Health Care Complaints Commission v Gao

NCAT Occupational|2022-11-03|Before: Dr J

WCATOD 10 Lee v Health Care Complaints Commission [2012] NSWCA 80 McDonald v Director-General of Social Security (1984) 1 FCR 354; [1984] FCA 57 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Ors [1992] HCA 66; (1992) 67 ALJR 170 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Pridgeon v Medical Council of NSW [2022] NSWCA 60 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 Ward v Williams (1955) 92 CLR 496; [1955] HCA 5 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Edward Renzhong Gao (Respondent) Representation: Counsel: I Chatterjee (Applicant) T Hammond (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/00164703 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the name of Patient A referred to in the proceedings is prohibited.

Introduction

On 6 July 2022, the Tribunal found Edward Renzhong Gao (Respondent) guilty of professional misconduct and unsatisfactory professional conduct pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) (National Law) (Stage 1 proceedings).
On 2 and 3 November 2022, the Tribunal received evidence and heard submissions with respect to the appropriate protective orders arising from those findings (Stage 2 proceedings).
The Health Care Complaints Commission (Applicant) sought protective orders in the following terms: 1. Under section 149C(1)(b) of the National Law, the Tribunal cancels the Respondent's registration. 2. Under section 149C(7) of the National Law, that an application for review may not be made until after 2-3 years from the date of this decision.
The Applicant also sought an order pursuant to clause 13 of Schedule 5D of the National Law that the Respondent pay its costs as agreed or assessed.
The Respondent sought to retain his registration as a medical practitioner, subject to the following conditions: "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) Which is an accredited practice. 3 To treat no more than 35 patients in any one day. 4 To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: (a) The audit is to be held within 6 months from the date of the Tribunal's decision and subsequently as required by the Council. (b) The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. The auditor(s) should pay particular attention to medical records. (c) To authorise the auditor(s) to provide the Council with a report on their findings. (d) To meet all costs associated with the audit(s) and any subsequent reports. 5 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) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: - Professionalism including patient confidentiality, consent and professional boundaries; - Communication skills, including identifying cues from patients' body language; - Approach to intimate examinations; - Medical records. (b) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition, a copy of the private conditions on the practitioner's registration. 6 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 s139C(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. 7 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. 8 To practise no more than 36 hours per week with no more than 8 hours in any 24 hour period unless required to provide emergency medical services. 9 To participate in a Performance Assessment organised by the Medical Council of NSW within 12 months of the decision. Health Conditions 10 Within 3 months of the date of the Tribunal's decision, to attend for treatment by a general practitioner of his 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 New South Wales any of the following: (i) Failure to attend for treatment without a reasonable excuse; (ii) Termination of treatment; (iii) A significant change in health status (including a significant temporary change) that is likely to affect the practitioner's ability to practice; (b) must provide the Council with the professional details of the treating general practitioner. 11 Within 3 months of the date of the Tribunal's decision, to attend for treatment by a psychologist of the practitioner's choice. The frequency of treatment is to be determined by the treating psychologist. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: (i) Failure to attend for treatment without a reasonable excuse; (ii) Termination of treatment; (iii) A significant change in health status (including a significant temporary change) that is likely to affect the practitioner's ability to practice; (b) must provide the Council with the professional details of the treating psychologist."

Principles governing Stage 2 determination

The Tribunal's disciplinary powers are found in Part 8, Division, 3, Subdivision 6 of the National Law. The Tribunal may suspend the registration of the Respondent for a specific period or cancel his registration having been satisfied that the Respondent is "guilty of professional misconduct": National Law, s 149C(1)(b). The terms of s 149C make clear that the power reposed in the Tribunal is discretionary, although not unfettered, and is required to be exercised judicially: Ward v Williams (1955) 92 CLR 496; [1955] HCA 4.
In exercising its powers pursuant to the National Law, the "protection of the health and safety of the public must be the Tribunal's paramount consideration": National Law, s 3A. Section 4 of the National Law requires the Tribunal "to exercise its functions having regard to the objectives and guiding principles" of the National Law.
The "task" undertaken by the Tribunal in making protective orders (albeit in the context of the Medical Practice Act 1992 (NSW) but adopted numerous times in the context of the National Law) has been described as centring "not on punishment as such but on the protection of the public and the maintenance of proper professional standards": Lee v Health Care Complaints Commission [2012] NSWCA 80 at [21] ("Lee"). In Lee, Barrett JA adopted at [20] the comments of Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 ("Lambert") at [83] that: "1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, 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 and to produce a level of insight into his or her own character or misconduct which did not previously exist."
As such, the effect of any orders made on the Respondent (including their financial impact) are only indirectly relevant to our determination. They are taken into account, but cannot outweigh public health and safety considerations.
Protecting the health and safety of the public is not confined to protecting future patients from the risk of harm; the Tribunal can appropriately take into account matters such as maintenance of standards and the general standing of the profession. In Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do") at [35] the considerations were held to include: "… 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.
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".
As is not in doubt, in the Stage 1 proceedings the Applicant bore the onus of establishing its complaints against the Respondent to the comfortable satisfaction of the Tribunal. In McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356-357; [1984] FCA 57 ("McDonald"), Woodward J said with respect to the place of the burden of proof, albeit with respect to administrative review was that: "The first point to be made is that the onus (or burden) of proof is a common law concept developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. … The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" ([Administrative Appeals Tribunal Act 1975 (Cth)], s 33(1)(c)). Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent. Whether the principles adopted by such a tribunal, arising from these various considerations, are appropriately dealt with under the heading "onus of proof", becomes a matter of choosing labels. …"
In Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52, to which counsel for the Applicant referred the Tribunal, Flick and Rangiah JJ said at [64]: "As a general proposition, administrative decision-making and decision-making by administrative tribunals is not adversarial and past attempts to blur the distinction between adversarial and administrative decision-making have vigorously been rejected: e.g., procedures employed by administrative tribunals differ greatly from those employed in superior courts…"
Their Honours referred at [66] with approval to the judgment of Woodward J in McDonald, to which we have earlier referred.
The authorities suggest that whilst it is unhelpful for present purposes to refer to either party having an onus of proof, the 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": SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [24].
In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26 at [78], Kirby J observed that: "… The tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This court has rejected that approach to the tribunal's duties. …"
The rationale for the absence of a burden of proof in administrative reviews has been accepted to be referable to the fact that tribunals as "[t]he repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals": Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37; [1990] HCA 21.
Having regard to the objectives and guiding principles of the legislation which governs the Stage 2 proceedings, the Tribunal accepts that, in order to grant the relief sought by the Applicant, and having regard to the gravity of the consequences of so finding (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Ors [1992] HCA 66; (1992) 67 ALJR 170), it must be comfortably satisfied that such relief is necessary to protect the health and safety of the public: Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 at [135].

