The applicant submits that the age of the respondent, of itself, diminishes the risk of the respondent posing a threat to the health and safety of the public and cites in support the tools which predict risk of recidivism of sexual re-offending and which treat age as a decreasing risk factor because of the decrease in libido: e.g. STATIC 99-R and RSCP professional judgment tools. The respondent rejects that any reliance should be placed on this factor; and submits that it is "irrelevant" in light of no finding of guilt of any sexual misconduct having been made.
Ultimately, the Tribunal is not satisfied that this factor assists one way or the other.
I apprehend that the applicant's submission proceeds on the premise that, even assuming the Complaint is proved, the respondent's age reduces the risk of the alleged wrongful conduct being repeated. Viewed in that light, it has some potential relevance. Nevertheless, in the absence of a hearing on the inquiry, the Tribunal cannot be satisfied of the relevance of the statistics where the Complaint has not been proved. Nor is it possible to be satisfied that the statistics offer a good reflection of the particular position here; even assuming, for the purposes of the argument, that the Tribunal was satisfied of the allegations the subject of the Complaint.
The Tribunal declines to give this factor any weight.
[2]
It was also brought to the Tribunal's attention that the respondent accepts that he ought to have been more sensitive to the patients' privacy concerns and that he ought to improve the language he uses with his patients.
The applicant submits that this does not, of itself, warrant an inquiry.
To hold the inquiry for this limited purpose, even given the history recounted above, could serve some utility in redressing such issues. This tends weakly against terminating the inquiry.
Nevertheless, viewing this from a different perspective, the respondent's insight supports the applicant's submission that the respondent will no longer practise in the way he did before these events; and this in itself favours terminating the inquiry as it suggests a lessening of any risk (assuming there to be some) to the health and safety of patients, from this aspect of the Complaint.
On balance, this factor favours not continuing the inquiry and I give it slight weight.
[3]
As noted above, after considering submissions and supporting materials in excess of 1000 pages, the Director determined to withdraw the Complaint. I am satisfied that the factors relevant to continuing proceedings in s 90C of the Health Care Act make it appropriate for me to take this circumstance into account. Due regard should be given to that circumstance, on the basis that the Director had the benefit of comprehensive materials and, I infer, has applied a considered analysis.
Whilst not determinative, this circumstance is not irrelevant, and I give it slight weight in favour of not continuing the inquiry.
[4]
The Tribunal has also considered the impact to the standing of the health system, or the public's confidence in the health system, for the applicant to file the Complaint which contains serious allegations and then withdraw it and seek to have the inquiry terminated.
If the termination of the inquiry before the serious allegations could be heard and determined could jeopardise the public's confidence in the health system, then that would be a factor that would favour continuing the inquiry.
The confidence in the health system is not conserved by the mere fact that the respondent was acquitted from criminal charges on the criminal standard of proof. However, that is not the only factor here. In addition:
[5]
(1) The Director, after going through the relevant process, has determined to withdraw the Complaint.
(2) The respondent's legal representatives support that position.
(3) Finally, the Tribunal has itself considered the detailed submissions of the parties and the material that has been provided and has conducted these proceedings to determine whether to form the opinion it is not in the public interest to continue the inquiry.
[6]
As no factors, as canvassed above, tend to favour continuing with the inquiry, the Tribunal is satisfied that not doing so would not jeopardise the public's view of the standing of the health system.
[7]
Continuation of inquiry in the absence of a Complaint
[8]
There is also the issue of how the Tribunal would proceed with an inquiry in the absence of the Complaint; which has been withdrawn. Were the Tribunal to independently identify an aspect of the conduct the subject of the Complaint, that it considered ought properly to be the subject of an inquiry, then, subject to procedural fairness, that circumstance would tend against not continuing the inquiry.
The Tribunal has not identified any aspect of the Complaint that should be the subject of the inquiry, including with respect to what might be described as the insensitive language issue (discussed above).
[9]
As noted above, the applicant has withdrawn the Complaint. In that circumstance, pursuant to cl 12 of Sch 5 to the National Law, the Tribunal may decide not to conduct an inquiry if it is of the opinion that it is not in the public interest for the inquiry to continue.
Keeping the relevant objectives in mind, the Tribunal does not apprehend that there is a risk to the health and safety of any person or group of persons by terminating the inquiry and that it would be consonant with a fair, transparent and accountable system not to continue with the inquiry.
