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NSW Crest

Medical Tribunal
New South Wales

Medium Neutral Citation:
Health Care Complaints Commission v Rahman [2013] NSWMT 6
Hearing dates:
22/04/2013
Decision date:
22 April 2013
Jurisdiction:
Civil
Before:
Elkaim SC DCJ
Dr E Kok
Dr M Giuffrida
Ms C Berglund (PhD)
Decision:

See paragraph 43

Catchwords:
Serious criminal conduct, deregistration
Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Health Practitioner Regulation National Law (NSW) (No 86a)
Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336
General Medical Council v Spackman [1943] AC 627
Category:
Principal judgment
Parties:
Health Care Complaints Commission (Applicant)
Mr Mohammed Mofizur Rahman (Respondent)
Representation:
P Dwyer (Applicant)
In Person (Respondent)
Health Care Complaints Commission (Applicant)
In Person (Respondent)
File Number(s):
40024/12
Publication restriction:
Suppression order in relation to the identification of the patients

EX TEMPORE JUDGMENT

1DEPUTY CHAIRPERSON: The proceedings before the Tribunal are brought by the Health Care Complaints Commission ("the HCCC"). The HCCC seeks resolution of four complaints.

2The respondent has consented to the Tribunal dealing with both the establishment of the complaints and, if proved, the imposition of protective orders.

3The Tribunal is acutely aware of the seriousness of the allegations put by the HCCC and the long-reaching effect of the orders open to it. Accordingly it has approached the evidence on the basis of the standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336.

Some background

4The respondent was born in 1967 in Bangladesh. He graduated with the degree of MB.BS from Chittagong Medical College in Bangladesh in 1992. He then worked in various capacities within the medical profession in Bangladesh. In June of 1994 he began work in a government hospital in Zambia for about six months. He worked from March to December 1999 in a regional hospital in Natal in South Africa.

5In January of 1996 the respondent commenced work as a general practitioner in Durban in South Africa and he remained in this capacity for about four years.

6The respondent was first registered in Australia with the Queensland Medical Board in 2001. He became registered in New South Wales in May 2009. In the same year he became a member of the Royal Australian College of General Practitioners.

7In August 2009 the respondent commenced working as a general practitioner at the Dapto Medical Centre. He remained at the centre until he was charged with the criminal offences that are the subject of the complaints.

8On 13 March 2010 the respondent was charged with two offences under s61M of the Crimes Act 1900. The charges concerned the aggravated sexual assault of two female patients. As a result of these charges a s66 hearing was held by the Medical Board on 15 April 2010. At this stage the respondent had not been found guilty of any of the offences and, as was his entitlement, he refused to answer any questions about the allegations.

9The original two charges were significantly expanded to include allegations concerning seventeen female patients. On 6 April 2011 the respondent pleaded guilty to twenty-two counts of indecent assault under s61L of the Crimes Act and one allegation of aggravated indecent assault under s61M. The respondent was convicted of the offences and committed for sentence to the District Court of New South Wales. The respondent's registration was suspended on 12 May 2011.

10The respondent appeared for sentence on 28 July 2011 when, in addition to the charges of which he had been convicted, a further three allegations were admitted by the respondent and dealt with under s33 of the Crimes (Sentencing Procedure) Act 1999.

11The hearing in the District Court was before Judge Cogswell SC. The cumulative result of all of the sentences imposed by his Honour was a term of imprisonment of nine years with a non-parole period of six years. The term of imprisonment commenced on 22 July 2011. Judge Cogswell's reasons for sentence are in Exhibit C.

12As at the date of this Tribunal's hearing the respondent remains in prison and has appeared pursuant to orders made by the Chairperson of the Medical Tribunal on 6 December 2012.

13The respondent, before the Tribunal, admitted the complaints. This followed an explanation of the complaints to him by both the Tribunal and by counsel for the HCCC. The Tribunal is grateful to counsel for her assistance in ensuring the respondent understood the proceedings.

The complaints

14Complaint 1 is an assertion that the respondent has been convicted of a number of criminal offences. The particulars outline the twenty-three offences to which the respondent pleaded guilty on 28 July 2011.

15Complaint 2 asserts that the respondent is guilty of unsatisfactory professional conduct under s139B of the Health Practitioner Regulation National Law (NSW) ("the National Law") relying on the offences set out in Complaint 1 together with the further offences taken into account on sentencing.

16Complaint 3 asserts that the respondent is guilty of professional misconduct under s139E of the National Law, relying on all of the offences set out in Complaint 2.

17Complaint 4 alleges that practitioner "is not a suitable person to hold registration in the practitioner's profession", again based on the admitted offences.

18Annexure A to the Notice of Complaint is a Statement of Agreed Facts relied upon by the Director of Public Prosecutions in the criminal proceedings against the respondent. The statement has been signed by the respondent and is to be taken as indicating his admission of the facts alleged therein.

19All of the seventeen victims are female. They were all patients of the Dapto Medical Centre. Their ages range from fourteen to thirty-seven. While most could be described as young women there were two, respectively aged fourteen and sixteen, who might be described as children. They were certainly no more than teenagers, as were three other victims, respectively aged seventeen, eighteen and nineteen.

20It is not necessary to recount the details of the offences. They are apparent in the agreed facts. Suffice to say that they involve the interference with the breasts and genitalia of the patients, usually under the most spurious excuses for the need for examination. The agreed facts also contain an acknowledgement by the respondent of the absence of any need for his actions in the proper treatment of the patients.

