Karimi v Medical Council of New South Wales

External appeal to the Tribunal

1. On 10 October 2017, Dr Karimi lodged with the Tribunal an external appeal form appealing against the Council's decision of 21 September 2017 to suspend his registration.
2. On 18 October 2017, the Council provided to Dr Karimi a written statement of reasons for its suspension decision.
3. During the interlocutory processes in the Tribunal, the appeal was listed for an expedited final hearing on 20 November 2017 and it was formally noted that Dr Karimi's appeal to this Tribunal was limited to an appeal under s 159 of the National Law.
4. Section 79 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) deals with external appeals to the Tribunal and relevantly provides: "(1) An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation. (2) In determining an external appeal, the Tribunal may: (a) in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal - make any of those orders, or ….".
5. The Tribunal's external appeal jurisdiction is established by s 31 of the NCAT Act which provides in part: "(1) The Tribunal has external appeal jurisdiction over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions). (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. … (5) A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following: (a) a decision made by a person to whom the function of making the decision has been delegated, …."
6. In the present appeal, the relevant enabling legislation is the National Law. The Council is an "external decision-maker" within s 4(1) of the NCAT Act. The Tribunal's external appeal jurisdiction includes appeals against decisions made by the Council's delegates, by operation of s 31(5)(a) of the NCAT Act.
7. Section 159 of the National Law is the provision of the enabling legislation which establishes the entitlement of a person to make an external appeal to the Tribunal against a suspension decision of the Council. That section relevantly provides: "(1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; …. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. … (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given."
8. Section 150, under which the Council's decision to suspend Dr Karimi was made, is found in Div 3 of Pt 8 of the National Law. Section 159 is in Div 6 of that same Part. The Medical Council of New South Wales was the relevant council in respect of medical practitioners in this State.
9. Section 150 of the National Law is relevantly in the following terms: (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or … (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. … (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. … (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. …"
10. Accordingly, under s 159(1)(a), Dr Karimi was entitled to appeal to the Tribunal, in its external appeal jurisdiction, against the suspension decision made on 21 September 2017 by the Council, through its delegates.
11. The appeal was heard on 20 November 2017. On that occasion, the Tribunal directed under cl 7 of Sch 5D of the National Law that the name and address of any patient of Dr Karimi or any other identifying information not be disclosed.

Orders that can be made by the Tribunal on this appeal

1. At the start of the hearing, Mr Flaherty of counsel, who appeared for Dr Karimi, sought to have the Tribunal decide, as a preliminary question, the issue of whether in the present case the Tribunal could, under s 159C(1) of the National Law, make not only an order terminating the suspension but also an order imposing or varying conditions on Dr Karimi's registration. Ms Lowson of counsel, who appeared for the Council, opposed that course.
2. Given the expedited hearing and the limited time available, we decided not to divide and potentially lengthen the hearing by dealing with that issue by way of a preliminary question. We indicated that we would decide that issue at the same time as we determined the rest of this appeal. Consequently, the parties were advised that they should make all the submissions they wished on that issue and should also lead all their evidence and make all their submissions on the alternate bases that: 1. the Tribunal was limited, under s 159C(1), to terminating, varying or confirming the period of suspension ordered by the Council; and 2. the Tribunal was not so limited and could terminate the period of suspension and impose or vary conditions on Dr Karimi's registration.
3. Mr Flaherty did hand up, among other things, proposed conditions that Dr Karimi would be prepared to accept if the Tribunal determined that it had power to terminate the period of suspension and impose or vary conditions on his registration. These were headed "Consent Order" but it was agreed that they were not consent orders. These proposed conditions contained additional conditions not included in the conditions imposed by the Board when it granted conditional registration on 27 July 2017. The Council chose not to make submissions on whether or not those proposed conditions should be imposed by the Tribunal, if it held it had power to do so.
4. It is convenient to address the question of the Tribunal's powers on this appeal at this point.
5. Mr Flaherty submitted in effect that the Tribunal's powers under s 159C(1) should not be limited to terminating, varying or confirming the period of suspension ordered by the Council. The Tribunal should take a more expansive view of its powers and hold that it could terminate a period of suspension and impose conditions on registration rather than just terminate, vary or confirm the suspension. Attention was drawn to the difficulties identified by the Tribunal in Khan v Medical Council of NSW [2016] NSWCATOD 88 at [29] - [30].
6. Ms Lowson submitted in substance that the wording of s 159C was clear. When the Council had decided to suspend a practitioner's registration, s 159C(1) did not permit the Tribunal on an appeal to substitute conditions for suspension. She also, quite properly, drew attention to the observations of the Tribunal in Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [69] - [70] to the contrary. In Hanna, however, the Tribunal did not have to decide the issue and did not express a concluded view.
7. In our view, the Council's submissions should be accepted. In saying this, however, we note that it is not necessary for our decision to reach a conclusion on this point since we are of the view that it would not be proper to terminate Dr Karimi's suspension in any event. In that circumstance, the issue of whether or not the conditions on his registration imposed by the Board could be varied does not arise.
8. The starting point is to note that the Council's only relevant order under s 150(1)(a) of the National Law was one suspending Dr Karimi's registration with immediate effect. The Council did not decide to impose conditions on Dr Karimi's registration, although it could have done so under s 150(1)(b), instead of making the suspension order.
9. "[A] suspension [under s 150(1)] has effect until the first of the following happens - (a) the complaint about the practitioner is disposed of, (b) the suspension is ended by the Council": s 150(2). Under s 150C(1), the Council is also empowered, at any time, to "end a period of suspension imposed by the Council [under s 150]". Further, section 150G provides that, when a suspension imposed under s 150 ends, "the practitioner's rights and privileges are revived", subject to any other relevant action of the Council or any order of the Tribunal on a complaint referred to the Tribunal.
10. Under s 159(1)(a), Dr Karimi was entitled to appeal against "a suspension by [the Medical Council of New South Wales] under Division 3". Section 150 is in Div 3 of the same Part of the National Law as s 159.
11. Section 159(3) establishes that the appeal under that section is by way of a "new hearing" with "fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council". Section 159C of the National Law provides: "(1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of."
12. Section 159C is in subdiv 2 of Div 6 of Pt 8 of the National Law. The only other sections in subdiv 2 are ss 159, 159A and 159B, each of which confers a different right of appeal to the Tribunal. It can be noted that s 159A, which concerns appeals by students, includes its own subsection concerning the orders the Tribunal may make in appeals under that section. Similar provisions are not contained in ss 159 and 159B. In these circumstances, it appears that "an appeal" referred to in s 159C(1) includes at least an appeal under s 159 or under s 159B.
13. Appeals under s 159 may be against various types of orders or decisions including suspension orders, under s 150(1)(a), and orders imposing conditions on registration, under s 150(1)(b).
14. In an appeal under s 159 against a Council decision under s 150(1), as in the present case, the Tribunal is expressly empowered under s 159C(1) to: 1. "terminate, vary or confirm a period of suspension"; "or" 1. "revoke, vary or confirm the conditions".
15. Thus, where the decision appealed against is a suspension order under s 150(1)(a), the Tribunal can terminate the "period of suspension", vary that period or confirm it. If the decision appealed against is an order imposing conditions, then the Tribunal can revoke the conditions, vary them or leave them as they are.
16. Dr Karimi argued in effect that s 159C(1) conferred a power on the Tribunal to vary the conditions on his registration if the Tribunal had first made an order terminating the period of suspension. In other words and having regard to Dr Karimi's circumstances, it can be argued that if the period of suspension is terminated, then his rights and privileges as a registered practitioner "revive", in accordance with s 150G. Consequently, any conditions previously imposed on his registration would also revive, as they are an integral element in defining the extent of his "rights and privileges".
17. If: 1. the expression "the conditions" in s 159C(1) refers to the conditions on the practitioners registration however imposed, as distinct from the conditions imposed by the Council in the decision under appeal; and 2. the "or" in s 159C(1) between "suspension" and "revoke" is cumulative and not disjunctive, then it could be concluded that the Tribunal has power not only to terminate a period of suspension but also to revoke or vary any conditions on the practitioner's registration, which is revived when the suspension is terminated by the Tribunal.
18. The argument turns, in essence, upon the proper construction of s 159C and, in particular, the words "the conditions" in s 159C(1) and the meaning of the word "or" in that subsection. In this regard, the Tribunal is guided by what was said by the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; [1998] HCA 28: "The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.' (footnotes omitted)
19. "Conditions" appears in both subsections of s 159C. The expression, "the conditions", in s 159C(1) must be considered in the context of the appeals to which that subsection applies, that is appeals under ss 159 and 159B. Those appeals are all appeals against decisions or action taken by a "Council for the health profession". These decisions or actions by a Council relevantly include imposing conditions, or refusing to alter or remove conditions, on a person's registration as a health practitioner or as a student - see s 159(1)(b), (c) and (e) and s 159B, which refers to "action taken by a Council for the health profession under ss 150, 150A and 150C". From those provisions it follows that the only "conditions" that may be the direct subject of the appeals under s 159C are all conditions imposed by a relevant Council not conditions imposed by another body such as the relevant National Board. This suggests that "the conditions" in s 159C(1) are limited to conditions imposed by the relevant Council not by another body.
20. In s 159C(2), the "conditions" is qualified by the phrase "imposed by a Council". This qualification is consistent with the conditions referred to in s 159C(1) being limited to those imposed by a Council that can be the subject of an appeal to which s 159C applies.
21. A consistent meaning should ordinarily be given to a particular word wherever it appears in a suite of statutory provisions: Tabcorp Holdings Ltd v Victoria (2016) 90 ALJR 376; [2016] HCA 4 at [65].
22. A consistent reading of the word "conditions" in the context of both subsections of s 159C suggests that the "conditions" which may be revoked, varied or confirmed by the Tribunal in an appeal under s 159 or s 159B are the conditions imposed by a relevant Council, not any conditions that may have been imposed on a practitioner's registration by another body such as a National Board. There is nothing in the text of s 159C or its context to suggest that approach ought not be adopted in respect of s 159C.
23. If such a construction of "conditions" is adopted, the only conditions that could be revoked, varied or confirmed by the Tribunal would be those imposed by the Council. In the present case, the Council did not impose any conditions. Consequently, even if the period of suspension was terminated, the conditions on Dr Karimi's registration, having been imposed by the Board, would not be conditions that could be revoked or varied under s 159C(1).
24. Adopting such a construction leads to a result which is inconsistent with the approach to s 159C(1) preferred by a differently constituted Tribunal in Hanna v Medical Council of New South Wales [2017] NSWCATOD 2. In that case, the Tribunal said at [70]: "Without expressing a final conclusion, the arguments of the respondent are dubious. The order-making powers of the Tribunal relate to appeals from the s 150 committee. It would be an odd outcome if a Tribunal, so minded, could not 'vary' a suspension in such a manner that it is set aside and replaced by an order imposing conditions, as occurred, for example, in Dr Reid v Medical Council of NSW [2014] NSWCATOD 152. The words of s 159C ought not be construed in a way that defeats the apparent purpose of the appeal right, to allow a full reconsideration of the s 150 committee's decision. The appeal will take place well away from the time urgency that often surrounds s 150 processes, and the appeal will often have a body of evidence that had not been assembled at the time of the s 150 hearing. Reid was such a case."
25. The following observations can be made concerning Hanna. The power in s 159C(1) is not to "'vary' a suspension" but rather to "vary … a period of suspension". The power to "vary … a period of suspension" would not, on its ordinary meaning, include setting a suspension aside and replacing it by an order which confirms or varies conditions imposed by a body other than the Council, especially when that body's decision is not the subject of the appeal. In so far as the decision in Dr Reid v Medical Council of NSW [2014] NSWCATOD 152 is relied on, it can be noted that in that case the Tribunal ordered that "The suspension of the appellant lifted". It did not vary the conditions that had previously been imposed by a Performance Review Panel and the Tribunal expressly doubted whether this could be done under s 159C(1). The Tribunal in that case adopted the course of making observations concerning suitable conditions "by way of recommendation only for consideration by the Council": [2014] NSWCATOD 152 at [132].
26. In addition, we do not accept that it is necessarily the case that "the apparent purpose of the appeal right [under s 159 is] to allow a full reconsideration of the s 150 committee's decision". Section 159C itself suggests that the purpose is more limited, as we have explained above. Moreover, the wider context of the National Law supports the more limited view.
27. In considering s 159C in the wider context of the National Law, it is important to note that registration decisions are made by the relevant National Board under Pt 7 not the relevant Council. A National Board can impose conditions on registration when it considers whether the practitioner in question should be registered or re-registered: s 83 of the National Law. This is what occurred in Dr Karimi's case when the Board imposed conditions on his registration on 27 July 2017. That type of decision may be appealed to the Tribunal under s 175(1)(e) and (f) of the National Law. In such an appeal, the powers of the Tribunal are set out in s 175C, which provides: "(1) After hearing the matter, the responsible tribunal may - (a) confirm the appellable decision; or (b) amend the appellable decision; or (c) substitute another decision for the appellable decision. (2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision."
28. Similarly, if under s 150A(1) and (2) of the National Law the Council reconsiders its previous decision under s 150, its powers are specified in s 150A(3) in the following terms: "(3) Following its reconsideration of a decision, a Council may - (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under section 150."
29. The marked difference between the powers that may be exercised under ss 175C and 150A(3) and those available to the Tribunal under s 159C strongly suggests that it was intended that the powers of the Tribunal in s 159 appeals against decisions of a Council under s 150 should be narrower than those of the Tribunal when dealing with an appeal from a registration decision of a National Board or those of the Council when a review is sought under s 150A.
30. Returning to s 159C(1), we note that that subsection contains two types of power separated by "or". One is a power to "terminate, vary or confirm a period of suspension". The other is the power to "revoke, vary or confirm the conditions". The use of the word "or" would normally suggest that these are alternatives and that both powers could not be used in respect of the same order, even if that were otherwise possible. We accept that there are examples where "or" has been held not to be strictly disjunctive but equivalent to "or, or as well": for example Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194-5 and Unity APA Ltd v Humes Ltd [1987] VR 474 at 481-2. The cases where "or" has been held not to be strictly disjunctive have, however, turned upon an assessment that the object or purpose of the relevant provision would be promoted by such a construction. In our view and in the light of other appeal provisions in ss 175 and 175C of the National Law and the way the word "conditions" is used in s 159C(1) and (2), the object or purpose of ss 159 and 159C does not require "or" to be given a non-disjunctive meaning in this case.
31. Finally, we note that the construction of s 159C(1) that limits the Tribunal's power in an appeal against an order suspending a practitioner's registration under s 150(1)(a) to terminating, confirming or varying the period of suspension is consistent with the decision of the Tribunal in Khan v Medical Council of NSW [2016] NSWCATOD 88. In that case, Marks ADCJ also identified the difficulties inherent in such an approach and suggested that amendment of s 159C might be appropriate. His Honour held at [28] to [30]: "28 It will be seen that on appeal from a suspension of registration, this Tribunal is limited to making an order terminating, varying or confirming a period of suspension. This is to be compared with the powers given to the Council under section 150 which extend to either making an order for suspension or the imposition of practice conditions. This limitation on the powers of this Tribunal to make orders on appeal has caused the appeal to be described as a hybrid appeal de novo. 29 Whatever the description, it seems to me that the limitation created by section 159C may create some difficulty for this Tribunal in appropriate circumstances. For example, the appellant concedes that he is guilty of misconduct in the context of these proceedings, but asserts that the public will be protected if appropriate practice conditions were imposed. If, on a hearing properly constituted, the Tribunal determined to accede to the submission of the appellant, it would be faced with the problem of making an appropriate order. If the Tribunal concluded that the practitioner could safely practice medicine provided that certain practice conditions were put in place, there would be no ability under section 159C to frame an appropriate order. The Tribunal would be limited to terminating the suspension or maintaining it. Either alternative would, in those hypothetical circumstances, render an injustice either to the practitioner or expose the public to a lack of protection from the practitioner. 30 As will be seen, I am saved from the prospect of wrestling with this particular problem in these proceedings. However, I would recommend that consideration be given by the responsible authority to an amendment to section 159C of the Act to permit the Tribunal on appeal to impose practice conditions where appropriate if it determines to terminate the suspension of a practitioner."
32. Having regard to all of the considerations set out above, we are of the view that on an appeal under s 159 of the National Law against an order of the Council suspending the registration of a registered medical practitioner, the Tribunal can only terminate, vary or confirm the period of suspension. It cannot, on the proper construction of s 159C(1), make orders in effect setting aside the suspension and imposing conditions, or varying conditions already imposed by a body other than the Council, on the practitioner's registration. It may be the case that this is a situation that deserves the attention of the legislature, as Marks ADCJ suggests.
33. It is useful at this point to set out in some detail what has relevantly occurred in relation to Dr Karimi's practice of medicine in Australia and the circumstances in which this present appeal has come before the Tribunal.

