Health Care Complaints Commission v Hasan - [2022] NSWCATOD 52 - NSWCATOD 2022 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Hasan

[2022] NSWCATOD 52

NCAT Occupational|2022-03-31|Before: Dr J, Associate Prof P

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Source facts

Court

NCAT Occupational

Decision date

2022-03-31

Before

Dr J, Associate Prof P

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting publication of the name of any person identified as a patient or former patient of the Respondent, the name of the nurse who is the subject of the Complaint made against the Respondent, or the name of the nurse's husband. 4. The Respondent is to pay the costs of the HCCC for the proceeding to the conclusion of the Stage 1 hearing and determination. Such costs are to be as agreed or as assessed. 5. The parties are to negotiate any costs orders sought by either of them arising from the Stage 2 hearing and in the event of an agreement being reached provide a Minute of an agreed order to the Tribunal. 6. In the event the parties are unable to agree in relation to the costs order to be made arising from the Stage 2 hearing then the parties are each to provide a minute of the order sought, a submission in support of the order sought and copies of any further evidence relied upon in support of the order, within 14 days of the date of these orders. Then each may file and serve within a further seven day period, any response to the others submissions and evidence. Catchwords: HEALTH - Professional registration and discipline - Unsatisfactory professional conduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Amiesen v Medical Council of NSW [2021] NSWCATOD 155 Chen v HCCC [2017] NSWCA 186 Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 Dawson v Law Society of New South Wales [1989] NSWCA 58 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Hampshire v HCCC [2021] NSWCA 283 HCCC v Litchfield (1997) 41 NSWLR 630 HCCC v Philipiah [2013] NSWCA 342 Health Care Complaints Commission Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission Complaints Commission v Martin [2022] NSWCATOD 33 Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 Health Care Complaints Commission v Cheung [2018] NSWCATOD 10 Health Care Complaints Commission v CSM [2016] NSWCATOD 125 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Martin [2022] NSWCATOD 33 Lee v HCCC [2012] NSWCA 80 NSW Bar Association v Meakes [2006] NSWCA 340 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Safi v Medical Council of New South Wales [2022] NSWCATOD 30 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mahbub Hasan (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Hanna Legal (Respondent) File Number(s): 2020/00241421 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting publication of the name of any person identified as a patient or former patient of the Respondent, the name of the nurse who is the subject of the Complaint made against the Respondent, or the name of the nurse's husband.

[7]

The written Evidence of the Respondent

The Respondent tendered a statement made by him on 24 March 2022. That document formed part of exhibit Y1. In that document we noted the following matters in particular.
The Respondent, consistent with his oral evidence said that: "I abide by and respect the Tribunal's findings."
The Respondent set out details of his personal history which included that he and his wife migrated to Australia in 2008. In that year he was registered as a medical practitioner. He commenced his employment in Australia in Tasmania and then moved to employment at Liverpool Hospital in 2010. He has progressed his medical career through undertaking Advanced Physician Training in General and Acute Care Medicine with Geriatric Medicine.
In February 2019 the Respondent commenced employment at Kareena Private Hospital. On 28 May 2019 he was suspended with pay. On 16 July 2020 his registration was suspended. Since the suspension from Kareena in May 2019 the Respondent has not worked in any other vocation. He has continued to maintain his knowledge of medical practice since his suspension in readiness of recommencing his practice when permitted to do so. He set out all of the activities he has engaged in to maintain his knowledge.
One of the courses undertaken by the Respondent was about Professional Boundaries, conducted by DAVAAR Consultancy, CQU and AMA. This was the second time he had undertaken that course. His earlier attendance was in August 2017. He said the courses "have refocussed me regarding boundary crossings, dual relationships, transference and countertransference." He also said: "The training taught me to support my peers through setting clear and appropriate boundaries regarding scheduling, payment, and acceptable in-session behaviour, to discuss any misunderstandings of intent and emotional projection as soon as it occurs and to manage boundary transgression."
The Respondent set out that in the future he will continue to concentrate on the matters he has set out in his statement and "regularly participate in courses that discuss ethical and professional conundrums and risks."
In July 2020 the Respondent resumed a Master of Clinical Medicine (Leadership and Management) course at the University of Newcastle. He anticipates completing that course in June of this year. The Respondent said that in this course there was an area of study titled "Application of Leadership and Management Skills". He said he had found that particularly useful "in relation to ensuring there is no further transgression by the boundary crossing".
In paragraph 49 of his statement the Respondent said: "The making of the Complaint has had significant consequences for me in various aspects of my life. This has been a daily reminder of the consequences of the Complaint and boundary transgression. I understand completely that there is absolutely no place in the medical profession for boundary transgression. I further understand that any boundary transgression will not be tolerated and be met with harsh but fair protective consequences. For me this has meant being suspended and effectively unemployed for almost three years."
The Respondent set out the consequences he has had to face as a result of his suspension from Kareena Private Hospital and the suspension of his registration.
As a result of the suspensions, referred to above, the Respondent said he has suffered depression and has required medication. He was referred by his GP to a psychiatrist, Dr Vivienne James. He set out some of the symptoms he is now suffering because of his depression.
The Respondent continues to have to support his family (although he told us his wife is working and we note from Dr Farhan's evidence she is a medical practitioner). He and his wife have a daughter to support as well as themselves.
In relation to his reputation and general standing in the community the Respondent said "I have suffered enormous professional embarrassment and personal humiliation due to the complaint and the findings made against me." He further said that the Complaint brought against him has had an adverse impact upon his marital relationship.
The Respondent set out details of the 2017 PSC decision and its consequences for him. In that decision he was "Reprimanded". The conditions imposed were removed on 10 May 2018.
If the Respondent is permitted to return to practice he said: "I undertake to behave in an ethical and professional manner, I undertake to not breach any of the Medical Board of Australia code of conduct and guidelines. I will never transgress boundaries with patients, their families or colleagues."

[8]

