Health Care Complaints Commission v Cheng

NCAT Occupational|2017-05-18

Introduction

In proceedings reported at [2017] NSWCATOD 51 we found the respondent, Dr Elvin Suet Pang Cheng guilty of professional misconduct. The conduct concerned and arose out of examinations conducted by the respondent as a medical practitioner on five female patients. In summary; in February 1993 he inappropriately examined the breasts and buttocks of a 12-year-old girl without an adult being present and continued to conduct inappropriate physical examinations of a sexual nature on this patient in 1995 and 1997. In 1993, he conducted examinations on a 13-year-old girl without the presence of any adult person in an inappropriate manner touching intimate parts of her body. In 1993 he conducted an examination of an adult female again, in an inappropriate manner. In September 2012 and in 2013 he examined two adult female patients in an inappropriate manner.
During the course of our reasons for decision we said (at [165] and [166]; It was unnecessary for Patient A to have removed all of her clothes, and it was unnecessary for the respondent to have carried out the physical examinations in the manner in which he did. In the absence of any valid clinical purpose for the manner in which he conducted the examinations, the only possible inference in all the circumstances is that the respondent did what he did for sexual gratification. There can be no other reason why he would have conducted himself in this manner. In so concluding, we acknowledge that minds may differ about the clinical necessity for some parts of the examinations, such as the vaginal examination of Patient A on the second occasion. Even allowing for an element of doubt in favour of the respondent in this regard, the overwhelming circumstances point to conduct for sexual gratification. We make the same findings concerning the conduct of the respondent when examining Patient B. In addition to the inappropriate exposures of the breasts of this very young and vulnerable person, it was entirely inappropriate for the respondent to have conducted the abdominal examination when her only complaint related to bronchitis. Again, the nature and extent of the conduct of the respondent leads inevitably to the conclusion that his behaviour was motivated by sexual gratification. Even though Patient C was an adult and, on the evidence, a mature woman, nevertheless she reported strong feelings of violation and personal intrusion by reason of the inappropriate conduct of the respondent. Again, we consider that this conduct was of a sexual nature. With respect to Patient D, the failure of the respondent to diagnose, further investigate or review the possibility of a lump in her breast in circumstances where it is clear that there was no such lump, are indicative that the respondent's examination was conducted for sexual gratification rather than any appropriate clinical purpose. The same circumstances apply to Patient E. Furthermore, the manner in which he raised her underwear to expose her vaginal area and his decision to conduct a second ECG when this could not be clinically justified is again indicative of a course of conduct motivated by sexual gratification. Indeed, in its totality the inappropriate conduct of the respondent as we have described it could only have been motivated by sexual gratification because he was unnecessarily and inappropriately exposing sensitive parts of the bodies of these five patients without their explicit consent, and inappropriately touching them.

