Re Wadie Farid Wadie Baz Haddad
[2006] NSWMT 5
•1 June 2006
New South Wales
Medical Tribunal
CITATION: Re Wadie Farid Wadie Baz Haddad [2006] NSWMT 5 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
Medical Board of NSW
Wadie Farid Wadie Baz HaddadFILE NUMBER(S): 40027; 40033 of 2005 CORAM: Rein, SC DCJ - Giuffrida, Dr M - Yeo, Dr G - Houen, Ms J CATCHWORDS: Professional misconduct - indecent assaults on patients - improper conduct - breach of Child Protection (Prohibited Employment) Act 1998 - issue of standard of proof - good character LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998, s 3 "conviction", s 6(1)(a)
Crimes Act 1900, ss 61E, 556A
Medical Practice Act 1992, ss 36, 37, 39, 64CASES CITED: Bannister v Walton (1993) 30 NSWLR 699;
Briginshaw v Briginshaw (1938) 60 CLR 336;
McBride v Walton (unreported, NSWCA, 15/7/1994, BC9402907);
Rejfek v McElroy (1965) 112 CLR 517;
R v Sandford (1994) 33 NSWLR 172; 72 A Crim R 160;
Ex parte Tziniolis [1967] 1 NSWR 357;
Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279DATES OF HEARING: 8-9 May 2006 DATE OF JUDGMENT: 1 June 2006 LEGAL REPRESENTATIVES: Mr P J Saidi of counsel (HCCC and Medical Board)
No appearance (Mr Haddad)ORDERS: 1. The Tribunal finds that: (a) the complaint that Mr Haddad engaged in improper conduct relating to the practise of medicine is established; (b) the complaint that Mr Haddad has been convicted of the offence of applying whilst a prohibited person for child-related employment in breach of s 6(1)(a) of the Child Protection (Prohibited Employment) Act 1998 is established; (c) the complaint that he is not of good character is established; 2. The Tribunal finds the practitioner guilty of professional misconduct; 3. The Tribunal orders: (a) that Mr Haddad not be permitted to apply to be re-registered for a period of five (5) years; (b) that Mr Haddad pay the costs of the hearing before the Tribunal; 4. The Tribunal publishes its reasons.
JUDGMENT:
Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 (“the Act”) the Tribunal has made a Non Publication Order in respect of the names of the persons referred to in the determination as “Patient A”, “Patient B” and “Patient C”, each of whom was identified to the Tribunal.
ORDERS
(1) The Tribunal finds that:
- (a) the complaint that Mr Haddad engaged in improper conduct relating to the practise of medicine is established;
(b) the complaint that Mr Haddad has been convicted of the offence of applying whilst a prohibited person for child-related employment in breach of s 6(1)(a) of the Child Protection (Prohibited Employment) Act 1998 is established;
(c) the complaint that he is not of good character is established.
(2) The Tribunal finds the practitioner guilty of professional misconduct.
(3) The Tribunal orders:
- (a) that Mr Haddad not be permitted to apply to be re-registered for a period of five (5) years;
(b) that Mr Haddad pay the costs of the hearing before the Tribunal.
(4) The Tribunal publishes its reasons.
1 The proceedings before the Tribunal have two aspects, both involving Mr Wadie Farid Wadie Baz Haddad (“Mr Haddad”). The first matter is an appeal from a decision of a panel of the Medical Board of New South Wales (“the Board”) on 29 July 2005 that an application by Mr Haddad for re-registration on the NSW Register of Medical Practitioners (“the Register”) be refused. The Board’s panel was constituted by Dr Don Child, Dr Michael Pasfield and Dr Saw-Hooi Toh. We shall refer to this refusal to re-register Mr Haddad as the “Board’s determination”. The appeal proceedings bear the number 40033/05, and we shall refer to this matter as “the appeal”.
2 The second matter which is before the Tribunal, which we shall refer to as “the complaint proceedings” (file number 40027/05), involves three complaints. We set them out from the Further Amended Complaint (26 April 2006) issued by the Health Care Complaints Commission (“HCCC”):
“Dr Wadie Haddad … (the “practitioner”), being a medical practitioner formerly registered under the Act:
COMPLAINT ONE
Has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of sections 36 and 37 of the Act in that he:
Has demonstrated a lack of adequate judgment or care in the practice of medicine, and/or engaged in improper or unethical conduct relating to the practice of medicine.
Particulars of Complaint One
1. At all relevant times the practitioner worked as a general practitioner.
On 22 December 2002 the practitioner treated a male patient, Patient A, at the After Hours GP Service Macarthur Division of General Practice located at Campbelltown Hospital.
During the consultation with Patient A, the practitioner:
(a) Inappropriately removed Patient A’s shorts and underwear forcibly and/or
(b) Failed to seek and obtain Patient A’s consent to perform an examination of Patient A’s genitals and/or
(d) Inappropriately physically examined Patient A’s genitals and/or:(c) Failed to explain to Patient A the reasons for examining his genitals, prior to conducting the examination and/or
(ii) for the purpose of sexual gratification.(i) without proper and sufficient clinical indications and/or
(e) Failed to wear gloves when he was examining Patient A’s genitals.2. On 30 July 1998, the Medical Tribunal heard the practitioner’s application for re-registration as a medical practitioner, and allowed the application, subject to a condition that the practitioner was “To attend a Board nominated psychiatrist for review at 6 monthly intervals for two years, and then at a frequency determined by the Board nominated psychiatrist. Such psychiatrist is to be provided with a copy of the Tribunal’s Reasons for Determination.”
(b) On or about 1 March 1999, the practitioner provided a false personal history to Dr Peter Morse, the psychiatrist nominated by the Medical Board, when he reported that he was not sexually attracted to male persons:(a) The practitioner knew, or ought to have known, that the role of the Board-nominated psychiatrist was to monitor the practitioner’s return to practice, and in particular the appropriateness of the practitioner’s dealings with patients.
