Health Care Complaints Commission v Yildirim

NCAT Occupational|2022-04-26

Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2020/00317626

REASONS FOR DECISION

In a decision handed down in 2021, we found physiotherapist, Mr Oscar Yildirim guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) (the National Law): Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 (the Decision). These reasons address whether it is appropriate to exercise the discretion to make protective orders in respect of Mr Yildirim and, if so, the form of orders that should be made.
The conduct we found to amount to professional misconduct (the impugned conduct) involved Mr Yildirim's treatment of a young female patient for lower back pain during two consultations in July 2018. Among other things, we found that during both consultations, Mr Yildirim failed to use a towel to cover the patient's lower back and gluteal region to maintain her dignity. With respect to the second consultation, we found that on three occasions Mr Yildirim pulled the patient's underwear away from her body, exposing her pubic region, in circumstances where there was no clinical reason to do so. We concluded that taken together the proven conduct amounted to "inappropriate conduct of a sexual nature".

Principles governing the exercise of the power to make protective orders

Where, as here, a complaint made under the National Law is found proven, the Tribunal may exercise any of the powers in sub-div 6, div 3 of pt 8 of the National Law. They include the powers to caution, reprimand and impose conditions on a practitioner's registration. Where, the Tribunal finds that a practitioner is guilty of professional misconduct, it may suspend or cancel the practitioner's registration: National Law, s 149C(1).
In exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: National Law, s 3A. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA observed at [20] that, in making protective orders, the task of the decision maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83].
Commenting on the exercise of the power to make a cancellation order, Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 ("Chen") stated at [14]: "There may well be cases in which, in the proper exercise of its discretion, based upon the findings it has made, the Tribunal would err in failing to cancel a practitioner's registration; in other cases, cancellation may be seen as an unreasonable or disproportionate exercise of the power conferred on the Tribunal." (Footnotes omitted)

Submissions: the Commission

The Commission contends that it is appropriate and necessary to cancel Mr Yildirim's registration for these reasons.
First, citing Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], it would serve to denounce the impugned conduct: "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."
Second, pointing to the power imbalance inherent in the health practitioner-patient relationship, the Commission contends that the impugned conduct amounted to a violation of sexual boundaries, conduct of the most serious kind and contrary to the standards expected of health practitioners by the community, in particular female patients, citing HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638: "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe."
Third, the Commission contends that there is no evidence to suggest that Mr Yildirim accepts the findings made by the Tribunal, is remorseful for, or has taken steps to address the impugned conduct. The Commission argues that it is "simply extraordinary" that despite being invited to do so, Mr Yildirim failed to provide any material to assist the Tribunal to determine whether there is a risk that the impugned conduct might be repeated. The Commission argues that there are no "solid and substantial grounds" (Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 422) which would enable the Tribunal to conclude that Mr Yildirim would act differently in the future. The Commission argues that this case calls out for "specific deterrence".

Submissions: Mr Yildirim

Mr Yildirim contends that contrary to the principles stated in the authorities on which the Commission relies, the orders sought by the Commission are neither justified nor tailored to the particular circumstances of his case.
Mr Yildirim acknowledges that the impugned conduct is very serious. However, he contends that that conduct could not be characterised as conduct of the most serious type. The substance of that conduct involved three, albeit serious transgressions, which occurred during a single consultation. Mr Yildirim points out that the Tribunal found not proven the more egregious conduct alleged by the Commission, including that he had moved the patient's underwear for the purpose of viewing her genitals.
Mr Yildirim argues that the following considerations are relevant to the exercise of the Tribunal's discretion to make protective orders: 1. His long (1997 to early 2020) and otherwise unblemished career. 2. His reputation as a person of good character as evidenced by the character references provided to the Tribunal by five people of good repute. Each variously described the impugned conduct as "surprising" and "out of character". Each stated that they have never observed Mr Yildirim behave inappropriately towards any person. One referee, a senior lawyer who has known Mr Yildirim for 30 years, stated that on the countless occasions she and Mr Yildirim have interacted over that period, she has never observed Mr Yildirim be disrespectful towards any woman or exhibit any concerning behaviour (including conduct of a sexual nature). 3. Mr Yildirim has not practised as a physiotherapist for over two years. In June 2020, he consented, without admissions, to a condition being placed on his registration that he not practise until the determination of the complaint.
Mr Yildirim contends that the Tribunal should reject the Commission's argument that cancellation is the only form of order that would serve to denounce the impugned conduct and to protect the public. He contends that suspension of his registration would serve to denounce his conduct. In addition, he contends that any number of conditions could be formulated to ameliorate any apprehended risk he may pose to patients.

