Before considering Complaints One to Three in turn, we have made findings as to the credibility and reliability of witnesses having regard to the principles applicable to the proof of facts.
[2]
Client A
We are satisfied that Client A was a credible and reliable witness for the following reasons:
1. the manner in which she gave her oral evidence was forthright;
2. while she accepted that she could not remember dates, there was a consistency in her written and oral evidence as to the sequence of events;
3. her version of events is supported by the contemporaneous documentary evidence both as to her status as a client of the respondent and her sexual relationship with him;
4. her participation in a psychological education group of the respondent is corroborated by the unchallenged evidence of Client B.
[3]
Mr Musavimovahed
The evidence of Mr Musavimovahed substantially went to the issue of whether Client A was a client of the respondent. We are not satisfied that Mr Musavimovahed was a credible and reliable witness as he had a poor recollection of events except in relations to matters that he perceived were adverse to the respondent's interests. However, we consider that it is significant that notwithstanding that he provided administrative assistance to the respondent in the practice, he failed to give any evidence that the Medicare claims for services provided to Client A were made in mistake.
[4]
The respondent
We are not satisfied that the respondent was a credible and reliable witness for the following reasons:
1. he admitted that he lied in giving his evidence at the Sahebi s 150 hearing in an important matter;
2. he gave implausible evidence on the central issues of whether Client A was his client and he had a sexual relationship with her;
3. he failed to adduce any corroborative evidence for his implausible evidence in circumstances where the Council delegates had expressed concerns about this evidence in the 19 January 2022 Council decision including:
1. evidence that he was impotent and incapable of sexual intercourse. The inclusion of Tadalafil in the 3 April 2019 list of Sahebi medication is inconclusive because its date is two years prior to the sexual relationship with Client A in April 2021 and May 2021. While the drug Tadalafil is prescribed for erectile dysfunction, its inclusion in the 3 April 2019 list of Sahebi medication does not establish the respondent was impotent or that he was taking this drug between 24 April 2021 and 16 May 2021;
2. evidence that text and voice messages in Farsi he sent to Client A between 24 April 2021 and 16 May 2021 did not have a sexual connotation;
3. evidence as to the complete Friday group WhatsApp messages which he could have requested from any member of the group in circumstances where he alleged in his evidence at the Sahebi s 150 hearing that Client A had deleted text messages;
1. his evidence was inconsistent with the unchallenged evidence of Client B;
2. he gave implausible explanations for contemporaneous evidence that was inconsistent with his evidence that Client A was not his client. For example, his explanation that he recorded the incorrect dates for 11 fortnightly sessions between 8 January 2021 and 14 May 2021 on the group session notes and list of participants for Knowing & Self Actualizing Self Group was implausible.
[5]
Conclusion
Where there is a conflict in their evidence, we prefer the evidence of Client A to the evidence of the respondent.
Further, we reject the evidence of the respondent given at the Sahebi s 150 hearing and repeated in his oral evidence at the hearing that the specific words drawn to his attention did not have a sexual connotation, but were expressions of a close friendship.
[6]
Complaint One
The following two questions underly the particulars of Complaint One:
1. whether Client A was a client of the respondent;
2. whether the respondent had a sexual relationship with Client A.
[7]
Whether Client A was a client of the respondent
We are satisfied that Client A was a client of the respondent for the following reasons:
1. this was the consistent evidence of Client A;
2. the request by the respondent to Client A for a referral from her doctor, the provision of the 31 March 2021 Rahman referral and the Client A mental health plan to the respondent, the request by the respondent to Client A to send him a photo of her Medicare card, the text messages between the Client A and the respondent and the payment of the total of $400.00 by Client A to the respondent on 15 April 2021 and 26 April 2021, and the claim by the respondent to Medicare for the provision of services to Client A on 14 April 2021 and 21 April 2021 are consistent with the evidence of Client A;
3. the evidence of Client A as to her attendance at psychological education classes from February 2021 was corroborated by the evidence of Client B.
[8]
Whether the respondent had a sexual relationship with Client A
We are satisfied that the respondent had a sexual relationship with Client A for the following reasons:
1. this was the consistent evidence of Client A;
2. the evidence of Client A was corroborated by the text and voice messages containing romantic and erotic language sent by the respondent to Client A from 24 April 2021 to 16 May 2021.
