respondent. Application dismissed. Applicant ordered to pay the respondent’s costs.
Key principles
Under ss 163B and 163C of the Health Practitioner Regulation National Law (NSW), a reinstatement review determines whether the existing order remains appropriate at the time of...
An applicant for reinstatement bears the onus of demonstrating that they can be trusted to practise in accordance with professional standards and without unacceptable risk to...
The Tribunal was not satisfied that Mr Safi had discharged that burden. It considered that his description of the misconduct as a communication and consent failure, his...
Issues before the court
What inquiry does the Tribunal conduct on a reinstatement application?
Whether Mr Safi demonstrated sufficient reformation and future reliability to be reinstated.
How the applicant’s insight and remorse affected the assessment of future risk.
Whether the application should be dismissed and costs ordered.
Cited legislation
Plain English Summary
The Tribunal was not deciding again whether the original misconduct occurred. It had to decide whether Mr Safi had shown, by the time of his application, that it was appropriate to restore his registration. It considered his rehabilitation evidence but concluded that his continued denial of some conduct and his description of the incident as principally a communication failure left it without enough confidence that he understood the seriousness and impact of the misconduct. The application was dismissed, and he was ordered to pay the Medical Council’s costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,222 words · generated 28/09/2026
What happened
In Safi v Medical Council of NSW [2020] NSWCATOD 28, the Occupational Division of the NSW Civil and Administrative Tribunal considered whether Mohamed Safi’s medical registration should be restored. The Tribunal had cancelled his registration in June 2017 after finding professional misconduct relating to a female patient he examined in 2012. It had imposed an 18-month period during which the cancellation could not be reviewed. The Tribunal recorded that this period had expired on 29 December 2018.
No linked legislation citations have been extracted yet.
The 2017 findings concerned a consultation on 9 February 2012. The Tribunal’s earlier determination was that Mr Safi had inappropriately touched the patient’s clitoris, rubbed the entrance of her vagina, and hugged and kissed her at the conclusion of the examination. Mr Safi denied that conduct. A jury had found him not guilty of the criminal charges, but the professional misconduct findings were made in separate Tribunal proceedings and were not appealed. In this reinstatement proceeding, the Tribunal treated those findings as established; it was not reviewing them afresh.
Mr Safi relied on evidence of his medical experience, professional development courses, counselling, community work, character references and support from former patients and colleagues. He was working in an administrative capacity at his wife’s medical practice. Reports from practitioners who had treated or assessed him expressed optimism about his ability to return to practice. The Council opposed reinstatement, focusing on whether he had adequately understood and accepted the conduct that led to deregistration.
The Tribunal dismissed the application and ordered Mr Safi to pay the Council’s costs. Its central concern was not simply whether he had undertaken courses or could perform medical work. It was whether his evidence gave it sufficient confidence that he understood the misconduct and could be trusted to practise consistently with professional standards.
Why the court decided this way
The statutory framework set the scope of the inquiry. Section 163B(1) of the Health Practitioner Regulation National Law (NSW) gives the review body options that include dismissing an application or making a reinstatement order. Section 163C(1) says a review determines the appropriateness of the order at the time of review. Section 163C(2) expressly says the review is not to revisit the original decision or its associated findings. The question was therefore prospective: whether reinstatement was appropriate in 2020, given the established disciplinary history and the evidence then before the Tribunal.
The Tribunal adopted principles set out in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166. Those principles included that public protection is paramount; that reinstatement is protective, not punitive; and that the applicant carries the burden of showing that they can be trusted to practise in accordance with professional standards. They also require clear proof of reformation. The Tribunal referred to Ex Parte Tziniolis for the proposition that the passage of time, without further discreditable conduct, does not by itself prove that a person’s character or attitudes have changed.
There was substantial evidence favourable to Mr Safi. The Tribunal acknowledged his traumatic background, continuing education, counselling, community contribution and character evidence. It also noted favourable views expressed by some practitioners. The evidence included reports that he could safely return to practice and that the risk of recurrence was low. The Tribunal did not treat those matters as irrelevant; rather, it assessed them alongside Mr Safi’s own account and the nature of the unresolved concerns.