(ii) For the purpose of misleading Dr Morse and/or the Medical Board.(i) In circumstances in which the practitioner knew, or ought to have known, that his sexual orientation was a matter which was relevant to Dr Morse’s monitoring and assessment of him; and
(d) On 20 February 2004 the practitioner provided a false personal history to Dr Stephen Allnutt, the Medical Board nominated psychiatrist, when he reported that he was not sexually attracted to male persons:
(c) On each occasion following the initial meeting with Dr Morse, the practitioner continued to provide false and misleading information to Dr Morse in relation to his sexual orientation.
ii. For the purpose of misleading Dr Allnutt and/or the Medical Board.i. In circumstances in which the practitioner knew, or ought to have known, that his sexual orientation was a matter which was relevant to Dr Allnutt’s monitoring and assessment of him; and
COMPLAINT TWO
The practitioner has been made the subject of a criminal finding for an offence in New South Wales.
1. On 26 August 2004 in the Local Court Downing Centre Sydney, the practitioner was found guilty of the offence of Prohibited person apply for child related employment, contrary to s 6(1)(a) of the Child Protection (Prohibited Employment) Act 1998.
COMPLAINT THREE
The practitioner is not of good character.
1.(a) On 25 August 1989 the practitioner indecently assaulted a patient at his rooms at Campbelltown.
(c) On 12 October 1994, the Medical Tribunal found that the practitioner had assaulted the patient on 25 August 1989, and that he was guilty of professional misconduct.(b) On 12 February 1993 the practitioner was made the subject of a criminal finding on a charge that he assaulted the patient with act of indecency on 25 August 1989.
On 22 December 2002 the practitioner treated a male patient, Patient A, at the After Hours GP Service Macarthur Division of General Practice located at Campbelltown Hospital.
During the consultation with Patient A, the practitioner:
(a) Inappropriately removed Patient A’s shorts and underwear forcibly and/or
(b) Failed to seek and obtain Patient A’s consent to perform an examination of Patient A’s genitals and/or
(d) Inappropriately physically examined Patient A’s genitals and/or:(c) Failed to explain to Patient A the reasons for examining his genitals, prior to conducting the examination and/or
(ii) for the purpose of sexual gratification.(i) without proper and sufficient clinical indications and/or
(e) Failed to wear gloves when he was examining Patient A’s genitals.3. On 30 July 1998, the Medical Tribunal heard the practitioner’s application for re-registration as a medical practitioner, and allowed the application, subject to a condition that the practitioner was “To attend a Board nominated psychiatrist for review at 6 monthly intervals for two years, and then at a frequency determined by the Board nominated psychiatrist. Such psychiatrist is to be provided with a copy of the Tribunal’s Reasons for Determination.”
(b) On or about 1 March 1999, the practitioner provided a false personal history to Dr Peter Morse, the psychiatrist nominated by the Medical Board, when he reported that he was not sexually attracted to male persons:(a) The practitioner knew, or ought to have known, that the role of the Board-nominated psychiatrist was to monitor the practitioner’s return to practice, and in particular the appropriateness of the practitioner’s dealings with patients.
(ii) For the purpose of misleading Dr Morse and/or the Medical Board.(i) In circumstances in which the practitioner knew, or ought to have known, that his sexual orientation was a matter which was relevant to Dr Morse’s monitoring and assessment of him;
(d) On 20 February 2004 the practitioner provided a false personal history to Dr Stephen Allnutt, the Medical Board nominated psychiatrist, when he reported that he was not sexually attracted to male persons:
(c) On each occasion following the initial meeting with Dr Morse, the practitioner continued to provide false and misleading information to Dr Morse in relation to his sexual orientation.
(ii) For the purpose of misleading Dr Allnutt and/or the Medical Board.(i) In circumstances in which the practitioner knew, or ought to have known, that his sexual orientation was a matter which was relevant to Dr Allnutt’s monitoring and assessment of him; and
5. On 26 August 2004 in the Local Court Downing Centre Sydney, the practitioner was found guilty of the offence of Prohibited person apply for child related employment, contrary to s 6(1)(a) of the Child Protection (Prohibited Employment) Act 1998.”4. On 7 May 2002, on the “Prohibited Person Declaration” form for the purposes of disclosure under the Child Protection (Prohibited Employment) Act 1998 the practitioner falsely declared that he did not have any relevant convictions.
3 The first complaint also contains material that is relevant to the third complaint. We shall refer to the second complaint as the “prohibited person offence”, and the third complaint as the “character complaint”. The character complaint has a number of elements including not only the matter of the complaint by Patient A but a complaint involving Patient B, and which was found to be established by the Tribunal in 1994: see Tab 32 Exhibit “B”.
4 Mr Saidi of counsel appeared for the HCCC. Mr Haddad did not appear when the two matters were called on Monday 8 May 2006. His non-appearance had been foreshadowed in two letters to the Tribunal dated 17 April 2006 which are on the file and marked “MFI-1” and “MFI-2” respectively, and in which he stated he “could not get lawyer representation” and was facing “extreme family hardship” and was “unable to participate in the tribunal proceedings”. He also requested that he “not be charged the cost of such proceedings”.
5 In approaching the matter of whether allegations of fact have been made out, we have regard to the standard of proof appropriate to such matters. In Bannister v Walton (1993) 30 NSWLR 699 at 711, the New South Wales Court of Appeal confirmed that the standard to be applied is that taken from Rejfek v McElroy (1965) 112 CLR 517 at 521, namely “comfortably satisfied on the balance of probabilities” (see Mahoney JA at 711, Priestley JA at 734, Clarke JA at 734), and having regard to the gravity of the allegations and the consequences which would follow from them if established: see also Briginshaw v Briginshaw (1938) 60 CLR 336.