The evidentiary material

For the purpose of considering these proceedings we have available to us all of the evidentiary material adduced in the stage 1 hearing.
Additional material was handed up on behalf of the respondent during the course of the hearing of stage 2 proceedings. In summary form, this material consisted of; 1. A handwritten letter dated 16 May 2017 from Dr Keith K-Y Chee, a consultant psychiatrist, who said that he had reviewed the respondent that day. Dr Chee said that he had provided counselling to the respondent "over the last years." He said that the experience of the proceedings had caused significant stress to the respondent and he supported the respondent in not appearing at the stage 2 hearing. 2. A letter from Dr Chin Ven Tan, a general practitioner who has been the supervisor of the respondent between February 2016 and April 2017 whilst the respondent was employed in his medical Centre. Dr Tan said that even though the respondent was restricted to consulting with male patients only and despite the stress that he had experienced, the respondent had developed an effective practice and established a professional and positive rapport with patients. He said he would re-employ the respondent if the respondent was allowed to practice. 3. A record of the respondent's current professional development points which indicates that he has exceeded the minimum requirements by a factor of three. 4. A report of a practice audit conducted by Dr M Jarrett on 5 October 2016 pursuant to practice conditions then current on the respondent's registration. Although there were some areas where there was room for improvement, overall the assessor was of the opinion that the respondent complied with all relevant requirements with respect to the content of his medical records. Furthermore, there was no evidence of non-compliance with any of his then current practice conditions which included a condition that the respondent not provide medical services to any female person.
A statement provided by the respondent during the course of the stage 1 hearing indicated that he qualified in medicine from Sydney University in 1984, trained at hospitals in Sydney until 1987 and then practised as a general practitioner in his own practice in a Sydney suburb from 1988 until the practice was acquired by another group of doctors in February 2016. We were informed by his counsel during the course of the stage 2 hearing that the respondent's registration was suspended under section 150 of the National Law following publication of our earlier decision in April 2017.
Character references were provided at the time of the stage 1 hearing by doctors Au-Yeung, a general practitioner, Dr Ngu, a consultant gastroenterologist, Dr Chik Foo, a consultant cardiologist, Dr Law, a consultant psychiatrist, Y K Yeng, a psychologist, and a number of laypersons, including a Minister of Religion who administers pastoral care to the respondent and who had been treated by the respondent. In general terms, these referees attested to the good character of the respondent, his dedication and commitment as a general practitioner, and his dedication and commitment to his family.
Whilst some of the referees had read the complaints made against the respondent, due to the date on which the references were provided , none were aware of the stage 1 Tribunal findings. To this extent, the value of these references must be diminished in assisting us in the resolution of these proceedings. However, we note that there are no allegations of any improper or inappropriate conduct on the part of the respondent other than those which were the subject of our earlier decision.
The respondent had earlier come to the attention of the predecessor of this Tribunal under the provisions of the then Medical Practice Act 1992. The Medical Tribunal of NSW dealt with a complaint that between 2 September 1999 and 30 April 2001 during the course of professional consultations the respondent had engaged in inappropriate physical and sexual contact with a female patient on about five occasions. The following material has been extracted from the Decision of the Tribunal given on 21 April 2005. During the course of conducting a vaginal examination the patient then aged 35 commenced rocking her pelvis and she repeated this action on a number of occasions which the Tribunal observed in its Decision to have been "in apparent sexual excitement." In November 2000 and later in March and April 2001 the respondent, after commencing a vaginal examination, proceeded to masturbate the patient. In a statement which he had given, the respondent had said that when he had masturbated the patient on 20 November 2000 he was sexually aroused and conceded that his conduct was inappropriate.