The decisive difficulty was the gap between the misconduct found in 2017 and the way Mr Safi continued to describe it. The Tribunal concluded that he treated the event as an unfortunate communication failure rather than a series of inappropriate physical contacts between doctor and patient. He continued to deny that the hugging and kissing occurred. He described the examination as involving insufficient explanation or consent, but told the Tribunal: “I do not accept that something worse than a lack of communication occurred.” The Tribunal considered that this did not show adequate understanding of the seriousness and nature of the established conduct.
The Tribunal was also concerned by accounts recorded in psychiatrist Dr Samuels’ report. Those included suggestions that the patient or her husband had reasons to make a false complaint, including alleged dissatisfaction with the practice and an unlikely theory involving a foreign government. Mr Safi said at the hearing that these were views he had held in the past and no longer held. The Tribunal noted that Dr Samuels’ report appeared to record the explanations as given at the time of the consultation, and Dr Samuels had not been called for cross-examination. It therefore remained with reservations about Mr Safi’s explanation of when he held those views.
The decision was not that any denial automatically prevents reinstatement. The Tribunal expressly acknowledged, citing Zaidi v Health Care Complaints Tribunal (1998) 44 NSWLR 82, that denial of the underlying conduct does not necessarily preclude reinstatement and that lack of insight is not necessarily an absolute bar. Its conclusion was particular to the evidence before it: it considered Mr Safi’s insight limited and insufficient, and was consequently not satisfied that he had discharged the burden of showing he was fit and proper to practise.
Before and after state of the law
The judgment applies the statutory reinstatement framework in ss 163B and 163C of the National Law. Section 163B identifies the available orders on review, including dismissal and reinstatement. Section 163C defines the task as an inquiry into whether the order is appropriate at the time of review and prohibits a review of the original decision and findings. The judgment therefore distinguishes a reinstatement application from an appeal or rehearing of the disciplinary case.
The Tribunal also applied principles previously formulated in reinstatement cases. As recited in Zepinic (No 2), the objectives and guiding principles of the National Law include ensuring that registered practitioners are suitably trained and qualified to practise competently and ethically. The paramount consideration is public health and safety. The applicant must establish future trustworthiness and reliability, and clear proof is required to establish reformation. The decision also recognises that rehabilitation can serve the public interest: the law does not impose a permanent exclusion simply because a practitioner was previously deregistered.
Safi does not purport to alter these principles. It shows how the Tribunal applied them to evidence concerning insight, remorse and future reliability. A practitioner’s completion of education and treatment, favourable references, and absence of later misconduct may form part of the assessment, but the Tribunal evaluated that evidence alongside the applicant’s account of the original conduct and its consequences. The decision does not establish a rule that an applicant must make a particular form of admission, or that a denial necessarily defeats an application. The Tribunal’s express qualification, drawing on Zaidi, prevents that broader reading.
The judgment also illustrates the distinction between punishment and protection. The application was not refused to impose additional punishment for the 2012 conduct. The Tribunal framed its role as deciding whether the public could safely and confidently be served by a reinstated practitioner in light of the evidence at the review date. The applicant’s burden and the assessment of insight were applied in that protective context.
Key passages with plain-English translation
The statutory provision quoted by the Tribunal states that “[t]he review is not to review the decision to make the order, or any findings made in connection with the making of that decision” (s 163C(2)). In plain English, the reinstatement hearing was not an opportunity to retry the 2017 case. The Tribunal had to accept the prior findings as the starting point and decide whether the cancellation order remained appropriate.
The Tribunal adopted the principle that “[t]he onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise” consistently with professional standards and without unacceptable risk to public safety and confidence in the profession. In plain English, the question was not simply whether Mr Safi wanted to return or had completed courses. He had to satisfy the Tribunal about his future professional reliability.
The Tribunal also adopted the requirement for “clear proof” of reformation, citing Ex Parte Tziniolis. The associated reasoning cautions against assuming a person has changed merely because time has passed without known further misconduct. In plain English, elapsed time can be relevant, but does not alone establish changed attitudes or character.