Evidence before the Tribunal

The Applicant did not adduce evidence in the Stage 2 proceedings in addition to the evidence upon which it relied in the Stage 1 proceedings. A statement by the Respondent dated 7 October 2022 was received in evidence and became Exhibit S2R1. The Exhibit contained the Respondent's RACGP - CPD 2020 to 2022 triennium statement (Annexure E). During the hearing the triennium statement was updated to reflect entries on it subsequent to its initial publication. Exhibit S2R1 also contained a statement by Dr Mihail Radulescu (Dr Radulescu) dated 7 October 2022 and a statement by Lee Oliver (Ms Oliver) dated 10 October 2022.
The Respondent was cross-examined during the hearing. Dr Radulescu and Ms Oliver were not required for cross-examination.
The Respondent also relied on references provided to him by Dr Garry Clemensen (Dr Clemensen) and Dr David Speakman (Dr Speakman) upon which he relied in the Stage 1 proceedings (Exhibit R1 Tabs 5, 6, 9 and 10). Neither Dr Clemensen nor Dr Speakman was required for cross-examination in the Stage 2 proceedings.

Respondent's Statement dated 7 October 2022

In his statement, the Respondent stated at par 7 that, as a result of the present proceedings, and the conditions imposed on his registration on 17 June 2020 he had been "unable to retain employment and work as a GP" until he commenced employment on 3 May 2022 as a General Practitioner on a full-time basis at Almeda Healthcare Skin Cancer and Medical Clinic located at Coffs Harbour (the Practice).
The Respondent stated at par 2: "… The Practice offers GP and skincare services to patients".
The Respondent stated at par 8: "Since working at the Practice, I believe I have developed effective communication and strong rapport with my patients. I have established positive and interactive relationships with my colleagues and believe I have fitted into the role well".
The Respondent stated at par 9: "In addition to my own study, I have also attended a number of educational sessions … and have completed a dermoscopy course".
The documentary evidence provided by the Respondent supports that assertion. We do not understand any part of the Applicant's opposition to the Respondent retaining his registration to be based upon any asserted lack of professional competence. The Tribunal is satisfied that the Respondent has sufficient skills and knowledge to be able to practice medicine without constituting an unacceptable risk to the health and safety of the public.
The Respondent further stated at par 10: "I thoroughly enjoy the work and feel committed to improving my medical knowledge and clinical skills so that I am able to continue providing effective healthcare services to the community".
Under the heading "Effect of the proceedings", the Respondent set out at pars 13-19 a number of matters upon which he relied in support of his retaining his registration as a medical practitioner.
The Respondent asserted at par 14: "The proceedings have been the source of significant stress for both me and my family. …"
Although not further particularised, or supported by evidence from any member of his family, the Tribunal accepts that the proceedings, and the prospect that the Respondent would have his registration as a medical practitioner cancelled, has been and would be a source of significant stress for both him and his family.
We also accept that the Respondent would have experienced difficulty in securing employment, by reason of the Covid-19 pandemic and the conditions imposed upon his registration in June 2020. The Respondent and his family would have experienced financial difficulty as a result. As the authorities make clear, those realities have limited significance for present purposes in view of the guiding principles and objectives of the National Law, and the fact that they result from the Respondent's own actions.
The Respondent stated at par 15: "… despite continuing to engage in formal professional education, I have lost approximately 2 years of "on-the-job" professional development. My reputation as a medical professional in Forster was also considerably damaged and may impact my ability in the future to bring in and maintain patients from the community".
Again, although the result of his own conduct, we accept that the Respondent has been impacted in the ways to which he referred.
The Respondent stated at par 16 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 further elaborate on those matters.
The Respondent added at par 17: "Going forward, I strive to ensure that all of my patients feel comfortable with my expertise during any physical examinations and my consultations generally".
The record keeping deficiencies which were established in the Stage 1 proceedings were referred to by the Respondent at par 18. The Tribunal accepts that the Respondent has 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. If the only matters militating in favour of cancellation of the Respondent's registration related to record keeping, doing so would be problematic.
The Respondent set out in detail the continuing professional development which he has completed since the Stage 1 proceedings at pars 20-21, each of which the Tribunal accepts that the Respondent has undertaken.