In May 2001 the respondent told the patient that he did not wish to continue to have contact with her. She told him that she had a video of his conduct in the surgery with her and she endeavoured to extort the sum of $300,000 from him. The respondent reported the matter to the police and the patient was charged and convicted of attempted extortion.
The Tribunal viewed the video taken by the patient which lasted about 10 minutes and, as is set out in the Decision, shows the respondent masturbating the patient, stroking and kissing her breast and massaging her buttocks. The respondent remained fully clothed. The respondent conceded that he performed the same type of act on each of the five occasions in which there was sexual contact with the patient. In its Decision, the Tribunal noted that the respondent had acknowledged that he had experienced a degree of sexual gratification from his contact with the patient. In his evidence to that Tribunal, the respondent said that on each of the five occasions on which there was sexual contact between them, he performed the same type of act, that is, masturbating the patient while he remained clothed. …… "Each episode commenced as if it were a clinical vaginal examination and moved to the sexual contact described". According to the Tribunal decision it was only once, on 20 November 2000 that the patient complained of any symptom which would have indicated the need for a vaginal examination.
The Tribunal noted that the respondent had consulted Dr Keith Chee on 15 June 2001 and had seen him since for monthly counselling and therapy. A report from Dr Chee of 11 March 2005 indicated that "the practitioner has a genuine and continuing interest in learning about boundary issues in doctor-patient relationships and identifying the appropriate standards in professional boundaries."
The respondent also consulted Dr Murray Wright a consultant psychiatrist who provided reports for the Tribunal hearing and also gave evidence. It was the opinion of Dr Wright that the respondent had failed to deal with the sexualised behaviour of the patient "because he experienced a degree of sexual gratification himself and so colluded in an interaction which became more sexualised as time went on." As noted by the Tribunal, Dr Wright thought that the failure to terminate the relationship with the patient was brought about by a lack of sophistication and experience, and personal isolation and professional demands exacerbated by his "very poor understanding" of professional boundaries and how to deal with difficult patients. In evidence Dr Wright said that the respondent's conduct was not predatory but opportunistic. He had reacted to an opportunity which had arisen but he had not initiated the contact. Furthermore, because Dr Wright thought that the respondent had developed "a better understanding of boundary issues and how to cope with any transgressions….. it was "sufficient" to enable him to practice without risks to his patients."
In its Decision, the Tribunal accepted that the respondent had "understood and learned about the ethical issues surrounding his misconduct from various sources but principally from his sessions with Dr Chee." The Tribunal relied principally upon the opinion of Dr Wright concerning this matter. Indeed, in determining that the respondent had taken active steps to rehabilitate himself since the sexual misconduct the Tribunal specifically mentioned that it was persuaded by the evidence of Dr Wright that the respondent had "progressed in his understanding of the complexities of the issue to the stage where he may practice safely and pose no risk to the public. The Tribunal also accepts the opinion of Dr Wright that the sense of shame and humiliation to the practitioner both professionally and privately which this conduct has brought is also a factor in the determination that the practitioner poses a low risk to the public if he were to continue to practice."
The Tribunal imposed a "severe reprimand", a fine of $10,000 and practice conditions including a requirement to attend upon a psychiatrist, to continue education in relation to maintenance of proper professional boundaries and medical ethics for a period of two years, to work with at least one other medical practitioner, and to restrict his hours of work. The respondent was also required to attend for review by Dr Wright or another nominated psychiatrist every six months for a period of two years.

