Health Care Complaints Commission v Litchfield

NCAT Occupational|2021-11-26|Before: Dr J

tchfield [1997] NSWCA 264; (1997) 41 NSWLR 630 Health Care Complaints Commission v Little [2016] NSWCTAOD 146 Health Care Complaints Commission v Ross [2019] NSWCATOD 153 Health Care Complaints Commission v Thiruvarangam (AKA Rangam) [2017] NSWCATOD 179 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 Hobhouse v McArthur-Onslow [2016] NSWSC 1831 Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305: (2001) 52 NSWLR 705 Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Papakosmas v The Queen [1999] HCA 37; (1999) 198 CLR 297 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 555 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 R v Byrnes & Hopwood [1995] HCA 1; (1995) 183 CLR 501 R v Whyte [2006] NSWCCA 75 RJE v Secretary, Department of Justice [2008] VSCA 265 Secretary, Department of Employment, Education, Training and Youth Affairs v Barrett [1998] FCA 384; (1998) 82 FCR 524 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 Tillmans Butcheries Pty Limited v Australasian Meat Industry Employees' Union [1979] 42 FLR 331 Category: Principal judgment Parties: Health Care Complaints Commission (applicant) Bruce Desmond Litchfield (respondent) Representation: Counsel: P Lowson (applicant) P Aitken (respondent)

Solicitors: Health Care Complaints Commission (applicant) HWL Ebsworth Lawyers (respondent) File Number(s): 2021/00113489 Publication restriction: On 28 May 2021 an order was made pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure to any person or entity of the name of the patient (Patient A) set out in the schedule to the complaint.

Introduction

By Amended Application filed 22 November 2021 the Health Care Complaints Commission (Applicant) complained that, pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) (the National Law), Dr Bruce Desmond Litchfield (the Respondent) was guilty of unsatisfactory professional conduct, and/or improper or unethical conduct, which constituted professional misconduct pursuant to the National Law, and had an impairment within s 5 of the National Law which detrimentally affects, or is likely to detrimentally affect his capacity to practise medicine, and was not "competent" within the meaning of s 139(a) and/or 139(b) of the National Law in that he lacks the mental capacity to practise as a medical practitioner and/or lacks sufficient communication skills for the practice of medicine.
By his Amended Response filed on 31 January 2022, the Respondent admitted a number of particulars of the Applicant's Complaints, did not admit a number of particulars of the Complaints, and denied other particulars of the Complaints.
The Respondent denied that, if he was found guilty of unsatisfactory professional conduct, individually or cumulatively, the findings of unsatisfactory professional conduct could constitute professional misconduct. The Respondent denied that any impairment which he may have detrimentally affects, or is likely to detrimentally affect his capacity to practise medicine. The Respondent also denied that he was not competent to practise medicine on any of the grounds advanced by the Applicant.
The proceedings were heard on 22, 23, 24, 25 and 26 November 2021 and 27, 28 and 31 January 2022. Written submissions were then filed on behalf of each party and, on 17 March 2022, Counsel for the parties spoke to their written submissions. The delay in publication of the transcript of the hearing has delayed the publication of the decision of the Tribunal, for which we apologise.
For the reasons indicated by Counsel for the Respondent at the commencement of the hearing, the Tribunal was invited to combine the hearing of Stage 1 of the proceedings with Stage 2 of the proceedings, if the latter became enlivened. It was understood by both parties that such approach did not involve any admission by the Respondent that the proceedings should involve consideration of Stage 2, and that a single hearing was embraced by the Respondent due to financial constraints upon him.
As Counsel for the parties, and particularly Counsel for the Respondent stressed, in circumstances where the Tribunal has heard evidence with respect to Stages 1 and 2 concurrently, the Tribunal must be vigilant to avoid conflating Stage 1, and if it be enlivened, Stage 2 of the proceedings. Doing so is not necessarily simple or straightforward in the circumstances of this case.
Each party filed extensive written material, which was supplemented by other documents which were received in evidence during the course of the hearing of the proceedings. The bulk of the documents relied upon by the Applicant were contained in two Volumes behind 58 Tabs (HCCC 1). The Respondent relied upon evidence contained in three Volumes behind 56 numbered Tabs and 11 Tabs identified by letters (R 1).
The Tribunal has been considerably assisted by extensive written submissions on behalf of the parties with respect to all relevant issues. On 24 November 2021 the Applicant filed a written submission in support of its tender of two Volumes of documents, which were referred to during the hearing as the "Part B documents". During the hearing in November 2021 the Respondent filed written submissions, essentially in opposition to the tender of the Part B documents.
On 31 January 2022 the Applicant filed written submissions in support of its case. On the same day, the Respondent filed written submissions in support of his case. On 11 February 2022 the Applicant filed further written submissions. On 3 March 2022 the Respondent filed further submissions with respect to the submissions of the Applicant in support of the tender of the Part B documents.
On 8 March 2022 the Respondent filed further submissions with respect to Stage 1 and, if it be enlivened, Stage 2. On 11 March 2022 the Applicant filed submissions in reply with respect to Stage 1, and if it be enlivened, Stage 2, and with respect to the tender of the Part B documents.
At the conclusion of oral submissions on 17 March 2022, the Tribunal invited the parties to provide Short Minutes of Order in the event that Stage 2 was enlivened, and the Tribunal was required to determine appropriate protective orders. Counsel for the Applicant submitted, not unreasonably, that it would be difficult to provide such Minutes in the absence of knowledge of the basis upon which Stage 2 was enlivened, and the findings of the Tribunal with respect to it. In the circumstances, whilst reviewing the evidence with respect to Stage 2 if it becomes relevant, and recording our findings with respect to the evidence, we will provide the opportunity for each party to file Minutes of Order with respect to the terms of any protective orders which that party contends that the Tribunal should make.
Prior to the commencement of the hearing, an order was made pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 limiting the disclosure of the identity of the patient of the Respondent whose allegations gave rise to the Applicant's application, Patient A. During the course of the hearing, the Tribunal considered it appropriate to extend the scope of the s 64 order to other witnesses. In accordance with those orders, these reasons do not disclose the identity of those persons. The orders of the Tribunal will provide permanent prohibitions on the disclosure of the identity of Patient A and the witnesses, or other persons referred to in evidence whose identity should not be disclosed.

Agreed facts

Counsel for the parties produced a helpful Summary of Agreed Facts (Exhibit X). The Agreed Facts dated 19 November 2021 recorded the matters set out below: 1. In 1979, the practitioner completed a Bachelor of Medicine/Bachelor of Surgery. 2. On 2 July 1980, the practitioner was granted general registration as a medical practitioner in New South Wales. 3. The practitioner was suspended from practice on 1 December 1996 for 9 months. 4. The practitioner's name was removed from the Register of practitioners on 8 August 1997. 5. On 16 June 2003 and 29 September 2006 the practitioner's applications for reinstatement were refused. 6. On 3 May 2012 the practitioner was successful in a reinstatement application, and shortly thereafter was registered as a health practitioner under the Health Practitioner Regulation National Law (NSW) 2010. 7. In July 2018, the practitioner started working as a General Practitioner at Kennedy Drive Medical Centre in Tweed Heads ("the practice"). 8. Patient A attended consultations with the practitioner at the practice on 19 and 28 June 2019, 3 and 24 July 2019 and 15, 22, and 23 August 2019. 9. At the time of the consultations, and/or as a result of the consultations, the practitioner knew that Patient A: 1. had disclosed a history of sexual assaults to the practitioner; 2. was being treated by a psychologist; 3. was attending a mental health service specialising in sexual violence; 4. had been diagnosed with post-traumatic stress disorder ("PTSD").

Admitted Conduct 1. During a consultation on about 24 July 2019 or 15 or 22 August 2019, the practitioner said to Patient A, in reference to her ex-husband, words to the effect of "your son has half his father's DNA" and admits that he may have said: "he would be like him in some ways (or could be like him in some ways)". 2. During consultations on 28 June until 22 August 2019, the practitioner: 1. pressed Patient A for information about the history and context of the sexual assaults that initiated her PTSD; 2. tested the integrity of her narrative. 1. The practitioner admits that: 1. he engaged in the conduct described in paragraphs 10 and 11 above for reasons including that he was a bit obsessive and fixated on trying to get to the bottom of Patient A's past trauma; and 2. in engaging in the conduct at paragraphs 10 and 11 above he became inappropriately overinvolved in Patient A's past; and 3. in engaging in the conduct at paragraphs 10 and 11 above he breached doctor/patient boundaries. 1. The practitioner: 1. asserts that he provided some psychological counselling to Patient A for the purposes of encouraging her self-esteem and confidence, and to offer reassurance, motivate her physical and psychological health and improve her overall general health; 2. accepts that his attempts to provide counselling to Patient A were in part inappropriately driven by his personal interest in integrative care; 3. admits that he was personally shocked and challenged by Patient A's traumatic history and became more involved than was appropriate; 4. admits he asked questions and made some remarks that were thoughtless, judgemental and on one occasion offensive, albeit unintentionally. 1. During consultations between 28 June and 23 August 2019, the practitioner was concerned about Patient A's social isolation and was of the belief that a new and healthy relationship might provide support and help heal the stress of the past. The practitioner: 1. engaged in a brief discussion with Patient A that dating sites seem to make it easier to meet new people; and 2. said to Patient A words to the effect of "Be careful about your choices if you are pursuing a new relationship. You do not need any further trouble". 1. The practitioner admits that any discussion regarding dating sites and expressing any views on a new relationship, including in the terms set out at paragraph 14 above, was inappropriate, particularly having regard to: 1. Patient A's significant history of sexual abuse; and 2. the fact that Patient A had existing relationships with a psychologist and a sexual assault service. 1. The practitioner admits that any discussion regarding dating sites and expressing any views on whether a new relationship might help, including in the terms set out at paragraph 14 above, was a breach of doctor/patient boundaries.

Complaint 1. On 1 October 2019, Patient A completed a complaint about the practitioner which was submitted to Ahpra on 15 October 2019. 2. On 9 December 2019, the practitioner was suspended from practice pursuant to s 150(a) of the National Law. 3. Between 28 June 2019 and 23 August 2019, the practitioner contravened clause 6.1 and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) 2016 in respect of his medical records for Patient A in that he failed to record sufficient information relative to Patient A's diagnosis or treatment, namely the duration and/or nature of her history of sexual assaults.

Principles governing the application - Stage 1

The principles governing Stage 1 of the proceedings are not in doubt and require only brief reiteration. In the event that Stage 2 is enlivened, we shall when determining the appropriate protective orders, briefly record the principles governing Stage 2 of the proceedings. We refrain from doing so at this point in view of the need to avoid the risk of any Stage 2 considerations infecting the evaluation of Stage 1 of the proceedings.
The Applicant bears the onus of proof of each element of its Complaints - the Respondent does not have to prove anything. The factual content of the Applicant's allegations must be established on the balance of probabilities and the question of whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10).
The principles identified in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, apply (Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53), and require the Tribunal to be mindful of the nature and seriousness of the allegations to be proved, with the result that the Tribunal must be "comfortably satisfied" that the allegations are made out on the balance of probabilities.
As is not in doubt, only Patient A and the Respondent know the truth with respect to a number of the disputed allegations relied upon by the Applicant in support of its Complaints. There is limited corroborative or other evidence which impacts upon the probabilities with respect to those disputed allegations.
In Hobhouse v McArthur Onslow [2016] NSWSC 1831 Robb J at 481 referred to the statement of Lord Mansfield CJ in Blatch v Archer (1774) 98 ER 969 that: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted".
In G v H [1994] HCA 48; (1994) 181 CLR 387 at [8], Brennan and McHugh JJ said that: "When a Court is deciding whether a party on whom rests the burden of proving an issue on the balance of probability has discharged that burden, regard must be had to that party's ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce evidence in response."
It is difficult to suggest in what way either the Applicant, or the Respondent, could have "adduced" more evidence than either did with respect to the disputed allegations in respect of which only Patient A and the Respondent really know the truth. We do not understand either party to suggest otherwise.
In Ho v Powell [2001] NSWCA 168; [2001] 51 NSWLR 572, Hodgson JA said at [14] that: "In deciding facts according to the civil standard of proof, the Court is dealing with two questions: not just what are the probabilities on the limited material which the Court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision."
In A v N [2012] NSWSC 354, Ward J (as Ward P then was) said, at [348]: "As to lay witnesses generally, I note at the outset that the fallibility of human memory has been explained by McLelland CJ in Equity (as His Honour then was) in an oft quoted passage in Watson v Foxman [1995] 49 NSWLR 315 at 318 as follows: "Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.""
Her Honour, at [349] further referred to McLelland CJ in Equity's statement that: "Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding: Helton v Allan [1940] 63 CLR 691 at 712. Considerations of the above kind can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action … in the absence of some reliable contemporaneous record or other satisfactory corroboration."
Her Honour added that: "Where evidence is given long after the occurrence of the events in question, the witness "may" put their own gloss or interpretation on events in which they were emotionally involved and that, by now, those perceptions will be reinforced in their minds so that they will be convinced of the truth of those perceptions. Not only "do memories fade with time", but "impressions of events may become accepted as fact"."
In Campbell v Campbell [2015] NSWSC 784 Sackar J at [73] to [79] distilled the principles which apply to the assessment of the credibility of a witness in circumstances such as the present in the following terms (citations omitted): "1 Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence are all matters of primary importance. 2 The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation. 3 In cases involving events which occurred long before the litigation, a Court usually prefers to rely upon contemporaneous, or near contemporaneous documents, which will often provide valuable, and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation. Greater weight is usually accorded such documents, as they often provide a safer repository of reliable facts, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine."
The Tribunal is only able to gain limited assistance in assessing the probabilities in this case from the second and third of the matters which Sackar J identified.
In Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146, the Tribunal recorded, at [105] that: "In approaching the evidence, we have been mindful that the authorities have consistently cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on demeanour. That is because a witness may, for example, appear evasive or combative for reasons that are unrelated to the honesty or reliability of their evidence. Likewise, a witness may give evidence in an apparently forthright and persuasive manner and yet their evidence may have been found to be unreliable or, worse, dishonest. Scientific research has cast doubt on the ability of anyone, including decision makers, to discern truth from falsehood on the basis of appearances. Nevertheless, as the High Court made clear in Fox v Percy at 41, demeanour evidence, if not decisive, remains relevant to the assessment of the credibility of witnesses, especially when supported or contradicted by other forms of evidence."
As the authorities recognise, forgetfulness, contradictions or inconsistencies in testimony, not involving matters of substance, are not indicative of falsity on the part of witnesses, but may assume significance when the reliability of the witnesses' recollection of disputed events is evaluated. The present case appears, but in our view ultimately does not involve a "stark choice" between irreconcilable accounts.
The manner in which Patient A and the Respondent gave evidence does not, subject to one matter to which we will later refer, materially impact on determining disputed issues of fact. Patient A's version of events is not inherently implausible or improbable, and is corroborated in a number of material respects by admissions made by the Respondent in the Agreed Facts, and in his written and oral evidence. The Respondent's denials of those parts of Patient A's version of events with which he disagrees are not inherently implausible or improbable. There are limited contemporaneous, or nearly contemporaneous, documents prepared by either party, or any independent person or entity, which directly impact upon the evaluation of the competing versions of disputed events. The Respondent's admittedly deficient clinical notes with respect to his consultations with Patient A indirectly impact on the Tribunal's fact finding exercise to only a limited extent.
Having seen and heard Patient A and the Respondent closely cross-examined, we find each to be an essentially honest witness, neither of whom has been shown to have an actual or apparent motive for misspeaking the truth with respect to disputed events. As is obvious, the Respondent has much at stake in these proceedings. Although potentially detrimental to his case, the Respondent's candour in cross-examination, and willingness to admit allegations which are corroborative of Patient A's version of events militate against finding that the Respondent lacks credibility. Ultimately, the reliability of recall, rather than the veracity of the person recalling events, and the standard of proof assume greater significance than any finding or purported finding with respect to "credibility" of any witness who has given evidence in these proceedings.
The first matter referred to by Sackar J in Campbell cited above does assume significance in the evaluation of the Applicant's Complaints, albeit to a limited extent. Sackar J referred to the "manner in which the witnesses gave evidence" as a matter of "primary importance" when a decision maker is confronted with irreconcilable accounts of events.
During his answers in cross-examination, the well documented desire of the Respondent to be enquiring was evident, as was his need to be expansive when doing so. When determining the likelihood of his having made disputed statements to Patient A, we have regard to those aspects of the Respondent's "manner" of giving evidence. We also have regard to the evidence of a number of witnesses relied upon by the Respondent, with respect to the Respondent's desire to investigate matters which, as the agreed facts recorded above make clear, he acknowledges he should not have. We do not perceive that, ultimately, the Tribunal is thereby impermissibly relying upon "demeanour", but rather on what the Respondent himself said, and in numerous instances volunteered when answering, or going beyond answering questions asked of him in cross-examination.
As is not in doubt, Stage 1 of these proceedings involves an evaluation of whether the Applicant proves its case to the requisite standard. If, and only if it does, Stage 2 is enlivened. Section 139 B(1)(a) of the National Law, on which the Applicant relies, defines "Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" as a category of conduct which, if established, constitutes "unsatisfactory professional conduct".
Section 139B(1)(l) of the National Law, on which the Applicant also relies, creates, but does not define, a category of conduct which, if established, also constitutes "unsatisfactory professional conduct" - "improper or unethical conduct".
The terms "improper" and "unethical" conduct have been given their ordinary meaning by the Tribunal in numerous decisions in proceedings pursuant to the National Law in accordance with Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. We propose doing so too.
The Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners etc, or abnormal or irregular" was adopted in Health Care Complaints Commission v Ross [2019] NSWCATOD 153, at [59]. In R v Byrnes & Hopwood [1995] HCA 1; (1995) 183 CLR 501, at [24] the High Court said that "improper" was an "indefinite term", and, at [25] that, although, "not a term of art", the issue of impropriety needed to be determined by reference to the "particular duties and responsibilities of the particular officer whose conduct is impugned", which is not "subjectively" determined, but by reference to a "range of considerations that may be taken into account".
The Dictionary definition of "unethical" as "contrary to moral precept, immoral, in contravention of some code of professional conduct" was adopted in Ross, at [59] and in Health Care Complaints Commission v Little [2016] NSWCATOD 146.
The Applicant's Complaints alleging impairment and insufficient communication skills, which we have earlier recorded, are pleaded in the terms of the provisions of the National Law upon which they rely.

