Gao v Health Care Complaints Commission [2025] NSWCATOD 69

ii. Where there is always one other registered medical practitioner on site.

iii. If the group practice is a general practice, it must be accredited.

(c) Not to consult, examine, treat or perform any procedures on any female.

i. The practitioner may only provide emergency medical services to such persons in compliance with s 139C(c) of the Health Practitioner Regulation National Law (NSW).

ii. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council.

(d) To consult with no more than 4 patients per hour and no more than 28 patients per day.

i. The practitioner is to provide the Medical Council of NSW with copies of records confirming the number of patients treated/consulted, their consultation times, and hours worked on any dates as specified by the Council.

i. These days are inclusive of any administrative work.

(f) To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.

i. The terms of the Council's Compliance Policy - Supervision are varied to require the practitioner to:

(A) authorise the Council approved supervisor to forward reports to the Council (in a Council approved format) every month

ii. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on:

(A) Progress with return to clinical practice and Continuing Professional Development

(B) Professionalism including professional ethics, consent and patient boundaries

(C) Communication skills, including identifying cues from patients' body language

iii. At each supervision meeting, the Council-approved supervisor is to randomly select and review at least 5 patient records from the preceding fortnight.

(A) Details and feedback about the reviewed patient records are to be discussed at the supervision meetings and included in the supervision reports.

iv. During the first 6 months of supervision and in addition to fortnightly supervision meetings, the practitioner is to undertake monthly observation sessions which should be of at least one hour in duration. These sessions must alternate between:

(A) The Council-approved supervisor observing the practitioner's conduct at at least 5 patient consultations; and

(B) The practitioner observing the Council-approved supervisor's conduct at at least 5 patient consultations.

(C) Details and feedback about the observations are to be discussed at the supervision meetings and included in the supervision reports.

v. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition, and any other decision or report as determined by the Council.

vi. Not to practise until a supervisor has been approved by the Medical Council of NSW.

(g) To undergo a practice-based Performance Assessment within 12 months of recommencing practice.

(h) To authorise the Medical Council of NSW to forward copies of the decision which imposed these conditions and any subsequent reports and any other information relevant to their health and treatment to their Council-approved supervisors.

(i) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.

(j) These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW).

(k) Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.

2. The Practitioner pay the costs of the Commission as agreed or assessed.

PROFESSIONAL DISCIPLINE - Medical Practitioner - Where the registration of the Practitioner was cancelled with a non-review period of one year following gravely serious findings of misconduct perpetrated by the Practitioner against Patient A - Whether a reinstatement order should be made - Where a reinstatement order is made subject to conditions - Where an order for costs is made in favour of the Commission

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Dawson v Law Society of NSW [1989] NSWCA 58

Ex parte Tziniolois: Re Medical Practitioners Act (1966) 67 SR (NSW) 448

Health Care Complaints Commission v Gao [2022] NSWCATOD 73

Health Care Complaints Commission v Gao (No 2) [2023] NSWCATOD 19

HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

Jan v Health Care Complaints Commission [2021] NSWSC 350

Ng v Health Care Complaints Commission [2018] NSWCATOD 105

Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82

Zepinic v Health Care Complaints Commission [2020] NSWSC 13

Zepinic v Health Care Complaints Commission (No. 2) [2018] NSWCATOD 166

1. On 6 March 2023 an order was made cancelling the registration of Dr Edward Gao (the Practitioner) with a non-review period of 12 months.
2. By an Application filed on 5 November 2024, and pursuant to s 163A(1)(b) of the Health Practitioner Regulation National Law (NSW) (National Law), the Practitioner seeks a review of that order and that the Tribunal make a reinstatement order pursuant to s 163B(1)(c) of the National Law.
3. The order cancelling the Practitioner's registration was based upon complaints about the Practitioner's interaction with Patient A in consultations which occurred on 2 October, 3 November 2018 and 29 April 2019. At that time, the Practitioner worked as a general practitioner in Forster.
4. During the first consultation in October 2018, he inappropriately lifted Patient A's breasts with both hands to demonstrate how they would appear following breast reduction surgery, when Patient A had not requested his opinion; that he touched her breasts without clinical indication or informed consent and told her "Cosmetically it will look better" and again, "Cosmetically it will be much better".
5. During the second consultation in November 2018, the Practitioner inappropriately lifted the elastic banding on the top of Patient A's underwear before conducting an examination of her genital area and he failed to provide sufficient information to Patient A to enable her to provide informed consent for the examination.
6. During the third consultation in April 2019, the Practitioner grabbed Patient A around her waist, kissed and sniffed her neck, said to her "give me a kiss", attempted to hold her hand, stroked her cheek, attempted to hug her and suggested a further breast examination which was not clinically indicated.
7. The Practitioner also failed to record sufficient information in his records for these three consultations with Patient A.
8. On 6 July 2022, the first Tribunal (the first Tribunal), after the Stage 1 hearing, found the Practitioner guilty of unprofessional conduct and professional misconduct (Health Care Complaints Commission v Gao [2022] NSWCATOD 73) and on 6 March 2023, after a Stage 2 hearing, ordered that the Practitioner's medical registration be cancelled with a non-review period of one year (Health Care Complaints Commission v Gao (No 2) [2023] NSWCATOD 19).
9. On this review application, the Health Care Complaints Commission (the Commission), appears before us as of right (s 163C(4) National Law) in the role of contradictor. The Commission cross examined the Practitioner, his mentor and the Practitioner's consultant psychiatrist and made submissions regarding relevant principles. The Commission initially took a neutral position in the case but during the second day of the hearing announced that it sought that the Practitioner's application be dismissed with the effect that his cancellation would continue.
10. At our request the Commission provided in point form a document summarising the oral submissions made by it on 1 April 2025. That document was received on 4 April 2025 and is marked exhibit 20.

1. Section 163A(1)(b) of the National Law provides:

(1) a person may apply to the appropriate review body for a review of -

...

(b) a relevant order made in relation to the person.

1. Section 163(1)(c) provides that in the circumstances of this case, the Tribunal is the appropriate review body.
2. Sections 163B(1)(a) and (c) provide:

(1) the appropriate review body must conduct an inquiry into an application for review and may then do any of the following -

(a) dismiss the application;

...

(c) make a reinstatement order.

1. If we are of the view that the cancellation order is still appropriate and dismiss the Practitioner's application, s 163B(5) of the National Law provides:

(5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.

1. If we make a reinstatement order, the nature of that order is described in s 163B(3) of the National Law which provides:

A reinstatement order is an order that the person may be registered in accordance with Part 7 if -

(a) the person makes an application for registration to the National Board; and

(b) the relevant National Board decides to register the person.

1. Section 163B(3A) and (4) of the National Law provide:

(3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under ss (4).

(4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order.

(1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.

(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision.

(3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint.

1. We are guided by the objects and principles of the National Law. Section 3B of the National Law (formerly s 3A) provides that in our deliberations, the protection of the health and safety of the public must be the paramount consideration. Section 3(2)(a) of the National Law provides when providing for the protection of the public, only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
2. We shall also have in mind some of the provisions of the National Law which set out when a National Board may decide an individual is not a suitable person to hold general registration in a health profession. Sections 55(1)(f), (g) and (h) of the National Law provide:

(1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if -

...

(f) the nature, extent and period of recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession;

(g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession;

(h) in the Board's opinion, the individual is for any other reason -

(i) not a fit and proper person for general registration in the profession;

(ii) unable to practice the profession competently and safely.

