Tadros v Physiotherapy Council of New South Wales

NCAT Occupational|2024-03-12|Before: Dr J

REASONS FOR DECISION

Mr Tadros, a physiotherapist, appeals from the decision of the respondent (the Council) to impose certain conditions on his registration, being conditions prohibiting him from treating women and children. Those conditions were imposed following allegations by a sixteen-year-old girl, who undertook a work experience placement with Mr Tadros, that he sexually touched her in the course of the placement.
Mr Tadros was initially convicted of an offence of sexually touching, but successfully appealed against the conviction.
We have found that allowing Mr Tadros to practise without the impugned conditions would involve an unacceptable risk to the health and safety of the public. Accordingly, we have confirmed the Council's decision.

Background

Mr Tadros graduated from a physiotherapy degree in 2020 then registered as a physiotherapist and commenced practice shortly thereafter. In December 2020, Mr Tadros began the process of setting himself up as a sole trader.
In February 2021, a few days after Mr Tadros had launched his physiotherapy business on social media, a 16-year old female Year 12 student (the student), emailed Mr Tadros about doing a work placement with him, as part of her Certificate III in Allied Health Care Assistance. Mr Tadros agreed to the work placement. Mr Tadros was 23 years old at the time.

Criminal proceedings

On 21 March 2021, the student signed a witness statement for use in criminal proceedings against Mr Tadros. In this statement, she said that on 15 March 2021, Mr Tadros initiated the massage of her, by asking her to stand up and take off her shirt as he was going to give her a treatment. She stated that she was hesitant but took a towel from Mr Tadros and wrapped it around her. After he had massaged her shoulders, the student stated in the witness statement that he: "… took the massage gun and used it on my lower back and glutes, as he was doing this he said, 'yoμr hands are small'. I felt like that was a strange comment to make. I felt his hand on my right wrist and he lifted it off the bed and told me to 'Hold'. Theo was standing on the right side of the bed near my hip area. I felt something being placed on my hand, I didn't know exactly what it was, but it felt like skin. My hand slightly touched it for a couple of seconds and the same time he was massaging my tail bone and glutes area. I felt my hand being placed back onto the bed and he said 'Is it stimulating' I didn't say anything, I was in shock and didn't know what to do. I felt Theo grab my wrist again and place my hand around his penis, pushing my fingers around his penis to wrap it in my hand, it felt hard and this last for about 5 seconds. The phone on his desk rang and he let go of my wrist and answered the phone. I heard the elastic on the top of his pants connect to his waist. I got off the bed and put my shirt and jacket on and went back to my seat. Theo was wearing black trackpants, that were tight at the bottom, had a Nike tick to the left pocket and a black polo shirt with gold stripes and his logo on the left chest area. I was sitting on the chair in shock and feeling uncomfortable. I didn't know what to say. Theo hung up the phone and was leaning against the bed and said 'I like you,' I think you are cute, have you been touched or seen a penis before? 'I didn't say anything, I just nervously laughed, and he said, 'Do you have a boyfriend?' I said 'Yes'. I was scared and didn't know what to do. … Theo left the room and called in the next patient. After the patient left Theo said 'I know that was unprofessional and I went overboard, I am sorry if I made you sad or uncomfortable' I said 'I am alright' Theo told me I could go have my break, … I came back at 3:40pm, I walked into the office and sat in the usual spot. A patient had treatment and left. Theo said 'Can I ask you a question, was that stimulating?' I said "I don't know.' He said 'I might have to try it on another girl.' … I finished at 4:50pm, …and as I was trying to walk out the room he said 'Did you think that was my penis? I said 'I don't know' I left the medical centre."
On 31 March 2021, Mr Tadros was charged with an offence under s 61KD(1)(a) of the Crimes Act 1900 (NSW) (aggravated sexual touching). The circumstance of aggravation relied upon was that the student was under Mr Tadros's authority.
On 4 November 2022, Mr Tadros was convicted of one count of sexually touching another person without consent (aggravated) and sentenced to four months' imprisonment. The trial judge commented that the student "was prepared to make plenty of concessions in relation to what she saw exactly and did not see exactly" and indicated that the Court accepted the student "as a person of truth".
An appeal to the District Court was upheld on 26 April 2023. Buscombe J made the following observations about the student's evidence: "She did not see what it was that her hand was wrapped around, that she felt it to be soft, smooth skin but not like a solid mass, that she heard the shuffling of clothing when the phone rang, her ultimate position in cross-examination was that she was not sure that what her hand was curved around was in fact the appellant's penis. To my mind, the evidence of the complainant is too vague and uncertain to infer beyond reasonable doubt that the appellant placed his penis in her hand. The complainant did not see what she touched and in her own evidence expressed uncertainty about whether what she touched was in fact the appellant's penis. Bearing in mind the onus of proof which rests on the Crown and that proof beyond reasonable doubt of each element of the offence is required and that the tribunal of fact must have reliable evidence before it draws an inference against an accused person. Where the complainant is uncertain about whether she touched the appellant's penis, I consider that the evidence is insufficiently certain to make a finding beyond reasonable doubt that the appellant touched the complainant sexually within the meaning of the definition of sexual touching in s 61(H)(B) of the Crimes Act (NSW)."
His Honour commented that the "immediate complaint evidence is consistent with something untoward occurring during the incident". His Honour also stated: "The account of the appellant denied conversing with the complainant about issues such as whether she had a boyfriend, about whether she'd ever touched a penis and matters of that type. I record that I think it unlikely that the complainant made up those conversations about which she gave evidence. The appellant though is not charged with having raised inappropriate topics in conversation with the complainant."