The purpose of protective orders

It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been most recently, succinctly, referred to in the judgement of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said; 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, 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. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest."
We have already concluded that the misconduct of which we have found the respondent guilty carries with it sexual connotations of a most serious kind. The background against which the conduct of the respondent is to be considered is succinctly and appropriately summarised by the following extract from the judgement of the New South Wales Court of Appeal (HCCC v Litchfield (1997) 41 NSWLR 630 at 638): 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."

The submissions of the parties

In essence, the complainant submitted that the misconduct of the respondent was of a most serious kind and involved predatory sexual behaviour. This ipso facto rendered the respondent unfit to practice medicine, and in the absence of any material which would indicate to the contrary he should be characterised as being presently unfit to practise indefinitely. It was for this reason that a 10 year non-review period was suggested. Furthermore, such predatory sexual behaviour would make it inappropriate for the respondent to provide any ancillary health services of the kind referred to in section 5 of the National Law.
The respondent emphasised that there had been a gap of almost 20 years between the conduct which had commenced in 1993 and the later conduct in 2012 and 2013. It was argued that the seriousness of that misconduct should, in some way, be qualified by the fact that the respondent was at a severe forensic disadvantage in defending that part of the proceedings which involved misconduct alleged to have occurred commencing in 1993. However, this submission overlooks the fact that despite the forensic disadvantage suffered by the respondent, which we acknowledged, we nevertheless found to the requisite standard that this conduct had occurred.
The respondent also submitted that the conduct the subject of the earlier Tribunal decision in 2005 was of an entirely different kind because it had been initiated by the patient. However, this submission ignores the fact that the respondent conceded that he had gained sexual satisfaction from each of the five encounters with that patient. The behaviour which is at the heart of these proceedings included, or was initiated by, intimate examinations which could only have involved some form of sexual satisfaction. Furthermore, the earlier conduct was characterised as opportunistic, not predatory. The conduct of the respondent the subject of these proceedings was clearly initiated, on the evidence, by him and may therefore be characterised as predatory.
As we understand it, the principal submission made on behalf of the respondent is that we should not entertain the cancellation of his registration unless we were satisfied that he was probably permanently unfit to practice medicine, based on a line of authorities commencing with Ex parte Lenehan [1948] HCA 45 in the High Court of Australia. It is correct that there are authorities which make reference, in passing, to such a test, but each of them needs to be understood in the context of the particular circumstances of each case, and they need to be further considered in light of the nature and extent of any analysis. Furthermore, there may be significantly different factual considerations which apply to the circumstances of a legal practitioner, which is the subject of some of the authorities, and a medical practitioner. It is clear that the violation of sexual boundaries is a most serious matter for medical practitioners. It may not be so clear in the case of a solicitor or barrister who has a sexual encounter with a client or even a barrister who has a sexual encounter with an instructing solicitor. Intimate physical examinations are a feature of medical practice, but not of legal practice. Fortunately, it is unnecessary for us to examine this submission in any detail because it is the subject of an authoritative pronouncement in the NSW Court of Appeal in Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93. In the course of his judgement, Campbell JA (with whom Hodgson JA and Handley AJA agreed) said; 52 Ms Adamson submitted that the onus was on the Law Society to establish that a person whose name is on the roll is not a fit and proper person to remain on it: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236; New South Wales Bar Association v Maddocks (Court of Appeal, 23 August 1988, unreported) per Kirby P at 1; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17] (1). That, she submits, is to be contrasted with an application for admission, in which the onus is on the applicant to establish fitness: Re B [1981] 2 NSWLR 372 at 403; Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported) at 5. 53 Ms Adamson initially submitted that removal from the roll requires the Law Society to establish that the solicitor is "permanently unfit to practice ". Various cases concerning removal of a legal practitioner from the roll make mention of "permanent unfitness", sometimes in the context of a presumption that arises from the making of an order for removal from the roll (eg New South Wales Bar Association v Maddocks per McHugh JA, penultimate paragraph), sometimes in the context of what must be established before an order for removal can be made (eg Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 422; Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) at 4 per Kirby P, 38 per McHugh JA; New South Wales Bar Association v Maddocks per Kirby P at 38; NSW Bar Association v Cummins at [25]-[28] per Spigelman CJ (with whom Mason P and Handley JA agreed); Prothonotary of the Supreme Court of NSW v P 17 per Young CJ in Eq (with whom Meagher JA and Tobias JA agreed). In the course of argument Ms Adamson accepted that a requirement to establish "permanent unfitness to practise" did not mean that it was necessary for the Law Society to prove that in no circumstances whatever would the solicitor be fit to practise. She accepted that the existence of the jurisdiction to readmit a person whose name has been removed from the roll shows that "permanent" could not have that shade of meaning. 54 Rather, in my view, it has the shade of meaning of being likely to be unfit to practice for the indefinite future. Some cases have recognised that shade of meaning explicitly: Maddocks at 38 per Kirby P; Ritchard at 4 per Kirby P, both of which passages are cited by Spigelman CJ in Cummins at [25] and [27]. If the Tribunal or Appeal Panel is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practice, then suspension for that period of time is the appropriate order. Suspension is achieved by orders under section 171C(1)(b) and (c). Removal from the roll is appropriate only when a legal practitioner is unfit to practice, and suspension for a particular period is not appropriate.
This reasoning was approved by the NSW Court of Appeal in The Council of the Law Society of NSW v Doherty [2010] NSWCA 177. Young JA (with whom Tobias and Campbell JJA agreed) said; 60 The authorities justify the proposition that an order for striking off is made when the court considers that the Law Society has established that the solicitor is "permanently unfit to practice", or as this Court more precisely held in Stanoevski v The Council of the Law Society of NSW [2008] NSWCA 93, he or she is likely to be unfit to practice for the indefinite future.
Although that case clearly involved a legal practitioner, we acknowledge and adopt the above statements of principle clearly expressed in the judgment as reflecting the appropriate approach to be applied to the resolution of these proceedings.