In the light of the oral evidence of Client A and the personal text messages between her and the respondent we find that their sexual relationship commenced on the evening of Saturday 24 April 2021 and continued on a daily basis with a couple of exceptions until shortly before 16 May 2021. He commenced and maintained this sexual relationship for his own sexual gratification.
[9]
Conclusion
We are satisfied that the applicant has established the particulars of Complaint One.
We accept the evidence of Dr Sultan in her answers to questions 7 to 11 in the 12 April Sultan report.
In the light of our findings and the principles in Aref at [18]-[20], we are satisfied that by reason of the conduct specified in the particulars of Complaint One the respondent engaged in unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law.
[10]
Complaint Two
In the light of our findings in relation to particular 1 of Complaint One, the evidence of Client A and the respondent and the contemporaneous Friday group text messages, we are satisfied that the applicant has established particulars 1 (a) and 2 of Complaint Two.
In the light of the concession of the respondent in his Reply which was properly made, we are satisfied that the applicant has established particulars 3 to 5 of Complaint Two.
We accept the evidence of Dr Sultan in her answers to questions 2 to 6 in the 12 April Sultan report.
In the light of our findings and the principles in Aref at [18]-[20], we are satisfied that by reason of the conduct specified in the particulars of Complaint Two the respondent engaged in unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law.
[11]
Complaint Three
In deciding that the applicant has established particular 2 of Complaint One we rejected the evidence of the respondent that Client A was never his client, that he bulk billed Client A in error and that the payments totalling $400.00 made to him by Client A, leaving aside the $40.00 paid on 26 April 2021, were for the hiring of rooms at his professional premises not for psychological services.
We are satisfied that the respondent gave this evidence to the Council and the applicant knowing that it was false.
In the light of our findings and the principles in Aref at [20], we are satisfied that by reason of the conduct specified in the particulars of Complaint Three the respondent engaged in unsatisfactory professional conduct within s 139B(1)(l) of the National Law.
[12]
Issue 2: whether by reason of any such proved conduct for Complaints One to Three, the respondent engaged in professional misconduct constituting Complaint Four
Having regard the principles in Chen at [19]-[20] and Litchfield at 638, we make the following findings:
1. the respondent by his conduct specified in particular 3 of Complaint One and in Complaint Three engaged in professional misconduct within s 139E(a) of the National Law;
2. the respondent by his conduct specified in Complaints One to Three engaged in professional misconduct within s 139E(b) of the National Law.
[13]
Issue 3: whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law
[14]
Introduction
The parties are in disagreement as to the manner in which the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law.
[15]
Consideration
In view of our findings in the stage 1 decision we are satisfied that we are entitled pursuant to s 149(a) of the National Law to exercise the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law against the respondent.
In determining whether, and if so in what manner, we should exercise the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law, we have had regard to the following matters:
1. the most serious aspect of Complaint One was the sexual relationship between the respondent and client A. This conduct alone is sufficient to warrant the cancellation of the respondent's registration;
2. the serious nature of the respondent's conduct was aggravated by the vulnerability of Client A due to her status as his client;
3. the respondent was not a credible and reliable witness. In particular, he was persistently untruthful in his evidence about the status of client A as his client and his sexual relationship with her. This dishonesty was an egregious breach of his duty of full and frank disclosure of misconduct referred to Wingate at [43]. Consistent with Lee at [67], we regard this dishonesty as being very serious. We consider that this dishonesty has created a greater need for specific and general deterrence;
4. the respondent has adduced no evidence that demonstrates any insight as to the reasons for his conduct towards Client A or that he has put in place measures to safeguard against a reoccurrence. Rather than admit his conduct and address the reasons for it, the respondent has neither apologised for his behaviour nor expressed any remorse or contrition. On the contrary, he has continued not to acknowledge his conduct toward Client A;
5. the character references are unsatisfactory as it is clear that none of the referees disclose that there have been informed of the allegations against the respondent in the Complaint.
