Health Care Complaints Commission v Kavieris

1. We accept that the Respondent has made significant changes and improvements in respect of meeting his obligations to obtain informed consent and in properly documenting his processes. The extent of those measures illustrate the level of deficiency in the Respondent's practice in 2020.

1. 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: Health Care Complaints Commission v Do [2014] NSWCA 305 at [35].
2. We also approach the matter of general deterrence on the basis that it is subsidiary to other protective elements of the protective jurisdiction: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31] per Barrett JA.
3. We accept the Respondent's submissions that other practitioners should be sufficiently deterred by the experience and findings made against the Respondent, and consequences, of his conduct such as to be sufficient to satisfy the requirements of general deterrence in respect of others.

1. The requirement to obtain informed consent from a patient before treatment is an essential protection afforded a patient. The absence of informed consent may amount to an assault on a patient.
2. As we have pointed out, in October 2020 the Respondent, an experienced practitioner, did not need to be reminded of such a basic and essential requirement.
3. Further, as we have found, the Respondent in treating Patient B had been made aware by Patient A's complaint that informed consent was needed by way of better communication.
4. In our view, by proceeding to treat Patient B without informed consent and by placing his hands and treating the patient without informed consent undermined the public's confidence in the profession. Some measures are required to restore that confidence in the maintenance of the standards set for the treating of patients.
5. We do not accept the Respondent's submission that public confidence is unlikely to be affected by conduct of a practitioner in a single case. Here, the public could legitimately expect a basic requirement of practice to be met. The public should have confidence that before a female patient is touched and treated with invasive therapy there is on each occasion informed consent obtained by the practitioner to avoid adverse consequences on the patient as was the case in respect of Patient B.

1. Having considered all the issues, including the favourable referee reports, we are, however, satisfied that on balance it is not necessary in this case to cancel the Respondent's registration.
2. In our view, the protective principles which we have referred to above are satisfied by the denouncement of the Respondent's conduct in the published reasons, by the finding of professional misconduct, by the imposition of a reprimand and the imposition of the conditions which we outline below.
3. Those measures are, in our view, sufficient to protect the public more broadly by maintaining professional standards and signalling disapproval to the profession for the failures of the Respondent in respect of an essential element of conduct required.
4. The need for conditions arise from what we have set out above. The conditions that we intend to impose adopt conditions proposed in the alternative by the Respondent at paragraph 14 of his submissions with some addition, and a condition which precludes the Respondent from placing a hand between a patient's legs in the groin area whilst performing viscero-fascial manual therapy according to the Barral Method, and providing specific express warning to patients about the possible sensations in the labia majora area from such treatment.
5. In our view, cancellation will be disproportionate to the protective jurisdiction which we are required to exercise in this case and alternative means are available of sufficiently protecting the public.
6. We accept that a reprimand is a significant impact on a practitioner and his or her record of registration maintained by AHPRA. We also recognise that the imposition of conditions act as a deterrent and as a denunciation of previous conduct. We further recognise that the publication of the Respondent's proven conduct will have an impact on his standing in the profession and amongst, at least, some of his patients.
7. Patient B's complaint has, in the circumstances, lead to a number of improvements which should protect other patients from the conduct she was subjected to.

1. The Commission seeks the usual costs order. However, in submissions, the Commission indicated that it would consent to a reduction in its claim to 70% of its costs.
2. The Respondent argued with reliance on Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] there should be a reduction of the costs of 50% in circumstances where the Commission has failed to obtain all the findings of professional misconduct and unsatisfactory professional conduct.
3. The Respondent accepted that the question of apportionment is a matter of discretion and mathematical precision is illusionary.
4. The Respondent further argued that reliance should be placed on s 90C of the Health Care Complaints Act 1993 as to whether or not a complaint should be prosecuted before a disciplinary body, namely the likelihood of proving the alleged conduct.
5. We do not accept the relevance of s 90C, nor do we accept that there was a failure on the part of the Commission's director of proceedings to bring the proceedings and make the relevant complaints.
6. In our view, taking into account all the matters that were proven, the matters that were unsuccessful but in respect of which there were specific findings made which informed the overall judgment of the Respondent's conduct, an apportionment of 70% in our evaluative judgment of what justice requires is appropriate. An order to that effect will be made.

(1) Pursuant to s 149A(1)(a) and (3) of the Health Practitioner Regulation National Law the Respondent, Mr Theodore Kavieris, is reprimanded.

(2) The following conditions are imposed on the practitioner's registration pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law:

1. Prior to performing a broad ligament release pursuant to the Barral Method, and in addition to signing a consent form, patients must be:

(i) offered and be required to observe a 7 day "cooling off" period before the technique is performed;

(ii) offered the option of inviting a support person to attend as a chaperone and, in the event that the patient seeks to have a support person to attend as a chaperone, but does not have a person to so act, the Respondent will offer to provide to the patient a person from his practice to attend as a chaperone during the treatment.

2. In carrying out what is described as the Viscero-Fascial Manual Therapy as developed as part of the Barral Method of treatment the practitioner shall not undertake any assessment or treatment or procedure that involves the practitioner's hands being placed between the patient's legs in the groin area and shall advise the patient that this will not occur.

3. Prior to performing what is described as the Viscero-Fascial Manual Therapy as part of the Barral Method involving a broad ligament release the practitioner is to warn the patient in writing that it is possible that the patient will feel a sensation in her labia majora and record that this has been done.

4. The practitioner must keep a record of his compliance with Conditions 1 to 3 in the patient's record and provide to the Physiotherapy Council of New South Wales a copy of the records within 14 days of the end of each calendar month.

5. The Physiotherapy Council of New South Wales is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law.

(3) Pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law the Respondent is to pay 70% of the Commission's costs of the proceedings, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.