Consideration

The professional misconduct which we have found the respondent to have committed is of a most egregious kind, and we cannot agree with the submissions made on his behalf that it demonstrates anything other than unfitness to practice medicine. We approach the matter on the basis that predatory sexual behaviour of this kind is sufficient to constitute unfitness to practice medicine.
The difficulty which we face in assessing whether or not the respondent is likely to be unfit to practise for the indefinite future or for some limited period is that there is simply no evidentiary material available to us to indicate why he engaged in that sort of behaviour and whether and to what extent he is unlikely again to ever offend. The protective function which this Tribunal exercises demands that we must have some confidence that he is unlikely to offend again in the future. The only material available to us is that which is referred to in the reasons for Decision of the Medical Tribunal relating to a course of events finishing in 2001. And of course, the prediction of Dr Wright that the respondent was unlikely to engage again in conduct for the purpose of gaining sexual gratification has been shown to be wrong, having regard to the later incidents in 2012 and 2013 which are the subject of these proceedings.
Although it is clear that the burden of establishing unfitness to practice by reason of professional misconduct lies on the complainant, nevertheless the burden of establishing any mitigating factors in favour of the respondent will lie on the respondent. Because this basic proposition does not appear to be universally recognised by respondents appearing before this Tribunal it is appropriate to refer to the following observations of Campbell JA in the NSW Court of Appeal in Stanoevski previously cited; 59 The starting point of one strand of the reasoning of the Appeal Panel was that the actions of the Appellant that were the subject of the information were all acts of serious professional misconduct. The next step was that the collective effect of the acts of professional misconduct was that, as at the time the last of them had been committed, the Appellant was not fit to remain on the roll. That conclusion was not argued against, nor could it be. I accept that the Appeal Panel then looked to see whether the Appellant had provided any basis for the Appeal Panel believing that the situation had changed. The Appeal Panel was not satisfied that any such basis existed. 60 In my view, in proceeding in this way the Tribunal was not improperly casting an onus of proof onto the Appellant. All it was doing was recognising that the proved facts of the various acts of professional misconduct led to the Appellant being under an onus of adducing evidence. That is an entirely proper way of proceeding. In Johns v Law Society of NSW [1982] 2 NSWLR 1 Moffit P (with whose reasons Hope JA agreed) dealt with a situation where a solicitor had engaged in acts of professional misconduct some years before proceedings for his removal were heard. He said, at 9-10: "Where there is misconduct prima facie requiring at that time a striking off order on the basis of then unfitness, the substance of the question whether when the matter comes for decision some years later is not dissimilar to the question arising upon an application for re-admission, namely whether it appears that there is material before the court to lead it to conclude that the past proved unfitness has been changed to fitness. The ultimate onus is on the Law Society, but where there is admitted professional misconduct and a claim of rehabilitation or of fitness replacing unfitness, the court will look to what evidence there is to establish this change and will expect he who claims there is such a change to point to the evidence that there is." 61 In Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at [4], Barwick CJ, Kitto and Taylor JJ referred to two distinct meanings of the expression "burden" or "onus" of proof. "(1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of "introducing evidence"." 62 Their Honours approved the statement from Phipson on Evidence, 10th ed 1963, para 95: "The burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates." 63 In Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [78], [84] I endeavoured to explain what is involved in there being a shifting of an evidential onus: "If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If a defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument. See generally Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561; Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at [1]- [2], 371-2; Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52 at [55], 64-65. As Hunt J put it in Apollo at 565: "... provided that the plaintiffs have established sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden to advance in evidence any particular matters with which (if relevant) the plaintiffs would have to deal in the discharge of their overall burden of proof .... [T]he plaintiffs' burden of proof of the negative proposition for which they contend is not as difficult in this case as it might otherwise have been because of the defendant's greater means to produce evidence which contradicts that proposition." ... Before an evidential onus shifts from a plaintiff, the plaintiff must have adduced enough evidence for the court to infer, if the evidence that the plaintiff adduced was accepted by the court and was the only evidence on that topic in the case, that the proposition concerning which the plaintiff had the onus of proof was more likely than not true. In that situation, one says that an onus of adducing evidence shifts to the defendant because the defendant is then in a situation in which, if the defendant does not adduce evidence concerning that proposition, the plaintiff might succeed in establishing that proposition. Counsel for a defendant has to decide whether to adduce evidence on a topic at a time in the course of the trial when counsel necessarily cannot be absolutely sure of two matters that are of critical importance to whether the onus of adducing evidence has actually shifted - will the judge accept the plaintiff's evidence on the topic, and if so will the judge regard that evidence, if no other evidence is adduced, as enough to make it more likely that the plaintiff's contention concerning that topic is correct. The type of "onus" that the defendant is then under is one of practical necessity - either adduce evidence, or risk losing on that issue. But before a defendant is in that situation, the evidence that the plaintiff has put forward on the topic must be such that, if accepted and the only evidence on the topic, it would justify the court in deciding it is more likely than not that the proposition for which the plaintiff bears the onus of proof is true. If the evidence that a plaintiff adduces is equally consistent with that proposition being true, or that proposition not being true, so that the plaintiff would fail to discharge its onus of proof if that were the only evidence on the topic, the defendant does not come under the sort of practical compulsion that I have been describing." 