Health Care Complaints Commission v Balasingham [2025] NSWCATOD 40

1. On 24 August 2024 Dr Balasingham personally filed an Application for miscellaneous matters. He sought an Order for "AUD 20 million as compensation" for "earning capacity losses, psychological damages, loss of social status, repeated toucher (sic) by the Medical Council, Health Care Complaints Commission and NCAT from their poor knowledge and experience in the relevant specialties and victimising a genuine doctor who did his duty with utmost care, a loss of general health" and "medical illnesses including heart attacks as a result of Physical unfitness from psychological trauma".
2. In that document Dr Balasingham accused the HCCC of making "false allegations" and NCAT of making "improper biased decisions".
3. Dr Balasingham also asserted other deficiencies in the conduct of the first stage of the hearing and the investigations by the Medical Council.
4. Dr Balasingham made lengthy allegations against the "so called" expert qualified by the HCCC who was "just a "General Practitioner"" being "Neither Jack of any trades, but, definitely, Master of None". It was "unbecoming of the HCCC involve such a "mediocre General Practitioner"" to give an "Expert report" in subjects which he has poor knowledge and poor experience." In addition it was "unbecoming of the NCAT and the members who were so biased to take the "mediocre opinion" as "Expert Opinion" and give judgement based on the "mediocre opinion." "He was very loyal to the HCCC that paid him profusely".
5. He raised an issue ventilated in the Appeal when he asserted, "Even after the "Mediocre expert" accepted that a pelvic examination was warranted after being cross examined with evidence from the textbooks by the barrister, the NCAT panel was so biased in passing a judgement that the pelvic examination was not warranted in this case."

1. On the day of the stage two hearing on 26 August 2024, Dr Balasingham was legally represented. We were informed that his legal representatives had only become aware that morning of the Application which had been filed by Dr Balasingham. They had concerns, firstly as to whether they could continue to act for Dr Balasingham and secondly, as to Dr Balasingham's state of mind. They asked for the hearing to be adjourned so that Dr Balasingham could be assessed in his own interests.
2. The HCCC consented to the adjournment.
3. We made an order granting the adjournment and stood the matter over to a directions hearing in three to four weeks.

1. There is in evidence a chain of correspondence between the parties' legal representatives.
2. The HCCC emailed Dr Balasingham's solicitors on 26 August 2024 pointing out that the stage two hearing had been adjourned on the application of Dr Balasingham because Dr Balasingham's legal representatives currently held concerns as to whether he had capacity to instruct them. The Tribunal had been informed that the immediate intention was to have Dr Balasingham assessed by a psychiatrist to determine his current capacity. The HCCC requested a copy of the results of any assessment of his fitness or capability to practise as a general practitioner.
3. In that email the HCCC said that the raising of issues in relation to Dr Balasingham's capacity by his legal representatives caused serious concerns in relation to his capacity to practise safely. It asked a series of questions about whether Dr Balasingham intended to continue to practise and whether he would consent to an order suspending his registration on an interim basis until the stage two decision.
4. They informed the solicitors that the HCCC would ask for adverse inferences to be drawn with respect to Dr Balasingham's current capacity if he chose not to respond to their queries and/or provide material that established his current capacity to practice.
5. By email sent on 30 August 2024 Dr Balasingham's solicitors said that their concerns about Dr Balasingham's ability to provide them with instructions related only to the appearance on 26 August 2024 and no concern had been expressed in relation to his capacity long term. They informed the HCCC that Dr Balasingham had not worked since 21 August 2024 and currently had no date to return to work. He had an appointment with a psychiatrist on 4 September 2024. Dr Balasingham did not consent to an interim suspension order as he was not working.
6. On 19 September 2024 the HCCC asked for a copy of the report from the psychiatrist. The solicitor replied that they anticipated receiving the report that day. They formally informed the HCCC that they did not appear in relation to Dr Balasingham's Application, only the stage two hearing.
7. Dr Balasingham then changed solicitors.
8. On 11 March 2025 the HCCC asked the new solicitors for the report from the psychiatrist and also asked whether Dr Balasingham had undertaken any psychiatric or psychological treatment over the last year, and if so the details of any treating clinicians.
9. By email dated 13 March 2025 the new solicitors informed the HCCC that they had not been involved in any assessment and, in any event, any assessment would be the subject of legal professional privilege.
10. The Commission replied that the name of any specialist consulted by Dr Balasingham could not be the subject of privilege. While they appreciated that the new solicitors were not on the record at the time, Dr Balasingham would obviously be aware of the details of any psychologist, psychiatrist, or other mental health professional that he had consulted with over the last twelve months. They pointed out that Dr Balasingham's Application had been the impetus for the application for an adjournment on 26 August 2024. The adjournment was sought to allow him an opportunity to obtain a psychiatric evaluation as to his capacity. They further noted that since the adjournment, Dr Balasingham had not offered any explanation for the reasoning or basis of his Application which alleged among other matters that the members on the Tribunal were biased; that the HCCC fabricated allegations; that the HCCC's expert, Dr Jalota, gave dishonest opinions for remuneration; and that Patient A had fabricated allegations to extort money from Dr Balasingham.
11. The HCCC informed the new solicitors that they considered that the Application, and Dr Balasingham's motives in making the Application, were relevant to stage two of the proceedings. They placed the new solicitors on notice that, at the stage two hearing, they would ask the Tribunal to draw an adverse inference as to Dr Balasingham's fitness to practise from his apparent refusal to disclose any details as to mental health professionals he has seen in conjunction with that Application, or more generally, over the last 12 months.
12. On 12 September 2024 the HCCC filed an Application for an interim order suspending Dr Balasingham's registration but it was withdrawn and dismissed on 13 November 2024.
13. Dr Balasingham stopped working on 21 August 2024, allowed his registration to lapse and sold his practice in December 2024.