1. As the provisions of the National Law that are set out above make clear, this is a review to determine the appropriateness of the continuation of the cancellation order made on 6 March 2023 as at the date of this hearing and an inquiry into the present fitness of the practitioner in light of the reasons by the first Tribunal which led to the cancellation of the Practitioner's registration in July 2022. We are not to review the original cancellation decision or any findings made in connection with the making of the cancellation decision.
2. The current authorities indicate the standard of proof is the civil standard on the balance of probabilities to the level of our comfortable satisfaction as described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw).
3. Leeming JA in Jan v Health Care Complaints Commission [2021] NSWSC 350 at [67] said, "The onus rests on the plaintiff, and the power to reinstate should 'be exercised with the greatest caution and only upon solid and substantial grounds': see Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 422... applied in Ng v Health Care Complaints Commission at [27],[29]."
4. In Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [44], Adam J dealt with an appeal from a decision of the Tribunal not to reinstate Mr Zepinic. Adam J at [44] says, with reference to the Tribunal's decision in that case:

"The relevant principles guiding a reinstatement application are set out at [6]-[9] of the decision. No challenge was made to the correctness of the applicable principles. I shall consider these principles in my consideration below. It was noted that the standard proof is the civil standard, on the balance of probabilities, to the level of satisfaction described by the High Court in Brigenshaw v Brigenshaw (1938) 60 CLR 336; (1938) HCA 34."

1. In the Tribunal's decision in Zepinic v Health Care Complaints Commission (No. 2) [2018] NSWCATOD 166 at [6]- [8] (addition added in bold):

"6. These proceedings are not a re-hearing of the decision of the Psychologists Tribunal in 2010 to cancel Dr Zepinic's registration as a psychologist, or the prohibition order, or the order that he not seek re-registration for a period of five years. In conducting this review the Tribunal cannot review the original decision, or any findings made in connection with the making of that decision: s 163C(2) National Law. The task of the Tribunal is to determine the appropriateness, at the time of the review, of the order concerned: s 163C(1).

7. The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms

12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include:

(1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)):

(2) The paramount consideration is the protection of the health and safety of the public: see s 3A (now s3B);

(3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24];

(4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13].

(5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23].

(6) 'Clear proof' is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is 'in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made': Amieson at [24].

(7) It is not 'a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future'. The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34];

8. In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated:

30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that:

[A]n applicant for reinstatement ... is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise 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.

31. In that case, the Medical Tribunal also stated at [42]:

[T]he ultimate issue ... is a question of [the applicant's] 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."

1. In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 (Ng) at [28], the Tribunal also quoted Ex parte Tziniolois: Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461, where Walsh JA said:

"Reformations of character and behaviour can doubtless occur but their occurrence is not usual but the exceptional thing, one cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discredible kind has occurred.

If a man has exhibited some serious deficiencies in his standards of conduct and his attitudes, it must require a clear proof to show some years later he has established himself as a different man."

1. In Dawson v Law Society of NSW [1989] NSWCA 58 Kirby P (dissenting) at [17] remarked:

"There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended once they have affirmatively proved reform, are afforded a second chance..."

The Conclusions of the First Tribunal at Stage 1

1. The first Tribunal provided a detailed and meticulous analysis of the allegations made by Patient A against the Practitioner.
2. At the first hearing the Commission bore the onus of establishing each particular breach. The Tribunal strictly applied the appropriate burden of proof, namely, on the balance of probabilities to the Briginshaw standard. The Tribunal needed to be comfortably satisfied about a particular before it found it to be established. Many of the allegations related to what was said or what happened between Patient A and the Practitioner behind the closed door of his consultation room. Patient A and the Practitioner told diametrically different stories. The Practitioner either flatly denied what Patient A alleged or gave a version which was more benign. There were no general findings of credit against either Patient A or the Practitioner. The Tribunal found that many of the allegations made by Patient A were not established to the requisite standard of proof.
3. The Tribunal was comfortably satisfied of the following particulars of Patient A's complaints:

"Complaint 1

Consultation on 2 October 2018

Particulars

6. After conducting a breast examination on the patient, the practitioner inappropriately touched patient A's breast in that he:

...

(c) lifted patient A's breasts with both hands to demonstrate how they would appear following breast reduction surgery;

(d) touched patient A's breasts when an examination of her breasts for the purpose of a breast reduction was not clinically indicated;

(e) touch [sic] patient A's breasts when patient A had not requested the practitioner's opinion on a breast reduction;

(f) did not obtain an informed consent from patient A for a further examination

7. The practitioner inappropriately spoke to patient A about a breast reduction in that:

(a) after patient A sat up following the breast examination, while her breasts were still exposed, he said words to the effect of:

...

(2) "cosmetically it will look better"

(b) whilst lifting patient A's breasts with both hands to demonstrate how they would appear following breast reduction surgery, he said words to the effect of, "cosmetically it will be much better".

Consultation on 3 November 2018

9. The practitioner inappropriately lifted the elastic banding on the top of patient A's underwear....where:

...

(b) the practitioner failed to offer a chaperone to patient A before conducting a visual examination of her genital area;

(c) the practitioner failed to provide an explanation of the nature and purpose of the examination and thereby failed to provide sufficient information to patient A to provide informed consent for the examination.

Consultation on 29 April 2019

11. The practitioner failed to maintain appropriate professional boundaries with patient A in that he engaged in inappropriate physical conduct, and/or made inappropriate comments to patient A, namely:

(a) deleted

(b) as patient A walked towards the patient consultation chair (the chair) the practitioner walked past patient A and:

(i) grabbed patient A tightly around the waist;

(ii) kissed and sniffed the right side of patient A's neck;

(iii) pulled patient A towards him after she tried to push away from the practitioner;

(iv) patient A said words to the effect of, "what are you doing?";

(c) after patient A sat in the chair, the practitioner said words to the effect of, "don't wear your jumper like that, you look manly";

(d) the practitioner asked patient A to stand up, following which he:

(i) grabbed patient A tightly around her waist with his hands;

(ii) kissed and sniffed the right side of patient A's neck;

(iii) pulled patient A towards him after she tried to push away from the practitioner;

(iv) said words to the effect, "give me a kiss";

(e) the practitioner asked patient A to sit on the examination bed, in circumstances where there was no clinical indication for this request;

(f) patient A sat back in the chair, following which the practitioner attempted to hold her hand;

(g) the practitioner conducted a blood pressure test on patient A, during which the practitioner stroked patient A's cheek with his finger;

(h) the practitioner then stood up and attempted to hug patient A as she remained sitting in the chair;

(i) at the conclusion of the consultation, the practitioner asked patient A if he could conduct a further examination, namely of her breasts, in circumstances where the examination was not clinically indicated."

1. At [193] the first Tribunal noted that no part of particular 11 asserted "a prurient interest" in Patient A, or that the Practitioner was "sexually motivated" in his conduct towards her.
2. In particular 13 of Complaint 1, the Commission asserted by reasons of particulars 1 to 12, either individually or in combination, the Practitioner engaged in inappropriate conduct of a sexual nature towards Patient A, in contravention of:

"(a) For particulars 1 - 9 and particular 12, the Medical Board of Australia (MBA) 'sexual boundaries: guidelines for doctors' effective 28 October 2011;

(b) For particulars 10 - 12, the MBA guidelines: sexual boundaries and the doctor/patient relationship', effective 12 December 2018 (together with the 2011 guidelines, 'the MBA sexual boundaries guidelines')".

1. The first Tribunal did not find particular 13 established to their comfortable satisfaction.
2. The first Tribunal also found that Complaint 2, the failure to maintain adequate medical records, was also established.
3. Based upon the particulars that had been established in Complaint 1 and the finding in relation to Complaint 2, the first Tribunal found at Stage 1 that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law in that the Practitioner:

"engaged in conduct that demonstrate[d] the judgment possessed or care exercised, by the Practitioner in the practise of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience"

and the Practitioner had "engaged in improper and unethical conduct relating to the practice or purported practice of medicine" in accordance with the terms of s 139B(1)(l) of the National Law.

