in the standards and regulation of the medical profession. The Tribunal is comfortably satisfied that the Respondent's registration should be cancelled.

The non-review period

Section 149C(7) of the National Law provides that an application for review of, in this case, an order cancelling the Respondent's registration "may not be made until after a specified time".
The Applicant seeks a 10 year non-review period. The Respondent did not, in the context of alternate relief, contend for any particular non-review period, although he clearly seeks the shortest possible period and, at least inferentially, could not seek a period which expired before his release from custody, which could first occur on or after 24 June 2024.
The matters to which we have referred in support of finding that the Respondent's registration as a medical practitioner should be cancelled are relevant in this context. The submissions of the Applicant (48(a)), (48(d)), (48(e)) and (48(f)) resonate with the Tribunal having regard to the evidence before us. We agree with the submission of the Applicant that the Respondent's offending conduct involved "egregious breaches of trust" with 6 vulnerable female patients, the youngest of whom was 16 years of age.
The Applicant's submissions with respect to the non-review period were drafted before the Respondent's submissions in the Stage 2 proceedings. Notwithstanding the verdicts of the jury and of Weinstein SC DCJ in the Judge alone trial, and the refusal of the Court of Criminal Appeal to disturb the former, the Respondent continues to deny any culpability, and blames his victims, his former legal representatives and the justice system for his current difficulties. Nothing raised by the Respondent provides any basis for finding that he will, within any period of time, or perhaps ever, be able to demonstrate fitness to practise medicine. The Respondent's refusal to acknowledge his need for reformation, and the magnitude of that need precludes the Tribunal from finding that reformation is likely, or the timeframe within which that likelihood might materialise (Health Care Complaints Commission v Sbirziola [2022] NSWCATOD 118, at [60]).
The Tribunal is comfortably satisfied that a 10 year non-review period is amply justified on the evidence before it. The Tribunal is mindful of the fact that, in view of his age, such a lengthy period may mean that the Respondent has no realistic prospect of regaining his registration as a medical practitioner. That consideration cannot override the period of prohibition which the evidence establishes is necessary to protect the health and safety of the public.

Prohibition on providing health services

The prohibition order sought by the Applicant is in our view irresistible, particularly in view of the fact that the Respondent's offending conduct occurred whilst he was providing health services, or providing services ancillary to such services and in the context referred to earlier in these reasons. Allowing the Respondent to provide health services would constitute a "substantial risk" to the health of members of the public as required by s 149C(5) of the National Law. Our reasons for finding that the Respondent's registration as a medical practitioner are also relevant to and inform our determination of this issue.
The evidence of Dr Seidler to which Flannery SC DCJ referred in her sentencing remarks with respect to the risk constituted by the Respondent if he were again able to provide health services further supports prohibiting the Respondent from providing any kind of health services. As discussed during the hearing, it is difficult to imagine any form of health services which would not involve contact with patients or the likelihood of that occurring. The Respondent's statements to the Tribunal at the Stage 2 hearing provide no basis for confidence that any but a complete prohibition on his providing health services would be adequate to protect the health and safety of the public and be in the public interest.
As recorded earlier, the Applicant sought that the Respondent be "permanently" prohibited from providing health services pursuant to s 149C(5)(a) of the National Law. Section 149C(7) provides that the Tribunal may order that an application for review of an order under Division 8 may not be made until after a specified time. A Permanent prohibition order pursuant to s 149C(5)(a) is an order under Division 8. Although the ordinary meaning of "permanent" is not in doubt, in the context in which it finds expression in s 149C of the National Law, we do not consider that a permanent prohibition order is not reviewable (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355). We conclude that a permanent prohibition order operates unless and until it is varied or discharged.
Section 163A(1)(a) of the National Law provides support for our conclusion. The section provides that a person may apply to the appropriate review body for a review of "a prohibition order made in relation to the person". There is no reason to consider that the reference to "prohibition order" in the section would not encompass a prohibition order under s 149C(5)(a). Significantly, s 163A(3)(a) of the National Law provides that a person may not apply for a review of, in this case, a prohibition order "while the terms of the order provide that an application for review not be made".
We have some difficulty with the concept of making a non-review order for 10 years with respect to the cancellation of the Respondent's registration as a medical practitioner pursuant to s 149C(7) of the National Law, and simply making a permanent prohibition order with respect to the provision of health services pursuant to s 149C(1)(5)(a). Doing so would mean that, there being no constraint on his doing so pursuant to s 163A(3)(a), the Respondent could apply to review the order at any time he is minded to do so. Having regard to the concerns for the health and safety of the public and the public interest which we have recorded in these reasons, that is a course which the Respondent should not be free to pursue.
For the reasons recorded above, the Tribunal is satisfied that a permanent prohibition order should be made pursuant to s 149C(5)(a), and that the Tribunal may specify a non-review period with respect to such order pursuant to s 149C(7) of the National Law. Construing the legislation in that way is considered to promote the purpose or object underlying the National Law, and thus to be preferred to the other constructions to which we have referred (s 33 Interpretation Act 1987 (NSW)).
The current permanent prohibition on the Respondent providing health services is reviewable, and does not create legal obstacles to the Tribunal making a prohibition order with respect to the provision of health services which operates whilstever the Respondent is precluded from practising medicine. An order of the Tribunal which did not permanently prohibit the Respondent from providing health services would not impact on the current prohibition order by which the Respondent is bound.
Having regard to the findings recorded in these reasons, the most appropriate order is that the Tribunal make a permanent prohibition order pursuant to s 149C(5)(a) of the National Law, and order that the Respondent may not apply to review that order for a period of 10 years, as will be ordered with respect to any review application for re-registration as a medical practitioner. Thee vidence before the Tribunal suggests that similar issues would require determination in any review application which the Respondent might make to permit him to provide medical services of any kind. As explained above, to decline to specify a non-review period constitutes an unacceptable risk to public health and safety. If, after the expry of the non-review period, the Respondent is able to persuade an appropriate review body that he should be re-registered as a medical practitioner, it is likely that the prohibition order with respect to the provision of other health services would be varied or discharged.

Costs

Although an order for costs against the Respondent would appear unlikely to be effective, we will make directions for submissions with respect to the costs of the proceedings.

Orders 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) (National Law), the registration of the Respondent as a medical practitioner is cancelled; 2. Pursuant to s 149C(5)(a) of the National Law, the Respondent is permanently prohibited from providing all health services within s 5 of the National Law; 3. Pursuant to s 149C(7) of the National Law, the Respondent may not make an application to review orders 1 or 2 for a period of 10 years from the date of these orders; 4. Any party seeking an order for costs of the proceedings file and serve written submissions not exceeding 5 pages in length in support of such application within 35 days of these orders; 5. A party opposing an order for costs file and serve written submissions not exceeding 5 pages in length in support of such opposition within 70 days of these orders. 6. A party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs application include submissions in support of such opposition in any submissions filed pursuant to order 4 or 5 of these orders.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2023

Health Practitioner Regulation National Law Interpretation Act 1987(NSW)

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