On 24 September 2021 Dr Faris Ibrahim Yacoub Hejazin (the Applicant) filed an amended External Appeal Form (the original Appeal document being filed 3 September 2021) in relation to the decision of the Medical Council of New South Wales (the Medical Council) made 2 September 2021. That decision, made pursuant to section 150 of the Health Practitioner Regulation National Law (NSW) (The National Law), suspended the registration of the Applicant.
On 3 September 2021 the Applicant filed an Application for a Stay of the order made on 2 September 2021. That Application was amended by the filing of an Amended Application for a Stay on 24 September 2021.
The order made by the Medical Council on 2 September 2021 was that the registration of the Applicant, as a medical practitioner, was suspended under s 150 of the National Law, effective from 5 pm on 2 September 2021.
The Applicant has appealed that determination by filing his Appeal pursuant to ss 159 and 159B of the National Law. Section 159B empowers the Tribunal to determine an appeal on a point of law.
The order sought by the Applicant in his Amended Stay application is as follows:
"That the decision of the Delegates of the Medical Council on 2 September 2021 to suspend Dr Hejazin's registration is stayed pending the outcome of the appeal pursuant to s.159B of the National Law."
The Applicant relies upon s 165L(2) of the National Law to establish the jurisdiction of the Tribunal to grant the Stay he seeks. That section provides that: "The Tribunal may, in respect of an appeal under s 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of."
The decision of the Medical Council is contained in a bundle of documents admitted to evidence and marked R1 in the proceeding. At Tab 9 is a copy of the reasons published by the Medical Council delegates on 16 September 2021.
The background to the Stay Application is set out concisely in the submission of the Applicant marked as MFI1 for identification purposes. I here set out that summary:
"1. Background
1.1 Dr Faris Ibrahim Yacoub Hejazin (Dr Hejazin) is a general practitioner who is employed at TeamMed Medical and Dental Centre, Wollongong, where he has been employed since mid 2015.
1.2 On 5 July 2021 Dr Hejazin was charged with two criminal offences: Common Assault, contrary to s. 61 of the Crimes Act 1900 (NSW), and Contravening an Apprehended Violence Order, contrary to s. 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The complainant is Dr Hejazin's former partner, [Person J].
1.3 On 9 July 2021, that is, four days after he was charged, Dr Hejazin self-notified the Australian Health Practitioner Regulation Agency (AHPRA) pursuant to s. 130 of the Health Practitioner Regulation National Law (NSW) (the National Law).
1.4 Dr Hejazin has entered pleas of not guilty to both charges and the matter is listed for hearing in the Local Court on 25 February 2022.
1.5 On 4 August 2021 the Medical Council (the Council) was notified, and on 2 September 2021 a section 150 hearing was conducted before two Delegates of the Council: Dr Simon Cowap and Ms Diane Robinson (the Delegates) (The s. 150 Hearing). Dr Hejazin gave evidence before the Council.
1.6 The Delegates suspended Dr Hejazin's registration on 2 September 2021 with effect from 5pm on 2 September 2021. On 16 September 2021 the Delegates delivered their reasons (Delegate's reasons).
1.7 Dr Hejazin appeals to the Tribunal against the decision of the Council pursuant to section 159 and 159B of the National Law.
1.8 Section 165L(2) provides for the Tribunal to stay the decision appealed against until the appeal pursuant to s 159B of the National Law has been disposed of: s. 165L(2) National Law. Dr Hejazin seeks a stay of the decision of the Delegates decision pursuant to s. 165L(2) of the National Law.
1.9 The stay is sought on the following grounds:
(1) The appeal pursuant to s. 159B has reasonably arguable prospects of success;
(2) The health and safety of the public will not be negatively affected by a stay;
(3) A stay is necessary to ensure the effectiveness of the appeal;
(4) The balance of convenience favours a stay."
Submissions and Evidence
The Medical Council relies on the decision of Boland AM ADCJ in Segal v Medical Council of New South Wales [2020] NSWCATOD 86 ("Segal") as the approach the Tribunal takes in considering an application for a stay of an order of the Medical Council where an appeal has been lodged, as in this case. In that decision Her Honour set out the principles which she said were relevant to the granting of a stay. Her Honour said, at [43]-[48]:
"Principles relevant to the granting of a stay and relevant statutory provisions
It is undisputed that the Tribunal's only power under the National Law to grant a stay is pending the hearing of an appeal on a question of law under s 159B (see Medical Council of New South Wales v Lee [2017] NSWCA 282). The principles applicable to this stay application are subject of well-established authority. I repeat my summary of the authorities as set out Taylor v Medical Board of Australia [2018] NSWCATOD 50 at [10]- [11].
The relevant principles to be applied in determining a stay application in the context of a commercial dispute were set out in this Tribunal by Wright J in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37. That decision refers to a number of authorities on the topic of stays including Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685. Additional considerations apply to matters which may affect the public (see NSW Bar Association v Stevens [2003] NSWCA 95 at [91] and Kirbach v Health Care Complaints Commission [2015] NSWCATAD 195). In this and in all matters under the National Law the Tribunal is required to apply the objective and guiding principle set out in s 3A. Section 3A provides as follows:
3A Objective and guiding principle [NSW]
In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
The general principles to be applied in considering whether to grant or refuse a stay are summarised by the Full Court of the Family Court in Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106. While the Full Court refers to the taking into account the best interests of a child in parenting proceedings as a paramount consideration, similarly in applications under the National Law third party interests (the health and safety of the public) are the paramount consideration. The Full Court explained at [18]:
The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
• a person who has obtained a judgment is entitled to presume the judgment is correct;
• the mere filing of an appeal is insufficient to grant a stay;
• the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;
• a person who has obtained a judgment is entitled to the benefit of that judgment;
• the bona fides of the applicant;
• a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
• a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted - this will be a substantial factor in determining whether it will be appropriate to grant a stay;
• some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
• the desirability of limiting the frequency of any change in a child's living arrangements;
• the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
• the best interests of the child the subject of the proceedings are a significant consideration.
Of particular relevance in this stay application are the principles espoused by Spigelmen CJ in New South Wales Bar Association v Stevens [2003] NSWCA 95 at [90]- [104] and at [106]. His Honour explained at [91]:
The relevant authorities indicate that the protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree.
Later, at [103]-[104] his Honour further referred to the importance of public interest considerations as follows:
The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said:
"In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only."
It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight.
I also have regard to the decision of Legal Services Commissioner v Barker [2005] QCA 482 and in particular the discussion in that decision of a stay in the context of a legal practitioner where protection of the public is a relevant consideration. Other authorities in this Tribunal also stress the unique considerations to be taken into account in considering a stay involving a health professional (see Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13; Hill v Medical Council of NSW [2019] NSWCATOD 52).
As noted above, the appeal on a point of law and the stay application fall to be determined under the National Law. As with all applications under the National Law the object in s 3A is relevant, namely, that the health and safety of the public must be the paramount consideration.