Cross-examination of Respondent

The Respondent was cross-examined with respect to par 19 of his statement and was asked to what "standards" he was there referring. The Respondent replied "consent", "boundaries" and "record keeping".
The Respondent identified with respect to patient "consent" that it needed to be "informed" before being properly given. The Respondent stated that his understanding of boundary issues was "broader and deeper now" and that it was important to avoid non-medical involvement with patients.
With respect to a number of the Tribunal's Stage 1 findings, which were contrary to his assertions, the Respondent repeatedly stated "I accept and respect the Tribunal's decision".
The Respondent, who comes from a medical family, referred to practising medicine as being a "central part" of his identity and stated that "being a good doctor is my lifetime dream". The Respondent informed the Tribunal that his employment by Dr Radulescu would shortly terminate, but that he had prospects of future employment in a general practice at Cessnock. The Respondent's evidence with respect to the circumstances surrounding the cessation of his employment in Dr Radulescu's practice was unclear, but nothing emerging from the Respondent's evidence provides any basis for finding that the cessation of such employment was referrable to any disciplinary or professional concerns on the part of Dr Radulescu. There is no evidence from the Cessnock practice with respect to the Respondent's prospective employment by that practice. The highest it can be put is that there is a "prospect" of future employment at the Cessnock practice.
Having given evidence about the effect of the proceedings on him, the Respondent was asked whether he thought the Stage 1 proceedings would have had any effect on the patient whose complaints gave rise to those proceedings (Patient A). The Respondent stated that he thought the proceedings would have some "stress for her as well, but I do not know", adding that it would have been "a quite stressful experience for her but I do not know her details".
English is not the Respondent's first language. Accordingly, having closely observed the Respondent giving evidence, the Tribunal is less than entirely clear whether the Respondent lacks empathy, or struggles to express empathy as clearly as might a practitioner whose first language is English. In fairness to the Respondent, the Tribunal has been vigilant to avoid an unduly literal evaluation of his evidence.
Counsel for the Applicant made clear in his submissions in reply that the Applicant was not asserting that a "lack of insight" should be "held against the Respondent" and, correctly in our view, did not suggest that the Respondent's continuing denials of improper conduct should be "held against" him.

Dr Radulescu

In his statement, Dr Radulescu confirmed that he had read all relevant documentation, including the Tribunal's decision in the Stage 1 proceedings. Dr Radulescu has been a medical practitioner "within the Australian medical system since January 2014" and subsequent to 2019 became a specialist General Practitioner with "an interest in skin cancer mediation, being an accredited skin cancer doctor by the Skin Cancer College of Australasia". Dr Radulescu confirmed that the Respondent came to be employed in his practice on 3 May 2022. Assuming, as the Respondent's evidence suggests, that such employment would cease in early November, the Respondent would have been employed in the practice for 6 months.
Dr Radulescu stated that in his opinion "so far, Dr Gao has showed good clinical skills as general practitioner. He quickly became up to date with the new therapeutical guidelines after more than 2 y [sic] absence from medical practice and he also shows a keen interest in developing new skills in skin cancer medicine". Dr Radulescu added that his practice was "providing a supportive working environment for Dr Gao so he can comply with all the required conditions."
Dr Radulescu stated that: "In terms of his character and professional reputations, I have no concerns. He is a very polite gentleman, great work ethic and getting along well (sic) with all his colleagues and the other staff members. The feedback I have received so far from his patients, it's been a positive one. (sic)"
Dr Radulescu concluded his report by stating his hope that the Stage 2 proceedings would "provide a positive outcome for Dr Gao and eventually will allow him to get back to unrestricted registration". Dr Radulescu's report of October 7 2022 was not updated.
Dr Radulescu's evidence is accepted, and taken into account in favour of the Respondent's retention of his registration. Dr Radulescu has been acting as the Respondent's approved Category B supervisor during his employment at the Almeda Healthcare Practice.

Ms Oliver

Lee Oliver is a Registered Nurse employed by the Almeda Healthcare Practice as the Practice Manager. Ms Oliver has been a Practice Manager for the past 7 years "in the GP practice environment" and has previously worked with Dr Radulescu "as a team" in Nambucca Heads for 6 years. From 2004 to 2015, Ms Oliver "travelled throughout the very remote areas of Central Australia, Doomadgee, Mala and many other isolated remote areas as a remote area nurse with advanced clinical skills".
Ms Oliver stated that "Coffs Harbour has a high number of patients waiting to see a skin cancer specialist and Dr Radulescu (sic) appointment diary is full every day".
Ms Oliver stated that during his employment since 3 May 2022 she had found the Respondent's character to be "pleasant", adding that the Respondent is: "… always punctual for work and presents with a clean and neat appearance. He is polite to all and has excellent time management skills. Dr Gao has attended several local functions with the Primary Health Network after hours to meet other medical colleagues in the area and gaining information on new clinical updates and education."
Ms Oliver's evidence is accepted and provides support for the Respondent's opposition to the cancellation of his registration.

Evidence in Stage 1 proceedings

In its Decision in Health Care Complaints Commission v Gao [2022] NSWCATOD 73 ("Stage 1 Decision"), the Tribunal recorded with respect to the evidence of Dr Speakman at [80] that: "Dr Speakman's experience of the Respondent extended from 2005 to 2012, during which time the Respondent "would have examined many hundreds of women" during the period when he worked in the breast unit of the cancer centre of which Dr Speakman was the Chief Medical Officer. During the time in which he worked with the Respondent, Dr Speakman "never experienced anything like the behaviour noted in the complaint against the Respondent." Given the time which has passed since Dr Speakman last observed the Respondent, the weight to be given to this evidence is limited."
Dr Speakman's report was not updated. The weight appropriate to be given to Dr Speakman's evidence in determining the appropriate protective orders is limited.
In the Stage 1 Decision, the Tribunal referred at [191] to the unchallenged evidence of Dr Clemensen that the conduct alleged against the Respondent was "out of keeping with [his] experience whilst working with Dr Gao". The Tribunal noted that Dr Clemensen's professional contact with the Respondent was of some antiquity. Dr Clemensen did not update his previous evidence. Dr Clemensen's evidence is of limited weight, but provides some support for the Respondent's retention of his registration.