Dr Karimi's practice of medicine and other circumstances

1. Having been born in 1968 in Tehran, Iran, Dr Karimi graduated from Mashhad University as a Doctor of Medicine in 1994. He was first registered as a medical practitioner in New South Wales on 25 August 2003.
2. On 23 August 2005 he was found guilty of the offence of common assault but the court, without proceeding to a conviction, discharged him on condition that he enter into a good behaviour bond for a term of 12 months, under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). An additional charge of assault occasioning actual bodily harm was dismissed.
3. On 19 January 2006, Dr Karimi was fined $250 and disqualified from driving for three months for the offence of "Drive with low range PCA".
4. In the first half of 2009, while employed at the Dubbo Medical Centre, Dr Karimi was investigated by the NSW Medical Board (as it then was) concerning prank calls which were videoed and uploaded on YouTube and an anonymous complaint of an inappropriate relationship with a female patient. As part of this investigation Dr Karimi was assessed by a consulting psychiatrist, Dr Murray Wright, and was interviewed by a Panel of the NSW Medical Board.
5. In the Interview Report dated 14 July 2009 the NSW Medical Board Panel recorded: "Dr [Karimi] was warned that this report will be placed on his Medical Board file and would be taken into consideration in any future dealing he may have with the Board. CONCLUSIONS Dr [Karimi] has reflected on his behaviour and has good insight in regard to the professional issues involved in both the prank calls and boundary issues. In the absence of a first person complaint of boundary crossing the Panel is of the view that it is reasonable to accept Dr [Karimi's] version that the relationship was entirely platonic. Dr [Karimi] was strongly counselled and the Panel accepts that Dr [Karimi] has learnt from this experience and has modified his behaviour accordingly. RECOMMENDATION No further action is necessary."
6. On 2 February 2012, Dr Karimi was admitted as a Fellow of the Royal Australian College of General Practitioners.
7. On 6 December 2012, Dr Karimi was fined $700 and disqualified from driving for three months for the offence of "Drive with low range PCA".
8. On 3 December 2014, the HCCC received a complaint concerning Dr Karimi's treatment of a patient of his practice at Tea Gardens (the Tea Gardens Complaint). The complaint alleged that Dr Karimi had improperly treated the complainant's father, by prescribing Pregabalin without providing information about the drug or warning of the side effects including "strong warning of suicidal thoughts". This was said to have contributed to the complainant's father's suicide on 26 October 2014.
9. On 6 January 2015, Dr Karimi provided a response to the Tea Gardens Complaint by email to the HCCC. That response included the following: "5- in July 2014 I received a phone call from the Manor nursing home to see the manager. When I met her, the manager told me that they were quite concerned about [the complainant's father's] behaviour. She mentioned every time [he] visits his wife, she becomes very drowsy for many hours and they thought he was giving her some kind of medicine to accelerate her death, he was also pressuring the managing staff to perform euthanasia on his wife and they had told him that they couldn't allow that. [He] was a strong supporter of euthanasia. … 9- …When I was practising medicine in rural NSW for ten years, away from my family and two teenage daughters, [the complainant] was comfortably at her house in North Sydney, and how dare she questions my competence? I find it outrageous that when all the community in Tea Gardens and Haws Nest, were virtually in tears when I was leaving on October, [the complainant] allows herself, without being at the consultation room, to accuse me of preposterous incompetence and neglect! If I was such a neglecting incompetent doctor, why would I be so popular and everyone insisted to see me while there were four other doctors at the practice? … I hope this baseless selfish complaint will be dealt with fairness. …"
10. The HCCC assessed the complaint and decided to take no further action regarding the complaint.
11. By email of 10 March 2015, the complainant sought a review regarding her complaint. She raised a number of concerns about Dr Karimi's "offensive unprofessional response" in the email including: "I am outraged at his claim that 'he was called to the Manor Nursing Home regarding my father'. How false and completely fabricated is his statement that my father was attempting to kill my mother. … Dr Karimi has lied for his own gain, it is abhorrent. The Manor Nursing Home have no such record of any event happening. … … It is extremely inappropriate for a medical professional to make such a statement '[the complainant] was comfortably at her house in North Sydney, and how dare she questions my competence'. …"
12. On 14 April 2015, the HCCC requested Tea Gardens Manor nursing home to provide, under s 21A of the Health Care Complaints Act 1993 (NSW), "any record, notation of other form of information held by Tea Gardens Manor in relation to the statements … from Dr Karimi and [the complainant]" concerning the complainant's mother and father and the alleged meeting between the manager and Dr Karimi in July 2014. On that same day, the Executive Director of Care of Tea Gardens Manor responded to that request as follows: "In relation to the statement provided by Dr Kamiri regarding the event that occurred in July 2014, there is no information in the facility that supports this statement. A review of Kamari's medical notes makes no mention of the said event. Therefore I have no information to provide you with."
13. By email of 20 April 2015, the HCCC advised Dr Karimi of the request for a review and of the information obtained from the nursing home and sought a response within seven days. In addition, the email stated: "Further, to this they [the nursing home] advise they have contacted the Manager at the time (July 2014) who has advised that no such discussion/meeting/contract took place with you."
14. On 25 April 2015 Dr Karimi responded by email in which he vigorously contended that he did have a meeting with the manager in July 2014. In addition, he stated: "It seems like [the complainant] is adamant to accuse someone for her father's death and I must be the easiest target. … I am more than happy to share this response with [the complainant]. … I can prove very well that the conversation between me and the Manor management did take place regarding [the complainant's father's] behaviour as I mentioned. The entire personnel at the Manor have changed but I can definitely find solid evidence of this event certainly. … [The complainant] will have to compensate me for my time and I will demand a formal apology for all this time wasting aimless procedure. …"
15. On 1 July 2015, the HCCC received a complaint dated 30 June 2015 about Dr Karimi from Mr Shane Waterfield, who alleged that Dr Karimi had prescribed drugs, including Diazepam, under the names of other staff and employees at the Plus Medical Clinic in Parramatta, without their consent, and had placed the drugs in the treatment room for use on specified patients (the Parramatta Complaint).
16. On 15 July 2015, Dr Karimi wrote an email to the HCCC concerning the Tea Gardens Complaint in the following terms: "I travelled to Tea garden yesterday and reviewed my notes. I found the exact date of that meeting with the Manor nursing home management regarding [the complainant's father's] suspicious activities with his wife(maybe giving her sedatives). It was on September 2012 and I wrote it in her notes not in [his]. I hope this help us clarify some ambiguity in this matter." It appears that a copy of those notes was not attached to the email or otherwise provided. The HCCC acknowledged receipt of the email on 17 July 2015. From the HCCC's email it appears that the Tea Gardens Complaint had by this time been referred to the Council.
17. By email of 17 August 2015 in relation to the Tea Gardens Complaint, the Council requested from Dr Karimi a copy of his notes which included the entry noting that the wife was found to be very drowsy after the husband's visits.
18. On 25 August 2015, Dr Karimi responded by email to the Council in respect of the Tea Gardens Complaint. He did not provide any notes as requested but rather gave an account of the meeting that indicated that the concern had been raised by a nurse and that: "[a]fter having a long conversation with the manager that day I realized there was not enough solid evidence for this suspicion. Nevertheless I did not dismiss the issue. I asked them to supervise [the complainant's father's] visits. … The nurse raising the issue could have been completely wrong and I knew [the complainant's father] was a sensitive person and I didn't want to add to his grief by mentioning such a significant allegation to him. …"
19. On 21 October 2015 by email, the HCCC requested information and documentation from Dr Karimi concerning the Parramatta Complaint.
20. On 26 October 2015, Dr Karimi responded by email to the HCCC concerning the Parramatta Complaint and, among other things, gave an account of how he came to write prescriptions in the name of staff members of the Plus Medical Clinic when they were for the treatment room at the clinic and not the staff member.
21. On 28 October 2015, the Council wrote to Dr Karimi advising that the Council Conduct Committee had considered the Tea Gardens Complaint and resolved to provide advice to assist him with his future practice. In particular the letter stated: "In relation to the lack of notes in the [wife's] records, the Committee strongly recommends that in the future you ensure that you make relevant, contemporaneous notes about all issues which arise in relation to patients. You should reflect on these comments and ensure that you attend to these aspects of your practice. Enclosed is a copy of 'Good Medical Practice: A Code of Conduct for Doctors in Australia' which may be of assistance. … The Medical Council will be taking no further action on this matter, subject to any appropriate request for a review of this decision. Please note that any future complaint will be considered in the context of your previous dealings with the Council, although individual concluded complaints will not be reopened. "
22. On 24 July 2016, Dr Karimi provided a detailed response to the HCCC concerning the Parramatta Complaint including explanations in respect of a number of identified patients.
23. If the Australian Health Practitioner Regulation Agency's (AHPRA) usual procedures were followed in Dr Karimi's case, he would have received reminder notices concerning the renewal of his registration as a medical practitioner by communications sent on or about 3 August 2016 and 12 September 2016.
24. By 30 September 2016, Dr Karimi had not renewed his registration.
25. If AHPRA's usual procedures were followed in Dr Karimi's case, he would have received notification that his renewal was overdue by a communication sent on or about 7 October 2016.
26. If AHPRA's usual procedures were followed in Dr Karimi's case, he would have received a notice of expiry of his registration by a communication sent on or about 14 November 2016 which included the following: "You are no longer registered and your details have been removed from the Register of practitioners, effective from [the date on which his registration lapsed 31 October 2016]. You can no longer practise using the registration below."
27. AHPRA's website since at least 30 September 2016 has contained the following information on the page "Renewing your registration for medical practitioners": "If you do not renew your registration by 30 September, or within the one month later period, your name will be removed from the nation al register and your registration will lapse in accordance with the National Law. If you wish to keep practising and do not renew your registration by 31 October you must submit a fast tract application for registration. Fast track application forms are available on the Board website or by phoning Customer Service Team on 1300 419 495 during November. If submitting a fast track application, you cannot practise until your application is processed and your registration details are updated on the national register."
28. On 31 October 2016, Dr Karimi's registration lapsed and he was no longer a registered medical practitioner.
29. On 16 November 2016, Dr Karimi paid an application fee of $60.00 to AHPRA in relation to a "fast track" application for registration as well as a registration fee of $638.00. Accordingly, we infer that, on or about 16 November 2016, Dr Karimi lodged a fast track application for registration as a medical practitioner.
30. On 7 December 2016, the HCCC requested a General Practitioner of 42 years' experience to provide an independent expert's report in relation to the Parramatta Complaint.
31. By letter dated 4 January 2017, AHPRA informed Dr Karimi that his fast track application for registration was considered by the Board on 3 January 2017. The Board had noted Dr Karimi's criminal history, including charges of assault and two charges of driving with low range PCA and other previous history with the former NSW Medical Board and Dr Karimi's advice concerning PTSD and depression and had determined to require him to attend an independent health assessment with a board-appointed psychiatrist.
32. On 4 January 2017, according to the information provided by Allegan Australia Pty Ltd to the HCCC by email dated 13 January 2017, an employee of Allergan, Adrine Gulesserian, who was responsible for opening new cosmetic accounts with Allergan, received a call from a female called Penny from Waitara Family Medical Practice, where Dr Karimi worked. The purpose of the call was to have the address on Dr Karimi's account changed from Chatswood Medical & Dental Centre to Waitara Family Medical Practice. Adrine advised Penny that she required an account application from Dr Karimi along with a copy of his current medical registration certificate as the copy on Allegan's file was out of date. Penny advised that she did not have Dr Karimi's current registration certificate as he had forgotten to pay and was waiting on AHPRA to process the payment so that it would be active again. Penny advised she would forward the new certificate once received.
33. On 4 January 2017, Dr Karimi signed an account application to Allergan in respect of the Waitara Family Medical Practice so that he could obtain Botox for treatment of a patient. On the first page of the two-page application form, the following notation appeared: "**** IMPORTANT NOTE **** 1. TO ENABLE SUPPLY OF SCHEDULE 2, SCHEDULE 3, SCHEDULE 4 OR SCHEDULE 4 APPENDIX D (S4D) ITEMS, THE HEALTH DEPARTMENT REQUIRES ALLERGAN TO HAVE A COPY OF YOUR REGISTRATION/LICENSE. □ PLEASE PROVIDE YOUR REGISTRATION/LICENSE NUMBER: _______________________ □ PLEASE ATTACH A CURRENT COPY WITH THIS ACCOUNT APPLICATION"
34. Relevantly, both boxes included in the extract above were ticked. In the space next to "PLEASE PROVIDE YOUR REGISTRATION/LICENSE NUMBER", there appeared the handwritten letters and numbers "MED0001193790". There was no dispute that this was Dr Karimi's registration number when he was registered as a medical practitioner.
35. On the second page under the heading "Declaration" were the words: "We have read and agree to comply with the requirements of this Account Application and the Trading Terms and Conditions attached. MEDICAL PRACTITIONER: Name:" Immediately next to the word "Name" was "Dr Kooshyar Karimi" followed by his signature and the date "4.1.17".
36. In addition, there was a completed Allergan "Facial Aesthetics Price List/Order Form".
