New South Wales
Medical Tribunal
CITATION: Re Mansoor Haider Zaidi [2006] NSWMT 6 TRIBUNAL: Medical Tribunal PARTIES: Mansoor Haider Zaidi
Health Care Complaints CommissionFILE NUMBER(S): 40040 of 2005 CORAM: Rein, SC DCJ - Toh, Dr S - Mares, Dr S - Smith, Mr RJ CATCHWORDS: Application for re-registration - refusal to admit past misconduct (indecent assaults on patients) - other issues relevant to good character - consideration of principles applicable to reinstatement to the register LEGISLATION CITED: Bankruptcy Act 1966
Medical Practice Act 1992, s 92, Sch 2 cl 6
Medical Practitioners ActCASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336;
Dawson v Law Society of New South Wales (CA(NSW), 21/12/1989, unreported);
HCCC v Hatoum [2004] NSWCA 30;
HCCC v Litchfield (1997) 41 NSWLR 630;
Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 ;
Raybos Australia Pty Ltd v Scitec Corporation Pty Ltd (unreported, NSWCA, Kirby P, Samuels and Mahoney JJA, 16/6/1986, BC8601339);
Rohatgi v Medical Tribunal (unreported, NSWCA, 20/04/1994, BC9402485);
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3;
Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448;
Zaidi v HCCC (1998) 44 NSWLR 82DATES OF HEARING: 15-18 May 2006 DATE OF JUDGMENT: 14 September 2006 LEGAL REPRESENTATIVES: Applicant in person
Mr P Strickland SC (HCCC)ORDERS: 1. The Application pursuant to s 92 of the Medical Practice Act 1992 be dismissed; 2. The Applicant to pay the costs of the HCCC as agreed or assessed, subject to the provisions of the Bankruptcy Act 1966; 3. The Applicant not be permitted to apply for re-registration for a period of 7 years.
JUDGMENT:
Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of the names of the complainants.
ORDERS
1. The Application pursuant to s 92 of the Medical Practice Act 1992 be dismissed.
2. The Applicant to pay the costs of the HCCC as agreed or assessed, subject to the provisions of the Bankruptcy Act 1966 .
3. The Applicant not be permitted to apply for re-registration for a period of 7 years.
1 The Tribunal has been constituted to hear an application pursuant to s 92 of the Medical Practice Act 1992 (“the Act”) by Mr Mansoor Haider Zaidi. Mr Zaidi was de-registered as a medical practitioner in 1990 following a hearing before the Tribunal and he has in 1994, 1996 and 2002 had his applications for re-registration refused.
2 Whilst his application pursuant to s 92 is an application that he be reinstated to the register of medical practitioners (on conditions) based on his present asserted fitness to practise medicine, it appeared that Mr Zaidi was, by the written material which he sought to tender and the oral evidence he foreshadowed wishing to call, seeking to have the Tribunal review the decisions that were made by earlier differently constituted Tribunals.
3 Mr P Strickland SC appears for the Health Care Complaints Commission (“HCCC”) and Mr Zaidi appears for himself. It was agreed that the question of whether Mr Zaidi should be permitted to challenge the decisions of earlier Tribunals should be determined first, and after hearing argument from both Mr Zaidi and Mr Strickland, the Tribunal retired to consider its position. The Tribunal, for reasons delivered orally on 15 May 2006 determined that the Tribunal would not review the decisions of earlier Tribunals, there being no significant fresh evidence within the meaning of s 94A of the Act.
4 At the end of the hearing on 18 May, we heard oral submissions and received written submissions from Mr Strickland. Mr Zaidi indicated that he would prefer to put his submissions in writing, which he did in conformity with the timetable laid down. The submissions are not dated but were received on or before 8 June 2006 and we shall refer to them as “ZS”. The material submitted did arguably extend beyond submissions. Mr Strickland provided the Tribunal with his submissions in reply within the specified time, and asked that the Tribunal disregard such of ZS as went beyond submissions.
5 We set out the history of this matter taken largely from the 2002 Tribunal decision.
Background of the Applicant
6 Mr Zaidi was born in India on 10 December 1948. He is thus 58 years of age. Having completed his secondary education he attended Aligarh Muslim University near Delhi and graduated Bachelor of Science in 1967 and Bachelor of Medicine and Bachelor of Surgery in 1972.
7 He married in February 1972 and after undertaking a six month internship in 1973 he and his wife emigrated from India to Australia.
8 Mr Zaidi was granted conditional registration in New South Wales on 12 October 1973 restricted to working in hospitals under supervision. He then worked as a resident medical officer at Griffith and Goulburn Base Hospitals and became entitled to practise medicine in New South Wales as a medical officer at an approved hospital without supervision on 15 November 1974. Thereafter he worked as a resident medical officer at Liverpool District Hospital for three or four months.
9 In 1975 he commenced to study for a Diploma of Public Health and Tropical Medicine at the University of Sydney but stopped after about four or five months. He then worked in Western Suburbs Hospital for six months before commencing in general practice under the supervision of Dr Zamans. After some months of such supervised general practice he obtained unconditional registration on 5 May 1976.
10 Thereafter he acquired a surgery at Mount Druitt and practised as a general practitioner in sole practice until he was de-registered in 1990.
Criminal Charges
11 On 14 December 1988 Mr Zaidi was charged with sexual and/or indecent assault on five patients G, S, D, N and J, and on 9 September 1989 he was further charged with offences of sexual and indecent assault on A, who was another patient. Subsequently proceedings did not continue with respect to the alleged offences against patient J and on 1 February 1990 he was committed for trial in the District Court on 14 charges of sexual or indecent assault, being two charges in relation to patient G, four in relation to patient S, two in relation to patient D, four in relation to patient N, and two in relation to patient A.
12 All of the charges were in relation to either alleged sexual or indecent assaults by digital or other object penetration per vagina and/or rectum and were alleged to have been committed against female patients during the period 21 December 1986 to 28 April 1988 in the course of purporting to conduct examinations of those female patients in his surgery.
13 Mr Zaidi stood trial in the District Court on 8 October 1990. That trial concluded on 25 October 1990 with the jury returning verdicts of not guilty on 11 of the 14 counts and guilty on three counts.
14 The three charges of which he was found guilty consisted of two of the four charges in relation to patient N and one of the two charges in relation to patient A.
15 He was sentenced on 4 February 1991 to three years penal servitude to be served by way of periodic detention. He appealed against the convictions and sentences.
16 Before the commencement of his trial Mr Zaidi had been charged with further sexual offences allegedly committed against another patient Ms Da on 24 March 1990 (ie. whilst he was on bail in relation to the other charges) and on 19 April 1991 he was committed for trial in relation to the charges relating to Ms Da.
17 On 22 November 1991 the Court of Criminal Appeal set aside Mr Zaidi’s convictions in relation to the offences concerning patients N and A and ordered new trials.
18 A new trial was conducted in relation to the charges concerning patient A and Mr Zaidi was found not guilty on 10 November 1992.
19 Subsequently on 4 February 1993 the Director of Public Prosecutions decided not to proceed with the trial in relation to the offences allegedly committed against Ms Da because she did not wish to give evidence at such trial and on 30 March 1993 the Director decided not to proceed with the re-trial of the offences allegedly committed against patient N as that patient also had requested that she not be required to give evidence at a second trial.
20 Thus in the final result Mr Zaidi was found not guilty, or no bills were entered, in relation to all the criminal charges which were laid against him.
Disciplinary Proceedings
21 On 12 April 1990 (ie. after he had been charged with the criminal offences in relation to patients G, S, D, J and A), the Medical Board imposed as a condition of Mr Zaidi’s medical registration that, except in an emergency when Dr Zaidi had no other reasonable choice, he not see or treat any female patient except in the continuous presence of a person acceptable to the Board. Mr Zaidi appealed against the imposition of that condition to the Medical Tribunal, which on 7 August 1990 dismissed the appeal. In the course of dismissing the appeal the Medical Tribunal found that Mr Zaidi had broken the condition imposed on him by the Medical Board on a number of occasions.
22 On 12 and 13 December 1990 a differently constituted Medical Tribunal conducted an inquiry into a complaint against Mr Zaidi concerning his conduct in relation to patients N, A and Da and also his alleged breach of the conditions on his practising medicine imposed by the Medical Board.
23 The complaint alleged was of professional misconduct and the substance of such complaint was:
(a) that on 21 December 1986 Mr Zaidi sexually assaulted patient A in the course of conducting a medical examination of her in his surgery;
(b) that on 28 April 1988 Mr Zaidi sexually assaulted patient N in the course of conducting a medical examination of her in his surgery;
(c) that on 24 March 1990 Mr Zaidi sexually assaulted patient Da in the course of conducting a medical examination of her in his surgery; and
(d) that between 23 April and 5 August 1990 Mr Zaidi treated female patients alone in his surgery in breach of a condition imposed upon his registration pursuant to s 23B(3) of the Medical Practitioners Act namely “that except in the case of an emergency, when Dr Zaidi has no other reasonable choice, he shall in the course of his practice not see or treat any female except in the continuous presence of a person acceptable to the New South Wales Medical Board."