The Respondent's Oral Evidence

The Respondent confirmed that his statement dated 24 March 2022 was true and correct.
The Respondent was cross-examined by Ms Bayley for the HCCC.
The Respondent was pressed on whether he admitted the actions which the Tribunal had found established in the Stage One hearing. He informed the Tribunal that he maintained the position he took in the first hearing where he denied the actions. Throughout the cross-examination the Respondent maintained that denial of guilt which was contrary to our findings made against him.
The Respondent was then asked about the findings of the Professional Standards Committee Inquiry (PSCI) delivered on 29 May 2017 and contained in exhibit X1 at page 105 and following. That decision related to a complaint made by the daughter of a patient at Blacktown Hospital between 7 July 2015 and 10 July 2015. She had complained the Respondent failed to observe proper boundaries when talking to her at the Hospital on 10 July 2015 and when messaging her on 11 July and 14 July 2015.
At page 113 of exhibit X1 the PSCI found the Respondent guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW)(the National Law). The PSCI made protective orders which consisted of conditions to be attached to the registration of the Respondent.
The relevance of the finding of the PSCI to the determination we are to make, is that it demonstrates that the Respondent has already been the subject of an adverse finding of conduct, not dissimilar, to that made against him in the determination we made in the Stage One hearing. In response to the PSCI finding, conditions were imposed. The wording suggests that the conditions were anticipated to be in place for not less than six months.
The Respondent admitted that in relation to the Complaint of Person A in the 2017 proceeding, he had "transgressed boundaries". He did not admit the words attributed to him were precisely accurate. He agreed he confused Person A with the words he spoke to her. He agreed that he did hug Person A by responding to a mutual hug. He denied he touched Person A's buttock.
Paragraphs 36 and 37 of that decision the PSCI included Particular 2 and Particular 3 from the Complaint. These Particulars alleged that on 11 July 2015 the Respondent failed to observe appropriate professional boundaries in that he contacted Person A using the mobile messaging platform WhatsApp and texted, "send me your face plz." Particular 3 reads "On 14 July 2015 the practitioner failed to observe appropriate professional boundaries in that he contacted Person A using the mobile messaging platform Viber and texted, "u busy bee?". The Council noted the Respondent's evidence that he had sent the text messages to the wrong person. The Council concluded the Respondents' version of the events (accidental text) was "highly implausible".
Following the 2015 Complaint which led to the 2017 findings of the PSCI, the Respondent undertook a Communications course. A certificate attesting to his attendance is set out at page 72 of exhibit X1. The certificate is dated 11 June 2016. The Respondent said he had learned how to communicate with patients and carers.
The Respondent was asked about undertaking a "Boundaries Course". He said he had looked for courses addressing "appropriate boundaries" between 2015 and 2017. He did find a course however he deferred undertaking the course because it was too close to a conference he was to attend. Apart from the matters mentioned below, we are unsure from the Respondents' evidence, whether he attended an "appropriate boundaries" course following the 2017 PSCI hearing.
The Respondent was asked what benefit, if any, he received from the mentoring he undertook pursuant to the conditions set by the PSCI. He said he had a very good mentoring experience. His Mentor had directed him to areas needing attention. His Mentor had also assisted him in other areas of his practice including assisting him to obtain a Community position.
In August 2015 the Respondent undertook a course titled "Practical Solutions to Patient Boundaries." He undertook a further "Boundaries Course" in March 2022. He was asked why he had undertaken that course. He said: "I reflected on the Tribunal's decision. Looking at that I reflected on my conduct. I realised the way I have interacted has not been honest and true to the person I am. I realised on many levels I had to improve. I did not want to conduct myself in a manner which would lead to complaints." We considered those words, if honestly used, represented the first glimmer of insight into the fact that the Respondent may have a serious problem with the manner in which he has conducted his interactions with staff members and others, in a Hospital environment, in the past.
On 10 May 2018 the Medical Council wrote to the Respondent advising him that the conditions imposed following the 2017 PSCI hearing had been removed. The letter included the following: "On 8 May 2018 the Council's Conduct Committee considered your application on the papers. The Committee noted there were no concerns regarding your clinical practice or compliance with conditions."
The Respondent agreed that he had commenced work at Kareena Private Hospital in February 2019. He also said he had not contacted his former Mentor, for advice/assistance or to discuss what had occurred, when the allegations had been made by Person A about his conduct towards her at that work place.
The Respondent was taken to p 349 of exhibit X2, being the bundle of documents which were in evidence for the Stage One hearing. There his attention was drawn to a note made by his supervisor (for advanced training) which asserted the Respondent had been told, in response to a complaint raised by a nurse, "don't ask personal questions about peoples private lives etc. It is none of your business. Do your work. Work in a professional manner and go home." The Respondent said he thought the conversation had taken place before the "Birthday Party" incident referred to in the Stage One hearing. He also agreed there had been a further discussion with the supervisor about the Respondent swearing at a nurse.
Since the Kareena Private Hospital employment and suspension (May 2019) the Respondent has not worked in any capacity.
In 2020 the Respondent said he applied for 15 different Hospital positions. He said he disclosed he either currently had conditions on his registration or that he did have conditions which have been discharged.
In relation to his future employment with the group specialist practice, which is to be established with Dr Daud and others, the Respondent said that he had not settled on the extent of the hours he would work in that practice. He intends to also work in a public hospital as part of his advanced training as a physician.
The Respondent was asked what action he had taken following receipt of the decision from the Stage One hearing. He said he continued his reading and also attended clinical meetings. He attended webinars. He looked for courses he could undertake. He discussed with his lawyers undertaking certain courses and he undertook those courses. He attended one course called Academic Proficiency in Health Care. He undertook other courses in preparation for practice. He did undertake four courses in March 2022.
When challenged the Respondent said he considered he was safe to work with other people in the medical profession or health care profession.
In the last 12 months the Respondent said he had seen his GP on three to four occasions. He had attended to see Dr Vivian James, his psychiatrist, last year and has an appointment for April 2022.
Dr Cox, a Senior member of the Tribunal, asked the Respondent some questions.
As a result of evidence given by Dr Daud, the Tribunal was left with the impression that the Respondent would complete his advanced training and be able to be admitted to practice as a physician within six months. The Respondent said he still requires 2 years to complete his training. He requires one year in general medicine and one year in geriatrics training. Some of that training will need to be undertaken in a Hospital and some will be able to be undertaken in a private practice.
Dr Fogarty, Senior Member of the Tribunal, asked the Respondent some questions.
When he applied to the Blue Mountains Hospital for employment the Respondent was asked if he disclosed the conditions which had been imposed by the Medical Council on his registration. The Respondent said he had disclosed everything to Dr Daud. By the time of the interview the Respondent thought the conditions had been removed.
Professor McNeil, the General Member, asked the Respondent questions. He challenged the Respondent as to why he was telling the Tribunal in this stage two hearing that he did not admit he was guilty of any of the Complaints which this Tribunal had found established against him. The Respondent said that there are things that he holds himself accountable to. He said he had been very guarded in a hostile environment. He was frantic about how he was perceived. He saw himself as the subject of gossip. When challenged further about the fact that a witness's evidence before the Tribunal was not gossip, the Respondent insisted it was gossip and further said, "[a named nurse] did lie".

[9]

HCCC submissions

Shortly following the conclusion of the Stage 2 hearing the HCCC provided its submission. We noted the following from that submission.
The HCCC seeks that the Respondent be suspended for a further period of 3 to six months from the date of the hearing. It also seeks the imposition of conditions (detailed later in these reasons) and finally, that the Respondent pay the HCCC costs as agreed or assessed.
In support of the orders it seeks the HCCC provided submissions which addressed relevant principles. We do not repeat those submissions as we have referred to relevant principles later in these reasons.
The HCCC submits that as the Tribunal has found the Complaint brought by the HCCC to the Tribunal established, it has a discretion to suspend or cancel the registration of the Respondent.
The HCCC submits that the Tribunal would and should, have regard to the fact that this is the second time a complaint of inappropriate conduct by the Respondent, towards a female, within his workplace, has been made and established against the Respondent. In the earlier complaint, conduct towards the 28 year old daughter of a patient, at a hospital, was established. The HCCC submits there are striking similarities between the findings made by the Tribunal against the Respondent in this case to the findings made against the Respondent by the PSC in the earlier case.
Clause 5(2)(b) (see Schedule 5D to the National Law) gives power to the Tribunal to take into account an earlier decision, when considering the imposition of protective orders. The HCCC urges the Tribunal to do that in this case.
The HCCC submits that the earlier proceeding and findings against the Respondent should have put him on notice that conduct of that nature was unacceptable and seriously regarded by the professions governing and controlling bodies, that any repetition of similar conduct would be expected to be dealt with by escalated orders against the Respondent. In that earlier proceeding against the Respondent, the PSC imposed a reprimand and conditions upon the registration of the Respondent and otherwise permitted him to continue practice.
The HCCC pointed to the warnings which had been provided to the Respondent in the months leading up to the birthday party incident at which the Respondent squeezed the buttock of Person A. He failed to heed those warnings about his interaction with nursing staff at the Kareena Private Hospital. The HCCC referred to the evidence of Dr Dedousis who had told the Respondent, "Don't ask personal questions about people's private lives etc. It is none of your business. Do your work, work in a professional manner and go home."
The HCCC submits that the established Complaint illustrates sufficiently serious conduct to warrant suspension or cancellation of the Respondent's registration. It submits the Respondent's inappropriate unwanted touching of Person A is serious misconduct. The Respondents' inappropriate personal remarks amount to serious misconduct. The Respondent's squeezing of Person A's buttock is serious misconduct. Further the conduct of the Respondent towards Person A, escalated between February 2019 and 23 May 2019.
The HCCC submits the Respondent's continued denial of the conduct (now established to our satisfaction) amounts to a failure on his part to accept responsibility for his actions. A continued line of denial of intentional conduct towards Person A in the face of compelling evidence ought to be a matter of concern for the Tribunal and a matter to be given consideration when assessing appropriate protective orders to be made. The HCCC submits the evidence before the Tribunal establishes a course of conduct where the Respondent sought to "shift the blame" for conduct which was being alleged against him by Person A.
The HCCC submitted that a period of further suspension was appropriate for the Tribunal to order even though the Respondent has been subject to a continuing suspension order imposed by the Medical Council in July 2020. The HCCC submitted: 1. "the National Law requires that a suspension imposed by the Council remains in place until the complaint is determined by the Tribunal; [1] 2. the Tribunal's discretion to impose protective orders, including suspension, is to be exercised where the protection of public safety and health is paramount; [2] 3. In Qasim v Health Care Complaints Commission [3] the Court of Appeal rejected the ground of appeal that the Tribunal erred in determining the period of four years during which the practitioner would not be entitled to reapply for registration because it was required to take into account the fact that the practitioner had already been suspended from practice for a period of three and a half years. The Court of Appeal at [74] relevantly held: "[74] The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. … In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. …"
The HCCC submitted a "reprimand" would not be an adequate response to the proven conduct of the Respondent. It submitted the Respondent has already been the subject of a Reprimand following the earlier decision of the PSC. It was an ineffectual protective order given the Respondent's subsequent conduct. Further a Reprimand would not serve the purpose of being a deterrent to the profession at large.
It was submitted by the HCCC that further education would be ineffectual in this case. It points to the evidence of the further education already undertaken by the Respondent to address matters of concern about his conduct to others and the maintaining of proper boundaries. Further the HCCC submits such a course of required education would not protect the public. For similar reasons the HCCC submits further mentoring would be insufficient and inappropriate in this matter.
The HCCC then addressed the imposition of conditions upon the Respondent at the conclusion of the period of suspension if imposed by the Tribunal.