The Tribunal’s central finding was that Mr Safi had “limited and insufficient insight into the conduct which brought about his deregistration, and a limited understanding of the impact of the conduct on Patient A.” In plain English, the Tribunal considered that his description of events did not demonstrate a sufficiently developed appreciation of what had been found to have happened and how it affected the patient.
Finally, the Tribunal said it was “not satisfied he has discharged the burden of showing he is a fit and proper person to practise medicine.” This was the conclusion on the issue before it. It explains why the application was dismissed, despite the favourable evidence the Tribunal acknowledged.
What fact patterns trigger this precedent
The judgment is relevant to applications seeking reinstatement after registration has been cancelled or suspended and a review period has expired. Its statutory analysis is specific to the National Law provisions considered, particularly ss 163B and 163C. The case is especially instructive where the review body must assess present suitability without reconsidering the original disciplinary findings.
It is also relevant where the applicant relies on rehabilitation evidence, such as professional development, counselling, expert assessments, community contributions, character references or the absence of later misconduct. Safi demonstrates that the Tribunal may assess that material together with the applicant’s own description of the misconduct and the extent to which that description aligns with the findings that led to deregistration.
The precedent may be particularly useful in cases where insight and future reliability are disputed. In Safi, the Tribunal was concerned that the applicant continued to characterise established sexual misconduct as a communication problem and maintained that some of the conduct did not occur. It also considered his explanations for the complaint and whether those explanations were consistent with the contemporaneous assessment report.
The decision should not be read as establishing that every reinstatement applicant must admit every allegation or that disputed responsibility is automatically disqualifying. The Tribunal expressly recognised that denial and lack of insight do not necessarily preclude reinstatement. Its reasoning instead shows how those matters may be weighed in the particular assessment of whether the applicant has provided clear proof of reformation and future reliability.
How later courts have treated it
The supplied judgment does not identify any later decision that discusses or applies Safi. Accordingly, the source does not establish how later courts or tribunals have treated the decision, whether it has been followed, distinguished or limited, or whether it has acquired a particular precedential status.
The judgment does refer to Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13, which was decided before Safi. The Tribunal said that the principles stated in Zepinic (No 2) had been referred to with approval in that Supreme Court decision at [47]. This is part of the legal context Safi relied on; it is not subsequent treatment of Safi itself.
The judgment also discusses Vo v Medical Council of NSW [2018] NSWCATOD 18 as a comparison. The Tribunal noted that acceptance of the wrongfulness of the prior misconduct was significant to the successful applicant in Vo. It used the comparison to explain why the evidence in Safi did not satisfy it, while the ultimate assessment remained dependent on the evidence in each case. The materials provided do not permit a broader survey of later treatment or citation history.
Still-open questions
The judgment leaves open how much insight or acceptance is sufficient in a different reinstatement case. It confirms that denial or lack of insight is not necessarily an absolute bar, but it does not set a universal threshold or identify a formula for measuring insight. The assessment remains tied to the evidence and the Tribunal’s view of the applicant’s future reliability.
It also does not decide how a review body should weigh conflicting psychiatric or professional opinions in general. In Safi, some practitioners expressed optimism about Mr Safi’s future conduct, while Dr Samuels recorded concerns about his continuing denial and explanations. The Tribunal assessed those views alongside the applicant’s evidence and the prior findings. The judgment does not establish a hierarchy among expert opinions or a general rule about requiring practitioners to attend for cross-examination.
Another question is how rehabilitation evidence should be evaluated where there has been no subsequent misconduct but the applicant’s account of the original events remains disputed. Safi says that the passage of time alone does not establish reformation and that clear proof is required, but it does not prescribe how long a period must be or what combination of treatment, education, conduct and reflection will be sufficient.
Finally, the supplied text cannot answer how later decisions have developed the principles. It records the Tribunal’s decision as at 25 March 2020 and provides no later case history. Any present-day assessment of subsequent treatment would require sources beyond the judgment supplied here.
This is general legal information, not legal advice. Zoe can make mistakes. Before you act on this, rely on it, or use any draft, get a qualified Australian lawyer to check it.
Judgment (8 paragraphs)
[1]
The Application
On 29th June 2017 this Tribunal ordered the deregistration of the applicant as a medical practitioner, having earlier found him guilty of professional misconduct. The question for the Tribunal now is whether his registration should be reinstated.