64 Those remarks are in my view directly applicable in the present case, where the Law Society had the onus of proving a negative proposition, namely that the Appellant was not a fit person to remain on the roll. The evidence it adduced of the various acts of professional misconduct in the period 1991 to 1993 were enough to establish that the Appellant was then unfit. A presumption of continuity would then arise, such that a court or tribunal would be justified in concluding that the Appellant was still unfit, unless the Appellant could produce evidence that gave reason for believing that the situation had changed. That is a totally conventional application of a shifting evidential onus. It involved no error of law by the Appeal Panel. 65 There may be some subject matters concerning which the strength of an inference arising from a presumption of continuity attenuated with time until it totally disappeared. However, the subject matter to which the presumption of continuity is applied in the present case is the character of a person. It is not at all uncommon for aspects of the character of a person to persist over decades, frequently for someone's entire life. In my view, a tribunal of fact would be justified in using the extremely serious acts of professional misconduct in which the Appellant engaged in the period 1991 to 1993 as a basis for inferring that she was then unfit to practise, and that it was likely, notwithstanding that 15 years had passed, that she was still unfit to practise, unless the Appellant could produce evidence that gave reason for believing the situation had changed. 66 In fact, the reasoning of the Appeal Panel was not totally dependent upon applying a presumption of continuity to the demonstrated unfitness of the Appellant in the period 1991-1993. A very important strand in the reasoning of the Appeal Panel related to the evidence that she had given (or failed to give) in various hearings before the Tribunal and the Appeal Panel, including the hearing before the Appeal Panel from which the present appeal is brought. Their assessment of her evidence before them was (at [154]): "The Appellant has shown no real understanding of her own misconduct, nor has she shown genuine contrition, and her evidence before this Appeal Panel does not lead to a finding that she was openly frank and candid." 67 The Appeal Panel concluded (at [162]): "The attitude adopted by the Appellant in the course of her evidence before this Appeal Panel was not conducive to a finding that, on the balance of probabilities, she had candidly come to terms with her wrongdoing; recognized the enormity of her conduct, and could, accordingly, undertake never to engage in similar conduct. She appeared to the Appeal Panel to have insufficient insight to recognize and frankly acknowledge her gross professional misconduct. Accordingly, it is not possible for the Appeal Panel to be satisfied that faced with a situation requiring her to make frank admission of error, oversight or ignorance, she is capable of the necessary candour. Thus, there continues, in the opinion of the Appeal Panel, an unacceptable risk to the public." Even though there was this most important strand to the reasoning of the Appeal Panel, to the extent to which its reasoning depended upon the Appellant having failed to convince it that she was a fit and proper person, there was no error of law.
We have found that the respondent deliberately and intentionally carried out inappropriate examinations in an inappropriate manner which can only be explained as involving sexual gratification and is guilty of professional misconduct. Dr Cheng has not admitted this behaviour, and we have no information available about his current psychological state or wellbeing on which to evaluate or understand his behaviour with Patients A, B, C, D and E that led to this finding. Nor has the respondent provided information to assist us in considering potential contributing factors that may be amenable to intervention and would therefore assist in determining the risk of reoffending and the framing of appropriate Orders.
Sexual boundary violations represent an abuse of the patient's trust and the practitioner's position of authority. They may be impulsive and opportunistic, planned and predatory or a combination of the two.
In very general terms, sexual boundary violations may sometimes be attributed to impaired judgment as a consequence of illness or intoxication, or occur in combination with personality characteristics in a practitioner that increase the risk of recurrent offending. Intoxication, episodic illness (eg a manic phase of a bipolar illness) or increased psychological vulnerability in the practitioner, (for example following bereavement) may in part account for, but not excuse, incidents of impulsive or disinhibited behaviour that contribute to sexual boundary violations. In such a case the underlying illness (substance abuse, mood or adjustment disorder) may be amenable to treatment, thus reducing the risk of reoffending.
Also, in very general terms, the contribution of an individual practitioner's personality characteristics and traits may be a significant factor. Personality disorders or difficulties are understood to include longstanding pervasive patterns of impairment in a number of situations and across the related domains of 'self' which includes identity, self-direction and emotional regulation; and the 'interpersonal' domain which includes the capacity for empathy and intimacy. Recurrent sexual boundary violations in a professional context may indicate longstanding impairments in both self and interpersonal functioning. This can include antisocial disregard for lawful and ethical frameworks, reduced capacity for intimacy in that exploitation is the primary means of relating to others and a callous disregard and lack of empathy for the consequences of the predatory behaviour. Narcissistic personality traits include a vulnerable and/or over inflated self-esteem with an associated sense of entitlement and lack of empathy for the patient/victim.