[11]

The initial written submission of the Respondent

The submission sets out the findings of the Tribunal on Stage 1. It then sets out that the HCCC had advised the Respondent's lawyer, prior to the Stage 2 hearing, that an order for suspension for a period of 3 to 6 months, followed by conditions imposed upon his registration, would be sought by the HCCC.
The Respondent submits that a supervision condition is not appropriate in this case. A reprimand and orders for mentorship is appropriate. It is further submitted that given the Respondent has been suspended already for a period of two years a further period of suspension is not necessary. The Respondent points out that protective orders are not intended to punish the practitioner, rather to protect the public.
Under the heading of "Approach to Suspension" the Respondent draws to our attention the NSW Court of Appeal decision in Health Care Complaints Commission Complaints Commission v Do [2014] NSWCA 307 and in particular paragraph [35]. The following quote from that decision is included in the submission: "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."
Further the following portion of the decision of the NSW Court of Appeal in Ghosh v Medical Council of New South Wales [2020] NSWCA 122 at [9] is set out in the submission: "(3) Consequences of suspension The exercise of the power to suspend can be described as "draconian" and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor."
The Respondent submits that: "A public finding of professional misconduct, and imposition of conditions are themselves a denunciation of Dr Hasan's conduct. An imposition of a fine would further, and more gravely "denounce" that conduct. The maximum fine is $27,500 (250 penalty units x $110): s149B of the National Law. The HCCC has not contended that Dr Hasan is not competent and there is positive evidence of his competence. [4] There is a public interest in maintaining in practice competent practitioners and if appropriate, on a conditional basis. That public interest is a relevant consideration for the Tribunal."
The submission then addressed the 2017 PSC decision and attached conditions. The circumstances of that proceeding, so far as the conduct of the Respondent was concerned, was addressed. The submission points out the PSC "likely took into consideration that conduct was not to a patient (similarly to the current Complaint), in a doctor-patient setting, but to a patient's adult daughter." We are somewhat surprised by that submission. It seems to us that as the Respondent used his access to the public through his work in a hospital to commit the conduct complained of and established against him, this is not conduct which was dissociated with his profession as a medical practitioner, albeit that the unfortunate recipient of his attention happened to be in the hospital because of the circumstances of a close family member.
The Respondent's submission then addressed all the education undertaken by the Respondent following the determination of the PSC. Ultimately he was able to convince the Medical Council to remove the conditions attached to his registration on 10 May 2018.
The submission then addressed the respondent's "Fitness to Practice". The submission refers to a decision of the Tribunal made this year in Health Care Complaints Commission Complaints Commission v Martin [2022] NSWCATOD 33. There at [113]: the following is set out. "Section 3A of the National Law provides that the "protection of the health and safety of the public must be the paramount consideration". The Tribunal is required to apply such standard to determine whether a medical practitioner is fit to practise medicine. In Health Care Complaints Commission v Brush [2015] NSWCATOD 120 the following observations are made at [72]-[73]: "72. … In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners, who are suitably trained and qualified to practise in a competent and ethical manner, are registered (ss 3 (1) and 3 (2) (a) of the National Law). 73. While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills." (emphasis added)
The Respondent submits that he "abides and respects the Tribunal's findings". He was suspended from the Kareena Private Hospital on 28 May 2019. Since that time he has undertaken multiple courses and actions to keep his medical knowledge and expertise as a medical practitioner current. He has undertaken other courses as part of the process of preparing himself for this hearing. The Respondent's submission sets out the following: "It is clear that Dr Hasan has greatly benefited from his attendance at the various ethics education courses. In his statement he sets out his reflections and learnings. They have: (1) led him to re-think the numerous ways he conducts himself in his professional life; (2) been useful for him to understand colleagues, including, nurses; (3) encouraged him to now 'reflect, rest and reset' when he is dealing with colleagues and patient's families. Dr Hasan gives evidence that he is confident that this cognitive tool, together with other learnings, will ensure he will not cross professional boundaries anymore; (4) allowed him to understand that he suffered from many of identified stressors at the time of the finding of my boundary transgression in early 2019; and (5) with the effluxion of almost three years of being unemployed and having time to reassess his life, will ensure that those stressors do not cause any further boundary transgression.
We note in relation to the case brought against the Respondent by the HCCC and as determined by us at Stage 1, there has been no complaint about the competence of the Respondent as a medical practitioner. We will address this submission further later in these reasons.
The submission of the Respondent then addresses "Proportionality and extra-curial punishment". Under this heading the Respondent again drew on the words of the NSW Court of Appeal in the decision of Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 (EFA). There at paragraph [195] and following the Court set out: "195. The question for this Court is what measure is called for to mark the Court's intolerance of conduct of the kind in question and to convey its intolerance to others who might be tempted similarly to engage in conduct that is demeaning to women and perpetuates unacceptable attitudes. We consider that, notwithstanding (as we have already mentioned) that the objective of disciplinary orders is protective and not punitive, some guidance may be taken from two well established principles of sentencing law: (i) proportionality and (ii) weight that may be given to extra-curial punishment. It is appropriate to note the level of extra-curial punishment (in some respects going far beyond any action the Court could take) that has already been visited on the respondent. This includes: notwithstanding the non-publication orders, a level of public notoriety and humiliation; • a four year period of anxiety, while the Council's investigations proceeded; • a further period of anxiety since the filing of the Council's appeal; • severe impact on the respondent's mental health, detailed in the reports of Dr Bowers and Dr Nielssen; • the termination of the respondent's marriage and disruption to his family; • a very significant quantifiable cost resulting from the variation in the terms of the respondent's policy of professional indemnity insurance for 2022, with an unquantifiable potential penalty in forthcoming years (already, the annual cost has dwarfed the maximum fine this Court could impose); and • an unquantifiable but real and significant impact on the respondent's practice. 196 Bad as the respondent's conduct was, and deserving of condemnation, so far as the evidence goes, it represents an isolated instance of departure from accepted norms of conduct. It is an instance of the "human frailty" that Kitto J recognised in Ziems and was again recognised by the High Court in A Solicitor. It needs to be seen in proportion to what the conduct has already cost the respondent in personal and emotional, as well as financial, terms." (emphasis added)
The Respondent urged us to follow the observations of the NSW Court of Appeal by taking into consideration extra-curial consequences of the Respondent's conduct. We will refer to this decision again later in these reasons, however, we note at this stage the reference in the above decision to "so far as the evidence goes, it represents an isolated instance of departure from accepted norms of conduct."
In relation to "proportionality" the Respondent submitted: "In terms of the first principle referred to by the Court of Appeal in EFA, being proportionality, although the conduct found to have been directed by Dr Hasan against Person A was very serious; Person A (not 'Patient A') was not a vulnerable, reliant patient who Dr Hasan was treating. They were not in a doctor-patient relationship. This difference is not mere semantics. A doctor-patient relationship is a very special, peculiar one that has concomitant features such as mutual knowledge, trust, loyalty, and regard. Knowledge refers to the doctor's knowledge of the patient as well as the patient's knowledge of the doctor. Trust involves the patient's faith in the doctor's competence and care, as well as the doctor's trust in the patient and his or her beliefs and report of symptoms. Loyalty refers to the patient's willingness to forgive a doctor for any inconvenience or mistake and the doctor's commitment not to abandon a patient. Regard implies that the patients feel as though the doctor respects them as individuals and is "on their side." None of those factors feature in the relationship between Dr Hasan and Person A. The Respondent does not submit that the conduct is any less serious per se simply because Person A is a nurse. However, the protective order must consider proportionality. In considering proportionality, the fact that the conduct found was not against a patient lessens the seriousness of it for the purposes of considering proportionality and the appropriate protective order. In other words, to equate conduct between a doctor and a colleague to a doctor and a patient erroneously diminishes the importance of the unique features of a doctor patient relationship."
In our consideration of this submission we note the following. We do not accept that the conduct of the Respondent to a nurse, working with him in a hospital, where the only reason for his employment in that place must be to apply his knowledge and skill to the medical care of patients in that venue, can be seen in any lesser way than if his conduct had been visited upon a patient he was treating. It was his position as a medical practitioner which gave him access to Person A. In the circumstance of the relationship the Respondent held with Person A in that place, he exercised authority over her and she was, in our opinion, a "vulnerable person" because of that relationship.
The Respondent addressed the heading "Extra-curial punishment". Under this heading the Respondent set out the following: "In terms of the second principle of extra-curial punishment, Dr Hasan gives evidence of the enormous financial, psychological, reputational and marital consequences he has endured [5] and 'that already have been visited upon him.' Each of the financial, psychological, reputational and marital consequences he has endured 'go far beyond any action a Court could take.' Many of the considerations raised by the Court of Appeal in EFA have been endured by Dr Hasan including a level of public notoriety and humiliation; anxiety since the events giving rise to the complaint; severe impact on Dr Hasan's mental health; impact on his marriage and family including failed IVF attempts; financial consequences of not being able to work for two years; and likely, but presently unquantifiable irremediable financial impacts on his practice. As stated by the Court of Appeal, Dr Hasan's conduct with Person A "needs to be seen in proportion to what the conduct has already cost the respondent in personal and emotional, as well as financial, terms."'
The Respondent addressed the requirement for Supervision as sought by the HCCC.
The Respondent referred us to a number of decisions including Amiesen v Medical Council of NSW [2021] NSWCATOD 155 and Safi v Medical Council of New South Wales [2022] NSWCATOD 30 ("Safi"). In the latter of those decisions, it is pointed out by the Respondent that the Tribunal determined not to impose any supervision order even though the Medical Council sought a Category B supervision order and the practitioner was prepared to consent to a category C supervision order.
The Respondent quoted part of the decision in Safi [52] as follows: "The Council proposed a condition that Mr Safi be subject to what is known as "Category B" supervision. Mr Safi proposed that he be subject to "Category C" supervision. The main difference is that for Category C supervision, the supervisor is not required to practise at the same location as the practitioner. We do not consider a supervision condition of any category to be appropriate. No complaint was made as to Mr Safi's knowledge or skills. Mr Safi is expected to participate in education and training to maintain that knowledge and those skills. (emphasis added)
The Respondent submitted that his case is in the same category as that addressed in the decision of Safi. Accordingly the Respondent submits that a supervision order is not appropriate.
The Respondent submits the imposition of a mentorship condition would be a more appropriate way of mitigating the concerns that a supervision condition is said to address. It is further submitted that should a supervision condition be ordered then it should be Category C supervision.
Under the heading "Conclusion" the Respondent submitted the following, in part set out here. "The Tribunal will no doubt be concerned that despite the 2017 PSC decision and the attendance by Dr Hasan at Patient Boundaries Course, his recorded reflections and ensuing mentoring, there is a congruency between that conduct and the findings of the current complaint. There is a stark contrast between Dr Hasan's circumstances between the two. In the 2017 PSC Decision, although Dr Hasan was suspended from Blacktown Hospital and then his one year contract expired, he was permitted to, and did, resume work, disclosing his suspension to new employers. [6] In the latter, being the current Complaint, his registration has been suspended since 16 July 2020, almost two years ago and he has been, as a result of the current Complaint, unemployed for almost three years. It is submitted that the considerable effluxion of time between the conduct giving rise to the Complaint and now as well as the extensive efforts that Dr Hasan has made during that period to develop professionally would significantly allay the Tribunal's concerns regarding any future misconduct by Dr Hasan. Dr Hasan frankly gives evidence that when he recently attended the courses during his current suspension he did so 'on the back of a suspension now running for almost two years', and that in those circumstances 'he found the courses on this occasion most sobering'. [7] It is submitted the Tribunal would readily accept that evidence. Similarly, the relevance of the financial, psychological, reputational and marital consequences is that it gives a ring of truth, and comfort to the Tribunal, of Dr Hasan's evidence that having regard to his journey over the last three years, and all that he has learned every single day of his life at this time, makes him fit to practice now and not be a risk to the public, including colleagues. To the contrary, Dr Hasan hopes to be able to serve the public, after being suspended for two years."