1. Having found the Practitioner guilty of unsatisfactory professional conduct, Complaint 4 asserted that the Practitioner was guilty of professional misconduct pursuant to s 139E of the National Law because he had engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration and/or had engaged in more than once instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the Practitioner's registration.
2. At [282] of the first Tribunal's Stage 1 reasons, it was not satisfied that, individually, the unsatisfactory professional conduct which they had found was established in relation to the consultations on 2 October and 3 November 2018, or pursuant to Complaint 2, was "sufficiently serious" to constitute misconduct. However, they were comfortably satisfied that, cumulatively, the findings of unsatisfactory professional conduct were sufficiently serious to justify a finding of professional misconduct. At [285] it said:

"[285] The findings of unsatisfactory professional conduct recorded above, which also establish improper and/or unethical conduct, with respect to the consultations on 2 October 2018, 3 November 2018 and 29 April 2019 involve serious breaches of boundaries between doctors and patients which are fundamental to the health and safety of the public, and public feeling confident that medical practitioners practise an honourable profession".

1. The first Tribunal's Stage 1 reasons set out some of the evidence of Patient A about what happened on 29 April 2019 which it accepted. At [170], Patient A gives evidence that at the end, the Practitioner asked her whether she was "ok" to which she replied she was not. She said the Practitioner then asked her if she had any stress going on and she said,

"I was thinking well my medication isn't agreeing with me and you just sexually assaulted me so I'm pretty sure it's clear why I am feeling this way - but all I could say was, 'not really'."

1. At [181], there is a record of the Practitioner in cross examination in the Stage 1 hearing saying that Patient A, "had, sort of, a mental problem...mental problem all her life. So I can understand. I know her quite well for her mental issues. So, she made up such a - like, a weird kind of outrageous complaint; that's compatible with her mental state, mental conditions" (transcript pg 118; ln 24). The Practitioner then went on to reiterate that, "I understand, with her mental condition based on - she made such a - like a ....[not transcribable]...imagination, things like that".
2. At [182], the first Tribunal came to the conclusion that the Practitioner first decided to make these allegations during his cross examination. At [183], the Tribunal notes that the Practitioner's belief that Patient A had a "mental problem", only aggravates the significance of the conduct which has fallen below a requisite standard.
3. At [185], the first Tribunal deals with Dr Lennings' evidence which recorded the Practitioner dismissing the complaint as a vindictive and fabricated attempt to cause him trouble. In Dr Lennings' opinion, if there was "acceptance of some reality to the complaint then clearly the [Practitioner] has no insight as to how that matter arose".
4. In oral evidence, the Practitioner did not agree that he told Dr Lennings that Patient A had been vindictive but did agree that what Patient A was saying was "complete fabrications" ([187]).
5. In the Stage 1 hearing, counsel for the Practitioner referred to Patient A as a "vulnerable patient". The first Tribunal ultimately found that whatever Patient A's "vulnerability", Patient A did not exaggerate, imagine or fabricate her allegations.
6. Dr Lennings stated at [9] of his report, "on my interview there appears to be little in the way of anything, that would suggest that [the Practitioner] had a prurient interest in his client or was sexually motivated to misbehave with his clients, although he may be insensitive to his clients' emotional needs or signals of discomfort".
7. In relation to the consultation on 29 April 2019, the first Tribunal rejected:
   • The Practitioner's absolute denial that anything like what Patient A was alleging against him had occurred
   • His demonisation of Patient A by claiming that her complaints were as a result of fabrication occasioned by her mental health problems

1. The Tribunal's determination in the Stage 2 hearing was recorded in Health Care Complaints Commission v Gao (No 2) [2023] NSWCATOD 19.
2. At [3], the first Tribunal records that the Commission asks for a non-review period of two to three years from the date of the decision but later it records that the request (presumably by final submissions) was two years.
3. At [15], the first Tribunal records that the authorities suggest that at a Stage 2 hearing, it is unhelpful to refer to either party having an onus of proof but that fact remains that a party seeking a particular finding must provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts and, at [18] the first Tribunal accepts that in order to grant the relief sought by the Commission, (ie cancellation), and having regard to the gravity of the consequences of that order, the Tribunal must be comfortably satisfied that such relief is necessary to protect the health and safety of the public.
4. At [26], the first Tribunal noted that the Commission was not asking for cancellation based on any asserted lack of professional competence and that the first Tribunal was satisfied that the Practitioner had sufficient skills and knowledge to be able to practice medicine without constituting an unacceptable risk to the health and safety of the public.
5. At [34], the first Tribunal records that the Practitioner stated at [16] of his statement for the Stage 2 hearing that he had "had the opportunity to read the Stage 1 decision and reflect on some of the pertinent issues raised during the Stage 1 proceedings regarding my practice", but did not go further to elaborate on those matters. Paragraph [35] records that the Practitioner added at [17] of his statement, "Going forward, I strive to ensure that all of my patients feel comfortable with my expertise during any physical examinations and my consultations generally".
6. At [36], the Tribunal accepted that the Practitioner had engaged in a number of CPD activities which address good record keeping practices, and that he would continue to implement his learnings from those activities if he is able to continue to practice.
7. At [37], the first Tribunal records that the Practitioner had set out details of continuing professional development which he has completed since Stage 1 proceedings and the Tribunal accepted he had undertaken that continuing professional development.
8. At [40] the first Tribunal notes that during his oral evidence, the Practitioner repeatedly stated, "I accept and respect the Tribunal's decision".
9. At [43] the first Tribunal noted that English was not the Practitioner's first language and said that accordingly the Tribunal is less than entirely clear whether the Practitioner lacks empathy or struggles to express empathy as clearly as might a practitioner whose first language was English and accordingly the Tribunal has been vigilant to avoid an unduly literate evaluation of his evidence.
10. At [44] of the Stage 2 reasons the first Tribunal said:

"Counsel for the [Commission] made clear in his submissions in reply that the [Commission] was not asserting that a 'lack of insight' should be 'held against the [Practitioner]' and correctly in our view, did not suggest that the [Practitioner]'s continuing denials of improper conduct should be 'held against' him."

1. At [61] of the Stage 2 reasons, the first Tribunal notes, "In oral submissions, counsel for the Commission reiterated and amplified ...that the Tribunal does not know 'why the conduct occurred in the first place', there being simply no explanation for how it could have occurred. Properly, counsel for the [Commission] did not suggest that any inferences adverse to the [Practitioner] should be drawn because he continued to maintain his innocence, despite the Tribunal's findings in the Stage 1 proceedings...".
2. At [63], the first Tribunal in the Stage 2 hearing observes:

"For the reasons to which we have already alluded, the Tribunal does not consider that the [Practitioner's] continued denials should assume significance in the Tribunal's decision. To do so would risk unfairly taking into account matters central to the findings which give rise to the need to consider protective orders. Realistically, other than recanting from the evidence he previously gave, which would be likely to have adverse consequences for his credibility, the [Practitioner] could not be expected to genuinely express remorse or contrition for the misconduct for which the Tribunal found him guilty. We have earlier recorded the, albeit limited, expression of regret for his conduct in relation to Patient A which the [Practitioner] gave during his oral evidence."

1. At [71] the first Tribunal accepted it had "no explanation for why the offending conduct occurred, and, beyond the [Practitioner's] assurances, no real evidence that the circumstances in which that occurred had altered so materially that there is now an unacceptable risk that it could reoccur, with similar frightening and distressing consequences for patients of the [Practitioner]".
2. At [85] and [86] the first Tribunal observed and found:

"85. [The Practitioner] relied at paragraph 47 of their submissions at the second stage hearing on the [first Tribunal's] rejection of the allegation that the inappropriate conduct of the [Practitioner] was of a sexual nature. The [Practitioner] submitted that to be:

'...relevant to the level of seriousness and the confidence with which the Tribunal could have that [the Practitioner] is most unlikely to repeat such behaviour. Whilst it is accepted that it is not necessary to prove a reason (such as sexual interest) for a practitioner to act in a way that constitutes unsatisfactory professional conduct, sexual interest in patient cases in [sic] as these is often used to prove an aggravated form of conduct. It is not submitted that the absence of aggravating factors makes the conduct less serious, but the absence of a proven sexual interest in a patient would entitle the Tribunal to have more confidence that [the Practitioner] is less likely to engage in such conduct in the future.'