(1) Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (NSW), the Tribunal finds that if Dr Balasingham were still registered the Tribunal would have cancelled his registration.

(2) Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (NSW), the Tribunal disqualifies Dr Balasingham from being registered in the health profession for three years.

(3) Under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law, that Dr Balasingham pays the Health Care Complaints Commission's costs as agreed or assessed.

1. Dr Balasingham, through his counsel, conceded that his registration should be cancelled. He asked for a disqualification period of two years. He chose not to make any submission against the HCCC's application for a costs order.

1. We have found Dr Balasingham guilty of professional misconduct and therefore the range of protective orders which can be made includes suspension or cancellation of his registration: s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) (the National Law).
2. However the fact that we have found that Dr Balasingham's conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration does not mean it must be suspended or cancelled.
3. As we have said Dr Balasingham concedes that his registration should be cancelled. We now turn to consider whether that is also our view.
4. The purpose of the national registration and accreditation scheme is to provide for 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) of the National Law. The main guiding principle is that the protection of the health and safety of the public must be the paramount consideration: s 3A(1) of the National Law. In making our decision, that must be our paramount consideration: ss 3B and 4 of the National Law.
5. The appellate courts have held that the purpose of disciplinary orders is protective rather than punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 (Litchfield) at 637.
6. The objective of protecting the health and safety of the public is not confined to protecting patients, it includes all members of the public. The orders serve to denounce misconduct which operates as a deterrent to the medical practitioner as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
7. It is accordingly possible that the orders may be punitive. In Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] the Court held:

"As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual ... That is not to deny that such orders may be punitive in effect...Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. ... Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist."

1. However, any protective orders made by the Tribunal should not result in "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the legislation": NSW Bar Association v Meakes [2006] NSWCA 340 at [114].

(1) Dr Balasingham asked Patient A inappropriate questions about her sexual history when he said "how long have you been sexually active?", "how many people have you been with?", "how many boyfriends were Nepalese and how many are Australian?" and "so your parents allowed you to do whatever you wanted to do?".

(2) Dr Balasingham performed a vaginal examination on Patient A but had not obtained informed consent from Patient A, nor did he offer her a chaperone and the examination was not clinically indicated.

(3) Dr Balasingham inappropriately performed a vaginal examination when he rubbed Patient A's clitoris and the outside of her vagina for approximately 5-6 seconds.

(4) Dr Balasingham failed to keep his medical records concerning Patient A to the requisite standard.

(5) Dr Balasingham failed to appropriately document Patient B's medication regime of an anti-depressant, and two benzodiazepines which were Schedule 4 restricted substances.

1. Dr Balasingham did not give evidence at the stage two hearing.
2. In determining the appropriate protective Orders we have taken the following matters into account:

(1) We repeat our findings as to the seriousness of Dr Balasingham's conduct in performing the vaginal examination on Patient A when we determined that he was guilty of professional misconduct in the Stage One proceedings.

"100. Dr Balasingham's conduct, the subject of Complaint Two, is of a very serious nature and demonstrates a significant departure from accepted standards. It is sufficiently serious to justify suspension or cancellation of his registration. In arriving at this finding we take into account the following matters as indicators of the serious nature of that conduct, as set out in "Guidelines: Sexual Boundaries in the doctor-patient relationship" published by the Medical Board of Australia on 12 December 2018:

1.1 Trust

Trust in the relationship between doctors and patients is a cornerstone of good medical practice. Sexual misconduct is a serious abuse of that trust. Patients have a right to feel safe when they are consulting a doctor.