Complaint 1

Complaint 1 alleged that the Respondent was guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that he: 1. engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of the profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
The background to the Complaint relevantly asserted that: "At the time of the consultations, and/or as a result of the consultations, the practitioner knew that Patient A: (a) had disclosed a history of sexual assaults to the practitioner; (b) was being treated by a psychologist; (c) had been diagnosed with post-traumatic stress disorder (PTSD)."
Particular 1 of Complaint 1 alleged that: "1 During a consultation on 28 June 2019, the practitioner made inappropriate comments to Patient A in that he said words to the effect of: (a) "You look good"; (b) "That's a shame that a woman like you is single"."
By his reply, the Respondent said that he "does not admit particulars 1(a) and 1(b) "as framed", and relied on the explanation set out in the Respondent's statement at paragraphs 50 to 53 inclusive to which we shall refer in detail later.
Particular 2 of Complaint 1 alleged that: "2 During a consultation on 28 June 2019, the practitioner made inappropriate comments to Patient A after she mentioned a history of sexual assaults by her ex-husband in that he said words to the effect of: (a) "And in those 4 years you didn't ever put your hand up to stop it?"; (b) "You must be into S and M, sadomasochism"; (c) "I think that's a good decision not to report" [the sexual assaults to the police]; (d) "There's a documentary called 100 Vaginas. I think it would be good for you to watch"."
The Respondent said with respect to particular 2 that he admitted particular 2(a) "but does not recall the exact words used". The Respondent denied particulars 2(b) and (c), and did not admit particular 2(d), and said that he had "no recollection of the title of the documentary, has never watched the documentary and does not recall watching or hearing of any promotion for the documentary".
Particular 3 of Complaint 1 alleged that: "3 During consultations between about 3 July 2019 and 23 August 2019, the practitioner made inappropriate comments to Patient A regarding her history of sexual assaults in that he said words to the effect of: (a) "I highly recommend you don't talk about your abuse to anyone else"'; (b) advising Patient A "you should be dating or intimate with men again" and "you should try dating sites"; (c) telling Patient A that "considering the type of man you are attracted to, you'll probably end up in trouble again"."
By his Reply, the Respondent denied particulars 3(a) and 3(c). The Respondent did not admit particular 3(b) "as framed" and relied on the explanation set out in the Respondent's statement at paragraph (61) to which we shall refer in detail later.
Particular 3A of Complaint 1 alleged that: "Further or in the alternative to particular 3 the practitioner inappropriately: (a) engaged in a brief discussion with Patient A that dating sites seem to make it easier to meet new people; and (b) said to Patient A words to the effect of "be careful about your choices if you're pursuing a new relationship. You do not need any further trouble."
By his Reply, the Respondent admitted particular 3A(a), as paragraph 61 of his statement makes clear. The Respondent also referred to paragraph 62 of his statement with respect to particular 3A(b) to which we shall refer in detail later.
Particular 4 of Complaint 1 alleged that: "4 During the consultations on about 22 and 23 August 2019, the practitioner made inappropriate comments to Patient A regarding her history of sexual assaults in circumstances where he said words to the effect of: (a) "was there more than one man at a time having sex with you?", "what was your husband doing while those men were having sex with you?", "was he watching?", "was he joining in?" and "where did he find them?"; (b) "I highly recommend that you don't tell anyone else about this"; (c) "you should not talk about your sexual assaults to anyone"."
By his Reply, the Respondent denied the allegations contained in particular 4. Particular 4A alleged further or in the alternative to particular 4 that: "During consultations on 28 June until 22 August 2019, the practitioner became inappropriately involved in Patient A's past and breached doctor/patient boundaries in that the practitioner: (c) pressed Patient A for information about the history and context of the sexual assaults that initiated her PTSD; (d) tested the integrity of her narrative."
By his Reply, the Respondent admitted particular 4A "on the basis that during some consultations in the period between 28 June and 22 August 2019 as per the Respondent's recollection and [sic] the Respondent pressed Patient A for information about some of the history and context of the sexual assaults that initiated her PTSD".
Particular 5 of Complaint 1 alleged that: "During a consultation on or about 24 July 2019 or 15 or 22 August 2019, the practitioner became inappropriately involved in Patient A's past and breached doctor/patient boundaries in that the practitioner said to Patient A, in reference to her ex-husband, words to the effect of "your son has half his father's DNA" and said "he would be like him in some ways (or could be like him in some ways)"."
By his Reply, the Respondent admitted particular 5 "in that the Respondent admits that he stated words to the effect of "your son has half his father's DNA" and believes he may have stated "he would be like him in some ways (or could be like him in some ways)" with respect to Patient A's son, not her children." As the Agreed Facts confirm, this particular is substantially admitted, and, to the extent that it is not, the Respondent concedes that he "may" have said the words alleged, or words similar to them.
Particular 6 of Complaint 1 alleged that during consultations between 28 June 2019 and 23 August 2019 the Respondent: "purported to provide psychological counsel to Patient A for her PTSD in circumstances where: (a) the practitioner was not qualified to provide psychological counselling to Patient A for her PTSD; and (b) the practitioner was aware from 28 June 2019 that Patient A was attending a psychologist and a mental health service."
By his Reply, the Respondent admitted particular 6(b) but did not admit "purporting to provide psychological counselling for PTSD to Patient A. While the Respondent is qualified to provide some psychological counselling in his role as a GP, his expertise is limited to a vocationally registered general practitioner with some mental health skills training".
Particular 7 of Complaint 1 alleged that: "Notwithstanding 6(a) and/or (b) above, at the consultations between 28 June 2019 and 23 August 2019, the practitioner: (a) purported to provide psychological counselling to Patient A, either for her PTSD or for some other purpose, and/or (b) maintained inappropriate boundaries with Patient A, in that the practitioner: (i) asked Patient A questions about the sexual assaults; (ii) made comments to Patient A about her personality including that she was an "empath" or "empathic"; (iii) made comments to Patient A about sexual assault, including that abusers know how to pick their targets and that they can recognise "empaths"."
By his Reply, the Respondent admitted particular 7(a): "In that the Respondent denies providing psychological counselling for PTSD nor purporting to provide psychological counselling for PTSD, but admits an attempt to provide psychological counselling to Patient A in relation to encouraging self-esteem, confidence, motivate her physical and psychological health and improve overall general health."
The Respondent admitted particulars 7(b)(i) and (ii) but "does not recall the exact words". The Respondent denied particular 7(b)(iii).
Particular 7A alleged, further or in the alternative to particular 7, that the Respondent: "(i) provided some psychological counselling to Patient A for the purposes of encouraging her self-esteem, confidence, offer reassurance, motivate her physical and psychological health and improve overall general health; (ii) provided the counselling in part driven by his personal interest in integrative care; (iii) became more involved in Patient A's traumatic history than was appropriate; (iv) unintentionally asked questions and made some remarks that were thoughtless, judgemental and offensive."
By his Reply, the Respondent admitted particular 7A.

Complaint 2

Complaint 2 alleged that the Respondent was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law in that he contravened a provision of the Regulations under the National Law.
The particulars in support of this Complaint allege that: "Between 28 June 2019 and 23 August 2019, the practitioner contravened clause 6(1) and Schedule 4(2) of the Health Practitioner Regulation (NSW) Regulation 2016 in respect of his medical records for Patient A in that he failed to record sufficient information relevant to Patient A's diagnosis or treatment, namely the duration and/or nature of her history of sexual assaults."
By his Reply, the Respondent admitted the particulars of Complaint 2 "as set out in the Respondent's statement at paragraphs [82] to [84] inclusive" to which we shall refer in detail later.

Complaint 3

Complaint 3 asserted that the Respondent was guilty of professional misconduct under s 139E of the National Law in that he has: "(i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify a suspension or cancellation of the practitioner's registration, and/or (ii) engaged in 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 the suspension or cancellation of the practitioner's registration."
In support of this Complaint the Applicant relied upon Complaints 1 and 2, and the particulars of them, individually and cumulatively.
By his Reply, the Respondent stated that he "respectfully leaves this matter to the Tribunal". We do not understand the Respondent to concede that, individually or cumulatively, the allegations admitted by him and any disputed allegations which are found to be established could, individually, or cumulatively, support a finding of professional misconduct.

Amended Complaint 4

Amended Complaint 4 alleged that: "Pursuant to s 144(d) of the National Law, the practitioner has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice medicine."
The Complaint accurately reflects the terms of the provisions of the National Law upon which it is based.
The particulars in support of the Complaint alleged that: "1 The practitioner has an impairment, namely Autism Spectrum Disorder. 2 In the alternative, the practitioner has an impairment in that he has one or more of the following traits: (a) he has obsessive, rigid, inflexible personality traits; (b) he gets caught up in the minutiae of clinical interaction and finds it hard to focus on the bigger picture; (c) he is impulsive and can say things that may be detrimental, hurtful or offensive to others; (d) he has difficulties interacting with colleagues and peers; (e) he does not seem to have much awareness of other people's emotional distress or underlying vulnerabilities; (f) his manner in the clinical setting is open to misinterpretation and may lead to discomfort within patients."
By his Reply, the Respondent stated that he: "admits Complaint Four in that he may have a mild impairment, noting varying diagnoses have been made as to whether he fulfils the criteria for ASD or Aspergers or aspects of same, but the resolution of this issue and the nature and extent of any impairment, including whether it detrimentally affects or is likely to detrimentally affect capacity to practice the profession is ultimately a matter for expert evidence."
Other than the admission that the Respondent "may have a mild impairment" we do not interpret the Respondent's reply as an admission of any other particulars in support of the Complaint, or that any impairment which he may have detrimentally affects, or is likely to affect his capacity to practise medicine.

Amended Complaint 5

Amended Complaint 5 alleged that the Respondent was "not competent within the meaning of s 139(a) and/or (b) of the National Law in that he lacks the mental capacity to practise as a medical practitioner and/or lacks sufficient communication skills for the practise of medicine".
The Complaint reflects the terms of the provisions of the National Law upon which it is based.
The particulars in support of Amended Complaint 5 stated that the particulars of Complaint 4 were relied upon; and/or the Respondent: "(a) has an impulsive communication style; (b) lacks awareness of other people's emotional distress or underlying vulnerabilities."
By his Reply, the Respondent "denies Complaint 5 and relies on expert appraisals including the work he has done with Dr Adams and Dr Lotz as to how he would approach practice in the future".