Disciplinary proceedings

On 7 April 2021, Mr Tadros notified the Australian Health Practitioner Regulation Agency (AHPRA) of the criminal charge against him.
On 28 April 2021, the respondent (the Council) held a hearing under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law). Towards the end of that hearing, one of the members of the Council said to Mr Tadros: "…there's also some videos on the New South Wales physiotherapists site about boundaries and how to manage boundary issues, really, with practitioners and …"
Mr Tadros replied: "I'll definitely look at them."
On 30 April 2021, the Council imposed conditions on Mr Tadros's registration. Those conditions were as follows: 1. Not to treat female patients. 2. Not to treat any person under eighteen (18) years of age. 3. Not to supervise any workplace students at his place of practice. 4. To forward evidence to the Physiotherapy Council of NSW within fourteen (14) days of conditions being imposed, that he has provided a copy of the full conditions to his places of practice, specifically: the practice owner and manager to ensure that conditions are complied with in terms of booking patients. 5. Within fourteen (14) days of a change in the nature or place of practice, the Practitioner is to forward evidence to the Physiotherapy Council of NSW that he has provided a full copy of conditions to the new employer/s. 6. To submit to an audit of his practice by a person or persons approved by the Physiotherapy Council of NSW and: 1. The audit is to be held within three (3) months from 30 April 2021 and subsequently as required by the Council; 2. The auditor(s) is to examine and assess the following aspects of his practice including: 1. Compliance with conditions 1. To authorise the auditor(s) to provide the Council with a report on their findings. 1. Within seven (7) days of the end of each calendar month, provide to the Physiotherapy Council of NSW a record of services undertaken in that month. The record must include: 1. Date and time of each service. 2. The patient's name. 3. The patient's date of birth. 4. The patient's sex.
The matter was also referred under s 150D of the National Law to be dealt with by the HCCC as a complaint for investigation.
In May and June 2021, Mr Tadros filed then withdrew an appeal from the decision under s 150 of the National Law.
Section 150A(1) of the National Law relevantly provides that a registered health practitioner may apply to a Council for the review of a decision of the Council under section 150 to impose conditions on the practitioner's registration. On 8 July 2021, the conditions on Mr Tadros's registration were affirmed following a hearing under s 150A of the National Law.
On 13 June 2023, following his successful appeal to the District Court, Mr Tadros applied under s 150A of the National Law for a review of the Council's s 150 decision.
The Council held a hearing to determine the s 150A application on 27 July 2023. In that hearing, Mr Tadros was asked about how he gained the student's consent for the massage, and he acknowledged that he did not document that consent. Mr Tadros was also asked why it was appropriate to massage a work experience student's buttocks. He gave a long, meandering answer, referring at one stage to the muscles in the glutes contributing towards gluteal tendinopathy and contributing in general to many pathologies, but ended by saying that he did it because the student asked him to. Mr Tadros was asked why he called the student "Ching Chong" in a text message and he said that that was "in a friendly tone" and that it was part of a joke, the nature of which he could not recall.
Mr Tadros denied that the conversations which the student said took place had taken place. He also denied that he lifted the student's hand up whilst she was on the massage table and he was massaging her.
On 23 August 2023, the Council informed Mr Tadros of its decision that conditions were still necessary until an investigation by the Health Care Complaints Commission (HCCC) had concluded.
On 25 October 2023, Mr Tadros appealed to this Tribunal from the s 150A decision.