The Applicant's contentions

The Applicant relied upon the conduct of the Respondent which was established in the Stage 1 proceedings, stating in its Outline of Submissions - Stage 2 at par 7: "7.1 2 October 2018, the [R]espondent after completing a breast examination of Patient A, inappropriately touched her breasts without first obtaining her informed consent to do so, by lifting her breasts with both hands to demonstrate how they would appear following breast reduction surgery; 7.2 2 October 2018, the [R]espondent inappropriately spoke to Patient A about a breast reduction, saying to her inter alia words to the effect, "cosmetically it will be much better"; 7.3 3 November 2018, the [R]espondent inappropriately lifted the elastic banding at the top of Patient A's underwear and looked at her genital area in circumstances where he had failed to offer Patient A a chaperone, and had failed to provide an explanation of the nature and purpose of the examination and thereby failed to provide sufficient information for Patient A to provide informed consent for the examination; and 7.4 29 April 2019, the [R]espondent inter alia: 7.4.1 Grabbed Patient A tightly around the waist, and kissed and sniffed the right side of Patient A's neck; 7.4.2 Then pulled Patient A towards him after she tried to push away from the practitioner; 7.4.3 Then asked Patient A words to the effect, "What are you doing?"; 7.4.4 Commented in the course of the consultation on Patient A's appearance by saying to her words to the effect, "Don't wear your jumper like that, you look manly"; 7.4.5 Later in the consultation again grabbed Patient A tightly around her waist with his hands and kissed and sniffed the right side of Patient A's neck; 7.4.6 Later in the consultation again pulled Patient A towards him after she tried to push away from the practitioner; 7.4.7 Asked her for a kiss; 7.4.8 Asked her to sit on the examination bed, in circumstances where there was no clinical indication for this request; 7.4.9 Attempted to hold her hand; 7.4.10 Conducted a blood pressure test on Patient A, during which the practitioner stroked Patient A's cheek with his finger; 7.4.11 Later in the consultation stood up and attempted to hug Patient A as she remained sitting in the chair; and 7.4.12 At the conclusion of the consultation, asked Patient A if he could conduct a further breast examination which [was] not clinically indicated. (footnotes omitted)"
The Applicant further submitted with respect to the conduct of the Respondent on 29 November 2018 that such condition "fell well outside the bounds of any medical treatment given or purported to be given on that day" and, at par 12, was conduct which involved the Respondent abusing a power imbalance between himself and Patient A which was "exacerbated by Patient A's history of anxiety and depression from her teenage years".
The Applicant submitted at par 13 that the Respondent's conduct on 29 April 2019 could "only be described as an egregious breach of trust". Reliance was placed on the statement of the Court of Appeal in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; [1997] NSWCA 264, quoting Richter v Walton (Court of Appeal (NSW), Priestly JA (dissenting), 15 September 1993, unrep): "…[T]he 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 Applicant submitted at par 14 that the Respondent's conduct on that day could "be accurately described as the most significant misconduct engaged in by the Respondent." The Applicant submitted that the Respondent's written submissions with respect to protective orders "do not grapple with the nature of the conduct that constitutes this particular".
In oral submissions, counsel for the Applicant reiterated and amplified that contention, perhaps most cogently in the submission 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 Applicant did not suggest that any inferences adverse to the Respondent should be drawn because he continued to maintain his innocence, despite the Tribunal's findings in the Stage 1 proceedings. The Applicant submitted at pars 14-15 that the authorities relied upon by the Respondent, to which we will refer, were "simply not comparable" to the facts of this case.
The Applicant submitted at par 16 that the Respondent's statement did not: "… address in any fashion the findings made by the Tribunal with respect to this conduct, except to note the impact of the proceedings upon the practitioner. Critically and as expanded below, what the Tribunal wholly lacks from the [R]espondent is any explanation for the conduct; expression of contrition or remorse; or any evidence on which it would be able to reasonably form an opinion either as to the [R]espondent's insight into the reasons as to why he engaged in that conduct (which was plainly outside the scope of therapeutic treatment), or the risk that the [R]espondent may again engage in that conduct."
For the reasons to which we have earlier alluded, the Tribunal does not consider that the Respondent's continued denials of guilt 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 Respondent could not be expected to genuinely express remorse or contrition for the misconduct of 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 Respondent gave during his oral evidence.
It was further submitted that the "effective solution" proposed by the Respondent, which was that he not treat female patients indefinitely, "undermines his contention that he is fit to practice". As will be seen, the fact that the Respondent's offending conduct was with respect to a female patient, and absence of evidence of complaints involving male patients, requires careful consideration.
In addition to the authorities to which the Tribunal has earlier referred, the Applicant relied at par 23 on the decision in Health Care Complaints Commission v Buys (No 3) [2020] NSWCATOD 102 at [17] reiterating that a practitioner's "authorship of his own misfortune is irrelevant in determining what protective orders should be made". That contention is not controversial.
The Applicant relied at par 24 on the statement by Basten JA in Lambert at [83] that findings that the punitive effects have reduced the likelihood of the repetition of misconduct often "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". In oral submissions, counsel for the Applicant criticised the nature and extent of the Respondent's evidence with respect to his insight into his own character or misconduct.
The Applicant relied at par 25 on the statement in Health Care Complaints Commission v Luque [2019] NSWCATOD 129 at [94] reiterating the "two fold operation" of the fixing of a period of non-review of the cancellation of a practitioner's registration, they being: "… that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practice their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time..."
The Applicant reiterated at par 32 that the Tribunal has no explanation for the conduct which it has found proved and that the "absence of a finding as to why the Respondent engaged in that conduct … cannot provide a sufficient evidentiary foundation for a submission by the Respondent that he will not engage again in that conduct in the future".
The Applicant submitted at par 34 that: "… in the absence of any identification of the causes for the conduct, it is likely the Tribunal will have to proceed on the assumption that the [R]espondent knew that the conduct he engaged in was unwanted, uninvited, and irrelevant to therapy, and deliberately chose to engage in and continue that conduct over the course of the 29 April 2019 consult. …"
It was further submitted at par 34 that: "… If so, he expresses no contrition or remorse for that conduct, and displays no insight into the harm he has caused Patient A, either by reason of his conduct on the day, or subsequent, through his denials."
The Tribunal does not proceed on that or any other "assumption" with respect to the Respondent's offending conduct. 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.
The Applicant submitted at par 35 that cancellation of the Respondent's registration was necessary for specific and general deterrence and also to maintain public confidence in the integrity of the profession. The Applicant referred to the statement in Do at [35] that the objectives of the National Law are: "… 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."
The Applicant also submitted that for the profession to hold a person out to the public as being "worthy of their confidence" (Dawson v Law Society of New South Wales [1989] NSWCA 58) entailed the person demonstrating "integrity, trustworthiness, high moral and ethical values and a capacity to comply with relevant regulations requirements and codes of practice":Crickett v Medical Council of NSW (No 2) [2015] NSWCATOD 115.
The Applicant also submitted at par 37 that: "… where prior misconduct is established, reformation cannot be assumed. Reformation is the exception rather than the norm and requires 'clear proof', demonstrated by more than the mere passage of time without misconduct. (footnotes omitted)"
The Applicant also submitted that the appropriate course was cancellation of the Respondent's registration rather than its suspension, given that the latter involves an automatic renewal without the Respondent demonstrating that reinstatement of his registration would not constitute an unacceptable risk to the health and safety of the public: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [21] (Basten JA).
The Applicant sought an order for costs of the proceedings. The Tribunal will make directions with respect to the costs of the proceedings after the parties have had an opportunity to consider its decision in the Stage 2 proceedings.