The controversial Part B documents

Before evaluating the evidence with respect to the disputed allegations relied upon by the Applicant in support of its Complaints, it is appropriate to address the controversy with respect to the admissibility of certain of the Part B documents.
The Applicant vigorously maintained that the entirety of the Part B documents should be received into evidence, both for the purposes of the Stage 1 evaluation and, if Stage 2 is enlivened, the determination of appropriate protective orders.
Save with respect to the exceptions to which we will shortly refer, the Respondent, with equal vigour, resisted the tender of the Part B documents, primarily we apprehend with respect to the Stage 1 determination, but also, if Stage 2 is enlivened, with respect to the determination of appropriate protective orders.
Properly, given the asserted significance of the documents in support of the Applicant's case, and the "unfairness" of allowing them into evidence asserted by the Respondent, the Tribunal deferred ruling on their disputed tender until the hearing concluded. So doing did not constrain Counsel's use of the disputed documents in cross-examination of any witness. Counsel for both parties made extensive, and helpful written and oral submissions with respect to this topic.
The Part B1 documents (comprising 684 pages) cover events which occurred between 13 May 1992 and 24 October 2002. The documents include witness statements, transcripts and Statutory Declarations with respect to criminal proceedings against the Respondent in the Local Court and District Court between 1992 and 1995. They also include transcripts with respect to disciplinary proceedings against the Respondent consequent upon the completion of the District Court criminal proceedings between 1995 and 1997. The documents also include documents and transcripts relating to the Respondent's applications for reregistration as a medical practitioner between 2000 and 2003.
The documents contained in Volume B2 (comprising 636 pages) commence with the refusal of the Respondent's application for reinstatement as a medical practitioner in 2003, his 2006 reinstatement refusal, to his 2011 application for reinstatement, and the granting of reinstatement on 3 May 2012. The transcripts and other documents with respect to variation of conditions attaching to the Respondent's registration in 2016 are also included in the material.
There are a number of reasons why the Tribunal deferred ruling on the tender of disputed Part B documents until the hearing had concluded. First, a number of documents, which are identified below, were uncontroversially received into evidence from the Part B documents. In essence, these were decisions or judgments which recorded the outcome of proceedings in which the disputed Part B documents had been considered and were the subject of findings of fact which effectively "overtook" the opinions of the witnesses who gave evidence before courts or tribunals in earlier concluded proceedings. In those circumstances, the potential significance of what witnesses may have alleged or opined in those documents is hard to suggest.
Secondly, the Tribunal is exercising jurisdiction now, and must do so on the findings it makes with respect to the evidence and, other than in an historical context, would not be influenced by any opinions of witnesses, some of them from almost three decades ago, who had not seen the Respondent for decades, and were not called as witnesses in the present proceedings, whose evidence could thus not be challenged. It was made clear, and understood by both Counsel, that, subject to objections to particular cross-examination on anything continued within the disputed Part B documents, the Respondent or other witnesses could be cross-examined on them. That was particularly so in the case of anything said by the Respondent on any of the numerous prior occasions when he gave evidence or made statements to courts or tribunals.
The Part B documents which were received in evidence without objection by the Respondent were the following: 1. The findings of the Medical Tribunal of New South Wales of 15 November 1996, found at Part B1 p416-437. 2. The decision of the Court of Appeal on 8 August 1997 ordering the removal of the Respondent's name from the Register of Medical Practitioners, reported as Health Care Complaints Commission v Litchfield [1997] NSWCA 264: (1997) 41 NSWLR 630, found at Part B1 p442-450. 3. The report of Dr Peter Klug, Forensic Psychiatrist, dated 4 June 2001 found at pages 489-495 of Part B1. 4. The report of Dr Peter Klug of 1 August 2001 found at B1 (HCCC 7) p496-498. 5. The cross-examination of the Respondent on 22 October 2002 found at B1 p517-591, noting that the evidence particularly relied upon by the Applicant was at p551. 6. The decision of the Medical Tribunal of New South Wales of 10 June 2003 refusing the Respondent's application for reinstatement as a medical practitioner, found at B2 p2-40. 7. The report of Dr Peter Klug, Forensic Psychiatrist, of 30 June 2005 found at B2 p41-44 (HCCC 8). 8. The reasons for the rejection of the Respondent's application for reinstatement of the New South Wales Medical Tribunal of 29 September 2006 reported as Re Bruce Litchfield [2006] NSWMT 3 found at B2 p53-60. 9. The statement of the Respondent of 22 July 2011 to the Medical Tribunal of New South Wales found at B2 p61-68 (HCCC 3), noting that the particular reliance of the Applicant was on p65, paras 35 to 38 of that document. 10. The report of Dr Ian De Saxe, Consultant Psychiatrist, of 9 September 2011 found at B2 p147-155 (HCCC 9). 11. The evidence of the Respondent before the Medical Tribunal of New South Wales on 23 April 2012 found at B1 p325-416 (HCCC 10), noting that the HCCC particularly relied upon the transcript at p407. 12. The decision of 3 May 2012 of the Medical Tribunal of New South Wales granting the Respondent's application for reinstatement reported as Litchfield v Medical Council of New South Wales [2012] NSWMT 8 found at B2 p532-562. 13. The decision of the Medical Council of New South Wales of 18 August 2016 found at B2 p615-633 (HCCC 11). 14. The decision of the Medical Council of New South Wales of 18 August 2016 varying the conditions on the Respondent's registration, found at B2 p615-630, noting, as recorded above, that this decision came into evidence as Exhibit HCCC 11.
As the list of Part B documents uncontroversially received into evidence confirms, few, if any of the disputed Part B documents were not considered by one or more of the courts or tribunals before which the Respondent has appeared during the period to which they relate. To the extent that any disputed Part B documents were not before courts or tribunals in earlier proceedings, reliance upon any disputed documents which neither party saw fit to advance in earlier proceedings in the present proceedings would be unlikely to be probative of any issue which we are required to determine in the circumstances we have recorded, and receiving such documents could therefore be inconsistent with affording procedural fairness to the Respondent.
In submissions dated 24 November 2021 in support of the tender of the disputed Part B documents (HCCC 2), the Applicant submitted that "Part B is admissible either generally as being relevant to the proceedings, or specifically under clause 5(1) of Schedule 5D to the National Law".
Clause 5 of Schedule 5D to the National Law is headed "Evidence of other proceedings [NSW]" and provides that: "(1) A committee or the tribunal may receive and admit on production any of the following, as evidence in any proceedings - (a) the judgment and findings of a court (whether civil or criminal and whether or not of this jurisdiction); (b) the verdict or findings of a jury of a court (whether civil or criminal and whether or not of this jurisdiction); (c) the judgment and findings of a tribunal (whether or not of this jurisdiction); (d) a finding, decision or determination of a professional standards committee established under this law or a corresponding prior Act; (e) a decision of a performance and professional standards panel established under the Health Practitioner Regulation National Law; (f) a certificate of the conviction of or the making of a criminal finding in respect of any person; (g) a transcript of the depositions or of shorthand notes, duly certified by the registrar or clerk of the court or tribunal as correct, of the evidence of witnesses taken in a court or tribunal referred to in paragraphs (a)-(c); where the committee or the tribunal is of the opinion that the judgment, findings, verdict, certificate, decision, determination or evidence is relevant to the proceedings. (2) If the committee or the tribunal is of the opinion that evidence so admitted is capable of establishing that a registered health practitioner has engaged in conduct that is sufficiently similar to the conduct alleged against the practitioner in the proceedings, it may rely on the evidence in - (a) making a finding that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct; or (b) exercising any of its powers under subdivision 3 or 6 of Division 3 of Part 8. (3) The power conferred by this clause is in addition to any other power conferred on the tribunal by the Civil and Administrative Tribunal Act 2013 with respect to the use of evidence."
Section 2 of Schedule 5D to the National Law provides that the Tribunal is "not bound to observe the rules of law the admission of evidence, but may inform itself of any matter in the way it thinks fit". Section 38(2) of the Civil and Administrative Tribunal Act (the CAT Act) is in largely similar terms, but with the additional words "subject to the rules of natural justice". We perceive no tension between the provisions, and will observe the rules of natural justice with respect to the receipt of evidence generally, and particularly with respect to the tender of the disputed Part B documents.
It is readily apparent that the documents identified earlier as having been received into evidence or, although not Exhibits, being judgments or decisions to which it is agreed that the Tribunal can have regard, fall, in most instances, comfortably within the ambit of section 5(1) of Schedule 5D. Although reports or other statements or evidence not "taken in a court or tribunal" would not appear to fall within the clause, they would not necessarily be inadmissible having regard to s 38(2) of the CAT Act. Although, for the reasons which follow, nothing turns on it, we accept that witness statements relied upon in proceedings falling within s 5(1) fall within s 5(1)(g) of Schedule 5D.
In support of the tender of the disputed Part B documents the Applicant submitted that relevant to the "impairment" allegations in Complaint 4 were the reports of Drs Quadrio, Klug, Phillips, Barling, De Saxe and O'Brien, identified in a table attached to the Applicant's submissions. As is not in doubt, the Applicant has not relied upon opinion evidence from any of those practitioners as witnesses in these proceedings. In those circumstances, the Respondent had no reason to instruct the experts upon whom he relies to engage with those reports. As is also not in doubt, the Respondent would have no opportunity to cross-examine any of these experts, or otherwise test their evidence if their reports are received into evidence.
The Applicant further submitted that the disputed Part B documents were also relevant to "assess the briefing material provided to Dr Samuels given the Commission relies on Dr Samuels' evidence for Complaint 4". It was further submitted that the documents were relevant "in addressing the Respondent's case where he has raised his impairment as an explanation of his conduct in Complaint 1 so as to minimise the seriousness of his conduct and argue against a finding of professional misconduct in Complaint 3", and also relevant "to assessing the objective seriousness of the conduct in Complaint 1 and whether that conduct amounts to professional misconduct in Complaint 3".
The Applicant relied upon the conduct referred to by the New South Wales Medical Tribunal in its decision of 3 May 2012, at [23], which recited the summary of findings recorded by the Court of Appeal in its 1997 Judgment. That decision was uncontroversially before the Tribunal in the present proceedings. Given the reliance upon the Applicant's assertion that the conduct findings previously made, and not disturbed by the Court of Appeal, were "sufficiently similar" to the conduct alleged in support of Complaint 1 in these proceedings, being conduct "that involved boundary violations in the course of medical consultations with female patients", it is appropriate to record in detail the earlier findings, which the Court of Appeal did not disturb. The "facts, as found by the Tribunal" were that: "The first patient, JT, was seen by the doctor in his surgery at Woolgoolga on 6 May 1987 for the purpose of having an intrauterine contraceptive device fitted. After the patient sat up on the examination table, the doctor placed her hand on his clothing over his erect penis. JT's friend, DM, was the next patient admitted to the doctor's surgery that day. She had attended to drive JT home and to have a pap smear. After this procedure, the doctor asked whether she had had a recent breast examination. She said she did not "really bother about it". While she was still on the examination table the doctor, standing behind her, put his hand inside her dress and bra and held one of her breasts. DM said she did not want this and sat up quickly. NM, who was then 20, consulted the doctor at the Warringah Mall Medical Centre, Brookvale on 27 March 1992 complaining of flat feet. He examined one foot and one lower leg, then informed her that she was due for a breast examination and pap smear, and asked her to get onto the examination table. She did so. She was not wearing a bra and the doctor handled her breast. Earlier, the doctor had initiated a personal conversation, unrelated to her flat feet, about her boyfriend, her contraceptive precautions, and what he described as her unusual tan. The Tribunal were convinced, to the necessary degree of satisfaction, that the doctor's examination of this patient was carried out for sexual gratification. The last complaint related to LW, who saw the doctor at the Chatswood 24 Hour Medical Centre on 2 November 1992. She was complaining of loss of appetite, nausea, vomiting and sleeplessness. After minimal history taking, the doctor pulled up her upper garment and palpated both breasts with his fingers. After pressing both sides of her stomach down as far as the groin, he then resumed his examination "on her breast" and, after discussing acupressure points, he demonstrated these on her upper chest wall above each nipple and on her perineum between her vagina and anus he then carried out an irregular vaginal examination. The Tribunal concluded: "It seems most improbable that this examination was for any genuine medical purpose and we are satisfied that it was at least in part motivated by a desire for some form of sexual gratification.""
The crux of the Applicant's submissions was that "as a consequence of the prior misconduct and the associated disciplinary and reinstatement proceedings the Respondent was specifically on notice of the need to maintain appropriate patient/doctor boundaries" and, as he was "subject to conditions in part intended to ensure that appropriate patient boundaries were maintained" his conduct as alleged in the particulars in support of Complaint 1 was "more serious" and supportive of a finding of professional misconduct pursuant to Complaint 3. We do not accept that reliance upon the Respondent's being subject to conditions at the time of the conduct which gave rise to the present proceedings is in any way related to, or dependent upon, the receipt of the disputed Part B documents. It is not in contest that the Respondent was subject to conditions at the time of the alleged offending conduct which gave rise to the present proceedings.
The Applicant reiterated, as it had in opening, that it did not rely on the conduct earlier found "in so far as the boundary violations were sexual in nature", and that the Applicant did not seek to enliven "tendency reasoning" to argue that the conduct earlier cited above from the 1997 decisions "makes it more likely that he engaged in the conduct in Complaint 1". That was, in our view, an entirely appropriate concession by the Applicant.
The basis upon which the Applicant pressed the tender of the disputed Part B documents is thus clear. Our difficulty, as was suggested during the course of the hearing, is how the Applicant's case could be advanced by reference to evidence which may or may not have been before the relevant Courts or Tribunals which, to the extent that it was, was considered by, and the subject of findings in the Judgments or Decisions of those Courts or Tribunals. If the evidence was not placed before those decision-makers, having not been placed before the Tribunal in these proceedings in the way that the evidence of witnesses has otherwise been, and should be, it is difficult to accept that it should now be allowed. Even if it were, given the antiquity of the evidence, the absence of a reasonable opportunity to respond to it, and the inability of the Respondent to test it, the Tribunal could not safely afford it any weight, or prefer it to up to date evidence which was tested and found to be reliable.
The second point, which was also raised during the course of the hearing, is that it is difficult to see how, if the Applicant's contentions have merit, it could not make out its case in this respect in reliance upon the findings of Courts or Tribunals which are uncontroversially before us. With respect to the submissions of Counsel for the Applicant, nothing to which we have been referred persuades us that the inability to rely upon the disputed Part B documents could hinder its claim, or that reliance upon it could advance the claim.
By written submissions dated 22 November 2021, Counsel for the Respondent engaged with the disputed tender of the Part B documents. As is clear, those submissions were made prior to the receipt of the Applicant's submissions. In view of the concessions in the latter to which we have referred, and with no disrespect to the scholarship of Counsel for the Respondent, it is necessary only to refer to limited parts of his written submissions.
After making some concessions with respect to the potential admissibility of the disputed contents of Part B at Stage 2, Counsel for the Respondent submitted that the disputed material "was of no meaningful assistance to the Tribunal in its deliberations and is attended with considerable potential prejudice. It is prejudicial having regard to the following considerations, many of which are interwoven and/or overlap with each other".
The Respondent submitted that the "minutiae of matters" in the disputed contents of Part B were not relevant to the proof of the Complaint, in circumstances where the fact of the previous allegations and the Respondent's responses to them were sufficiently established and set out in the material in Part A, the Respondent's evidence and the tribunal decisions. It is difficult to dispute that proposition.
The Respondent further submitted that, if the disputed contents of Part B were received into evidence there was a "real risk that attention will be inappropriately diverted from the core questions in the proceedings, with the potential for irrelevant pursuit in cross-examination of the Respondent of matters going only to proof of the complaints from 30 years ago". The number, nature and contents of the disputed Part B documents render that risk real in our view.
It was properly conceded by the Respondent that neither party is entitled to "seek to go behind" the previous judgments or decisions of courts or tribunals, all of which the Tribunal has received and may take into consideration. That concession militates strongly against allowing the disputed Part B documents into evidence.
The Respondent submitted that whilst some of the disputed contents of Part B were placed before the Applicant's expert, Dr Samuels, Dr Samuels did not "specifically rely on transcript references and other related materials in his opinions". It would be surprising, and potentially concerning if Dr Samuels had relied upon any of the disputed documents for more than an historical perspective in formulating his expert opinion. Cross-examination of Dr Samuels provides no basis for finding that he did so.
In oral submissions, Counsel for the Respondent asserted, with some merit, that the opinions of any experts relied upon by either party in the current proceedings needed to be sustainable by reference to the expertise of the witness and, to the extent that any opinion evidence given by such witness was reliant upon assumed facts, that the factual assumptions were admitted or established (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705). The Respondent further submitted that the opinion evidence given by witnesses in these proceedings would not be enhanced or diminished by what the opinion of another expert one or several decades earlier might have been. We struggle to disagree with that contention.
The Respondent referred to the "undesirability" of the Applicant tendering material adverse to the interests of the medical practitioner (in terms of protective orders) prior to the Tribunal making findings at Stage 1 which enlivened Stage 2 (see Lucire v Health Care Complaints Commission [2011] NSWCA 99, at 54 and 59-60 per Basten JA).
The Respondent submitted that: "In this case, Dr Litchfield's desire to have the matter dealt with as a combined stages hearing occurs in a context where the proceedings are self-funded; that this is his wish means that extra vigilance needs to be paid to the requirement to ensure that Stage 2 considerations do not intrude into the area of proof of matters in dispute."
We have earlier recorded the need to be vigilant to avoid conflating the consideration of Stage 2 with the determination of Stage 1, given that, unless Stage 2 is enlivened, there is no occasion for the consideration of protective orders. Although we do not understand Counsel for the Respondent to concede that, if Stage 2 is enlivened, the Respondent's disciplinary history would not be relevant, we do not understand that proposition to be strongly disputed.
In written submissions dated 31 January 2022 the Respondent submitted, accurately (9), that the Applicant was seeking to "use past conduct, as a result of which the Respondent's registration was cancelled and which has been the subject of completed reinstatement proceedings, to argue that the present conduct is made objectively more serious". The Respondent's further submissions engaged in detail with the meaning of "sufficiently similar" in s 5(2) of Schedule 5D. The Respondent disputed that evidence from previous disciplinary proceedings, and inferentially findings in those proceedings, could be taken into account in determining whether unsatisfactory professional conduct had been made out. These submissions require consideration in the context of an issue of significance to which we shall later refer.
In support of his contentions, Counsel for the Respondent referred to the decision of the Court of Appeal in Lindsay v Health Care Complaints Commission [2005] NSWCA 356 (Lindsay), and particularly to the Judgment of Hunt AJA at [26] and [30]. Lindsay involved a medical practitioner who had been found guilty of unsatisfactory professional conduct pursuant to the provisions of s 36(1)(a) of the Medical Practice Act 1992, which defined unsatisfactory professional conduct as conduct that "demonstrates that the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience".
The passages relied upon by the Respondent are found in Hunt AJA's consideration of "the evidence for the second stage and the objection thereto" (at [24]-[30]). His Honour accepted, at [26] that material related to Patient O was clearly irrelevant to the characterisation to be given to the Appellant's conduct relating to Patients A and B, but that the "position would have been different had all three complaints been before the Tribunal to be dealt with at the same time, when the cumulative effect of all the material could have been taken into account when considering whether that conduct should be characterised as unsatisfactory professional conduct". The second stage in that case concerned the determination of appropriate protective orders.
His Honour referred, at [30] to the reliance by the Commission on findings of a Professional Standards Committee that the practitioner "had had similar difficulties with Patient O on an interpersonal basis" to those relied upon with respect to Patients A and B. His Honour's Judgment at [34] appears to be more relevant for present purposes, engaging as it does with the reliance of the Tribunal on "material relating to the proceedings concerning Patient O" when "characterising the Appellant's conduct in all three particulars as unsatisfactory professional conduct". His Honour recorded, at [35] the concession that, by doing so, the Tribunal had failed to accord the practitioner procedural fairness, and thus fell into error. For the reasons which His Honour recorded, and which turned significantly on the Tribunal "taking into account in determining an issue material which was never relevant to that issue, as both the Appellant and the Commission had agreed and submitted to the Tribunal", we are not persuaded that Lindsay assists the Respondent's case on this issue.
We do not understand the decision in Lindsay to preclude ever taking into account, at least in the manner asserted by the Applicant in this case, prior orders of courts or tribunals with respect to the Respondent's entitlement to practise medicine when assessing the objective seriousness of conduct which has been found proven in the later proceedings.
The Respondent submitted with respect to the Applicant's purported reliance upon the disputed Part B documents with respect to the issue of impairment that: "41 The Applicant also argues in the 24 November email that it ought be entitled to rely on historical psychological reports about the Respondent in Stage One going to proof of the question of impairment. In the Respondent's respectful submission, that contention is largely misconceived. First, the question of impairment is a matter to be assessed by the Tribunal at the time of the hearing (what is the Respondent's current presentation, is he or she impaired such that it may detrimentally affect the ability to practice medicine in the future?), and whether the Respondent may have been impaired 30 years ago, or even what his presentation was in 2012, is not relevant. 42 Secondly, the current experts have made their assessment about the Respondent based on his present presentation, with an instruction to do so based on whether he is presently impaired or not. The psychological and psychiatric reports from years before were not prepared addressing the question of impairment, and to rely on them now as supporting that proposition is both potentially unfair and fraught with difficulty. None of the individuals have been required for cross-examination by the Applicant, nor have clarifying comments or opinions been sought by the Applicant, and there is a real danger that the content of the reports could be misused in those circumstances where the question was never addressed. The reports are silent as to that proposition. 43 Finally, the Respondent notes that if the Applicant wanted to rely on these reports as demonstrating current impairment, it should have put the Respondent on notice in a particular of the complaint, well before the hearing. It has not done so."
We agree with the contention that the relevant time for evaluating asserted impairment and the sufficiency of a practitioner's communication skills for the practice of medicine is when the Tribunal is seized with jurisdiction to determine those issues. It could not be successfully asserted that previous findings, some decades ago, whether favourable or adverse, could prevail over findings with respect to those issues which are made in reliance upon evidence which is recent, and has been tested by cross-examination, or been able to be so tested. We do not consider that any of the disputed Part B documents would assist the Tribunal to determine the two issues with respect to impairment which have been correctly identified by the Respondent (41).
On 11 February 2022 the Applicant made further submissions with respect to the disputed Part B material. The Applicant submitted that it would be "perverse, and would limit the effective exercise by this Tribunal of its protective jurisdiction, for documents related to past findings of misconduct to be admissible depending upon whether or not a s 150 committee had viewed them". We respectfully disagree with that proposition. Why that is so has been largely revealed earlier. The fact that the Applicant's vastly experienced Counsel has not identified any respect in which excluding the disputed Part B documents is asserted to have impermissibly constrained its case reinforces our view.
The Tribunal is exercising jurisdiction in 2022. We cannot, and have no need to "go behind" the findings made by any Court or Tribunal in previous proceedings, either by reference to evidence which was before it, much less do so by referring to evidence which neither party to those proceedings chose to adduce. The findings and orders made in those proceedings, if permissibly relied upon, support the Applicant's contention that, in view of his past history of disciplinary orders, the conduct of the Respondent admitted and/or established in these proceedings is more serious.
To the extent that the Applicant contends that all of the Part B material was made available to Dr Samuels, we do not accept that, if that occurred, it would provide a basis for admissibility of that material. As is not in contest, to the extent that Dr Samuels may have relied upon any earlier reports, those reports could be received in evidence but, as submitted by the Respondent, Dr Samuels' opinion ultimately turns on an evaluation of it based upon his expertise, methodology and assumptions. We do not understand Dr Samuels to seek to support, or reinforce his opinion in reliance upon what others, in some instances decades ago, may have considered with respect to any aspect of the Respondent's personality or mental health. Even if the opinions of Dr Samuels, or those of any other expert who has given evidence in these proceedings, was contradicted by experts who previously gave evidence with respect to the same issue, that would not mean that his or their opinions could not be accepted.
With respect to the Applicant, the submission that the "findings" in the 1997 Court of Appeal decision, and four reinstatement applications are "relevant to the misconduct and to the Applicant's limited insight into and explanation for his conduct, and to the Applicant's insight more generally" provides support for rejecting the disputed Part B documents. If findings assertedly supportive of the Applicant's case were then made, they speak for themselves, and do not require support from the evidence of any expert who is not being called in the present proceedings and thus able to be cross-examined. To now allow evidence of decades old opinions, from witnesses who were not included in the Applicant's Part A material, nor made available for cross-examination, would not assist the Tribunal, and would serve only to unhelpfully prolong the proceedings, and would be unfairly prejudicial to the Respondent.
The Applicant made detailed submissions with respect to the appropriate interpretation of clause 5(1) of Schedule 5D. For the reasons which we will shortly record, and with respect to Counsel for the Applicant, we do not find it necessary to engage in detail with those submissions. Given the basis upon which the disputed Part B materials are sought to be relied upon by the Applicant, as clearly stated in its submission of 24 November 2021, this controversy essentially involves two issues: 1. whether findings and/or orders previously made by courts or tribunals may be taken into account when considering the objective seriousness of findings with respect to alleged unsatisfactory professional conduct and, if so; 2. whether any evidence which was or could have been before the courts or tribunals which made those findings, judgments or orders, should be received in evidence in the absence of the author of any expert report or witness in any of those proceedings being called as a witness in the present proceedings and thereby available for cross-examination.
In its submissions of 31 January 2022 the Applicant (30) asserted that the "relevance to seriousness of the conduct with Patient A" was that: "Dr Litchfield had previously engaged in conduct that involved boundary violations with four female patients. As such he was on notice of the need to be scrupulously careful in his consultations vis-à-vis boundary violations. Notwithstanding this, he has again engaged in boundary violations. Conduct is more serious when it is engaged in by someone who is on notice of the need not to engage in that conduct. This is relevant to the assessment of whether any unsatisfactory professional conduct that the Tribunal finds that Dr Litchfield has engaged in is sufficiently serious to amount to professional misconduct."
In further submissions with respect to the admissibility of the disputed Part B documents dated 3 March 2022, the Respondent reiterated the substance of his previous submissions. The Respondent submitted (1) that the interpretation of clause 5(2) of Schedule 5D for which the Applicant contends : "is in effect an "open slather" to evidence at the Stage One point (the proof of the matters alleged in the Complaint). That is, the Applicant contends that evidence of past conduct and the response to it by the practitioner in previous disciplinary proceedings should be used to aggravate the seriousness of current findings of unsatisfactory conduct, so as to get the conduct over the professional misconduct line."
With respect to Counsel for the Respondent, we perceive that this submission conflates two issues. We do not understand the Applicant to suggest that the disputed Part B documents, if admitted, could be relevant to whether the Tribunal is comfortably satisfied that the Respondent said the things alleged by Patient A which he disputes. If we are wrong, and that is what the Applicant contends, we do not accept that any of the disputed Part B documents could be used for that purpose, on numerous grounds involving procedural unfairness.
The first proposition to which the Respondent referred raises the more complex, and potentially significant issue, which is whether being "on notice" of the need to observe appropriate professional boundaries, the conduct of the Respondent, as admitted or found, is objectively more serious than if the Respondent did not have the prior history of findings and orders with respect to professional boundaries.
We do not accept, with respect to the Applicant, that including that material in the Part B documents did, or should have put the Respondent on notice that the Applicant intended to rely upon them, at least in the Stage 1 proceedings, much less that the Respondent thereby needed to give notice that he required the authors of any of those reports or other documents to be available for cross-examination. We have recorded earlier a number of compelling reasons for rejecting the tender of the disputed Part B documents, in the Stage 1 proceedings.
As with the submissions of the Applicant with respect to the interpretation of s 5(2) of Schedule 5D, for the reasons which follow, we do not consider it necessary to engage in detail with those submissions. If the first question were answered in the affirmative, we would not receive into evidence the disputed Part B documents. Doing so could not adversely impact on the Applicant's case - the Respondent was on notice because of the decisions and orders of the courts and tribunals which determined his disciplinary proceedings.
Having rejected the tender of the disputed Part B documents, the issue is whether, as the Applicant contends, the undisputed Part B documents are relevant to evaluating whether any conduct of the Respondent which is found proved pursuant to the Applicant's Complaints to constitute unsatisfactory professional conduct is "sufficiently serious" (Chen v Health Care Complaints Commission [2017] NSWCA 186, at [20]) to constitute professional misconduct.
In view of the term "sufficiently similar" in s 5(2) of Schedule 5D, it is appropriate to first determine which of the disputed allegations of fact relied upon by the Applicant in the particulars in support of its Complaints are established before determining whether the undisputed Part B documents can be relied upon in the manner asserted by the Applicant.
Before turning from this issue, it is appropriate to refer to the complaint of the Respondent that the Applicant has not adequately particularised its case and that "with no particulars supporting its case, it cannot rely on any prior conduct to make out professional misconduct at Stage 1" (34).
The Respondent relied upon observations of Spurling J in Sabag v Health Care Complaints Commission [2001] NSWCA 411, at [83] in which His Honour said: "There is a special need for particulars in disciplinary proceedings such as these because of the elements of degree and judgement involved in a finding of a professional offence under the legislation. The particulars of the complaint must specify the conduct relied upon sufficiently to apprise the person not only of the bare facts relied upon but also of those aspects of the conduct relied upon as satisfying the elements of degree and judgement which are involved."
We are not persuaded that the Applicant has failed to adequately particularise any material aspect of its Complaints. To the extent that, arguably, the Respondent did not adequately do so, by 24 November 2021 the Applicant's position was made clear to the Respondent. That was well prior to the Respondent giving evidence, and at a time when, with the possible exception of Dr Samuels, no witness who had been cross-examined gave evidence which related to or was potentially affected by any of the disputed Part B documents. As the Tribunal made clear when this controversy first arose, the disputed Part B documents not having been received into evidence at that time did not preclude cross-examination of any witness on them. No application was made to recall Dr Samuels, or any other witnesses in order that they could be cross-examined on any of the disputed Part B documents.
In view of our ruling with respect to the tender of the disputed Part B documents, we perceive that the Respondent's procedural fairness complaints dissolve.
We are thus not persuaded that there was any procedural unfairness in the Applicant being permitted to agitate its case in the way in which it has. Whether it can successfully do so remains to be determined.