Tribunal's jurisdiction

The Council raised an issue as to the Tribunal's jurisdiction to hear Mr Tadros's appeal from its s 150A decision.
The Council accepted that Mr Tadros could appeal the s 150A decision on a point of law under s 150B of the National Law. Section 150B of the National Law provides for a right of appeal, with respect to a point of law, to the Tribunal. However, the Council contended that Mr Tadros could not seek a merits review of the s 150A decision under s 159 of the National Law, because rights of appeal under s 159(1)(b) were limited to decisions that "impose" conditions. It submitted that s 159(1)(b) does not extend to decisions that merely confirm a prior decision to impose conditions.
The Council indicated that it would consent to leave being granted to Mr Tadros to amend his application to appeal the original s 150 decision dated 28 April 2021 under s 159(1)(b) of the National Law, in addition to his appeal of the s 150A decision under s 159B of the National Law. This is a similar approach to that taken in the case of Pridgeon v Medical Council of New South Wales [2021] NSWCATOD 89.
Mr Tadros did not accept that s 159(1)(b) does not permit review of decisions which confirm a prior decision to impose conditions. Nevertheless, Mr Tadros sought an extension of time to appeal the original s 150 decision under s 159 of the National Law.
At the hearing of the appeal, we granted Mr Tadros an extension of time to appeal the s 150 decision made on 30 April 2021. We extended the time to appeal to 11 March 2024, being the first day of the hearing. In these circumstances, Mr Tadros did not press his appeal under s 159B of the National Law.

Relevant legislative provisions

Section 150(1)(b) of the National Law provides: 150 Suspension or conditions of registration to protect public [NSW] (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 - … (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 …
An appeal under s 159 of the National Law is by way of a hearing de novo (Kirby v Dental Council of NSW [2020] NSWCA 91 at [117]). Subsection 159(3) provides that 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. On an appeal under s 159, the Tribunal is required to exercise afresh the administrative discretion in s 150, as if it were the Council, upon the evidence before it (Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 ("Ghosh") at [9]).
The Tribunal's task, when hearing an appeal under s 159 of the National Law, is "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" (Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 ("Karimi") at 123; Ghosh at [9], [88], [97]-[98]).
The reference to the "public interest" in s 159 should be understood as a reference to the public interest in the protection of the public's health and safety (Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263; [2022] NSWCA 60 ("Pridgeon") at [68]).
Section 159C of the National Law provides for the Tribunal's powers on an appeal under ss 159 or 159B. It provides that the Tribunal may confirm the decision made by a Council, set aside the decision or set aside the decision and make a new decision (being a decision that the Council could have made).