24 As set out in that Tribunal’s Reasons for Decision (pp 4-7 and 9-11 of Exhibit “1” Tab 3) the basic facts alleged in the evidence adduced before the Tribunal in relation to the complaint were:
(a) that on 21 December 1986 patient A who was 19 years old consulted the applicant in his surgery for symptoms of a sore throat and a runny nose. After examining her throat and asking whether she was a virgin, Mr Zaidi asked her to lie on the examination table. He then pulled down part of her clothing, palpated her pelvic area and inserted his finger in her anus. He also commenced to rub her clitoris. Such conduct continued for several minutes. After she left the surgery she was driven home and immediately on seeing her mother burst into tears and recounted what had happened. Her mother took patient A to see the family general medical practitioner and later that day on his advice a letter written by the mother and signed by patient A was sent to the Complaints Unit of the Department of Health;
(b) that on 28 April 1988 patient N who was aged 28 years and was a married woman with two children consulted Mr Zaidi in his surgery complaining of headaches and pains in her stomach. She also told him that she was getting a green discharge from time to time for which she was to see her gynaecologist on 9 May 1988. After taking her blood pressure Mr Zaidi told her to lie down on the examination table and pull her top up and her skirt down. After examining her stomach with a stethoscope he lifted her top up over her brassiere and then her petticoat and brassiere over her breasts to her neck. He then cupped his hand and squeezed her breasts several times. He then commenced a vaginal examination by inserting two fingers into patient N's vagina. Thereafter he told patient N to lie on her side, removed her pants, inserted two fingers into her vagina, moved them in and out and commenced rubbing her clitoris whilst his fingers were penetrating her vagina. He continued doing this for several minutes going faster and faster. Patient N complained it was painful but Mr Zaidi persisted. He pressed his body against her thigh and patient N could feel his erect penis pushing into her leg. At this time Mr Zaidi was holding her down with one hand on her thigh and despite her complaining of pain he continued in his conduct and was rocking her from side to side. Upon leaving the surgery the patient went to Mt Druitt police station, made a complaint and signed a statement;
(d) that on 12 April 1990 the Medical Board imposed the relevant condition and by letter dated 15 June 1990 informed Mr Zaidi’s solicitors that it accepted Mrs Follan and Mrs Zaidi as acceptable persons to undertake the role of accompanying female patients who consulted Mr Zaidi and that Mr Zaidi had not for a specified period of time observed the condition imposed.(c) that on Saturday 24 March 1990 patient Da, who was a 30 year old female employed as a drug and alcohol counsellor, consulted Mr Zaidi at his surgery for a vaginal itch. She was told by him to lie down on the examination table and remove her pants whereupon Mr Zaidi after saying he was going to take some swabs for tests placed a tube inside her vagina and moved it in and out many times so that it felt like intercourse. He continued this conduct for four or five minutes and after taking a couple of swabs he commenced to physically examine her vagina with one hand and to press around her hips and touch her upper legs and stomach with the other. She was embarrassed as she felt she was going to orgasm and complained to Mr Zaidi that he was hurting. He persisted in his conduct until she finally had an orgasm. He then ceased his actions, said she could have an injection in her vagina which she refused. She said she was in tears and very angry when she left the surgery and she felt dirty and disgusted with Mr Zaidi. She said she refrained from physically resisting his actions because she was frightened he would hold her down and have intercourse with her. She also complained that Mr Zaidi had touched her breasts. On the following Monday she discussed the incident with a medical practitioner with whom she worked and on his advice she reported the matter to the Complaints Unit the next day; and
25 In the course of dismissing Mr Zaidi’s appeal against the imposition of such condition the Medical Tribunal said on 7 August 1990 (see pp 2 and 3 Exhibit “1” Tab 5):
“Evidence presented in the course of the hearing established quite clearly that the appellant had not been observing the condition since its imposition either in the letter or in the spirit. He has seen a number of female patients without any third person being present and he has seen a number of female patients when there may have been intermittent attendances with no continuous presence of a third party.
He has employed as his sole receptionist and used as a ‘chaperon’ a person who has been acceptable to the Board as a ‘chaperon’ but he did so in the knowledge the Board had expressed the view that the dual roles of receptionist and ‘chaperon’ were incompatible.
The appellant explained his breaches by reason of his impecuniosity which he said prevented him from retaining the extra staff member and also by reason of the embarrassment which the presence of an untrained observer would cause to his patients.”The appellant has also treated all house calls and at least some visits to patients at their work places as emergency calls entitling him to avoid the requirement of a third party presence.
26 Before the Tribunal whose decision was handed down in December 1990, and to which we shall refer as “the December 1990 Tribunal”, Mr Zaidi acknowledged that he had seen ladies and girls alone on house calls and that he had seen females in his surgery without having an approved chaperon present for one week during which time he would have seen 50 or 60 female patients. He said his wife was overseas and his secretary Mrs Follan had an emergency with her grandson and that he had not sought to substitute a chaperon for his wife before she went overseas.
27 The December 1990 Tribunal accepted the evidence of the patients referred to above, found the complaint of professional misconduct proved in relation to each of the four matters of substance which comprised the complaint, and ordered that Mr Zaidi’s name be removed from the Register. It fixed a period of three years before which he might apply for a review.
28 After the expiration of the three year period, Mr Zaidi applied for a review of the decision that he be de-registered. This appeal was dismissed by the Medical Tribunal on 31 March 1994 (“the 1994 Tribunal”). That Tribunal found that the primary defect in his character which had brought about his de-registration was his use or abuse of three female patients for his own personal sexual gratification or lust (see pp 15-16 Tab 6 Exhibit “1”) and that there was no evidence at all that such defect had been overcome.
29 On 2 May 1995 Mr Zaidi made a further application for review. This application was heard between 6 November 1995 and 12 March 1996 (“the 1996 Tribunal”). At that hearing Mr Zaidi challenged the correctness of the December 1990 decision on two bases (see p 10 Tab 7 Exhibit “1”), viz:
(b) alternatively, that on a review of the material considered by the 1990 Tribunal and the additional evidentiary material presented at the 1995-96 Tribunal it would not have been reasonably open to the 1990 Tribunal to find to its comfortable satisfaction that the three complaints had been proved.(a) that on the evidence before the 1990 Tribunal it was not reasonably open for it to find to its comfortable satisfaction in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336 that the three particulars of complaint of professional misconduct concerning patients A, N and Da had been proved, that the findings made by the 1990 Tribunal in relation to those particulars were wrong and not supported by the evidence and that the 1990 Tribunal had erred in its fact finding role by applying the similar fact rule of evidence in aid of proof of each particular of complaint; and
30 In addition it was submitted to the 1996 Tribunal that if the 1990 Tribunal decision to remove Mr Zaidi’s name from the register were upheld, he had overcome the defect in his character revealed by his previous misconduct, was now of good character and was a fit and proper person to be registered as a medical practitioner and thus an order should be made for his reinstatement.
31 Mr Zaidi’s application was dismissed on 29 August 1996. The 1996 Tribunal applied Rohatgi v Medical Tribunal (unreported, NSWCA, 20/04/1994, BC9402485) and after an exhaustive analysis of the evidence unanimously rejected each of the two bases on which the correctness of the 1990 Tribunal's decision was attacked and declined to reverse the findings of the 1990 Tribunal.
32 In relation to Mr Zaidi’s submission that he had overcome the defect in his character revealed by his previous misconduct and was now of good character and a fit and proper person to be registered as a medical practitioner, the Tribunal was divided. The majority was not satisfied that Mr Zaidi had proved that he was now a fit and proper person to be registered as a medical practitioner and therefore declined to order his reinstatement. In coming to that view the Tribunal said at p 51 of its reasons for determination (Tab 7 Exhibit “1”):
“All four proved complaints deal with conduct of a kind which demonstrates the applicant was conscious of what he was doing, they were deliberate acts. Two matters of considerable concern stand out: First, the applicant's sexual abuse of [patient Da] occurred at a time when similar sexual abuse of a number of other female patients had been the subject of complaints to the police and he was on bail on charges of sexual assault. This demonstrates that following complaints and public exposure of the misconduct, he either could not or would not control his aberrant behaviour. Secondly, he continues to claim to be totally innocent and that he is the victim of false and/or mistaken accusations. This claim must be rejected in the background of the proved complaints and is either fraudulent or an indication he has no insight into his misconduct. The suggestion that his insight may have been masked by a depressive illness is unconvincing. He has made no attempt to reform his character and has no insight into the need for reform. With this history, there is a real risk of him reoffending.”
33 Mr Zaidi appealed against this decision to the Court of Appeal and also sought prerogative relief in that court. The appeal and application for prerogative relief were dismissed on 17 July 1998 and on 16 April 1999 Mr Zaidi's application for special leave to appeal to the High Court of Australia was refused.
34 Before the 2002 Tribunal Mr Zaidi argued that he had overcome the defect in his character revealed by his previous misconduct, and that he was then of good character and a fit and proper person to be registered as a medical practitioner. The Tribunal held that he was not, for a variety of reasons.
35 The Tribunal (and all members concurred in that view) concluded that Mr Zaidi was a most unimpressive witness being evasive, inconsistent, obfuscatory and circumlocutory in giving evidence. The Tribunal focused on five areas in which the evidence of Mr Zaidi led them to a negative view of his probity, integrity and honesty before the Tribunal:
(1) his evidence relating to his past medical history (“the depression issue”);
(2) evidence of his dealings with AMP whereby he sought and obtained sickness and accident insurance (“the AMP issue”);
(3) evidence relating to his bankruptcy (“the bankruptcy issue”);
(5) evidence as to the reasons why he failed to comply with conditions imposed on his practice of medicine (“the breach of conditions issue”).(4) evidence relating to his overseas registration (“the overseas registration issue”);
36 The depression issue, the AMP issue and the breach of conditions issue have all been made relevant in this hearing, and much of what has gone before and been the subject of findings adverse to Mr Zaidi has been repeated in this hearing.