Having regard to ss 3, 3A and 4 of the National Law, the legal principles in [50] to [61] above, and the matters set out in [139] above, we are satisfied that it is appropriate to cancel the respondent's registration pursuant to s 149C(1)(b) of the National Law. In making this decision we have had regard to Morsingh OD (No 3) and Morsingh CA in which the nature of the sexual conduct of the appellant with the patient was not as extensive, and his response to the complaint was similar, to that of the respondent. Given that he engaged in the most serious conduct of Complaint One for his own sexual gratification, his dishonesty, and lack of insight, contrition and remorse, we do not consider that it is appropriate to reprimand the respondent. While recognising its potential for serious adverse implications, a reprimand would not be sufficient to denounce the professional misconduct of the kind which we have found, either to the respondent himself or to the general body of psychologists. Further, having regard to the principles in Litchfield at 639 which we consider apply equally to the exercise of the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law, we do not accept that it would be appropriate to impose conditions on the respondent's registration with respect to female clients.
Having regard to ss 3, 3A and 4 of the National Law, the legal principles in Menz (No 2) at [19], and the matters set out in [139] above, we are satisfied that the respondent poses a substantial risk to the health of members of the public, and it is appropriate to make the prohibition order against the respondent sought by the applicant pursuant to s 149C(5) of the National Law.
Having regard to ss 3, 3A and 4 of the National Law, the legal principles in Chen at [22] and [88], and the matters set out in [139] above, we are satisfied that it is appropriate to fix a non-renewal period of two years pursuant to s 149C(7) of the National Law for the cancellation of the respondent's registration and the making of the prohibition order against the respondent. But for the respondent's dishonesty and lack of lack of insight, contrition and remorse, we would have imposed a shorter non-renewal period.
[16]
Issue 4: the costs of the proceedings
Having regard to the principles in Philipiah at [42]-[46] and Neale at [8]-[10], we have decided pursuant to cl 13 of Sch 5D of the National Law to order the respondent to pay the applicant's costs of the proceedings as agreed or assessed.
[17]
Orders
We make the following orders:
1. The respondent's registration is cancelled.
2. The respondent is prohibited from providing any health service as defined in s 5 of the Health Practitioner Regulation National Law (NSW).
3. The respondent may not apply for a review of orders (1) and (2) above for two years from the date of this decision.
4. The respondent is to the costs of the applicant of the proceedings as agreed or assessed.
[18]
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: 04 July 2024
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Richter v Walton [1993] NSWCA 233
Texts Cited: None cited
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Ali Sahebi (Respondent)
Representation: Counsel:
I Chatterjee (Applicant)
The proof of facts
In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52].
In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), Dixon J commented at 362:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..."
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171 (Neat Holdings), the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said:
"[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations omitted)
Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
In approaching this issue we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126]-[127] (Leeming JA, with Basten JA at [1] and Gleeson JA at [37] agreeing); Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [85]-[87] (Payne JA, with Leeming JA at [1] and Simpson AJA at [118] agreeing).
In Health Care Complaints Commission v Ng [2015] NSWCATOD 85 at [128]-[130] the Tribunal set out the following observations on assessing the credit of a witness:
"[128] We found the recent discussion by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73] to [79] to be of considerable assistance. To paraphrase his Honour:
(1) Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence is of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477.
(2) The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] Keane JA; referred to with approval by Leeming JA in New South Wales v Hunt [2014] NSWCA 47 at [56].
(3) A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].
[129] His Honour also referred at [75] to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, who stated at 431:
a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
[130] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 at [57]; In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7]."
The relevance of character evidence
In Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158 at [47], Stein JA made the following observations in an appeal from the Medical Tribunal (with Powell JA at [1] and Rolfe AJA at [54] agreeing):
"[47] Nonetheless, it is plain that the Tribunal is not entitled to take character into account in considering whether a practitioner is guilty of unsatisfactory professional conduct. It is difficult to see, given the admission of careless conduct by the respondent, (which was accepted by the Tribunal) what probative force such evidence would have. It had no relevance to the consequences which might flow from the inadvertent error. It could, of course, be relevant to credit. But the mistake made by the practitioner involved no issue of credibility. The character evidence was, by its very nature, relevant to penalty, should the Tribunal get to that issue."
In Health Care Complaints Commission v Gao [2022] NSWCATOD 73 at [73]-[79], the Tribunal enunciated the following principles with respect to character evidence:
"[73] The Respondent has raised character evidence in his defence. Although the Tribunal is not bound by the rules of evidence (s 2, Schedule 5D to the National Law, s 38(2) Civil and Administrative Tribunal Act 2013 (NSW)), the common law principles, and statutory provisions which govern character evidence are instructive for present purposes.