6 Tendered in the case of the HCCC were two volumes of material (marked respectively Exhibit “A” and Exhibit “B”). The HCCC tendered a response to the Amended Complaint (Tab 2 Exhibit “A”) from the solicitors then acting for Mr Haddad, and it became Exhibit “C”. The Further Amended Complaint (Tab 2 Exhibit “A”) was served only recently on Mr Haddad and an affidavit of service was filed attesting to service of that document. No application was made by Mr Haddad asserting that he would wish to be heard in respect of the fresh matter of complaint and would need time to deal with that or to decide whether to now obtain representation in contrast to the situation identified in his letters of 17 April 2006.
7 The HCCC also tendered a letter from Mr Haddad dated 6 July 2005 by which Mr Haddad requested that a report by Ms Muhamad Ziedni, psychologist, dated 10 June 2005, be “included in submissions to inquiry and Tribunal”: the letter and report are Exhibit “D”.
8 The relevant sections of the Medical Practice Act 1992 with which we are presently concerned are ss 36(1)(a) and (m), 37, 39 and 64:
“ 36 Meaning of “unsatisfactory professional conduct”
(1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
(a) Conduct significantly below reasonable standard
Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
…
(m) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of medicine.
…
37 Meaning of “professional misconduct”
For the purposes of this Act, professional misconduct of a registered medical practitioner means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner’s name from the Register.
39 Grounds for complaint
Any of the following complaints can be made about a registered medical practitioner:
(a) Criminal conviction or criminal finding
A complaint that the practitioner has, either in this State or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
(b) Unsatisfactory professional conduct or professional misconduct
A complaint that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
(e) Character
A complaint that the practitioner is not of good character.
64 Tribunal can suspend or deregister in certain cases
(1) The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person):
(a) that the person is not competent to practise medicine, or
(b) that the person is guilty of professional misconduct, or
(c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence render the person unfit in the public interest to practise medicine, or
(d) that the person is not of good character.
(3) An order may also provide that an application for review of the order under Division 3 of Part 6 may not be made until after a specified time.”(2) An order that a person be deregistered is an order that the person’s name be removed from the Register or (if the person has already ceased to be registered) that the person not be re-registered.
9 Mr Haddad, who was born on 14 June 1948, was admitted to practise in 1975. He has practised as a general practitioner in family medicine since then, eventually working in practices in Maroubra and in Campbelltown until 1994 and from 1998 to 2004, as a registered practitioner known as Dr Haddad. Although he was in those periods entitled to the title “Dr”, we shall for consistency in these reasons refer to him throughout these reasons as “Mr Haddad”.
10 In 1989, a complaint was made against Mr Haddad by a 26 year old male person of Samoan background (“Patient B”).
11 A trial was held at Campbelltown in 1992 and on 4 November 1992 a jury found Mr Haddad guilty of having sexually assaulted Patient B. Judge Grogan, the trial judge, after noting the verdict, dismissed the charge under s 556A of the Crimes Act 1900 (Tab 27 Exhibit “B”). Although the Tribunal does not have a copy of the Remarks on Sentence, a note of what his Honour apparently said is found in the chronology set out in the decision of the Panel (Tab 37 Exhibit “B”) namely “In the circumstances of this case, I should state that the jury’s verdict of guilty is not one with which I personally agree”. We note that a judge is bound by the facts necessarily found by the jury in reaching their verdict of guilty (see R v Sandford (1994) 33 NSWLR 172; 72 A Crim R 160 per Hunt CJ at CL), so the assertion that Judge Grogan did say the words attributed is somewhat surprising but nothing turns on this given the fact that the Tribunal reached its own conclusions in 1994: see Tab 32 Exhibit “B”.
12 On 12 October 1994 the Tribunal, after considering the record of interview given by Mr Haddad in the criminal proceedings, and having determined that what occurred was an indecent sexual assault by Mr Haddad on Patient B, the failure of Mr Haddad to attend the hearing and his failure to give evidence, ordered that his name be removed from the Register, and set a minimum period of three years before Mr Haddad could apply for review of the de-registration order: see Tab 32 Exhibit “B”.
13 Mr Haddad subsequently applied for re-registration and on 30 July 1998 the Tribunal (differently constituted) decided that Mr Haddad should be reinstated (see Tab 33 Exhibit “B”) although reinstatement was subject to stringent conditions, including a requirement for a chaperone.
14 One of the conditions imposed was that Mr Haddad was required to attend upon a psychiatrist nominated by the Board for six-monthly review. Dr Morse was nominated by the Board. Dr Morse’s reports to the Board are found as part of Tab 15 Exhibit “A”.
15 On 2 September 2002 Mr Haddad signed a declaration that:
(a) he was aware that he was ineligible to apply for, undertake or remain in child related employment if he had been convicted of a “serious sex offence” as defined in the Child Protection (Prohibited Employment) Act 1998 ;
(c) that he was not a person prohibited from seeking, undertaking or remaining in child related employment.(b) that he had read and understood the information “attached” in relation to that Act;
16 The declaration was made in connection with an application for employment with the South-Eastern Sydney Area Health Service (Tab 28 Exhibit “B”), and which involved contact with children (see Tab 28 Exhibit “B”). Mr Haddad was in fact a person who had been convicted of a serious sex offence as defined in the Act because although no conviction had been recorded the jury had returned a verdict of guilty (see [28] below) and a “serious sex offence” was defined as an offence involving sexual activity or acts of indecency that was committed in NSW and that was punishable by penal servitude or imprisonment for 12 months or more. Section 61E of the Crimes Act , the breach of which section had been determined by the jury, imposed a maximum penalty of four years.