37 We proceed on the basis that findings of the previous Tribunals were correctly made at the time they were made. This involves matters not only relevant to the indecent assaults but to other matters that pertain to Mr Zaidi’s integrity and honesty or lack thereof.
Material Relied Upon by Mr Zaidi and the HCCC
38 Some of the material tendered by Mr Zaidi (and forming part of the exhibits) were submissions of Mr Zaidi (eg Exhibit “B”), and earlier judgments of the Tribunal in 1990 and 2002, to which we have referred; submissions of counsel retained by Mr Zaidi in the 2002 hearing (see section 2 of Exhibit “A”); and material produced on subpoena by Dr Chaturvedi (Exhibit “C”). Some of the material tendered was material that had been tendered before the 2002 Tribunal (eg Exhibit “H”, formerly Exhibits “S”, “U”, “Y”, “Z” and “AA”).
39 What remains of the documents tendered by Mr Zaidi falls into four broad categories:
(1) an apology from Mr Zaidi (see section 1 Exhibit “A”);
(2) material said to be relevant to the training or acquisition of knowledge by Mr Zaidi from 2002 to the date of the Tribunal hearing (May 2006): section 7 Exhibit “A”, “C”, “D”, “E”, “F”, “K” and “L” (“the continuing education issue”);
(3) character references: Part 6 of Exhibit “A”;
(5) Exhibits “G” and “J”, which are harder to classify but which we shall describe below.(4) medical reports from Dr Shail Chaturvedi, Dr Brendan O’Sullivan and Dr Ishrat Ali, all of whom are psychiatrists upon whom Mr Zaidi has attended, although according to Mr Zaidi he has attended on Dr O’Sullivan only as an expert for the Tribunal hearing: see T284.17-57;
40 The HCCC tendered four volumes of documents, which included the documents before the 2002 Tribunal, transcript of that hearing, as well as decisions of all of the earlier Tribunals (Exhibits “1”-“4”). The HCCC also tendered copies of medical certificates in respect of Mr Zaidi (Exhibit “7”), material produced by Mr Zaidi in answer to a summons relating to the issue of continuing education (Exhibits “9”-“12”), a s 192A Medical Practice Act certificate (Exhibit “5”), a “Personal Statement” made by Mr Zaidi to AMP in 1979 (Exhibit “6”), and notes of Dr Ali (Exhibit “8”).
Principles Applicable
41 The 1996 Tribunal, whose decision was the subject of scrutiny in the Court of Appeal, set out at pp 36-68 of its decision the applicable principles to applications of the type with which this Tribunal is now concerned. The Court of Appeal noted that there had been no criticism levelled at the Tribunal’s enunciation of principle, rather it was argued that in a particular passage the Tribunal had effectively acted on the principle that an applicant for reinstatement must accept that he was guilty of misconduct. The Court of Appeal expressed agreement with the principle that continued protestation of innocence of the crimes of which he was convicted ought not automatically lead to the conclusion that reinstatement must be refused: Dawson v Law Society of New South Wales (CA(NSW), 21/12/1989, unreported). The Court said that the particular passage of which there had been complaint (pp 51-52 of the Tribunal’s decision and set out at 99E-100C) did not amount to a requirement that he must accept he was guilty of misconduct. Mason P at 100 continued:
“I would not disagree with the principle stated in the passage from Hiss that has been quoted. But the proposition which it states is a narrow one: confession is not a necessary pre-condition to reinstatement. ("Accordingly, we refuse to disqualify a petitioner for reinstatement solely because he continues to protest his innocence of the crime of which he was convicted": Hiss [ Re Hiss 333 NE 2d 429 (1975)] (at 437).) I do not understand this Court ever to have asserted such a categorical proposition: see Dawson v Law Society of New South Wales (Court of Appeal, 21 December 1989, unreported), per Kirby P (at 17) and Mahoney JA (at 6-7). This said, there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness on one or other of the grounds indicated in the sentence underlined.”
42 We set out the summary of principles from pp 36-38 of the 1996 Tribunal’s decision (and which were accepted by the Court of Appeal as appropriate):
“ Principles applicable on the question of reinstatement to the Medical Register
1. The purpose of the jurisdiction which is exercised by the Tribunal is not for punishment or further punishment of the former practitioner. Instead the Tribunal’s jurisdiction is for the protection of the public which deals with medical practitioners on the basis that they are members of an honourable profession who can be expected without reservation to conduct the affairs of their patients with honour and in whom the patients can place unbounded confidence. What is in question in an application for reinstatement to the Medical Register is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence.The Tribunal has had the assistance of counsel for the parties, who in their written and oral submissions have comprehensively and helpfully referred us to the relevant decisions of the Court of Appeal and this Tribunal in which there is a discussion of the principles which should be applied by this Tribunal in an application for reinstatement. These included the cases of Application of K V Prakash (Medical Tribunal, 31 July 1992); Application of P H Corbett (Medical Tribunal, 7 December 1995); Ex parte Tzinolis; Re the Medical Practitioners Act (1966) 67 SR 448 and Dawson v Law Society of NSW (Court of Appeal, 21 December 1989). From our reading of the reports of these decisions the following principles have been collected and applied in this application:
2. An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears the onus of proving the case. It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds and as an applicant for reinstatement to the Medical Register he is in a more disadvantageous position than an original applicant. He must in effect displace the decision for deregistration which has been made. That decision involves the judgment that the applicant is probably permanently unfit to have his name on the Register. As a consequence, presumptions of fitness which might arise otherwise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness.
3. The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the applicant but the Tribunal's assessment of his character, uprightness, honour and trustworthiness. In the case of some offences committed over an extended period with deliberate intent and resulting in serious distress to patients it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the Register.
4. It is not a question of what an applicant has suffered in the past. It is a question of his worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. It is difficult to decide what a man will do in the future and the decision in a particular case is to a greater or lesser extent dependant upon the Tribunal’s assessment of the applicant. In making that assessment, it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the Register. An understanding of that may assist the Tribunal to determine what are his standards and his understanding of a practitioner’s responsibility, and from this, what he is apt to do in the future. Where what has been done in the past has been sufficient to indicate his probably permanent unfitness the Tribunal will require solid and substantial grounds for the conclusion that his standards have changed, his character has been reformed and that he will act honourably.”
Mr Zaidi’s Statements, Apology and Submissions
43 Mr Zaidi on a number of occasions during the case did make statements that could be treated (and which we shall treat) as evidence of his intention to abide by any restrictions which might be placed on him, an apology for his behaviour before the 2002 Tribunal and before this Tribunal (although in the hearing before this Tribunal he was always courteous) and/or submissions. Mr Zaidi’s written submissions (ZS) have a number of strands within them, which include (and where we have cited the words used in the submission we have not made any correction to them):
ZS(1) He maintains his attack on the 1990 Tribunal decision and the 1995 and 2000 decisions and the HCCC’s reliance upon it. This includes repetition of the assertion that he was falsely accused of the matters dealt with in the 1990 Tribunal. It also includes at p 4 dot point 7 an assertion that one of the witnesses retracted her evidence, the factual foundation for which is not before this Tribunal (and we note is challenged by the HCCC).
ZS(2) He asserts inadequacy of the present law, because it precludes him from attacking the conclusions of the earlier Tribunals.
ZS(3) He says the absence of any further instances of conduct of the type that were the subject of the 1990 Tribunal determination indicates that he is no danger to the community.
ZS(4) He says that wherever in his evidence he was shown “to be wrong or confused I have apologised and shown regrets” (p 2).
ZS(5) He says there is sufficient evidence of continuing education “despite a major portion of evidence is lost” (p 2).
ZS(6) He says that his willingness to be examined by psychiatrists is a positive matter.
ZS(7) He says that he has shown remorse “where is deserved and required”.
ZS(8) He says that he has “acknowledged insight of lying” (p 2), and “My perception of right and wrong is clear”.
ZS(9) He says his maintenance of his innocence is deliberate and should not be held against him because he is innocent.
ZS(10) He says he acknowledges breach of the condition imposed by the interim panel in 1990 and is extremely remorseful and says he will abide by any future requirement.
ZS(11) He says that the HCCC submissions selectively focus on matters.
ZS(12) He says Dr Chaturvedi’s evidence based on the assumption that Mr Zaidi did commit the assaults which the Tribunal has found him to have committed, ought be rejected because it is “presumed only”. At p 3 he says “Dr Chaturvedi’s assumption [ie as to his innocence] should not be questioned as she already admitted she is not lawyer and her opinion was based upon my position as to that criminal proceedings have been dealt and abandon in my favour by standard means of justice system”.
ZS(13) He says that the HCCC has not presented any expert evidence that he is a danger to the community. He says that he is not a risk to patients and that the absence of any new evidence is strongly supportive of that.
ZS(14) He says that the Tribunal should not doubt his evidence that his additional records of further education were lost because the HCCC did not call Mr Ali or his ex-wife.
ZS(15) He says that his many apologies and expressions of regret concerning his behaviour before the 2000 Tribunal and before this Tribunal are honest and should be accepted.
ZS(16) He says that misunderstandings based on communication problems do occur.
ZS(17) He says that there is no evidence of any disorder except “chronic depression probably caused by tuberculosis and these proceedings” (p 6).
ZS(18) He says that the role of the Tribunal is not to punish, but that it has a grave and important duty to consider the situation as a whole and take into account the needs of the community.
ZS(19) In relation to Dr O’Sullivan’s evidence Mr Zaidi says:
“The Tribunal has to consider the implication of the Dr B. O’Sullivan consult psychiatrist withdrawing due to the altercation with HCCC. The applicant is in disadvantage stage to fully present his case fairly as it deserve” (p 7).