[74] There is no statutory definition of character evidence, but the description advanced by Kirby J in Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 (although in dissent with respect to the merits of the case) is cited in the Civil Trials Bench Book published by the NSW Judicial Commission, which states that "character refers to the aggregate of qualities which distinguish one person from another, or the moral constitution of a person: it embodies the permanent and unchanging pattern of the nature of the individual concerned".
[75] Evidence of "good character" includes evidence of the accused's general good reputation, and evidence of the accused's favourable disposition (Stirland v Director of Public Prosecutions [1944] AC 315), which may be proved in a number of ways, and does not simply consist of evidence that the accused has not previously been convicted of an offence (Melbourne v R [1999] HCA 32; (1999) 198 CLR 1).
[76] Evidence of good character is not merely evidence which may make it more likely that the accused's evidence is credible, but also whether it is unlikely that the accused committed the offences charged, or, in these proceedings, committed the acts alleged against him (TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, at [35] Gleeson CJ, and [94] McHugh J). The evidence can only make it unlikely, rather than improbable, that the accused is guilty of the conduct alleged against him (R v Stalder (1981) 2 NSWLR 9).
[77] We apprehend that the Respondent's reliance upon character evidence in these proceedings is for both those purposes. Thus, Counsel for the Respondent submitted that his good character makes it unlikely that the Respondent would be guilty of the conduct alleged by Patient A, and unlikely that he would not tell the truth about his conduct (Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353, at [359], Eastman v R (1997) FCR 9, at [147], TKWJ v The Queen [2002] HCA 46, at [94]).
[78] The raising of good character requires a conscious decision on the part of the accused (R v Bartle [2003] NSWCCA 329, at [129]-[136]), and is not raised when a witness simply volunteers the evidence (PGM v R (2006) 164 A Crim R 426, at [35]). We are satisfied that the Respondent has squarely raised character in these proceedings, and not merely made emphatic denials of guilt (R v Skaf [2004] NSWCCA 74, at [223]-[226], R v El-Kheir [2004] NSWCCA 461, at [50]).
[79] The significance of the evidence of character in the present proceedings is limited. Although the Applicant has not expressly raised Patient A's good character, or inferentially raised it in a manner which would be required if the Tribunal was bound by the rules of evidence, we do not consider that the character of Patient A, or that of the Respondent ultimately makes it more or less likely that the evidence of the Respondent should be preferred to that of Patient A, or that the converse should apply because each is a person of good character."
The finding of unsatisfactory professional conduct
In Health Care Complaints Commission v Aref [2018] NSWCATOD 133 (Aref) at [18]-[20], the Tribunal considered the meaning of unsatisfactory professional conduct in s 139B(1)(a) and (l) of the National Law:
"[18] In making a finding of unsatisfactory professional conduct per (a), the Tribunal must compare the conduct of the practitioner with a standard 'reasonably expected'. In HCCC v Simonson [2017] NSWCATOD 87 the Tribunal noted at [9]:
'Obviously, there will be many cases where there is no one bright line which typifies the relevant knowledge, skill or judgement or care of such a practitioner. In most cases, the expected standard of relevant knowledge, skill or judgement or care of a practitioner will fall within a band, sometimes narrow and sometimes broader.'
[19] 'Improper' and 'unethical' are not defined in the National Law. The assessment of what constitutes improper or unethical conduct is based upon their ordinary meaning. In the professional disciplinary context there is necessarily some overlap between the two words.
[20] 'Improper' conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: HCCC v Phung (No 1) [2012] 1 NSWDT 3 at [68]; HCCC v Fisher [2016] NSWCATOD 62 at [57]; HCCC v Flekser [2016] NSWCATOD 1 at [119]. Improper and unethical conduct may be dishonest, disreputable to the profession, in breach of explicit professional standards such as codes of conduct, guidelines and competencies, and may also be determined by reference to the views of reasonable members of the profession: Slezak, Dr Peter [2011] NSWMPSC 10 at [83] and [87]."
The finding of professional misconduct
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen) at [19]-[20], Basten JA (with Leeming JA at [23] agreeing) relevantly said:
"[19] ... The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. …
[20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …"
In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 (Litchfield), the New South Wales Court of Appeal (Gleeson CJ, Meagher and Handley JJA) at 638 said in relation to professional misconduct:
"The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards."