17 On 21 December 2002 Patient A (a 21 year old Asian male) complained that Mr Haddad had that day examined him in an inappropriate manner. A complaint was made both to the HCCC and the police, and Mr Haddad was charged with the offence of assault with act of indecency upon Patient A. There followed several suspensions of Mr Haddad from practice, and a requirement that he attend a psychiatrist nominated by the Board. Dr Stephen Allnutt was nominated by the Board as that psychiatrist, and Mr Haddad did attend Dr Allnutt on three occasions. Mr Haddad attended his own psychiatrist, Dr Richard Wu, on four occasions in 2004: see Exhibit “D”.
18 On 27 May 2004, Magistrate Haskett found Mr Haddad guilty of the offence of indecent assault upon Patient A. On 30 July 2004 her Honour sentenced him to 18 months imprisonment with a non-parole period of 13 months. At the time the charge was laid, a complaint had also been made to the HCCC.
19 On 26 August 2004 Mr Haddad pleaded guilty to the prohibited person offence and was placed on a s 10 bond for a period of two years.
20 Mr Haddad appealed from the conviction for indecent assault on Patient A and that appeal was heard by Judge Williams on 8 February 2005. His Honour held that there was a reasonable doubt that there was no consent to the touching as part of the examination and a doubt as to the inappropriateness of the examination of Patient B’s penis and testicles. He quashed Mr Haddad’s conviction.
21 Patient A’s complaint to the HCCC was, after the criminal proceedings before the Magistrate, forwarded to Mr Haddad for his comment as part of the investigation into Mr Haddad’s fitness to practise. The firm of Tress Cox responded on Mr Haddad’s behalf (letter of 17 August 2004). The letter asserted:
“Dr Haddad has instructed us that he is currently some 56 years of age and that he has no intention of seeking to apply to be re-registered.”
and they requested that the HCCC consider terminating its investigation. A letter from Mr Haddad (dated 29 July 2004) requesting that his name be removed from the Register was enclosed. A letter from the Board of 5 August 2004 was also enclosed, and it confirmed that as from 29 July 2004 Mr Haddad’s name was removed. A certificate verifying the position is in evidence: Tab 2 Exhibit “A”.
22 In July 2005, the Board held an inquiry to consider an application by Mr Haddad to be re-registered. The application was dated 9 April 2005. A Conduct Committee referred the application for re-registration to a Schedule 1 Inquiry, as required by s 10 of the Act. This led to the Board’s determination on 29 July 2005 which refused re-registration and is the subject of the appeal.
23 It appears that on 11 March 1991, Patient C complained to the Health Department of New South Wales Complaints Unit asserting that Mr Haddad had, during a medical examination, kissed him and asked him for sex, and that Mr Haddad had taken his own pants off: see p 9 of Dr Allnutt’s report at Tab 15 Exhibit “A”. There was other material that pointed to Mr Haddad’s name having become known to police in connection with homosexual activity involving juveniles: see p 10 of Dr Allnutt’s report. According to Dr Allnutt’s report, on 10 April 2003 Dr Alan Carless, Medical Director of Foundation Healthcare in a letter to the HCCC recorded concerns about Mr Haddad that led him to recommend termination by Foundation Healthcare of Mr Haddad’s services.
24 None of the matters referred to in [23] above are the subject of evidence before the Tribunal, not even direct evidence of complaint having been made. No copy of Dr Carless’s letter was made available. Patient C did not proceed with his allegations. Whilst the matters would if established all be matters of concern, there is no proof of them or even of the fact that complaint was made and we therefore disregard these matters in reaching our conclusions.
25 Patient A gave evidence before the Tribunal. He is now 24 years of age. He came to this country at the age of 12 from China and his level of English is excellent. He did not, in his evidence, appear to embellish or exaggerate any part of it. He was not, of course, cross-examined but some questions were asked of him by members of the Tribunal. We have no hesitation in accepting him as a witness of truth whose evidence should be accepted in its entirety. We note that in the criminal proceedings before Magistrate Haskett, following which Mr Haddad was convicted (prior to the quashing of the conviction in the District Court), he was extensively cross-examined. There are only two matters in that cross-examination that in our view have any bearing upon the credibility of Patient A. First, Patient A had said at T44.20-31 of the trial, that Mr Haddad had not said he was going to check his genitals before he touched him there, but after his statement was shown to him where he had said that “Dr Haddad then told me it was his duty to check my genitals then he started to touch my penis and the area around my penis. This lasted 15 to 20 seconds”, he agreed that Mr Haddad had said he was going to examine his genitals. The second matter is that in his statement to police and statutory declaration he said that Mr Haddad had touched his penis as well as his testicles, but in his evidence before the magistrate at T32 he seemed to be saying that Mr Haddad lifted up his testicles and touched his thighs but does not expressly say at that point that Mr Haddad touched his penis. It was not put to him that what he had said in his statement was false. Mr Haddad himself admitted that he did lift back the foreskin on Patient A’s penis (Tab 20 Exhibit “A” pp 3 and 7). These two matters do not cause the Tribunal to doubt the sworn evidence that Patient A gave to the Tribunal. His evidence establishes each of the particulars of the complaint. Some of the particulars are also established by admissions made by Mr Haddad – he admitted to a psychologist (whose report is Exhibit “D”) that he had not used gloves; he admitted that he had not explained why he was examining Patient A’s genitalia and that he had lowered items of Patient A’s clothing (see Magistrate Haskett’s reasons for judgment, T14, May 2004, Tab 2 Exhibit “A”).
26 So far as the prohibited person offence is concerned, it is clear that the offence was committed. There is, however, an issue of whether its commission should be viewed as arising from a misapprehension as to the status of what had occurred before Judge Grogan, since although the jury had found Mr Haddad guilty, Judge Grogan had ordered that no conviction be recorded pursuant to s 556A.