Hearing

A hearing was held in the Tribunal over two days. Mr Tadros gave evidence and was cross examined at the hearing. Tribunal members also asked Mr Tadros some questions.
Mr Tadros relied upon a statement made by him and a statement by his first cousin as to Mr Tadros's character and the way his first cousin had observed him to behave with women and children. The Tribunal had before it a large amount of documentary material provided by the parties, including copies of emails and text messages between Mr Tadros and the student, the transcript of the criminal proceedings, the District Court judgment on appeal, transcripts of disciplinary hearings and records of disciplinary decisions.

Council's position

The Council did not invite the Tribunal to find that the alleged conduct occurred. It said that the Tribunal's inquiry must focus on whether the Tribunal is satisfied that conditions on Mr Tadros's registration are appropriate for the protection of the health or safety of any person or persons or in the public interest. Mr Mitchell, for the Council, indicated that the Council relied primarily on the protection of the health and safety limb of the test.
The Council's position was that the Tribunal would reach the requisite state of satisfaction for (at least) the following reasons: 1. The alleged conduct is serious, including: 1. inappropriate conduct with a 16-year-old female work experience student; 2. the performance of inappropriate intimate massages of the 16-year-old student under his supervision; 3. the placing of Mr Tadros's penis in the student's hand for about 5 seconds during the massage of her lower back and glutes. 1. The student was found to be truthful during the criminal proceeding; 2. The alleged conduct took place at Mr Tadros's place of work, whilst he was supervising a subordinate. The student was in a position of vulnerability; 3. The alleged conduct reveals a pattern of inappropriate conduct towards the student over a significant portion of the workplace placement; 4. The student's evidence is that Mr Tadros expressed an interest in engaging in inappropriate physical contact with other female patients; 5. Mr Tadros has exhibited a lack of professional judgment and insight on a broad range of matters.
The Council articulated the unacceptable risks as follows: 1. Mr Tadros may engage in inappropriate sexualised communications with female patients; 2. Mr Tadros may perform inappropriate massages on female patients without their consent; 3. Mr Tadros may engage in inappropriate sexualised touching of female patients.

Mr Tadros's position

Mr Tadros denied that he made the sexualised or inappropriate comments attributed to him by the student. He also denied that the alleged sexual touching occurred. Through his counsel, Mr Chatterjee, Mr Tadros made a number of submissions, which are dealt with below.
Mr Tadros sought, in his appeal, the removal of the conditions prohibiting him from treating female patients and children.

Potential unfairness to Mr Tadros from use of material from criminal proceedings

Mr Tadros's counsel, Mr Chatterjee, submitted that it was procedurally unfair to use some of the material from the criminal proceedings in these proceedings. He objected to the admission of part of the transcript from the criminal proceedings into evidence. He submitted that procedural fairness required the exclusion of any evidence adduced in the Local Court that did not go to the elements of the criminal offence with which Mr Tadros was charged.
Mr Chatterjee submitted that there was a potential for unfairness to Mr Tadros occasioned by the use of material from the criminal proceedings where it concerned conduct which was not the subject of the charge but arose in context. He pointed out that forensic decisions may have been made in the criminal proceedings not to challenge certain evidence, for example, because it was irrelevant in those proceedings.
The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (Civil and Administrative Tribunal Act 2013 (NSW), s 38(2)). As the Tribunal observed in Karimi at 123, on an appeal under s 159 of the National Law, the Tribunal "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". There is no procedural unfairness in the Tribunal admitting and considering the transcript of the criminal proceedings, which formed part of Mr Tadros's materials.
The Tribunal has admitted the evidence of the criminal proceedings, as it is relevant to determining risk in these proceedings. The Tribunal accepts that there may be some circumstances in which the student was not cross examined about a matter in the criminal proceedings, but where Mr Tadros may have wished to cross examine her about the matter, had she given evidence in these proceedings. It has taken that into account when deciding how much weight to give to the student's evidence and what use to put that evidence to.