ZS(20) He says that he is accused of getting his licence to go overseas and for his family’s sake and that he has no intention of leaving Australia.
ZS(21) He says that he is being discriminated against due to his depression.
There follow references to various cases which we shall deal with separately under the heading “Mr Zaidi’s reliance on precedent”.
44 So far as ZS(1) is concerned, this is a matter which we have already addressed by rejecting the attempt to open for reconsideration the matters previously decided. ZS(2) is closely connected with that. We do not accept that there is any inadequacy in the present law but even if there were such an inadequacy, the Tribunal can only proceed on the basis of the Act as it stands. We shall deal with the balance of these points – ZS(3), ZS(4) etc – where relevant in the balance of these reasons.
Mr Zaidi’s Reliance on Precedent
45 Mr Zaidi in his submissions makes reference to passages from various cases. He sets out the whole of the judgment of Spigelman CJ in HCCC v Hatoum [2004] NSWCA 30. Whilst it is normally appropriate and indeed expected that submissions will direct the Tribunal’s attention to the relevant propositions said to be established by a case, having regard to Mr Zaidi’s lack of legal knowledge and training, we shall endeavour to derive from all of the judgments and passages cited in his submissions, the legal principles for which relevantly, and in support of Mr Zaidi’s case, they may be brought in aid.
46 We would summarise these matters as:
ZS(22) A finding of professional misconduct is not equivalent to a finding that a person is not of good character: Spigelman CJ in Hatoum at [7]-[8].
ZS(23) Where the Tribunal is hearing an application for re-registration after de-registration for professional misconduct or a “not of good character” finding, the task of the Tribunal is to consider whether the applicant has shown that his character no longer has the defect that he had and that bearing in mind the interests of the community that he once again be permitted to practise medicine: Hatoum at [9]-[10]. The assessment must be made not as at some earlier time but as at the time of the application (at [15]) ie it is an assessment of his “present” character: at [21].
ZS(24) Character evidence is relevant not only to whether the defect remains or has been removed, but also to whether or not the person is likely to repeat conduct that he or she has committed in the past: Hatoum at [19], and the fact that a witness does not accept that the practitioner did engage in such conduct found to have occurred by the earlier Tribunal goes to the weight of that evidence: at [19].
ZS(25) The failure to acknowledge the truth of previous Tribunals’ actual findings should be dealt with in accordance with Zaidi v HCCC (1998) 44 NSWLR 82 at [22].
ZS(26) It is possible for conditions to be imposed that are not indicative of sufficient misgivings about the doctor’s future behaviour that preclude the option of re-registration or as in HCCC v Litchfield (1997) 41 NSWLR 630, particularly when the practitioner has not been in practice for some time and hence needs additional supervision.
ZS(27) The passage from Raybos Australia Pty Ltd v Scitec Corporation Pty Ltd (unreported, NSWCA, Kirby P, Samuels and Mahoney JJA, 16/6/1986, BC8601339) per Mahoney JA (incorrectly described in ZS as Rajski v Scitec ):
“Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.”
the effect of which we would summarise as the need for careful consideration of the submissions of a party appearing in person even if not well expressed, or the effect and relevance of which are not fully appreciated by the person.
ZS(28) State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 per Kirby J at [93]:
“Yet even when the trial judge has expressed conclusions as to the credibility of a particular witness, that does not represent the end of analysis by the appellate court. It is only the beginning of a particular analysis which is then required. In many appeals, such a credibility finding will be far from conclusive of the proper outcome of the entire trial, and hence of the appeal. Take the following instances which are by no means exhaustive”.
We do not think the principles by which a court of appeal is to proceed in dealing with an appeal is relevant to the task which the Tribunal has to perform.
ZS(29) Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 is referred to. That case deals with the position of a litigant in person who is mentally incompetent and not capable of managing his own affairs. It has no pertinence to the present case.
ZS(30) Where a Tribunal is asked to determine whether conduct of a serious kind has taken place it must bear in mind the seriousness of such a finding and the significant implications to the person concerned – often referred to as the Briginshaw test.
ZS(31) Mr Zaidi included a number of pages from the Journal of Judicial Administration , (2006) 15 JJA 129, 165, 185 and 206, LawBook Co. None of these appear to have any bearing on the work of the Tribunal, save a reference to the need for impartiality in decision making in all Courts and Tribunals, which we accept.
ZS(32) Some further submissions dated 26 June 2006 were handed up by Mr Zaidi, when the matter was mentioned. Much of it again seeks to enter into the evidence relevant to the 1990 Tribunal’s findings, with which we have dealt. Mr Zaidi also deals with the evidence of Dr Chaturvedi, asserting that contrary to her acceptance before the Tribunal that she had been misled by Mr Zaidi, she had not been. Strictly, this is a matter which should have been dealt with in examination in reply of Dr Chaturvedi.
ZS(33) Mr Zaidi asserts by way of submission that in relation to the material said to have been written by others (we assume this is addressing the apology and summary) “he did it over long time writing but at a time than finalising as I stated. My children were to much under stress to help me I did all my research on and Library”.
ZS(34) Mr Zaidi refers to the letter to the Medical Board and asserts that it contains a statement by him as to the absence of a chaperon.
47 We have in effect already dealt with ZS(23), (24) and (25). We accept ZS(22), (26), (27) and (30).
48 We are of the view that ZS(28) and (29) are not relevant here.
Submissions of Mr Brereton SC
49 Reliance is also placed by Mr Zaidi on Mr Brereton SC’s submissions. It must be borne in mind that Mr Brereton, then of counsel, was dealing with the evidence before the 2002 Tribunal, not all of which is before this Tribunal. Nevertheless we shall treat the submissions as being put to us to the extent that there is material relevant to their content. Mr Brereton had usefully summarised the essence of his then submissions at paras 55-61.
50 We think that the submissions can conveniently be reduced to the following points which we shall deal with as PB(1), PB(2) and so forth.
PB(1) The ultimate issue is whether the applicant is now a fit and proper person to be registered and in particular whether he has overcome the defect in character disclosed by his previous misconduct viz a disposition to abuse female patients for his own sexual gratification.
PB(2) A long time span since de-registration without repetition of the misconduct is evidence that the relevant defect is no longer present.
PB(3) The test is of present fitness and propriety, not of willingness to admit past mistake.
PB(4) The applicant is not now (we shall treat this as at 2006) affected by an inability to control his sexual urges there having been “no evidence of any aberrant behaviour before or since that time”: para 56.3.
PB(5) There is a substantial and uncontradicted body of psychiatric evidence that it is highly unlikely that the applicant will now, or in the future commit improper acts upon female patients.
PB(6) The probable explanation for his behaviour in 1986-1990 is that he was suffering from depression exacerbated by serious health and financial problems.
PB(7) Mr Zaidi has shown a proper attitude to his responsibilities to patients and in particular female patients in the future.
PB(8) Mr Zaidi’s experience is itself a powerful deterrent against misconduct in future medical practice.
PB(9) The protection of the public from any residual risk can adequately be safeguarded by imposition of appropriate conditions of practice “with which in the light of his experience it can be expected that the Applicant will comply punctiliously”.
PB(10) The Tribunal can be satisfied without evidence of confession and repentance that Mr Zaidi “appreciates and understands what are appropriate standards of conduct”. It is not reasonable to expect him to acknowledge and repent of his guilt as found by the 1990 Tribunal – it is not unreasonable that he maintains he is not guilty of the conduct in question. “It is inappropriate to proceed on the basis that the Applicant’s continuing protestations of innocence must be rejected as either fraudulent or demonstrative of a lack of insight. It is necessary to allow for the possibility that they might be honest, genuine, and correct. The Tribunal should not presume that it was the 1990 Tribunal that was necessarily correct and the jury in the re-trial that was necessarily wrong.”
PB(11) Apparent defects in demeanour and presentation in the witness box of Mr Zaidi who is confronted with material that is more than 25 years old should not be given too much significance.
PB(12) Issues relevant to his general conduct and character are very remote in time and nature from his current fitness to practise medicine.
51 We have already dealt in effect with PB(1). So far as PB(10) is concerned, we have set out the passage in Zaidi in the Court of Appeal dealing with the issue and shall say more about the point below. We also deal with PB(2)-(9), (11) and (12) below.
Psychiatric Evidence
52 Mr Zaidi relied on three reports: one of Dr Chaturvedi, one of Dr Ali and one of Dr O’Sullivan: see Exhibit “A” Tab 5. We shall deal with Dr O’Sullivan’s report separately below. Dr Chaturvedi and Dr Ali, as we have already mentioned, have never treated Mr Zaidi for any sexual problems or problems associated with his sexual assaults on patients. This is because Mr Zaidi has always maintained his innocence in respect of such assaults and these doctors have accepted that. Both were cross-examined.
53 Dr Chaturvedi did not know that the 1990 Tribunal had found D and N credible and impressive and she had been informed that Mr Zaidi has been acquitted of all charges: T96-98. She accepted that as to these matters Mr Zaidi had misled her: T99.25. Dr Chaturvedi agreed that if Mr Zaidi did engage in sexual misconduct with patients, his protestations of innocence to her since 1987 must be fraudulent: T100.20. ZS(12) in effect takes issue with the assumption which Dr Chaturvedi was asked to make, namely that he had committed the acts which the 1990 Tribunal found he had committed, but the 1990 Tribunal’s findings, although based on a different standard to that of the criminal justice system, are as we have said, findings the correctness of which we accept and proceed upon. We do not accept that Dr Chaturvedi’s evidence that she had been misled is expunged by the submissions from Mr Zaidi at ZS(32) but we should say that the acceptance by Dr Chaturvedi that she was misled is of very limited significance.