[12]

The Respondents submission in Response to the HCCC submissions.

The Respondent provided a further Submission, as permitted by the Tribunal's order, in response to the written submission of the HCCC. The Respondents document is titled "Respondent's further Stage 2 submission - in response to HCCC's submission." In that document we noted the following submissions.
The submission challenged the submission of the HCCC that "the proven conduct (of the Respondent) is no less serious because it was towards a colleague rather than a patient". The Respondent submits that "Person A was not a vulnerable, reliant patient who Dr Hasan was treating. They were not in a relationship of trust which was exploited by Dr Hasan. The difference is not mere semantics."
The Respondent referred to the submission of the HCCC which referred to the following three decisions as examples of where the Tribunal has made protective orders of significance in circumstances where the conduct complained of was directed towards a non-patient of the practitioner. 1. Health Care Complaints Commission v Bolton [2021] NSWCATOD 160; 2. Health Care Complaints Commission v Cheung [2018] NSWCATOD 10; and 3. Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201.
The Respondent addressed in detail the facts and findings in each of those three decisions. He concluded the submission with the following: "Bolton, Cheung and Karunaratne are presumably the Commission's best examples in support of its proposition. The inapplicability and sheer incongruity of those cases in itself strengthens [35] - [39] of the Respondent's Primary submissions."
We note the content of the submission of the Respondent on the three decisions above cited.
The Respondent addressed the possible conflict between the decision in the case of Qasim relied upon by the HCCC and the decision in "EFA", relied upon by the Respondent in his submission. The Respondent submitted: "The relevance of Dr Hasan's 3 years suspension 1. [16] of the Commission's submissions states that the proven conduct is no less serious because it occurred some time ago in 2019. It cites the Court of Appeal decision of Qasim which rejected the proposition that a Tribunal was 'required to take into account the fact that the practitioner had already been suspended from practice for a period of 3 1/2 years.' 2. As cited by the HCCC, the Court of Appeal said at [74]: "[74] The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public in circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. (emphasis added) 3. In other words, the reason why the time Dr Qasim had already spent being suspended was not relevant was that Dr Qasim, who suffered a mental impairment, had not commenced any appropriate treatment in relation to her mental illness. So she was no more ready. 4. That is very different to a practitioner who does not admit conduct for which he is later found guilty. That cannot be equate to an untreated mental illness. The ultimate question is, as stated by the Court of Appeal, the period of time likely to be required for the practitioner to change his or her conduct."
We accept the point sought to be made by the Respondent and agree with the thrust of the submission, namely, that there is no conflict between the two decisions and that in fact the decisions each address different matters.
In relation to the proposed conditions sought by the HCCC, the Respondent opposed proposed conditions 1, 2 and 3. He consents to proposed orders 4, 5 6, 7, 8, 9, and 10. We have set out hereafter the entirety of the Proposed Conditions sought by the HCCC.

[13]

Submission in Reply from the HCCC

The submission replies to that of the Respondent dated 7 April 2022.
The HCCC submitted: "In circumstances where the Tribunal did not accept the respondent's denials during Stage 1, [8] the Tribunal will understandably be cautious before accepting the respondent's evidence about his reflections, learnings and assurances that he will not breach professional boundaries in future on Stage 2.
In response to paragraphs 6 to 22 of the Respondent's submission, the HCCC submitted: "It is open to the Tribunal, when considering conduct against either a patient or a colleague, to make its own assessment of the seriousness of the conduct and impose appropriate orders to protect the public."
Importantly for this decision, the HCCC submitted in relation to "extra-curial" punishment the following: 1. "In response to paragraph 9 of the respondent's submissions, the Commission submits that attempting to compare the extra-curial punishment taken into account in Martin [9] with the extra-curial punishment allegedly suffered by the respondent is misplaced in circumstances where: a. Dr Martin admitted most of the conduct, acknowledged that his conduct was inappropriate, deeply regretted his actions, acknowledged that harm could have been suffered and admitted unsatisfactory professional conduct and professional misconduct [10] (unlike the respondent who consistently denied the conduct); b. Dr Martin expressed "profound remorse" for his conduct and the Tribunal accepted his remorse was genuine, that the conduct was "wholly out of character" and not initiated by Dr Martin and the Tribunal did not find any evidence that Dr Martin had engaged in predatory conduct [11] (unlike the respondent who initiated the conduct which escalated over time); c. Dr Martin's conduct was 17 years ago, he had an otherwise "unblemished record" since he started practising medicine in 1974, he was currently working with aged patients "fulfilling a most valuable service to the community" and the Tribunal was satisfied there was no chance of similar conduct in the future and took into account the extra-curial consequences of the publication of the decision and found that cancellation would result in "significant community detriment" [12] (unlike the respondent who had a previous finding of unsatisfactory professional conduct for similar conduct); d. Even after taking extra-curial punishment into account, the Tribunal still imposed a suspension on Dr Martin: "However, the fact remains that there was serious violation of professional boundaries. As such, the Tribunal considers that whilst cancellation of registration is not warranted, the Respondent's registration should be suspended for a period of 6 months. This will ensure a clear message is delivered to the profession and the community that such boundary crossing is unacceptable, and that no matter how many years have elapsed, the practitioner who engages in such conduct will remain accountable for his or her conduct." 2. The Commission submits that the Tribunal would be cautious about importing the criminal law concept of extra curial punishment in circumstances where: a. The weight to be given to any extra-curial punishment in sentencing proceedings will depend on all the circumstances of the case and in some criminal cases attracts little or no weight; b. Little weight should be given to loss of the respondent's reputation in the current proceedings because that is an inevitable consequence of his proven conduct and the published Stage 1 findings; c. Little weight should be given to the respondent's loss of employment because the respondent's employment was suspended while his employer investigated his conduct, the respondent was advised that sustained findings could result in termination, the respondent's contract ended when his temporary contract expired and his employment was subsequently terminated as a direct result of his proven conduct; [13] d. Limited weight should be given to the impact on the respondent's finances because the respondent's inability to work as a medical practitioner is a direct consequence of the suspension lawfully imposed by the section 150 delegates and the respondent elected not to seek alternate employment; e. The criminal law concept of extra curial punishment ought not divert the Tribunal from imposing appropriate protective orders under the National Law which requires that the protection of the health and safety of the public must be the paramount consideration. [14]
The HCCC provided a further submission in support of the Costs order it sought against the Respondent. We have read those submissions.