[2]
Background to the Deregistration Order
The Tribunal's finding of professional misconduct was made on 9th May 2017. The conduct which underlay that finding concerned a female patient he saw at his rooms on 9th February 2012. It was found by the Tribunal that on that day:
1. During a consultation he had performed a vaginal examination, in the course of which he:
1. Inappropriately touched her clitoris with his fingers and rubbed it with one or two fingers in a circular motion for one to two minutes;
2. Inappropriately moved his fingers to the entrance of the patient's vagina and rubbed it in a circular motion for about two minutes;
1. At the conclusion of the examination he had hugged the patient, kissed her on her lips with an open mouth, and sucked her lips.
On 1st March 2012 the applicant was arrested and charged in respect of the conduct. He was later committed for trial on three counts of indecent assault and one of sexual intercourse without consent.
On 7th May 2012 at a hearing under s 150 of the Health Practitioner Regulation National Law (NSW) (National Law), conditions were placed on his right to practise, namely he was not to see more than 40 patients per day, and he was not to conduct a physical examination of a female patient save in the presence of a chaperone.
After he was charged, the applicant and his wife (also a general practitioner) left the practice where they had both worked for a number of years, and together set up a new practice.
Between October 2012 and October 2013 the applicant on seven occasions saw female patients without a chaperone being recorded as present.
However on 19th September 2014 the Medical Council of NSW (the Council) issued an assessment on his compliance with conditions, concluding
"The evidence indicates that Dr Safi has overall been compliant with his practice conditions and the identified breaches are relatively minor and as such the evidence as it stands does not meet the threshold whereby it would be a proportionate response to prosecute these breaches in [a] disciplinary forum".
At a trial by jury in November 2014, he was found not guilty of all criminal charges.
On 23rd April 2015 the above conditions were removed.
In February, April and May 2017, the Tribunal heard an application brought by the Health Care Complaints Commission (HCCC). Allegations in the complaint against him were not confined to but they included the sexual misconduct which had been alleged in the District Court of NSW before a jury. In the course of the Tribunal hearing the patient maintained her complaint set out above and was cross-examined by Senior Counsel then appearing for the applicant. The applicant also gave evidence, in which he denied the conduct. He also was cross-examined.
The Tribunal preferred the patient's evidence, and although it found certain parts of the complaint had not been made out, it found the above particulars of the complaint proved to the requisite standard. There was no appeal from the Tribunal's findings. The applicant was found guilty of professional misconduct and on 29th June 2017 his registration was cancelled, with a non- review period of 18 months. He was ordered to pay the HCCC's costs, which amounted to $35,000.
[3]
This Application
In his application the applicant noted that the 18 month non-review period had expired on 29th December 2018, asserted he is now a fit and proper person, said he had undertaken extensive continuing professional education training since cancellation, that he is now truly remorseful, he would suffer punishment if not readmitted, and it would not be in the public interest for him not to be readmitted.
For the purpose of this application he verified two statements as his evidence in chief, which were admitted into evidence without objection.
According to his evidence, he was born in 1958 in Afghanistan, graduated in medicine from Kabul University in 1984, and practised in Afghanistan until 1992, when he and his wife and children left, due to civil unrest. After a very traumatic time they eventually settled in NSW, achieving recognition as refugees.
In 1998 the applicant successfully completed the Australian Medical Council examinations and was admitted to practise. He worked as an intern, resident medical officer, and hospital registrar, from 1999 to 2002. From 2002 to 2004 he worked as a general practitioner registrar and was an accredited visiting medical officer at Mudgee District Hospital.
He achieved vocational registration status with the Royal Australian College of General Practitioners in 2004. From that year he worked in general practice until his name was removed from the medical register in 2017.
The applicant's wife runs a practice in Parramatta. It has a number of health practitioners. The applicant currently works in the practice in an administrative capacity.
The applicant said he had many regular and repeat patients when he was in practice, and had much support from the local Sierra Leone and Afghan communities. Annexed to his first statement were references from former patients. Both patients spoke highly of him.