Unacceptable risk

The main question we have to address is whether allowing Mr Tadros to practise, or to practise with certain conditions, involves an unacceptable risk to the health and safety of the public, or otherwise involves an unacceptable risk to the public interest (Ghosh at [103]).
In particular, we have considered whether there is an unacceptable risk that Mr Tadros may engage in inappropriate sexualised communications with female patients, perform inappropriate massages on female patients without their consent or engage in inappropriate sexualised touching of female patients.
We consider that there is an unacceptable risk of all three potential events occurring, for the following reasons.
The evidence given by the student in the criminal proceedings, and the complaints she made following the alleged incident, appear to us to be credible. As the appeal judge observed, the student made a prompt complaint and the immediate complaint evidence is consistent with something untoward occurring. The student's contemporaneous or near-contemporaneous accounts of the conduct, set out above, and her evidence at the criminal hearing, are broadly consistent.
The Magistrate made findings about the student's truthfulness which the appeal judge accepted. It appears unlikely, as the appeal judge commented, that the student invented the conversations she had with Mr Tadros in which he asked her whether she had a boyfriend and whether she had ever touched a penis. Her statements that: 1. Mr Tadros asked her, "Is it stimulating?" during the massage; 2. that he said later that day, "I know that was unprofessional"; 3. that he later asked "was that stimulating" and commented, "I might have to try it on another girl"; and 4. that Mr Tadros asked the student, "Did you think that was my penis?" as she was leaving for the day, all appear to us to be plausible accounts of what may have occurred.
Mr Chatterjee, for Mr Tadros, pointed to what he said were inconsistencies in the student's evidence. The inconsistencies included: 1. The student stating in the witness statement that she had "heard the elastic on the top of [Mr Tadros's] pants connect to his waist" when he went to answer the phone, whereas she said at the criminal hearing that she heard "clothes shuffling" and that she could not "say that it was the elastic snapped because I didn't hear it loud enough"; 2. The student's "later assertions that she in fact held Mr Tadros's penis despite her acceptance in Court that in fact she remained uncertain"; 3. The assertions in the student's witness statement and oral evidence that Mr Tadros had placed his penis in her hand twice, whereas she described only one instance to her friends, her mother, her sister, her principal and deputy principal and in her written notes.
The first of these inconsistencies might better be characterised as the student making appropriate concessions when giving oral evidence. She was consistent in her account of hearing a sound from Mr Tadros's clothes after the phone rang. The differences in her account of the sound of the clothing might be capable of being used to discredit her, but we consider that to be unlikely.
The student's statement that she had held Mr Tadros's penis, followed by a later admission that she could not be certain that it was his penis, is another appropriate concession.
We accept that the inconsistencies in the student's account about how many times Mr Tadros placed his penis in her hand might be capable of casting doubt on her testimony. However, those inconsistencies may also be a function of the fallibility and malleability of human memory, possibly exacerbated as a result of trauma. If so, they would not necessarily cast doubt on the student's main allegations (see Arizabaleta v R [2023] NSWCCA 217 at [101] to [109]).
It is not our role to make a finding as to whether Mr Tadros placed the student's hand on his penis or not. However, the evidence establishes that this is a reasonable possibility. If he did place her hand on his penis, that would be consistent with the conversations the student said that Mr Tadros had with her, asking her whether she thought it was his penis and asking whether it was stimulating. As the Council submits, the evidence is also consistent with the possibility that Mr Tadros placed something else in the student's hand, then suggested to her afterwards that it was a penis. That could be characterised as a form of sexual harassment which may, if repeated, place patients' psychological health at risk.