Only two provisions of the National Law deal with stays pending an appeal. Those provisions are s 161B and s 165L (2)."
In the submission provided by the Applicant he relied upon the decision of Cowdroy AO QC ADCJ in Ansari v Medical Council of NSW [2021] NSWCATOD 138 where at [60]-[61] His Honour set out general principles applicable to a stay application determination as follows:
"Stay Principles
The principles concerning the grant of a stay have been succinctly referred to in Hill and in Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 at [11]- [12]. A summary of the principles is as follows:
(1) The onus rests on an applicant for a stay to make out a case that it is appropriate to make such an order.
(2) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal.
(3) The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay.
(4) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies.
(5) In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties.
(6) The overriding principle in an application for a stay is to ask what the interests of justice require.
The applicant submits that such principles should be considered in view of the object of the National Law and the paramount consideration of the protection of the health and safety of the public set out in section 3A: see Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77. Those principles are not in dispute. But this application relates to s150 proceedings."
In the submission of the Medical Council it sets out the detail of the s 150 decision made on 2 September 2021 which gave rise to the suspension of the Applicant's registration. The most relevant findings and conclusions found in that determination have been encapsulated into that submission as follows:
"The s150 Decision
28 The s150 Decision found that the Appellant's conduct the subject of the criminal proceedings had been longstanding since 2017 and it had escalated from arguments and pushing to the alleged incident on 5 July 2021 involving two chokes, including one of them in the presence of the Appellant's 4 year old child. The Council had significant concerns that the Appellant had engaged in past remediation including the men's behaviour change course and the conduct had continued. The Council was also concerned that the Appellant acknowledged that he was treating victims of family violence.
29 During the s150 hearing the Appellant acknowledged "that some of his patients have experienced trauma, including domestic violence."
30 The Appellant had not received the alleged victim's statement or the Police Brief of Evidence . He has entered a plea of not guilty and the matter is listed for hearing on 25 February 2022. His Counsel indicated that an application relating to the Appellant's mental health may be made .
31 During the s150 hearing the Appellant said that the provisional ADVO resulted from an argument between him and the alleged victim and neighbours called the police "He said there had been many arguments around this time and he had responded by pushing or threatening [the alleged victim]. He acknowledged his behaviour had been witnessed by the children on some occasions."
32 "The Delegates asked Dr Hejazin why his response to a disagreement had been an aggressive one … he mentioned differences in cultural background and different relationship dynamics in Jordan. He also spoke of his impulsivity issues and problems with emotional regulation."
33 The s150 Decision refers to the 2016 Australian Medical Association Position Statement on Family and Domestic Violence.
34 The s150 Decision had regard to the Supreme Court decision of Kirby v Dental Council of NSW [2020] NSWCA 91 at [15] of Brereton JA.
35 The s150 Decision said "While for understandable reasons he did not wish to answer questions about his alleged conduct in July 2021, he did tell the Delegates about his past conduct and he acknowledged a pattern of aggressive behaviour that was problematic."
36 It is apparent from the evidence that the issues of conflict in the Appellant's and his former partner's relationship are longstanding, including in 2017 when a referral was made by the Family and Community Services and the family was referred to Relationships Australia. The Appellant completed a Relationships Australia men's behavioural change programme, a 20 week course. Notwithstanding that, the pattern of behaviour appears to have continued.
37 The s150 Decision found relevantly as follows :
"He said there had been instances where he had pushed and threatened [Person J] in the presence of her son.
In November 2019 and the AVO was taken out … Dr Hejazin again acknowledged that his behaviour involved pushing, shouting and threatening [Person J]
The current allegations relate to arguably more serious conduct in that Dr Hejazin is charged with common assault involving choking [Person J] on two occasions and on one of those occasions in the presence of their four year old son, [son's name].
…
"It is of concern to the Delegates that there appears to be a pattern of threatening and aggressive behaviour by Dr Hejazin towards [Person J]. This pattern has occurred over a significant period of time. On his own evidence it was occurring in 2017 and in 2019 and allegedly it has persisted until July 2021.
We note that it has persisted despite a number of attempts to remediate and manage the problem behaviour. Dr Hejazin has been referred to and involved with Relationships Australia. He has completed a 6 month Men's Behaviour Change Programme. He has undertaken some couple's counselling with [Person J]. He has been involved in a FACS notification and an AVO has been taken out against him, yet despite these events and interventions his behaviour appears to be entrenched and arguably escalating.
There is no suggestion that Dr Hejazin is threatening or aggressive towards his patients. There is no evidence that his clinical performance is anything but satisfactory.
However, Dr Hejazin has several patients who are the victims of domestic violence. He said he is committed to assisting and supporting them. The Delegates consider that there is a risk to the emotional and physical well-being of those patients should they become aware that Dr Hejazin has been and is again alleged to be a perpetrator of domestic violence. The nature, frequency and alleged repetition of that domestic violence are important considerations here. The trust and confidence such a patient has in Dr Hejazin may be seriously damaged and their own treatment compromised. Indeed, trust and confidence in the profession generally may be impacted, so that a patient becomes reluctant to consult or seek help from another general practitioner or follow medical advice.
The AMA Position Statement notes that a medical practitioner's personal attitudes and assumptions about abuse and violence can affect the way he or she responds to patients experiencing abuse and violence. The Delegates question whether this could be the case for Dr Hejazin, where he feels "too close" to some of the issues he has to deal with for domestic violence patients."
38 The s150 Decision concluded that it was in the public interest to take action in relation to the Appellant as follows :
"The Delegates consider that Dr Hejazin's conduct, as acknowledged and as alleged, would fall short of the conduct expected of a medical practitioner. It is not in the public interest that a practitioner engage in, or allegedly engage in, conduct that brings the medical profession into disrepute and undermines public confidence in the profession. The nature, extent and seriousness of Dr Hejazin's conduct brings it within this category."
39 The s150 Decision also found that there was a risk to the health and safety of some of the Appellant's patients, making it appropriate also to take action .
40 In considering supervision as proposed by the Appellant, the s150 Decision found :
"Supervision is more effective when a practitioner can benefit from clinical support and re-education or where issues of professional performance arise. This is not the case for Dr Hejazin and the Delegates do not consider supervision to be an appropriate response to criminal charges for domestic violence offences."
41 In relation to the Appellant's mental health, the s150 Decision concluded :
"In summary, Dr Hejazin does not have a major mental health illness. There is no suggestion that he is impaired within the meaning of the National Law. He may have ADHD. He may have PTSD. The Delegates are unable to identify a clear diagnosis which might support the submission that a mental illness or mental condition is the explanation for his aggressive behaviour."
