Bassel Abdul Rahman v Health Care Complaints Commission of NSW
[2021] NSWCA 127
•25 June 2021
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Bassel Abdul Rahman v Health Care Complaints Commission of NSW [2021] NSWCA 127 Hearing dates: Monday 21 June 2021 Date of orders: Friday 25 June 2021 Decision date: 25 June 2021 Before: White JA Decision: See [12].
Catchwords: Application for stay of tribunal’s orders cancelling medical registration or for restorative interlocutory order — no question of principle
Cases Cited: Attia v Health Care Complaints Commission [2017] NSWSC 178
Category: Principal judgment Parties: Bassel Abdul Rahman (Applicant)
Health Care Complaints Commission of NSW (Respondent)Representation: Counsel:
Solicitors:
JR Young (Applicant)
JS Emmett SC with K Sharma (Respondent)
G&S Law Group (Applicant)
Health Care Complaints Commission of NSW (Respondent)
Clayton Utz (AHPRA)
File Number(s): 2021/167601 Decision under appeal
- Court or tribunal:
- NSW Civil and Administrative Tribunal
- Date of Decision:
- Stage 1 Decision – 11 March 2021
Stage 2 Decision – 18 May 2021- Before:
- Cowdroy AO QC ADCJ, Principal Member
Associate Professor M Hooper, Senior Member
J Fogarty, Senior Member
J Barker, General Member- File Number(s):
- 2019/293287
Judgment
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The applicant, Dr Rahman, has appealed from orders made by the NSW Civil and Administrative Tribunal of 18 May 2021 that:
“1. The registration of the respondent as a medical practitioner is cancelled with effect from seven days after the date of these orders;
2. Pursuant to section 149C(7) of the Health Practitioner Regulation National Law (NSW), an application for review of these orders may not to be made (sic) during the period of 12 months commencing on the date of these orders;
3. The respondent is to pay the costs of the applicant as agreed or assessed in default of agreement.”
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By notice of motion filed on 10 June 2021 Dr Rahman sought orders removing his name from the list of cancelled practitioners kept by the Australian Health Practitioners Regulation Agency and restoring his registration as a medical practitioner pending further order or determination of the appeal from the Tribunal’s decision. He also sought an order staying the “Stage 1 and Stage 2 Decisions of the Tribunal” made on 11 March 2021 and 18 May 2021 pending the outcome of his appeal or until further order.
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At the hearing of Dr Rahman’s application on 21 June 2021 Dr Rahman read an affidavit of a Brett Hudson who is the practice manager at the Miranda Medical Centre where Dr Rahman had been working prior to the cancellation of his registration. Mr Hudson deposed:
“5. The Practice is currently the busiest it has ever been because it has a Covid testing facility on site which is led by our General Practitioners. Patients that attend the practice with respiratory or other symptoms of Covid 19 are consulted, tested and treated on site.
6. To the best of my knowledge, the Practice is the only Medical Practice in the Sutherland Shire that accepts consultations from patients with respiratory symptoms, instead of just referring them to a Covid-19 testing facility.
7. Since about 22 March 2021, in addition to providing Covid-19 testing, the Practice has also become a mass Covid-19 Vaccination site by administering the AstraZeneca Covid Vaccine. The Practice will also become one of the first General Practices in NSW to receive the Pfizer Vaccine on 5 July 2021.
8. At present, the Practice vaccinates more than 1000 patients per week through 22 General Practitioners and 8 Registered Nurses who have had to work extended hours to ensure that every patient who wants to receive the vaccine has access to it.
9. Because of the current demand for Covid-19 testing and vaccines, the Practice is in dire need for all the doctors and nurses at the practice to be working in order to care for the community's needs.”
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The appeal is listed for hearing on 23 August 2021.
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The respondent accepted that it was open to the court to make a restorative interlocutory order of the kind described by McCallum J (as her Honour then was) in Attia v Health Care Complaints Commission [2017] NSWSC 178.
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During the hearing it appeared that the parties had agreed on the orders that ought to be made on Dr Rahman’s application, having regard to the public interest identified in Mr Hudson’s affidavit that, pending the determination of the appeal or further order, Dr Rahman ought to be able to provide at least Covid-19 vaccinations. A transcript of the hearing is not yet available to me. My recollection is that no express reference was made to his participating in Covid-19 testing or consultations with patients for that purpose, as distinct from consultations with patients for the purposes of vaccinations.
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Both parties asked for the opportunity to formulate the terms of appropriate orders. The orders have ultimately been agreed save in one respect. In addition to the conditions imposed by the Medical Council on 30 October 2015, Dr Rahman agreed to a further condition to which his registration should be subject, namely:
“23. To practise only by
(a) administering a Covid-19 vaccine to patients; and
(b) providing services ancillary to the administration of Covid-19 vaccines, including consultation of patients who present as close contacts or with symptoms and consultation prior to the administration of a Covid-19 vaccine and monitoring patients following administration of a Covid-19 vaccine.”
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The respondent does not consent to the inclusion in paragraph (b) of the words “… consultation of patients who present as close contacts or with symptoms and …”.
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The respondent submits that the inclusion of those words is a significant extension of the position which was the subject of exchange before the court at the hearing of the motion. It was said to enliven the important countervailing public interest the community has in ensuring that unsuitable medical practitioners do not practise beyond the strict necessity to which the current exceptional circumstances give rise, namely, the Covid-19 pandemic. The respondent maintained its objection to an interim regime that permitted Dr Rahman to practise in any other respect than by administering vaccines and consulting with patients for that purpose.
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Nothing in the complaints made by the respondent which founded the basis for the orders of the Tribunal would touch upon Dr Rahman’s suitability to perform the limited medical services the subject of the appellant’s proposed condition 23 pending the determination of his appeal.
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Given that the Miranda Medical Centre provides Covid-19 testing facilities as well as vaccinations, it is equally important that Dr Rahman be permitted, pending determination of his appeal, to provide the services of the kind described in the words to which the respondent objects, as to his being permitted to provide vaccinations. I am satisfied that grounds 7 and 8 of the notice of appeal are reasonably arguable (it is unnecessary to express any view on the other grounds) and I consider that there is a strong public interest in Dr Rahman’s being able to provide such services pending the determination of the appeal or until further order.
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For these reasons I make orders in the form proposed by the parties with the inclusion of the additional words proposed by the appellant.
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Costs of the application are to be costs in the appeal.
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Decision last updated: 25 June 2021
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