37. On 5 January 2017, according to the information provided by Allergan to the HCCC by email on 13 January 2017, Ms Gulesserian received the application form and the registration certificate purporting to be for Dr Karimi. She suspected that the certificate might be forged and she checked the AHPRA website register of medical practitioners for Dr Karimi's registration but no results appeared. She then telephoned AHPRA who confirmed that they had no record of registration of the name or number provided. She was advised to report the matter to the HCCC.
38. A scanned copy of the account application form and the registration certificate and order form sent with the application is set out at the end of these reasons in appendix 1. Part of the information on the order form appears to have been whited out at some point.
39. The certificate sent to Allergan was not genuine. It erroneously indicated that Dr Karimi's registration was for the period "01/10/2016 to 01/10/2017" when the registration period would have actually been from 1 October 2016 to 30 September 2017. Further, in the lower right hand corner of the certificate, the words "Date printed: 10/10/2011" appeared.
40. On 9 January 2017, the HCCC recorded an inquiry by telephone from a person identified as Adrine to an Inquiry Officer. Under the heading "Inquiry Details", the following information was recorded: "Adrine works for a pharmaceutical company that also supplies s 8 drugs. They had a request from Waitara Family Practice to add another Dr to the account. They requested to add a new Dr and Adrine requested confirmation of their registration details. AHPRA has no record of this Doctor and they (the pharmaceutical company) received a very obviously forged document."
41. On 9 January 2017, the HCCC also received the General Practitioner's expert report dated 21 December 2016 concerning the Parramatta Complaint.
42. On 13 January 2017, Allergan sent to the HCCC by email a report of what had occurred in relation to Dr Karimi's account application. Attached to that email was the copy of the account application form sent to Allergan, the falsified certificate of registration and a document with details of the registration of the other doctors and nurse who worked at Waitara Family Medical Practice. On that same day, the HCCC referred the material to the Pharmaceutical Regulatory Unit (PRU).
43. On 16 January 2017, Kim Dolan, Principal Pharmaceutical Officer of the PRU, visited Pharmacy 4 Less in Hornsby to obtain a dispensing history of prescriptions written by Dr Karimi. From the history it was ascertained that a number of Schedule 8 drugs had been prescribed by Dr Karimi. Later that day, Kim Dolan interviewed Dr Karimi at the Waitara practice and prepared a report dated 20 January 2017. The report recorded, among other things, that during the interview: 1. When asked why he was prescribing drugs of addiction including fentanyl patches, to a number of patients, Dr Karimi explained "because they were addicted to them. Many of them are Irani and they have followed me over from the Parramatta practice". 2. Dr Karimi said he was unaware that it was against the law to prescribe any drug of addiction to a drug dependent person without an authority issued by the NSW Ministry of Health. 3. Dr Karimi said that this country has a big problem with opioids and what was he supposed to do, they were human beings and they needed the drugs. 4. For one patient for whom Dr Karimi had prescribed Durogesic patches on a number of occasions, the progress notes gave no therapeutic reasons for the prescribing just comments like "requested patch, said he lost last prescription, going overseas to Iran for father's funeral". Dr Karimi said that he does sometimes say no but if they cry he always gives in (sometimes after 45 minutes of pleading) and gives them what they want as they are "Human beings in need". 5. Dr Karimi opened a drawer and showed Kim Dolan a letter on Medicare letterhead. After reading it Dr Karimi said that it was a fake and that he had the receptionist type it up to show to people to get out of writing them Schedule 8 prescriptions that they requested. 6. Kim Dolan showed Dr Karimi the registration certificate supplied to Allergan. Dr Karimi said that "he only did that because one of his patients wanted to have Botox injections before her wedding, that's all. He had an account with Allergan at a different practice address but they wouldn't supply it to him at this practice without the required documentation." 7. When asked why he was not registered, Dr Karimi said that "he forgot and that by the time he got around to it they wanted him to submit a lot of paperwork which included a criminal record check." Kim Dolan also noted that "[h]e seemed to assume that he had an interim pending registration".
44. On 17 January 2017, Kim Dolan contacted Dr Chand Raja and requested by email the records of Dr Karimi's fentanyl prescribing. As we understand it, Dr Chand Raja is not a registered medical practitioner but holds a doctorate in philosophy. She had signed the Allegan account application form as the "Financial Officer" of the Waitara Family Medical Practice and was also specified as the "Contact Name" for the account. Records for 15 patients were provided to Kim Dolan in response on 18 January 2017. Those records were before the Tribunal.
45. On 24 January 2017, the HCCC received a copy of Kim Dolan's report and a covering letter from the PRU.
46. On 4 February 2017, Dr Oliver O'Connell, consultant psychiatrist, provided a report (misdated 4 February 2016) to the Board concerning Dr Karimi's assessment as foreshadowed in the Board's letter of 4 January 2017 to Dr Karimi. The report included a history of the criminal charges against Dr Karimi, his drug and alcohol history, his psychiatric and medical history and his personal history. The conclusion was as follows: "Dr Karimi does not suffer from any psychiatric disorder and as such does not have an impairment that detrimentally affects, or is likely to detrimentally affect, his capacity to practice the profession of medicine."
47. On 21 February 2017 the Board met to consider Dr Karimi's fast track application for registration. Because of the information received from the HCCC and PRU concerning their investigations into Dr Karimi's practising while unregistered, the false certificate provided to Allergan and related matters, the Board resolved to propose to refuse Dr Karimi's registration under s 55(1)(h) of the National Law as, in its opinion, he was not a fit and proper person for general registration in the medical profession.
48. By letter dated 27 February 2017, AHPRA on behalf of the Board gave Dr Karimi notice of the Board's proposal to refuse registration and gave him until 29 March 2017 to make submissions about the proposal. In particular, in that letter, it was stated: "Following the Board initially considered your application in early January, information has since been received via the Health Care Complaints Commission (HCCC) and the Pharmaceutical Regulatory Unit (PRU) in relation to an investigation it has undertaken. As part of this investigation, the following has been determined: ▪ You continued to practise the profession after your name was removed from the Register and after you were advised that you were no longer registered ▪ You provided fraudulent documentation, including a Medical Board of Australia Certificate of Registration that had been amended to reflect that you were registered for the period 1 October 2016 to 1 October 2017 ▪ The fraudulent certificate stated above was used by you for the purposes of obtaining from a licensed wholesaler prescription only medicine by wholesale. ▪ You also provided a fraudulent documentation using Medicare letterhead."
49. On 10 March 2017, Dr Karimi advised AHPRA he wished to make a verbal submission to the Medical Board in response to its proposal to refuse his registration.
50. By letter dated 15 March 2017, AHPRA on behalf of the Board advised Dr Karimi that he would be given the opportunity to make oral submissions to the Board concerning his registration application on 4 April 2017.
51. On 27 March 2017, Georgia Garling of the HCCC provided a report on the investigation into the Parramatta Complaint, noting that the HCCC had identified the following issues concerning that complaint: "● Professional misconduct ● Illegal prescribing, dispensing and storage of medication ● Inappropriate clinical record keeping". The report contained summaries of statements from Mr Waterfield, the complainant, and members of staff of the Plus Medical Clinic in Parramatta, a summary of Dr Karimi's responses and submissions as well as other material. The report concluded: "Proposed Action 8.1 The Commission intends to consult with the Council on the proposal to refer the matter to the Director of Proceedings under s 39(1)(a) of the [Health Care Complaints Act 1993]."
52. On 4 April 2017, Dr Karimi made oral submissions to the Board including in relation to the period of unregistered practice, the amended registration certificate, the fraudulent letter from Medicare and difficulties in relation to prescribing Schedule 8 drugs.
53. By letter dated 21 April 2017, AHPRA on behalf of the Board informed Dr Karimi of the Board's decision to refuse his application for registration under s 82(1)(c)(i)(C) of the National Law on the basis of the Board's opinion that he was not a fit and proper person for general registration under s 55(1)(h)(i). Dr Karimi was also told that he had an appeal right under s 175 of the National Law.
54. On 17 May 2017, Dr Karimi wrote a letter to AHPRA in which he gave an explanation of how he came to practise while unregistered, the circumstances surrounding the "amendment of the practising certificate", his understanding that the use of the letter on Medicare letterhead was wrong and how he had started to see a psychologist to assist with issues relating to the treatment of patients seeking drugs of addiction. Dr Karimi also wrote "I did not do anything with wrong intentions and I did not cause any harm to any of my patients". The letter concluded "I truly appreciate you considering my request for leniency". The letter was apparently accompanied by, among other things, a résumé, a number of references and a letter dated 10 May 2017 headed "To whom it may concern" from a psychologist Justin Cogley.
55. On 30 May 2017, Dr Karimi lodged a fresh application for registration. On 24 May and 1 June 2017, he paid the application fee and registration fee of $1,362.00 and the application fee only of $181.00, respectively.
56. On 24 July 2017, AHPRA wrote a letter on behalf of the Board to Dr Karimi. In the letter it was noted that Dr Karimi had not appealed against the decision to refuse his fast track application as set out in the letter of 21 April 2017 but had decided to lodge new applications for registration directly with the Board. The Board had noted Dr Karimi's detailed correspondence dated 17 May 2017 in which the following were outlined: "▪ [His] remorse and regret for [his] previous actions ▪ [He has] taken responsibility for [his] errors in judgment and, in particular, for the use of fraudulent documentation and have confirmed that this will not be repeated in future ▪ [His] confirmation that [he is] cognisant of the ramifications relating to unregistered practice and that [he] will not practise, in Australia, unless registered with the Medical Board of Australia ▪ [He has] sought professional help from a Psychologist to assist [him] with refusing requests from patients for addictive medications and unjustifiable treatment requests. The supporting letters of reference, including correspondence from [his] treating Psychologist, Dr Justin Cogley."
57. It was also stated in that letter that "[f]ollowing careful consideration of … the evidence provided to confirm your remorse and regret for your previous actions, the Board has resolved to approve your applications for general and specialist registration subject to conditions. The Board is of the opinion that these conditions are necessary based on the information provided to the Board and noting your previous actions which are of concern to the Board".
58. In these circumstances, under s 81 of the National Law the Board was required to give notice of the conditions it proposed to impose. The letter went on to inform Dr Karimi that the proposed conditions were as follows: "1. Must not possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 2. Must provide written evidence to AHPRA that he has attended the offices of the Pharmaceutical Services and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug by 4 August 2017 3. Must not supervise other medical practitioners. 4. Must undertake an ethics course at his own expense and within six months of registration being issued 5. Must obtain Board approval of the proposed ethics course and the proposed education facility, within three months of registration being issued, and prior to commencing the course 6. Must provide evidence to the Board of his successful completion of the course(s), signed by an individual authorised by the education institution, within 14 days of completion of the course 7. That the above conditions have effect until such time as Dr Karimi is reviewed by the Medical Council of NSW under Part 8 of the Health Practitioner Regulation National Law (NSW) or until these conditions are otherwise varied or lifted by the Medical Board of Australia in accordance with Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law."
59. Dr Karimi accepted the proposed conditions. By letter of 27 July 2017, AHPRA on behalf of the Board confirmed that Dr Karimi's registration had been granted subject to the conditions that had previously been proposed.
60. Dr Karimi complied with condition 2 on 3 August 2017.
61. On 21 August 2017, Dr Karimi's solicitors provided written submissions to the HCCC concerning the complaints made by Allergan about the provision of the fraudulently altered certificate of registration to obtain Botox (the Allergan Complaint) and the PRU complaint concerning Dr Karimi's practising while unregistered, falsifying the medical registration certificate and record keeping well below the standard expected of a medical practitioner of the same level of training and experience (the PRU Complaint).
62. On 28 August 2017, Ms Garling completed a report concerning the Allergan Complaint and the PRU Complaint noting that Dr Karimi had also made admissions concerning prescribing in breach of s 28 of the Poisons and Therapeutic Goods Act 1966 (NSW) and cl 79 of the Poisons and Therapeutic Goods Regulation 2008 (NSW). The issues said to arise from the complaints were summarised as: "● Professional misconduct ● Illegal prescribing of schedule 4, 4D and 8 medication ● Falsifying a Medical Board of Australia Certificate of Registration ● Practising while unregistered"
63. In Ms Garling's report the decision of the Board to grant conditional registration was noted but the report concluded as follows: "Proposed Action 8.1 The Commission intend to consult with the Medical Council of NSW on the proposal to refer the complaints to the Director of Proceedings under section 39(1)(a) of the [Health Care Complaints Act 1993]."
64. On 18 September 2017, the Council informed Dr Karimi that it had received information which raised concerns about his practice of medicine and due to those concerns the Council had resolved to hold a hearing to determine whether it was appropriate to take immediate action and, if so, urgently to take such action. Dr Karimi was notified that the hearing was to take place on 21 September 2017.
65. The hearing proceeded on 21 September 2017 and at the end of the hearing the Council ordered that Dr Karimi's registration be suspended under s 150(1)(a) of the National Law. Subsequently the Council provided written reasons for its decision.
66. As noted above, an external appeal to the Tribunal was lodged by Dr Karimi on 10 October 2017.
67. No proceedings in respect of any of the Parramatta Complaint, the Allergan Complaint or the PRU Complaint had been instituted in the Tribunal by the time of the hearing before us on 20 November 2017.