Particular 1

The Applicant alleged that during a consultation on 28 June 2019, the Respondent said to Patient A words to the effect of "You look good" and "That's a shame that a woman like you is single".
By his Reply, the Respondent did not admit the allegations "as framed" and relied on the "explanation set out in the Respondent's statement in September 2019, at paragraphs (50) to (53) inclusive". Those passages are found at R1 Tab 1 p8-9 and record: "50 I do not admit using the exact words as noted in particular (a) and (b). 51 After my discussions with Drs Lotz and Dr Adams, I do recall making some comments in the context of being out of care, to encourage and bolster the self-esteem of Patient A in that she had told me that she had been teary and upset earlier that morning. Having considered the consultations more deeply and with assistance of Drs Lotz and Adams I have reflected on my attitude and the medical notes written and the statement of Patient A. 52 I recall wishing to try to cheer up Patient A and at her second consultation on 28 June 2019, I said words to the effect that despite feeling teary and upset Patient A was looking fine or well today. My recollection is that Patient A was well dressed and it appeared that she was trying to turn things around for herself. I wanted to encourage this. I cannot recall the exact words used but would not normally just say you look "good" but could have implied that by saying you look fine or well in any case. 53 With respect to particular 1(b) I do not recall saying "that's a shame that a woman like you is single" in isolation. Early on in the consultation Patient A had told me that she had come to see me primarily because she was emotionally upset that morning and wanted help with her life circumstances and concerns regarding her chronic illness. I can recall thinking that life was challenging for Patient A and wanting to show understanding. I recall either thinking or saying words to the effect that "it must be hard studying and raising the children all on her own, and it seemed a shame that she was single". Bolstering the self-esteem of Patient A and her attitude to both her children and herself was something that I felt Patient A needed to work on. I recall trying to encourage this. In this regard, I note an entry in my notes of 3 July 2019 when I needed to strongly encourage her to attend the school where her children were due to each get rewards that afternoon. She was not going to attend and I recall being surprised about this and encouraging her to leave as soon as she could to go. I accept that it was naïve and judgemental to think that Patient A may have been any better off with a partner. If in fact it was said that I now see that I shared an unfiltered thought that expressed a personal belief at that time that I see now as clearly inappropriate. I recognise that if I said this it was in response to Patient A being teary and upset and appearing overwhelmed. My intention was to provide encouragement. However I clearly see now that it was clumsy, wrong and inappropriate."
On 1 October 2019 Patient A made her complaint to Aphra (HCCC 1 Tab 4). Attached to that complaint (HCCC 1 Tab 4(b)) was a statement by Patient A in which Patient A said (page 1) with respect to her 2nd appointment that when the Respondent walked into the room she was already in and sitting on the chair, and the Respondent said "You look good", and then said "And you are single?, that's a shame that a woman like you is single".
In "confidential progress notes" dated 27 August 2019 prepared by the psychologist who Patient A was then seeing (HCCC 1 Tab 6), Patient A was recorded as having said that the Respondent said "You look good today, it's a pity you're single".
Although the Tribunal is not bound by the rules of evidence (CAT Act s 38(2), National Law Schedule 5D, s 2), having regard to the standard of proof applicable to the current proceedings, reference to the rules of evidence is instructive with respect to the status of statements previously made by Patient A which are consistent with the allegations upon which Complaint 1 is reliant.
Section 59 of the Evidence Act 1995 (NSW) provides that evidence of a previous "representation" made by a person is not admissible to "prove the existence of the fact that it can reasonably be supposed that the person intended to assert by the representation". The Dictionary to the Evidence Act defines "representation" as including "express" representations "whether oral or in writing".
Section 60 of the Evidence Act provides that the rule against hearsay evidence does not apply to "evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact". Subject to limited exceptions, s 60 was enacted to "enable evidence admitted for a non-hearsay purpose to be used as evidence of the truth of the facts asserted in the representation" (Australian Law Reform Commission, "Evidence relevant for a non-hearsay purpose", Uniform Evidence Law, ALRC Report 102).
It is not in dispute that the fact that Patient A made complaints when she did, and the terms of her complaints, are relevant to the Tribunal's evaluation of Complaint 1. To the extent that such statements are inconsistent with evidence given by Patient A two years later, they are relevant to the reliability of her recollection of the events referred to in them, and, potentially, to her credibility. Conversely, the extent to which the two are consistent is relevant to the reliability of Patient A's recollection, and, if it be challenged, her credibility.
The difficulty inherent in the common law rule with respect to prior consistent representations was said by Justice Roden of the Supreme Court of New South Wales to be "to make it more likely that the evidence (in a prior representation relied upon in answer to a suggestion of recent invention) was truthful, and if the evidence and prior statement was to the same effect (as the term "consistent" seems to require), then the statement is being used as evidence of the truth of its content" (Proceedings of Institute of Criminology, No 48, 24).
The limitation on the operation of s 60 of the Evidence Act which the decision of the High Court in Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594, identified does not apply to Patient A's prior representations - Patient A's representations were made with the intention of proving the assertions which she was making. Patient A was able to be cross-examined on her statements to the psychologist who recorded them. The psychologist could have been required for cross-examination on her statement. The reliability of Patient A's recollection of disputed conversations is in our view enhanced by the fact that she alleged that the Respondent made the disputed comments when she did, and in terms substantially identical with those alleged by her in her statement to the Applicant, from which she did not depart during cross-examination.
To the extent that the Respondent's evidence, and the Agreed Facts do not leave it open to the Tribunal to be comfortably satisfied that these allegations are established, nothing emerging from the cross-examination of Patient A provides any basis for not being so satisfied. Understandably, given the Respondent's absence of clear recollection of what was said during the consultation, his Counsel was constrained in testing the evidence of Patient A with respect to what was said during that consultation.
We are comfortably satisfied that these particulars are established. In coming to that finding, we have considered the submissions on behalf of the Respondent (8 March 2022 paragraphs 32-37). To the extent that those submissions assert that the Tribunal could not be comfortably satisfied that the allegations in this particular are made out, for the reasons which we have recorded above, we do not accept those contentions. As their terms make clear, the Respondent's submissions, understandably, go rather more to the Respondent's motives in making comments which, although their precise terms are disputed, he concedes to have been "inappropriate". With respect to the Respondent, his misguided motives for making a number of comments to Patient A, which he admits were ill-advised, and the terms in which he made them, provide support for being comfortably satisfied that Patient A's version of the conversation should be accepted.
In his report of 24 August 2020, Dr Golding, the Applicant's expert said (HCCC 1, Tab 13, page 3) that the comments allegedly made by the Respondent constituted "an assessment that is on a personal scale and of preference rather than a professional scale of assessment", were not "affirmative, innocent banter or an attempt at relationship building" and were inconsistent with s 8.2.3 of the Medical Board of Australia: Good Medical Practice- A Code of Conduct for Doctors in Australia, a copy of which is found at HCCC 1, Tab 47 ("Code of Conduct"). Dr Golding thus considered that both comments were "below the standard".
Section 8.2 of the Code of Conduct provides that "good medical practice involves", inter alia, (8.2.3), "Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress". We agree that the Respondent's comments offended s 8.2.3 of the Code of Conduct.
In cross-examination which has relevance to a number of the present Particulars, Dr Golding agreed (Transcript 22/11/21, page 57-58) that there needed to be a "balance struck between having some kind of professional rapport with the patient and not revealing other aspects of your own personal life or delving into aspects of a patient's life". After exploring aspects of that "balance", Dr Golding reiterated (Transcript, page 60, lines 33-35) that "there's a big difference between saying, "You look healthy today, how do you feel?" and saying that a person looks attractive, they sound similar but they are very different". Dr Golding's reasons for that opinion were cogent in our view, and not diminished by reason of the nature of Dr Golding's professional experience as it emerged during his cross-examination.
We are comfortably satisfied that this particular has been established to the requisite standard and that the Respondent is guilty of unsatisfactory professional conduct.