54 We accept the HCCC’s submissions that her views that he has no obsessions, fears, failures or defects in character can be given no weight. Dr Chaturvedi did agree that if Mr Zaidi had engaged in sexual misconduct with the three patients, he has no insight into his conduct and needs treatment to deal with those issues (T101-102), a view that the Tribunal accepts, although the Tribunal does not accept that the appropriate treatment is limited to psychotherapy. She agreed too that therapy is more difficult where there has been a long delay between the sexual misconduct and the treatment (T103.20), a view that the Tribunal accepts. Dr Chaturvedi did not think that a diagnosis of bipolar disorder could be made (T106.8-14) or contributed to his [activities] in any way (T107.10), a view which the Tribunal accepts. Neither she or Dr Ali or Dr O’Sullivan suggests an explanation for Mr Zaidi’s conduct (which is quite consistent with Mr Zaidi’s continued denial of the allegations).
55 Dr Ali in his report of 3 September 2005 said that he has seen Mr Zaidi on a weekly basis since 18 August 2005. He noted that Mr Zaidi “had a history of depression in the past and has been on medication for this and is quite compliant”: p 1 (see Exhibit “A” Tab 5). Dr Ali then states:
“I do not find any reason for Mr Zaidi not to practise and at this stage there is no indication that he will be a danger to the community. In view of this I feel he is a proper person to practise.”
56 Although the letter ended by noting that Dr Ali would be able to prepare a detailed report “and give reasons for my impressions”, no such detailed report nor reasons for his impressions was in fact tendered.
57 Dr Ali was summonsed to produce his notes – they were of a most uninformative nature: “seen today” was all that was recorded for the last three consultations (see Exhibit “8”), and there was nothing recorded for one of the consultations. According to the notes, at a consultation on 20 September 2005 Mr Zaidi told him that he (Mr Zaidi) had been accused of “grabbing” a patient. Dr Ali said that Mr Zaidi had denied that allegation: T187.37-46. Dr Ali agreed that it was not an important part of his consultation with Mr Zaidi to go into the detail of the allegations made against Mr Zaidi: T190.11-19. Dr Ali accepted that his view that Mr Zaidi was not a danger to the community and a fit and proper person to practise medicine was “based upon to the absence of truth in the allegations”: T190.20-49.
58 Dr Ali was never supplied with notes of any psychiatrists who had seen Mr Zaidi before he did: T191.46-56. Dr Ali thought that he was seeing Mr Zaidi because there was some problem with Mr Zaidi seeing Dr Chaturvedi (T203.14) and he regarded himself as Mr Zaidi’s treating practitioner – treating him in relation to depression – prescribing medication and “ongoing supportive psychotherapy”: T202.55-57.
59 We have referred to the report of Dr O’Sullivan. Dr O’Sullivan was required for cross examination and did not appear on Wednesday 17 May 2006. He did not appear at 10 am on Thursday 18 May 2006 (the amended time at which he was informed by Mr Darmody, the solicitor for the HCCC, that his evidence would be received: see Exhibit “13”). He did however appear at approximately 11.20 am on Thursday 18 May. After a few questions in chief from Mr Zaidi, Mr Strickland SC commenced cross examination of Dr O’Sullivan. There then followed several heated exchanges between Dr O’Sullivan and Mr Strickland (seen at various points between T300 and 313, particularly at T311-312), and an attempt by Dr O’Sullivan whilst in the witness box to converse with Mr Zaidi: see T312.39-40.
60 Mr Zaidi then made an application for Dr O’Sullivan to be “withdrawn”. Mr Strickland acceded to this application on the basis that nothing said to that point by Dr O’Sullivan would be regarded as evidence and that his report would be given such weight as the Tribunal thought fit on the basis of a deemed failure to attend for cross examination, and having regard to the absence of any confirmation by notes of any consultations by Mr Zaidi with Dr O’Sullivan since 2001. To this should be added Mr Zaidi’s own statement that he had never seen Dr O’Sullivan in any other capacity than expert witness for the proceedings before the Tribunal: T284.17-57. Mr Zaidi’s submission ZS(19) p 6 (set out above) misstates the position. Dr O’Sullivan did not withdraw – Mr Zaidi asked that he be withdrawn. Mr Strickland and, it would seem, Dr O’Sullivan, were willing to proceed with the cross examination. We set out the portion of the transcript in which Mr Zaidi’s application was made (T312.51-313.40):
“APPLICANT: Your Honour, could I make an application, please?
DEPUTY CHAIRPERSON: Yes.
APPLICANT: I've requested, you know because
DEPUTY CHAIRPERSON: The problem is, that now I'm not sure whether they can record your application whilst they're getting ready to play the transcript back.
APPLICANT: I'll just tell you. I'll repeat it again. And the present because the altercation and all, this heated debate. I would like the witness to be retired and the record should not be present - this witness' account should not be considered by tribunal.
DEPUTY CHAIRPERSON: Well, I'm not sure. I'll see what Mr Strickland says about that.
STRICKLAND: I don't precisely know what the application is.
DEPUTY CHAIRPERSON: I think it's basically to withdraw the witness and accept the consequences, whatever they might be about that, in effect to disregard his evidence, I assume and for the witness to be withdrawn, as it were and so maybe we'll proceed upon the basis that no account is taken of what Dr O'Sullivan has said. Is that what you're asking?
APPLICANT: Yes, your Honour because of altercation and other hiccup.
O’SULLIVAN: Congratulations counsel, Very good.
DEPUTY CHAIRPERSON: No, just a moment. What is your position, Mr Strickland?
STRICKLAND: Your Honour, I don't oppose that.
O’SULLIVAN: Disgraceful. The word is disgraceful, sir. I think it is disgraceful. Anyway, that's fine. You've said congratulations. You've really stirred me up and you've made any comments that I have null and void. So, good work.
APPLICANT: Thank you. Thank you, Dr O'Sullivan.”
61 Mr Zaidi did refer to the “altercation and all this heated debate” and “other hiccup” and the latter may reflect unhappiness on Mr Zaidi’s part as to what Dr O’Sullivan had said (as to Dr O’Sullivan’s comments to Mr Zaidi whilst he was in the witness box potentially pertinent to that see T312.39-40) but whatever the reason it was Mr Zaidi’s choice. We reject the suggestion that Mr Zaidi was not able to fully present his case.
62 Of critical importance is Mr Zaidi’s continued refusal to admit or accept that he did commit the sexual or indecent assaults upon three separate female patients. The assaults were serious and sustained and a gross abuse of the trust reposed in Mr Zaidi as a medical practitioner. Not only does he deny that he did commit these assaults but he asserts contrary to the findings of the 1990 Tribunal, and the 1996 Tribunal on extensive review, that the patients lied about what he did: see T54.27-55.35. He repeats these assertions at various points in his written submissions before this Tribunal eg ZS p1.4, p 4.5 and p 6.6.
63 Although Mr Zaidi has seen psychiatrists (see ZS(6)), because he has never admitted that he did commit those offences, he has never had any treatment for his deviant behaviour. A number of the people from whom he has sought references and reports proceed upon the basis that Mr Zaidi is completely innocent of the assaults which this Tribunal has previously found were committed. Dr Chaturvedi, who has treated him since about 1988, has never treated him for any sexual problems, nor has Dr Ali. It appears that Mr Zaidi, by his continued protestations of innocence, has persuaded at least two of his children that he is the victim of an unjust legal system. Dr Ali and Dr Chaturvedi, who have been treating him with psychotherapy, have always proceeded on the basis that he has been truthful to them in denying the events.
64 Dr O’Sullivan’s report (Tab 5 Exhibit “A”) seemed to offer some support for a change in attitude of Mr Zaidi, referring to “substantial insight into his own make up, previous communication issues, and the causes of his problems several years ago”. The report also stated:
“He can also now better acknowledge his own personal responsibility and blame in various matters in his past. He has reviewed his past behaviours with me, including those which brought him to the attention of the Medical Tribunal, and I believe he now shows a genuine contrition for these contributory behaviours, while maintaining his general innocence of the original charges.”
65 Dr O’Sullivan’s comments about “causes of his problems”, “personal responsibility and blame” and “genuine contrition” are not specific and do not sit comfortably with the statement “while maintaining his general innocence of the original charges”. Dr O’Sullivan produced no notes of his consultations with Mr Zaidi. If the report is treated as reflecting Mr Zaidi’s evidence before the Tribunal as to his position in relation to the past conduct it falls into the same category as the reports of Dr Ali and Dr Chaturvedi, and suffers from the same defect. If it was intended by the report to describe a change of attitude to the original charges and contrition on the part of Mr Zaidi, apart from being inconsistent with Mr Zaidi’s own evidence, its lack of specificity and the lack of explanation of how what Dr O’Sullivan had been told could amount to contrition given Mr Zaidi’s maintenance of innocence, the absence of notes and his unavailability for cross examination (in the circumstances we have described in [60]) lead us to the view that no weight can be placed on anything said in the report.