Nature of the present external appeal

1. We now turn to consider the nature of present appeal and the task of the Tribunal. As the National Law is the applicable enabling legislation it establishes the "basis or grounds" on which an external appeal may be made: s 79(1) of the NCAT Act. Section 159(3) of the National Law provides that an external appeal to the Tribunal under that section: "is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given."
2. Further, s 79(2)(a) of the NCAT Act provides that, in the case of enabling legislation that specifies the orders that may be made by the Tribunal on an external appeal, the Tribunal may make any of those orders in determining the external appeal. As has already been noted, s 159C of the National Law is such a provision in the enabling legislation in that it specifies the orders that the Tribunal may make on an appeal under s 159. For the reasons already given, in the present case the Tribunal has in effect to decide whether the period of suspension of Dr Karimi's registration ordered by the Council should be terminated, varied or confirmed.
3. Hanna v Medical Council of NSW [2017] NSWCATOD 27 and Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 provide useful guidance as to the nature of an external appeal under s 159 of the National Law against a decision of the Council to suspend a medical practitioner's registration under s 150. The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows: 1. Nature of the appeal The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal's task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]) 2. Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47]) 3. Consequences of suspension The exercise of the power to suspend can be described as "draconian" and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law) 4. No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76]) 5. Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19]) 6. Pre-conditions on power to suspend The Tribunal must assess whether "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20]) 1. Scope of "protection of the health and safety of person or persons" The "protection of the health and safety of any person or persons" does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]) 2. Scope of "public interest" The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56]) 1. No need to determine whether conduct is "professional misconduct" or "unsatisfactory professional conduct" Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes "professional misconduct" or "unsatisfactory professional conduct" or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22]) 2. Nature of suspension power under s 150 An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at [51] and the authorities cited there; Lindsay at [79]) 3. Council's separate power to reconsider suspension A practitioner may also apply directly to the Council for a review of a s 150 decision to suspend a practitioner's registration. If satisfied there has been a sufficient change in the practitioner's circumstances, the Council can affirm or vary the decision or set it aside and take any action it has power to take under s 150. (s 150A(2)(b) and (3) of the National Law).

The Parties' positions and the Tribunal's task

1. As we understood it, Dr Karimi's position on his appeal was that the period of suspension should be terminated so that he could return to work as a registered medical practitioner. He submitted that, on the material before us, we should not be satisfied that it is appropriate for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or is otherwise in the public interest that his registration should remain suspended. This was because either the conditions already imposed by the Board on his registration, or those conditions and any further conditions the Tribunal thought necessary, would be sufficient to remove any significant risk to health or safety of any person or persons and to address any other public interest concerns. It was not part of his case that we should vary the period of suspension so as to specify a different period from that which would apply as a result of the operation of s 150(2) of the National Law.
2. The Council's position was that on the material before us we should be satisfied that the period of suspension should be confirmed.
3. In accordance with s 159(3) we are required to conduct this appeal by way of a new hearing on the material before us. As we have explained above, this means the Tribunal is required to perform the task that the Council was called on to perform under s 150(1), but taking into account the limitation in s 159C(1) on the orders we can make. The practical consequence in this case is that, if we are "satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or is otherwise in the public interest" we are in effect required to confirm the period of suspension ordered by the Council.

The period of suspension

1. In these circumstances, it is important as a first step to establish what the period of suspension is in this case.
2. Any suspension ordered under s 150(1)(a) has effect until the complaint is disposed of or the suspension is sooner ended by the Council, see s 150(2). The "complaint" referred to in s 150(2) is either: 1. The matter which the Tribunal refers to the HCCC under s 150D(1) and which the HCCC must treat as a complaint and investigate, because of s 150D(3) and (4), or 2. A complaint or complaints already made to the HCCC which includes the matter referred by the Council to the HCCC under s 150D(1), see s 150D(4A).
3. In this case, the matter referred by the Council to the HCCC in the Council's orders made on 21 September 2017 appears to us to be included in the three complaints already made to the HCCC that have not been disposed of, namely the Parramatta Complaint, the Allegan Complaint and the PRU Complaint. When these complaints are disposed of, the period of suspension imposed by the Council will come to an end, unless it is sooner ended by the Council.
4. Dr Karimi could at any time seek under s 150A a review of the Council's decision to suspend his registration. Section 150A relevantly provides: "(1) A registered health practitioner … may apply to a Council for the review of a decision of the Council under section 150 to - (a) suspend the practitioner's … registration; or ... (2) On receiving an application for review, a Council - (a) may refuse to reconsider its decision if, in the Council's opinion, the application is frivolous or vexatious; or (b) must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner … that the Council reasonably considers is relevant. (3) Following its reconsideration of a decision, a Council may - (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under section 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's … circumstances that justifies the variation or setting aside of the decision."
5. Thus, the Council could end the period of suspension but only if satisfied that there has been a change in circumstances that justifies such an outcome: s 150A(4).
6. In addition, under s 150C, the Council may at any time end a period of suspension imposed under s 150.
7. In summary and in accordance with s 150(2), the period of suspension in this case commenced on 21 September 2017 and will finish when the three complaints are disposed of in accordance with Pt 8 of the National Law or when the Council ends the suspension, whichever occurs first.
8. Thus, on this appeal when determining whether we are satisfied it is appropriate to confirm the period of suspension for the protection of the health or safety of any person or persons or is otherwise in the public interest, it is appropriate to take into account that the period of suspension can be ended by the Council, in accordance with s 150A or s 150C, before the three complaints are disposed of.

Two aspects of s 150(1) to be considered

1. In applying s 150(1) on this appeal, as required by s 159(3), there are two aspects that the Tribunal must consider: 1. whether it is satisfied that it is appropriate to confirm the period of suspension for the protection of the health or safety of any person or persons; and 2. whether it is satisfied that the suspension is otherwise in the public interest.
2. The most significant material in this regard is the material concerning the three complaints that have not yet been resolved, the Parramatta Complaint, the Allergan Complaint and the PRU Complaint.
3. In addition, however, s 41O of the National Law indicates that previous complaints and similar matter, including ones that have been resolved, are to be taken into account to the extent relevant. Section 41O provides: "In the exercise of any of its functions under Subdivision 2 or 7 of Division 3 of Part 8 with respect to a complaint about a registered health practitioner or a student, a Council must have regard to any of the following matters, to the extent the Council reasonably considers the matter to be relevant to the complaint - (a) another complaint or notification about the practitioner or student made to the Council or the National Agency, or made to a former Board under a repealed Act, including a complaint - (i) in respect of which the Council, the Commission or a National Board has decided no further action should be taken; and (ii) that is not required to be referred, or that the Council or the Commission decides not to refer, under Division 3 of Part 8; (b) a previous finding or decision of a Council inquiry in relation to the practitioner or student; (c) a previous finding or decision of a board inquiry, professional standards committee or a tribunal established under a repealed Act in respect of the practitioner or student; (d) a written report made by an assessor following an assessment of the practitioner's professional performance; (e) a recommendation made, or written statement of decision on a performance review provided, by a Performance Review Panel in relation to the practitioner."
4. Section 150 is found in subdiv 7 of Div 3 of Pt 8 of the National Law.
5. Consequently, in the present case, the material to which s 41O directs attention includes, to the extent relevant, the Tea Gardens Complaint and the prank call and alleged boundary violation referred to in the Interview Report dated 14 July 2009 of the NSW Medical Board Interview Panel.
6. We shall consider these complaints and the other material, to the extent relevant, in turn.