Particular 2

Particular 2 alleged that, during the consultation on 28 June 2019, the Respondent said to Patient A "and in those 4 years you didn't ever put your hand up to stop it", referring to Patient A's history of sexual assaults by her ex-husband. The Respondent admitted that allegation.
It was further alleged that during the consultation the Respondent said to Patient A "You must be into S&M, sadomasochism" and "I think that's a good decision not to report [the sexual assaults to the police]". The Respondent denied each of those allegations.
The Applicant further alleged that during the consultation the Respondent said to Patient A "There's a documentary called 100 vaginas. I think it would be good for you to watch". The Respondent did "not admit" that he said those words.
In the statement which Patient A submitted to Aphra in early 2019 (HCCC 1 Tab 4(b)) Patient A said with respect to this allegation that during the consultation: "I told him a very brief outline of the sexual assaults by my ex-husband, I told him "My ex-husband had other men rape me". He then asked how long it was happening for. I told him "4 years after we moved away to Melbourne" and said "and in those 4 years you didn't ever put your hand up to stop it?" he then stated you must be into S&M - sadomasochism and I said No. I am not. I was raped. I did try many times for it to stop but my ex-husband is a manipulative abuser. I was very shocked that he had said that to me and was surprised that I was feeling the need to defend myself. He continued to question me about it throughout my appointment, and I told him I already have other people such as TBSAS, psychologist and Psychiatrist that I talk to about these things - I'm here for medical help. He asked me if I had reported the assaults to the police - I said I had not because I am still very traumatised by the assaults themselves and that I can't possibly handle further traumatisation by the police reporting process and the courts process and that I fear my ex would find me if I did. Dr L then said, "I think that's a good decision not to report"."
Patient A alleged that the Respondent then commented that her "earrings were very beautiful and asked her where they were from". Patient A also alleged that the Respondent "said that my hair looks good", and that "When I was getting up out of my chair to walk out of the room at the end of my appointment, he said "There's a documentary called 100 Vaginas I think it would be good for you to watch". I did not watch it."
The confidential progress note by Patient A's psychologist of 27 August 2019 records Patient A as stating that the Respondent said "Didn't you put your hands up", and that the doctor was "asking questions about the abuse and abuser. Asking personal questions", and "keeps diverting conversation from medical context to her psychology". A note on Patient A's feelings is that "each appointment feeling something is not right - crossed the line - keeps asking questions about [Patient A's] ex and "asking questions about her personal [indecipherable]" and as having said "I like your earrings, they are really - while she was talking about her medical condition - interrupted her because [indecipherable] earrings caught [indecipherable] attention and said how beautiful they were".
In her statement to the Applicant of 17 February 2020 (HCCC 1 Tab 4), Patient A said (p3, paras 12-13) that, after having "looked over my Centrelink forms and saw that I had PTSD in my history", and that the Respondent asked her "why I have PTSD and I told him a very brief outline of the sexual assaults inflicted upon me by my ex-husband". Patient A then reiterated the substance of her earlier allegations.
In his statement (R1 Tab 1 p9 paras 54-59) the Respondent set out his version of the conversations alleged by Patient A. As earlier recorded, the Respondent admitted (54) particular 2(a) but stated his recollection was that he said "and in those 4 years you were not able to put your hands up to stop it". In view of the Respondent's admission, we need not refer to the other matters to which the Respondent referred in this paragraph.
The Respondent "strenuously" denied ever asking Patient A "such a question" as particular 2(b) alleged with respect to Patient A being "into S&M, sadomasochism" (55). The Respondent further (56) "strenuously" denied particular 2(c) and recalled "asking whether the assaults were reported to the police as that had seemed appropriate given their gravity". The Respondent further said that when he was: "told that they had not been I recall asking Patient A why they had not been reported. I recall Patient A telling me that she thought that going through the court process would be too traumatic. I do recall expressing to Patient A that it was sensible for her to have thought about reporting them and that they were serious allegations against her ex-husband. I categorically deny saying that it was a good decision not to report. I recall that I did wish to support Patient A's decisions and did say words to the effect that it is good that she had thought about it."
The Respondent's further comments (57-58), although potentially relevant in a Stage 2 determination, do not impact upon our evaluation of the Applicant's Complaints.
With respect to the "documentary called 100 Vaginas", the Respondent said (59) that he had "no recollection of this title when first receiving this complaint and still don't have a recollection". After stating some matters which do not materially impact upon the determination of the disputed allegation in this particular, the Respondent concluded (59) by saying "I simply do not recall any knowledge of the title at that time nor suggesting Patient A watch the documentary". As is self-evident, the Respondent's inability to recall does not mean that Patient A's version of the conversation is necessarily accepted, but lowers the barrier to permissibly doing so.
As we have earlier recorded, Patient A saw a psychologist at Living Well Psychology and Counselling Service on five occasions between 27 August and 30 October 2017 (HCCC 1, Tab 6). The notes of Patient A's consultations provide the earliest record of her complaints about the Respondent's conduct. On 27 August 2019, Patient A is reported to have said that "Doctor said "didn't you put your hands up"". On 12 September 2019, Patient A is reported to have said that the Respondent "told" her that "you should watch a documentary called 100 vaginas". The evidence does not reveal that these consultations were other than therapeutic, and preceded Patient A's complaint to the Applicant.
Although the confidential progress notes made by Patient A's psychologist in August 2019 do not record Patient A having made all of the allegations which the Respondent disputes or does not admit, that does not mean that Patient A did not report her allegations to her psychologist at that time. It is significant that Patient A said what she did, when she did, and is supportive of finding that her recollection of these events is reliable, particularly in circumstances where the accuracy of the contemporaneous, or near contemporaneous record of Patient A's complaints has not been challenged.
The Applicant submitted (31 January 2022, paras 11-15) that Patient A's recollection should be "preferred" to the recollection of the Respondent with respect to the allegations which the Respondent denied or does not admit.
In the Applicant's submissions of 11 February 2022 (4-13), a number of matters were advanced with respect to "Complaint 1 generally" in support of the contention that Patient A's evidence should be preferred to that of the Respondent because: "(a) Patient A in her statement for these proceedings stated that approximately 2 weeks after her last consultation with Dr Litchfield she received a telephone call from [CB], the Clinic Manager at Kennedy Drive Medical Centre, and told [C] that she would not be coming back to the Centre because of the very inappropriate conduct of Dr Litchfield. (b) In the record of consultation with Patient A on 12 September 2019 [Patient A's psychologist] recorded that "[C] = Manager of Kennedy Drive Medical Practice [Patient A] spoke to the Manager at Kennedy Medical Practice about Dr Litchfield". (c) In his character reference dated 2 December 2019 (found at HCCC 1 Tab 25 p155) Mr [B] stated that Patient A would not elaborate on why she would not be returning to the practice and specifically stated that doctor/patient boundaries or the doctor being inappropriate were "never mentioned". In cross-examination, however, Mr [B], after denying that some things were said to him by Patient A: (i) agreed that such a conversation took place regarding inappropriate conduct (Transcript 26 November 2021 page 39.37) (ii) stated that he had not acted on it at the time (iii) explained that new processes had been put in place in 2020 so that in future this would be reported to his supervisor (Transcript 26 November 2021 page 42.41)."
It was further submitted (5) that the oral evidence given by the practice manager [Person B] had the "ring of truth about it", particularly given his answer to questions from the Tribunal, and should be preferred to his written statement. It was further submitted (6) that Patient A's evidence was true, as the Respondent had "apparently opined to Dr Adams that Patient A had not complained about his conduct" (HCCC 1 Tab 55 p576). It was submitted (7) that whilst it was: "true that Patient A did not complain during the time she consulted with Dr Litchfield, Patient A did complain very soon after the last consultation with Dr Litchfield. In fact within the next 10 weeks, Patient A complained to: (a) [her psychologist] (b) took [her psychologist's] advice and consulted with and complained to [Person K] (c) complained to [Person B] (d) complained to Aphra and (e) complained to HPCA."
The Applicant reiterated (8) the details of each of those complaints and further submitted (9), accurately, that Patient A's complaints to her psychologist, as recorded, were "in similar terms" to the complaint which she made to Ahpra.
It was submitted, justifiably, in this context (10) that: "Patient A could not have foreseen that the notes of her consultations would be evidence in the same proceedings where the content of her Victim Statement would be the basis of Complaint 1 against Dr Litchfield, so the fact that there is broad consistency across the documents indicates, again, that Patient A's version of the consultations ought to be preferred." Patient A could not have foreseen that, two years later, she was likely to be cross-examined on her 2019 statements to her psychologist. No motive for Patient A misspeaking the truth emerged during the hearing of these proceedings.
The Applicant further relied (11) upon evidence of the Respondent in cross-examination on 28 January 2022 that he was "satisfied that Patient A was not delusional by the time he had the last consultation with her on 23 August 2019".
The Tribunal was referred to submissions made by Counsel then representing the Respondent in proceedings pursuant to s 150 of the National Law. It was submitted that it "appears that part of Dr Litchfield's defence to the allegations made by Patient A was that she was lying about the matters that she complained of", and further submitted that it was "not actively explored with Patient A in these proceedings: (a) that she was lying about the sexual assaults by her former husband; or that she was lying about the matters that she alleged against Dr Litchfield and it appears that Dr Litchfield no longer seeks to excuse his behaviour on the basis that Patient A was lying about it." It was thus submitted that the "fact that Dr Litchfield previously took that approach is relevant, however, to the Tribunal's assessment of Dr Litchfield's evidence as a whole".
Although we accept the logic of the submission of counsel for the Applicant, we are not comfortable taking, and do not need to take "that approach" in reliance upon what Counsel then representing the Respondent put during the s 150 hearing. There is a material distinction between submissions made by Counsel, albeit presumed to be on instructions, which are intended to best present a client's case, and evidence on oath or affirmation which a practitioner actually gives, and is cross-examined on. Moreover, we would not be assisted in resolving this controversy by adopting "that approach" having regard to the evidence of lay and expert witnesses who, unlike the Medical Council in a s 150 hearing, we have had the opportunity to see and hear cross-examined.
As submitted by Counsel for the Applicant (13), the Respondent has made a number of admissions which are consistent with the allegations made by Patient A. It is significant that the Respondent has candidly acknowledged that he does not clearly recollect a number of these conversations. Patient A has been clear, and consistent about what she alleges had been said, and was not shaken by courteous but searching cross-examination with respect to her allegations. The Agreed Facts also provide support for being comfortably satisfied that these allegations have been proved.
The Respondent submitted (8 March 2022, p9 38-46) that the Tribunal would not be comfortably satisfied that the allegations were established. The Respondent submitted (39) that the Applicant's reliance upon Patient A's having "repeated her recollection on two subsequent occasions" in support of the Tribunal's acceptance of those allegations involved "flawed reasoning". It was submitted, correctly, that, as has been recognised by Courts in proceedings governed by the rules of evidence "an inaccurate statement does not become more reliable just because it is repeated". It was thus submitted that "repeating the same allegation a number of times in succession initially weeks and then months after the fact to different people does not make it inherently more reliable".
We have earlier referred to s 60 of the Evidence Act, and the extent to which, if the Tribunal were bound to apply the rules of evidence, evidence of Patient A's complaints could be received as evidence of the truth of the matters alleged by her (Papakosmas v The Queen [1999] HCA 37; (1999) 198 CLR 297, R v Whyte [2006] NSWCCA 75, at [29]. In a case where one witness' recollections of conversations is admitted to be limited, or absent, it is relevant to determining this issue, that the other party to the conversations has been consistent in her recounting of material aspects of the conversations, which were first recorded soon after the conversations, and in circumstances where that witness has not been shown to have any reason to misspeak or misconstrue the truth.
In subsequent submissions (49-51) in support of that contention the Respondent submitted that: "If there is any difference of opinion on recollection as between Patient A and Dr Litchfield about what was said and why it may have been said, the Tribunal would be able to rely on the fact that Dr Litchfield has been able to set out his unchallenged state of mind, with some precision, such that the Tribunal could rely on his recollection, where he has such recall, as more likely being accurate in the circumstances." We struggle with that submission. We are not here concerned with matters of "opinion". The Respondent frankly conceded that he could not recall aspects of his conversations with Patient A. With respect to him, in those circumstances, the Respondent's state of mind, and genuine attempts in the witness box to more accurately recall the conversations do not militate against Patient A's version of the conversations.
As we have earlier recorded, Patient A recorded her recollection of disputed conversations within a relatively short time of the consultations in which they allegedly occurred. In his statement to the Medical Council (HCCC 1 Tab 17) dated 6 December 2019, the Respondent said (7) "I absolutely and categorically deny ever seeking any information from her or interaction with her of any kind that was inappropriate or improper". Whatever the Respondent believed when he made that statement, it is inconsistent with the admissions made by him which are recorded in the Agreed Facts, and with his statement in these proceedings (R1, Tab 1). Notwithstanding that statement, the Respondent also said (11) "I have carefully reviewed the complaint statement made by [Patient A]. I do not have a clear recollection of all our consultations or the matters that were discussed. I have refreshed my memory by looking at the notes I made at the time."
With respect to the Respondent, it is difficult to see from his clinical notes with respect to this consultation (HCCC 1 Tab 55 p22) how refreshing his memory by looking at the notes which he made at the time could have materially assisted the Respondent's recollection of events.
Counsel for the Respondent made a number of submissions (56-61) with respect to deficiencies in the evidence in support of the allegations and/or matters emerging from the evidence of the Respondent as to why Patient A's version of disputed events should not be preferred to that of the Respondent.
Under the heading "Issues with the accuracy of Patient A's recollection", Counsel for the Respondent advanced (62-73) a number of reasons why Patient A's evidence should not be preferred to that of the Respondent where the two were in conflict. It was submitted that there was a "frailty" of recollection by Patient A "not only as to the sequence of events, but the context in which things were said to have been raised by her and/or Dr Litchfield" which was "not to criticise the patient, but rather to draw to the Tribunal's attention matters which are relevant to an overall assessment of the accuracy of her recollection, including as to precise words used". We do not accept that any "frailty" attended Patient A's recollection of the substance of the disputed conversations. Without embellishment, or advocacy, Patient A was adamant in cross-examination that the Respondent said what she alleged he had said.
It was further submitted that Patient A's recollection of when "the issue of the Dr Schloeffel video and CFS was first raised" was contradicted by the Respondent's clinical notes (63). We do not perceive that Patient A's apparent error of recollection in that regard adversely impacts upon the reliability of her evidence with respect to the disputed conversations. As Patient A stated in her first statement (HCCC 1 Tab 4(b) p2), with respect to this consultation: "At this point I was happy that a doctor was finally going to look into my medical problems but thought the way he spoke to me was very strange and boundary-stepping for a Dr, but because he is a Dr, I thought maybe he was just kind of a strange personality type individual - he seemed to be very friendly so I second guessed my instincts. But my instincts were telling me something wasn't right, but because he is a Dr, I thought surely, he must be trustworthy and at that stage, I pushed my instincts aside because he said he was going to look into my many years of complex medical problems."
Patient A also then recorded (p8): "In the weeks following, the feeling of disgust and violation made me extremely nauseous and frustrated and angry and sad. My trust in GPs has now diminished even further than it already was - to the point that I'm not sure I will ever be able to really trust a GP again."
If Patient A's version of the disputed conversations is comfortably preferred to that of the Respondent, and her allegations of distress as a result of those conversations is accepted, it is unsurprising that there would be discrepancies or inconsistencies in her version of events with respect to other, less material or controversial matters. Her statement makes clear that Patient A gave the Respondent "the benefit of the doubt", and did not "jump" to conclusions about his conduct. Patient A was not challenged about that. As the authorities, and common sense have consistently recognised, inconsistencies in testimony do not necessarily indicate either an absence of veracity or reliability of recall. Similar observations apply to the contentions at paragraphs 65, 66 and 67 of the Respondent's submissions.
The Respondent further submitted (68) that, Patient A being "unable to recall exactly during which consultations the following incidents occurred", and saying that she was "extremely ill, I was very ill, I felt like I was dying" militated against acceptance of her version of events. We do not understand the Respondent's case to be that, because of illness, or any other medical or psychological condition, Patient A's evidence with respect to the substance of the disputed conversations was inaccurate or unreliable. Nothing to which we have been referred persuades us that any "illness" from which Patient A was suffering at the time materially or adversely impacted the reliability of her evidence.
It was submitted that there were "not cogent reasons for rejecting Dr Litchfield's recollection". We do not understand this submission to assert that there needed to be cogent reasons for rejecting the Respondent's version of events, and we do not, or need to in the circumstances of this case, reject the Respondent's version of events. As is not in doubt, this case involves the accuracy of the recollection of disputed events by the only two people who really know the truth about those events. Each remembers the disputed events differently. Neither Patient A's nor the Respondent's version of disputed events is inherently improbable. Nor is either person's version of events irresistibly probable. As the authorities direct, we must have regard to all of the evidence and, to the limited extent possible, evidence other than the statements by the disputants in evaluating the Applicant's Complaints, and determine whether the Applicant has established each element of its Complaints to our comfortable satisfaction.
As we have earlier recorded, we take into consideration the matters which the Respondent admitted, and his appropriately acknowledged absence of recollection with respect to other allegations. We also take into consideration that Patient A made her allegations within a reasonable time after the events which gave rise to them are alleged to have occurred, and has consistently reiterated her allegations in the terms which we have recorded.
In cross-examination (22 November 2021 p45 line 12), Patient A was asked about the Respondent's presentation, "by that I mean how he appeared to you". In her responses to the questions which followed, Patient A reiterated her earlier statements that the Respondent was "interested in my psychology and spends a lot of time talking about things that I was not there for" and that she "definitely was uncomfortable with that", and gave the Respondent "cues" which he did not pick up on to that effect. Patient A further referred to her becoming "increasingly uncomfortable and aware that things were not normal for a doctor to speak that way".
In response to the suggestion (p46, line 3) that as a consequence of being "so unwell, you are unable to recall the particular consultations when various things were said that you attribute to him?" Patient A said "Some I cannot recall the exact specific appointments, when. Other things I can. I was ill but I remember what happened". That evidence had the "ring of truth". In her answers to Counsel for the Respondent's courteous and close testing of her evidence, Patient A made appropriate concessions with respect to the accuracy of her recall in some respects. At no point was Patient A unresponsive to questions asked of her. Nor did she elaborate or embellish her answers. No motive for misspeaking the truth was suggested to Patient A during her cross-examination, or to the Tribunal in submissions on behalf of the Respondent. Patient A did not at any time attempt to advocate any cause, or say anything which implied that she was motivated to make her allegations for any ulterior purpose.