21The conduct can only be described as extremely serious and the effect on the victims as likely to be traumatic. This is emphasised in the various victim statements that can be found in the HCCC's tendered material.

22The respondent's admissions render the facts alleged in the complaints easily proven. They also, without more, almost automatically bespeak both unsatisfactory professional conduct (Complaint 2) and professional misconduct (Complaint 3). If any more need be said in relation to the establishment of the allegations concerning Complaints 2 and 3 it is that the offences committed by the respondent all display the highest degree of disregard for the care and welfare of the patients.

23The facts disclose the most fundamental interference with the rights of all of the women involved. They involve taking advantage of patients as young as fourteen and the absolute breach of trust that the medical profession relies upon in the competent and ethical treatment of patients.

24The Tribunal is satisfied that all of the allegations in the complaints have been established to the necessary standard. As stated above, the respondent admitted the complaints.

Protective orders

25The Tribunal accepts that its role is not to punish. This was the task of Judge Cogswell in the District Court. The Tribunal's task is to make protective orders, protective of both the public and the medical profession. The following statement of Viscount Simon LC in General Medical Council v Spackman [1943] AC 627 is an appropriate starting point:

"The high reputation of the medical profession as a whole depends in no small measure on excluding from it those whose professional misconduct makes them unworthy to belong to it, and the confidence which the public are accustomed to put in the family doctor is intimately connected with the assurance that those who practise the art of medicine are, in all relations with their patients, individuals of the highest honour".

26The conduct was over a prolonged a period (11 September 2009 to 12 March 2010) during which the respondent must have known that his actions were both medically and ethically wrong as well unlawful.

27Often more than one assault was committed on the same patient with the patient sometimes being induced to return on a false premise, such as the need for an unnecessary follow-up breast examination.

28Some of the patients were already vulnerable at the time of the assaults, for example Patients C, E and H.

29Other patients were subjected to acts of physical violence. These included Patients I and J. In respect of Patient I it is also noted that the first examination took place in the presence of the patient's foster children.

30The continuing pattern of offending behaviour precludes any suggestion of an error being followed by remorse and insight. Had the respondent not been reported to the police his conduct may well have continued.

31The respondent provided four references (Exhibit 1). They all give him considerable support both as to his character and where relevant to his competence as a doctor. None of them, however, deals specifically with the offences involved. They all refer to a period prior to the commission of the offences. Although the respondent said they were aware of the offences, the Tribunal does not find the references particularly useful in deciding protective orders.

32The respondent gave oral evidence and was cross-examined. He described his background in the medical profession and his work in Queensland. He said that he came to the city because he wanted to ensure a better education for his three children. He described his involvement in the offences as more of a demonstration of his intent to reach a good rapport with the patients than an assault upon them. Nevertheless he said, and often repeated, that he had signed the Agreed Statement of Facts and "took responsibility".

33The Tribunal was unimpressed with the respondent's assertions of a lack of improper intent and found the respondent to be avoiding the serious nature of the offences to which he had pleaded guilty and of which he accepted the factual content.

34There was a clear lack of insight on the respondent's part. At one stage he even denied that he was a sexual offender. He shows little insight into the extreme departure from medical standards of his so called 'examinations', much less their criminal nature.

35The respondent asked the Tribunal to allow him to practise upon his release from prison. The Tribunal thinks this suggestion is both impractical and, in any event, entirely contrary to the protection of the public. It is impractical because the respondent would not have the necessary skills to rejoin the medical profession after so many years away from it without the opportunity to maintain his skills.

36The Tribunal is far from satisfied that there has been any indication of a reformation of the defects of character that were evident in the offences.

37The respondent's suggestion is contrary to the public interest, because the respondent's apparent lack of insight into his wrongdoing coupled with his rejection today of matters clearly accepted by him (in the agreed facts) indicates a clear risk of re-offending.

38Nothing placed before the Tribunal would give it any confidence that the respondent is able to return to practise even under the sternest conditions.

39The Tribunal is firmly of the view that the only option open to it, to ensure the protection of the public and of the medical profession, is that the respondent be deregistered. His conduct was so serious that cancellation of his registration is an inevitable result.

40Section 149C(7) of the National Law provides that "an order may also provide that an application for review of the order under Division 8 may not be made until after a specified time". The respondent still has some four years of his sentence to run. Before applying for a review the respondent will need to take steps to refresh his medical knowledge and take part in at least an ethics course. The Tribunal is of the view that the respondent should not be able to apply for re-registration for eight years from today.

41There was some confusion about the respondent's current registration status; was he suspended or already deregistered. The Tribunal's orders reflect both possibilities.

42The respondent said that he could see no reason why he should pay the costs of these proceedings. The proceedings are a result of his actions and it must follow that he pay the costs.

43The Tribunal makes the following orders:

(a)A direction that the respondent's registration be cancelled;

(b)Alternatively, if appropriate, a direction that subject to Order C below the respondent be disqualified from applying for re-registration;

(c)The respondent may not make an application for review of his registration for a period of eight years from the date of these orders;

(d)The respondent is to pay the costs of these proceedings;

(e)The appropriate review body is the Medical Tribunal of New South Wales.

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Amendments

26 April 2013 - "Not guilty" changed to guilty
Amended paragraphs: 33

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: 26 April 2013