The Respondent's contentions

The Respondent submitted at par 8 of its written submissions that: "The imposition of very onerous conditions, along with a reprimand, would satisfy the Tribunal to meet its obligations of protecting the public and denouncing Dr Gao's conduct."
It was submitted at par 9 that the suspension of the Respondent's registration on 2 December 2019, and subsequent imposition of onerous conditions since June 2020 (a period which now approaches 3 years) reflected "the necessary element of sending a message to the professionand deterring Dr Gao and other practitioners from similar conduct". The Tribunal takes into account the time during which the Respondent has been wholly or partially suspended from practice. Beyond his assertion that he was unable to secure employment subject to conditions between June 2020 and May 2022, there is no evidence that the Respondent was unable to do so. However the Tribunal accepts that a practitioner against whom serious disciplinary complaints are made is likely to experience a significant period during which he or she is, actually or effectively, unable to practice, particularly as the period encompassed the height of the Covid pandemic. That also "sends a message" to both that practitioner, and other practitioners, and signals to the public the seriousness with which complaints of this kind are treated by the medical profession.
The Respondent referred at pars 21-24 to the evidence of Dr Clemensen and Dr Speakman to which the Tribunal has earlier referred by reference to its findings in the Stage 1 proceedings. Subject to the qualifications previously recorded, that evidence is taken into account in the Respondent's favour.
The Respondent relied at par 25 upon the statement of Gail Hawthorne (Ms Hawthorne) (Exhibit R1 Tab 7), who worked with the Respondent from 2017, and who said "all his patients loved him, with many of them moving practices to follow him". Ms Hawthorne stated that she found the Respondent "professional and a pleasure to work alongside". There has not been any updating of Ms Hawthorne's evidence. Ms Hawthorne's evidence is taken into account in favour of the Respondent.
It was submitted on behalf of the Respondent at pars 26-27 that the Respondent's continuing education and professional development involved going to "extraordinary lengths to improve his skills and knowledge (and therefore his overall practice), in particular since he was notified of the complaint". It was further submitted that the Respondent's description of his learnings "provides evidence of a level of insight that, whilst [sic] is a work in progress, can assist the Tribunal in having confidence that Dr Gao is committed to improving himself as a doctor." The Tribunal accepts that the Respondent has made considerable attempts to improve himself in the areas covered by the learning which he has undertaken in recent years. It is likely that his insight into his limitations and prior conduct has improved over that period and as a result of that learning but, having regard to his oral evidence, the concession with respect to that being a "work in progress" is appropriate.
The Respondent relied on his own statement in the ways identified in submissions on his behalf at pars 29-33. The Respondent also relied on the statements of Dr Radulescu (at pars 34-36) and Ms Oliver (at par 37). The Respondent relied upon his 'RACGP CPD 2020-22 Triennium Statement and CV' at pars 38-39.
The Respondent submitted at par (43) that determining the appropriate protective orders involved "balancing a number of factors": Do. The Tribunal accepts that contention, and accepts that the evidence provides support for each party's position.
The Respondent submitted at par 44 that "without seeking to belittle or denigrate the serious findings made at Stage 1", the Tribunal would have regard to a number of mitigating circumstances. The first matter relied upon, at par 45, was that the appointments with Patient A occurred over a relatively short period of time, approximately 7 months, during which there were "at least 6 consultations without incident", and also "numerous consultations over the previous 3 years without incident". The findings with respect to "poor recordkeeping" were submitted, at par 46, to have "only covered a relatively short period, namely, the 3 consultations" which, "seen in context of the many hundreds of consultations held by Dr Gao the impugned conduct is of relatively short compass". The Tribunal takes each of those matters into consideration in the Respondent's favour.
The Respondent relied at par 47 on the Tribunal's rejection of the allegation that the inappropriate conduct of the Respondent was of a sexual nature. The Respondent submitted at par 48 that to be: "… relevant to the level of seriousness and the confidence with which the Tribunal could have that Dr Gao 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 such as these is often used to prove an aggravated form of conduct. It is not submitted that the absence of aggravating features 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 Dr Gao is less likely to engage in such conduct in the future."
Accepting, as the Tribunal does, those contentions, the fact remains that there is no real evidence explaining how the offending conduct of the Respondent came about, or could have come about. In the absence of such evidence, declining to find that it could recur becomes problematic.
The Respondent relied at par 49 on the Tribunal's reference in the Stage 1 Decision to the opinion of Dr Christopher Lennings (Dr Lennings), the Respondent's psychologist, "about the absence of a prurient interest or sexual motivation to misbehave with his clients". The Respondent relied on there having been one complainant, submitting at par 50 that "all of the other evidence before the Tribunal concerning Dr Gao's relationship with his patients is positive and describes it as appropriate". Those submissions have force, although they must be considered against the background of the very serious misconduct which was proved at the Stage 1 hearing.
The Respondent relied at par 52 upon the facts and circumstances in Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 in which, after findings of unsatisfactory professional conduct and professional misconduct, the Tribunal "imposed a suite of onerous conditions on Dr Litchfield's registration".