Patient A's cross-examination with respect to the disputed particulars (Transcript 22 November 2021 p48 and following) revealed (line 27): "Q. You refer to a suggestion of S&M at one point. A. Yes. Q. Could that have come up in the context of referring to your former husband rather than you? A. No. That was after he asked questions about my assault, "rapes" you could say, which is what I told him, I'd been raped, and he said - well, I said that after - I'll tell you the order it happened. He asked details about what had happened to me, and I told him. He said, "You must be into S&M, sadomasochism", and I said, "No, I'm not, I was raped". Q. You mentioned Dr Litchfield mentioning a documentary when you were walking out of the consultation. A. Yes. Q. At possibly the 28 June one, I think. A. Yes, perhaps it was. So I see he's made notes about where I've asserted where I was seeing other people to talk about my traumatic abuses, and as the appointment was ending, he said, "There's a video called 100 Vaginas, I think you should watch it", or something to that effect, "It would be good for you to watch it, which I felt was extremely abnormal."
Patient A was further asked (Transcript p49 line 6): "Q. Could you be mistaken about it being mentioned by him to you? A. Absolutely not, I'm not mistaken."
Patient A was then taken to paragraph 24 of her statement (HCCC 1 Tab 4 p6-7) and was reminded (line 23) that "Dr Litchfield does not recall asking those particular questions of you" and was asked: "Q. Could that be something that you had mentioned to him when he was asking you to give him specific details earlier on? A. No. He asked those very specific graphic details."
It was then suggested to Patient A that "Dr Litchfield does not believe that he would have said to you that "abusers can recognise empaths"" to which Patient A responded "He said that".
Patient A was cross-examined about her apparent absence of complaint to Drs Gourten and Barber on 2 August and 12 August 2019 respectively about her concerns with respect to the Respondent. Patient A conceded that she had not raised those matters with either of the doctors and said "I probably should have because my instincts were telling me something was not quite right, but he's a doctor so I, I trusted him at that point" with respect to Dr Gourten and with respect to Dr Barber that "There was a collective until I realised, put all the pieces together and I was increasingly becoming alarmed". The doctor-patient relationship involves a high level of trust on the part of the patient that the doctor will at all times act ethically, properly and in the interests of the health of the patient. It is unsurprising, and the common experience of the Tribunal in disciplinary proceedings involving medical practitioners, that patients do not readily or prematurely lose trust in medical practitioners. We are satisfied that this is what happened in this case.
Patient A was asked (p50 line 42): "Q. Do you accept that when you were trying to recall things that were being said, you were doing your best to try and remember the words that were used? A. Some things are very memorable. Some things, of, of course time goes past, you know, I can't remember exactly, exactly what was said, but I remember some things very specifically. Like, in half an hour's time I won't remember the exact words you've spoken. But there were things that were very outstanding that I remember clearly."
Not insignificantly, and properly, Counsel for the Respondent said to Patient A (line 50): "Q. Do you accept that in remembering those things, and I'm not trying to suggest that you're trying to mislead anyone or anything, but that you've gone with a particular colouring to how you look back at what was being said, so, for example, when he said something to you about looking fine or well, you say he said looking good, that you've given a particular interpretation to that after having looked at these things on the net and then talked to [Person T] about your concerns, do you accept that? A. No."
When it was suggested to Patient A (p51 line 15) that she was "drawing a conclusion" about what the Respondent said, Patient A replied: "A. Well, I know what was said to me. You know, I, obviously I had my, my perspective, just as everybody else does, but that was said and it was said long before I'd searched anything. I only searched his name because alarm bells were ringing very loudly and I knew something was not right. Q. Do you accept that you didn't mention anything about these searches in your complaint or in the statement? A. Yes, and that's because I didn't know it was him. Q. You've said in the document that it was confirmed to you sometime later by someone called [Person J]. A. Yeah, that was months later. [Person J] is at the HCCC. Q. After your complaint had been made? A. Yes, that's when I believed that it was the same person."
Save to the extent we have recorded, the passages cited above encapsulate the cross-examination of Patient A with respect to the disputed allegations pursuant to this complaint. We do not criticise Counsel for the Respondent for not traversing in minute detail, the particular allegations made by Patient A. In view of the Respondent's lack of recall, his Counsel could only test the evidence of Patient A to a limited extent, which Counsel did.
As the course of cross-examination, and Counsel for the Respondent's submissions make clear, the Respondent asserted that the evidence of Patient A was attended with sufficient uncertainty to preclude the Tribunal from being comfortably satisfied that her allegations are true. With respect to Counsel for the Respondent, we are not persuaded that Patient A's evidence lacks the certainty required to find this Particular proved.
In cross-examination (28 January 2022 p52 line 19), the Respondent was asked whether "it was Patient A's vulnerability and the fact that she had mental health issues that had caused her to make this complaint rather than your conduct being the cause of her making the complaint. Do you accept that that was Dr Lotz's position in part?". The Respondent replied "Well look if he said that it's not accurate". The Respondent was then asked: "Q. Is it something that you at the time that the complaint was made that you believed that it was the patient's fault that the complaint was being made rather than any conduct on your part? A. I don't, it's very hard to go back in time as to what, but I answered, I told the New South Wales Medical Council at the end of 2019 at the s150 that I was, that I didn't, truly didn't really understand at the time why the complaint was made. I know that doesn't, I'm trying to answer your question directly, does that answer it directly? Q. I'm exploring whether you in effect blame Patient A for the complaint Dr Litchfield, initially? A. And it were initially there may have been some tendency, yes."
In the course of answering a question with respect to Patient A's application to Centrelink the Respondent said (p52 line 49) "I also believe that I didn't see her vulnerability to anywhere near the extent that I ought to have but at the same time there are reasons that she may have appeared to be more resilient than she actually was, so I'm not going to go into that".
The Respondent confirmed (p55 line 35-38) that he had "resolved any" concerns that Patient A was "delusional" before 23 August 2019.
The Respondent was closely cross-examined with respect to the consultation on 28 June 2019 (Transcript p57 line 19). In the course of questions with respect to that consultation the Respondent accepted "in hindsight" that "Patient A did not demonstrate any readiness to talk about these issues but responded to your questioning of her about them" (p57 lines 39-43). The Respondent provided detail (p58) of the respects in which it was "naïve" of him to "quiz" Patient A further in relation to her PTSD.
The Respondent was cross-examined probingly, but courteously, with respect to specific allegations made by Patient A with respect to the consultation on 28 June 2019 (Transcript p62). In the course of that cross-examination, the Respondent either stated that he could not recall Patient A having said things suggested to him during the consultation, or agreed that he thought he had asked some of the questions suggested to him and that Patient A had said things in the terms, or to the effect of Patient A's assertions. In evaluating this particular, those admissions are significant.
The Respondent agreed that he had commented on the earrings which Patient A was then wearing. That evidence, as the Tribunal suggested at the time an objection was taken to questions about it, arose out of, and gave context to, the disputed allegations. The Tribunal perceives it to be permissible, in the pursuit of the truth, to have regard to all of the circumstances surrounding the consultation which gives rise to the disputed particulars, without them necessarily being the subject of a specific complaint. In Martin v Osborne [1936] HCA 23; 55 CLR 367, the High Court held, at [7] that evidence of "facts and matters which form constituent parts or ingredients of the transaction itself or make intelligible the course of conduct pursued" was admissible, and relevant to the decision-maker obtaining a "real appreciation" of the events in question. Taking that evidence into consideration is also consistent with the authorities to which we have earlier referred.
The Respondent was asked (Transcript p65 line 50): "Q. Is it possible that you had read an article about the documentary [100 Vaginas] and that was why you discussed it with Patient A? A. Well I believe if I - well number 1, I actually didn't deny it in my statement, I said I simply do not recall any knowledge of the title at that time, not suggesting Patient A watch the documentary. It's not a complete - not a complete denial."
The Respondent further stated with respect to his denial of the allegation with respect to the documentary (p66 line 23): "Okay, well I qualified that denial by saying I simply didn't recall and the point is that I've never watched it and, you know, there's other ways I suppose to hear about things but certainly I never read anything about it and I've just got no recollection whatsoever of making some stupid off the cuff remark as she was going out the door, what in hindsight is not a sensible remark if such a thing was ever said in hindsight."
The Respondent did not agree with the "possibility" that he said what Patient A alleged about the documentary, notwithstanding that he reiterated that he had "no recollection of making any comment whatsoever" about it.
The "progress note allied health" made by Patient A's sexual assault counsellor Bethaney Keen (HCCC 1 Tab 10B) dated 28 August 2019, recorded that Patient A was feeling "sick" and "anxious" "following multiple occasions of sexual harassment perpetrated by the A/O, a GP at Kennedy Drive Medical Centre". The note further recorded that Patient A would "not report to the police at the current time, as continuing to be physically very unwell". The note also recorded Patient A reporting that "she had trusted this GP with her medical care, and spoke briefly with him regarding her past experience of trauma … this GP continually questioned her regarding her ex-husband's SA's, stating inappropriate comments such as "You must have been compliant with the abuse"; "You must be into S&M"; "It is a waste that you are single"". We have earlier recorded how we have taken Patient A's prior statements into consideration.
We are reluctant to rely upon the demeanour of Patient A or the Respondent when evaluating disputed issues of fact, and do not need to in any event. The evidence of a number of witnesses with respect to aspects of the Respondent's personality is relevant to our evaluation of this and other particulars of Complaint 1.
Dr Lawrence Kelly provided a statement to the Medical Council of New South Wales on 29 December 2019 (HCCC 1 Tab 23). Dr Kelly was the Respondent's supervisor from January 2017 until the suspension of his registration. In his report Dr Kelly said the Respondent was "extremely committed as a General Practitioner and tends to spend more time extracting detailed history and managing problems than most GPs".
Dr Kelly subsequently provided character evidence for the Respondent on 26 November 2020 (R1 Tab 37) and 18 August 2021 (R1 Tab 26) which do not assume relevance for present purposes. Dr Kelly was cross-examined on 24 and 25 November 2021. In cross-examination on 25 November 2021 (Transcript p17 line 13), Dr Kelly was referred to a comment made by him in the course of dealing with a difficulty which arose at the Kennedy Drive After Hours Practice of which Dr Kelly was the Principal in 2018. Dr Kelly recorded in that context that the Respondent's "comments are such that individuals feel that he intruded on their "personal space" and made them feel uncomfortable. They also commented that he seems to ask a lot of personal questions to the point that they become quite annoyed". Dr Kelly confirmed that the "comments were valid" and he counselled the Respondent "not to contact or engage the staff under any circumstances on any matter at all unless it was for a professional basis". The Respondent "complied" with that request. Dr Kelly added that "certainly the staff were very annoyed and concerned by his behaviours of, you know, standing round at the desk when they were busy to do their work and, you know, asking questions when they were busy doing other things and, and I can understand how it would have annoyed them greatly".
In response to an answer to a question from the Tribunal (Transcript 25 November 2021 p24 line 29) Dr Kelly said: "I have at times over the years been, you know, fairly dogmatic with Dr Litchfield and I'll just tell him, you know, over and over again that, you know, he's got to stop talking and to just listen, make an occasional comment but he has almost a pressure of, of need to engage and I don't think it's - in the general context for most patients this is not a, a major problem, they love to engage doctors who want to engage them back and - but I think that the, the, the problems that arose with staff, the problems that, you know - or, you know, potential problems with colleagues occurred because … Dr Litchfield seemed to have a pressure of needing to engage and, and persistent engagement even after you, you may be busy with other things and you wish to terminate the engagement, he, he would have a tendency to continue on in the engagement."
Dr Kelly reiterated his earlier evidence that he perceived the Respondent to have "responded well" to his "blunt and dogmatic advice to him".
In response to other questions from the Tribunal (Transcript 25 November 2021 p27 line 40) with respect to his description of the Respondent's "intense engagement", Dr Kelly referred to the Respondent having been "very engaging" with patients which was appreciated by many patients seen by the Respondent.
In further cross-examination by leave (Transcript 25 November 2021 p28 line 43), Dr Kelly was asked whether "communication" was one of the specific matters which he was to address with the Respondent as his supervisor, to which Dr Kelly replied "yes".
Dr Trevor Lotz is a Consultant Psychiatrist who has been treating the Respondent since January 2020. Dr Lotz prepared a report on 18 May 2020 (HCCC 1 Tab 29). In his report Dr Lotz identified (p2) the 11 traits associated with autism spectrum disorder (ASD) or, as Dr Lotz referred to it, "Asperger's". Dr Lotz observed that "throughout the complainant's report, there is evidence of all of the above traits. Dr Litchfield asked questions related to her abuse, and when (Patient A) was reluctant to discuss her past, he persisted, not being aware of the social limitations, and the discomfort experienced by (Patient A)."
Dr Lotz further referred (p3) to the Respondent as having "classic features of Asperger's, including difficulties with boundaries, misinterpreting social cues, empathy, and is overinclusive in his questioning as a general practitioner to satisfy his own need for detail".
Dr Lotz prepared a further report on 23 August 2021 (R1 Tab 10). In that report, Dr Lotz reiterated (p2) that, in his first encounter with the Respondent his "conversation was overinclusive, circumstantial, and inappropriate in as much as he insisted on giving me information which was unnecessary and could not pick up on cues to conclude the call despite my attempts to end the conversation". Such "qualities" were considered by Dr Lotz to be "prevalent in patients who are on the spectrum".
Dr Lotz further recorded (p3) that the Respondent "has struggled with the issues of Asperger's, and has described being overinvolved with detailed questioning to his patients".
Dr Lotz was of the opinion that "as a sufferer of Asperger's, he had issues with boundaries, such as enquiring in detail of his patients' background and personal issues".
Dr Lotz was cross-examined on 27 January 2022. In the course of that cross-examination (Transcript p49 line 33) Dr Lotz was asked: "When you say that they are questions that can be construed as a boundary violation, do you accept that it is the role of a general practitioner, or any medical practitioner, to ensure that boundaries are not violated?" Dr Lotz replied: "That's a tricky question … it depends on the vulnerability of the patient. Some patients welcome a lot of … (not transcribable) … and a lot of what other people might consider as intrusive … (break in recording) … or too personal. So far as the role of the general practitioner go, in getting a whole … (break in recording) … in trying to understand the patient is very important. Where the boundary and where … (break in recording) … my point is that with Asperger's they don't really know where the boundary is and often may ask questions, and we talked about the … (break in recording) … that may be more the role of a therapist than a general practitioner."
Dr Lotz was then asked (p50 line 3): "What I am exploring specifically though, Dr Lotz, is whose responsibility is that? And what I'm suggesting is that irrespective of the vulnerability of the patient is the doctor's responsibility to maintain appropriate boundaries?" Dr Lotz replied "Yes that's correct."
Dr Lotz was then asked: "And to the extent that Dr Litchfield has autism spectrum has disorder that disorder unmanaged in the first instance contributes to his inability at times to manage those boundaries, is that right?" Dr Lotz replied "Correct, correct."
Dr Lotz was asked (Transcript p52 line 24): "Is it your belief that Dr Litchfield [sic] autism spectrum disorder prevented him from identifying any cues that she (Patient A) might have given in relation to her not being comfortable with these questions?" Dr Lotz replied "Correct".
Dr Lotz was then asked whether that was the "case" despite the extent to which Dr Litchfield was aware of his issues, as previously detailed in questions to Dr Lotz "that he just could not still pick up on social cues?", to which Dr Lotz replied "Correct".
Dr Elizabeth Adams is a Clinical Psychologist who has been treating the Respondent since November 2019. On 7 May 2020 (HCCC 1 Tab 30) Dr Adams prepared a report in relation to the Respondent. Dr Adams considered (p3) that the Respondent "does not meet criteria according to the DSM 5 for autistic spectrum disorder but does demonstrate several of the characteristics seen in adults with Asperger's Syndrome, particularly in relation to social situation abnormalities".
Dr Adams identified (p3) 7 of the "challenges" which were: "characteristic of the impaired theory of mind of adults described by Asperger's Syndrome as being present in the Respondent. They were: 1 Difficulties reading social cues and the messages is someone's eyes. 2 A tendency to make a literal interpretation of what someone says. 3 A tendency to be considered disrespectful and rude. 4 Remarkable honesty. 5 A different form of introspection and self-consciousness. 6 Problems knowing when something may cause embarrassment. 7 A longer time to process social information, due to using intelligence rather than intuition."
Based on her interviews with him, Dr Adams considered that: "Having had no training in domestic and family violence or trauma therapy, it had not previously (prior to 2019) occurred to Dr Litchfield the distress and sense of disempowerment that could be caused to a survivor of abuse by the style of questioning he had employed".
Dr Adams further said (p4) that persons "described by Asperger's Syndrome" typically tend to "focus attention excessively on topics of special interest, to the point of being almost oblivious of external cues, such as the discomfort or embarrassment of others, and that it is time to move on or switch topics of conversation" and by "their brutal honesty and allegiance to the truth at the expense of people's feelings". Dr Adams was of the opinion that the Respondent "became fixated by exploring the patient's history of abuse leading to PTSD and the possible connection with Chronic Fatigue Syndrome" and "inappropriately asked questions" which "displayed an unfortunate level of insensitivity but were not intentionally predatory or salacious, as it might first appear".
The latter observation is consistent with the evidence of all health professionals who have given evidence in these proceedings and does not impact upon our consideration of this or any other particular of this Complaint, it being common ground that it is not necessary, for the conduct of the Respondent to constitute unsatisfactory professional conduct, that he have that, or any particular intention.
Under the heading "Conclusion" (p5) Dr Adams recorded that the Respondent "has been observed missing social cues, becoming loquacious by overtalking in his anxiety to get something "right"". Dr Adams further observed that the Respondent "can become overzealous and irritatingly persistent with his questioning".
Dr Adams was cross-examined on 25 November 2021. In the course of her cross-examination (Transcript p42) Dr Adams was asked (line 27) "What is it that caused the boundary to be blurred in Dr Litchfield's case?" Dr Adams replied: "So it is that obsessiveness to get the bare bones of the thing, to really drill down and find the answer. And sometimes that obsession to find the answer, to get the detail, will take that person across a boundary. The boundary will appear not to be important as finding the information or making the information clear."
Dr Adams clarified that the "desire to get to the bottom of something", and "obsession or trait" is "a trait of Asperger's, of wanting to find the answer, of getting the details … it's an obsessive behaviour".
Dr Adams also added (p43 line 20) that the Respondent "does have difficulty finishing" asking questions of someone with whom he is having a conversation.
In response to a question from the Tribunal (Transcript p56 line 36) Dr Adams said: "What we are looking at here is a particular kind, with a very high functioning, intelligent person. And I think he was really drawn into the whole situation and was trying to get his head around the whole situation and yes, it was completely inappropriate".