[14]

Determination

Whilst acknowledging that we are not infallible in our decision making, we (all members of the Tribunal) are very comfortable with of our determination at Stage One. As such we are most concerned about the future professional conduct of Dr Hasan. We say that in light of his continued denial of his conduct and the ascribing of blame for his circumstances to the lying of witnesses in the hearing before us (Stage One) and the spread of gossip in the workplace in which his offending took place.
At the time we heard Stage One, we were unaware of the 2017 determination of the PSC. The facts in that case, accepted by the PSC, bore a resemblance to the facts we were asked to consider in the Stage One hearing. That must raise a concern that the Respondent has the potential to be a continuing offender.
The Respondent must have known that having been dealt with by the PSC in 2017, that any reoffending would result in serious protective orders needing to be imposed by the Medical Council and/or this Tribunal. Yet he again conducted himself in a manner which was most offensive and upsetting to Person A (the complainant in this case). That suggests to us that Dr Hasan seriously needs to address his personal problem and seek help otherwise it may be that he would find himself the subject of a further and similar complaint to that made by the young women who have been the complaining persons before both the PSC in the 2017 proceeding and in the hearing before us.
Without in any manner seeking to bind any future tribunal, we consider that it must be clear to the Respondent that another complaint against him, of the nature we have heard, would not only likely be the end of his medical career in this country but may well be the subject of criminal proceedings brought against him.
The continued denials and ascribing of blame to others for the consequences which befell the Respondent does not auger well for his reform. It is hoped that the serious consequences for him personally, arising from the suspension of his employment imposed by Kareena Private Hospital and also the Medical Council suspension of his registration, have been sufficient to motivate a change in the Respondent. However, unless he is prepared to honestly address his role in the circumstances he finds himself in, he may continue to expose himself to complaint and more importantly, expose young women in his workplaces to abhorrent and unwanted conduct by him.
In the evidence the Respondent has provided to us, he has word-smithed his evidence to be apparently accepting of the findings of this Tribunal at Stage One and at the same time, when pressed, continuing to deny the complaints made by Person A about his conduct. It is hard for us to see how he can reform his personal conduct to others if he is not prepared to acknowledge he has ever acted in an inappropriate manner.
Having set out those matters we recognise that the Respondent is a highly intelligent and articulate person. Dr Daud says he has a great deal to offer medical practice. We agree that is probably correct, however, he will not be able to pursue his career and benefit society with his skill unless he changes his approach to conducting himself in the proximity of young women.
Turning now to consider the Protective orders which should properly be made in this matter we first wish to state that we consider the conduct exhibited by Dr Hasan, towards Person A, to be highly offensive and totally unacceptable. Any future unwelcomed touching of others by Dr Hasan may well give rise to a criminal charge as well as a complaint before the Tribunal.
The submission of the HCCC has provided us with reference to decisions which guide the making of protective orders. (1) The relevant principles include: a. The protection of public safety and health is paramount; b. The Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community; c. Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; d. The Tribunal's jurisdiction is primarily protective, not punitive; e. It is unavoidable that protective orders may be incidentally punitive.
In support of the submission the HCCC referred us to the decisions in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91], Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637 and Lee v HCCC [2012] NSWCA 80 at [20] and [31]. We were also referred to s 3A of the National Law.
Basten JA, in NSW Bar Association v Meakes [2006] NSWCA 340 at [114], set out the important, but indirect, effects of a disciplinary order, which must be considered when determining the appropriateness of protective orders: (1) That it reminds other members of the profession of the public interest in the maintenance of high professional standards; (2) That the order may emphasise the unacceptability of the particular conduct involved in the disciplinary offence; and (3) The need for the order to maintain public confidence in the high standards of the medical profession.
The importance of considering a practitioner's digressions on a case-by-case manner is indicated by the Court's observations in HCCC v Litchfield (1997) 41 NSWLR 630, at 638C (Gleeson CJ, Meagher and Handley JJA): "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal" (emphasis added).
It is clear from the authorities, that the Tribunal has a wide discretion relating to the determination of protective orders to be imposed following a finding of professional misconduct. The circumstances of the particular case will determine the appropriate orders. As such, a finding of professional misconduct may not automatically lead to cancellation of a practitioner's registration. It is clear that deregistration may, in serious cases, be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession.
In this case the HCCC has not called for cancellation of the Respondent's registration.
Meagher JA, with whom Basten and Emmett JJA agreed, commenting in Health Care Complaints Commission v Do [2014] NSWCA 307 at [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 conduct 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". (Our emphasis)
It is no longer a consideration that the Tribunal needs to consider the fitness of the practitioner at the time of the hearing (see Chen v HCCC [2017] NSWCA 186 at [56] and [67]).
In Chen v HCCC [2017] NSWCA 186 Basten J held at [18]-[22]: "The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided."
Having regard to the above matters, the considerations for the Tribunal in determining what, if any, protective orders should be made, has been said to include the following: "Based on the Tribunal's protective, not punitive, purpose and its concern for both the health and safety of the public, and reputation of the profession, the exercise of that purpose is determined by a range of considerations. i) There may be a need to protect the public against further misconduct by a practitioner. ii) There is a need for general deterrence. iii) The high professional standards of the profession must be reinforced and transgressions must be denounced. iv) Public confidence in the profession must be maintained. v) It may be desirable to make available to the public any special skills possessed by a practitioner. vi It may be that the circumstances of a particular matter require the Tribunal to give greater weight to some of these considerations, or to consider other matters bearing on the health and safety of the public."
In assessing the question of the Respondent's fitness to practice, we need to take into consideration the steps the Respondent has taken to remain clinically up to date, and to improve his understanding of the severity of his conduct and to prevent further such conduct. We have referred to these matters earlier and we have also raised a concern about the effectiveness of the Respondent undertaking courses which he does not actually consider he needs to undertake or which are applicable to him given his conviction that he has done nothing wrong.
In considering the Respondent's likely behaviour in the future, the observations of Mahoney JA in Dawson v Law Society of New South Wales [1989] NSWCA 58, are relevant to the Tribunal's consideration of its orders and their purpose, to protect the community: 'In judging whether an applicant will, in the future, act differently from the past, the Court is not required to act on psychological theories or analyses...As I have said, it is difficult to decide what a man will do and the decision in a particular case is, to a greater or lesser extent, dependent on the Court's assessment of the applicant. And in making that assessment it may draw inferences from what he has done in the past and, in particular, what led to his being removed from the roll. An understanding of that may assist the court to determine what are his standards and his understanding...[of his]...responsibility and, from this, what he is apt to do in the future. And it is perhaps, on this basis that, where what has been done in the past has been sufficient to indicate his 'probably permanent unfitness': Ex parte Lenehan at 422; the court will require 'solid and substantial grounds' for the conclusion that his standards have changed or that he will act differently.'
Turning then to consider the application of the above principles/guidelines we conclude as follows:

[20]

The impact upon the Respondent of: the period of suspension he has already served consequent upon the order of the Medical Council; the decision contained in the Medical Council decision on 2020; the decision provided by us at Stage 1.