42 The s150 Decision concluded in relation to the Appellant's conduct as follows :
"In balancing the matters referred to in Coutinho, the Delegates consider that the past domestic violence Dr Hejazin has acknowledged and the offences with which he is now charged are serious matters. They have involved pushing, shouting, threatening and allegedly choking his former partner in the presence of his children. His conduct has continued over a period of some time and has not responded to attempts at remediation. The Delegates refer again to the comments made in Health Complaints Commission v Haasbroek [2018] NSWCATOD 177 at paragraph 93:
"General practitioners are frequently the first point of contact for victims of domestic violence. The public can only have confidence in such practitioners if the response of those practitioners to domestic violence, both personally and publicly, is exemplary."
Not only is the emotional and psychological wellbeing of some of his own patients at risk because of his conduct, the public interest more generally requires that action be taken, in response to his actual and alleged conduct, to maintain and protect public trust and confidence in the profession.
The Delegates are not comfortably satisfied there are conditions that could be imposed on Dr Hejazin's registration that would sufficiently mitigate the identified risks to the health or safety of the public and sufficiently mitigate concerns in relation to the public interest. The Delegates consider that action should be taken and interim suspension of Dr Hejazin's registration is appropriate."
The Applicant particularly drew my attention to the findings of the Delegates of the Medical Council, as set out in paragraph 37 and 38 of the Medical Council decision (above), together with the following words, which immediately followed the words quoted in paragraph 38 as follows: "In summary, the delegates consider that there is a risk to the health and safety of some of Dr Hejazin's patients and that there are also public interest considerations, which make it appropriate that action be taken in relation to Dr Hejazin."
The Applicant also drew my attention to the final portion of the reasons published by the Medical Council which drew upon the words of the Tribunal published at [49] of the decision in Coutinho v Dental Council of NSW [2018] NSWCATOD 98. Only part of that paragraph of the decision was quoted in the judgment however, the context of the quote, in my view requires the whole of the cited paragraph. That is as follows:
"The respondent submitted that the offence in this case was more serious, and more significantly impacted on the public interest, because the victim of the assault was also a dentist. We do not accept that submission. We see no connection between the fact of the victim being a dentist and the public interest necessitating the appellant's registration being suspended. The more serious aspect of the assault was the domestic violence aspect of it. However, we do not accept that because the offence was committed in a domestic context, that of itself automatically means that it is in the public interest that the appellant be suspended from the practice of his profession. Determining whether the public interest requires a suspension of a professional's registration involves a balancing of matters including the nature of the offence, whether the conduct giving rise to the offence would lead to the erosion of confidence by the public or patients in the relevant profession, as against the draconian nature of the suspension and its impact on the professional involved and his or her patients."
Having set out a portion of the above quoted passage, the Medical Council stated in its' decision:
"In balancing the matters referred to in Coutinho, the delegates consider that the past domestic violence Dr Hejazin has acknowledged and the offences with which he is now charged are serious matters. They have involved pushing, shouting, threatening and allegedly choking his former partner in the presence of his children. His conduct has continued over a period of some time and has not responded to attempts at remediation. The delegates refer again to the comments made in Health Care Complaints Commission Complaints Commission v Haasbroek [2018] NSWCATOD 177, at paragraph [93]:
"General practitioners are frequently the first point of contact for victims of domestic violence. The public can only have confidence in such practitioners if the response of those practitioners to domestic violence, both personally and publicly, is exemplary."
Not only is the emotional and psychological well-being of some of his own patients at risk because of his conduct, the public interest more generally requires that action be taken, in response to his actual and alleged conduct, to maintain and protect trust and confidence in the profession.
The delegates are not comfortably satisfied there are conditions that could be imposed on Dr Hejazin's registration that would sufficiently mitigate the identified risks to the health or safety of the public and sufficiently mitigate concerns in relation to the public interest. The delegates consider that action should be taken and interim suspension of Dr Hejazin's registration is appropriate."
Again I note that the words extracted from the decision of Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 ("Haasbroek") do not include the whole of the paragraph from which the quote was extracted. The words which preceded the extract in [93] are as follows:
"Our orders, however, must also uphold the standards of members of the medical profession to ensure that they continue to be held in high regard by their patients, the public generally, and other professionals. This means practitioners must act, both personally and professionally, with integrity and with respect for the law, in all aspects of their behaviour."
As was pointed out by the Applicant's counsel, the practitioner in the decision of Haasbroek was given a reprimand, not suspension or cancellation of his registration.
The Applicant also relied upon the decision in Haasbroek as an example of how the Applicant might expect to be dealt with by the Tribunal once the Health Care Complaint Commission commences an action against him, should it consider it appropriate to do so.
The facts of the case reported in Haasbroek are set out at the commencement of the decision, at [1]-[11], as follows:
"Dr Johannes Bernardus Haasbroek (the practitioner) is a medical practitioner who has been practising in Leeton, NSW since 2002. These proceedings were instituted by the Health Care Complaints Commission (HCCC) in September 2017 under the provisions of the Health Practitioner Regulation National Law (NSW) (the National Law). The proceedings have their genesis in criminal convictions entered against the practitioner, including domestic violence offences perpetrated by the practitioner on Person A.
The practitioner admits each of the criminal convictions. In light of the practitioner's admissions, the proceedings focussed on whether the practitioner's registration should be cancelled because he is not a suitable person to be registered, or whether other protective orders should be made.
The HCCC asserts that, in October 2012, a charge of assault occasioning actual bodily harm was found proved against the practitioner and without proceeding to conviction, the Local Court dismissed the charge. The HCCC further asserts that the practitioner was convicted of criminal offences on 13 November 2016, namely, a charge of common assault, contravention of an Apprehended Domestic Violence order (AVO) and a stalking charge. The HCCC also asserts that, on 2 September 2016, the practitioner was found guilty of contravention of an AVO.
In a further amended complaint, the HCCC also asserts that the practitioner failed to notify the Medical Board of Australia (the Board) that he had been charged before a NSW court with offences punishable by 12 months imprisonment within seven days of becoming aware of the charges. Complaint Four of the further amended complaint asserts the practitioner is "otherwise not a suitable person to hold registration".
When the proceedings commenced, the practitioner was self-represented. On the first day of the hearing, when the practitioner became fully aware of the nature of the complaints asserted against him by the HCCC, he sought and was granted an adjournment to enable him to seek legal advice. The matter resumed on 29 August 2018, at which time the practitioner was legally represented.
In a Reply dated 19 November 2017 (filed when he was unrepresented), the practitioner does not dispute the criminal charges and convictions, although he challenges the accuracy of the details of some charges and convictions as set out in an amended complaint filed by the HCCC on 26 October 2017.
A further amended complaint was filed by the HCCC on 29 January 2018. On the first day of the resumed hearing, Mr A Britt of counsel, who appeared for the practitioner, noted a number of admissions to the complaints and particulars of those complaints set out in the further amended complaint. We refer to the practitioner's admissions in detail later in these reasons.
Person A declined to provide a statement to the HCCC or to appear at the hearing.
The parties agreed that this matter should be dealt with at a single hearing. Mr Britt sought that the issue of costs be dealt with after we published our reasons for decision and we acceded to that request.
The HCCC sought that we make protective orders cancelling the practitioner's registration and precluding from seeking re-instatement for a period of 12 months.