Another possibility is that the student thought she was feeling a penis, but in fact touched the attachments to the massage gun which Mr Tadros claims to have had on his fingers, as Mr Tadros suggested. Mr Tadros's evidence in the criminal proceedings was that the attachments were soft to touch and felt like skin. That explanation is difficult to reconcile with the student's evidence that Mr Tadros lifted her wrist up (an allegation which he denies). Nevertheless, it is not a possibility which can be excluded.
Mr Tadros denies that any of the alleged conduct or statements occurred. As indicated above, the Magistrate found the student to be a witness of truth. If that is the case, then it would follow that significant parts of Mr Tadros's evidence are likely to be untrue or incorrect.
Mr Tadros's decision to massage the student's glutes showed a lack of professional judgment. It was inappropriate for him to treat a student who was doing work experience with him and who was a child. That was particularly so in circumstances where, on his own account, he told her she needed to take off her shirt and her top was covered only with a towel. It was also inappropriate for him to massage the student's buttocks, particularly in circumstances where he had not undertaken a clinical assessment to establish a clinical reason for the massage of the glutes. He stated in the s 150 hearing that he did not know why the student asked him to massage her glutes. It is possible that the massage was performed without the student's consent, as she claims. Mr Tadros has no written record of any consent being given.
It is not our role, on an appeal under s 159, to make findings of fact where the evidence is disputed. However, the evidence discloses that there is a reasonable possibility that Mr Tadros initiated the massage of the student's glutes, without being requested to do so, as the student alleged.
The circumstance that another student had engaged in a work placement with Mr Tadros without incident does not significantly affect our assessment of the risk he poses. That girl's evidence in the criminal proceedings was that she also received treatments from Mr Tadros, on her knee and acupuncture on her shoulder. There is a question, which we do not need to resolve, as to whether that was appropriate. The fact that Mr Tadros did not sexually touch that girl does not mean that the student's allegations are false.
We have also considered the statement given by Mr Tadros's cousin. This establishes that Mr Tadros is held in high regard by his cousin, that he is an active member of his church and that, when his cousin has observed him interacting with women and children in various settings, he has not acted in a sexually inappropriate way. We have given due weight to this statement but we are not satisfied that it establishes that Mr Tadros did not act as the student alleged, in a situation where there were no witnesses, or that he did not make the statements she attributed to him.
We did not consider Mr Tadros to be an impressive witness. He appeared at times to be giving the evidence he thought would best assist his case. His evidence about the height of the massage table was an example of that. We accept the Council's submission that his account of conducting a massage of the student's glutes because she asked him to do so, without first conducting any clinical assessment, or having any clinical rationale for massaging the student's glutes, is implausible.
There were other examples in the evidence of statements Mr Tadros had made in previous disciplinary hearings which appeared to have been made for pragmatic purposes. Mr Tadros told the Council members at a hearing that he would "definitely look at" videos of the NSW Physiotherapists website about boundaries and how to manage boundary issues. His evidence at the hearing before us was that he had not done that. Later, when asked about this again, he said he could not recall if he had watched the videos. Mr Tadros's apparent failure to do so indicates a lack of insight. His expressed commitment to doing so at a disciplinary hearing in circumstances where he did not follow through is suggestive of a willingness to say what he thinks a disciplinary body wants to hear.