27 There was some difficulty in relation to the issue before the Tribunal because although the form referred to “information overleaf” (see last document Tab 28 Exhibit “B”) that information was not part of Tab 28 Exhibit “B”. The HCCC sought to obtain the original form but was unable to do so. The HCCC issued a summons to the Manager Workforce Services of NSW Health for South Eastern Sydney and Illawarra, and Mr Lewandowski produced a letter and enclosed a version of the Prohibited Person declaration form that existed in 2001 and two versions of its reverse side. These documents have been marked Exhibit “G”. We proceed on the basis that the wording in use was the same as that produced.
28 The wording in use was deficient in that the information given is expressed in terms of “conviction”. It does not indicate, as in our view it should, that “conviction” is defined in the Child Protection (Prohibited Employment) Act 1998 as:
“ conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.”
29 Had that been stated, it would have drawn to the attention of persons such as Mr Haddad that “conviction” was not limited to its more technical meaning.
30 It follows that we are not satisfied that it was clear to Mr Haddad that he was a prohibited person who could not apply, and there is no force in the fact that he declared that he had read the material “overleaf” or “attached”.
31 We do not know what form is presently in use, but if it remains in the form found in Exhibit “G”, it is in need of revision to include express reference to the wider meaning of “conviction”, because it is misleading.
32 The elements that make up the character complaint are:
(1) the fact that Mr Haddad indecently assaulted Patient B and was found guilty of that offence;
(2) the Patient A complaint;
(3) the false history given to Dr Morse;
(5) the false declaration (the prohibited person offence).(4) the false history given to Dr Allnutt;
33 In relation to the false history element, Dr Allnutt gave evidence before us. Not only was he not challenged by Mr Haddad, he was, in our view, a totally objective and reliable witness and we accept his version of his conversations with Mr Haddad, and that Mr Haddad told him only on the second occasion that he had sexual interest in males as well as females.
34 Dr Morse’s reports are in evidence (see Tab 15 Exhibit “A”) and we infer from the contents of the reports that what is recorded as having been communicated to Dr Morse concerning Mr Haddad’s sexual history records the effect of the words used by Mr Haddad. The absence of any indication of homosexual interest is entirely consistent with the history given to Dr Allnutt at the first interview.
35 Consideration needs to be given to the question of whether there was any medical basis for examination of Patient A’s genitalia. Accepting as we do the evidence of Patient A, we have the following situation:
(1) A patient complains of having had a sore throat for a few days.
(2) Mr Haddad asks the patient whether he has had any sexually transmitted diseases, to which the patient answers no.
(3) Mr Haddad then asks the patient to lay on the examination table, and take his shirt off and embarks upon an examination of the patient’s torso (T73.30); he then asks the patient to remove his shorts and underpants, and when the patient does not do so, he pulls down the patient’s shorts and underpants to his knees, possibly saying at the time that he is going to examine the patient’s genitalia, but only as he is removing clothing.
(5) In examining the patient’s penis and testicles, no gloves are used.(4) Mr Haddad then touches the patient’s penis and testicles, rubbing both (T77.26-78.2), and probably touches the patient’s thighs.
36 We accept that there may be rare circumstances in which with presentation of a sore throat, an examination of a patient’s inguinal lymph glands in the inner leg, and examination of genitalia where there is a basis for suspecting that the patient suffers from an STD, may be appropriate, but we are comfortably satisfied that Mr Haddad had no basis for his examination in this case for these reasons:
(1) because he did not examine the patient’s throat first;
(2) because he had on the history presented to him no basis for thinking that the patient suffered from an STD or had a long running throat infection;
(3) because he had no basis from examination of the patient’s lymph nodes in the neck or armpits for concluding that the lymph glands were affected (see para 6 p 3 Tab 18 Exhibit “A”);
(5) because Mr Haddad offered no explanation to Patient A for the genital examination (on Patient A’s evidence and this was admitted by Mr Haddad).(4) because he did not use gloves to handle the penis and testicles, a very obvious requirement if his concern was the possible presence of an STD;
37 Mr Haddad has chosen not to attempt to justify by evidence his decision to examine Patient A’s genitalia. There are however some indications given by him of why he says he did so, that appear in a document forwarded on his behalf in response to the letter from the HCCC (Tab 18 Exhibit “A”), his response to the Amended Complaint (see Exhibit “C”), in the psychologist’s report (Exhibit “D”), in the account of what occurred given to Dr Allnutt and in the record of interview with police that is referred to in the decision of Magistrate Haskett (see Tab 23 Exhibit “A”). Those explanations appear to be:
(1) that Patient A was being evasive and difficult (p 6, Dr Allnutt’s report: Tab 15 Exhibit “A” and p 2 of Exhibit “C”) and it was late at night after a long day (Exhibit “C”) and see p 2 Tab 18 Exhibit “A”;
(2) that the patient had a “communication impediment” (see p 2 Exhibit “C”); that he did not think the patient “particularly understood me in any event” (para 8 p 2 Tab 18 Exhibit “A”);
(3) that Mr Haddad, having recently attended a seminar or course on HIV and AIDS was very conscious of the possibility that the patient, being an Asian male, could have STDs (T15, Tab 23 Exhibit “A”);
(4) because “it was strange that the throat was not really inflamed and it was 10 o’clock at night so I was wondering if there was something else I should be looking for … On the other hand it could be the beginning of an STD or it could be in the lifestyle of an STD” (T15.42-57 of Tab 23 Exhibit “A”, citing Mr Haddad’s record of interview);
(5) that it was “his practice to perform full examination of body systems in a new patient and wanted to exclude all possible causes for sore throat” (p 3 Tab 18 Exhibit “A”);
(6) that he did not feel comfortable in asking Patient A whether he did have an STD (T15-16 Tab 23 Exhibit “A”) (on Patient A’s evidence Mr Haddad did ask him that question and received a negative answer);
(8) that Patient A “made some sarcastic remarks when I tried to establish a rapport with him so I decided not to pursue too much history taking and to concentrate more on a quick but comprehensive physical examination”: p 2 Tab 20 Exhibit “A”.(7) that there was a breakdown in communication (Dr Allnutt’s report p 7 Tab 15 Exhibit “A”, and see para 8 p 3 of Tab 18 Exhibit “A”);
38 There are a number of inconsistencies between the various responses – for example in Exhibit “C” it is asserted that Mr Haddad never consciously made contact with Patient A’s penis – but Mr Haddad himself has written on two occasions that he did consciously do so: see pp 3 and 7 Tab 20 Exhibit “A”. In the response (Exhibit “C”) there is an assertion of a concern for STDs and hernias and a reference to it being late at night but no reference to a practice of full examination of new patients. The assertion that he conducted a full examination of new patients is quite a different explanation to one based on a concern that Patient A might have an STD.