We find that the practitioner is guilty of unsatisfactory professional conduct and that he has been convicted of criminal offences. We do not find that the practitioner is "otherwise not a suitable person to hold registration". We find that the appropriate protective order is that the practitioner be reprimanded. We note that undertakings given by the practitioner following proceedings in South Australia will remain in force. These are the reasons for our decision."
Both parties have submitted that the determination I make has to include a determination that the Appeal sought to be brought by the Applicant is not an appeal without apparent merit.
Turning then to consider this application, on the approach which has been detailed above, I determine as follows.
The evidence of the Applicant can be found principally in the Affidavit he filed for the s 150 hearing (sworn 1 September 2021 and contained at Tab 18 of exhibit R1), his oral evidence before the Medical Council (Exhibit R1 at Tab 8) and the affidavit in exhibit A1, in this hearing, sworn by the Applicant 5 November 2021. Relevant to this Application I particularly note the following facts. The facts I set out below are those upon which the Applicant's submissions have focused.
1. He was born in Zarqa, Jordan and is 33 years of age.
2. He arrived in Australia in May 2015. He is permitted to work in Australia pursuant to a Temporary Skill Shortage (TSS) work visa. That visa will expire in 2024.
3. His secondary and tertiary education qualifications were obtained in Jordan. He has successfully passed the necessary exams to enable him to practice medicine in Australia. His current qualifications are MD, FRACGP. He has been accepted for and gained registration in Australia as a medical practitioner. (I note the requirements for registration as a medical practitioner as set out in the National Law).
4. He is currently employed (or was until 2 September 2021) at TeamMed Medical and Dental Centre, Wollongong. He is one of seven doctors employed in that practice. He is renumerated by receiving 50% of the fees he renders for the practice.
5. Since being in practice there has been one complaint only made in relation to the Applicant.
6. His father still lives in Jordan. His mother lives in Gerringong at the house otherwise occupied by his partner and children. His brother was killed in a car accident in 2018.
7. Between 2015 and 2019 he has lived in a de-facto relationship with his partner, Person J. They have two children aged 4 and 18 months. Person J also has an 11 year old child, from a former relationship. That child lives with her.
8. He has contact with his children pursuant to a signed parenting plan.
9. During the Covid lockdown his income dropped because he was unable to service the same number of patients he had seen prior to the lockdown. That created financial pressure on him. He has to service a large mortgage on his family home and support his partner (now estranged) and their children.
10. He has received medical treatment from a psychiatrist in relation to his grief following the death of his brother in 2018. He did not continue that treatment as the psychiatrist didn't require him to return. After Covid commenced he was confronted with study, costs and financial pressures and did not continue with his treatment.
11. Following his being charged in July 2021 the Applicant has engaged in treatment, which he has found very beneficial. That treatment includes Dr Olga Lavalle, clinical psychologist, Professor Gordon Davies, psychiatrist and Dr Harnish Kelzi GP who has provided a mental health plan.
12. The Applicant said "I have found treatment very helpful in addressing social/cultural aspects of being in Australia. Things are very different in Jordan. Jordan is very conservative and has different tax and financial systems. Since arriving I have worked non-stop and didn't take the time to fully comprehend and get on top of this adjustment." The Applicant further said: "This treatment has also helped me with: male-female gender roles; shame attributed to conservative views; grief counselling; trauma counselling (exposure to media - related unsupervised Israeli/ Palestinian conflict with violence and death. Exposure to perceived state related police brutality.); exploration of mental health.
The Applicant swore an affidavit on 5 November 2021. I note the following in that affidavit.
1. The Applicant's former partner and their two children, together with the 11-year-old son of his former partner, live in their house. The Applicant's mother also lives in that house.
2. The house was purchased in 2017 for $715,000.
3. The Applicant does not live at that address. He pays a private rental which he shares with others.
4. On 15 September 2021 the Applicant and his partner entered into a further Parenting Plan. That allows for more flexible arrangements in the contact between the parties and between the Applicant and the children. That new Parenting Plan includes a provision that the children's mother "may be present with the children during the father's time with the children if such attendance by the mother is agreed to in writing between the parents." The Applicant reports that he now sees his children almost daily with the agreement and organisation of their mother.
5. The Applicant attached a copy of the Temporary Skill Shortage (subclass 482) Visa he has been provided by the Department of Home Affairs. That document discloses that his sponsor is Southern Cross Professionals Pty Ltd. The document shows that the Applicant can only undertake approved work as set out in the Visa. That approved work is as a General Practitioner. Further it provides he can only work in the occupation for which his Visa was approved. He can only work for the employer who nominated the position he is working in. He is not to cease employment for a period that exceeds 60 consecutive days.
6. The Applicant is not eligible for Centrelink or other support payments from the government. Nor is he eligible for Medicare benefits.
7. Since the suspension was imposed by the Medical Council the Applicant has not received any income. He has received some support from the Medical Benevolent Association of NSW. He had been earning approximately $2,250 per week prior to the suspension.
8. The Applicants current expenses include $750 per week payment on the mortgage on the property he owns with his former partner; rent he pays for his accommodation of $200 per week; family day-to-day expenses of $300 per week; other outgoings on the property occupied by his former partner, his mother and his children of $88.50 per week. He has had to borrow money from family and friends to meet his expenses. Continued unemployment will inevitably lead to the sale of the home he and his former partner own.
9. The Applicant is continuing to see his Clinical Psychologist Dr Lavalle and his psychiatrist Dr Davies. He is required to pay for those services.
In the submissions provided by the Applicant the grounds upon which the stay should be granted are set out as follows:
1. The appeal pursuant to s 159B has reasonable prospects of success.
2. The health and safety of the public will not be negatively affected by a stay.
3. A stay is necessary to ensure the effectiveness of the appeal.
4. The balance of convenience favours a stay.
The Applicant has addressed each of those grounds. In so doing I have noted the following in particular.
The Applicant submits the following:
"2.5 A decision pursuant to section 150 requires a 'risk assessment having regard to the guiding principle stated in s 3A (the protection of the health and safety of the public must be the paramount consideration)': Medical Council of New South Wales v Lee [2017] NSWCA 282 at [70] per Sackville AJA, Beazley P agreeing at [1], Basten J agreeing at [16].
…
2.7 The power provided to the Medical Council by s. 150 has been described as 'draconian': Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115, at [49], more recently cited with approval in Ansari v Medical Council of NSW [2021] NSWCATOD 138 at [65]-[66].
2.8 Accordingly, 'great care' must be taken to ensure that there is a proper and appropriate basis for making any order pursuant to section 150: Crickitt at [56]; Ansari at [66]."
The Applicant submitted that in cases such as this, involving an allegation where the evidence is incomplete or further investigation is underway, the relevant question is whether the evidence available to the Medical Council establishes a risk to the public: Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53 at [169].