The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law
In Lee v Health Care Complaints Commission [2012] NSWCA 80 (Lee) at [19]-[21], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law:
"[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. …
[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 … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], Meagher JA (with Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm:
"[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
The significance of a finding of dishonesty against a practitioner
In Lee at [67], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) made the following observation as to the significance of a finding of dishonesty against a practitioner:
"[67] … Cases of dishonesty are very serious. Cases of recklessness are also serious. This is particularly so where the protection of the public is at stake and the default is one that leaves patients exposed to a risk against which the practitioner is required by law to provide protection."
In Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 32 (Wingate) at [43], Basten JA (with McColl JA at [1] and Harrison J at [81] agreeing) referred to the duty of full and frank disclosure of misconduct which applies both to members and applicants for membership of professions such as law and medicine.
The exercise of the power of the Tribunal to reprimand the practitioner
In Health Care Complaints Commission v Lord [2019] NSWCATOD 182 at [41]-[42], the Tribunal considered the difference between a caution and a reprimand:
"[41] In Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 (Dowla (No 2)), the Tribunal considered at [42] the difference between a caution and a reprimand under s 149A(1)(a) of the National Law and cited with approval the decision of the Victorian Civil and Administrative Tribunal in Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 (Coleman), in which the Tribunal explained at [14]:
[T]he ordinary meaning of the words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences. In Peeke v Medical Board of Victoria (unreported, Marks J. 19 January 1994). His Honour commented on a view that had been expressed to the effect that to impose a reprimand was to trivialise a serious lapse in professional standards. His retort was succinct -
I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications.
[42] As noted by the Tribunal in Dowla (No 2) at [44], a reprimand, if imposed, will appear on the record of a practitioner's registration maintained by the Australian Health Practitioner Regulation Agency (AHPRA): s 225(j). In contrast, the National Law does not require AHPRA to record a caution on practitioner's record."
The Tribunal has held that the concept of general deterrence and the need to uphold public confidence in the standards of the profession in an appropriate case will be adequately addressed if the misconduct of the practitioner is denounced, in the sense of being openly condemned, by reprimanding him: Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [94]-[95]; Healthcare Complaints Commission v Hollenbach [2019] NSWCATOD 118 at [553]; Health Care Complaints Commission v Lu [2023] NSWCATOD 51 at [60].
The exercise of the power of the Tribunal to impose conditions on the practitioner's registration
In Litchfield the New South Wales Court of Appeal (Gleeson CJ, Meagher JA, Handley JA) allowed an appeal from the decision of the Medical Tribunal under the Medical Practice Act 1992 (NSW) that the practitioner be suspended from practising medicine for nine months, that he attend for assessment by a psychiatrist appointed by the Medical Board, who was to report to it within the period of suspension, and that for the following twelve months he should practise in a position approved by the Medical Board. The Court at 639 over-ruled Richter v Walton [1993] NSWCA 233:
"Mr Joseph submitted that we should over-rule the decision in Richter v Walton where this Court by majority set aside an order of the Tribunal removing the appellant's name from the register and substituted an order imposing conditions prohibiting the appellant, except in the case of an emergency, from seeing a female patient except in the continuous presence of a female chaperone. The majority thus found that the appellant could not be trusted to observe proper professional standards in his conduct towards female patients unless a female chaperone was present throughout. With the greatest of respect the necessity for imposing such conditions on the appellant's registration demonstrated that he was unfit to practise medicine and in those circumstances the only appropriate order was one dismissing his appeal. The dissenting judgment of Priestley JA was entirely correct, and the majority decision should be over-ruled."
The exercise of the power of the Tribunal to cancel the registration of the practitioner and to specify a non-review period
In Chen at [21]-[22], Basten JA (with Leeming JA at [23] agreeing) considered the operation of s 149C of the National Law:
"[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.
[22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. …"
In Chen at [88], Payne JA (with Basten JA at [1] and Leeming JA at [23] agreeing) considered the operation of s 149C(7) of the National Law:
"[88] … a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order."
In Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28 (Morsingh OD (No 3)) the Tribunal found that the practitioner engaged in inappropriate conduct which included sexual touching towards a female patient on a single occasion. The Tribunal relevantly decided to cancel the practitioner's registration, to fix a non-renewal period of two years, and to make a prohibition order against the practitioner.