86. Accepting, as the Tribunal does, those contentions, the fact remains that there is no real evidence explaining how the offending conduct of the [Practitioner] came about, or could have come about. In the absence of such evidence, declining to find that it could recur becomes problematic."

1. Under the heading "Consideration", the first Tribunal at the second stage at [103], [104] and [106] said:

"103. The evidence of the [Practitioner] suggests, as submitted by his counsel, the proceedings have been "harrowing" for the [Practitioner], and may have "opened" his eyes in some respects to which Basten JA referred. The [Practitioner] may now have a level of insight into his own character, perhaps empathy, and, more importantly, his offending conduct, which did not previously exist. However the fact remains, as submitted on behalf of the [Commission], that "why the offending occurred in the first place" remains unknown. Logically, if there is no probable explanation for how offending conduct came to occur, finding that it is unlikely to reoccur becomes problematic.

104. The Tribunal accepts the [Practitioner's] experience since the complaint was made against him, and the impact of the proceedings upon him, reduce the likelihood of his re-offending. As was submitted on behalf of the [Commission], inherent in the present determination is the assessment of the risk to the health and safety of the public if the [Practitioner] retains his registration. As is recognised in the statutory provisions with respect of the tort of negligence, that involves the consideration of the gravity of the harm which is likely to be suffered by the public if the risk of the [Practitioner] re-offending materialises, and the likelihood of it doing so. It is apparent in the present circumstances that, although the risk of re-offending may be relatively low, if the re-offending did occur, the harm suffered by a patient or patients of the [Practitioner] was likely to be grave.

...

106. The Tribunal is concerned that, as submitted on behalf of the [Commission], there is no evidence which explains or suggests why the [Practitioner's] offending conduct occurred. Not knowing why such conduct may have occurred made accepting that it may not reoccur difficult or that, if it did, the risk of harm could only be with respect to female patients. The Tribunal makes clear that no part of its findings in this regard are reliant upon the [Practitioner] continued assertion of innocence. The [Practitioner] may genuinely believe that he did not do things which Patient A complained of and which the Tribunal has found proved."

1. At [108] the first Tribunal says, "...the absence of further evidence from Dr Lennings or a similarly qualified expert causes the Tribunal concern that the personality factors which at least contributed to the [Practitioner's] offending conduct have not been ameliorated or addressed"
2. At [113] the first Tribunal says, "There is objectively no evidentiary foundation for finding that any risk which the [Practitioner] represents for the health and safety of the public is necessarily limited to female patients. Nor does the evidence support a finding that the [Practitioner's] attitude to patients and their complaints is materially different to that which it was when Dr Lennings prepared his report. Nor is there evidence that Dr Lennings' report, his cross examination or the Tribunal's findings in the Stage 1 hearing have caused the [Practitioner] to more than superficially reflect on the impact of his personality on patients and their concerns".
3. At [115] the first Tribunal talks about having no further expert evidence at the Stage 2 hearing and says the absence of such evidence suggests that the health and safety of the public would not be adequately protected if the Practitioner were permitted to continue to practice medicine, albeit subject to the conditions which he proposes.

1. At [117] to [119] the first Tribunal set out why they found that cancellation of the Practitioner's practising certificate was required to protect the health and safety of the public:

"117. The Tribunal is comfortably satisfied that the [Practitioner's] registration should be cancelled to protect the health and safety of the public. Not doing so involves an unacceptable risk to the health and safety of the public. Doing so is also in the public interest. The Tribunal has taken the matters relied upon by the [Practitioner] into account in his favour. They are significantly outweighed by the gravity of the [Practitioner's] offending conduct, and the absence of evidence explaining or suggesting why that conduct occurred, without which it is difficult to accept that it could not recur. That is particularly so in light of the [Practitioner's] evidence at the Stage 1 hearing suggesting why Patient A made her allegations to which we have earlier referred. To what extent the [Practitioner] proffered regime of psychological counselling might mitigate that risk is not known. The [Practitioner] has adduced no expert evidence in that regard.

118. As the Tribunal recorded in its Stage 1 decision, the [Practitioner] did not simply deny that he was guilty of misconduct with respect to Patient A, he gratuitously attacked her credibility and soundness of mind. Patient A was vulnerable. The [Practitioner] would be likely to see vulnerable male patients if he were permitted to continue to practise. On the evidence before the Tribunal, or due to the lack of evidence to the contrary, failing to cancel the [Practitioner's] registration entails an unacceptable risk to the health and safety of the public.

119. Declining to cancel the [Practitioner's] registration would also involve failing to adequately "signal" to the profession how gravely serious misconduct of this kind is viewed, and failing to maintain and be seen to maintain appropriate standards. Cancelling the [Practitioner's] registration is also conducive to maintaining public confidence, for the reasons explained in Do."

1. As indicated, the first Tribunal cancelled the Practitioner's registration with a non-review period of one year.

1. For the purposes of the hearing before us, the Practitioner provided a statement dated 29 October 2024. He indicated since 6 March 2023, he had engaged with numerous additional educational and CPD sessions and programmes. He had also engaged with an observership where he completed a number of observation sessions which refreshed his skills and reminded him of the enjoyment he received from working in medicine.
2. He asserted, given his sincere reflections, he could be trusted to do the right thing by his patients ethically and that he has significantly improved the way he will practise.
3. In relation to Patient A, he said he felt deeply remorseful for his previous professional conduct which was subject of the complaint and asserted he now fully recognised that his conduct was inappropriate. He said he wished he could reverse time so that he would have behaved much differently. Thinking back, he feels that his empathy was not adequate during the first proceedings, and he's now had time to reflect on that over the last two years. He asserts that he fully appreciated the hurt and feelings Patient A would have experienced and her continued suffering due to his actions. He appreciates that the public health and safety is the main priority and that the fact that Patient A did not ultimately feel safe in his care is a failure of his medical service. He says he understands and empathises with how Patient A would have felt during their consultations such as stress from not being fully understood, dissatisfaction due to inadequate communication, and harm from breach of professional boundaries and also the stresses of bringing the complaint and going through the tribunal process.
4. The Practitioner asserts he's done a lot of work to improve his future practice for the benefit of his future patients. He says that his improvement is in the area of maintaining adequate medical records; communication skills; and not breaching ethical boundaries.
5. He also speaks of the toll that the matter has taken on him personally and that he's only worked nine months over the last five years which has caused him severe financial hardship. During that time, he has experienced one divorce and one separation which has had a severe impact upon him. He now lives off superannuation and has been receiving partial age pension benefits since May 2024.
6. The Practitioner deposes to the fact that he has spent a considerable amount of time reading the Stage 1 and Stage 2 decisions of the first Tribunal and has reflected deeply on issues raised regarding his practice and conduct.
7. He believes his communication skills have improved through his learnings.
8. In relation to professional boundaries, he says that he is now more aware of all the risk factors for boundary crossing and violations which might include making inappropriate comments, sharing too much personal information, conducting physical examinations without informed consent, having inappropriate relationships with patients, treating family members, friends, colleagues and even himself.
9. Having engaged in the learnings that he has, including multiple medical ethics courses and readings, he has now produced a self-checklist which he will use if he is permitted to recommence his practice, to check in with and audit himself to ensure that his practice does not depart from the high standards which he will aim to uphold. He recognises that his communication needed a lot of improvement, and he realises that some patients have found him hard to understand. He has attended a few courses and completed further readings to attempt to improve his communications. He has learned about the seven C's (clear, concise, concrete, complete, coherent, correct and courteous) and the three P's (polite, positive and professional).
10. He says the Tribunal process and his studies have strengthened his understanding of the consent process in his future practice. He will aim to give a thorough explanation to his patients to obtain their informed consent and ensure they are comfortable during the consultation. He is aware that patients have a right to withdraw their consent at any time with or without reason. In relation to physical examinations, he undertook a module which summarised essential elements for an intimate examination which included rapport, explanation and consent. He understands that physical examination should not come as a surprise to the patient and good communication is needed throughout which makes patients understand and be prepared for the physical examination process without any surprise. He also understands that besides the patient's verbal expression, he must observe patient's non-verbal cues, such as facial expressions and body language. If there's any sign of hesitancy or discomfort he must stop and recheck the consent with a patient.
11. The Practitioner's statement also sets out in great detail the many courses and educational models in which he has participated, with a summary of the content and the learnings he has obtained from them. Most recently he enrolled in the Sydney Ethics Centre's ethics programme. He completed nine modules of 90 minutes each in length. He has reflected on how his ethical learnings from each module will impact and guide his future practice in medicine.
12. In relation to record keeping he says he wants to take more time and be more careful and empathic with patients and that he understands that he should be keeping more thorough medical records. He says he is sincerely sorry for the harm that he caused Patient A due to his previous professional conduct. He asserts he's learnt his lessons well and will ensure that he maintains clear ethical boundaries in the future. He looks forward to applying the teachings, learnings and reflections that he has undertaken if permitted to return to the practice of medicine.