In response to another question from the Tribunal (Transcript p57 line 25) Dr Adams referred to the Respondent's need to "filter what he says, because he's been operating without a filter".
Dr Anthony Samuels is a Consultant Psychiatrist who prepared a report with respect to the Respondent on 2 March 2021 (HCCC 1 Tab 43). In the course of his report, and based on his interactions with him, Dr Samuels said (p29) that the Respondent's speech was "extremely circumstantial, overinclusive, discursive and difficult to distract", and that his "obsessionality was evident", for reasons which Dr Samuels recorded.
Dr Samuels prepared a subsequent report on 17 June 2021 (HCCC 1 Tab 44). That report did not further engage with the matters to which we have referred which emerge from Dr Samuels' first report.
Having been provided with further documents which have been filed in the proceedings, Dr Samuels prepared a further report on 29 October 2021 (HCCC 1 Tab 57). In the course of that report Dr Samuels recorded (p7) that he considered the Respondent to have "some autistic spectrum traits which impact upon his clinical thinking and judgement, his ability to prioritise the hierarchy of diagnostic issues and to become overinvolved and preoccupied with aspects of the presentation and he undoubtedly has problems with social interactions in terms of reciprocal communication and responding to social cues", noting with respect to Patient A that he thought the Respondent was "genuinely curious about her health issues".
In an email of 21 November 2021 (Exhibit H which was by agreement placed behind HCCC 1 Tab 56), Dr Samuels recorded that his opinion had "firmed up in a few areas". Nothing there recorded adds to or detracts from anything which Dr Samuels had previously recorded in his reports.
In cross-examination (Transcript 23 November 2021 p31 line 43) Dr Samuels said: "I think that the, his autistic personality traits are certainly a factor in his clumsy, inappropriate interactions with that patient, and perhaps other patients, but whether it, it totally accounts for this for his, his I'm less certain at this point".
Dr Samuels was then reminded of the statement in his report (at paragraph 249) that the Respondent "finds it hard to focus on the bigger picture and gets caught up in the minutiae of clinical interactions". Dr Samuels was then asked (Transcript p32 line 6) whether he would "agree with the proposition that he can engage in obsessive questioning about a subject that he is interested in?" to which Dr Samuels replied: "Yes, I think he can go down a rabbit hole and get very preoccupied with certain issues and tenaciously pursue them. I think that's true. And certainly my experience in interviewing him was it's hard to get him to change tack, or to move him on for a particular think. He is quite rigid and inflexible."
Dr Samuels was also referred to the statement in his report that the Respondent was "often impulsive and says things which can be detrimental or hurtful to others or offensive" which Dr Samuels clarified was based on reports of Dr Adams. Dr Samuels referred to his "brief sort of noting him having an interaction with my own staff" during which the Respondent "referred to Dr Samuels' staff "inappropriately" by saying "goodbye girls" or words to that effect." Dr Samuels regarded the Respondent doing so as "just slightly inappropriate" and that his staff "certainly noted that that was a bit odd", not offensive or hurtful, but "ill-considered in the circumstances where he has been referred to me because of these problems".
In the course of further cross-examination (Transcript p33 line 5) it was suggested to Dr Samuels that the Respondent was someone who on occasions "has said something which is unfiltered, or in other words, they're thinking out loud, as it were. They're verbalising something they may be thinking. They're not recognising that you might have some thought but keep it to yourself?". Dr Samuels agreed with that proposition.
Dr Samuels was asked whether the Respondent asking "further inappropriate questions" was consistent with the Respondent's "personality style" (Transcript p34 line 48), a proposition with which Dr Samuels agreed.
It was put to Dr Samuels (Transcript p35 line 21) that it was "consistent with, the asking of these additional questions, even to the point of specifically asking, as the patient alleges, about how many abusers there were or whether the husband was present, or whatever the precise nature of those questions were, that is consistent with that over attention to detail?", to which Dr Samuels replied "I think you're correct, yes".
Dr Samuels added that it may be "part" of the Respondent's personality "To want to have all this information, but he, he does have enough experience, or should have enough experience, to know what is appropriate in the context and not" (Transcript p35 line 38).
Professor Morris is a Consultant Psychiatrist who prepared a report in support of the Respondent's case on 31 August 2021 (R1 Tab 5). In his report (p2) Professor Morris recorded his conclusion that the Respondent: "does have a personality style characterised by obsessional traits, rigid inflexible responses, difficulties interpreting social cues, impulsive verbal reactions, insensitivity to emotional distress, an over familiar personal style, and difficulties keeping clear social boundaries."
Professor Morris further recorded (p3) that the Respondent's "impairment" relates to: "how his unusual personality and style of communication gives rise to obsessional questioning, inflexible attitudes, a focus on the particular rather than seeing the whole of the clinical picture, difficulty in recognising non-verbal communications, problems with fine tuned empathic responses to emotional distress, difficulties in maintaining social boundaries, and impulsive comments that can be well meant but are interpreted as inappropriate or intrusive. These personality and communication characteristics can result in his interactions with patients being seen as intrusive, impolite, badgering and inappropriate."
In cross-examination (24 November 2021 p25 line 29) Professor Morris was informed that the Respondent had admitted saying to Patient A words to the effect of "In all those 4 years you did not put your hand up to stop it" with respect to Patient A's sexual assaults by her ex-husband. Professor Morris agreed that was "certainly inappropriate" and "fits within a description that I have given in my report about his personality style".
Professor Morris agreed (p26 line 5) that saying to Patient A "Your son has half his father's DNA" was "off tangent" and "reflects his difficulty in sort of containing himself to the big picture. He gets involved in all these details with certain types of patients, and she was one of them".
Dr Cristopher Lennings, a Consultant Psychologist, prepared a report in support of the Respondent's case on 17 August 2021 (R1 Tab 3). In his report (p11 paragraph 40), in analysing the Respondent's performance on the NEO Personality Inventory, Dr Lennings recorded his view that the Respondent "over intellectualises and this underpins his ineffective coping systems".
By reference to his "clinical assessment of autism", Dr Lennings recorded (p13 paragraph 47) that the Respondent had a "strong attachment to or preoccupation in unusual objects". Dr Lennings recorded (p25 paragraph 82) that the Respondent was "aware that he acted in a way that impacted negatively upon the client" and that: "while he cavils with some of the allegations that are made, some of which he claims are either problems in recall (either his or the patient's) and others distortions of what took place, he recognises that his behaviour in that particular complaint was affected by a failure to truly understand psychological dimensions of the client's presentation. He attributes this failure to a personality flaw that like to find the detail and explore the complexity of issues. He recognises that in that circumstance he acted in a way that was contrary to the client's interests."
Dr Lennings further recorded (p26 paragraph 90) that: "Where the concerns lie is his awareness in the moment when a client piques his curiosity and his interest in psychological issues and his awareness of when he should hold back from exploring that".
Dr Lennings recorded his opinion (p27 paragraph 93) that the Respondent: "has some rigidity and obsessiveness in his personality, and these have caused problems for him as reflected in the 2019 matter and indeed as witnessed in the somewhat convoluted and painstaking way he seeks to explain himself. He habitually appears to get lost at times in his own thinking in forensic environments such as Tribunal hearings and in responding to psychologists or psychiatrists who are undertaking medicolegal assessments of him."
Dr Lennings said (Transcript 25 November 2021 p67 line 9) that, based on his consultations with the Respondent "three times for a total of four hours" he thought what "actually happened" during the Respondent's consultation with Patient A was that: "He got triggered in terms of investigative interviewing with the patient and then when he became more aware of the vulnerabilities, he had a rather ham fisted attempt to try and increase her self-esteem. And I think those two things together created what appears to have been a fairly distorted intervention with this particular patient."
In cross-examination (Transcript 26 November 2021 p6 line 23) Dr Lennings clarified that the Respondent "acted in a way that was contrary because of his failure to, in a sense, his preference for finding complexity in things". Dr Lennings further explained (p6 line 42) that "The investigative element of his [the Respondent] then triggered his interest in exploring further the issues that being the PTSD and the cause of the PTSD" and that a "particular confluence of events" led the Respondent to "being triggered that ended up with him then exploring in an appropriate way some of the psychological issues for this particular client".
Dr Lennings described the Respondent (Transcript 26 November 2021 p10 line 11) as "a person who has an awareness that he at times exercised poor communication competence and can get rather obsessive". Dr Lennings was asked (p10 line 42) whether it was his assessment of the Respondent that "he still has less awareness of boundaries in the form of conversation. Is that attributable to the ASD traits that you identified?" To which Dr Lennings replied: "Yes. I think that is part of it. I think that when he's reflecting and thoughtful and is really cued into what's going on, he's able to work out what he's doing but I think people fall back on usual habits and patterns of behaviour and so some of that, the ASD traits, there's Part A of the ASD traits which are those essentially social cues, communication issues."
Dr Lennings described (Transcript p11 line 33) the Respondent's "insistent questioning" which he saw "not so much [as] his interest in psychology but his interest in verifying the account" given by Patient A.
Person H is employed at the [medical practice] and has known the Respondent since about January 2017. Person H made a statement in support of the Respondent's case (R1 Tab 20). In her statement (p1) Person H said that, in her experience of him, the Respondent was "prone to repetitive conversations, though his manner and approach is always calm and attentive", the wording and manner of address expressed in the complaints against the Respondent being "very much at odds with the Dr Litchfield I am familiar with". Person H further referred to the Respondent's "struggles to be understood and fit in".
In cross-examination (Transcript 26 November 2021 p24 line 24) Person H was asked about a "big issue" involving the staff at the practice during 2017. Person H believed that it was "around September 2017 that the issues really started to escalate into a problem". Asked whether "In terms of verbal communications you managed Dr Litchfield to your satisfaction after that first month or two" (p24 line 36), Person H said, "I believe I learned to be more direct with him but I did still struggle with him for some time after he - obviously his behaviours are very ingrained and he's - and I was responsible for his compliance which made the situation somewhat more difficult because he was obviously very fixated on that compliance and so, you know, he'd often ask me 20 or 30 times the same thing." Person H clarified that the issues related to the Respondent's work roster.
Person H further said (p25 line 3) that by the time matters came to a head in 2017 "I think we were all pretty on the brink of insanity with just the repetitive nature of how he was" in his communications with members of the practice. Person H further said (p25 line 19) that she "obviously recognised that there was something a bit odd with him and that repetitive nature is - you know, it can be quite common … he wouldn't let it go until it was satisfied as to how legally it had to be".
Person S, who worked with the Respondent at the after hours medical service from 2017 provided a statement in support of the Respondent's case (R1 Tab 32). In her statement Person S referred to finding the Respondent "overbearing and difficult to work with" in January 2017, with "communication and interpersonal skills" which were "to say the least very poor". Person S said that she felt that the Respondent "lacked insight into his behaviour towards his colleagues. He could not or would not listen to advice that was given regarding the running of an after hours practice. He would badger people if he didn't get the answer that he thought was the correct one".
Person S referred to the Respondent's "odd behaviour" and its consequences. In more recent times Person S found the Respondent to be "overenthusiastic" and that he "wanted to please everyone all the time".
Although the medical professionals do not entirely agree with respect to whether the Respondent is properly diagnosed as having ASD, the evidence to which we have referred reveals almost total agreement between them with respect to aspects of the Respondent's personality. The experience of lay witnesses relied upon by the Respondent is consistent with the experts' opinions. The Tribunal accepts the evidence of each of the medical and lay witnesses to whom we have referred. That evidence provides cogent and logical support for finding that the Respondent is likely to have made the comments which Patient A alleged that he made during the consultations which gave rise to her complaints.
To the extent that the evidence to which we have referred is evidence of the "character" of the Respondent which could establish that he "had a tendency…to act in a particular way" which could offend s 97 of the Evidence Act if the Tribunal were bound by the rules of evidence, we are comfortable to rely upon it, in circumstances where notice of the intention to adduce the evidence in chief of each witness was given, and the evidence has significant probative value having regard to other evidence which has been adduced by the Respondent, or is evidence of events or conversations at which he was present.
In AW v The Queen [2009] NSWCCA 1, the Court of Criminal Appeal held that to have significant probative value, evidence of tendency, or propensity "must be meaningful in the context of the issues at trial. The provision is concerned with the qualitative aspects of the evidence, not quantitative ones…It must be more than merely relevant, but may be less than substantially so…The question for the trial judge was whether the evidence was important in establishing the facts in issue". Were it necessary, we would be satisfied that the evidence of the character of the Respondent satisfies those criteria.
The Respondent's evidence before the Tribunal, during his time in the witness box in cross-examination is consistent with the expert and lay evidence, and supports the Tribunal being comfortably satisfied that Patient A's version of the disputed conversations alleged pursuant to this particular are established.
A reading of the Respondent's answers during his necessarily lengthy cross-examination is consistent with each of the observations of the witnesses to which we have referred. Given our assessment of the credibility of the Respondent, and the expert statements with respect to his "brutal honesty", our finding is not dependent upon disbelieving what the Respondent says but, rather, to the probability that, without realising that he had, the Respondent said the things alleged by Patient A.
In cross-examination (Transcript 28 January 2022 p27) the Respondent acknowledged that in 2011 he had accepted that he had "poor communication skills", "insensitivity", and a "tendency to be obsessional".
The Respondent's answers to questions from the Tribunal (Transcript 28 January 2022 p31 line 19 - p35 line 7) are also consistent with the observations of the Respondent's personality emerging from the evidence to which we have earlier referred. The Respondent's admissions, albeit to a considerable extent with the benefit of "hindsight", with respect to the consultation with Patient A (Transcript 28 January 2022 p57 line 6 - p59 line 6), that he was "surprised at my own naivety in stepping forward to enquire further at the second consultation instead of stepping back", and admissions with respect to what he could not recall having said but possibly did say during the consultations (Transcript 28 January 2022 p61 line 20, p73 line 30) provide further support for being comfortably satisfied that the Patient A's allegations have been proved to the requisite standard.
Under the heading "Dr Litchfield as a witness", Counsel for the Applicant submitted (Submissions 31 January 2022 p19 para 53 - p21 para 59) that the Respondent's evidence suggested that his "interactions with Patient A were learnt, rather than organic, and when presented with a document that he had not seen or had forgotten (such as the August 2019 DSP Certificate) Dr Litchfield seemed unable to place the document in his "scenario"."
It was further submitted (53) that the Respondent was "non-responsive to some questions to the point that the Presiding Member reminded him of the benefits of answering the questions asked of him". Whilst that submission is literally correct, for the reasons we have earlier recorded, and have relied upon in making findings with respect to other disputed particulars, we consider the significance of the Respondent's non-responsive answers as being supportive of the probability that, as a result of his "need to know" far more than he now admits that he needed to, the Respondent is likely to have made the comments to Patient A which give rise to this and other complaints.
As also earlier recorded, we do not consider the expansive, at times non-responsive and volunteered information given by the Respondent in cross-examination indicate a lack of candour. If anything, we consider that those features of the Respondent's evidence reveal an excess of candour, albeit unhelpfully for the Respondent in the evaluation of the probability that he made the statements which Patient A asserts, and he disputes.
It was further submitted (56) that, throughout the s 150 proceedings and the current proceedings the Respondent had "engaged in a degree of victim blaming", at various times blaming Patient A for being "oversensitive", claiming that her complaint "may have been triggered by a sense of rejection and a possible personality disorder", blaming Patient A's counsellor for "influencing her against him" and believing that the s 150 Decision was "overshadowed by his past problems".
The Applicant relied upon statements made by the Respondent during the s 150 hearing which were asserted to have involved "various statements blaming Patient A", including that "she's had an inability to communicate her discomfort to me … she didn't give me any feedback to show that she was at all vulnerable … she was wanting me to sign off (the DSP)", and claiming that he "felt a little bit pressured by her", and stating that he was "evidently part of her plan to support her for the Disability Support Pension".
Those submissions have force. His prior statements reflect no credit on the Respondent, and are supportive of finding Patient A's allegations established. Those statements by the Respondent are not inconsistent with what emerges from the evidence to which we have earlier referred.
The absence of reason to discount the evidence of Patient A, the extent to which the Respondent, at least tacitly, acknowledged that he could have made the statements alleged by Patient A, and the expert and lay evidence with respect to the Respondent's personality, rendering it more probable than not that he did say those things, leave us comfortably satisfied that the allegations made pursuant to this particular have been proved to the requisite standard.
Dr Golding said with respect to the conduct alleged in support of this Particular (HCCC 1, Tab 13, p3) that he could "think of no possible explanation to justify a recommendation to watch the documentary entitled '100 vaginas' during a clinical interaction where professional distance should be maintained", and that doing so contravened s 8.2.1 of the Code of Conduct, which provided that "good medical practice" required "maintaining professional boundaries". Dr Golding was of the opinion that the Respondent's comments had the "potential to exacerbate the PTSD that Dr Litchfield was aware that (Patient A) experienced because of sexual abuse".
Dr Golding said with respect to Particular 2.a (HCCC 1, Tab 13, p4) that the Respondent's comments with respect to Patient A's failure to "put her hand up" to stop her alleged sexual assaults were unjustified, offended the requirements of s 2.4.2 of the Code of conduct with respect to "prejudicing a patient's care" by believing that the patient's behaviour has contributed to her condition, and of s 3.2.1 of the Code of Conduct, which requires a "courteous, respectful compassionate and honest" doctor-patient partnership.
Dr Golding said that there did not appear to be any justification for the Respondent's comments, and that, "if he felt that a comment about these events was warranted, it should have been without any blame, be empathic and affirming". Dr Golding thus considered that the Respondent's conduct fell significantly below the requisite standard.
Dr Golding was critical (HCCC 1, Tab 13, p4-5) of the Respondent's comments with respect to Patient A being "into S & M, sadomasochism", which he considered fell significantly below the requisite standard, being neither "therapeutic or positive", and in breach of the requirement of s 2.2.7 of the Code of Conduct to take steps to "alleviate patient symptoms and distress, whether or not a cure is possible", the requirements of s 2.4.1 to treat patients with "respect at all times", and of s 2.2.12 to ensure that a doctor's "personal views do not adversely affect the care of your patient".
Cross-examination of Dr Golding did not reveal any basis for rejecting his expert opinions, either by reference to his qualifications and experience, or his reasoning, although, as he clearly acknowledged in his written and oral evidence, Dr Golding did not know whether the alleged comments were made.
We are comfortably satisfied that this particular has been made out, and that the respondent is guilty of unsatisfactory professional conduct.