In Morsingh v Health Care Complaints Commission [2022] NSWCA 106 (Morsingh CA) the New South Wales Court of Appeal relevantly dismissed an appeal by the practitioner against the cancellation of his registration as decided in Morsingh OD (No 3). Mitchelmore JA at [87]-[88] (with White JA at [1] and Basten AJA at [103] agreeing) rejected the submission that cancellation of the practitioner's registration was unreasonable. Her Honour had earlier at [76]-[79] relevantly set out the findings of the Tribunal:
"[76] The Tribunal ultimately concluded that Dr Morsingh had used his consultation with Patient A to "indulge his own social and sexual inclinations" and found that the circumstances were sufficiently serious to justify cancellation of registration: Stage 2 Decision [56]-[57]. …
[77] The Tribunal stated that such factors "alone" made Dr Morsingh's actions "sufficiently serious to justify suspension or cancellation of his registration as a medical practitioner": Stage 2 Decision [57]. In addition, the Tribunal noted that rather than admit the conduct and address the reasons for it, Dr Morsingh had sought to discredit Patient A: Stage 2 Decision [59]-[60]. The Tribunal stated that it could not be satisfied that a practitioner who was persistently untruthful about matters that are centrally relevant to the complaints, and persistently sought to undermine the victim's truthful account of those matters, was capable of acting with integrity and observing the high ethical standards that apply to the medical profession, or that they are a suitable repository of trust and confidence. It considered that such circumstances created a greater need for specific and general deterrence (Stage 2 Decision [65]-[66]), noting that Dr Morsingh had not admitted several of the allegations including as to sexual touching: Stage 2 Decision [67].
…
[79] In response to the list of cases on which Dr Morsingh relied for the purposes of comparison, the Tribunal did not consider any of them was on all fours with his case: Stage 2 Decision [72]. Although the impugned conduct related to a single consultation over the course of many years of practice, Dr Morsingh had not addressed the issues in a constructive way, and the Tribunal's paramount consideration had to be the protection of the health and safety of the public: Stage 2 Decision [73]. Dr Morsingh had not apologised for his behaviour, "much of which he has not acknowledged", and he had not expressed any remorse or contrition: Stage 2 Decision [76]. The Tribunal expressed its conclusion regarding Dr Morsingh's registration at [77]-[78] of the Stage 2 Decision:
"We have given close consideration to the question of whether Dr Morsingh could continue to practise under supervision with a condition requiring him not to consult with or treat females over the age of 11 years old except in an emergency. We do not consider that such a course would be sufficient to denounce misconduct of the kind which is the subject of this matter, either to Dr Morsingh or to the general body of medical practitioners.
In order to protect the public, denounce the crossing of professional and sexual boundaries and maintain public confidence in the medical profession, it is appropriate to cancel Dr Morsingh's registration as a medical practitioner under s 149C(1)(b) of the National Law."
The exercise of the power of the Tribunal to make a prohibition order
The meaning of "substantial risk" in s 149C(5) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 (Menz (No 2)) at [19]:
"[19] Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services."
The exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law
In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46], Emmett JA (with Meagher JA at [1] and Beech-Jones J at [50] agreeing) set out the principles relevant to the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law:
"[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied.
[43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95).
[44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.
[45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner.
[46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. …"
The second aspect of the rule in Browne v Dunn is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) at [69]-[70], [137].
No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88].
In Health Care Complaints Commission v Neale [2024] NSWCATOD 16 (Neale) at [8]-[10], the Tribunal relevantly said:
"[8] In its submissions with respect to costs dated 4 August 2023 the Applicant identified the relevant statutory provisions with respect to costs and a number of the principles relevant in that regard. As is not in doubt, costs are awarded to compensate a successful party, rather than punish an unsuccessful party and, as a general rule, follow the event (HCCC v Philipiah [2013] NSWCA 342).
[9] The presumption that a successful party is entitled to receive its costs is generally only displaced where there has been some disentitling conduct by the successful party (Oshlack v Richmond River Council (1998) 193 CLR 72 [1998] HCA 11, Health Care Complaints Commission v CSM [2016] NSWCATOD 125, Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154).
[10] A respondent bears the onus of establishing a basis for any departure from the general rule (Health Care Complaints Commission v Livermore [2021] NSWCATOD 115). If the successful party is found to have engaged in disentitling conduct the general rule may be departed from."