Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Health Care Complaints Commission v Dr Baez (No 2) [2014] NSWCATOD 26
• Hearing dates: 28 March 2014
• Decision date: 28 March 2014
• Jurisdiction: Occupational Division
• Before: Colefax SC DCJ; Dr M Giuffrida; Ms J Houen; Dr M Cox

Decision

1. Note: that if Dr Baez were still registered as a medical practitioner, the tribunal would have cancelled his registration.

2. Order: that Dr Baez be disqualified from being registered as a medical practitioner for a period of five years from today.

3. Direct: the Medical Board of Australia to record in the national register kept by the board the fact that this tribunal would have cancelled Dr Baez's registration.

• Catchwords: Sexual misconduct; professional misconduct; protective orders
• Legislation Cited: Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)
• Category: Principal judgment
• Parties: Health Care Complaints Commission (Complainant); Dr Fabian Baez (Respondent)
• Representation: Ms Stern SC (Complainant); Mr Lynch (Respondent); Health Care Complaints Commission (Complainant); Dibbs Barker (Respondent)
• File Number(s): 40025/12
• Publication restriction: Suppression order re names of patients A, B, C and D

ex tempore REASONS FOR DECISION - Second stage hearing; see transcript p 322

1 DEPUTY CHAIRPERSON: On 3 Feb 2014 we found the complaints made in relation to Patients A, C & D proved - having earlier decided to defer undertaking any hearing as to appropriate protective orders until we decided whether any of the complaints were made out.

2 These following reasons for decision should therefore be read with the earlier factual findings regarding participants A, C & D (see Health Care Complaints Commission v Dr Baez [2014] NSWCATOD 3)

3 In finding each of those 3 complaints to be made out, we also found that the complaints as proved constituted professional misconduct. The Tribunal has today therefore embarked on the second stage of the hearing, viz the protective and costs orders.

4 No further evidence was placed before the Tribunal other than an affidavit from the doctor's solicitor which was principally, if not exclusively, directed to the question of costs.

5 Specifically, on the question of what protective orders should be made, the doctor again has not given evidence, nor appeared before the Tribunal. No explanation again is offered for the doctor's absence from the witness box or the hearing room. Moreover no evidence from any other person has been advanced on behalf of the doctor, by way of testimonial or otherwise. The evidence therefore is as was found in the decision of 3 February 2014.

6 In determining the appropriate protective orders, the Tribunal is mindful that its responsibility is not to be punitive but to protect the public. That being said, the protection of the public includes discouraging others from the type of behaviour undertaken by Dr Baez. Particularly with respect to patients A and C, Dr Baez's conduct was disgraceful. In relation to Patient A, he has displayed sexual predatory behaviour to a vulnerable young woman, vulnerable not only because of her age, but vulnerable in the particular instance in which she found herself, viz substantially unclothed and isolated.

7 The conduct with respect to Patient C was even more disgraceful. As our primary reasons will show in para 90 and following, Patient C had been a long term patient of Dr Baez who was very much psychiatrically compromised and to the knowledge of Dr Baez.

8 Not only are the objective facts concerning patients A, C and D serious, the doctor's conduct in and about this hearing raises very significant concerns. We have found that in the interview with the investigative officer he lied. We have found that in relation to statements made concerning Patient A he made a dishonest pre-emptive strike.

9 In addition to deliberate untruths, there is no evidence that the doctor has any insight at all into the seriousness of the misconduct which he inflicted upon patients A, C and D. There is not one word of remorse.

10 It has been submitted today by Mr Lynch of counsel who now appears for the doctor that it may be possible in a short period of time that by some form of psychiatric intervention the doctor will be in a position to reapply. That submission is no more than speculation without the slightest factual foundation for it. What the tribunal is left with on the evidence is a doctor who, over a prolonged period of time, engaged in conduct which not only was professional misconduct in relation to patients A, C and D but is, as we have said, disgraceful exploitation, at least in relation to Patients A and C, of vulnerable patients.

11 The protection of the community of New South Wales requires that the public be protected from Dr Baez; and moreover, that other doctors understand that the exploitation for sexual gratification of young and otherwise vulnerable patients will be met with stern protective orders.

12 This tribunal has no hesitation in saying that there is absolutely nothing which suggests to us on the available evidence that anything less than a disqualification period of five years would be appropriate.

13 The orders we make at this stage of the proceedings are as follows:

(1) Note: that if Dr Baez were still registered as a medical practitioner, the tribunal would have cancelled his registration.

(2) Order: that Dr Baez be disqualified from being registered as a medical practitioner for a period of five years from today.

(3) Direct: the Medical Board of Australia to record in the national register kept by the board the fact that this tribunal would have cancelled Dr Baez's registration.

14 Insofar as the appropriate costs order is concerned, we note that the parties are to provide further written submissions in accordance with a timetable which we have set today.

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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

Decision last updated: 02 April 2014