The relevance of the Practitioner continuing to deny certain findings

1. When the Practitioner says that he now fully recognised that his conduct with Patient A was inappropriate, that is in the context of him maintaining his denials that the more serious conduct, particularly that found to have happened on 29 April 2019, occurred at all.
2. The Commission argues that because the Practitioner denies the allegations found proven by the first Tribunal, he poses a risk because he still does not fully accept responsibility for his proven conduct.
3. In Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82, the Court of Appeal (Mason P) accepted that although "confession is not a necessary precondition to reinstatement", there was no error in "concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness."
4. In Ng at [47], the Tribunal observed in a case involving an application for reinstatement:

"...while we are obliged to accept the findings of the Tribunal, it is theoretically possible that Dr Ng, as he continues to assert, did not commit the acts [which had been proven against him]. If that is so, it would be unjust to require that before he can be accepted as remorseful and having insight that he lie about this. We do not have to either accept or reject his denials. We simply note them. What is more important is our view in our view is that he has given long and deep thought to the incident and its effect on the patient and is deeply remorseful for the distress it caused her. He is no doubt also sorry for himself and frustrated by the predicament in which he finds himself at present. The two lines of thought are not mutually exclusive."

1. The Practitioner's continuing denial about aspects of his conduct found proven by the first Tribunal, does not preclude us from accepting statements from the Practitioner about his remorse and regret.

1. The advocate for the Commission spent some time reviewing with the Practitioner previous complaints and the period between the Stage 1 decision dated 6 July 2022, and the Stage 2 decision dated 6 March 2023, during which the Practitioner had undertaken courses, readings and learnings on a number of matters relating to boundaries, communications, empathy and note-taking. The Commission submits the general impression was that the Practitioner was not absorbing those learnings effectively. We do not accept that was the general impression of the Practitioner's evidence.
2. During the Stage 2 hearing, the first Tribunal at [43] commented that it "[was] less than entirely clear whether the [Practitioner] lacks empathy or struggles to express empathy".
3. The Practitioner was cross examined for some time in relation to matters going to his current empathy and insight. The Commission submits that given the opportunity to demonstrate empathy during his oral evidence, the Practitioner fell short.
4. In relation to the consultation in October 2018, the Practitioner was asked about why Patient A would feel uncomfortable. The Practitioner answered by saying words to the effect, "he did not know; the lower abdomen was part of an abdominal examination and he did it routinely".
5. When asked by the Presiding Member about whether the serious damage in therapy suffered by Patient A was caused as a result of the 29 April consultation, the Practitioner answered that he couldn't work it out and that he believed that it might also have been caused from her complaint and going through the Tribunal process. This answer is to be seen in the context of the Practitioner maintaining his denial that he behaved in the way that he has been found to have behaved, on 29 April.
6. Whilst we agree that there were inadequacies in the expression of empathy and insight demonstrated by these answers, we have a similar disquiet to that of the first Tribunal, in that we are unsure as to whether the Practitioner lacks empathy or struggles to express empathy.
7. Overall, when the Practitioner's evidence in chief is also taken into account, we find there has been a significant movement in the ability of the Practitioner, within the context of his continued denial of certain conduct, to empathise with the position of Patient A.

1. Dr Samuels is a consultant psychiatrist engaged by the Practitioner. Dr Samuels was provided and reviewed all relevant documents. He saw the Practitioner on 5 June 2024 and provided a report dated 24 June 2024.
2. He reported that the Practitioner had acknowledged that he had learnt from the decisions of the first Tribunal and understood the need to make some changes to his practise to ensure that such events do not occur again in the future.
3. He undertook online courses, read extensively, and at the time of the preparation of the report, had engaged in an ethics course which he reported to Dr Samuels he found quite helpful. The Practitioner made it clear to Dr Samuels that he intended to focus on professional boundaries, better record keeping and the issues of consent in the future. The Practitioner reported to Dr Samuels that he had already engaged with a mentor and had familiarised himself with various codes of conduct.
4. Dr Samuels opined that the Practitioner did not suffer from any mental condition or impairment. The Practitioner had sought the advice of a psychiatrist and a psychologist but they did not feel they needed to keep seeing him. Dr Samuels confirmed that he did not see any clear need for the Practitioner to be under the care of a mental health professional.
5. Dr Samuels expressed the view that the Practitioner had seemed to have integrated the findings of the Tribunal. He had expanded his knowledge of clinical guidelines and professional boundaries, he had undertaken some ethics courses and seemed to be aware of his professional obligations. The Practitioner seemed to be very clear that he did need to improve the standard of his record keeping, and to be careful about the issue of consent.
6. Dr Samuels thought the Practitioner had taken the findings of the Tribunal seriously, had reflected on the events that led to the complaint and said he thought that the Practitioner would put in place appropriate safeguards to prevent a recurrence of such events in the future. He would support the Practitioner's request to return to the practice of medicine subject to appropriate conditions being imposed upon his registration.

1. Dr Samuels saw the Practitioner again on 18 March 2025 and provided a supplementary report dated the same day. He reviewed significant additional material that had been generated primarily by educational activities in which the Practitioner had participated since his first report. Dr Samuels confirmed his belief that the Practitioner had further consolidated his learning and that he certainly seemed to have more insight in regard to events that had brought him to the attention of the Tribunal. He opined that the Practitioner had a much better understanding of how to conduct intimate examinations, particularly in regard to ensuring that there is informed consent, and he did seem to have a much better ethical understanding of professional boundaries. Dr Samuels also recorded that he had taken some steps towards improving communication and of note was the fact that when he sees patients in the future, he would continually check that they were understanding what he was saying. He was satisfied that the Practitioner seemed to have a better understanding that throughout the course of an examination, a practitioner should ensure the patient remains comfortable and is not exhibiting distress, even in the form of non-verbal cues. He was confident the Practitioner would pay more attention to medical record keeping and that he had undertaken specific courses to assist him in that regard.
2. A change Dr Samuels noted was that the Practitioner was much more open to acknowledging his deficits in regard to the management of Patient A; that he acknowledged he was defensive at the time; that he was unaware of the impact of the process on the patient and that he was remorseful in regard to his attitude which he is now aware may have further aggravated the situation. The Practitioner made it clear to Dr Samuels that he really wanted to return to medical practice to do the best he can and that he is open to a range of conditions being put in place and indicated that he had no wish to see female patients at all.
3. Dr Samuels confirmed that he did believe that the Practitioner had taken very seriously the findings of the Tribunal; had attempted to address shortcomings in his practice; integrated his learnings and would be able to apply aspects of what he'd learnt to future clinical practice. The Practitioner even told Dr Samuels that even with male patients who require an intimate examination, he intended to ensure a chaperone was present. He confirmed to Dr Samuels that he was prepared to consent to the conditions which were ultimately contained in exhibit 17 (discussed in more detail below). Dr Samuels also suggested that in addition to category B supervision, it would be ideal if the Practitioner did engage with a mentor on a regular basis.
4. Dr Samuels reiterated his support for the Practitioner to return to medical practice.