The Parramatta Complaint

1. The principal issues that were the subject of the Parramatta Complaint and which were identified by the HCCC in par 3.1 of its investigation report of 27 March 2017 were: 1. Professional misconduct; 2. Illegal prescribing, dispensing and storage of medication; and 3. Inappropriate clinical record keeping.
2. The Council's evidence or other material before us in relation to the Parramatta Complaint was much more confined than would be expected on a hearing of a complaint referred to the Tribunal to be dealt with under subdiv 6 of Div 3 of Pt 8 of the National Law. For example, the report of 21 December 2016 from the expert General Practitioner has been redacted so that the identity of the person providing the report is not revealed and other parts of the report have also been redacted and the supporting documentation referred to in that report was not provided in many cases. This is perhaps understandable in the circumstances and given the nature of these proceedings, which has been explained above. In any event, Dr Karimi did object to the material tendered by the Council in this regard.
3. There was before us material on which it was open to conclude that: 1. Dr Karimi's prescribed medication, including schedule 4, schedule 4D and schedule 8 medication, in the name of clinic staff initially without their knowledge. 2. There was no documented clinical reason for prescribing that medication because the medication was to be used for others not the persons for whom it was prescribed. 3. Even though the prescriptions and records stated "for Plus Medical Clinic" or words to that effect, writing the prescriptions involved accessing patients' clinical files, without permission when those patients had not consulted Dr Karimi, in order to utilise the patients' details to write prescriptions not for those patients and thus not for a therapeutic purpose related to those patients. 4. There is a system for obtaining certain medications for supply free to patients for emergency use, called a "Prescriber Bag", as described in the document headed "PBS Prescriber Bag" (pp 278 - 280 of Ex 1). This system does not involve prescribing in the name of patients for whom the medications are not intended to be used. 5. The schedule 4D and 8 medications may not have been stored in the treatment room at the clinic in accordance with applicable standards, such as the RACGP 4th Ed Standards for General Practice, in a locked safe which is permanently secured to an immovable fixture in the practice. 6. Dr Karimi was the medical director of the clinic and responsible for setting up the treatment room in which these medications were to be used. 7. Dr Karimi's behaviour in each of these regards was significantly below the standard expected of a practitioner of an equivalent level of training or experience and so invited strong criticism.
4. In addition to this material, there were Dr Karimi's responses to the HCCC concerning the Parramatta Complaint. In those responses, Dr Karimi did not dispute that he accessed staff members' medical files and wrote prescriptions for the types of medication indicated above in their names not for their use but for use for other patients in the Clinic's treatment room. In his email of 26 October 2015, Dr Karimi stated: "They [Plus Medical Clinic and the practice manager, Mr Eddie Medina] assigned me as the medical director (I have been medical director for five years in previous centre, teaching medical students from Monash and etc), they asked me to set up treatment room. … So I set up CPR trolley, urgent medications and so on. I organised a Safe for narcotics and a book to write down the number of narcotic injections left and the number of ampules used and so on. It was me who taught them how important these items are. Then Eddie came to me saying: 'The chemist says that you can not get these medications with normal scripts, you have to put a patient's name on the script'. These are his exact words. I found it strange because I used to order these medications for emergency use in previous medical centre at Tea garden. So I was guided to prescribe them under the staff's names but I made them Private scripts (not PBS), I wrote in that patient's file that I had to prescribe these items under that person's name and they are not for that person in fact, I wrote on each script that the medications for Plus Medical centre. … I did what I could do and the rest was not really my fault. I was told to do it this way. My motive was helping patients with serious conditions and severe pain."
5. In Dr Karimi's written response to the HCCC of 24 July 2016, he explained again how he came to write scripts in the name of staff members for use in the treatment room and continued: "I admit that I clearly did a wrong thing and I sincerely apologise for it. My only defence is that I intention was purely to help patients and nothing else. … When I asked how we could get these medications I was told by Mr Medina, 'The pharmacist says you have to give prescription under someone's name, so put it under staff's names and we explain it to them, shouldn't be a problem!' … I found the pharmacist's advice unusual but I was not given any other choices, so I gave scripts under staff's names after talking and explaining it to them. I see that the complaining person Shane Waterfield is trying for purely personal reasons to convince the commission that I prescribed these medications without information or authorisation from the staff which is simply and absolutely impossible, completely untrue and shameful. I am more than happy to prove in any possible way that every single person at the centre such as [X] whose entire family are my patients too, were informed and explained about the situation and they agreed for me to write the prescription under their names to have the medications for the centre. Important point to prove this is the fact that I never walked to the pharmacy myself, and it was these admin staff such as [X] who walked to the chemist and had the script filled so the claim by Shae Waterfield that I did not inform them and I just wrote script under staff's names to get the medication is preposterous!"" … I have realised that I have done a wrong thing by prescribing the medications under staff's names. I have never done this before and I am confident I will never ever do it again. … I admit my mistake, I strongly believe I was misled by the pharmacist and the practice manager, and I naïvely presumed that my action should be acceptable because I was prescribing the medications as private (non-PBS) and I was highlighting in each script, 'For Plus Medical Clinic', so it was known that medicine was not prescribed for that person. … I hope the Commission accepts my profound apologies and regret in this matter. I can assure you that my pure and only reason for this has always been humanitarian reason. … When I left Plus Medical Clinic last year staff were in tears and now that I practice in Chatswood Clinic I have many of my Parramatta patients who have searched and found me and still continue to come to me in Chatswood even though it involves a long trip from Parramatta to Chatswood. This is not because of anything other than a caring relationship with my patients. …"
6. In Dr Karimi's 28 paragraph affidavit of 6 November 2017 (at par 9), he also gives an account of what relevantly occurred at the Parramatta clinic. This included: "… I was told by the practice manager that in order to buy medications for the practice they had to be prescribed to a specific person, and it could not be the practice's name solely. I found this unusual, but I had no choice. … … No patient came to any form of harm as a result of my medical judgment and no complaint has ever been raised by any patient of mine. I treated countless individuals all of whom became well after their treatment."
7. We note Dr Karimi's express acknowledgement of wrongdoing, his expressions of remorse and his assurance that such conduct will not occur again.
8. There are a number of aspects of what Dr Karimi has said, however, that we are not satisfied we should accept, on the limited material before us, or which cause us concern.
9. First, there was material, albeit hearsay, which indicated that it was not the case that Dr Karimi had informed "every single person at the centre" and explained to them the situation and "they agreed for me to write the prescription under their names to have the medications for the centre" before writing at least some of the prescriptions, especially the early or initial ones. We are not in a position to resolve what actually occurred. Nonetheless, we are satisfied that there is a risk of similar conduct reoccurring. If Dr Karimi has misstated the position, not only is the conduct at the more serious end of the scale but the risk is considerably heightened.
10. Secondly, we are concerned about Dr Karimi's personal attacks on the complainant in his responses. In his response to the HCCC of 24 July 2016 Dr Karimi expressed the view that the complainant was "trying for purely personal reasons to convince the commission that I prescribed these medications without information or authorisation from the staff which is simply and absolutely impossible, completely untrue and shameful". Similarly, later in that response, he continued seeking to justify himself and attacking the complainant saying: "My motivation in all these has been humanitarian and to help vulnerable people. The [complainant's] motivation on the other hand, as you can obviously see is purely his personal hatred which sadly is provoked by his racist approach. Over the last seventeen years living and working in Australia I had never experienced any racist confrontation like what [the complainant] did to me."
11. This gives the distinct impression that Dr Karimi has failed to accept the full nature and extent of his own admitted wrongdoing and lacks a proper appreciation that a complainant can seek, entirely properly, to have potential wrongdoing investigated. A similar lack of appreciation might be observed in Dr Karimi's personal criticism of the complainant in the Tea Gardens Complaint.
12. Thirdly and perhaps most importantly, Dr Karimi's responses involve an attempt to shift responsibility or blame for his admittedly wrongful conduct onto the practice manager and the pharmacist. As an experienced medical practitioner, a Fellow of the Royal Australian College of General Practitioners and a former medical director of the Tea Gardens practice, it could legitimately be expected that he was or should have been aware of the proper procedures for obtaining "Prescriber Bag" medications or other medication for use in the Parramatta clinic's treatment room. To allow himself to be "guided to prescribe them under the staff's names" by a practice manager whom Dr Karimi (in his email of 26 October 2015) described as "a lovely gentleman, nevertheless he used to be a dental nurse with no experience in actual medicine" appears to us extraordinary, in the circumstances. His reliance on the practice manager's guidance or direction, even though he knew it was "strange" or "unusual" because of his previous experience suggests a marked unwillingness or inability on Dr Karimi's part to accept responsibility for his own, admittedly wrongful conduct. This conclusion of unwillingness or inability to accept responsibility and to recognise his own fault is reinforced by Dr Karimi's comment in the same email that "I did what I could and the rest was not really my fault. I was told to do it this way. My motive was helping patients with serious conditions and severe pain."
13. He continued to put the blame for his conduct on the practice manager and the pharmacist in his response of 24 July 2016 (relevant portions of which are quoted above), some ten months later and after he had had time to reflect on conduct. In particular, he says "I admit my mistake" but immediately qualifies this by saying: "I strongly believe I was misled by the pharmacist and the practice manager". His remorse and justification were reiterated towards the end of his response: "I hope the Commission accepts my profound apologies and regret in this matter. I can assure you that my pure and only reason for this has always been humanitarian reason". Nonetheless, there was no explanation given as to why, especially if he thought the advice was strange or unusual, he did not contact the College of General Practitioners, the PRU or the division responsible for administering the Pharmaceutical Benefits Scheme in the Commonwealth Department of Health to obtain advice on how to obtain medication to establish a properly resourced treatment room. Notwithstanding the options available to him to obtain advice concerning how to gain access to medication for a treatment room, in his second 6 November 2017 affidavit concerning prescribing in staff names at Parramatta (at par 9) Dr Karimi maintained: "I found this unusual, but I had no choice." We do not accept that it could be correct that Dr Karimi had no choice, as he asserts.
14. Having regard to these matters, we do not find that we can be satisfied that Dr Karimi fully understands and accepts his responsibilities as a medical practitioner in relation to prescribing medication, including schedule 4, 4D and 8 medication, and maintaining the integrity of patients' health records.
15. We also believe that there is an appreciable risk that Dr Karimi would in future act on inappropriate guidance of a practice manager, pharmacist or similar person and without making the obvious proper enquiries, to obtain medication, including schedule 4, 4D and 8 medication, if he thought it would allow him to use it for humanitarian purposes, as he perceived them.
16. Further, although the material in relation to the storage of the Schedule 4D and Schedule 8 medication at the Parramatta Medical Clinic was somewhat sketchy, we cannot be satisfied that there is no appreciable risk that Dr Karimi, even if he was fully aware of the requirements, would adhere to those requirements, if he judged that it was expedient for his humanitarian purposes to do otherwise.
17. Finally, we are concerned about the statement by Dr Karimi in his response of 24 July 2016 that when he left the Parramatta clinic and joined a clinic in Chatswood many of his Parramatta patients searched and found him and continued to come to him in Chatswood. He said: "This is not because of anything other than a caring relationship with my patients." Patients following a medical practitioner in this way also occurs when the practitioner is prepared to prescribe drugs of addiction to persons when other practitioners properly refuse to do so. In the light of what has been revealed in the reported investigations in relation to the PRU Complaint, referred to below, Dr Karimi's statement indicates that there was and is a risk that his "caring relationship" with his patients involves enabling their drug dependency or other potentially harmful circumstances rather than treating them or referring them for appropriate treatment.
18. If medication, including schedule 4, 4D and 8 medication, is not prescribed and used in accordance with clinical and legal requirements and if medical records are not accurate and complete, the health and safety of patients is put at risk. In addition, there is a public interest in having all aspects of a medical practitioner's practice comply with applicable clinical and legal requirements and in having medical practitioners take responsibility for informing themselves from proper sources as to what those requirements are. These are all aspects of the competent practice of medicine.
19. Having regard to the nature and extent of the issues raised in the investigation of the Parramatta Complaint, Dr Karimi's acceptance that what he did was wrong while still seeking to lay the blame on a practice manager and pharmacists, the other relevant material before us and what we have identified above as the risks and the public interest, we are satisfied that: 1. it is appropriate to confirm his period of suspension for the protection of the health or safety of persons who might otherwise be patients and thereby obtain access to Schedule4, 4D or 8 medications without required prescriptions, without the required medical records being maintained or when such medications were not clinically justified or appropriate; and 2. it is also otherwise in the public interest to confirm his period of suspension because of: 1. Dr Karimi's disregard, or failure to inform himself, of the proper procedures for obtaining "Prescriber Bag" and other medications for a practice treating room; 2. his accessing patients' medical records for purposes other than their treatment and their consultations with him; and 3. the risk of the conduct which is the subject of the Parramatta Complaint or similar conduct occurring again because Dr Karimi chooses to act for humanitarian purposes, as he perceives them, notwithstanding that such conduct is illegal or otherwise inappropriate.
20. In reaching this conclusion, we have considered whether the conditions imposed on his registration by the Board were sufficient to alleviate any relevant risk to the health or safety of person or persons and to address adequately the public interest referred to in s 150(1). We do not think that they do. The conditions are set out in full earlier in these reasons. In particular, we make the following observations: 1. While conditions 1 and 2 deal with restricting access to Schedule 8 medication, they do not deal with Schedule 4 or 4D medication. 2. The restriction on supervising other medical practitioners in condition 3 does not have a significant role to play in ensuring any of the risks identified above are not realised. 3. Completion of an ethics course, which is the subject of conditions 4, 5 and 6, is likely to be of very limited value if, as appears to us to be the case, Dr Karimi fails to understand or accept the nature and extent of his admitted wrongdoing, continues to try to avoid responsibility by blaming others such as a practice manager or pharmacist for misleading him and seeks to justify his wrongful conduct on the basis that he was motivated by humanitarian considerations and caring for his patients.
21. We have also considered the different conditions proposed by Dr Karimi, if the Tribunal determined that it had power not only to terminate or vary the period of suspension but also to vary the conditions imposed by the Board on his registration. The proposed conditions were in the following terms: "1. The following additional conditions to be placed on the Appellant's registration: (a) The Appellant to be guided by medical mentors, Dr Alex Bennie (Medical Administrator), and Dr Afshin Eghlimi (General Practitioner) in addition to being guided by any other suitable General Practitioners the Medical Council of New South Wales may consider appropriate, to be imposed for any period of time deemed appropriate by the Medical Council of New South Wales. (b) The Appellant to undertake a course at his own expense in relation to Schedule 8 Medications and other schedule of medications the Medical Council of New South Wales believes appropriate. The Appellant must obtain approval from the Medical Council of New South Wales of the proposed course(s) and proposed education facility. (c) The Appellant to undertake a course at his own expense in relation to record keeping, proper clinical notes and clinical practice. The Appellant must obtain approval from the Medical Council of New South Wales of the proposed course(s) and proposed education facility. (d) The Appellant to undertake a course at his own expense in relation to medico-legal issues. The Appellant must obtain approval from the Medical Council of New South Wales of the proposed course(s) and proposed education facility. (e) The Appellant to undertake a course at his own expense in relation to the Poisons and Therapeutic Goods Act. The Appellant must obtain approval from the Medical Council of New South Wales of the proposed course(s) and proposed education facility. (f) The Appellant to join a General Practitioner Network in his area. (g) The time period for the restriction in relation to the prescription of schedule 8 medications to be increased to a time period deemed appropriate by the Medical Council of New South Wales. (h) The scope of restrictions in relation to prescribing to be extended to schedule 4D medications. The time period of the restrictions to be determined by the Medical Council of New South Wales as they consider suitable. (i) Any other reasonable conditions the Tribunal and/or Medical Council of New South Wales see fit."
22. Conditions of the type proposed would not, in our view, address the risks to the health and safety of patients of Dr Karimi nor would they address the public interest in having a medical practitioner take appropriate responsibility for his or her actions, seek assistance from the proper available sources and act on advice received rather than relying on the "strange" or "unusual" advice or direction of a practice manager, pharmacist or other non-medically trained person. Having mentors, participating in a network of General Practitioners or attending courses would only be likely to be useful if Dr Karimi were prepared to consult those mentors, take advice from those participating in the network and act on any advice received or on what was learnt in the courses. What occurred at the Parramatta clinic and Dr Karimi's subsequent responses indicates that there is a substantial risk that he would not consult, would not seek proper advice and would not act on the advice or the content of the courses, if he felt it would assist persons in some kind of need.

The Allergan and PRU Complaints

1. Because the Allergan and PRU Complaints are related and overlap to a certain extent, it is convenient to deal with them together.
2. The principal issues that were the subject of the Allergan and PRU Complaints and which were identified by the HCCC in par 3.1 of its investigation report of 27 March 2017 were: 1. Professional misconduct; 2. Illegal prescribing of Schedule 4, 4D and 8 medication; 3. Falsifying a Medical Board of Australia Certificate of Registration; and 4. Practising whilst unregistered.
3. Once again, it can be noted that the Council's evidence or other material before us was understandably much more confined than would be expected if the complaints had been referred to the Tribunal to be dealt with under subdiv 6 of Div 3 of Pt 8 of the National Law. This may well be because, among other things, the investigation and preparation of these complaints for referral are not complete. In any event, Dr Karimi did not press any objection to the material tendered by the Council on this basis.