The Respondent also relied at par 53 on the decision in Health Care Complaints Commission v Sinnathurai (No 2) [2021] NSWCATOD 177, a case involving findings of sexual boundary violations and failure to obtain informed consent when conducting breast and abdominal examinations on two female patients. In that case, the practitioner was suspended from practice for six months and ordered to undertake additional training and made subject to conditions: Health Care Complaints Commission v Sinnathurai (No 3) [2022] NSWCATOD 10. The Respondent submitted that that case was "more objectively serious than the present one".
The Respondent also referred to the decision in Health Care Complaints Commission v He [2020] NSWCATOD 50. In that case, the practitioner was found guilty of unsatisfactory professional conduct for which the practitioner was reprimanded and a number of conditions were imposed on his registration. It was appropriately conceded on behalf of the Respondent that the Tribunal gained limited assistance from decisions in other cases, each case turning on its own facts and circumstances. The decisions to which the Respondent referred the Tribunal are instructive, but not ultimately influential, in view of the need for proportionality in protective orders.
In support of his case, the Respondent submitted at par 68 that "an important element, often somewhat overlooked, is that [sic] fact that the Tribunal's decision, Dr Gao's name, and details of the difficulties he has faced in attempting to return back to his chosen profession will be published and act as a very real deterrent personally and generally". Those matters will not be "overlooked" and will be taken into consideration. The problem the Respondent has, as the authorities recognise, is that the "difficulties" which the Respondent has faced, and may in the future face, are of his own making. The extent of any deterrence which is likely to result from publication is related to the seriousness with which offending conduct is treated. In circumstances where the health and safety of the public is the paramount consideration, the weight appropriate to be given to those matters is accordingly limited.
As submitted on behalf of the Respondent, the Tribunal takes into account each of the matters relating to the findings with respect to the Respondent's offending conduct, and the reality that the Respondent has treated at least hundreds of patients in respect of whom no complaints of inappropriate or improper conduct have been alleged.
The Tribunal accepts, as submitted by the Respondent at par 69, that there is "no principle that states once a health practitioner has been shown to have committed professional misconduct, suspension or cancellation of that practitioner's registration must inevitably follow". As the authorities to which the Respondent referred establish, there is "an evaluative process to be undertaken", which requires the Tribunal to give proper, genuine and realistic consideration to the merits of the case: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33.
The Tribunal accepts, as submitted by the Respondent at par 70, that the power to suspend a practitioner's registration has been described as "draconian". Again, that arises because of the conduct of the practitioner. It is not and could not be suggested that the Respondent first became aware of the likely consequences of adverse findings in disciplinary proceedings after the complaint was made against him. As the authorities make clear, the Tribunal must make orders which are no more draconian or punitive than the risks to public health and safety established by the evidence render appropriate.
The Tribunal accepts the submission of the Respondent at par 71 that "proportionality" is required when the Tribunal imposes protective orders. It is necessary to protect the health and safety of the public and the public interest in relation to the practice of medicine but not, in doing so, to impose sanctions which are excessive in all the circumstances. As with any evaluative decision, opinions are likely to reasonably differ with respect to the terms of appropriate protective orders in a case such as this.
The Respondent submitted that suspending or cancelling the Respondent's registration for a further period would "unnecessarily impact him professionally and have similar grave consequences", and that, as submitted at par 72, the "public can be adequately protected by a reprimand and the imposition of very strict conditions".
In support of the conditions which he proposed, the Respondent referred at par 75 to the involvement of Dr Radulescu in the Respondent's professional life. Having regard to the Respondent's oral evidence during the Stage 2 hearing, Dr Radulescu will not be performing that role in the future. The evidence does not establish that another doctor will perform that role.
The Respondent submitted at pars 78-79, and the Tribunal accepts, that the Respondent is a "competent doctor". The Respondent relied upon the decision of the Court of Appeal in Pridgeon v Medical Council of NSW [2022] NSWCA 60, recognising the public interest in having "a good doctor exercising their skills in the community". The Tribunal takes into consideration that the Respondent "wishes to continue to practice in a country area, where he can provide much-needed support, is a positive factor for the promotion of good health and welfare of the community in regional New South Wales and the public interest favours him continuing to practice, albeit, under strict conditions". That "public interest" factor is taken into account in the Respondent's favour.
In oral submissions, counsel for the Respondent submitted that the Tribunal would not fail to be mindful of the difference in the demeanour of the Respondent in giving evidence at the Stage 2 hearing compared with his presentation at the Stage 1 hearing, it being submitted that the Respondent had "gone to great lengths" to improve his skills, showing "some insight and empathy" into how Patient A would have felt during the proceedings. The Tribunal accepts that submission - as far as it goes.
It was, appropriately, conceded by counsel for the Respondent in oral submissions that the Tribunal would "still have some concern or disquiet" with respect to the Respondent's capacity to practise medicine safely "based on his mental health". That was, at least inferentially, the rationale for the proposed condition that the Respondent undergo psychological counselling for a potentially indeterminate period (proposed condition 11). It was submitted in that context that there was "no evidence" that the Respondent needed such assistance and, properly, acknowledged that the Respondent did not give evidence of an intention to undergo such counselling. It was submitted that such counselling would facilitate the Respondent being "able to perform at his optimum level".