1. Dr Samuels was taken to the particulars in Complaint 1, particular 11, which related to the consultation on 29 April 2019. He was asked to presume that the Practitioner behaved in all the ways particularised. He was further asked to presume consistently with what the Practitioner told Dr Samuels at [57] of his second report that the Practitioner at all times denied these things happened and asserted these things had been fabricated by Patient A.
2. Making those assumptions, Dr Samuels was asked to comment upon the Practitioner's denial that he behaved in that way and whether the Practitioner's denials changed any opinion that he had expressed in his report.
3. Dr Samuels said that he was aware when providing his opinion that the first Tribunal had found to its satisfaction that the Practitioner had behaved in the manner particularised in particular 11 of Complaint 1. Having referred to the rigidity of the Practitioner's personality, he said that he could not provide an explanation for the Practitioner's inability to accept what he had done. He observed there was nothing in the Practitioner's known history in Australia (including a number of previous complaints of which we have details), which would indicate any pattern of similar behaviour.
4. Dr Samuels speculated that there may have been a number of factors which came together on the 29 April 2019 to create a perfect storm. He suggested there were a number of stressors in the Practitioner's life at that time, including divorce, money and study which combined with the professional relationship he had formed with a vulnerable patient. The difficulty with this speculation is that the Practitioner has not led any evidence about these possible stressors and in his oral evidence, in fact, denied he was stressed by some of those things.
5. Dr Samuels was unable to offer any explanation as to why it was Patient A who became a victim of the Practitioner's behaviour, apart from the fact that her mental state may have made her vulnerable.
6. Dr Samuels' attention was further drawn to an incident on 2 October 2018, where the Practitioner continued to assert that Patient A had requested advice about breast reduction and had provided consent to the Practitioner placing his hands on her breasts to demonstrate what they would look like after an operation.
7. Dr Samuels' reflection on these matters did not fundamentally affect his overall conclusion, namely, that the Practitioner's inability to admit what he had done was currently not a serious risk factor in respect of a repeat of this behaviour particularly if a condition was in place that he not treat female patients.
8. Dr Samuel opined that there had been a shift after the Stage 2 decision to cancel the Practitioner's registration. The Practitioner was highly incentivised to do whatever it took to get back to practising medicine which is his passion. Dr Samuel said he believed there was a shift in the Practitioner's insights from learnings between the date of his first consultation with the Practitioner, 5 June 2024 for his first report and the second consultation, 18 March 2025 for the second report. Dr Samuel said that the Practitioner is now largely saying the correct things.
9. Dr Samuels observed that the Practitioner, who is 68 years old, is likely fairly set in his ways, trained in China, and then practised for a long time in Australia with a history of complaints including in relation to difficulties with communication. Dr Samuels opined the Practitioner was never going to get to 100 percent insight and it was likely to be a futile exercise to attempt to do so by further treatment such as psychotherapy.
10. Dr Samuels opined that the risks and concerns arising from the continual denial by the Practitioner as to what happened on 29 April 2019 and part of what happened 2 October 2018 could be managed by the imposition of conditions. He noted that the Practitioner was suggesting a condition that he not see female patients. Dr Samuels observed that there was not any suggestion of similar inappropriate behaviour with male patients.

1. Dr Clemenson, a previous mentor of the Practitioner, provided character references dated 22 February 2024 and 10 March 2025, and gave oral evidence.
2. In the 2024 reference, Dr Clemenson said he had previously fulfilled the role of the Practitioner's mentor and practice principal at Foster Tuncurry Medical Centre. He said that the Practitioner had always conducted himself in an appropriate professional manner whilst visiting and working at his practice and that he has not had any complaints in relation to the Practitioner in that time. He found him to be clinically competent as demonstrated by passing the fellowship GP examinations. He said that he had identified some specific issues relating to his communication skills with patients that could be further improved and that this was being addressed prior to the first Tribunal cancelling the Practitioner's registration. He was also aware of ongoing education and courses the Practitioner had been involved in and he had discussed with the Practitioner about ongoing continuing education to maintain the currency of his postgraduate FRACGP qualification.
3. In the 2025 reference, Dr Clemenson records that he had reviewed the education, learnings and reflections that the Practitioner had engaged in since his 2024 reference. This further information confirmed his view about the Practitioner's determination to improve his skills as a general practitioner after reflection on the determinations and comments made by the first Tribunal.

1. As already indicated, s 163B(4) of the National law provides that a reinstatement order may be made subject to conditions.

1. Exhibit 17 sets out the amended conditions proposed by the Practitioner as follows:

"1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice.

2. To practise only in a group practice approved by the Medical Council of NSW where there is at least 1 practitioner (excluding the subject practitioner):

(a) Where the patients and patient records are shared between the medical practitioners.

(b) Where there is always one other registered medical practitioner on site.

(c) If the group practice is a general practice, it must be accredited.

3. Not to consult, examine, treat or perform any procedures on any female.

(a) The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law.

(b) If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council.

4. To consult with no more than 4 patients per hour and no more than 28 patients per day.

(a) The practitioner is to provide the Medical Council of NSW with copies of records confirming the number of patients treated/consulted, their consultation times, and hours worked on any dates as specified by the Council.

(a) These days are inclusive of any administrative work.

6. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.

(a) The terms of the Council's Compliance Policy - Supervision are varied to require the practitioner to:

i. authorise the Council approved supervisor to forward reports to the Council (in a Council approved format) every month.

(b) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on:

i. Progress with return to clinical practice and Continuing Professional Development

ii. Professionalism including professional ethics, consent and patient boundaries

iii. Communication skills, including identifying cues from patients' body language

iv. Approach to intimate examinations

v. Medical record keeping

(c) At each supervision meeting, the Council-approved supervisor is to randomly select and review at least 5 patient records from the preceding fortnight.

i. Details and feedback about the reviewed patient records are to be discussed at the supervision meetings and included in the supervision reports.

(d) During the first 6 months of supervision and in addition to fortnightly supervision meetings, the practitioner is to undertake monthly observation sessions which should be of at least one hour in duration. These sessions must alternate between:

i. The Council-approved supervisor observing the practitioner conduct at least 5 patient consultations; and

ii. The practitioner observing the Council-approved supervisor conduct at least 5 patient consultations.

iii. Details and feedback about the observations are to be discussed at the supervision meetings and included in the supervision reports.

(e) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition, and any other decision or report as determined by the Council.

(f) Not to practise until a supervisor has been approved by the Medical Council of NSW.

7. To undergo a practice-based Performance Assessment within 12 months of recommencing practice.

8. To attend for treatment by a psychologist or psychiatrist of their choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner:

(a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:

i. failure to attend for treatment;

ii. termination of treatment; or

iii. a significant change in health status (including a significant temporary change)

(b) must provide the Council with the professional details of the treating practitioner.