Refusal to Admit Past Offences
66 The Tribunal accepts that there may be circumstances where the failure to admit that an offence has occurred does not lead to a concern that the practitioner will in the future represent a threat to other patients but we reject ZS(9) and PB(7) and (8), and the implication in PB(3) that unwillingness to admit past misconduct is of no relevance, and are firmly of the view that in this case the refusal to admit his past conduct is a significant obstacle to re-registration for the following reasons:
(1) there were three assaults on separate patients over a period 1986-1989;
(2) one of the assaults occurred when complaint had already been made to the authorities about earlier complaints;
(3) if the assaults occurred as described, and as we accept based on earlier decisions of the Tribunal that they did occur, there is no room for doubt as to the deliberateness and sustained nature of the assaults;
(4) these assaults are not matters that are capable of being described as the result of miscommunication or capable of being described as miscommunication problems as ZS(16) suggests, and see T50.42-51.2 of his evidence and T56.55-57.4;
(5) Mr Zaidi does not admit that he did what is asserted but provide an explanation for that conduct, rather he denies that he did carry out those acts of gross indecency;
(6) we agree with the Tribunal view in 1996 that the continued protestation of innocence and the assertion that the patients were lying is either fraudulent or a result of a lack of insight;
(7) there is evidence that in 1976 Mr Zaidi told the psychiatrist then treating him that he had urgings of the kind (although expressed in less extreme form) that he was found to have committed in 1986-1988. We shall deal with that evidence in more detail below and Mr Zaidi’s evidence about it before this Tribunal;
(8) a failure to deal with the problems that led to the urgings that were articulated in 1975 and then to the more extreme acts in 1986-1988 is itself likely to be highly relevant to the prospect of repetition of offending if not treated, and see the evidence of Dr Chaturvedi in which she accepted that a lack of insight increased the risk of repetition of the conduct: T103.34-57. We note in this context the absence of any psychiatric evidence based upon acceptance of the findings of the 1990 Tribunal that it is highly unlikely that Mr Zaidi will commit improper acts upon female patients, and we reject the submission contained in PB(5) and ZS(17).
67 Contrary to ZS(7), Mr Zaidi has not shown remorse where it is deserved and required. It is true that no evidence has been presented that he has ever over a long period acted inappropriately with women outside the confines of the surgery or that he is a danger to the community: ZS(3), (13), PB(2), (4) and (7). These submissions however ignore the difficulty that Dr Zaidi’s inappropriate conduct only manifested itself in the surgery where he had the opportunity to assault women, who as part of their medical examinations, permitted him to commence examination of their genitalia. He has not since 1990 had the opportunity to carry out any further offences of that nature. We do not accept that the absence of such incidents since 1990 encourages confidence that they would not occur again in a context where Mr Zaidi continues to deny the acts in question and has had no treatment for those tendencies, nor even any willingness to frankly admit that he did have the thoughts which Dr Argall records him as expressing: see T80-81 and 84. As was said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461 (cited with approval in HCCC v Litchfield (1997) 41 NSWLR 630 at 637): “One cannot assume 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”. Contrary to PB(9), we do not believe that the protection of the public can adequately be safeguarded by the imposition of appropriate conditions.
Other Matters Relevant to Credit and Character
68 Like earlier Tribunals we are cognisant of the extensive support Mr Zaidi has from friends and colleagues: see Tab 6 Exhibit “A”. At least one of them, it appears, has been the subject of disciplinary action (for reasons other than assault on patients) but there is no doubt that Mr Zaidi’s children and a number of friends and colleagues have a high regard for him although it would appear that many of them (including his children) accept Mr Zaidi’s protestations of innocence of the sexual assaults on patients.
69 Quite apart from the findings made by earlier Tribunals, this Tribunal has for itself seen evidence of Mr Zaidi’s poor qualities as a witness. Some of the examples of it overlap with the evidence he gave at the 2002 Tribunal, but they appear to us indicative of a willingness to say and do anything that will achieve the result which he seeks. The Tribunal was unfortunately left with the feeling that Mr Zaidi is a person whose word on any subject ought not be accepted without corroboration from independent witnesses. The topics on which this unreliability manifested itself were:
(1) his evidence concerning his statements to the AMP in 1975 when applying for sickness and accident insurance;
(2) his evidence concerning breach of conditions imposed in 1990 pending determination of the complaints against him;
(3) the reconciliation of his supposed acceptance of the findings of the 2002 Tribunal with his evidence before this Tribunal;
(4) loss of documents relevant to continuing education and the extent of his continuing education;
(5) his evidence as to who prepared the apology and continuing education summary;
(7) his evidence that he had given to the 2002 Tribunal that Dr Chaturvedi had not told him that he suffered from depression (T71-72), his admission at T72.20 that he knew she had diagnosed him with depression and his refusal to agree that his answer to the 2002 Tribunal was false.(6) his evidence as to what he said to Dr Argall in 1975 (and the assertion that he could not recall having told Dr Argall about his urges);
70 In 1975 Mr Zaidi was referred to Dr Argall, a psychiatrist. According to Dr Argall’s notes Mr Zaidi told him that he (Mr Zaidi) had been depressed for three to four years (see Exhibit “4” Tab 2). Dr Argall prescribed anti-depressants Mellaril, Parnate and also Valium. The medical consultations with Dr Argall, and the prescription of medication assumed an importance for several reasons. The first related to the question of whether Mr Zaidi had misled AMP Society when applying for sickness and accident insurance. The answers that he gave to AMP made no mention of the diagnosis of depression or the treatment by Dr Argall or the medication prescribed, notwithstanding questions that were framed to elucidate such events: see Exhibit “4” Tab 3. This is what we have described as “the AMP issue”.
71 The 2002 Tribunal found that Mr Zaidi had been untruthful in his statements to AMP but regarded that, given the time that it occurred, as of marginal significance – what was regarded as of much more significance to the 2002 Tribunal was the attempt by Mr Zaidi before the Tribunal in 2002 to deny that he had been untruthful: see Exhibit “1” Tab 12 [78]. Mr Zaidi also told the 2002 Tribunal that he had not told Dr Argall that he was depressed (see T66, now part of Exhibit “2”).
72 The second point to which it related was the depression issue. Mr Zaidi having told Dr Argall that he was depressed and had been for many years, and Dr Argall prescribing anti-depressants, there was evidence of depression, which condition Mr Zaidi denied. There was also evidence before the 2002 Tribunal that Dr Chaturvedi had diagnosed Mr Zaidi with depression in the late 80s but Mr Zaidi had denied that Dr Chaturvedi had done so: see T71-72. He admitted before this Tribunal that he had been diagnosed as suffering from depression but denied that he had given false answers to the 2002 Tribunal.
73 We accept that much of what Mr Zaidi was being asked about, both at the 2002 hearing and this Tribunal hearing, are matters of considerable age, but what is more important than what he did in the past, as a reflection of his present character, is how Mr Zaidi deals with those matters now. That is the further answer to PB(2), and also to PB(11) and (12).
74 Once again there was an attempt to deal with the same evidence that was before the 2002 Tribunal that explained away the dishonest and false answers that had been given both in respect of what Dr Argall had diagnosed and what Mr Zaidi told AMP (see T145-149). After those explanations had failed (see for example T145.30), he agreed that he had told a lie to AMP (T149.35), but he then introduced the idea of two forms (T156), which we are satisfied did not constitute an explanation for his conduct.
75 There was an added difficulty for Mr Zaidi and that was the apology that he had tendered as part of Exhibit “A” relating to what had occurred before the 2002 Tribunal (Tab 1). In the apology which (although not signed) was adopted by Mr Zaidi (T56.18) he said:
“I believe I answered the questions in the way in which I did due to the stress and the gravity of the troubled situation I was in. I unreservedly apologise to this tribunal, and accept as true those findings, specifically relating to the AMP documents, Dr Argall and other omissions including my failing to fill the insolvency form on time as I was instructed. I am solely to blame for my actions.”
76 In cross examination Mr Zaidi baulked at accepting the finding that he had been dishonest. He maintained that he had honestly believed what he had said before the 2002 Tribunal: see T56-57, 61, 140.20-141.34 and 150. His position became one something akin to a contortionist who whilst asserting that he accepted the 2002 Tribunal’s findings with its finding of dishonest evidence sought to proffer further evidence to show that he had not been dishonest and to assert that untruthful evidence was not deliberate: T56, 70, 72 and 150, and see T238. That further evidence lacked credibility and impugned his purported acceptance of the earlier findings. It made his “apologies” and “regrets” (see ZS(4) and (15)) appear quite hollow.
77 This Tribunal heard cross examination of Mr Zaidi, the answers to which, instead of suggesting some reformation of character, pointed yet again to the complete unreliability of Mr Zaidi as a witness: see T142-157. There is a further aspect to the depression issue because continuing depression might have a bearing on Mr Zaidi’s fitness to practise. Mr Zaidi was as recently as last year (from 7 March to 30 December 2005) claiming sickness benefits on the basis that he was unable to, and deemed unfit to, work (in any capacity) supported by a medical certificate: see T178. He attributes this incapacity to his depression concerning his failure to obtain re-registration as a medical practitioner and says that when he regains re-registration his depression will end. We readily accept that his concerns about the success or failure of the re-registration process upon which he has embarked are significant but his claim to depression of such intensity as to preclude him from any form of employment sat uncomfortably with his professed ability to re-educate himself and attend and absorb lectures on medical topics. The extremely limited notes of Dr Ali and Dr Chaturvedi offer little assistance as to the true nature and extent of Mr Zaidi’s depression.
Breach of Conditions Imposed
78 In 1990 after complaints about Mr Zaidi had been received from five patients and before those complaints had been resolved, the Medical Board imposed upon Mr Zaidi a condition that, save in the case of emergency, he see female patients only in the presence of a chaperon: see Exhibit “1” Tab 5. The chaperon nominated was Mrs Follan and alternatively Mr Zaidi’s wife. He was required to provide details to the Board of all female patients seen and by whom the consultation was chaperoned. Mr Zaidi did provide a list of consultations by letter of 25 July 1990. (It is Exhibit “4” Tab 26.)