Very occasionally a lack of education or understanding of what constitutes appropriate behaviour in the doctor-patient interactions might be a contributing factor.
Of course, we have no basis for considering whether any of the above matters apply to this respondent. We have mentioned them because they assist in understanding that an identification of any reason for behaviour of this kind enables consideration to be given to appropriate treatment and other measures designed to effect rehabilitation. If no such understanding is possible then the formulation of any prognosis becomes impossible.
We again refer to the evidence before the Medical Tribunal in the 2005 Decision. Dr Wright said that the respondent's behaviour was "caused by a number of factors including his lack of sophistication and experience, personal isolation and professional demands. This was exacerbated by the practitioner's "very poor understanding" of professional boundaries and how to deal with transgressions". Dr Wright gave further evidence that he remained of the view that the practitioner "had a low risk of re-offending. He rejected the proposition put to him by counsel for the complainant that the practitioner was predatory of his patient but said that he was opportunistic, his reaction being "a response to the opportunities that arise without due reflection or regard".
The 2005 decision includes evidence that Dr Cheng consulted the psychiatrist Dr Chee monthly from mid 2001. Dr Chee has provided a letter to this Tribunal dated 16 May 2017 indicating that he has had contact with Dr Chee "over the last years" although the frequency is unclear. In the Medical Tribunal proceedings, Dr Cheng was also compliant with the condition that he undertook education programs to increase his understanding of appropriate professional boundaries. Therefore, it is not available to this Tribunal to consider that Dr Cheng is either naïve or uneducated about proper professional boundaries, or that psychiatric treatment has to date altered the risk of him reoffending.
On the basis of such evidence as is available to us, we are of the opinion that, in the absence of alternative explanations or evidence provided by the respondent, his conduct arguably constitutes recurrent predatory sexualised behaviour that is aimed to satisfy his own personal needs and not the assessment or treatment of his patients. This behaviour has recurred, in relation to Patient D and E, despite his receiving a serious reprimand, a fine and conditional registration following the 2005 Tribunal. In addition, it has recurred despite undertaking relevant professional education in relation to doctor patient relationships, communication and maintenance of appropriate boundaries, and despite regular psychiatric treatment. Dr Cheng's continued disregard for the best interests of his female patients in the form of recurrent sexually intrusive and exploitative behaviour suggests a probability that it is due to longstanding personality factors. There is no evidence that his behaviour is amenable to censure, education or therapy, thus indicating a risk of recurrence.
In these circumstances, and without any current medical evidence concerning the respondent's condition, any proposed appropriate treatment regime and any prognosis, no matter how tentative, there is simply no basis for us to be able to assess for how long the respondent is likely to continue to represent an unacceptable risk to female patients. We find that the respondent is currently unfit to practise medicine and is likely to be so for the indefinite future. Consistent with authority, it would be inappropriate in the circumstances to consider suspension of registration. In all the circumstances as we have discussed them, the only appropriate protective order is one of cancellation.
We add for completeness that we reject any suggestion that it is appropriate to allow the respondent to continue to practice medicine with a condition that he not perform medical services for female patients. Such a restriction, as is now widely accepted in this Tribunal, is indicative of a person who is not a suitable person to be registered to practice medicine (sec 149C(1)(d)).
Because of the nature and extent of the misconduct which the respondent engaged in we agree with the complainant that it is appropriate to make an order under section 149 C (5) prohibiting the respondent from providing any health service as defined under section 5 of the National Law.
This leaves for consideration the length of any non-review order under section 149C(7). Again, the lack of evidence concerning the respondent's current condition and any prognosis by reference to any treatment or other regime creates difficulties in formulating an appropriate period. Such a period should be fixed by reference to the length of time that the Tribunal assesses as being reasonable to allow the respondent to have undertaken and successfully completed rehabilitation. We note that despite the respondent having undertaken treatment, attended courses and the like since the 2005 decision of the Medical Tribunal he again engaged in conduct involving sexual gratification some seven years later. In the circumstances, we think that this is an appropriate period to set as a minimum period for a non-review order in the interests of the protection of the public.

Costs

The complainant sought an order for the payment of costs. This is a costs jurisdiction and costs normally follow the event. The respondent, through his counsel made no submissions opposing such an order. We shall make a costs order accordingly.

Orders

We make the following orders; 1. The registration of the respondent as a medical practitioner is cancelled from this date. 2. The respondent may not make any application for review of the cancellation of his registration for a period of seven years from this date 3. The respondent is prohibited from providing any health service as defined under section 5 of the Health Practitioner Regulation National Law including, but not limited to, acupuncture and Chinese medicine, until such time as he brings an application for review and is reregistered as a medical practitioner 4. The respondent is to pay the costs of the complainant in an amount assessed in default of agreement.

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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2017

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Judgment (8 paragraphs)

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Cases Cited (21)

Cited By (3)