9. To authorise the Medical Council of NSW to forward copies of the decision which imposed these conditions and any subsequent reports and any other information relevant to their health and treatment to their Council-approved supervisors [and to their treating practitioners (sic)].

10. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.

11. These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW).

12. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia."

1. The Commission submitted that the conditions proposed by the Practitioner are inadequate and ineffective to protect the public.

Proposed Condition 3: Should a condition be imposed that is gender based?

1. The Commission submitted that proposed condition 3 [that the Practitioner see no female patients except in emergencies with reporting within 24 hours] is inappropriate as a matter of principle.
2. Broadly, the Commission relies upon the postscript statement in HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638-639 (seemingly by way of obiter in relation to an earlier decision):

"Mr Joseph [Counsel for the HCCC] submitted that we should overrule the decision in Richter v Walton (15 July 1993, unreported) where this court by majority set aside an order of the Tribunal removing the appellant's name from the registrar and submitting an order imposing conditions prohibiting the appellant, except in the case of an emergency, from seeing a female patient except in the continuous presence of a female chaperone. The majority thus found that the appellant could not be trusted to observe proper professional standards in his conduct towards female patients unless a female chaperone was present throughout. With the greatest of respect the necessity for imposing such conditions on the appellant's registration demonstrated that he was unfit to practice medicine and in those circumstances the only appropriate order was one dismissing his appeal. The dissenting judgment of Priestly JA was entirely correct and the majority decision should be overruled."

1. More particularly the Commission relies on various statements made by the first Tribunal in the Stage 2 decision that led to the cancellation of the Practitioner's registration, particularly at [114]:

[114] "Implicit in the conditions advanced by the [Practitioner] is an acknowledgement that he represents an unacceptable risk to the health and safety of a very substantial proportion of the public - female patients. There may be cases where conditions precluding a practitioner from treating particular patients, or patients of a particular gender, is appropriate in the interests of the health and safety of the public. The Tribunal is not persuaded that this is such a case. There would, in the Tribunal's view, need to be compelling reasons for imposing a condition of that kind. Such a condition implies a greater measure of vigilance with respect to 50 per cent of the public than to the remaining half of the public. The Tribunal is concerned that, in the circumstances of this case, such conditions may send an undesirable message to medical practitioners and the public."

1. These comments and others like it in the reasons of the first Tribunal, are made in the context of it considering protective orders at that time. The first Tribunal concluded that suspension with conditions would provide no real element of individual deterrence. Nor would declining to cancel the Practitioner's registration, but imposing conditions, adequately signal to the profession how gravely serious misconduct of this kind is viewed and it would fail to maintain appropriate standards conducive of maintaining public confidence. The provision of both individual and general deterrence was satisfied when the first Tribunal cancelled the Practitioner's registration with a non-review of one year.
2. The first Tribunal commented that had the Practitioner produced more convincing evidence of changes in his attitude to patients and evidence from an appropriately qualified expert adduced by the Practitioner, the outcome may have been different.
3. Part of what the first Tribunal took into account was that the Practitioner had gratuitously attacked the credibility and soundness of mind of Patient A who was vulnerable.
4. We were referred to a number of authorities where orders have been made since the introduction of the National Law imposing a condition that a practitioner not treat female patients or female patients of a certain age.
5. We are required to look at the current risk and bring a fresh mind as to whether that risk can be mitigated by the conditions proposed by the Practitioner.
6. There are now a number of additional matters to consider including:

(1) Importantly there now is expert evidence from Dr Samuels who has endorsed the condition that the Practitioner not see female patients.

(2) The Practitioner, whilst maintaining his innocence about certain aspects of his conduct, no longer attributes maliciousness or lack of soundness of mind to Patient A.

(3) The Practitioner has expressed remorse and undertaken extensive re-education.

1. The Commission conceded that the additional condition allowing access to the Practitioner's Medicare records will allow ready monitoring of the condition not to see female patients.
2. The Commission pointed to the practical difficulties that might arise for the Practitioner from the imposition of this condition. Dr Clemensen's oral evidence highlighted the practical difficulties with booking male patients only and the complications that occur if a male patient attends with a female child or a parent. A previous interim "no female" condition, imposed while awaiting the finalisation of the earlier hearing, led to the Practitioner seeing only 15 patients per day. However as discussed during submissions, this is a condition proposed by the Practitioner and it is a matter for the Practitioner to comply and overcome any practical difficulties.
3. In the circumstances that now currently exist in this case, we accept Dr Samuels' opinion that this condition should be imposed.

1. The Commission submitted that this condition does not sufficiently protect the public. Whilst it acknowledges that this condition may be helpful if the poor record keeping had been due to time pressures, the Commission submits that that was not so in this case.
2. In relation to poor records on 2 October 2018, the Practitioner agreed at the first hearing that there was no rush or time imperative on that occasion (Stage 1 at [31] ) and said "maybe I was busy, and forgot it or whatever reason, yeh" (Exhibit 6 - HCCC Material: Stage 1 transcript p 158).
3. In relation to poor records on 29 April 2019, the Commission points out that that was a lengthy consult of around 20 to 30 minutes, where poor records were kept in circumstances where many of the Practitioner's other clinical records were significantly more detailed.
4. The Commission submits that a patient cap won't improve the Practitioner's records if he doesn't think the information needs to be recorded. In making that submission, they refer to the Practitioner's oral evidence that he didn't record the breast examination in October 2018 because he says the patient indicated that she didn't want to do anything about it at that moment and that he didn't record the brief inspection of her pubic area in November 2018 because he had not made any findings.
5. The first Tribunal made it clear that whilst the poor record keeping by itself was sufficient for there to be a finding of unsatisfactory professional conduct, it would not have been sufficient by itself for a finding of professional misconduct.
6. We are satisfied that the substantial work that the Practitioner has done in educating himself about record keeping gives us confidence that the Practitioner's record keeping in the future is likely to be significantly better than it had been on the occasions which are the subject of the first Tribunal's findings. The condition in relation to the restriction in number of patients to be seen, can only assist.

1. The Commission submits that proposed condition 6 will not offer sufficient protection for the public.
2. The Commission submits that there's evidence that the Practitioner sees himself as a senior practitioner and it is unlikely that he will take advice from a supervisor easily.
3. The findings of the first Tribunal would indicate that the Practitioner may be insensitive to a client's emotional needs or signals of discomfort. Before the first Tribunal, Dr Lennings opined that the Practitioner may need an external observer of his work to point out things that need to change and to provide some incentive for that by writing a report to the Medical Council.
4. Before us, Dr Samuels said in oral evidence, given the Practitioner's age, he saw supervision as a way of managing risk rather than hoping that learnings from the supervisor would be integrated into the practice of the Practitioner. Dr Samuels agreed that the Practitioner sees himself as being a senior doctor and he's probably not going to take kindly to advice and redirection. However, he saw supervision as an external monitoring constraint, and as a mechanism for picking up any concerning patterns of patient interactions or complaints or difficult interactions with reception staff. What he thought a supervision condition would provide was external constraints. He thought it might be quite helpful if a supervisor chose to sit in on the Practitioner's sessions being fully aware of the history.
5. We accept Dr Samuels' opinion that the provision for supervision contributes to the abatement of risk.

Proposed Condition 7: Performance assessment within twelve months

1. The Commission argues that this condition does not sufficiently protect the public and that the fact that we would contemplate imposing such a condition means that we would also conclude that the Practitioner is not fit to practice. Again, this condition is not a standalone condition and contributes to the abatement of risk.
2. Further, the Commission submits that if a performance assessment condition is imposed, and concerns are raised during the performance assessment, there is no mechanism for the Practitioner to come back to the Tribunal. The mechanism provided is contained in Condition (1)(j) [Condition 11 of Exhibit 17] which provides any of the conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the National Law.