Dr Karimi's prescribing and related matters at the Waitara practice

1. From the material before us, it is open to conclude in relation to Dr Karimi's prescribing that: 1. Dr Karimi's prescribed schedule 8 medication, including Durogesic (fentanyl) patches, Oxycontin and Endone for drug dependent patients, some at least of whom were on the Opioid Treatment Program, knowing that they were dependent. For some of these patients, Dr Karimi's clinical notes gave no therapeutic reasons for prescribing Durogesic patches. Sometimes the notes relevantly contained only statements such as "asking for Durogesic and crying", "Needs Durogesic" or "script" and no other significant information. 2. His reason for prescribing that medication was stated to the PRU investigator in at least some cases to be that the patients were addicted, "they were human beings and they needed the drugs". Dr Karimi knew that some of the drug dependent patients had followed him over from the Parramatta practice. Many of these prescriptions were non-PBS, that is, they were not covered under the Pharmaceuticals Benefits Scheme. 3. Dr Karimi issued prescriptions for drugs of addition in a quantity and for a purpose that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances in contravention of cl 79 of the Poisons and Therapeutic Goods Regulation 2008. For example, there were cases where Dr Karimi prescribed an unusual number of Durogesic patches, including a 255 day supply in an 88 day period, and a 210 day supply in a 90 day period for different patients. 4. Dr Karimi accepted he had prescribed in contravention of s 28 of the Poisons and Therapeutic Goods Act 1996 (NSW) in that he did not have the required authority under s29 of that Act. Dr Karimi told the PRU investigator that he was unaware that s 28 of the Poison and Therapeutic Goods Act required him to have such an authority.
2. AHPRA recorded in its letter of 21 April 2017 that Dr Karimi had told the Board during his oral submission on 4 April 2017 that: "● that [he] wished [his] ability to prescribe Schedule 8 drugs would be withdrawn, as [he] found it difficult to deny patients this medication when it was sought; ● that when patients presented to [him] requesting Schedule 8 drugs, [he] prescribed the drugs because [he] could not say no to a patient who was upset; and ● that [he] had recently seen a Psychologist to assist [him] in denying patients Schedule 8 drugs."
3. In his letter to AHPRA of 17 May 2017 in response to the Board's decision to refuse his fast track application for registration, Dr Karimi explained his attitude as being that he "empathise[d] with substance abuse patients as many of them cannot be blamed for their unfortunate addiction issues." Dr Karimi said that "… I did not do anything with wrong intentions and I did not cause any harm to any of my patients". He also noted that he was seeing an experienced psychologist and he referred to a copy of the psychologist's report being attached.
4. No formal expert's report was attached but rather a document dated 10 May 2017 on the letterhead of "www.northshorepsychologist.com.au" with an address the same as the Waitara Family Medical Practice but also stating "Mailing Address: [XX] Street, St Ives, NSW 2075". The document was signed with an electronic signature, Justin Cogley, with a registration number and Medicare Provider Number underneath. The document was in the following terms: "To Whom it May Concern I have seen Dr Kooshyar Karimi for therapy since March 2017 in my capacity as a registered psychologist. Kooshyar has sought therapy to address the great difficulty he experiences in refusing requests from his patients, which includes requests for addictive medications and unjustifiable treatment requests. His difficulty in refusing requests extends to other people in other domains of his life and includes requests made by family, friends and strangers. He is very conscious of the need to be able to say no, in particular when requests involve addictive medications. Kooshyar has made significant inroads and achieved great insight and understanding regarding the origins of this difficulty in a short period of treatment. He has reported recent improvements and more measured responses to requests from others since starting therapy; in one instance, referencing his daughter's delight at noticing a change in behaviour. Treatment to date has focussed on identifying and shifting the belief structures that have made is so difficult to assert himself in such situations in the past. Kooshyar has indicated both regret and remorse for his actions, acknowledging the potential harm to his patients and the impact this has had on his family members. He has stated both his intention to continue in therapy for the next six months to address his felt sense of 'weakness' when faced with requests and is committed to overcoming this issue. I am very satisfied with the progress to date. …"
5. Dr Karimi later provided a further document dated 20 September 2017 on the same letterhead with a handwritten signature, Justin Cogley, that appeared to have been cut and pasted into the document and the same registration number and provider number. This document was in similar but not identical terms to the document "To Whom it May Concern I started seeing Dr Kooshyar Karimi for therapy in March 2017 in my capacity as a registered psychologist. Kooshyar sought therapy to address the great difficulty he experienced in refusing requests from patients, which included requests for addictive medications and unjustifiable treatment requests. His difficulty in refusing requests extended to other people in his personal life, which included requests made by family, friends and strangers. Kooshyar achieved significant insight and understanding regarding the origins of this difficulty in a short period of treatment. Since reaching this understanding and integrating this into conscious, everyday awareness, he has reported great change in his professional and personal life with respect to limit setting and dealing with people in a kind, yet assertive manner, when required. He no longer appears to be struggling with the emotional felt need to 'not refuse' requests for help and assistance form others. Recently, he has reported calmly and assertively refusing a request from a patient for medication above the prescription protocol. He acknowledges that it would have been difficult to have refused this patient's request in the past. In addition, he has spoken of his daughter's delight in noticing such changes in his behaviour at home. Treatment to date has focussed on identifying and shifting the belief structures that previously made is so difficult to assert himself in such situations in the past. Kooshyar has indicated both regret and remorse for his actions, acknowledging the potential harm to his patients and the impact this has had on his family members. He has stated his intention to continue in therapy should he feel the presenting issue return in any way. He is due to attend a mandated course in ethical conduct in upcoming weeks, which may help support him in both clarity and resolve to practice medicine in line with established standards and protocols. …"
6. There was no information as to Mr Cogley's qualifications or experience. His documents headed "To whom it may concern" did not purport to be comprehensive psychological reports. They did not contain any detailed history taken by Mr Cogley, descriptions of any tests performed and the results or details of the nature, extent and timing of any specific treatment. All that is disclosed as to the timing of treatment is that it may have ceased by 20 September 2017 because it is said in the latter document that "[h]e has stated his intention to continue in therapy should he feel the presenting issue return in any way." (underlining added)
7. We also note: 1. the same typographical error is repeated in the same sentence in both documents namely: "Treatment to date has focussed on identifying and shifting the belief structures that have made is [sic] so difficult to assert himself in such situations in the past."; and 2. Dr Karimi chose not to call Mr Cogley to give evidence at the Tribunal hearing.
8. In his evidence to the Medical Council at the hearing on 21 September 2017, the Council transcript (referred to as CT) reveals the following concerning his prescribing at the Waitara Family Medical Practice prior to 16 January 2017: 1. Dr Karimi explained: "I came to the practice and it was while - that I was getting all these patients coming from Parramatta and they came for a script for narcotics and I had - I knew I shouldn't prescribe for them." (CTp36) 2. Dr Karimi said: "… there's no benefit for me giving these prescriptions. I know it harms them. I encourage them to go on the methadone program. …" (CTp39) 3. Dr Karimi acknowledged: "I know I made a mistake. I was under the impression if I don't give this to them, they go and steal things from their wives, they will get violent to their family: … Did I know it's wrong? Absolutely. My notes are awful. I might say, "Durogesic patch, encouraged to reduce, promised to cooperate and comply" (CTp42) 4. Despite saying that he encouraged his drug dependent patients to reduce, Dr Karimi agreed that "No, they don't." and he also expressly agreed that "the level of prescribing for those medications is often way in excess of the sort of therapeutic quantities that people should be using" (CTp43) 5. Dr Karimi agreed it was correct that he "did not have the skills to get an established addict off these drugs and in fact … most GPs would not have those skills to do that alone" (CTp48) 6. Dr Karimi agreed that "in [his] mind the clinical indication was to treat their addiction by giving them further opioids" (CTp50) 7. Dr Karimi agreed with the proposition that there was "a number of patients that you [Dr Karimi] have actively enabled in their addiction" saying "Yes, I failed, unfortunately" (CTp53)
9. Dr Karimi's 22 paragraph affidavit of 6 November 2017 (the first 6 November affidavit) states at par 14 that he denies the words attributed to him by Ms Dolan in her report concerning the interview on 16 January 2017. The first 6 November affidavit also contained, at pars 17 and 19 - 20, explanations in general terms of Dr Karimi's discussions with patients and attempts at reducing patients' use of Schedule 8 medication.
10. Dr Karimi's 28 paragraph affidavit of 6 November 2017 (the second 6 November affidavit) covered in pars 13 - 16, among other things, Dr Karimi's attitude and approach to treating drug dependent patients. He mentioned seeing the psychologist and said that he is still seeing him. Dr Karimi continued (at par 16): "…I have seen a great deal improvement with him in the way I think and act. I have built more strength so that I am not susceptible and empathise too freely with patients that I identify to be drug seekers. During my sessions with the psychologist we have focused on building confidence and strength to say 'No' when the request is not in the best interest of the patient's safety or interest."
11. It can be noted that Dr Karimi only started seeing the psychologist after 16 January 2017. Since January 2017, however, Dr Karimi has only practised from about 1 August 2017 (after his second application for registration was granted by the Board) until 21 September 2017 when his registration was suspended by the Council. During that time he was unable to prescribe Schedule 8 medication, having consented to an order under the Poisons and Therapeutic Goods Regulation 2008 prohibiting him from possessing, supplying, administering or prescribing any Schedule 8 drug, in compliance with the conditions on his registration. Thus, while practising in August and September 2017, he was legally required to say "No" in response to any request to prescribe a Schedule 8 drug. In addition, before the Medical Council Dr Karimi stated (at CTp63) that, after becoming unable to prescribed Schedule 8 drugs, "One [of his former drug dependent patients] came only. One come only and I said to him - I think he took the news … so they haven't come back yet." It appears, therefore, that Dr Karimi's comments in par 16 his affidavit (quoted above) may relate to requested treatments, other than the prescription of Schedule 8 drugs, that are not in the best interest of the patient's safety or interest.
12. Despite acknowledging the harm or potential harm he may have done his patients by his conduct (see for example the passage from the transcript of the proceedings before the Council at CTp39 referred to above and the statements in the psychologist's documents that Dr Karimi acknowledges the potential harm to his patients), Dr Karimi maintained before us that he did not harm any of his patients. At Tribunal Transcript (TT) p63, he said: "I don't know how to show you that I will never ever do this again but I know it is all wrong and it's been a series of unfortunate things, but I don't know how to prove to you that I never harm anyone's safety or health or even interests ‑ even these things I did to help others";
13. But, later on the same transcript page, TTp63, when his previous evidence before Council was put to him, it is recorded that Dr Karimi said: "I prescribed it for these people and it was wrong and, yes, it does harm them, yes. I accept that, yeah."
14. Dr Karimi also maintained that he was unaware of the requirement under s 28 of the Poison and Therapeutic Goods Act to obtain an authority to prescribe some of the medication that he did. It can be noted, however, that his explanation how the false Medicare letter came into existence suggests that at least someone in the Waitara Family Medical Practice was aware of that requirement. The false Medicare letter is addressed to Dr Karimi, is headed "Restriction on prescribing rights for drugs of dependence (category S4, S8)", refers expressly to s 28 of the Poisons and Therapeutic Goods Act and concludes: "Continuing to breach this act … [may] lead to prosecution and deregistration." Dr Karimi showed that letter to patients. As recorded in AHPRA's letter of 21 April 2017, Dr Karimi orally submitted to the Board: "● that it was another staff member within [his] practice that had provided a forged Medicare letter for [him] in order to allow [him] to provide evidence to patients that [he was] not permitted to prescribe drugs of dependence. [He] submitted that [he] did not ask the staff member to provide [him] with such a letter but that this staff member did so of her own volition in response to concerns [he] had raised about [his] inability to refuse a request from patients for these drugs; ● that [he] knew the staff member from [his] practice had created the fraudulent Medicare letter, however, [he] still used the document to show to patients that requested prescriptions for drugs of dependence. "
15. That last submission included the acknowledgement that Dr Karimi did show the fraudulent letter to patients. Similarly, Dr Karimi stated in his letter to AHPRA of 17 May 2017: "In relation to the letter on Medicare letterhead, I can see now that this was wrong and I should not have utilised a letter that fraudulently utilised Medicare letterhead, even though it was not made by me and I hardly used it ever."
16. Both of these acknowledgements that he did show, or use, the fraudulent Medicare letter are difficult to reconcile with Dr Karimi's evidence to the Council concerning this letter (CTp36 - 40) especially where he says that he never read it (CTp39) and that he "never had the courage and confidence to really show [patients the letter]" (CTp39).
17. In the light of all this material and the other evidence before us, we believe there are risks and difficulties associated with Dr Karimi's returning to practice.
18. First, Dr Karimi had an acknowledged difficulty with resisting requests for Schedule 8 drugs from drug dependent patients. The patient records from the Waitara Family Medical Practice, the transcript of the Council proceedings and other information provided by Dr Karimi leave the clear impression that Dr Karimi was unsuccessful in refusing requests for Schedule 8 drugs from drug dependent patients and that he knew patients followed him from Parramatta because he was prepared to prescribe such drugs for them. Nonetheless, on the material before us, the only practical step he took to address his problem, before the investigation by the PRU, was having a staff member prepare, or acquiescing in the preparation of, a false letter from Medicare purporting to restrict his ability to prescribed these and other drugs. How he actually used this letter to resist such requests is unclear. If some parts of his evidence are accepted, he did not even read this letter or show it to any patient. Other material suggests he knew it contents and did on occasion show it to patients. In any event, prior to the PRU investigation, from the material before us, there is no suggestion that he: 1. sought professional treatment for himself to address his problem of not being able to say "no" to patients; 2. sought guidance from the College of General Practitioners, other senior practitioners, addiction specialists or the PRU on how to resist drug dependent patients seeking Schedule 8 drugs; 3. voluntarily consented to an order under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug; 4. referred his drug dependent patients for appropriate treatment by an addiction specialist or sought advice on how properly to treat such patients; or 5. even considered doing any of these things.
19. This lack of any proper and serious attempt to address his patients' needs and interests as well as his own problem give rise to a serious concern that Dr Karimi lacks an understanding of how he should address problems and issues that arise in medical practice. There is a substantial risk that if similar, albeit not the same, problems or issues arose in future if he were practising, Dr Karimi would fail to address them properly thereby putting at risk the health and safety of his patients and those dependent on, or affected by, them.
20. Indeed, the preparation and possible use of the fraudulent Medicare letter indicates that he might be more likely to resort to relying on an illegal or unethical solution rather than obtaining assistance through the proper, readily available channels. Viewed in this way, it is possible to see some similarity between what occurred at the Waitara practice and what occurred at the Parramatta clinic.
21. Conduct such as preparing and using a fraudulent letter on Medicare letterhead in the circumstances of this case is contrary to the public interest in having a competent medical profession, that is a profession composed of practitioners who can be trusted to act legally and ethically in their practice and who will take the trouble to inform themselves of their legal and ethical duties as well seeking advice from the proper, available sources if they encounter medical, legal, ethical or personal problems in their professional life.
22. Secondly, it does not appear to us that Dr Karimi's problem of being unable to resist requests for unjustifiable treatment from patients was limited to Schedule 8 drugs, even though that was the focus of much of the material before us. The psychologist in both his documents puts Dr Karimi's problem in a much wider context than just Schedule 8 drugs. Mr Cogley records: "Kooshyar sought therapy to address the great difficulty he experienced in refusing requests from patients, which included requests for addictive medications and unjustifiable treatment requests." (underlining added) Nor is it limited to medical practice. The psychologist accepts that the problem extends to social and family situations.
23. Consequently, we do not see the conditions imposed by the Board as overcoming in their entirety the problems and risks identified above. The prescribing restriction is limited to schedule 8 drugs. This does not address Dr Karimi's problem in relation to requests for other unjustified treatment. Nor does it address his failure to identify and use all the proper means available to him to address both his patients' health and welfare and his other legal and personal problems in his practice of medicine. For similar reasons given above in relation to the Parramatta Complaint, we do not accept that the Board imposed conditions or the additional conditions proposed by Dr Karimi would adequately address either the health or safety of persons including potential patients or the public interest.
24. Thirdly, given the unsatisfactory state of the psychological evidence and the absence of Mr Cogley from the hearing in the Tribunal, we are cannot be satisfied that the treatment Dr Karimi has received from Mr Cogley has addressed the problems and issues which Dr Karimi has encountered, and might in future encounter, in practice. Thus, there remains, in our view, a significant risk to the health and safety of his patients, and those dependent on them or affected by their conduct, if the period of suspension were terminated.
25. Fourthly, there was material before us to indicate that Dr Karimi issued some prescriptions in a quantity and for a purpose that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances. As we understood it, Dr Karimi did not dispute this. Although the examples of which we are aware relate to Schedule 8 drugs, we are not satisfied that this type of conduct would not occur in future, if Dr Karimi were to return to practice, in relation to other "unjustifiable treatment requests", to use Mr Cogley's words. This is an additional risk to the health or safety of his patients.
26. Fifthly, Dr Karimi accepted and the material before us confirms that in a number of instances his clinical notes and medical record keeping generally were below the required standard. This entails a risk for patients that another doctor consulting those notes will not be adequately or properly informed of the patient's history or prior treatment. We believe this constitutes a significant risk because Dr Karimi had already been warned about inadequate clinical notes in relation to the Tea Gardens Complaint. In disposing of that matter on 28 October 2015, the Council wrote to Dr Karimi advising as follows: "In relation to the lack of notes in the [wife's] records, the Committee strongly recommends that in the future you ensure that you make relevant, contemporaneous notes about all issues which arise in relation to patients. You should reflect on these comments and ensure that you attend to these aspects of your practice. Enclosed is a copy of 'Good Medical Practice: A Code of Conduct for Doctors in Australia' which may be of assistance."
27. The inadequate clinical note keeping at the Waitara practice occurred within 15 months of the Council's strong recommendation.
28. Sixthly, we are also concerned that Dr Karimi lacks any real appreciation of the harm he has done his drug dependent patients by prescribing further drugs of addiction for them. As we have pointed out above, he could contend "I know it is all wrong and it's been a series of unfortunate things, but I don't know how to prove to you that I never harm anyone's safety or health or even interests ‑ even these things I did to help others" and yet, a few minutes later, accept "I prescribed it for these people and it was wrong and, yes, it does harm them, yes. I accept that, yeah." (TTp63)
29. It appears to us that Dr Karimi might approach the practice of medicine on the basis that if he is motivated by the desire or intention to help others he cannot be doing them harm. Unfortunately, this is not necessarily the case. The material before us does not establish that this approach was limited to the prescription of Schedule 8 medication. A similar approach was evident in Dr Karimi's responses concerning the Parramatta Complaint. Thus, in our view, there is a serious risk that if Dr Karimi returned to practice, he would continue to adopt such an approach and could, even if not intending to, act so as to harm the health or safety of his patients.
30. Finally, Dr Karimi's accepted that, even on his version of events concerning the false Medicare letter, he did not at any point say to the staff member who prepared the letter that she should not have done that. Nor did he destroy the false letter but kept it. We find this extraordinary. In addition, we are troubled by the statement in Dr Karimi's letter to AHPRA of 17 May 2017: "In relation to the letter on Medicare letterhead, I can see now that this was wrong and I should not have utilised a letter that fraudulently utilised Medicare letterhead, even though it was not made by me and I hardly used it ever." (underlining added)
31. This statement suggests that Dr Karimi did not understand at the time the letter was prepared that relying on a fraudulent letter purporting to be from Medicare was wrong. That realisation only came to him after what had occurred was discovered by the PRU investigation. This suggests a significant lack of insight into and understanding of what is right and wrong before it is pointed out to him.
32. We have no doubt that it is contrary to the public interest in having a competent medical profession that acts ethically and legally in the practice of medicine for a medical practitioner to rely on false documents purporting to be from Medicare. It is similarly contrary to the public interest for a medical practitioner to become aware that a staff member at his practice has prepared such a false letter for him but not tell the staff member that such conduct is, at least, wrong and unacceptable and is not to occur again.
33. Taking into account all of these matters, we are satisfied that for Dr Karimi's period of suspension should be confirmed both because it is appropriate for the protection of the health or safety of persons who are or might become his patients if he returned to practice and because it is otherwise in the public interest.
34. In the circumstances, we are also satisfied for similar reasons to those given in relation to the Parramatta Complaint that neither the conditions imposed by the Board on Dr Karimi's registration nor the additional conditions proposed by Dr Karimi would overcome the risk to the health or safety of any persons. In addition, those conditions would not, in our view, be adequate to uphold the public interest in the competent practice of medicine including the proper conduct of a medical practice and management of staff. Consequently, it is appropriate to confirm his period of suspension.