The applicant also said he had received a lot of support and counselling from professional colleagues after the complaint was first made. He attached to his first statement a letter from Dr Cenan, a general practitioner from the Argyle Medical Centre, where the applicant and his wife had formerly worked. In the letter, Dr Cenan described the applicant inter alia as highly competent, honest and dedicated. Dr Cenan had read the Tribunal's findings, and expressed the hope the applicant could return to work in the medical profession. In a separate letter he spoke inter alia of the applicant's high level of enlightenment towards women, "despite coming from a socially conservative cultural background".
[4]
Submissions
Both counsel gave the Tribunal helpful submissions, both in writing and orally.
Ms T. A. Berberian for the applicant, accepted a central issue is the significance of the fact that the applicant maintains his innocence, despite the Tribunal's findings in 2017.
She acknowledged that his insight is a significant issue, but submitted that the main issue for the Tribunal must be whether in its view the conduct will recur.
She drew the Tribunal's attention to s 163C of the National Law relating to review applications such as this, in particular urging us to look at the appropriateness now of making the order sought. She reminded us we are not to review the Tribunal's previous decision or findings.
She referred us to Vo v Medical Council of NSW [2018] NSWCATOD 18 for the proposition that the issue for us is not so much the applicant's technical fitness but whether he can be trusted to practise in future with integrity, whether there is any appreciable risk of repeating the misconduct giving rise to the cancellation, and whether he will practise in an ethical manner, not abusing the trust and safety of patients.
She accepted the purpose of this jurisdiction is to protect the public, and that the significant question is whether he is now a fit and proper person to rejoin his profession. She accepted he is in a more disadvantaged position than an original applicant, and conceded we may draw inferences from past conduct, especially that which led to his deregistration.
She submitted that through his experience with the criminal justice system, the Tribunal's proceedings in the past and present, and the courses he has taken, he has gained insight, and an understanding of the events concerning Patient A and his role. She submitted we would find he is deeply remorseful, and accepts the significant trauma which was caused to his patient.
She submitted the Tribunal would find this was an isolated event in an otherwise unblemished career and that there is no public interest in forever denying the chance of redemption and rehabilitation.
The Tribunal, she submitted, would accept Dr Samuels' opinion that there will never be a repetition of the events involving Patient A, and would find he is a fit and proper person to re-enter the medical profession.
[5]
Consideration
The National Law provides relevantly:
163B Powers on review [NSW]
(1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following--
(a) dismiss the application;
(b) make an order ending or shortening the period of the suspension concerned;
(c) make a reinstatement order;
…
(5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
163C Inquiry into review application [NSW]
(1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.
(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision.
(3) …
The principles to be considered on an application for reregistration were set out in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 as follows:
"[7] The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms:
12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include:
(1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a));
(2) The paramount consideration is the protection of the health and safety of the public: see s 3A;
(3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24];
(4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13].
(5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23].
(6) 'Clear proof' is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is 'in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made': Amieson at [24].
(7) It is not 'a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future'. The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]"
[6]
Conclusion
The Tribunal is mindful of his traumatic background, the steps he has taken to re-educate himself and keep abreast of medical practice, his character evidence, and the good work he has contributed to his community. But in the end it is not satisfied he has discharged the burden of showing he is a fit and proper person to practise medicine. Accordingly his application should be dismissed.
In accordance with the usual practice, the Tribunal considers it appropriate that the applicant pay the Medical Council's costs.
[7]
ORDERS
The Tribunal orders:
1. Application dismissed.
2. Applicant to pay the respondent's costs.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 March 2020
Application dismissed. Applicant ordered to pay the respondent’s costs.
The applicant in his first statement said loss of registration had deeply shocked and saddened him, and had caused him significant emotional and financial effects. Further, he had suffered shame and embarrassment.
He had also suffered depression, and been referred to a psychiatrist, Dr Way, in 2014, and had regularly seen him since, for treatment, developing a good therapeutic relationship with him.
He said Dr Way had referred him to a psychologist, Prof Sitharthan Thiagarajan, who had helped him gain insight into the "issues surrounding the cancellation of my registration". (para 41). He went on to say "I have also regained enormous insight into where I went wrong in the way I managed and responded to the allegations against me". (para 46)
He continues to see his general practitioner, Dr Choi, who in a report of 16th May 2019, said he was physically fit to return to general practice.