Proposed Condition 8: Psychiatrist/psychologist treatment

1. The Practitioner does not think he needs psychological therapy. Dr Samuels does not think further psychological therapy would be effective. We see no basis for imposing this condition.

1. We find that the conditions proposed by the Practitioner in exhibit 17 (except for Condition 8) are all appropriate and cumulatively serve to abate risk.

1. The Practitioner in his written statement (Exhibit 2 - p 7 para 35) says:

"In my future practice, I will recognise the strict need for a chaperone to be in attendance for all female patients who require a breast examination, skin check and I or genital examination."

1. In his evidence at the Stage 1 hearing before the first Tribunal, the Practitioner in the context of offering a chaperone for breast examinations had said "if they are younger than 60, I will usually ask. Older than 60, I don't usually ask." (Exhibit 6 - HCCC Material: Stage 1 transcript p 144).
2. In relation to that evidence, the Commission comments that the Practitioner is in his 60s and there is no reason to suggest any lower risk to patients in any particular age range.
3. The Commission submits that any proposed condition for a chaperone would be ineffective. The Commission informed the Tribunal that in February 2017 there was an independent review of the use of chaperones to protect patients in Australia. The review came about as a result of a practitioner sexually assaulting a patient despite a chaperone being present. After that review, the Medical Council as a result of the reasoning in that review does not endorse the use of chaperones. In response to questions from the Tribunal about the Medical Council's Practice Monitor Policy, the advocate for the Commission stated that recent information provided by the Medical Council is that the Council no longer prefers practice monitor conditions when imposing conditions to address boundary crossing, as there is no evidence that this is a protective condition.
4. At the end of the hearing, the discussion about conditions for a chaperone ceased to have relevance because the Practitioner omitted it from his final amended proposed conditions.
5. Notwithstanding the conclusion that the preferred position is to now not include a condition in relation to chaperones, that does not mean that a practitioner, as a matter of their usual practice, cannot use them as a shield against a fear of unwarranted complaint. In this case, whilst not compelled to do so, the Practitioner may choose to use chaperones when doing genital examinations of male patients, and he is perfectly entitled to do so.

1. The Commission in part submits that the Practitioner still poses a risk because the risk factors are largely unknown or opaque. It refers to paragraph [71] of the Stage 2 decision (which we have already set out above):

"[T]he Tribunal has no explanation for why the offending conduct occurred, and, beyond the [Practitioner's] assurances, no real evidence that the circumstances in which that occurred have altered so materially that there is not an unacceptable risk that it could reoccur, with similar frightening and distressing consequences for patients of the [Practitioner]."

1. The Commission submits that there is no real evidence explaining how the offending conduct of the Practitioner came about or could have come about. Whilst Dr Samuels provided some hypotheses in the witness box, there is no clear evidence to establish why the Practitioner behaved in the way he did towards Patient A. As already indicated the Practitioner denied the existence of some of the stressors suggested by Dr Samuels. Clearly Patient A was a vulnerable patient and it is possible the Practitioner mistook some cues. It is impossible to advance our knowledge about why it happened because of the Practitioner's denial of the behaviour. The Commission observes that the Practitioner would have had many female patients and many vulnerable female patients during his time as a medical practitioner and we do not know what it was about Patient A that caused him to engage in the proven conduct. We are no closer to knowing that after the Practitioner's oral evidence and that is a relevant risk in respect of future conduct. We accept that the absence of such evidence assessing the risk of reoccurrence becomes problematic.
2. In the Practitioner's oral evidence, he did say that he knew Patient A quite well and maybe he wasn't so careful about maintaining strict boundaries with her and that he was a bit overly familiar and casual in his dealings with her.
3. The Commission asserts that there is an unacceptable risk of future conduct if the Practitioner is attracted to a patient who thinks is attracted to him. There is however no finding against the Practitioner of a sexual or prurient motivation.
4. We accept the Practitioner's experience in the disciplinary process and the fact of his deregistration effectively now for two years had an extremely sobering effect upon the Practitioner. Although the Practitioner's communication style may not easily allow us to receive a message, we find the experiences have caused significant reflection and necessary insights into his past failings. Despite his communication style, we find the Practitioner has worked extremely hard to improve himself and his practice standards following the cancellation of his registration.
5. We bear in mind that our paramount concern is the protection of the health and safety of the public. The question is whether the Practitioner has discharged the onus of establishing that he currently presents no unacceptable risk to the public or their confidence in the profession.
6. We find the conditions discussed significantly mitigate any future risk, so that risk is not unacceptable. We are comfortably satisfied, given those conditions, the Practitioner will act in the future in accordance with the high standards and responsibilities of the profession. There is no public interest in denying him forever the chance of rehabilitation. Given he has served the severe penalty imposed upon him, he should be afforded a second chance. We find that it is appropriate to make a reinstatement order, subject to the proposed conditions which have been discussed above.

1. A costs order may be made under Clause 13 Schedule 5D of the National Law.
2. As indicated, the Commission appeared as a contradictor. The Practitioner did not oppose the Commission's application for costs.

(1) Pursuant to s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW), Edward Renzhong Gao be reinstated onto the Register of Medical Practitioners, subject to the following conditions:

(a) To obtain Medical Council of NSW approval prior to changing the nature or place of his practice.

(b) To practise only in a group practice approved by the Medical Council of NSW where there is at least 1 practitioner (excluding the subject practitioner):

(i) Where the patients and patient records are shared between the medical practitioners.

(ii) Where there is always one other registered medical practitioner on site.

(iii) If the group practice is a general practice, it must be accredited.

(c) Not to consult, examine, treat or perform any procedures on any female.

(i) The practitioner may only provide emergency medical services to such persons in compliance with s 139C(c) of the Health Practitioner Regulation National Law (NSW).

(ii) If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council.

(d) To consult with no more than 4 patients per hour and no more than 28 patients per day.

(i) The practitioner is to provide the Medical Council of NSW with copies of records confirming the number of patients treated/consulted, their consultation times, and hours worked on any dates as specified by the Council.

(e) To practise no more than 5 days per week.

(i) These days are inclusive of any administrative work.

(f) To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.

(i) The terms of the Council's Compliance Policy - Supervision are varied to require the practitioner to:

1. authorise the Council approved supervisor to forward reports to the Council (in a Council approved format) every month

(ii) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on:

1. Progress with return to clinical practice and Continuing Professional Development
2. Professionalism including professional ethics, consent and patient boundaries
3. Communication skills, including identifying cues from patients' body language
4. Approach to intimate examinations
5. Medical record keeping

(iii) At each supervision meeting, the Council-approved supervisor is to randomly select and review at least 5 patient records from the preceding fortnight.

1. Details and feedback about the reviewed patient records are to be discussed at the supervision meetings and included in the supervision reports.

(iv) During the first 6 months of supervision and in addition to fortnightly supervision meetings, the practitioner is to undertake monthly observation sessions which should be of at least one hour in duration. These sessions must alternate between:

1. The Council-approved supervisor observing the practitioner's conduct at at least 5 patient consultations; and
2. The practitioner observing the Council-approved supervisor's conduct at at least 5 patient consultations.
3. Details and feedback about the observations are to be discussed at the supervision meetings and included in the supervision reports.

(v) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition, and any other decision or report as determined by the Council.

(vi) Not to practise until a supervisor has been approved by the Medical Council of NSW.

(g) To undergo a practice-based Performance Assessment within 12 months of recommencing practice.

(h) To authorise the Medical Council of NSW to forward copies of the decision which imposed these conditions and any subsequent reports and any other information relevant to their health and treatment to their Council-approved supervisors.

(i) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.

(j) These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW).

(k) Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.

(2) The Practitioner pay the costs of the Commission as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.