Consideration

The "protection of the health and safety of the public must be the paramount consideration" in the Tribunal's determination of the appropriate protective orders: National Law, s 3A(1). The Tribunal accepts that cancellation of the Respondent's registration, if ordered, would be because the Tribunal finds that doing so is necessary to protect the health and safety of the public. Doing so will have adverse financial, professional and personal impacts on the Respondent and his family, and may have a punitive effect on him. The Tribunal takes those matters into consideration, although, as the authorities make clear, they cannot override the obligation to protect the health and safety of the public against unacceptable risks of harm.
Although there is some evidence to that effect, the evidence before the Tribunal does not support a factual finding that, as stated by Basten JA in Lambert at [83]: "… 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 … [and to produce] a level of insight into his or her own character or misconduct, which did not previously exist."
The evidence of the Respondent suggests, as submitted by his Counsel, that the proceedings have been "harrowing" for the Respondent, and may have "opened" his eyes in some of the respects to which Basten JA referred. The Respondent 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 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.
The Tribunal accepts that the Respondent'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 Applicant, inherent in the present determination is the assessment of the risk to the health and safety of the public if the Respondent retains his registration. As is recognised in the statutory provisions with respect to the tort of negligence, that involves the consideration of the gravity of harm which is likely to be suffered by the public if the risk of the Respondent 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 Respondent is likely to be grave.
The Respondent seeks to address the assessment of risk by the prohibition on his treating female patients, potentially indefinitely. Superficially, having regard to the circumstances of the Respondent's offending behaviour, and the absence of complaints of that kind with respect to male patients, allowing the Respondent to retain his registration, subject to the conditions proposed by him, may appear to avoid an unacceptable risk to the health and safety of approximately half of the public.
The Tribunal is concerned that, as submitted on behalf of the Applicant, there is no evidence which explains or suggests why the Respondent's offending conduct occurred. Not knowing why such conduct may have occurred makes accepting that it may not recur 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 Respondent's continued assertion of innocence. The Respondent may genuinely believe that he did not do the things which Patient A complained of and which the Tribunal has found proved.
Although the Tribunal understands why the condition with respect to ongoing psychological treatment was advanced on his behalf, we have difficulty accepting that such condition assists the Respondent's case. The Respondent gave no evidence of any need for, or perceived benefit from, such counselling. The submissions of counsel for the Respondent are hindered by the absence of evidence that the Respondent considers such treatment to be necessary or beneficial. Moreover, it was submitted, accurately, that there was no evidence that the Respondent needed such assistance in any event.
The Tribunal's findings with respect to the evidence of the Respondent's expert, Dr Lennings, in the Stage 1 proceedings is instructive for the purpose of evaluating the present issue. 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 Respondent's offending conduct have not been ameliorated or addressed.
In the Stage 1 Decision, the Tribunal referred at [181] to evidence given by the Respondent 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". The Respondent also said "I understand with her mental condition based on a - she made such a - like a … [not transcribable] … imagination, things like that."
The Tribunal further set out at [185]-[187] of the Stage 1 Decision that: "The Respondent was cross-examined in relation to the report of Dr Lennings (Exhibit R1, Tab 3, page 61, paragraph 45, Transcript p119) in which Dr Lennings recorded the Respondent as "dismissing the complaint as a vindictive and fabricated attempt to cause trouble for him". Dr Lennings' opinion was that if there was "acceptance of some reality to the complaint then clearly Dr Gao has no insight as to how that matter arose". The Respondent said that Dr Lennings' representation of him was "more or less" accurate but that he had only told him "that's not true, all fabrications" (Transcript p119). As observed earlier in [the Stage 1] reasons, no motive for Patient A fabricating her allegations, or psychological or other reason for her doing so emerges from the evidence before the Tribunal. The Respondent did not agree that he had described the complaint by Patient A as "vindictive" or that Patient A had made the complaint in order to "cause trouble" for him. What Dr Lennings recorded is consistent with the Respondent's unresponsive comments about Patient A's "made up … outrageous complaint" to which we have earlier referred. The Respondent disagreed with Dr Lennings' opinion (R1, Tab 3, p 63, par 53) that he "defends each and every complaint made against him on the basis that they were malicious, vindictive and/or complete fabrications", but conceded that that was his view with respect to some of the complaints which have previously been made against him. The Respondent volunteered his view that Patient A's disputed complaints were "complete fabrications" in cross-examination."
The Tribunal is conscious of the Applicant's non-reliance upon the Respondent's lack of insight in support of its application for the cancellation of his registration. The evidence of Dr Lennings to which the Tribunal referred in its Stage 1 Decision with respect to the Respondent's propensity for blaming others for making any complaints against him, and their motivation, did not differentiate between male and female patients.
The Respondent did not adduce any further evidence from Dr Lennings in the light of the Tribunal's findings in the Stage 1 hearing which, in oral evidence, the Respondent confirmed that he had read and reflected on. It is curious in those circumstances that the Respondent suggested, as a condition of his ability to practise, that he undergo psychological counselling on the basis advanced by him.
There is objectively no evidentiary foundation for finding that any risk which the Respondent represents for the health and safety of the public is necessarily limited to female patients. Nor does the evidence support a finding that the Respondent'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 Respondent to more than superficially reflect on the impact of his personality on patients and their concerns.
Implicit in the conditions advanced by the Respondent 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. The deterrent effect, particularly in a field such as that in which the Respondent prefers to practise, may be severely limited. In view of the evidence with respect to the demand for skin cancer services on the north coast of New South Wales, imposing the conditions sought by the Respondent may involve no real element of individual deterrence.
If the Respondent had adduced more convincing evidence of changes in his attitude to patients' complaints, and/or supported that with evidence from Dr Lennings or another appropriately qualified psychologist, the Tribunal may have been able to find that permitting the Respondent to continue to practise medicine did not constitute an unacceptable risk to the public. The absence of such evidence suggests that the health and safety of the public would not be adequately protected if the Respondent were permitted to continue to practise medicine, albeit subject to the conditions which he proposes.
The Tribunal has referred earlier to a number of the principles which govern the present proceedings. The Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the medical profession, and the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153. The "objectives" identified by the Court of Appeal in Do, to which we have earlier referred, are relevant to the Tribunal's determination of the appropriate protective orders. So are the observations of Basten JA in Lambert with respect to the "opening" of a practitioner's eyes, to which we also earlier referred.
The Tribunal is comfortably satisfied that the Respondent'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 Respondent into account in his favour. They are significantly outweighed by the gravity of the Respondent'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 Respondent's evidence at the Stage 1 hearing suggesting why Patient A made her allegations to which we have earlier referred. To what extent the Respondent's proffered regime of psychological counselling might mitigate that risk is not known. The Respondent has adduced no expert evidence in that regard.
As the Tribunal recorded in its Stage 1 decision, the Respondent 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 Respondent 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 Respondent's registration entails an unacceptable risk to the health and safety of the public.
Declining to cancel the Respondent'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 Respondent's registration is also conducive to maintaining public confidence, for the reasons explained in Do.
The Respondent submitted that suspension of his registration adequately protects the health and safety of the public, and satisfies the objectives of protective orders which emerge from the authorities. The Applicant submitted that those considerations meant that the Respondent's registration should be cancelled. The practical differences between the two courses under consideration are not in doubt, and are significant. If the Respondent's registration is suspended "for a specified period" pursuant to s 149C(1)(b) of the National Law, unless successfully challenged on appeal, at the expiration of the "specified period" the Respondent would be able to resume practice. Conversely, if the Respondent's registration is cancelled, in the absence of an order for reinstatement of his registration under s 163B of the National Law, the Respondent would be unable to resume medical practice.
In circumstances where the Respondent offers open-ended conditions attaching to his registration, and having regard to those conditions, it is difficult to see how suspension "for a specified period" could properly be ordered or, if it were, on what basis the Tribunal could determine the "specified period". A further difficulty with such an outcome would be that the conditions with respect to ongoing psychological counselling involve no objective criteria by reference to which the effectiveness of such counselling could be monitored or evaluated by the Applicant or the Medical Council of NSW. It is difficult to accept that ongoing counselling for an unidentified purpose, for a practitioner who denies needing it, is compatible with an absence of unacceptable risk to public health and safety. Although not so bluntly expressed, implicit in the conditions proffered by the Respondent is the proposition that, provided that the conditions with respect to psychological assistance are successful, the Respondent could practise medicine safely. That is analogous to putting the "cart before the horse".
For the reasons we have recorded, the Tribunal is comfortably satisfied that suspension of the Respondent's registration would constitute an unacceptable risk to public health and safety, and would fail to adequately reflect the principles and "objectives" of protective orders.