Since the deregistration order was made the applicant has completed a number of continuing professional development courses, and relevant certificates were annexed to his first statement. He has also undertaken an online medical ethics course which he said "gave me a better understanding of [the code of conduct of doctors] and its application to my everyday practice."
He completed a number of courses "that could inform my understanding on the impact on sexual assault victims to develop a greater appreciation from the perspective of victims of sexual assault." He said he found these helpful as he was forced to appreciate
"the situation from a perspective that is different from my own and develop a genuine and informed sense of empathy…I have learnt that victims of sexual assault experience feelings of helplessness…and often feel unable to protect themselves [and] feel a strong sense of guilt [and]…self-blame…".
He concluded
"I fully accept and acknowledge my own role in the unfortunate events. I also fully accept the criticisms of the Tribunal and the experts in the NCAT proceedings, in particular that my previous methods of communication were not at a level they were required to be…I am extremely regretful that my lack of effective communication had such terrible consequences for all including [Patient A]. I am making every effort to ensure this will never happen again to any of my patients in the future…Effective communication is the cornerstone of understanding the feelings and needs of all patients generally, and in particular, sexual assault victims."
Accordingly, he went on to say, he had undertaken a course in communication, learning the importance of pronunciation, tone, rhythm and intonation, and he constantly focuses on his speech to improve his communication skills. He said he had also learnt to be an active listener, and of the importance of giving patients the opportunity to talk about a relevant event in his or her own way.
As well as courses of learning, he had attempted to do volunteer work with sexual assault victims but had not found a facilitator to help him get such work.
But he had undertaken online courses about violence against women.
He said he had done valuable community work, helping to translate medical articles into Farsi/Dari and Pashto/Pakhtu.
In evidence through his second statement were character testimonials from significant members and numbers of the community, all speaking well of him and of the good work he has done in the Afghan and Sierra Leone communities of Sydney.
In his first statement the applicant said
"I am deeply remorseful for both [Patient A] and myself that this situation ever arose…I have learnt the magnitude of the incident and witnessed its effect on my life, my family, [Patient A] and her family, the medical community and the wider community…The emotional, social and financial ramifications of the events leading up to the application have been extremely taxing for my family and me and I would be grateful to be provided with the opportunity to make things right again for my family…"
There were reports in evidence from Dr Way and Prof Thiagaran. Both expressed some optimism about his future conduct if permitted to practise again.
In Dr Way's report of 7th December 2018 he said inter alia
"He shows good insight into his problems and has learned significantly from his past experience to make a competent medical practitioner. It is my view that Dr Safi can safely return to practise as a medical practitioner."
Prof Thiagaran in a report of 4th December 2018 said inter alia
"As part of the psychological consultations I have provided…[s]upportive psychotherapy to address his feelings of hopelessness …In my clinical opinion Dr Safi can safely return to work as a general practitioner and does not pose any risk to patients or the community…I believe that Dr Safi will be extremely cautious in his clinical practice, so as not to draw any aspersions with regards to his professional career."
However he noted that in the course of consultations the applicant had told him he felt he had been punished severely by this Tribunal's 2017 findings and ruling, "even though he had not committed any crime or had practiced (sic) medicine in an unprofessional /unethical manner".
The applicant also tendered a medico-legal report from specialist psychiatrist Dr Robertson. In his report of 30th July 2019, Dr Robertson said inter alia he could see no psychiatric ground to prevent the applicant from returning to practice and, unsurprisingly, considered his mental state would improve if he did. However, as to the history of the complaint he said:
"On the question of his attitude towards the woman involved in the allegations of professional misconduct, Dr Safi acknowledges that he had not appropriately consented the patient to the procedure and should have taken greater care given her limited English. His remorse is confined to this aspect of the situation and he protested his innocence. Dr Safi demonstrated good insight into his depressive illness and good judgment as to its ongoing management…Dr Safi maintains his innocence despite the adverse finding at the NCAT but acknowledges he bore some responsibility for the manner in which he conducted the internal examination, in particular his failure to appropriately explain and consent the patient. He acknowledged that he was harried and 'overworked' that day."