79 The letter of 25 July 1990 made reference to Mrs Follan and his wife being away for a period but the letter did not mention that in fact Mr Zaidi had seen women in that period without a chaperon. Before the 2002 Tribunal Mr Zaidi submitted that the Tribunal should take into account the fact that it was he who had drawn the Board’s attention to this breach of condition. The 2002 Tribunal rejected that assertion noting that the letter “simply advises the Board that the two approved chaperons, Mrs Follan and Mrs Zaidi were both away over the period 3 July 1990 to 7 July 1990 and makes no comment as to whether Mr Zaidi continued to practise during that period or whether he continued to see female patients over that period”: [107] of 2002 Tribunal decision.
80 The 2002 Tribunal noted that Mr Zaidi had falsely and deliberately asserted that his secretary was at all times present when he had seen female patients: at [104]. Mr Zaidi was taken to that evidence before this Tribunal (T267.14-57) and he denied that it was a lie, saying it was true. A short while later (T268.40-44) he said he did not know what the truth is now – then he explained that his perception was that it was the truth at the time: T269.27-39. He then indicated that he disagreed that a lie was “a deliberate untruth” (T273), and maintained, it would seem, that a lie would include a statement that was false but not believed to be false. We set out the subsequent portion of the cross examination at T273.1-274.9:
“Q. A lie is a deliberate untruth, isn’t it?
A. No.
Q. No?
A. Not in that - lie could be in a - just different change of - because if you've got - if you believe, you see, you're telling the truth, you see.
Q. Yes. That's not a lie, is it?
A. Not really - that you can call a lie, you see. Because this is a - in the fact it's a lie.
Q. Mr Zaidi, if you say something
A. If you're not telling the truth, that's a lie.
Q. If you say something that is not the truth but you believe it's the truth
A. Yes.
Q. -it's not a lie, is it?
A. That is lie. It is a lie - in fact you got a definition - I'm not expert in language and human nature but is a lie is a lie but if you perception that one when the person who's doing it, he's obviously - he doesn't know. He does not know. His perception is wrong.
Q. You say you're not an expert in language, you have lived in Australia for more than 30 years, haven't you?
A. But no, I'm not linguistics here, sir.
Q. Listen to the question. Have you lived in Australia for more than 30 years?
A. Yes sir, I did, yes. Okay. I'm proud Australian, yes.
Q. For some of that period you've been practising as a doctor?
A. Yes, sir.
Q. Are you saying that you understand - you know, don't' you that a lie means a deliberate untruth, don't you? You know that.
A. Yes, but lie - yes, in certain circumstances it's deliberate but if the perception of the person and a person like a woman, or female, or children or thing. You see when the perception is wrong, then shall we say that's not a lie in Sikh definition. Could I give you an example
Q. Do you accept that you lied before the 2002 tribunal or not, about this matter?
A. In my perception that time was the truth. That is a lie now, I'm saying this lie is wrong and I'm sorry about it. I am really stupid, I'm really having had a kick in my back, in my tummy and a penny dropped for me after consulting - going through all that pain and suffering after - I had high morale but then I say, "Look, why the" - because when I read the testament I said, "Why the" - I won't say that. "Why did I do this? I was stupid. I want to be example for my children, as for my community, as for my patients, as for my profession. Why did I let it down for the suffering of all that time - all that - I had to sulk and I just sort of - get guilty feelings and everything." I went through all that pain and suffering and that was because perceptionally I told the truth then and it was a lie. It was a lie.”
81 In his evidence in re-examination, Mr Zaidi again asserted that it was his information that led to the charge that he had breached the condition: T290.40. Although the 2002 Tribunal found that this was not so he again asserted that he had done so by a letter: T290.54. He agreed that he had not done so by the letter of 25 July 1990 (that was relied on by him before the 2002 Tribunal) but asserted that the advice that he had breached the condition was in the lists (T291), but when he could find no reference in the lists attached to the letter to his having seen female patients without a chaperon he said “that there was another list” (T292.20-29) which was with the Medical Board, and then said that he would withdraw that completely: T 293.57-294.16, although he added “for this hearing”.
82 We accept that Mr Zaidi is not a linguistics expert but contrary to ZS(8), we do not think he has demonstrated any clear perception of right and wrong or that he holds any appropriate regard for the truth. We accept that Mr Zaidi did say emphatically that he would abide by any future requirement (see ZS(10)), but we would have no confidence that he would do so (if contrary to the view that we take in respect of re-registration that conditions were otherwise regarded as appropriate).
Acknowledgment of breach of condition
83 With regard to ZS(20), we do not think that it was established that Mr Zaidi intends to go overseas if he obtains re-registration. Whilst that might be relevant to his professed desire to serve the local community as a doctor, that fact, even if established, would not otherwise be relevant. Mr Zaidi admitted that one of his reasons for seeking registration relates to his family. We do not think that fact is at all relevant to, or precludes, re-registration.
Continuing Education
84 Contained within Exhibit “A” Tab 7 is a summary of what Mr Zaidi says have been the continuous efforts he has made to educate himself. He asserts in that submission that:
“During the 2002 Tribunal hearing some of the Applicant’s evidence relating to the progress of his education was not provided in full as unfortunately most of the records were lost, mainly during the forced eviction of the Applicant from his home” (para 1.2).
85 He then goes on to say (para 1.3):
"Since the eviction there has been no similar interruption to the Applicant in his pursuit to gain medical knowledge.”
86 The submissions then assert that the Applicant:
(a) has made productive use of various forms of multimedia including the internet;
(b) regularly reads medical journals, magazines and newspapers;
(c) avidly listens to ABC radio Health Report and “tends to visit the website corresponding to the show to save the transcript for future reference”;
(d) borrows videos on medical research obtained from Video Health Communication;
(e) “downloads information which is highly academic and contains commentary on detailed research which is continuously being carried out by universities and research centres” (3.2);
(f) regularly receives “various forms of educational material at his home which contain information on new developments in the medical field”;
(g) has attended seminars and meetings including – he then lists 14 lectures and seminars attended by him;
(i) reads Australian Doctor and The Observer .(h) subscribes to medical magazines (although 2003 is the last date to which he refers);
87 Mr Zaidi tendered a printout of an email relating to his registration with Med-E-Serv dated 20 April 2005 (Exhibit “D”), a printout of an email from the New England Journal of Medicine dated 1 March 2006 (Exhibit “E”), a printout of a Google page (Exhibit “F”), and an advertisement for Diabex XR (Exhibit “L”). He tendered a portion of a book entitled “Communications for Health Professionals” by V M Smith and T R Bass, which he had borrowed from the Hornsby Ku-ring-gai Health Service.
88 Mr Zaidi also tendered material of a similar nature that had been tendered before the 2002 Tribunal. These documents were Exhibits “S”, “U”, “Y”, “Z” and “AA” in the 2002 Tribunal and became Exhibit “H” before this Tribunal.
89 The HCCC tendered documents that included a certificate that on 7 September 2002 Mr Zaidi attended an ophthalmic seminar and a certificate that he was, in the financial year ending June 2004, a financial member of the Hornsby Ku-ring-gai Ryde Division of General Practice. It included a letter from the librarian of Hornsby Ku-ring-gai Hospital that Mr Zaidi has used the library at the hospital “for study and photocopying purposes only”, and that as he is not a member of staff he was not able to borrow books. There is a copy of an obstetrics update.
90 The fact that a considerable amount of medical material is available on the internet is well known but its availability does not establish that Mr Zaidi has regularly or at all had recourse to it. Focussing on the period since the last Tribunal hearing Mr Zaidi has produced remarkably little to support his assertions of continuous medical education. Explanations were provided for this failure, to which we shall return, but there is very little in the way of objective and independent evidence that he has attended seminars or lectures or embarked upon any systemic study or process of updating. The absence of material is particularly surprising given the very clear indication given to Mr Zaidi by the 2002 Tribunal of the importance of such material in establishing one of the matters to which attention will be given by the Tribunal: see Exhibit “1” Tab 12 p 25.
91 On Monday 15 May 2006, Mr Strickland called on a summons to Mr Zaidi – which sought all records and documents relating to medical education, activities, meetings and the like. Mr Zaidi responded to that call. He explained (at T39.16-34) that his wife “threw away a lot of material which was relevant for last few years”, he having placed it “in the safest place” – under his bed. He asserted that his son was a witness to that “she threw away a lot of material, legal and my research and everything”: T39.33-35.
92 Mr Strickland cross examined Mr Zaidi about this at T220.53 et seq. Mr Zaidi said that he had made no attempts to obtain copies of the documents which had been lost: T222.52, 224.21-26. Mr Zaidi insisted that he had written the document that is at the start of Exhibit “A” Tab 7 (the continuing education summary) (T226.16) and that it was written in his style and language, not that of his son who he said had only put the numbering on it and formatted it. He denied that his son had written the apology: T226.56. He said he had written the summary a few days before he had left for the United States: T227.23-39.
93 He was cross examined upon the statement made by him in the apology that since the eviction from his house (which occurred in 1997) he had no similar interruption to his pursuit of medical knowledge, and has made no reference to his wife having thrown out documents. His explanation for the failure to mention loss of documents in January 2006, when he did make reference to loss of documents in 1997, was the subject of explanation at T230-231 but included the statement that he did not know how many documents had been thrown out by his wife “if it was one or 10 or 20 or something”: T231.3-9. Only two seminars/lectures were the subject of documentation produced: two ophthalmic seminars in September 2002 (7/09/02 and 10/09/02): see Exhibit “9”.