Relying on a falsified Medical Board of Australia Certificate of Registration

1. It was not in dispute that the certificate of registration, provided to Allergan together with the account application dated 4 January 2017, was falsified by someone at the Waitara practice.
2. The AHPRA letter of 21 April 2017 recorded that Dr Karimi had submitted to the Board in relation to the falsified certificate that: "● that [he was] not personally involved in the preparation of the fraudulent documents; ● that it was another staff member within [his] practice that had fraudulently amended the Certificate of Registration to gain supplies of Botox; ● that [he] needed to obtain Botox for a patient who wanted Botox injections before her daughter's wedding; ● that [he] knew that the staff member from [his] practice had fraudulently amended [his] Certificate of Registration for the purpose of obtaining the Botox for [his] patient, however, [he] still allowed the Certificate to be used for this purpose;".
3. In his letter to AHPRA of 17 May 2017 Dr Karimi wrote, in relation to the falsified certificate: "I understand that changing the certificate was a terrible mistake and I accept full responsibility for this and I am deeply regretful. I can see now the impact of this fraudulent act on myself, my family and my practice, and I will never do anything of this sort again. I am very sorry that this happened in the first place and I had no intention of utilising the certificate except to obtain Botox for my patient on that occasion to make her feel younger and happier."
4. The Allergan account application form indicated that a copy of the practitioner's current certificate of registration was attached to the form. Dr Karimi signed the "declaration" section of the form as the medical practitioner involved, even though at the time he was not registered and knew his fast track application for registration was still pending. In this way at least, he allowed the falsified certificate to be used for the purpose of obtaining the Botox. In his letter of 17 May 2017, Dr Karimi appeared to take responsibility for what occurred stating: "I understand that changing the certificate was a terrible mistake and I accept full responsibility for this". The Board (as recorded in AHPRA's letter of 24 July 2017 to Dr Karimi) relied on that letter and noted, among other things: "● You have taken responsibility for your errors in judgement and, in particular, for the use of fraudulent documentation and have confirmed that this will not be repeated in future".
5. This was one of the reasons why the Board decided to grant Dr Karimi's second application for registration in July 2017.
6. On 21 August 2017, solicitors acting for Dr Karimi wrote to the HCCC providing submissions on Dr Karimi's behalf in relation to the Allergan and PRU Complaints. In relation to the issue of the falsified certificate, the solicitors said (at par 4): "On 4 January 2017, during a lapse of judgement due to the financial stress he was encountering, Dr Karimi amended his registration certificate and sent it to Allergan Pty Ltd to obtain Botox for his patient. …"
7. All of the accounts up to this point included the acknowledgement that Dr Karimi either amended the certificate or knew about the fraudulent amendment, before it was submitted.
8. These accounts are materially different, however, from what he later put in his second 6 November 2017 affidavit, at par 12, where he said: "In January 2017, a long-time patient of mine asked for a Botox treatment as she was preparing for her daughter's wedding in the next couple of days. However, on inspecting our inventory I realised that I had no Botox left. I asked my receptionist Ms Penelope Walker to put an order through to Allergan as usual. Not long after, Ms Walker asked for a copy of my registration certificate. I had a pile of documents sitting one of my desks. I flicked through the documents and I came across a registration certificate. This was the first one I came across and grabbed it from the pile of documents and gave it to her. At that time, I did not look at the certificate with great detail and did not think to look at the date of the certificate as I believed it to be the latest copy as it was the certificate that was the closest to the top of the pile of documents. Ms Walker did not come back in to alert me to the fact that the certificate was old and to ask for my newest one. Later on, I found out Allergan had requested an up to date copy and that Ms Walker had changed the date on the certificate of registration I had given her and faxed the amended copy through to Allergan. I understand now, that I should have paid much closer attention to what document I was handing over to Ms Walker. I recognise how thoughtless this action is and I that I should have made myself aware of the actions of my staff."
9. The discrepancies in his accounts were not explained before us.
10. The later evidence in par 12 of the second 6 November 2017 affidavit indicates an apparent resiling from his earlier position that he took "full responsibility" for "changing the certificate". It now appears that all the Dr Karimi sees himself as responsible for was not paying closer attention to what document he handed over to a staff member, being thoughtless and not supervising staff. In this, Dr Karimi can, once again, be seen as seeking to place blame on his staff rather than accept it himself. In addition, Dr Karimi does not mention signing the application form purporting to be a registered medical practitioner when he knew his application for registration had not been determined.
11. We also note there was no suggestion from Dr Karimi that he told the staff member who, on some versions, prepared the falsified certificate, that this was wrong or unacceptable, whether before or after the use of the falsified certificate came to light.
12. The staff member in question was not called to give evidence.
13. For a medical practitioner to rely on a falsified Board Certificate of Registration in order to obtain access to medical supplies is serious. It is even more serious if the practitioner is unregistered and knows the certificate has been falsified by the practitioner or by a member of the staff of the medical practice.
14. We are not in a position to, and are not required to, reach a definitive conclusion on what actually occurred in relation to the falsified certificate. Nonetheless, we are satisfied that: 1. Dr Karimi was directly or indirectly involved in the provision of the falsified certificate to Allergan, having signed the application form which said a "current copy" of his "registration" was attached; 2. Dr Karimi did not suggest that he had taken any steps to ensure that any staff member involved in the provision of the falsified certificate understood that what occurred was wrong and unacceptable, and should not happen again; 3. Dr Karimi has apparently resiled from taking "full responsibility" for "changing the certificate" and now only accepts responsibility for not paying closer attention, being thoughtless and not supervising staff.
15. There is an important public interest in all persons and bodies (including patients, other medical practitioners, suppliers of medical products, employers and courts and tribunals) being able to rely on documentation signed or supplied by a medical practitioner, in that capacity, as being reliable, accurate and authentic. The documentation submitted under Dr Karimi's signature to Allergan included the falsified certificate and conveyed the false impression that he was registered.
16. In the light of what admittedly occurred in relation to the falsified certificate and having regard to the other circumstances referred to above, we are not at all satisfied that Dr Karimi has sufficient insight into the seriousness and unacceptability of falsifying documents, relying on falsified documents and signing documents which are inaccurate or unreliable. Consequently, we cannot be satisfied that Dr Karimi would never sign or supply documentation in his capacity as a medical practitioner that was inaccurate or was falsified in some way, especially if Dr Karimi considered the interests of a patient, as he perceived them, might thereby be assisted. Nor do we accept that there is no significant risk that Dr Karimi would allow or condone members of his staff preparing and submitting falsified documents if they thought it might assist Dr Karimi or be what he wanted. In addition, what admittedly occurred in relation to the fraudulent Medicare letter reinforces these conclusions. It also demonstrates that the falsification and reliance on the certificate were not a single, unprecedented instance of improper conduct of this nature.
17. In these circumstances and given the seriousness of a falsified certificate being prepared, supplied and relied upon, we are of the view that it is in the public interest that the period of Dr Karimi's suspension should be confirmed.