The Medical Council had the applicant examined by specialist psychiatrist Dr Samuels on 28th November 2019 and his report of 3rd December 2019 was in evidence.
Dr Samuels asked the applicant if he thought the patient had made a false complaint about him. He recorded:
"in his opinion it was the husband who said this to the police and not the patient. Dr Safi is not sure why the husband would have done this but he said that the husband was not happy with the practice because his workers compensation case had not gone well. He said they did not have a visa, the relationship was not good, and he thought the wife might have had some personality issues. …I pointed out to Dr Safi that he had to be fairly motivated to go through a criminal trial. He said he had thought about this. He said the couple were Nepalese but had worked in Saudi Arabia and he thought they might have been recruited by a spy agency. ..he had many Arabic patients, had spoken with them against the Saudi regime and Dr Safi believes at some level that they may have been planted by the Saudis to discredit him but he agreed it would be impossible to prove this…He acknowledged that his poor communication skills, seeing too many patients in a day and rushing consultations were factors that contributed to the complaint. He does however continue to deny the substantive allegations and raises some questions about the complainant's mental state and motives of her husband."
Dr Samuels said his impression was the applicant was quite insightful about the issues which had brought about the attention of the courts and the Medical Council. However he said
"Dr Safi does continue to absolutely deny sexually assaulting the Patient. He said that he did tell her what he was going to do. He said she agreed to it and she also told him that she had had a Pap smear in the past. He realizes now that he should have spent more time, got proper consent and communicated better. He does not believe that his examination was inappropriate in any way and was clinically justified. Dr Safi absolutely denied kissing the Patient and he believes that this was a complaint made by the husband and not by the Patient and he thinks that the husband was somewhat vindictive because of his own experiences in the practice…What was a little concerning was Dr Safi's view that the couple were spying for the Saudi regime and that they had been planted to discredit him. Whilst there is a remote possibility that such a situation could occur (given recent events in Turkey); it does have a delusional flavor. However I could find no other evidence from my clinical examination and the history that Dr Safi was suffering from any form of psychotic illness."
Dr Samuels acknowledged that the risk perspective is a difficult one, given there was only one complaint, there was no history of sexual offending, and the different (though consistent) findings of the jury and of this Tribunal.
He concluded that this had been a very salutary experience for the applicant and it is highly likely he would be extremely compliant with any conditions imposed. Further he sees the risk of a recurrence of the conduct as low, especially as he will be under scrutiny and is well aware of the risks associated with deviations from acceptable practice. He said
"The Council may feel that continuing the condition that Dr Safi only sees male patients is appropriate. I have not formed a firm view in this regard from a psychiatric perspective. Alternatively, a condition could be considered that in cases where a vaginal/anal/breast examination is clearly clinically indicated, a female chaperone must be present before the procedure is performed and written consent witnessed by the chaperone or preferably a support person obtained."
The applicant gave oral evidence, in the course of which he verified the contents of his two statements. He was cross-examined.
There was no other oral evidence for the applicant.
The Medical Council tendered a bundle of documents including Dr Samuels' report, but called no oral evidence. None of the medical practitioners who had seen the applicant were required for cross-examination.
Mr H. El-Hage for the Medical Council told us his client opposed the application, but that if the Tribunal were to grant it, strict conditions should be applied. He tendered a set of proposed conditions on which the Tribunal then received further submissions.
Mr El-Hage submitted certain aspects of the applicant's evidence show a lack of proper insight, that we would find he had attempted at times to play down the incident with Patient A as one of poor communication when it was something much more, and that he at times had blamed Patient A and her husband for what had occurred. Thus we would be slow to find true remorse and be concerned about his insight. He drew our attention to the applicant's histories to psychiatrists whose reports were in evidence, in which the applicant appeared to blame the patient, and not to accept his part in the matter which had led to deregistration.
He urged us to use great caution, noting the jurisdiction is not one to punish, but to protect the public. The question in the end, he submitted, is whether he satisfies us he is fit and proper, and he bears a heavy onus in establishing that.