The Applicant has set out in the amended External Appeal Form, detailed grounds upon which he submits errors of law were made by the Medical Council in the determination made on 2 September 2021. Without fully reciting those grounds, they do not appear to me to be couched in frivolous or apparently unachievable terms. The grounds include phrases such as "made findings of fact which were not available on the evidence"; "Applied the wrong test/or failed to determine the correct legal approach"; "applied the wrong test when determining whether it was in the public interest"; "took into account and irrelevant consideration"; "drew conclusions and made findings not available on the evidence."
In the submission of the Applicant under the heading "The appeal pursuant to s.159B has reasonable prospects of success" the Applicant submits that it is not the task of the Tribunal to determine the grounds of the appeal. It is necessary however, to make a finding that the Applicant has "an arguable appeal". Legal Services Commissioner v Barker [2005] QCA 482 at [30]. The parties' legal representatives, in this matter also, phrased that requirement in the negative, namely, "It is not an appeal without merit". The Applicant submits the appeal has "a reasonably arguable prospect of success."
In relation to the consideration of the health and safety of the public and whether that will be negatively affected by a stay, the Applicant submits that consideration needs to be given significant weight when considering a stay: see Segal at paragraph [44] quoting New South Wales Bar Association v Stevens [2003] NSWCA 95 at [90]-[104] and [106].
The Applicant submits this is not a case where the health and safety of the public would be at risk if a stay was granted. The following reasons were set out.
The basis for the self-notification arose from circumstances in his private life.
The Applicant has been charged with common assault and contravening an AVO. He has pleaded not guilty. The hearing is not listed until February 2022.
At present the charges are untested. Dr Hejazin is entitled to the presumption of innocence and is presumed to be not guilty: Medical Board of Australia v Leow [2019] VSC 532, at [112].
There is no evidence that any issues (alleged or otherwise) as between Dr Hejazin and his partner, Person J, have traversed into his professional life so as to give rise to a risk to the health and safety of the public.
There is no suggestion, in any of the material before the Delegates, that Dr Hejazin is anything other than a competent and caring medical practitioner.
The Delegates positively concluded that:
"There is no suggestion that Dr Hejazin is threatening or aggressive towards his patients. There is no evidence that his clinical performance is anything but satisfactory. (p 11)."
To the extent that the Delegates concluded that there was a risk to the 'emotional and physical wellbeing' of 'several' of Dr Hejazin's patients, that conclusion was not available on the evidence, was contrary to the evidence available to them, and is otherwise legally unreasonable. This is the substance of the s 159B Appeal Ground One. In support of this assertion the Applicant set out in the written submission references to specific evidence given by the Applicant in the s 150 hearing. All of that evidence I am satisfied has the potential to support ground One.
Dr Cowap (a delegate on the Medical Council 150 determination) observed that Dr Hejazin:
"Described an 'orthodox management of those patients' (T42.23),
Was 'obviously very aware of the effects of this sort of situation … on children and the need for mandatory reporting' (T42.35).
Had been 'very open' in his disclosures to FACS (T43.5).
Had been 'quite frank' and displayed 'significant insight' and appeared to be 'genuinely remorseful about a lot of the things we have been talking about today' (T43.40)."
The Delegate's observations as to the "the nature, frequency and alleged repetition of that domestic violence" should be considered in light of the actual evidence. Dr Hejazin has never previously been charged with an offence of violence, and there is no material before the delegates to suggest that he has an entrenched history of violence towards Person J, or anyone else.
There is no basis to conclude that there is any risk to either the physical or emotional wellbeing of any of Dr Hejazin's patients, should they "become aware that Dr Hejazin has been and is again alleged to be a perpetrator of domestic violence", or on any other basis.
The Applicant referred to the decision of the Victorian Supreme Court in Medical Board of Australia v Leow. The Applicant then set out the following submission in relation to that decision:
"Dr Leow was accused of rape and sexual assault: at [4]. He was suspended by the Medical Board of Australia. VCAT overturned the suspension, and the Medical Board appealed to the Supreme Court to set aside that decision. In refusing the appeal (and upholding the decision to set aside the suspension) Niall JA observed (at [98]):
'Where no issues of patient or public safety are involved, and in circumstances where it is necessary to impute to the public an understanding that the allegations are untested and unproven, the Tribunal may, in a given case, consider that there is no significant impact on public confidence. No general rule can be applied.'
Further, at [112] Niall JA said:
'The reference by the majority to the public understanding that, where it is appropriate, an accused person should be able to continue with his or her life until the charges are determined, did not entail consideration of an irrelevant consideration. It is a reflection of the fact that the charges are untested and that the accused person should not be treated as if he is guilty.'"
The Applicant submitted that Dr Hejazin has pleaded not guilty and is presumed to be innocent. That is an understanding that should be imputed to the public, and any of Dr Hejazin's patients. In support of that submission the Applicant referred to a decision of Justice Fagan in the Supreme Court of NSW. The Applicant submitted:
"Justice Fagan considered this issue in Cho v Medical Council of NSW, Supreme Court of NSW, 16 July 2019. In relation to allegations of domestic violence, being two counts of common assault, against a forensic psychiatrist, his Honour said (at [21]):
'…. There is nothing to indicate that any of the plaintiff's patients would ever learn that he faces these relatively minor charges in the Local Court at Burwood. The [Council's] reasons appear to assume that domestic violence is all of the same order of seriousness, including in the hypothetical assessment of the plaintiff's patients. The reasons do not take account of the relatively low objective gravity of the matters alleged, at their highest.'"
The Applicant pointed to evidence that Dr Hejazin has demonstrated excellent insight, motivation to change and remorse for his actions. Specific evidence before the Delegates was set out.
In relation to "risk to patients" the Applicant referred to the only other matter which had come to the notice of the Medical Council in relation to the Applicant practicing as a doctor in NSW. That was an incident in 2018 when the Applicant disclosed to his supervisor that he had developed "feeling" for a patient. Appropriate action was taken by the Applicant in relation to that situation and the Delegates found that "Dr Hejazin 'appeared to behave in an appropriate manner in relation to a potential boundary issue' and that the history of this incident was not 'directly relevant to the issues canvassed at this section 150 hearing' (p6)". The Applicant submitted: "While this incident may not be 'directly relevant', it clearly demonstrates that Dr Hejazin is a highly ethical practitioner, who has excellent insight into his obligations towards his patients. This is directly relevant to whether he poses a risk to the public".
In relation to the proposition that Dr Hejazin has motivation to change, the Applicant submitted: "Dr Hejazin is demonstrably highly motivated to change. He has, and continues to, actively seek assistance. There was ample evidence before the Delegates as to the assistance Dr Hejazin has sought, over a number of years, both prior to and since the criminal allegations." Detail of that action was set out.
The Applicant submits that "A stay is necessary to ensure the effectiveness of the appeal." The Applicant submitted: "This is a case where the appeal may be rendered nugatory if a stay is not granted: Segal at [43]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]."