Consideration

The National Law directs that, in exercising the power to make protective orders, the health and safety of the public is the paramount consideration. The jurisdiction exercised is protective, not punitive. As Basten JA explained in Prakash v Health Care Complaints Commission [2006] NSWCA 153, at [101] "[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".
There can be no argument that Mr Yildirim's conduct must be denounced. The issue is whether as the Commission implicitly submits, any order short of cancellation, fails to achieve that objective. In exercising the power to make protective orders, the form of order must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom measures are imposed): Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [105]. We have concluded that in the circumstances of this case, cancellation would amount to what Basten JA described in Chen at [14], as an "unreasonable or disproportionate exercise of the power" conferred on the Tribunal.
The impugned conduct was undoubtedly serious. However, as Mr Yildirim contends it could not be described as conduct of the most serious type. It largely occurred during a single consultation and did not involve the touching of the patient's genitals, inappropriate comments, or requests for sexual favours. In our view subject to whether it is necessary and appropriate for the protection of the public from Mr Yildirim, a reprimand and the suspension of Mr Yildirim's registration would serve to appropriately denounce the impugned conduct to the profession and the public.
As the Commission points out, Mr Yildirim's decision not to provide evidence to, or indeed to attend the second stage hearing, has left us without any information about whether Mr Yildirim continues to deny the impugned conduct, is remorseful for that conduct, has insight into that conduct, or indeed is prepared to undertake steps to address the risk of that conduct being repeated.
On the available evidence, we are not satisfied that Mr Yildirim would pose a substantial risk to female patients if he were to return to practice as a physiotherapist. In making that finding we note that the impugned conduct involved a single patient and was an isolated incident in a long and otherwise unblemished career. Nonetheless, in circumstances where Mr Yildirim has failed to provide any evidence to assist us to evaluate whether there is a risk that the impugned conduct might be repeated, and, if so, the nature of that risk, we have decided that it is necessary and appropriate to impose a blanket condition preventing Mr Yildirim from treating female patients. In addition, we have decided to impose several conditions designed to ensure that the condition can be monitored, including that Mr Yildirim does not work in sole practice, including as a locum.

Should a prohibition order be made?

In oral submissions, the Commission sought a prohibition order under s 149C(5) of the National Law. The form of order sought is extremely wide and would prevent Mr Yildirim from providing "any health service", as defined by s 4 of the Health Care Complaints Act 1993 (NSW).
The power to make a prohibition order can only be exercised if we are satisfied that Mr Yildirim poses a "substantial risk to the health of members of the public" (emphasis added): Health Care Complaints Commission v Menz (No. 2) [2017] NSWCATOD 172 at [18]; Health Care Complaints Commission v Grygiel [2021] NSWCATOD 28 at [437].
The Commission has not pointed to any particular evidence to support the proposition that Mr Yildirim might pose a substantial risk to the health of members of the public, if he were to provide any health service. Nor has the Commission identified the nature of the risk Mr Yildirim might pose if he were to provide health services, outside the area of physiotherapy. Nor has the Commission advanced considered argument to support the contention that the exercise of the discretion to make an order of such breadth, is justified.
The Commission has failed to establish that Mr Yildirim poses a substantial risk to the health of members of the public. The power to make a prohibition order cannot be exercised.

Costs

Mr Yildirim properly concedes, there is no factor which might justify a departure from the "general rule" that he pay the Commission's costs.
We order that Mr Yildirim pay the Commission's costs, as agreed, or assessed.

Orders 1. Mr Yildirim is reprimanded. 2. Mr Yildirim's registration is suspended for a period of six months. 3. After the period of suspension, the following conditions are imposed on Mr Yildirim's registration: 1. Mr Yildirim is not to treat any female patients. 2. Mr Yildirim is not to engage in solo practice, including as a locum. 3. Mr Yildirim must give his employer written notice of these conditions. Within five days of commencing new employment, Mr Yildirim must provide to the Physiotherapy Council of NSW (the Council) a statement signed by his current employer, which states that they have been provided with a copy of the conditions. 4. Mr Yildirim is to provide to the Council any material requested by the Council to evidence compliance with the above conditions. 1. Mr Yildirim is not to seek review of these conditions for 24 months. 2. Mr Yildirim is to pay the Commission's costs, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for the decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 08 September 2022

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