39 We reject the suggestion that Patient A was evasive or difficult or had any communication impediment or said or did anything that precluded the taking of an adequate history, nor can we see that as justifying a genital examination. We think it an extraordinary proposition that Mr Haddad was concerned that the patient might have AIDS and yet did not use gloves. We accept Patient A’s evidence that Mr Haddad examined the throat last, so the state of the throat could not have been a factor in considering the possibility of an STD. We accept Patient A’s evidence that Mr Haddad did ask him whether he had had any STD and that Patient A told Mr Haddad that he had not.
40 Dr Black in his report focuses on a number of these points such as the absence of gloves, the failure to examine the throat first, and he also expresses disbelief of Mr Haddad’s explanation that he embarked upon a full examination to exclude items that “no reasonable doctor would look for unless questioned by his Professor of Medicine”, and whilst the report appears to us to stray in a number of respects from the confines of appropriate expert medical opinion, we think that it does provide independent support for the lack of justification for genital examination of Patient A.
41 We note that two colleagues who worked with Mr Haddad (see pp 1-2 Tab 19 Exhibit “A”) did at an earlier time seek to justify the examination, but these explanations do not deal with the matters to which we have referred and really only support the proposition (which we accept) that there may be occasions in which a genital examination might be appropriate.
Findings
42 (1) We are comfortably satisfied that Mr Haddad has engaged in improper and unethical conduct relating to the practise of medicine and hence unsatisfactory professional conduct, in that on 22 December 2002 he treated Patient A at the After Hours GP Service Macarthur Division of General Practice at Campbelltown Hospital and:
(b) that he did so for the purpose of sexual gratification.(a) he removed Patient A’s shorts and underwear and examined Patient B’s genitals without proper and sufficient reasons for such examination and without obtaining Patient A’s informed consent; and
(2) We are comfortably satisfied on the balance of probabilities that Mr Haddad did not use gloves for the examination of Patient A’s genitals. This is relevant to (1), because it undermines the assertion by Mr Haddad that he was concerned to rule out a sexually transmitted disease, but it is also relevant to a separate matter, which is that the failure to use gloves constituted a failure to use adequate care in the examination, quite apart from the purpose of it.
(3) In our view, that conduct constitutes professional misconduct being of a sufficiently serious nature to justify removal of Mr Haddad’s name from the Register (had it not already been removed).
(4) We set out the Tribunal’s findings made on 12 October 1994 that on 25 August 1989, Mr Haddad indecently assaulted a patient at his rooms at Campbelltown (Tab 32 Exhibit “B”), namely:
2. On 25 August 1989 he engaged in the following improper and/or inappropriate conduct with [Patient B] in his consulting rooms whilst purporting to carry out a physical examination:-
“1. That on 25 August 1989 he enticed and solicited [Patient B] into his consulting rooms for an improper purpose.
(a) indecently assaulting [Patient B] by manipulating his penis and testicles.
(c) soliciting [Patient B] to engage in oral sex.(b) hugging and kissing [Patient B].
The short facts of the matter are that the patient was standing outside the respondent’s surgery on the day alleged and the respondent went outside from his rooms and then persuaded the patient to enter his surgery for the purpose of conducting a medical examination.
The Tribunal is satisfied that the respondent did not know [Patient B] at that time, in other words, that person was not a then existing patient of the respondent.
When he had taken his shirt off the respondent kissed him on the chest, directed him to remove all his clothing which he did. He then fondled the testicles and penis of [Patient B], and when this resulted in [Patient B] obtaining an erection, knelt down before him and indicated that he, the respondent, wished to fellate [Patient B]. Upon this happening, [Patient B] hurriedly gathered his clothes together and left.”On entering the surgery the respondent directed [Patient B] to disrobe. He kissed him on both cheeks which [Patient B] took merely as a form of welcome, he being a Samoan and this not being an unknown practice in his culture.
(See Tab 32 Exhibit “B”.)
Whilst we would not ourselves have accepted that Mr Haddad’s kissing of Patient B on the cheeks had the benign character or justification that Mr Haddad sought to ascribe to it, even leaving that point to one side, we proceed on the basis that the findings of the Tribunal were correctly made and that the circumstances described represent a very serious departure from what would be expected from a medical practitioner. They bespeak a most significant problem that clearly justified the decision of the Tribunal to deregister Mr Haddad.
(5) We are comfortably satisfied on the balance of probabilities that Mr Haddad, having been referred to a Board-appointed psychiatrist as a condition of being permitted to be re-registered in 1998, viz Dr Peter Morse, on 1 March 1999 gave a false personal history to Dr Morse when he told Dr Morse that he was heterosexual and not attracted to male persons, whereas in fact he had for many years been attracted to males and had sexual relations with males, and that he on no subsequent occasion told Dr Morse of the true position.