Practising whilst unregistered

1. The material before us established, and it was not disputed, that Dr Karimi was unregistered from 1 November 2016 to 24 July 2017. It was also not in dispute that Dr Karimi practised for the period of two and a half months between 1 November 2016 and 16 January 2017.
2. When Ms Dolan asked Dr Karimi on 16 January 2017 why he was practising but was not registered, she recorded in her report dated 20 January 2017 (par 10(m)): "He said that he forgot and that by the time he got around to it they wanted him to submit a lot of paperwork which included a criminal record check. … He seemed to assume that he had an interim pending registration."
3. AHPRA's letter of 21 April 2017 records that in his oral submissions to the Board on 4 April 2017, Dr Karimi relevantly submitted as follows: "● that [his] practice manager had allegedly contacted AHPRA and was informed that [he was] registered and could continue to practise the profession; ● that [he] had received advice from [his] legal advisor that you were permitted to continue practising until such time as [he] had received notification via a written letter from the Board that [he was] unable to practise the profession; ● that [he] believed that [he] could continue to practise because [his] Medicare payments continued and [his] patient prescriptions continued to be filled; ● that [he] ceased practice when [he was] made aware that [he was] unregistered during course of the investigation by the PRU; ● that [he] only became aware that [he was] unregistered and could not practise when the investigator form the PRU visited [his] practice in the context of the investigation on 16 January 2017."
4. The Tribunal was not provided with any material to support the contention that Dr Karimi's legal advisor provided advice that he was permitted to continue to practise until informed by the Board in writing that he was unable to practise. That contention is not consistent with the information provided on the AHPRA website or with the National Law, as we understand it.
5. In his letter of 17 May 2017, Dr Karimi explained his position as follows: "Following expiration of my registration in 2016 and applying for fast track procedure to restore it, in November and December 2016, my staff enquired with AHPRA and received verbal confirmation that I may continue to practice while my application was being renewed. I can understand now that, as I was not on the register, that I was not permitted to practice. I am profoundly apologetic for continuing to work at the time and it was purely due to my misunderstanding and the assumption that 'since I am not de-registered therefore I must be allowed to work'. …".
6. In Dr Karimi's solicitors' letter of 21 August 2017 to the HCCC, the solicitors wrote (at par 1): "Renewal of Dr Karimi's registration with AHPRA was required by 30 September 2016. He did not renew his application by this date due to financial difficulties. On realising that in early November 2016, Dr Karimi urgently made a fast track application to AHPRA. A staff member at the medical practice he was employed at rang AHPRA to confirm receipt of his urgent application and to confirm that he could continue to practise while his registration was being processed with AHPRA. The staff member advised that this was the case."
7. On the material before the Tribunal, this solicitors' letter was the first occasion it was suggested that Dr Karimi's failure to renew was the result of financial difficulties. On a review of Dr Karimi's banking records which were before the Tribunal, it is far from obvious that he could not afford the $638 renewal fee in the period July to October 2016, when he was in receipt of significant income from his practice and his registration could have been renewed without any late fee or requirement to lodge a fresh application for registration.
8. In his first affidavit of 6 November 2017, Dr Karimi did not refer specifically to "financial difficulties" but rather "turmoil in [his] life" at the time when he failed to renew. He continued (at par 15): "I reiterate that fact that a staff member had already called up and spoken with AHPRA on my behalf with regard to my fast tract application. My staff member then advised me that AHPRA confirmed to them that I was able to practice while my registration was pending. …".
9. AHPRA's website since at least 30 September 2016 has contained the following information on the page "Renewing your registration for medical practitioners": "If you do not renew your registration by 30 September, or within the one month later period, your name will be removed from the nation al register and your registration will lapse in accordance with the National Law. If you wish to keep practising and do not renew your registration by 31 October you must submit a fast tract application for registration. Fast track application forms are available on the Board website or by phoning Customer Service Team on 1300 419 495 during November. If submitting a fast track application, you cannot practise until your application is processed and your registration details are updated on the national register."
10. As noted above, if AHPRA's usual procedures were followed in Dr Karimi's case, he would have received a notice of expiry of his registration by a communication sent on or about 14 November 2016 which included the following: "You are no longer registered and your details have been removed from the Register of practitioners, effective from [the date on which his registration lapsed 31 October 2016]. You can no longer practise using the registration below."
11. As explained already, based on the records of when Dr Karimi's fast track application fee was paid, it appears that, on or about 16 November 2016, Dr Karimi lodged his fast track application for registration as a medical practitioner.
12. The staff member who Dr Karimi maintains spoke to AHPRA was not called to give evidence before us. Nor was there any detailed evidence as to exactly when the telephone call took place or what exactly was said.
13. Once again, it is not necessary for us to reach any definitive conclusions on the material before us as to what was said to any staff member by AHPRA or what was said to Dr Karimi concerning his ability to practise after 1 November 2016. Nonetheless, had Dr Karimi taken the trouble to make the obvious online enquiries himself, he would have discovered, if he did not already know, that he was unregistered and unable to practice from 1 November 2016. He had renewed his registration previously. As a medical practitioner, he could legitimately be expected to take personal responsibility for ensuring that he was at all times practising lawfully. He did not do so. Reliance upon a staff member to relay information, which may not have been entirely clear, demonstrates a lack of concern to ensure that, or a somewhat reckless indifference to whether, the legal requirements of practice as a medical practitioner were being complied with.
14. As we have explained above, there is a public interest in the medical profession being practised only by those who are competent which includes practising in compliance with all relevant legal requirements and taking all reasonable steps to inform themselves of their legal and ethical obligations. Dr Karimi's apparent lack of regard for the importance of complying with the law, the lack of personal endeavour to understand the precise nature of and extent of his ability to practise when he failed to renew on time and, at best, Dr Karimi's reliance on a staff member's hearsay advice as to his right to practise cause us to conclude that it is in the public interest to confirm Dr Karimi's period of suspension.
15. For substantially the same reasons already given, we are of the view that neither the conditions imposed by the Board on his registration, nor the proposed further conditions, are sufficient to meet the public interest in the circumstances of the present case.
16. We observe that, if the only complaint that had ever been made concerning Dr Karimi was that he had practised while unregistered from 1 November 2016 to 16 January 2017 in the genuinely mistaken belief that he was entitled to practise while his fast track application was considered, we would tend to the view that this alone would not require that his registration should remain suspended under s 150 of the National Law. The present is, however, not such a case.

Additional Considerations

1. For completeness, we now turn to the remaining materials and submissions relied on by Dr Karimi before us. We have considered those materials but it is not necessary to refer to them in detail here. The submissions may be adequately summarised for present purposes as follows: 1. Not being able to practise since 16 January 2017, apart from the period from the beginning of August to 21 September 2017, has caused substantial hardship, loss of income and family and personal difficulties, including Dr Karimi being required to put his family home on the market in order to repay the substantial mortgages over the property. This has, in effect, been sufficient punishment for any wrongdoing. 2. Over his years in practice, Dr Karimi "has seen hundreds of patients and has had no patient complaints as to care or competence". 3. Dr Karimi's character including that he "has proven himself to be a thoughtful and kind individual who has always shown care, empathy and interest for the well being of others". He "has always endeavoured to be a humanitarian and advocate for woman's rights, in particular, for woman living in the Middle East". 4. Dr Karimi contended that he obtained no personal benefit from his actions and has at all times asserted that: 1. the misconduct was an error of judgment, was "one isolated episode which involves a sequence of events rather than a single event" and, "though serious in nature, did not impact on his capacity to practise medicine"; 2. the motivation behind the altered certificate was to benefit a patient, not himself, and he "has always practised medicine to assist his patients, from Iran to Australia"; 3. Dr Karimi "is very remorseful for his actions and has repeated this at every instance provided".
2. In particular, we have taken into account: the newspaper articles written about Dr Karimi over the period 2013 to 2016; the character references in support of Dr Karimi; and Dr Karimi's personal circumstances, including his history, financial difficulties and the impact this has had on his family, as disclosed at the hearing and in his affidavit of 19 October 2017 and his second 6 November affidavit.
3. Even assuming that all of the matters relied upon by Dr Karimi are factually correct (which we do not accept on the material available to us), we do not consider that they would be sufficient to outweigh the paramount consideration set out in s 3A of the National Law that must guide our exercise of our functions under s 159, namely "the protection of the health and safety of the public". In addition, s 150(1) itself indicates that, subject to s 3A, the principal considerations must be whether confirming the period of suspension is "appropriate" for the "health or safety of any person or persons …" and whether confirmation is "otherwise in the public interest". While the matters raised by Dr Karimi may be relevant to forming a judgment as to what is "appropriate" or "otherwise in the public interest", in the circumstances of this case, they are not sufficient to cause us to consider that confirmation of the period of suspension is not appropriate in this case or is not otherwise in the public interest.
4. Further and in particular, Dr Karimi's ability to practise since 16 January 2017 (or more properly, since 1 November 2016) until August 2017 was not caused by any action of the Council but was the result of his own failure to renew his registration on time. After 21 September 2017, the protection of the health and safety of the public and the public interest have, in our view, made it appropriate for Dr Karimi's registration to be cancelled. Although this might deprive him of his ability to earn income from the practice of medicine this is a consequence of his actions the subject of the Parramatta, Allergan and PRU Complaints in the circumstances and the need to protect the health and safety of patients or potential patients of Dr Karimi and to uphold the public interest, as identified above.
5. We also do not accept that Dr Karimi has had no patient complaints as to care or competence. The inappropriate relationship investigation while he was practising in Dubbo and the Tea Gardens Complaint can both be seen as meeting that description.
6. Whether Dr Karimi is a kind individual who has always shown care, empathy and interest for the well-being of others and has endeavoured to act in a humanitarian manner are not matters on which we can reach any concluded view because these were essentially assertions not conclusions available on the material before us. Similarly, while there is no basis for us to conclude that Dr Karimi derived any particular personal benefit for the conduct in question there is also no sufficient basis for us to be positively satisfied that he received no benefit. All that we had before us was his assertion as to lack of benefit and the nature of the conduct itself, which can be seen as equivocal, in at least some cases.
7. We accept that what Dr Karimi described as "misconduct" was also an error of judgment. We do not accept, in the light of the material relating to the Parramatta Complaint and the Allergan and PRU Complaints, that it was "one isolated episode which involves a sequence of events rather than a single event" or, "though serious in nature, [it] did not impact on his capacity to practise medicine". As we have explained in some detail above, in our view it was not one episode, the conduct was not "isolated' and there is a serious risk that his capacity to practise medicine without harm, honestly and reliably is adversely impacted.
8. In addition, we have already noted that Dr Karimi's belief that he was assisting his patients may well have led him to adopt practices which were either harmful to his patients, for example, his drug dependent patients for whom he prescribed Schedule 8 drugs, or were illegal or improper, such as prescribing in the name of staff members who were not intended to receive the medication prescribed or submitting a falsified certificate of registration in order to obtain Botox for a patient.
9. We accept that Dr Karimi has said that he is very remorseful for his actions. Nonetheless, as we have explained in detail above there are inconsistencies and other aspects of Dr Karimi's explanations of what occurred and his apparent resiling from accepting responsibility which deprive expressions of remorse of much of their weight.

Conclusions and Orders

1. In our consideration above, we have concluded that the material in relation to the Parramatta Complaint and the improper prescribing practices and the reliance on the falsified Board Certificate of Registration aspects of the Allergan and PRU Complaints, taken separately, each make it appropriate to confirm Dr Karimi's period of suspension.
2. If we are wrong on that, in our view the material relating to any two or more of the Parramatta Complaint and those two aspects of the Allergan and PRU Complaints, taken together justifies that conclusion. Further, when all aspects of the Parramatta Complaint, the Allergan Complaint and the PRU Complaint are considered together, we believe the period of suspension must be confirmed. This conclusion is reinforced by the fact that Dr Karimi was not a medical practitioner who had had no complaints against him before the latest three complaints, having regard to the Tea Gardens Complaint and the YouTube and inappropriate relationship investigation by the former Medical Board.
3. Moreover, the material that was before the Council on 21 September 2017 and the transcript of the evidence given by Dr Karimi and the submissions on that occasion were also before us. Except to the extent that the Council's reasons contain findings or conclusions inconsistent with what is set out above, we also adopt the reasons given by the Council as supporting the need for the continued suspension of Dr Karimi's registration.
4. In these circumstances, the appropriate order is that the period of suspension imposed by the Medical Council of New South Wales on 21 September 2017 is confirmed.
5. The Council submitted that Dr Karimi's "application ought to be dismissed with costs". In relation to costs, cl 13 of Sch 5D of the National Law relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
6. The terms of cl 13(1) indicate that a registered medical practitioner in an appeal such as the present before the Tribunal may be ordered to pay the Council's costs.
7. Under cl 13 and especially having regard to subcl (4), ordinarily costs should follow the event unless there are reasons to conclude otherwise: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85].
8. In the present case, it was not submitted that there were reasons to conclude otherwise and we are of the view that there were none. Thus, costs should follow the event, which is, in effect, that Dr Karimi has been entirely unsuccessful. We are not provided with any information as to the amount of costs incurred and, as a result, we are not in a position to fix the amount of costs ourselves. Accordingly, it is appropriate to order that Dr Karimi pay the Council's costs as agreed or assessed.

Orders

1. For the reasons set out above, the Tribunal orders: 1. The period of suspension of the appellant's registration as a medical practitioner imposed by the respondent on 21 September 2017 is confirmed. 2. The appellant is to pay the respondent's costs as agreed or assessed under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014).

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

Amendments 21 December 2017 - Paragraph 156 - words deleted - typographical error 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: 21 December 2017