Was the student's account of sexual touching implausible?

It was submitted on Mr Tadros's behalf by Mr Chatterjee that the physical act described by the student was "near impossible to carry out." It was submitted for Mr Tadros in written submissions: "Mr Tadros would, while managing a electrical massage gun with one hand, have to simultaneously and with the remaining hand: 18.1. untie his pants and remove his penis; 18.2. hold [the student's] wrist and lift it off the table; 18.3. place his penis in her hand which would now be several inches above Mr Tadros' hip height; 18.4. with the same hand that is holding her wrist, enclose her fingers around his penis; and 18.5. place his penis back into his pants and re-tie them without [the student] seeing him; all within a matter of seconds."
Mr Tadros's evidence is that he was wearing black Nike track pants on the day in question. His evidence is that they were tie-up pants.
There was conflicting evidence before the Tribunal about the height of the massage table. In Mr Tadros's statement, he said that the massage table was "above my waist level." However, a photograph provided to the Tribunal, which was shown to Mr Tadros in the criminal proceedings, shows Mr Tadros standing behind another massage table. It appears to be just above hip height. Under cross examination, Mr Tadros told the Tribunal that the table in the photograph was not the massage table on which he massaged the student, but said that it was at the height to which he was trying to set the table. When asked about his statement that the massage table was above waist height, Mr Tadros said he was saying it was "at waist height," not above. He accepted that there were times where he lowered the massage table below that height. In re-examination, he told the Tribunal that he recollected the bed (that is, the massage table) being at the belly button line.
Mr Tadros's evidence about the height of the massage table at the hearing appeared to us to be self-serving. As his counsel submitted in written submissions filed before the hearing, it was not in dispute in the criminal proceedings that the massage table upon which the student was lying was at Mr Tadros's hip height. When asked by his counsel in the criminal proceedings whether the height of the massage table in a photo was the same or different to the height of the table when he massaged the student, he responded: "Would have been the same." The photograph Mr Tadros was shown in the criminal proceedings is the same as the photograph which is in evidence before the Tribunal. It shows the table positioned at about Mr Tadros's hip height.
We consider that it is plausible that the massage table was positioned at or just above Mr Tadros's hip height and that Mr Tadros was able to pull his penis out of his track pants without untying them. Having done so, he could, without undue physical difficulty, have taken the student's wrist and put her hand around his penis with his free hand, whilst still using the massage gun with the other hand. Mr Tadros would not necessarily have had to tie and un-tie his track pants.
It is also possible that Mr Tadros put the massage gun down and then put the student's hand around his penis. The student's evidence in the criminal proceedings was that "he stopped using the massage gun, grabbed my wrist again and that's when my hand was like in my - and then my fingers were wrapped like in a circular shape, so that's when I - it was for about five seconds, so it was longer and I did feel a contact with skin from what I felt."
In light of these considerations, the Tribunal does not accept that the act of Mr Tadros placing the student's hand around his penis would have been near impossible to carry out or that it is implausible that the alleged act occurred.

Conclusion as to unacceptable risk

For all of these reasons, but primarily because we consider that there is a reasonable possibility that the student's allegations are true or substantially true, we find that there would be an unacceptable risk to the health and safety of the public if Mr Tadros were permitted to practise without conditions preventing him from treating women or children.
We do not consider that the risk has abated since the alleged incident. There is no evidence that Mr Tadros has accepted that he did anything wrong, other than by making some minor concessions as to the appropriateness of the message in which he called the student "Ching Chong" and as to some other matters. Whilst we understand that Mr Tadros maintains that the alleged events did not occur, as he is entitled to do, that also means that there is no evidence which would permit us to conclude that the risk (which we have found to exist) has significantly diminished.