(6) We are comfortably satisfied that on 20 February 2004 Mr Haddad having been referred to Dr Stephen Allnutt, a psychiatrist nominated by the Board gave a false personal history to Dr Allnutt when he told Dr Allnutt he was not sexually attracted to male persons whereas in fact, he had for many years been attracted to males.
(7) We are comfortably satisfied that Mr Haddad deliberately failed to advise Dr Morse and Dr Allnutt of his sexual proclivities and thereby misled these practitioners, whose role it was to make an assessment relevant to the Board’s decisions in regard to the continued practice of Mr Haddad and the conditions under which he would be permitted to practise.
(8) We are comfortably satisfied that on 29 September 2002, Mr Haddad declared that he did not have any convictions as defined for the purposes of the Child Protection (Prohibited Employment) Act 1998 , whereas in fact he had been found guilty by a jury of such an offence (ie the offence involving Patient B), but we are not comfortably satisfied that Mr Haddad appreciated that he was a convicted person for the purposes of that Act.
43 There can be no dispute that Mr Haddad was found guilty by a jury of indecent assault in relation to Patient B (see Tab 27 Exhibit “B”), and that he was charged with indecent assault in relation to Patient A. So far as the quashing of the conviction in relation to Patient A is concerned it needs to be understood that:
(b) the test for conviction of a criminal offence – proof beyond reasonable doubt – is a higher standard of proof than that which is to be applied by this Tribunal (ie comfortably satisfied on the balance of probabilities).(a) Judge Williams was determining the matter on the basis of transcript of evidence before the magistrate – he did not have the advantages of hearing Patient A give evidence;
Good character
44 The question of what constitutes “not of good character” has been the subject of attention in a number of decisions of the NSW Court of Appeal. McBride v Walton (unreported, NSWCA, 15/7/1994, BC9402907), Bannister v Walton (1993) 30 NSWLR 699 and Ex parte Tziniolis [1967] 1 NSWR 357 are all cases dealing with the Medical Practitioners Act as the Act was formerly known. The complication that sometimes arises, as in Tziniolis and McBride (and see for example Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 in relation to a barrister), is that the conduct said to establish a lack of good character is not conduct directly relevant to the professional’s work as a professional. That complication does not arise here because all the matters alleged to constitute the absence of good character are matters pertinent to the conduct of Mr Haddad either in his practice or in relation to the subsequent disciplinary matters arising out of his conduct as a medical practitioner.
45 In McBride v Walton , the Tribunal had directed itself as to how the question of good character should be determined in the following terms:
“To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practice medicine, one must consider: (a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practice medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other misconduct; and (f) whether the practitioner’s conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.”
That approach was viewed as correct by the Court of Appeal per Handley JA at 27 and per Powell JA at 52.
46 Dealing with these matters seriatim, we are of the view that the misconduct cannot be described as an error of judgment, but rather indicates a defect of character. It is not, we emphasise, important per se that Mr Haddad has homosexual proclivities, but rather that he has allowed those proclivities to intrude into his work as a medical practitioner and to obtain sexual gratification in circumstances where the unsuspecting patient has reposed considerable trust in him and become, without consent, the object of those proclivities. We regard the misconduct with the patients as intrinsically very serious and indicating an unfitness to practise medicine. We do not view the episodes as isolated episodes and atypical or uncharacteristic of his normal qualities of character, but rather as being connected to a sexual proclivity or propensity that is unlikely to abate until Mr Haddad comes to terms with his problem. The motivation in our view is clearly connected to his need for sexual gratification.
47 In relation to the report of Ms Ziedni, we note that even at 10 June 2005, Mr Haddad was not reporting to her accurately the events involving Patient A. Little detail was provided by him in relation to Patient B. No details of his homosexual proclivities (outside of his assaults on Patients A and B) were reported to Ms Ziedni and what is stated at section 3 of the report is consistent with what he had told Dr Morse (and Dr Allnutt initially) rather than what he admitted to Dr Allnutt on further probing by Dr Allnutt. We note too that the report is guarded and does not specifically answer the questions set out on p 1 of the report. We find the report of little assistance given its failure to address the significant matters discussed by Dr Allnutt in his report of 11 March 2004. We would accord far greater weight to Dr Allnutt’s opinion given his qualifications as a psychiatrist, and his extensive experience with sex offenders (see p 26 Tab 15 Exhibit “A”) and the fact that his report addresses the question of Mr Haddad’s sexual orientation in clear terms.
48 We accept that Mr Haddad has applied himself to his work and has earned the appreciation of his patients and other colleagues.
49 The failure of Mr Haddad to provide an honest history to Dr Morse is of particular significance and has had the grave consequence that Mr Haddad was permitted to continue to practise without the key issue in his character being addressed. We regard that as indicative of a flaw in character and itself a matter of misconduct. The failure to inform Dr Allnutt of that history (initially) is another indication of a willingness to mislead, indirectly, the authority responsible for his continued registration.
50 We are comfortably satisfied, taking all these matters into account (and leaving out of account the prohibited person offence), that Mr Haddad is not of good character.