This aspect of the considerations is supported by reference to the following facts:
The Applicant is on a Temporary Skill Shortage (subclass 482) Visa. The visa has strict conditions attached to it. It is within the discretion of the Department of Home Affairs to consider cancelling the Visa. He could theoretically be removed from Australia before his Appeal before the Tribunal was determined.
The suspension of his registration pending appeal, also potentially places him in breach of the conditions of his visa. It has now been over 60 consecutive days since the suspension was imposed.
The Applicant points out that the Visa conditions do not permit him to work in any other capacity, while suspended from practice. The Applicant supported this assertion with the following submission:
"4.52 The Delegates acknowledged the submissions on behalf of Dr Hejazin that he 'supports his family financially and if suspended he may be unable to make mortgage repayments placing the family at risk of losing their accommodation': Delegates Reasons, p 8.
4.53 Despite that, the Delegates went on to make an erroneous and baseless assumption that Dr Hejazin would be 'able to engage in other employment to support himself and his family' whilst suspended: Delegates Reasons, p 14.
4.54 There was simply no evidence before the Delegates to support that finding. Nor was Dr Hejazin asked by the Delegates about his ability to obtain other employment."
The Applicant asserts that if the Delegate's decision is not stayed, Dr Hejazin will remain suspended, and unable to work in any capacity, at least until the appeal is finally disposed of. I note it is conceded by the Medical Council, in its submission, that what is put as to the conditions of the Visa not permitting the Applicant to work otherwise than in the stated occupation, is correct.
The Applicant says that his financial circumstances are dire. I accept there is a factual basis for that assertion.
The Applicant addressed Ground Four of the Appeal namely: "The balance of convenience favours a stay".
The Applicant submits: "An important factor that is relevant to whether to grant a stay of orders (generally) is ensuring that the stay is granted on terms that are fair to all parties - which involves the Court "weighing the balance of convenience and the competing rights of all parties": Segal at [43]; Aldridge v Keaton (Stay Appeal) at [18]. When weighing the 'balance of convenience' it is appropriate for the Tribunal to consider the very significant effect that suspension is having, and will continue to have, on Dr Hejazin, both personally and financially: Cf Smithson v Medical Council of New South Wales [2020] NSWCATOD 105, at [67]. Consideration of the balance of convenience, and the 'competing rights' of the parties, necessarily involves consideration of the public interest. This is a factor to be considered in the exercise of the Tribunal's discretion to grant a stay: Ansari v Medical Council of NSW at [77]. Asked another way, is the public interest served by the continued suspension? The mere fact that an offence is alleged to have been committed in a domestic context does not, in and of itself, 'automatically mean that it is in the public interest that the appellant be suspended from the practice of his profession': Coutinho v Dental Council of NSW at [49]. Each case must be considered on its own facts.
The Applicant again pointed to the decision of the Supreme Court of NSW in Cho v Medical Council of NSW (Supreme Court (NSW), Fagan J, 16 July 2019, unrep). Paragraphs [15] to [17] are set out.
The Applicant referred to the decision of Medical Board of Australia v Leow and pointed out that in this case, there is no risk to the health and safety of the public if the Applicant continues to practice pending the hearing of his appeal. As against that, the Applicant contrasts the impact upon the Applicant if the stay is not granted.
The Applicant submitted that the Tribunal would also consider the very significant disproportion between the impact upon the Applicant of the suspension and the possible or likely outcome of the Appeal. The Applicant then referred to the decision in Haasbroek, which has been referred to earlier in these reasons.
The decision of the Tribunal in Health Care Complaints Commission Complaints Commission v Amalakumar [2019] NSWCATOD 173 was also cited as an example of a medical practitioner GP who was charged and convicted of common assault. The assault was upon his wife. The Tribunal in that case noted the practitioner was remorseful and had resumed harmonious domestic life (at [30]). The practitioner was cautioned.
The Applicant referred to the facts and determinations of this Tribunal and the Victorian equivalent, in the following decisions. Health Care Complaints Commission v Coutinho [2020] NSWCATOD 33; Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157; Medical Board of Australia v Koulouris [2020] VCAT 348. Each of those cases show that despite very serious allegations (and convictions) of domestic violence, the practitioners received either cautions, reprimands of suspensions ranging from one month to three months. The Applicant points out that he has already served two months of a suspension.
The Applicant submits that: "What is clear from the above range of roughly comparable cases, (in so far as they deal with allegations of domestic violence), is that a period of suspension is usually reserved for very serious examples of offending conduct."
The respondent provided a written submission which was marked as MFI 2. The Medical Council opposed the stay.
In the submission of the Medical Council the following points were made/emphasised.
1. The Medical Council set out the background to the proceeding. There is nothing contentious in that material.
2. The Medical Council addressed the detail of the criminal charges the Applicant faces. It sets out that the provisional Apprehended Domestic Violence order was made 25 November 2019. It is that order which it is alleged the Applicant breached. Further the Medical Council notes the Applicant disclosed the bail conditions he has had imposed upon him on 9 July 2021.
3. Details of the facts set out in the affidavit provided by the Applicant on 1 September 2021 have been set out. Additionally, the Medical Council notes the parenting plan which the Applicant entered into with the mother of his children on 24 August 2021.
4. Detail of the report dated 20 May 2021, submitted by the Applicant's psychiatrist Dr Younus, is set out. Additionally, detail of the report of Dr Lavalle, Clinical Psychologist, dated 30 August 2021 is set out.
5. The three personal references presented by the Applicant to the Delegates at the s 150 hearing are also identified.
In keeping with the obligation to be a model litigant the Medical Council has fairly represented those matters.
The decision of the Delegates of the Medical Council is then addressed in the submission. The Tribunal has had regard to the whole of the decision of the Delegates. The Medical Council though, emphasised particular parts of the decision to support its submission that the Appeal of the Applicant does not have the degree of merit which would be necessary to grant a stay of the suspension order.
At paragraphs 33-42 of their submissions, the Medical Council brought to the attention of the Tribunal certain portions of the decision of the Delegates. These paragraphs of the submissions are set out above, under [11] of these reasons.
The Medical Council then addressed the Stay Application as presented to the Tribunal. The following matters in the submission are noted:
The imposition of the suspension was deemed appropriate by the Delegates.
The Delegates considered all the appropriate aspects of the National Law which govern the operation of s 150 and the power to impose a suspension.
The Delegates drew heavily on the decisions of Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [12] and [15]; Steel v Medical Council of NSW [2020] NSWCATOD 77 at [115] (re the evaluative role of the Medical Council on a s.150 determination).
The Medical Council has referred the matter to the Health Care Complaints Commission for investigation.
The submission of the Medical Council includes the following:
"54 The Council submits that the Appellant's stay application should be dismissed. The interim protective nature of the suspension imposed on the Appellant's registration as a Medical Practitioner arose from two serious criminal charges relating to a serious alleged family violence incident between him and his former partner, including in the presence of their 4 year old child.
55 The Council appropriately had regard to the evidence before it in coming to the s150 Decision. The identified risks in the s150 decision remain, as is evidenced by the fact that the criminal proceedings have been adjourned for defended hearing on February 2022."