That statement of principles was referred to with approval in Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [47] (N Adams J).
To those principles it can also be added that it cannot be assumed that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. "If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man": Ex Parte Tziniolis; The Medical Practitioners Act at 461 (Walsh JA (Wallace P agreeing)).
Despite support for the applicant, especially as to his insight, and optimism about his future conduct, as expressed by some of the practitioners who have seen him, the Tribunal has considerable reservations about Mr Safi's insight and integrity.
The evidence suggests strongly to the Tribunal that despite the years which have passed since the events of 2012, and especially since he was deregistered in 2017, Mr Safi has not developed the insight necessary to understand the gravity and nature of the conduct found and to give the Tribunal confidence in him if he returned to practice.
We have set out above at [35], [36] and [38]-[39], what the applicant told Professor Thiagaran, Dr Robertson and Dr Samuels respectively.
In summary, we conclude from what he told those practitioners and this Tribunal, that he regards the event with Patient A as an unfortunate lack of communication, rather than a series of totally inappropriate physical contacts between a doctor and a patient.
In Vo v Medical Council of NSW, to which reference was made by his counsel, the applicant for re-registration had also committed sexual improprieties in the course of examining a patient. On his successful application for re-registration several years later, his acknowledgement of the wrongfulness of the conduct which had led to the deregistration was a significant factor in the Tribunal's decision, which noted at [67]:
"He is fully accepting of the misconduct he engaged in, and its wrongness, and the harm it did."
Such an acceptance by Mr Safi was clearly absent from his evidence on this application, where Mr Safi continued to deny the hugging and kissing had occurred at all, and explained the complaint about clitoral and vaginal rubbing as having been caused by poor communication and a failure to obtain adequate consent. As Dr Samuels reported:
"Although he denied the conduct, he said the fault had been on his side as he was seeing many patients, his communication skills were poor, and he should have given a good explanation for what he was doing."
When giving oral evidence the applicant drew the Tribunal's attention to a set of written guidelines for doctors concerning sexual boundaries and told us he had made a mistake in the examination of Patient A in that he had not given a sufficient explanation or obtained consent before the vaginal examination, and in that sense he had inappropriately crossed sexual boundaries.
Further, he told us:
"I do not accept that something worse than a lack of communication occurred."
In the course of his cross-examination Mr Safi's attention was drawn to the histories he had given to the various doctors about Patient A. He was reminded he had given Dr Samuels the somewhat bizarre explanation that she and her husband had complained because of urging from the Saudi Arabian government, or because the husband had not been happy with the way the applicant's medical practice had treated his workers compensation claim. He was reminded too of his explanation that Patient A had lacked mental stability.
The applicant responded when these matters were put to him that he had merely been telling Dr Samuels what he had thought in the past might have been explanations. He said he no longer held those views, and had not done so when he saw Dr Samuels. He had changed his mind several years ago, he said.
However that is not the way Dr Samuels' report presents that history. A close reading of Dr Samuels' report suggests the explanations the applicant gave for the allegedly false complaint were provided by the applicant on the day of the consultation.
Dr Samuels was not required for cross-examination, so the Tribunal does not have his assistance on the issue. However the Tribunal was left with reservations about the applicant's evidence that these had been opinions he had held a long time ago.
The Tribunal was troubled by his statement that he saw his wrongful conduct as amounting only to poor communication, by his explanations to Dr Samuels for why he considered the complaints had been made, including casting blame on the patient's mental health, and whether he had held beliefs about these reasons last December, as recorded, or some years ago, as he insisted to the Tribunal.
Thus although there is evidence such as from Dr Way and Dr Samuels that the applicant has some insight, and will not reoffend, the Tribunal is satisfied that the applicant has limited and insufficient insight into the conduct which brought about his deregistration, and a limited understanding of the impact of the conduct on Patient A.
The Tribunal acknowledges that when a deregistered doctor applies for re-registration a denial of the conduct leading to deregistration does not necessarily preclude reregistration: Zaidi v Health Care Complaints Tribunal (1998) 44 NSWLR 82 at 100E (per Mason P). Nor should a lack of insight necessarily preclude it.