51 The HCCC seeks an order that Mr Haddad be precluded from applying for registration for a minimum of three years.
52 The Tribunal’s powers to preclude re-registration are not based on any element of punishment but rather are solely concerned with protection of the public. We do not think Mr Haddad should be permitted to reapply to practise medicine for the next five years, for the following reasons:
(1) The nature of the assaults on Patients A and B: both assaults occurred in the context of physical examination of patients who Mr Haddad was seeing for the first time, in which Mr Haddad carried out examinations of the patient’s genitalia when there was no proper basis for the examination. The 1994 Tribunal rejected Mr Haddad’s explanation of a bulbo-cavernosus test as completely untrue (p 3 Tab 32 Exhibit “B”), a conclusion which we accept and which we find unsurprising, as the bulbo-cavernosus test involves physical stimulation of the penis and is a neurological reflex test used to determine the degree of sacral nerve impairment (see p 4 Tab 32 Exhibit “B”). Mr Haddad himself stated in 1997 that he accepted that the test was inappropriate (see Exhibit “F”), although this was not linked to any acceptance that his actions were connected to a form of sexual gratification. The examination of the genitalia of Patient A, in the circumstances as occurred, had no proper medical basis whatsoever.
(2) According to Dr Allnutt, whose evidence we accept, Mr Haddad exhibits a form of frotteurism, known as “toucherism”, that is, in a clinical context he has inappropriately touched the genitalia of male patients for sexual gratification using the cover of medical examination: see p 19 of the report of 11 March 2004, Tab 15 Exhibit “A” and see T49-51. According to Dr Allnutt, Mr Haddad is at moderate to high risk of repeating this type of activity with other male patients (and less likely, it would seem, with female patients).
(3) Mr Haddad has in respect of both incidents with which he has been charged (and in the case of Patient A found guilty by a court of law) offered explanations for his conduct that include a supposed medical basis for the examination and supposed communication problems with his patients, which the Tribunal in 1994 and again now in respect of Patient A has not accepted. He endeavoured to explain the first incident as an aberration arising out of pressure of work and personal stress: see Exhibit “F”. Whatever view might be taken of that explanation in 1994 and 1998, the further incident involving Patient A and Dr Allnutt’s evidence make that explanation unlikely, and no medical evidence has been tendered in support of that explanation.
(4) Mr Haddad was permitted to re-register on the basis that he had committed only one offence (involving Patient B) which was out of character, and was given the opportunity to overcome his past. He returned to his former conduct however in 2002, pointing to a recidivist aspect. He provided a false history to Dr Morse and even after the further matter involving Patient A had occurred and been the subject of a complaint, Mr Haddad did not provide an accurate report of his sexuality to Dr Allnutt in the first interview. It is true that Mr Haddad did admit his homosexual proclivities to Dr Allnutt in the second interview but Mr Haddad even in more recent times seemed unwilling to face up to his problem: see Dr Allnutt’s report of 19 July 2005: Tab 15 Exhibit “A”. We regard the lack of honesty with Dr Morse and Dr Allnutt (initially) as a matter of considerable significance since it was a lack of honesty with those upon whose advice the Board was reliant in considering amongst other things the likelihood of his re-offending in the future. Dr Morse expressed the view that he did not believe Mr Haddad was in danger of carrying out inappropriate sexual acts with any patients (p 50 Tab 15 Exhibit “A”) but he was not told by Mr Haddad of Mr Haddad’s true sexual proclivities and could not therefore consider the significance of that information. Dr Allnutt certainly considered the information to be of significance and there is no reason to think that Dr Morse would not have done so.
(5) We do not think that Mr Haddad could be considered for re-registration unless and until he had commenced on a path of rehabilitation, including psychiatric assessment and treatment specifically addressing the issue of his sexual proclivities, that could induce confidence that the risk of his re-offending is eliminated. As Dr Allnutt pointed out, successful rehabilitation cannot begin until a patient has recognised his vulnerability.
(6) The concerns about improper touching of male genitals under cover of medical examination are not limited to Patients A and B. Mr Haddad himself in the history he gave Dr Allnutt and it would seem in a purported justification for his examination of Patient B, is described as stating to Dr Allnutt (p 8 of Tab 15 Exhibit “A”):
“He stated that he would ask people to become fully undressed in circumstances where he wanted to examine their musculoskeletal system, the genital area. He stated that he would do the bulvo cavernosus reflex when appropriate as part of a full check up and he would try to do a rectal examinations [sic] as often as possible, as long as his patients did not object.”
(7) We are of the view that Mr Haddad’s attempt to ascribe his examination of Patient A as the result of a communication problem (either on the part of Patient A and/or Mr Haddad or both) is false and we reject his attempt to paint Patient A as a difficult and evasive patient. This is yet another indication of Mr Haddad’s unwillingness to accept the real motive behind his touching of Patient A (and Patient B).
53 There is evidence before the Tribunal that Mr Haddad was a very hard working practitioner who was generally an excellent communicator with patients and that he made positive efforts to keep up to date with changes in practice (see Tab 19 Exhibit “A”). We recognise that there will be patients who will be sorry not to be able to call on Mr Haddad’s services and that both areas in which he practised (and particularly Campbelltown) can ill afford to lose an experienced general practitioner, fluent in not only English but also French and Arabic. These matters and the loss by Mr Haddad of his ability to practise add a tragic dimension to the events with which this Tribunal is concerned, but it is the protection of the public that is of paramount concern.
The Appeal
54 Mr Haddad has not appeared to prosecute the appeal, so in accordance with normal practice, the appeal should be dismissed. Whilst it is not formally necessary to deal with the appeal, the appeal covered the same ground as the complaints proceedings, and our conclusion in respect of the complaints would have led us to reject the appeal.
Costs
55 The HCCC seeks an order that Mr Haddad pay the costs of the hearing before the Tribunal. The Tribunal has given consideration as to whether Mr Haddad should be specifically invited to address the Tribunal on the issue of costs, but he has taken no part in the proceedings of the Tribunal even to request that he be heard on that issue, and we have referred to his letters. We do not see a need to reconvene the Tribunal in such circumstances. Our view is that Mr Haddad should pay the costs of the hearing, since the need for the hearing has arisen out of his conduct.
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