In EFA, the decision dealt with orders sought by the Council of the Bar Association of NSW against one of its legal practitioners, namely a barrister, grounded upon the conduct he was found to have exhibited outside of the workplace.
In its determination of an appeal from this Tribunal, brought by the Council of the Bar Association, the NSW Court of Appeal concluded as follows: "194. This Court does not underestimate the seriousness of the respondent's conduct, nor its implications. At its heart it is sexual harassment that has no place in any society, and certainly not in the ranks of an honourable profession. The conduct towards A was, as the Tribunal found, crass and vulgar. The conduct towards H was demeaning, humiliating and inexcusable. Intoxication afforded no excuse. The conduct called for sanction. 195. The question for this Court is what measure is called for to mark the Court's intolerance of conduct of the kind in question and to convey its intolerance to others who might be tempted similarly to engage in conduct that is demeaning to women and perpetuates unacceptable attitudes. We consider that, notwithstanding (as we have already mentioned) that the objective of disciplinary orders is protective and not punitive, some guidance may be taken from two well established principles of sentencing law: (i) proportionality and (ii) weight that may be given to extra-curial punishment. It is appropriate to note the level of extra-curial punishment (in some respects going far beyond any action the Court could take) that has already been visited on the respondent. This includes: • notwithstanding the non-publication orders, a level of public notoriety and humiliation; • a four year period of anxiety, while the Council's investigations proceeded; • a further period of anxiety since the filing of the Council's appeal; • severe impact on the respondent's mental health, detailed in the reports of Dr Bowers and Dr Nielssen; • the termination of the respondent's marriage and disruption to his family; • a very significant quantifiable cost resulting from the variation in the terms of the respondent's policy of professional indemnity insurance for 2022, with an unquantifiable potential penalty in forthcoming years (already, the annual cost has dwarfed the maximum fine this Court could impose); and • an unquantifiable but real and significant impact on the respondent's practice. 196. Bad as the respondent's conduct was, and deserving of condemnation, so far as the evidence goes, it represents an isolated instance of departure from accepted norms of conduct. It is an instance of the "human frailty" that Kitto J recognised in Ziems and was again recognised by the High Court in A Solicitor. It needs to be seen in proportion to what the conduct has already cost the respondent in personal and emotional, as well as financial, terms. 197. In light of the financial penalty already effected by the respondent's insurer we reject the Council's contention that a fine ought to be imposed. That leaves for consideration the question of counselling. 198. The Tribunal saw no need for an order for counselling and gave its reasons, those being, essentially, that the incident was isolated, that the evidence shows insight by the respondent into his conduct, and that there is no likelihood that the respondent would conduct himself in a similar way in the future. 199. We agree with those reasons. It is notable that, although the Council has proposed, in general terms, that the respondent be required to undertake a course of counselling, it has not put forward any proposal nor identified any suitable course. This Court could not make any order that could reasonably be enforced. 200. The consequence of these conclusions is that, the Council's appeal should be dismissed. The Council should pay the respondent's costs of the appeal."
The legislation under consideration in EFA was s 297 of the Legal Professional Unified Law NSW. That section provides as follows: LEGAL PROFESSION UNIFORM LAW (NSW) - SECT 297 Professional misconduct 297 Professional misconduct (1) For the purposes of this Law, "professional misconduct" includes-- (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
It is to be noted s 297 (1)(b) of the above Act specifically refers to conduct "whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law". That definition was therefore, in the EFA case, sufficient to capture conduct of a barrister at a social function and not in the "practice of law". Section 139E by contrast provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
It can thus be seen that the section appears aimed squarely at "professional conduct".
Further s.3A of the National Law has application to the determination of whether protective orders should be imposed. That section is as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
Thus far, in the hearings in this case, the parties have accepted, that the conduct alleged against the Respondent and found to have been established, occurred within a medical facility and occurred during a time when the Respondent was working as a medical practitioner. As such, there is no submission, the conduct does not fall within the provisions of s 139E of the National Law as Professional Misconduct.
The HCCC has relied upon the decision in Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [72]-[74]. We have already set out the paragraphs of the judgment which are quoted in the HCCC submission. The Respondent was critical of the reliance upon that decision to apparently support a submission that no regard should be had to the period of time the Respondent has been suspended by order of the Medical Council or has been out of work due to having been earlier suspended from employment with Kareena Private Hospital, because the Respondent continued to deny the conduct which the Tribunal was satisfied he perpetrated upon Person A. If that is not the intent of the HCCC submission, then we apologise.
However, we accept that the point being made by the Court of Appeal in Qasim is as submitted by the Respondent, namely, that the complaint against Dr Qasim was that she was not well enough (therefore not competent) to practice medicine because of her mental ill health. That during the lengthy period she was suspended from practice, prior to the Tribunal determination of her case (three and a half years), she had not sought to address her mental ill health and consequently the time she had already been out of practice, could not be considered in relation to her competence to again be practicing medicine without risk to the health or safety of the public. It was the continued denial that she had a mental illness which prevented her seeking help to remedy that condition. It was the suffering of mental ill health which made her unfit to be able to practice medicine. It was her competence to practice medicine which was a major consideration when the Tribunal was considering the making of protective orders.
It is the Respondent's case that there is no allegation of medical incompetence made against him. He is, it is submitted, able to immediately take up medical practice in a competent fashion. As the question of medical competence is not an issue in this Stage 2 determination, the Respondent submits that the Tribunal is able to have regard to the circumstances which have befallen the Respondent following his suspension from the Kareena Private Hospital in determining the length of any suspension which might be imposed on his registration or any other protective order which may be available for the Tribunal to impose. The Tribunal would consider if those circumstances and actions, taken by the Respondent to address the concerns raised by the findings made against him in the Stage One determination, were appropriate and effective. Should those matters be seen as being already protection for the health and safety of the public? Will the consequence already suffered by the Respondent, be likely to motivate him never again to conduct himself in the manner he has been found to have conducted himself towards Person A?
It is the consequence of the misconduct of EFA, already suffered, as identified by the Court of Appeal, which was able to be considered in the decision of "EFA" above set out, in determining the prospect of any likely repeat of such conduct and whether EFA would be a fit and proper person to engage in legal practice. Again, it needs to be remembered that there was no allegation of incompetence as a legal practitioner levelled against EFA. It should further be noted that the Court of Appeal clearly determined that EFA had suffered the consequences of his complained of conduct to such an extent that the Court ordered the suppression of his identity.
The following words of the Court of Appeal are important to note: "195 The question for this Court is what measure is called for to mark the Court's intolerance of conduct of the kind in question and to convey its intolerance to others who might be tempted similarly to engage in conduct that is demeaning to women and perpetuates unacceptable attitudes. We consider that, notwithstanding (as we have already mentioned) that the objective of disciplinary orders is protective and not punitive, some guidance may be taken from two well established principles of sentencing law: (i) proportionality and (ii) weight that may be given to extra-curial punishment. It is appropriate to note the level of extra-curial punishment (in some respects going far beyond any action the Court could take) that has already been visited on the respondent.
The first sentence of the above quotation is addressing what is referred to in this proceeding, as a protective orders acting as a deterrent to the profession as a whole.
We reach the point in this determination, where we weigh what protective orders, if any, need to be imposed to ensure, within reason, the Respondent's likelihood, or otherwise, to commit further misconduct in the nature established at Stage 1, together with orders which will sufficiently serve as a deterrent to the profession at large, thereby ultimately fulfilling the criteria of protecting the health and safety of the public. Importantly, the determination should also serve to maintain/promote the public's confidence in the medical profession at large.
We referred earlier to the fact that the Complaint brought by the HCCC against the Respondent does not seek a finding as to his competence as a medical practitioner. The complaint addresses his conduct towards others in his workplace, namely a hospital treating patients, which is an intricate part of the medical system in this country. We are satisfied that the "health and safety of the public" is not defined as being exclusively related to patients of a medical practitioner (see Chen). The safety of the public must include keeping members of the public and employees, in the workplace where a medical practitioner is engaged in his/her profession, free from harassment, assault and/or intimidation, by a medical practitioner. Likewise we take into account that such conduct also has the potential to seriously injure the health of a member of medical staff or the public in a hospital environment, should they be subjected to conduct of the nature we have found the Respondent has engaged in with Person A.
The Respondent urged us to follow the observations of the NSW Court of Appeal (in EFA) by taking into consideration extra-curial consequences of the Respondent's conduct. We note at this stage the reference in the above decision to "so far as the evidence goes, it represents an isolated instance of departure from accepted norms of conduct." We note that cannot be said of the Respondent in this case.