Urgency

Mr Tadros submitted that there were no longer circumstances of urgency which would warrant the exercise of the power under s 150 of the National Law.
Mr Tadros relied upon a passage from the Court of Appeal's judgment in Pridgeon at [70]. In that paragraph, the Court stated: "Thirdly, the context of s 150 suggests that it should only be invoked as an emergency power where the circumstances are urgent. The Medical Council's submissions specifically acknowledge and accept that the powers in s 150 form part of a selection of emergency powers that were introduced into the National Law. However, that is not this case. This implication arises from the fact that Pt 8 Div 3 provides for the primary mechanism for regulating the profession by way of particularised complaints, including an oral hearing if sought, to be dealt with by the Tribunal, not the Medical Council, if suspension is sought. That construction is reinforced by the Explanatory Memorandum and the second reading speech. There was no urgency in this matter at any time before or during the Tribunal hearing."
Mr Chatterjee, for Mr Tadros, submitted that the circumstances were no longer urgent, because the charges against Mr Tadros had been determined. He submitted that it was "directly relevant to note that the apparent disciplinary proceedings against Mr Tadros remain at a formative stage".
The criminal charges were not the only circumstance creating urgency. The urgent need for the imposition of conditions was brought about by the allegations that Mr Tadros had sexually touched a young girl. That gave rise to a risk that, if the allegations were true, he may repeat the conduct or engage in similar conduct with another girl or woman and could do so at any time.
Mr Chatterjee's submissions that there were no longer circumstances of urgency made some reference to the long duration of the HCCC investigation. Section 150D(1) of the National Law requires a council, after taking action under s 150, to refer the matter to the HCCC for investigation. Pursuant to s 150D(4), the Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation and if it considers it appropriate to do so, refer the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered.
The Council referred the complaint about Mr Tadros's alleged conduct to the HCCC in or about May 2021. It was not in dispute that, at the time of the hearing, the Council had not yet completed its investigation. No notice had been given to Mr Tadros under s 40 of the Health Care Complaints Act 1993 (NSW), a precondition to the institution of disciplinary proceedings.
Mr Chatterjee submitted that where the Tribunal is being invited to exercise an emergency power, it will have to take into account how long the state of affairs imposed by conditions can continue. In this case, he said, it was not clear whether a complaint would ever be brought by the HCCC and, if brought, on what aspects of Mr Tadros's alleged conduct.
Mr Chatterjee submitted, orally, that the Tribunal was required to make a finding that the circumstances were urgent and that the use of the emergency power was warranted. In explaining what the Court in Pridgeon meant by "urgent," he submitted that "the protection of the public requires the use of an emergency power for a finite amount of time while the formal processes catch up to deal with it. I think that is the most sensible meaning of 'urgency' in the sense of the Act and the Court of Appeal's observations in Pridgeon."
Section 150(1) of the National Law mandates the taking of action by a Council where a Council reaches the requisite state of satisfaction. When the Tribunal is hearing an appeal under s 159 of the National Law, it has been said that it stands in the Council's shoes (see Medical Council of New South Wales v Smithson [2021] NSWCA 53 at [20]).
In our view, if the Tribunal is satisfied that it is appropriate to impose conditions on a practitioner's registration "for the protection of the health or safety of any person or persons," s 150(1) of the National Law requires the Tribunal to do so. We accept that, when determining whether the imposition of conditions under s 150 is appropriate, it is relevant to have regard to the urgency or otherwise of the circumstances. However, we do not accept that there is a "finite amount of time" for which s 150 may be used because, as discussed below, a situation of urgency may continue for some time. We accept the Council's submission that the length of an HCCC examination is not the relevant question.
Mr Mitchell, for the Council, submitted that when referring to urgency in Pridgeon, the Court of Appeal was directing the issue back to the statutory task under s 150. That is, the Court was referring to the question of whether the practitioner poses an unacceptable risk to the health and safety of the public or it is otherwise in public interest to take action. He submitted that the fact of a delay between the practitioner's conduct and that conduct coming before the Council did not mean that there were no circumstances of urgency.
We accept that there may be urgency notwithstanding a delay between the conduct and the Council's awareness of it. An allegation of historical sexual abuse by a practitioner, for example, made years after the alleged event, could create a situation of urgency, because action may need be taken immediately to protect the public from an ongoing risk. There is no logical difference between that situation and the case of an allegation of sexual assault about which the Council was notified almost immediately and of which it has been aware for some time. The urgency is not created by the Council's awareness or lack of awareness of an allegation. The urgency depends upon the imminence of the risk to (relevantly, in this case) the health or safety of any person.
We are satisfied that the circumstances of urgency, which pertained at the original s 150 hearing, have continued to the present. The evidence discloses an imminent risk to the health and safety of female patients of Mr Tadros, and children who are his patients, if conditions are not imposed on his registration. That is because there is a reasonable possibility that he engaged in the conduct alleged by the student, and there is a risk that he could engage in similar conduct in the future (including in the near future) if not prohibited from treating women and children.
Accordingly, we have decided to confirm the Council's decision to impose the conditions it imposed, including the conditions prohibiting Mr Tadros from treating women and children.

Orders

For the reasons given above, we make the following orders: 1. The decision of the respondent under s 150 of the Health Practitioner Regulation National Law (NSW) is confirmed. 2. The appeal is dismissed.

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: 20 May 2024

(Civil and Administrative Tribunal Act 2013(NSW)

(2020) 102 NSWLR 303

(2022) 108 NSWLR 263

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