For the foregoing reasons, each of the factors tend towards not continuing with the inquiry. The Tribunal is therefore of the opinion that it is not in the public interest to continue the inquiry.
The inquiry before the Tribunal is terminated.
This is sufficient to bring an end to the proceedings. Nevertheless, to the extent necessary and for abundant clarity, the proceedings should be dismissed under s 55(1)(a) of the NCAT Act.
[10]
Pursuant to s 165M of the National Law, the Tribunal must deliver its reasons for decision, at least, to the parties. The content of the reasons must satisfy the requirements of s 165M(2) of the National Law.
There is no statutory requirement to publish these reasons for decision because the decision is not in respect of a complaint that has been proved or admitted in whole or in part: s 165M(4) of the National Law. With the greatest respect, I differ in this view from the decision in Health Care Complaints Commission v Thornton[2025] NSWCATOD 61 at [62] which relies on s 165M(4) for the principle that the Tribunal is generally required to publish reasons for a decision to terminate an inquiry.
In this case, as the parties agree, there is utility in publishing this decision as there have already been two published decisions concerning the existence of the inquiry and in circumstances where the inquiry is terminated, it is appropriate that the record be, publicly, brought up to date.
[11]
The respondent reserved his position in relation to costs, until after this application has been determined. The Tribunal will make orders to allow the parties to file and exchange any application, submissions and evidence in relation to costs.
[12]
(1) The inquiry is terminated pursuant to cl 12 of Sch 5D to the Health Practitioner Regulation National Law (NSW).
(2) Within 21 days of this decision any party seeking costs (the costs applicant) is to file and exchange the following:
(a) their application;
(b) submissions, including as to whether the costs application may be determined without a hearing; and
(c) evidence in relation to costs.
(3) Within 21 days of receipt of an application from the costs applicant, the other party (the costs respondent) is to file:
(a) submissions, including as to whether the costs application may be determined without a hearing; and
In December 2003, Patient A complained to the applicant alleging that the respondent had performed an inappropriate internal examination on her. There were also other allegations relating to the use of insensitive language by the respondent during the consultation. Between August 2012 and October 2014 several other patients complained to the applicant. These are Patients B, C, D, E, and F. The allegations included that the respondent had inappropriately treated them. It was also alleged further or in the alternative, that the respondent had performed examinations without their consent, had performed examinations without an apparent clinical basis, had inappropriately conducted internal and breast examinations and had used insensitive language during consultations.
In March 2016, the respondent was charged with offences pertaining to Patients A, B, D, E and F. There were no charges in relation to Patient C; however, that patient was a witness in relation to the charges pertaining to Patient D. What the respondent describes as the first indictment was filed on 24 November 2016 and contained 97 allegations of sexual assault. Included in the first indictment were allegations involving Patients A, B, D and E which were substantially the same allegations as those that formed the basis of the Complaint. On 28 August 2017, a second indictment was presented containing 66 allegations of a sexual nature. The second indictment pertained to 46 patients, including Patients A, D and E. Patients B, C and F were not referred to.
The Tribunal refused to stay the disciplinary proceedings on the grounds of risk of prejudice to the criminal proceedings: Health Care Complaints Commission v Coleman[2020] NSWCATOD 47 at [58]- [60], [65]. However, this decision was overturned by the Court of Appeal and the disciplinary proceedings were stayed on the grounds that continuation of the disciplinary proceedings risked prejudice to the administration of justice in relation to the criminal proceedings: Coleman v Health Care Complaints Commission[2020] NSWCA 337 (the stay decision) at [49]. The Office of the Director of Public Prosecutions (ODPP) indicated to the Court of Appeal that no charges would proceed against the respondent in relation to Patient F. The ODPP had not formed a final view as to whether the Complaint of Patient B will form the basis of any criminal charges.
After a criminal trial that lasted over 12 months, the respondent was acquitted of 52 charges, including charges of sexual assault and sexual touching in relation to Patients A, D and E. On 19 February 2019, a third indictment was presented. This contained 14 counts on which the jury had not been able to reach a verdict at the trial. None of the counts in this third indictment related to the particular patients the subject of the Complaint in the Tribunal. On 31 March 2023, in a judge-alone trial, the respondent was acquitted of the remaining 14 counts.
At this point, the respondent sought to proceed with the Complaint and there were several directions hearings in the Tribunal.