It is trite to say that common decency and awareness of proper boundaries in any relationship would drive all but a few medical practitioners to contain their conduct towards others, be they patients, work colleagues or other members of the public. We conclude that all but a very small number of medical practitioners would need the "deterrent" message from the decision we will make. The vast majority know that the conduct found against the Respondent is abhorrent behaviour and totally unacceptable in any environment.
The HCCC has sought an additional period of suspension for the Respondent, however, in terms of repairing that aspect of his conduct to others, which is required in the Respondents case, it is difficult to see how a further period of suspension will do that. Put plainly, if the Respondent has not suffered enough by the misfortune which has befallen him since his suspension from the Kareena Private Hospital in May 2019 and then having his registration suspended in July 2020, to convince him to control his conduct towards others, then it is hard to see what further action we could take which would have that effect.
The evidence of the Respondent sets out his suffering since his suspension from Kareena Private Hospital. He has lost his livelihood. He has been professionally and personally shamed by the findings of the Medical Council and now this Tribunal. The detail of the findings against him are in the public forum and easily accessed through the internet. He has lost time in the furthering of his career and he still has to complete his physician training before he obtains specialist accreditation. He has suffered in his health (depression for which he receives treatment). He has suffered in his marriage and family life. Although being in a privileged position of being able to hold an interest in an investment property and pay private school fees for his daughter, he had to sell his property and apply the proceeds to meet the costs of litigation and support for his family. He has been unable to continue to meet his daughter's educational expenses. His ability to partake in social events has been unable to be afforded. He is personally humiliated by his inability to be able to financially support his family. The findings of this Tribunal made against him are likely to impact his prospects of future employment. It must be seen as highly likely that applicants for positions who have no professional blemish on their record, will be preferred to the Respondent whose record will not be seen as unblemished.
The imposition of protective orders must serve a visible purpose. As can be seen from decisions of the Tribunal and the NSW Court of Appeal, that purpose can include, ensuring the medical practitioner is competent to practice and/or a deterrent to other practitioners not to fall into the same error that brought the particular practitioner before the Tribunal.
One aspect of the National Law which we have not been addressed on is section 3(2)(a). That section provides: Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and (b) the registration of students undertaking-- (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are-- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and
The section speaks of "practise in a competent and ethical manner". We assume for the purposes of this decision "ethical practise of medicine" includes conducting oneself respectfully and appropriately in the place where the practitioner is practicing medicine. If the registration of the Respondent was to be cancelled (an outcome not sought by the HCCC) then it would probably be necessary for the Respondent to establish that he could be trusted to practise ethically in the future when he applied to the Tribunal to be allowed to re-register. Without seeking to bind any future Tribunal, we question whether the Respondent, in such a circumstance, could do more than he has already done in the evidence before us, to show he has reformed. The only further evidence which might have been required was an experts report on the Respondent's mental health. No such evidence was provided by either the HCCC or the Respondent. We make no criticism of the HCCC for such failure as there was nothing apparent from the presentation of the Respondent before us which might suggest he has a mental health issue.
We accept the action of the Medical Council in suspending the registration of the Respondent in July 2020 was appropriate. However, the power being exercised to make that order was contained in s 150 of the National Law. We are now considering the Respondent's conduct under s 139B and 139E and the 149C.
Section 149C is as follows: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied-- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession.
Section 55 of the National Law specifies matters relating to unsuitability to hold general registration. Sub-section (1)(h)(i) provides a broad discretion to find a person unsuitable. It provides as follows: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if-- (h) in the Board's opinion, the individual is for any other reason-- (i) not a fit and proper person for general registration in the profession; or
As we have said, there is no order sought for the cancellation of the Respondent's registration. We make no criticism of the HCCC in taking that course of action.
In Hampshire v HCCC [2021] NSWCA 283 the Court of Appeal considered an appeal by Dr Hampshire in relation to the decision of the Tribunal to cancel his registration as a medical practitioner. In that determination the Court of Appeal stated: "47 It is not in dispute that the Tribunal correctly identified the test for professional misconduct in s 139E by reference to the remarks of Basten JA in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 48 The Tribunal then stated the matters which it took into account as indicators of the serious nature of the conduct for each complaint at [152]-[153]. It is appropriate to reproduce these reasons in full: Complaint 1 (1) The escalating sexual undertones in Dr Hampshire's interactions with patient A starting with his inappropriate ambiguous invitation for her to contact him when he spoke to her in his rooms and continuing through in his conversations and text messages on 14 and 15 April 2017 where he asked what she was wearing, asked her to take off her dressing gown and placed a kiss at the end of two text messages. As Dr Wright said, his persistence and conduct appeared to have a tone of harassment. Dr Hampshire accepted that the texts were very inappropriate. This is a significant boundary violation which went on for some hours. (2) Dr Hampshire knew that patient A was vulnerable. This is evident from the report he prepared which he sent to her solicitors. This was conceded by Dr Hampshire who agreed he had formed the view that she was suffering from several, significant psychiatric or psychological disturbances and was extremely vulnerable. (3) There was a power imbalance between Dr Hampshire and patient A, arising from the age difference, his superior social position and her dependence on him for her medico-legal report for her damages claim. Dr Hampshire conceded there had been a significant power imbalance in their relationship - she was dependent on him for a medico-legal assessment which would be critical in her claim for damages, he was a psychiatrist and a member of the medical profession so that she would have had a natural feeling of trust towards him, look up to him and perhaps feel intimidated by him."
The Court of Appeal found there was no appealable error demonstrated on that finding of professional misconduct. That was so even though the misconduct did not occur at a time when the practitioner was in a consultation with the patient. The conduct complained of contained no action which could have been described as being for a legitimate medical purpose.
Taking into consideration all of the matters we have set out above we conclude that it was an appropriate protective order to have been made in July 2020 suspending the registration of the Respondent.
We conclude that the appropriate Protective Order to make in this case is to impose a period of suspension of registration for three (3) months, commencing from the date of this hearing before us, together with the imposition of conditions on the registration of the Respondent.
In reaching the conclusion that a further period of suspension will serve as a protective order we have taken into account the following, amongst other, matters. 1. The conduct for which the Respondent has been found to have exhibited to Person A is a serious violation of professional boundaries and is highly repugnant to society. People are entitled to be able to work in an environment where their private lives remain their own business and where they are not questioned about that unless there is a very real work basis for having to ask such questions. Further they are entitled to be able to work without being subjected to uninvited apparently amorous advances from work colleagues. 2. Medical practitioners who exercise authority and/or power in a workplace over others also working there, need to be very conscious of their positions and never use same to gain personal advantage outside of advancing the health of those they are treating. 3. The provision of good medical service, to the public at large, must, in part, depend upon staff in hospitals and medical facilities being able to work unrestrained by fear of harassment and other degrading conduct, by others in that facility. 4. The length of time which the Respondent has been living with the consequence of his misconduct, should have been long enough to convince him of the errors he has made in his personal conduct towards others, in particular, females he may have contact within his workplace. 5. The purpose of protective orders is public safety focused and not punitive to the medical practitioner, although appropriate focussed orders may also have a deleterious impact upon a medical practitioner (collateral or extra-curial punishment). 6. On a personal level we accept the Respondent has suffered significantly as a result to the findings made against him by the Medical Council in 2020. Detail of the impact upon the Respondent of his loss of employment we have detailed above. We take that into account in determining that the Respondent can reasonably be expected to now be very cognisant of the consequences of his actions, which we have found was professional misconduct, and be restrained from acting in that manner again. 7. The protective order we impose will act as a deterrent to all medical practitioners who may be tempted to act in a manner which the Respondent was found to have conducted himself with Person A. 8. The order we impose will assure the public at large that the conduct perpetrated by the Respondent upon Person A will be treated as serious professional misconduct and dealt with appropriately by supervising bodies such as the Medical Council and this Tribunal. As such the public can be confident that a hospital is a safe place for members of the public and the staff who work there. It will ensure that patients know they can be treated by medical staff who are able to provide their full attention to their job and not be concerned about abhorrent behaviour from a medical practitioner with whom they have to work. 9. As set out in his evidence in the Stage 2 hearing, the Respondent has undertaken to the Tribunal to practice medicine in a proper, appropriate and ethical manner. 10. The Respondent will understand that should he again be required to answer a complaint of the nature we have determined at Stage 1, AND should he be found to be guilty of professional misconduct, he will place at risk his registration as a medical practitioner. This is probably the greatest protection for the health and safety of the public which will be present from this time on.