The non-review period

Section 149C(7) of the National Law empowers the Tribunal to order that an application for review of protective orders may not be made until after a "specified time". The Applicant seeks that a specified time of two years be ordered. Inherent in the Respondent's case is that no order be made pursuant to s 149C(7). If no order is made pursuant to s 149C(7), the Respondent could apply to review the order cancelling his registration pursuant to s 163A(1)(b) of the National Law his registration at any time. Conversely, if a non-review period is imposed pursuant to s 149C(7), the Respondent cannot make a review application until that period expires: National Law, s 163A(3)(a).
In Health Care Complaints Commission v Sbirziola [2022] NSWCATOD 118 ("Sbirziola") at [60], by reference to the decision in Health Care Complaints Commission v Reid [2018] NSWCATOD 162, the Tribunal recorded that an order under s 149C(7) has "at least three aspects", which are: 1. Protecting public safety by ensuring that only those practitioners who are fit to practise safely do so; 2. Setting a period of time during which the Tribunal predicts, or attempts to predict, the time in which a practitioner might reasonably take steps to rehabilitate herseself or himself; and 3. Deterring misconduct by sending a "clear message" of denouncement of the practitioner's conduct to other professionals.
Given the commendable efforts the Respondent has made with respect to continuing professional development, and the other mitigating circumstances relied upon by him, it is realistic to anticipate that, provided the Respondent does what he offers to do if his registration is not cancelled, he may be able to successfully apply for re-registration pursuant to s 163B in early 2024, but that obviously would be a matter for any entity determining such an application.
As is readily apparent, the Tribunal's determination involves the exercise of a broad, but not unfettered, discretion. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 ("Orr") the Court of Appeal held at [73] with respect to the exercise of discretion by the Tribunal, by reference to the authority there referred to, that a Tribunal might not be required to provide a "detailed exposition of every aspect of the evidence and the arguments" or "incorporate an extended intellectual dissertation upon the chain of reasoning" leading to its decision, although "a basic explanation of the fundamental reasons" which led the Tribunal to its conclusion was necessary.
The Court of Appeal in Orr at [74] accepted, by reference to the decision in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, that whilst the basis of the decision should be made apparent, that did not mean "that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."
In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112, Basten JA said at [46], which was referred to with approval by the Court of Appeal in Orr at [75]: "… Generally, the concept of "reasons" requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. ..."
As we have endeavoured to explain, there are a number of factors which support the case of each party. On balance, however, and having regard to the objective and guiding principle of the National Law, the Tribunal is satisfied that the health and safety of the public requires that the Respondent's registration be cancelled and that he be prohibited from applying for re-registration for a period of one year.
The orders which the Tribunal will make are considered to be necessary in the interests of public health and safety, and the broader public interest. The orders recognise the considerations which emerge from the authorities, and were summarised in Sbirziola, to which we have earlier referred.

Orders 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) (National Law), the registration of the Respondent as a medical practitioner is cancelled. 2. Pursuant to s 149C(7) of the National Law, the Respondent may not make an application for review of order 1 for a period of one year from the date of these orders. 3. Any party making an application for costs file and serve written submissions not exceeding 5 pages in length in support of such application within 35 days of these orders. 4. A party resisting an application for costs file and serve written submissions not exceeding 5 pages in length in support of such opposition within 70 days of these orders. 5. Any party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs applications include submissions in support of such opposition in that party's submissions pursuant to order 3 or 4 of these orders.

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: 06 March 2023

Medical Practice Act 1992(NSW)

Appeals Tribunal Act 1975(Cth)

At a glance

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Judgment (16 paragraphs)

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Cases Cited (39)