94 The Tribunal asked questions of Mr Zaidi in regard to a very recent lecture he said he had attended (and in respect of which an advertising pamphlet was tendered (Exhibit “11”)) – Mr Zaidi could not remember the name of the drug or the name of the lecturer and could recall almost nothing about the meeting: T289.
95 Contrary to ZS(14) we do not think that there was any obligation on the HCCC to call Mr Zaidi’s wife or anyone else for that matter in relation to Mr Zaidi’s assertion that his wife had thrown out documents.
96 The failure of Mr Zaidi to produce documents in answer to the summons, the later production of documents, the evidence about documents having been thrown out by his wife (when he could not say with certainty that it was more than one), the fact that other documents which he did produce the next day were available (and he said were not kept under the bed) coupled with the previous explanations for non-production before the 2002 Tribunal, as well as the limited quality of the documents and his general unreliability as a witness, left us unpersuaded that Mr Zaidi has attended all of the seminars and lectures which he said he had, or that he has spent much time on self education since 2001 contrary to ZS(5). If Mr Zaidi were otherwise viewed as suitable for re-registration, the fact that he has not been in practice for 16 years would create a very real difficulty so far as his medical knowledge is concerned and one as to which we would need to consider whether it could be overcome and if so, how best it could be overcome.
97 In the course of cross examination on this topic (at T238.41-239.20) was another example of the unreliability of Mr Zaidi:
“STRICKLAND: Q. Mr Zaidi, I suggest that the evidence you have given this afternoon about your explanation either for losing the documents or for not including the fact that you lost the documents in this document entitled Education is a lie.
A. No, sir.
Q. Do you understand that your continuing to lie to this tribunal is relevant to the determination about whether you should be reregistered as a doctor?
A. Your perception of continual lying, I deny that. I have been telling the truth this time to tribunal.
Q. This time? When you say "this time," do you concede that you have been telling lies
A. I didn't say "this time."
Q. You didn't say "this time"?
A. I didn't say "this time." What did you say? What did I say?
Q. You said, "I'm not telling lies this time," I thought was what you said.
A. No, I said your perception of telling lies is not true. I'm telling the truth.
DEPUTY CHAIRPERSON: I think we'll have to have that read back because my notes - have you get a note?
STRICKLAND: My solicitor does.
DEPUTY CHAIRPERSON: My note says time.
A. It's just slip of tongue, your Honour, that's what it is.
Q. Slip of the tongue, was it?
A. Slip of the tongue.” (T238.41-239.20)
Preparation of the Apology and the Continuing Education Summary
98 The precise authorship of the Continuing Education Summary assumed some importance because Mr Zaidi asserted that he had written that document and the apology: see T167.57. It is quite obvious that the apology and education summary were written by someone with a command of English far better than that displayed by Mr Zaidi in the witness box and in his June submissions and submissions in reply of 26 June 2006. It is not of itself of any significance save as yet another example of Mr Zaidi’s unreliability as a witness.
Miscellaneous Exhibits
99 Mr Zaidi tendered an article from the Medical Observer “Tiredness Symptoms Had More Than One Cause” by Dr Chris Cooper. This had been tendered before the 2002 Tribunal as Exhibit “T” and was Exhibit “G” before this Tribunal. In the article Dr Cooper reported on a patient who it turned out had several causes for her tiredness: depression, iron deficiency anaemia, hookworm infection and tuberculosis lymphadenopathy. It is of no assistance to this Tribunal.
100 Mr Zaidi also tendered an article by Dr Craig Lilienthal entitled “Confessions of a Closet GP”, The NSW Doctor , October 1999, in which he described his return to general practice after many years with limited Medical Protection. It is of no assistance to the Tribunal save that it is an example of a doctor with an extensive period out of practice returning to practice.
101 Although there was no independent evidence in support of it, the HCCC did not challenge Mr Zaidi’s assertion that for a period of time in the 1980s he suffered from tuberculosis. We proceed on the basis that Mr Zaidi did suffer from tuberculosis in the 1980s. There is no evidence that such a condition might explain or be relevant to the commission of the acts of indecency which the 1990 Tribunal found were committed. Mr Zaidi does not admit that he committed those acts so there has never been any exploration of the thesis that tuberculosis or depression caused him to carry out those acts. Mr Zaidi’s depression in the 1970s may well have been connected to the non-fulfilment of the urgings of which he informed Dr Argall, but whether or not this is so, the depression was not a result of any proceedings against him at the time, because there were none. There is no medical evidence before the Tribunal to support the contention found in PB(6), leaving aside the point that it contradicts Mr Zaidi’s case that those events never occurred.
102 In ZS(21), Mr Zaidi asserts that he is being discriminated against due to his depression. Although Mr Zaidi does not say by whom this discrimination is being practised, we assume it is directed against the Medical Board and the HCCC. If the assertion is connected to the point dealt with in the preceding paragraph, that depression (and tuberculosis) are to be understood as an explanation for his conduct in 1986-1989, we repeat that there is no evidence that supports that explanation even if it were one that Mr Zaidi had advanced. If, however, the submission is directed solely to the fact that he is or has recently been depressed, we should state that if depression were the only issue relevant to Mr Zaidi’s fitness to practise there are mechanisms (principally the Impaired Registrants Program) which can assist a medical practitioner to be reintegrated into practice and which could be considered. In fact “depression” is only one issue relevant to Mr Zaidi’s fitness to practise, and for the reasons we have set out, is of far less significance than other matters.
103 We are of the view that Dr Chaturvedi’s acceptance that Mr Zaidi misled her is of far less significance than the fact that she has in her expression of views positive to Mr Zaidi accepted his protestations of innocence.
104 ZS(34) is a repetition of the point made by Mr Zaidi before the 2002 Tribunal. The letter does not state that he saw people without a chaperon and the lists which are in evidence at Exhibit “4” Tab 26 contain no advice to the Board that he had seen patients without a chaperon.
105 ZS(33) is not strictly evidence but we shall treat it as a submission. The form of the submission itself further demonstrates the gulf between the documents written by Mr Zaidi and the documents of disputed authorship.
Conclusion
106 In the opinion of the Tribunal, Mr Zaidi has failed to discharge the onus that his character is reformed. He has failed to demonstrate that he is of good character. Mr Zaidi has not, in our opinion, demonstrated that he is a fit and proper person to be held out to patients, the whole of the community and the rest of the profession as a person worthy of their confidence. Mr Zaidi has not persuaded us that there are solid and substantial grounds to believe that he can be trusted to exercise appropriately the high responsibilities of the profession and that he is now a person of integrity, uprightness and responsibility who has overcome the flaws of character and temperament that led him to commit the acts which he was found to have committed between 1986 and 1989, and also, although of a different kind and dimension, his conduct in 1975, 1990 and 2002. We have had regard to the matters identified in the HCCC written and oral submissions and think, contrary to ZS(11), that they are in the main well founded, and we have dealt with these above. We are of the view that his unsuitability to practise is so entrenched that we would doubt that he will ever be an appropriate candidate for readmission given:
(a) the original subjects of complaint;
(b) the length of time over which he has persisted with denial of guilt and failure to obtain treatment;
(c) dishonest conduct and untruthful evidence as found by earlier Tribunals;
(e) the length of time that he has been out of practice.(d) the untruthful and contradictory evidence before this Tribunal as detailed in [69]-[81];
107 So far as ZS(18) is concerned, we have already indicated that it is not the Tribunal’s role to punish, but we do not accept that the “needs of the community” could be served by allowing an unsuitable candidate to practise.
108 We are therefore of the view that Mr Zaidi’s application for re-instatement should be refused. The Act does not permit permanent exclusion, and we are required to set a minimum period within which his further application for re-instatement should not be permitted and we set that at 7 years, having regard to the matters referred to in [106].
Costs
109 The Tribunal is of the view that Mr Zaidi should pay the costs of the HCCC of the application. The Tribunal is uncertain as to whether an order for costs can be made given Mr Zaidi’s status as a bankrupt. It will therefore couch its order in terms that take this aspect into account. The Tribunal is concerned that orders for costs (in excess of $120,000) have been made in the past against Mr Zaidi and have not been met: see T123. The Tribunal is minded to make an order requiring payment of all past costs orders and the present costs orders before any further application can be made but it has not heard the parties on whether it has power to make such an order. The appropriate course is to note that the Tribunal would regard it as appropriate for that issue to be ventilated as a preliminary issue should any further application be made by Mr Zaidi at the expiry of the 7 year period.
- AGLC
- Re Mansoor Haider Zaidi [2006] NSWMT 6
- Case
- [2006] NSWMT 6
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the misconduct, which occurred several years prior, justified a refusal to permit Zaidi's re-registration. The court examined the principles governing reinstatement to the medical register, focusing on the gravity of the past misconduct, the likelihood of re-offending, and any evidence of rehabilitation or change in character. It also considered whether there were any mitigating factors that might weigh in favour of Zaidi's application.
In dismissing the application, the court found that the nature and extent of Zaidi's past misconduct were sufficiently serious to warrant a refusal of re-registration. The court was not satisfied that Zaidi had demonstrated sufficient change or rehabilitation to warrant his return to the medical profession. Consequently, the court ordered that Zaidi's application be dismissed, imposed a costs order against him, and prohibited him from applying for re-registration for a period of seven years.
Orders
Orders of the court
1. The Application pursuant to s 92 of the Medical Practice Act 1992 be dismissed; 2. The Applicant to pay the costs of the HCCC as agreed or assessed, subject to the provisions of the Bankruptcy Act 1966; 3. The Applicant not be permitted to apply for re-registration for a period of 7 years.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.