[21]

Should conditions be imposed.

The HCCC seeks the following conditions be imposed upon the registration of the Respondent: CONDITIONS PROPOSED BY THE HEALTH CARE COMPLAINTS COMMISSION Change of practice 1. To obtain Medical Council of NSW approval prior to changing the nature, scope or place of his practice. 2. To practise only in either a public hospital position or a group practice approved by the Medical Council of NSW. a. When working in a group practice, the practice must be where there are at least two registered medical practitioners (excluding the subject practitioner), and: i. Where the patients and patient records are shared between the medical practitioners. ii. Where there is always one other registered medical practitioner on site. Supervision 3. To practise under Category B Supervision from recommencement of medical practice 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 and: a. At each supervision meeting, the respondent is to review and discuss his practice with his approved Supervisor with a particular focus on: i. Communication issues with colleagues, staff, patients and their families ii. Maintaining professional boundaries with colleagues, staff, patients and their families iii. Continuing Professional Development and ongoing education and training iv. Clinical performance v. Patient management and outcomes vi. Medical records and documentation vii. Compliance with conditions b. To authorise the Medical Council of NSW to provide proposed and approved Supervisors with a copy of this decision and any subsequent relevant reports or decisions. c. Not to practise until a supervisor has been approved by the Medical Council of NSW Notifying current employers 4. To forward evidence to the Medical Council of NSW within 14 days from recommencement of medical practice, that he has provided a copy of this decision to his employer. Notifying future employers 5. Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of this decision to his employer. Information exchange 6. 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. 7. To authorise the Medical Council of NSW to notify current and future persons or organisations at places where he works as a medical practitioner in Australia, of any issues arising in relation to compliance with these conditions. Costs 8. To bear all costs arising out of compliance with these conditions. Review 9. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Medical Council of NSW when the respondent has a principal place of practice in NSW. 10. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia.
The Respondent opposes the imposition of most of the conditions sought above. The Respondent is prepared to voluntarily submit to the conditions numbered: 4, 5, 6 to 10.
In considering the appropriateness and necessity to impose conditions upon the registration of the Respondent, we have in mind the purpose of conditions must ultimately be to protect the health and safety of the public. There is no warrant to unnecessarily constrain the movement or practice of a registered competent medical practitioner otherwise than to facilitate the health and safety of the public. Consequently, the conditions sought must be seen through that lens.
Proposed conditions 1 and 2 seek to control the Respondent's movement within the nature, scope or place of his practicing medicine, without approval from the Medical Council. Proposed Condition 2 seeks to restrict the Respondents place of practice to a public hospital or an approved group practice.
The necessity for those requirements is not apparent to us. The HCCC did not address a submission to why, in this case, such conditions, as set out in proposed conditions 1 and 2 are required. There is no finding of incompetence as a medical practitioner sought before us or made by us.
The HCCC seeks the imposition of a supervision order. That is opposed by the Respondent. The HCCC did provide submission in support of that condition. The submission addresses the seriousness of the Respondents misconduct. The behaviour is a repetition of earlier similar misconduct. The fact of two such findings suggests an increased risk of further similar misconduct. The Respondent provided earlier promises not to again breach boundaries after the 2017 decision and yet he has been found to have breached those boundaries again in a similar manner. The Tribunal would be guarded in accepting the recent assurance given by the Respondent that "I have had a fundamental shift in the way I will approach relationships with colleagues, staff, patients and their families".
The HCCC further submits: "The practitioner has not worked for some time: (a) The practitioner has not worked as a medical practitioner since his employment was suspended on 28 May 2019. [15] On 2 February 2020, the practitioner's employment was terminated due to the expiry of his permanent contract (before the LHD investigation was finalized). [16] On about 27 April 2020, the LHD determined that the practitioner's employment would have been terminated due to serious breaches of the NSW Health Code of Conduct. [17] (b) On 15 May 2020, the practitioner sought Council approval to work at Hereward Specialist Medical Centre. [18] Approval was deferred due to concerns about one of the practitioner's proposed supervisors. [19] (c) On 16 July 2020, following the section 150C hearing, [20] the practitioner's registration was suspended. [21] (d) Dr Daud's oral evidence is that she would need to observe his clinical skill and interactions because he has not worked for some time.
In response to the submission of the HCCC the Respondent submitted the following in relation to supervision: "PC 3 - The respondent does not consent and refers to [44] - [55] of the Respondent's Primary Submissions. Although Dr Daud stated at the Stage 2 Hearing that she would 'supervise' Dr Hasan for a few months to ensure that he was fit to practise and to assess his technical competence, Dr Hasan explained in cross examination that he may (and will need to) ultimately work at a public hospital in order to complete his training".
We consider there is merit in the submission of the HCCC in support of a supervision order being placed upon the registration of the Respondent. We consider the Supervision will serve as an overseeing by an approved supervisor of the Respondent's practice of medicine at least during perhaps the first 12 months of his return to practice. We accept that if the Respondent is working in a public hospital that will necessarily involve at least informal supervision of his skills as a medical practitioner. However, even in that case there is merit in requiring a formal supervision condition. Additionally, the Respondent may practice elsewhere until he is able to secure employment in a public hospital.
In accepting the necessity for the supervision condition, we are cognisant of the circumstance that no part of the misconduct established against the Respondent took place in the clear view of any other person. The nature of his offending was opportunistic and clandestine. Supervision is necessary to oversee the continued medical competence of the Respondent in circumstances where he has been out of practice since May 2019.
With the above in mind, we turn to consider what supervision order is required. The HCCC seeks supervision at Category B level (as specified by the Medical Council). That supervision is more onerous to both the practitioner and his supervisor(s), than Category C supervision. The differences in those two categories of conditions was discussed in the decision of Ameisen v Medical Council of NSW [2021] NSWCATOD 155 at [73] and following. Category B supervision requires that the supervisor be present at the same place of practice, (e.g., a public hospital) at all times when the Respondent is working. Further there are meetings to be undertaken with the supervisor on a fortnightly frequency. There are other requirements of the supervisor in the overview of the Respondent's practise of medicine and providing reports to the Medical Council under Category B supervision.
In relation to Category C supervision, that is less onerous on both the practitioner and the supervisor. That requires the Supervisor to be able to be contacted by the Respondent while the Respondent is working and also requires meetings between the Supervisor and the Respondent monthly rather than fortnightly. There are other overseeing and reporting responsibilities undertaken by the Category C supervisor.
Both Category B and Category C supervisors are required to be approved by the Medical Council.
Given that the Respondent may be working in a number of different forms of medical practice (both in a public hospital and in private clinics) it is reasonably anticipated he will experience some difficulty in securing the services of a supervisor. A Catergory B supervision order would restrict the Respondent to working at one site only unless he was able to obtain the services of more than one supervisor and thus able to be immediately supervised at each site in which he secured a placement.
As can be understood, the requirements upon a supervisor approved by the Medical Council to comply with conditions attached to the registration of a medical practitioner, are not insignificant and the service provided is possibly provided fee free. The requirement to secure the services of one supervisor can be difficult for a medical practitioner required to practice under supervision. The requirement to secure the services of two or more supervisors across different locations is reasonably expected to be a more difficult and possibly impossible undertaking. We are cognisant of the fact that the Medical Council will be the body reviewing the conditions from time to time and could alleviate any condition which proved unnecessarily onerous.
Given the very restrictive nature of a Category B supervision condition, there must be a clear necessity to impose such a condition as opposed to a Category C supervision order. In the circumstances of this case we do not see the necessity for the more restrictive and onerous supervision under Category B. We do see the necessity and desirability, focussed upon the health and safety of the public, to require Category C supervision. We will so order.
In reaching our conclusion we have endeavoured to focus on the health and safety of the public. We have also sought to ensure we do not take action and impose orders and conditions which go further than necessary to protect the health and safety of the public so that the action, the imposition of an order or a condition is punitive in its nature. Having said that we are of course cognisant of the fact that necessary actions, orders and conditions do have an unavoidable punitive aspect to them. We are also aware that the requirement for a deterrent effect upon the profession may, in certain cases require actions, orders and conditions which go further than actively addressing immediate concerns for the health or safety of the public.
We have in this case concluded that the suspension order made by the Medical Council in July 2020 and the loss of employment in May 2019, the disgrace visited upon the Respondent by the publication of our decisions, collectively, go part way to address the deterrent requirement.
In relation to the Supervision condition we propose to make, we will not require the Supervisor to "review and discuss" matters of "patient management and outcomes" or "medical records and documentation" as there is no evidence before us to suggest the Respondent had a deficiency in either of those areas of practice.
By way of completion of this matter, we note we made an order restricting publication of the name of Person A when we published our reasons for Stage One. We propose to continue that order.

[22]

Costs

The HCCC seeks an order for the Respondent to pay its costs as agreed or as assessed. In support of that submission we note the following submission from the HCCC: "The Tribunal has the power to order the practitioner to pay costs under clause 13(1) of Schedule 5D of the National Law. The Commission seeks an order that the practitioner pay the Commission's costs as agreed or assessed because: a. the Commission is the successful party because the Tribunal found the subject matter of the complaint proven [22] and found the practitioner guilty of unsatisfactory professional conduct and professional misconduct; [23] b. The NSW Court of Appeal has affirmed that costs are awarded to compensate the successful party and accepted that as a general rule, costs of proceedings before the Tribunal should follow the event; [24] c. The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party; [25] d. There was no disentitling conduct by the Commission to warrant a departure from the general rule; e. The Commission took a number of steps during the matter to minimise costs, including serving a proposed statement of agreed facts [26] and not briefing counsel."
In relation to the costs order sought by the HCCC the Respondent submits as follows: "Although the Commission was largely successful, as stated at [4] of the Respondent's Primary Submissions, in Complaint Two the HCCC sought a finding that each particular of Complaint One justifies a finding of professional misconduct. The Tribunal declined to make such a finding. [27] Dr Hasan was successful in this regard. A finding that each particular of Complaint One justifies a finding of professional misconduct is a far more serious finding against Dr Hasan, which did not occur. An appropriate reduction ought to apply. Any costs order should only be in relation to Stage 1 at this stage."
We find that the Respondent should be required to pay the costs of the HCCC in relation to Stage One of this determination. Whilst understanding the point made by the Respondent in relation to the failure of the HCCC to establish to our satisfaction that each of the Particulars of Complaint One establish professional misconduct, we do not accept the costs of the proceeding for either party were increased because the HCCC sought that finding.
In relation to Stage Two costs, we will give the parties an opportunity to negotiate same after the publication of our orders and reasons. If an agreed position is reached we will make any agreed order for costs. If no agreement then we will give each an opportunity to file submissions and further evidence within a short time frame following the publication of our reasons.

Health Care Complaints Commission v Hasan

At a glance

Court

Decision date

Before

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Judgment (30 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (23)

Cited By (2)