The Medical Council addressed the principles relevant to the Stay Application. There is no real dispute between the parties as to the principles to be applied. The Medical Council relied upon the decisions in: Taylor v Medical Board of Australia [2018] NSWCATOD 50 at [69] per Boland ADCJ; Medical Council of NSW v Lee [2017] NSWCA 282 at [13]-[14], [93], [96]; Segal v Medical Council of New South Wales [2020] NSWCATOD 86, [43]-[47].
The Medical Council concluded its submission on the relevant principles to be applied to a Stay Application with the following submission:
"The Council anticipates that the Appellant will argue that the suspension is not consistent with other Tribunal stay and appeal decisions. Whilst every matter needs to be looked at on his own facts and individual merits, the Council submits that there has been a shift in recent Tribunal decisions to align with community expectations about the serious nature of criminal related matters including family violence and the risk that family violence poses to vulnerable patients including Hyland v Medical Council of NSW [2021] NSWCATOD 167; Adam v Dental Council of NSW [2020] NSWCATOD 153; Segal v Medical Council of NSW [2020] NSWCATOD 86; Prigdeon v Medical Council of NSW [2021] NSWCATOD 89."
The above paragraph really highlights the difference in the submissions of the parties. The Medical Council is essentially saying: "It is time to move on and become aligned with community expectations and views as to domestic violence." Such a view may or may not reflect the broader demographic relevant to the determination of the Medical Council. However, such an assertion does not recognise that the suspension of registration for a medical practitioner, found to have been charged with a domestic violence offence, is mandatory. The Medical Council, with respect, appears to be elevating the import of the power to suspend, in such a circumstance, to a mandatory requirement.
The Medical Council then addressed each of the grounds of Appeal stated by the Applicant in his amended appeal document. Arguments are put in a logical and forceful manner in relation to those grounds and the conclusion which should be drawn by the Tribunal that those grounds are unlikely to be successful.
The Medical Council acknowledges that the Delegates were in error in finding that the Applicant could find work in another vocation pending the conclusion of any case brought by the Health Care Complaint Commission against him. Its submission on that matter is as follows:
"81 In the s150 Decision it was noted "While a period of suspension would prevent Dr Hejazin from working as a medical practitioner, he is able to engage in other employment to support himself and his family."
82 It is apparent from the s150 Decision that this observation formed part of the background but did not ground any relevant findings about the nature of the action to be taken under s150. The Council had already decided in the s150 Decision that it was necessary to take action under both limbs of s150. The observation was made in relation to appropriate protective orders under the heading "what action should be taken?"
83 The Council placed significant weight in coming to its decision to suspend the Appellant's registration as a Medical Practitioner on its conclusion that:
"Not only is the emotional and psychological wellbeing of some of his own patients at risk because of his conduct, the public interest more generally requires that action be taken, in response to his actual and alleged conduct, to maintain and protect public trust and confidence in the profession.
The Delegates are not comfortably satisfied there are conditions that could be imposed on Dr Hejazin's registration that would sufficiently mitigate the identified risks to the health or safety of the public and sufficiently mitigate concerns in relation to the public interest. The Delegates consider that action should be taken and interim suspension of Dr Hejazin's registration is appropriate."
84 It is apparent from the above concluding remarks, that the Respondent's ability to seek alternate employment did not influence the ultimate findings in the s150 Decision to suspend the Appellant's registration as a Medical Practitioner.
Ground 4 accordingly has limited prospects of success."
In the conclusion to its' submissions, the Medical Council set out the following:
Each case needs to be looked at on its own individual facts and merits. The s150 decision found that:
"In balancing the matters referred to in Coutinho, the Delegates consider that the past domestic violence Dr Hejazin has acknowledged and the offences with which he is now charged are serious matters. They have involved pushing, shouting, threatening and allegedly choking his former partner in the presence of his children. His conduct has continued over a period of some time and has not responded to attempts at remediation. The Delegates refer again to the comments made in Health Complaints Commission v Haasbroek [2018] NSWCATOD 177 at paragraph 93:
"General practitioners are frequently the first point of contact for victims of domestic violence. The public can only have confidence in such practitioners if the response of those practitioners to domestic violence, both personally and publicly, is exemplary."
93 In Health Care Complaints Commission v Lidman [2020] NSWCATOD 48 at [10] to [12]:
"It is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role, however where there is no nexus a more careful inquiry into the public interest factors may be required. There may be instances in which 'public interest' is taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences involving violence, sexual assault or the sexual exploitation of children, for example, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within that profession.
We find that the criminal act of assault against a partner in a domestic setting may be such that a practitioner is unfit in the public interest to practise as a nurse. The protection of the health and safety of the public is the paramount consideration under the NSW version of the National Law, and all of our functions under the Law must be guided by this consideration. Family and domestic violence remains one of the most serious and sustained threats to the health and safety of the Australian public, in particular to women and children.
The practitioner's conduct in assaulting his then partner is conduct that is incompatible with respect for the health, welfare and safety of the public. The assault in this matter was a serious one, and took place in the presence of the victim's daughter." (emphasis added)
94 Ground 6 should accordingly fail.
Conclusion
95 The Council submits that the Appellant's stay application should be dismissed. The refusal of the stay will not render the appeal nugatory.
96 The Council seeks that the issue of costs be adjourned and dealt with in the appeal decision."
In oral submissions in reply the Applicant referred to the decision in Health Care Complaints Commission v Lidman [2020] NSWCATOD 48 to note that the determination in that matter was the imposition of a reprimand rather than a suspension.
At the conclusion of the hearing I asked the Medical Council to provide me with a list of conditions they would ask the Tribunal to impose if a stay was granted. The Medical Council did provide that list on 16 November 2021.
In the email which accompanied the list of proposed conditions the Medical Council submitted: "Further to my email below, please find attached the Respondent's proposed conditions for consideration. The Respondent maintains that there is no power to impose conditions in conjunction with a stay."
The Medical Council provided that list of conditions as follows:
Proposed conditions - Dr Faris Hejazin
Practice Conditions
1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice.
2. To practise only in a group practice approved by the Medical Council of NSW where there are at least three registered medical practitioners (excluding the subject practitioner):
(a) Where the patients and patient records are shared between the medical practitioners.
(b) Where there is always one other registered medical practitioner on site.
3. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.
(a) The approved supervisor is to hold specialist general practitioner registration with the Medical Board of Australia and be experienced in mental health and anger management.
(b) The terms of Council's Compliance Policy - Supervision is varied to authorise the Council-approved supervisor to provide reports to the Council on a monthly basis.
(c) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: past issues connected with trauma and family violence.
(d) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision upon which these conditions are based and all other documents the Council deems appropriate.
(e) Not to practise until a supervisor has been approved by the Medical Council of NSW.
4. To nominate an experienced general practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body.
(a) At each mentoring meeting the practitioner is to include discussion of the following:
i. initially the issues highlighted in this decision
ii. any personal and/or medical practice issues that may arise
iii. professional development.