Patients need to trust that their doctor will act in their best interests, treat them professionally, not breach their privacy and never take advantage of them. Exploitation of the doctor-patient relationship undermines the trust that patients have in their doctors and the community has in the profession. It can cause profound psychological harm to patients and compromise their medical care.

2. Why breaching boundaries is unethical and harmful

Doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons including:

Power imbalance: The doctor-patient relationship is inherently unequal. The patient is often vulnerable and in some clinical situations may depend emotionally on the doctor. To receive healthcare, patients are required to reveal information that they would not reveal to anyone else and may need to allow a doctor to conduct a physical examination. A breach of sexual boundaries in the doctor-patient relationship exploits this power imbalance.

Trust: Patients place trust in their doctor. They have a right to expect that examinations and treatment will only be undertaken in their best interests and never for an ulterior, sexual motive.

Safety: Patients subjected to sexual behaviour from their doctor may suffer emotional and physical harm.

Quality: A doctor who sexualises patients is likely to lose the independence and objectivity needed to provide them with good quality healthcare.

Public confidence: Members of the community should never be deterred from seeking medical care, permitting intimate examinations or sharing deeply personal information, because they fear potential abuse.

(2) In addition, we accept the submission made by the HCCC that Dr Balasingham's conduct in performing the vaginal examination without obtaining informed consent, without offering a chaperone, and without clinical indication is also a significant departure from accepted standards.

1. The Court of Appeal's observations in Litchfield (supra) at 638 are relevant:

"Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9:

'The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest'."

1. Dr Balasingham denies the conduct. We accept the submission made by counsel for the HCCC that Dr Balasingham was entitled to deny the allegations made against him. It does leave us in the same position as the Tribunal in Health Care Complaints Commission v Gao (No 2) [2023] NSWCATOD 19:

"71 [...] It is relevant that, save to the extent to which we will later refer, the Tribunal has no explanation for why the offending conduct occurred, and, beyond the Respondent'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 recur, with similar frightening and distressing consequences for patients of the Respondent.

[...]

103 ... However the fact remains, as submitted on behalf of the Applicant, 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 recur becomes problematic." (my emphasis)

1. We observe that we do not have before us any expert evidence as to why Dr Balasingham acted in this way, nor do we have any character references.
2. We do have lengthy reports entitled "Workbook Responses for Morrison Consulting Advisory Education Program". These appear to document Dr Balasingham's video meetings with a facilitator where they had case-based discussions and he was asked questions. We did not find this evidence of any assistance.
3. We accept the submission made by counsel for the HCCC that Dr Balasingham's conduct in carrying out an unnecessary, unexplained and highly intimate procedure, and then using that opportunity to indecently touch Patient A is of such seriousness that cancellation of his registration is the only appropriate order.
4. Cancellation of his registration will also serve as a deterrent to Dr Balasingham and other medical practitioners. It will also serve to maintain public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.

1. As to the setting of a period in which an application for re-registration is prohibited, Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 held at [22]:

"The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make."

"The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order."

1. We are of the view that a three year period is appropriate. That reflects the seriousness of Dr Balasingham's conduct.
2. While we harbour concerns about Dr Balasingham's fitness to practise because of the language he used in his Application, we accept the submission made by counsel for Dr Balasingham that this is an issue which will be addressed, if necessary, when Dr Balasingham applies for re-registration. Accordingly it does not play a role in our setting of the disqualification period.

1. The Commission seeks its costs as agreed or assessed.
2. As we have said, no submissions were made against such an order.
3. The primary purpose of an award of costs is to indemnify the successful party. The HCCC established that Dr Balasingham was guilty of both unsatisfactory professional conduct and professional misconduct and established each of the particulars of all three complaints brought against Dr Balasingham.
4. In the circumstances, it is appropriate for a costs order to be made in favour of the Health Care Complaints Commission.

1. We have previously made an Order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the publication by any person or entity of the names of the persons set out in the Schedule to the Application (described as Patients A, B and C and Person 1) is prohibited.
2. We now make the following orders:

(1) Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (NSW), the Tribunal finds that, if Dr Balasingham were still registered, the Tribunal would have cancelled his registration.

(2) Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (NSW), the Tribunal disqualifies Dr Balasingham from being registered in the health profession for three years.

(3) Under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law, Dr Balasingham is to pay the Health Care Complaints Commission's costs 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.