(b) To authorise the mentor to report, in an approved format, to the Council every six months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing.
(c) To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision upon which these conditions are based.
5. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions.
6. To complete within 6 months of the date of this decision the 6-week program 'Making Choices' organised by Interrelate.
(a) Within 2 months of the date of this decision he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned program.
(b) Within 1 month of completing the abovementioned program, he must provide documentary evidence to the Council that he/she has satisfactorily completed the course.
(c) To bear responsibility for any costs incurred in meeting this condition.
(d) In the event that the abovementioned program is unavailable, the practitioner must propose to the Council for approval a similar program to be undertaken in accordance with the requirements of this condition no later than 2 months from the date of the date of this decision
7. To complete within 6 months of the date of this decision to complete a suitable Men's Behaviour Change Program on Family Violence approved by the Medical Council of NSW.
(a) Within 1 month of the date of this decision to nominate a suitable Men's Behaviour Change Program on Family Violence for approval by the Council.
(b) Within 1 month of completing the abovementioned program the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the program.
(c) To bear responsibility for any costs incurred in meeting this condition.
(d) In the event that the program is unavailable, the practitioner must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 1 month from the date of the date of this decision.
8. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.
Health Conditions
9. To attend for treatment by a clinical psychologist of his choice who is experienced in family violence and anger management. The frequency of treatment is to be determined by the treating practitioner. The practitioner
(a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:
i. Failure to attend for treatment;
ii. Termination of treatment; or
iii. A significant change in health status (including a significant temporary change).
(b) must provide the Council with the professional details of the treating practitioner.
(c) to authorise the Medical Council of NSW to forward copies of the decision upon which these conditions are based and any other information relevant to his health and treatment to his treating psychologist.
10. To act upon the advice of his treating practitioner so that the extent of his professional medical duties is guided by his health status and the advice of his treating practitioner.
Additional orders
1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).
2. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia.
I have considered the conditions proposed by the Medical Council. Those conditions largely address a possible risk to the health and safety of the public from the Applicant practicing his medicine in an unsatisfactory manner. I note however, that the Delegates of the Medical Council, in reaching their decision and imposing the suspension order, found that the Applicant was a competent medical practitioner with no adverse evidence provided in relation to the manner in which he had practiced up to 2 September 2021.
Given that the Medical Council is clearly opposed to the imposition of any conditions being attached to the Applicant's registration on the grounds of jurisdictional competence, I do not propose to make a determination on that jurisdictional challenge, although I am aware a number of differently constituted Tribunals, have determined there is jurisdiction to make an order imposing conditions on the registration of a practitioner at the same time as staying an order of the Medical Council for suspension of that registration.
Further, I am not satisfied that the imposition of conditions is necessary in the circumstances of this case. The Applicant was made the subject of a Domestic Violence Order in November 2019. There was no evidence before the Delegates hearing the s.150 case, that any patient of the Applicant had been made aware of that order or had asked not to see the Applicant because of the order or had asked not to see the Applicant because of some attitude he had displayed towards a patient who was a victim of domestic violence. The concern of the Delegates, as best I can determine, was a prospective one. That is that a patient or patients of the Applicant, may come to hear about the allegations of domestic violence which have been made against him this year and that knowledge may adversely impact upon their health.
Added to the considerations I have detailed above as to the imposition of conditions or otherwise, I am aware that the Applicant's Appeal in this matter is now in the process of being set down for hearing. I am therefore comforted
[2]
Conclusion
The decision of the Tribunal on this stay application is that the Stay be granted. In so determining the following matters have been weighed to the effect that the balance favours the Stay being granted rather than being refused.
1. The appeal is found not to be one without merit. That does not mean that the Tribunal concludes the Applicant will be successful on his appeal. It means that there are grounds of appeal, which the Applicant has notified, that have the potential to convince the Tribunal that his appeal should be successful.
2. There are examples of outcomes for practitioners charged (and in some cases convicted) with similar domestic violence crimes to those faced by the Applicant, where suspension of registration has not been imposed. That has not been an isolated incidence, rather there are a number of examples provided by the Applicant and referred to in these reasons.
3. The Tribunal is satisfied that the granting of a Stay, on the facts of this case, does comply with the mandatory requirement in s 3A of the National Law. The Tribunal is satisfied that if a stay is granted it will not result in the health or safety of the public being put at risk at the hands of the Applicant practising medicine as he has done prior to the suspension order being made.
4. It does not enliven the trust of the public, or the profession, in the processes permitted by the National Law, to have a stay granted in every case where an appeal has been lodged. The National Law specifically states that a stay is not to follow merely from the filing of an appeal. It follows therefore, that the application for a stay requires the establishment of entitlement, based upon the evidence and submission presented by the Applicant. Such a determination is not undertaken lightly, rather it is considered in the light of a well documented and argued outcome, seen in the determination of the Medical Council, as is the case in this application. The stay order is not made lightly in this case.
5. The Tribunal is satisfied the Applicant is making a bona fide Appeal against the order of the Medical Council to suspend his registration.
6. In weighing the balance of convenience and the competing rights of the parties, the Tribunal concludes that in this case the balance of convenience falls on the side of the Applicant. In particular the financial consequence to the Applicant and his family of the suspension is enormous. That includes the relationship between two young children and their father. Should it be necessary for the Applicants' children and their mother to relocate out of the area they now live in because their house has had to be sold, the ability of the children to spend frequent time with the Applicant, as now occurs, may be lost.
7. The Applicant should be required to prosecute his appeal so that there is no delay on his part to it being heard. The Tribunal will impose that as a condition of the Stay. The consequence of the Applicant being found by the Tribunal to be deliberately stalling or delaying the hearing may well be that the stay will lapse, or be discharged, by order of the Tribunal.
8. There was debate at the conclusion of the hearing about the power of the Tribunal to impose conditions upon the registration of the Applicant when granting a stay of a suspension order made by the Medical Council. I do not propose to make an order for the imposition of conditions upon the registration of the Applicant. However, I do propose to make it a condition of the stay that the Applicant prosecute his appeal diligently. The Tribunal would be concerned if the Applicant was to be tardy in preparing for a hearing of the appeal and cause a delay which, with the stay in place, may be seen to be an advantage to him. That type of condition is not made pursuant to the National Law, rather it is made to support the processes of the Tribunal itself and ensure there is not an abuse of same.
The order of the Tribunal will be as follows:
1. The order made by the Medical Council of New South Wales on 2 September 2021 suspending the registration of Dr Faris Ibrahim Yacoub Hejazin is stayed pending the determination of the Appeal filed by the Applicant, or the further order of the Tribunal.
2. The stay is conditional upon the Applicant prosecuting his appeal so as not to cause, on his part, any delay in the determination of same and to consent to any application for expedition, made by the Medical Council, for the hearing of the Appeal.
[3]
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
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Decision last updated: 17 November 2021