Particular 3

Particular 3 alleged that, during consultations between about 3 July 2019 and 23 August 2019 the Respondent said to Patient A: 1. "I highly recommend you don't talk about your abuse to anyone else"; 2. advising Patient A "You should be dating or intimate with men again" and "You should try dating sites"; 3. telling Patient A that "Considering the type of man you are attracted to, you'll probably end up in trouble again".
By his Reply, the Respondent denied the first and third of these allegations but did not admit the second "as framed". We treat the latter plea as a denial.
It is convenient to deal with the alternative (particular 3A) when dealing with this particular. Particular 3A alleged that: "(a) the Respondent engaged in a brief discussion with Patient A that dating sites seemed to make it easier to meet new people; and (b) said to Patient A words to the effect of "be careful about your choices if you're pursuing a new relationship. You do not need any further trouble"."
By his Reply, the Respondent admitted the particulars of this complaint. The Respondent set out in his statement his version of the events alleged in each of these particulars.
In her statement of 15 October 2019 (Tab 4B), Patient A said (p3) that "During the last few appointments with Dr L, I was very ill and so I cannot recall exactly, during which appointment each of the following things occurred." After stating that the Respondent "insisted several times that he could tell that I am very trusting and an empath" Patient A asserted that the Respondent said "I highly recommend that you don't talk about your abuse to anyone else" and "also said on a few occasions that I should be dating or intimate with men again", to which she responded "every time" that "I am not interested in seeing anyone & that I do not want to get involved with anyone in any way".
Patient A said that the Respondent "suggested maybe I should try dating sites", to which she again replied "No - I am not interested in being involved with anyone in any way at this point in my life", and that this "was becoming very upsetting for me and I knew there was definitely something not right".
Patient A alleged that the Respondent then said "That's probably a good idea considering the type of man you are attracted to - you'll probably end up getting in trouble again."
The clinical notes of Patient A's psychologist dated 27 August 2019 (HCCC 1 Tab 4A) provide some support for Patient A having complained at that time about the matters alleged in this particular. The notes record Patient A reporting that the Respondent told her that "she should try dating sites", that "the target knows how to pick their victims", that "some people like to have casual encounters", that she "should see someone", referring to "the men you go for", and that "there must be something about you that caused these situations to happen".
In her statement (20 March 2022 Tab 4 p25 para 19) Patient A reiterated, in substantially the same terms, her earlier allegations. For the reasons we have recorded earlier with respect to the significance of Patient A's prior consistent statements, and in the circumstances which we there identified, the fact that Patient A made complaints in terms similar to those alleged in particulars 3(b) and 3(c) is in our view supportive of preferring Patient A's version of disputed events to that of the Respondent, without needing to treat the evidence as truth of the matters alleged by Patient A.
Counsel for the Applicant submitted (Submissions 31 January 2022 p4 para 16) that the matters admitted by the Respondent pursuant to particular 3A "sufficiently disclosed Dr Litchfield engaging in inappropriate boundary crossing with Patient A" and "go so far along the road to confirming Patient A's versions to be confirmatory of her version".
The Respondent said with respect to particular 3A (R1 Tab 1 p11 para 60): "I strenuously deny particular 3(a) that I recommended Patient A not talk about her assaults with anyone else. I do recall querying whether or not talking to others helped Patient A. Patient A told me that she had told all the doctors that she had seen at the practice about it and it had taken a long time for her to talk about her past and it was only recently that she was more comfortable to do so. I recollect questioning whether talking to others was helping Patient A but never recommended she did not."
The Respondent said: "61 I do not admit particular 3(b) as I do not recall the exact words I used. I hardly ever use the word "should" and do not believe that I did on this occasion but could have used the word "could" and I do not believe I said "be intimate with men again". Patient A had told me she had had another relationship since separating from her ex-husband but it had not worked out. That was a separate conversation. There was a brief discussion that dating sites seem to make it easier to meet new people in these modern times. I am not now certain who initiated the discussion but it was discussed in a general context rather than a personal one as a common and well accepted new way to meet people. Patient A did not seem disturbed about it at the time. I recall that I was concerned about Patient A's social isolation and I did think at the time that a new and healthy relationship might provide support and help Patient A heal the stress of the past. Expressing such I now recognise as inappropriate and am sincerely apologetic about any discussion regarding dating sites and expressing any views on whether a new relationship might help. This was not appropriate. I see this again as an inappropriate personal belief that ought not to have been expressed to Patient A. 62 With respect to particular 3(c), I strenuously deny making any comment on the type of man that Patient A may be attracted to, I do recall saying something along the lines that it would be wise to be careful and mindful of Patient A's choices if pursuing a further relationship. I recall discussing that Patient A's studies in psychology ought to be able to help her in that regard. I now fully appreciate that I should have been more aware and sensitive to how this discussion may have come across despite my intentions of having a supportive conversation. In relation to the statement "to being in trouble again": I deny using those words. I recall saying something along the lines that it would be wise to be careful of her choices if pursuing a further relationship and that she did not need any "further trouble". As noted above, I recall discussing that her studies in psychology ought to be able to help her in different ways to get over the past. I also at some stage suggested that she seemed to be an empathic person and ought to be well suited to psychology/social work. It was around this time that I enquired how Patient A was going in her course. I recall Patient A taking the opportunity to inform me that she was not really satisfied with passes or credits and been achieving distinctions and even some high distinctions in both the previous and current years of her course. I recall commencing her on both her attitude to her studies and her high level of academic achievement."
The Agreed Facts (Exhibit X) paragraphs 14 to 16 limit the ambit of factual dispute with respect to these particulars and record (14): "14 During consultations between 28 June and 23 August 2019, the practitioner: (a) engaged in a brief discussion with Patient A that dating sites seem to make it easier to meet new people; and (b) said to Patient A words to the effect of "Be careful about your choices if you are pursuing a new relationship. You do not need any further trouble". 15 The practitioner admits that any discussion regarding dating sites and expressing any views on a new relationship, including in the terms set out at paragraph 14 above, was inappropriate, particularly having regard to: (a) Patient A's significant history of sexual abuse; and (b) the fact that Patient A had existing relationships with a psychologist and a sexual assault service. 16 The practitioner admits that any discussion regarding dating sites and expressing any views on whether a new relationship might help, including in the terms set out at paragraph 15 above, was a breach of doctor/patient boundaries."
The issue with respect to particular 3A thus becomes whether the conduct admitted by the Respondent constitutes unsatisfactory professional conduct. Given the concession on behalf of the Applicant (Submissions 31 January 2022 p4 para 17) that Dr Golding, the Applicant's expert did not find that particular 3A fell significantly below the requisite standard, we are not comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct pursuant to particular 3A. In view of our findings with respect to particular 3, nothing turns on so finding.
Under the heading "Proof of Complaint 1" (Submissions 8 March 2022 p7), Counsel for the Respondent made a number of submissions in support of his contention that, where the Respondent denied, or did not admit the disputed allegations of fact, the Tribunal could not be comfortably satisfied that Patient A's allegations were established.
The Respondent submitted ([28]) that the "perspective" from which Patient A's allegations emerged was of her: "having learned that a person called Dr Litchfield had previously faced disciplinary proceedings involving sexual misconduct and then subsequently being told by her psychologist that the remarks were some form of sexual harassment, before she distilled her recollection to the form of her written complaint."
Counsel for the Respondent thoroughly agitated this issue with Patient A in cross-examination, and commenced by asking (Transcript 22 November 2021 p50 line 20) whether Patient A had made "enquiries" about the Respondent "on the net towards the end of the time you were having consultations with Dr Litchfield", to which Patient A replied "yeah, towards the end, yes".
Patient A was then asked: "You accept that you then formed a particular impression about what he was saying and possible motivation as a result of making those enquiries." Patient A replied: "No. In my mind I did not assume that it was the same person, there's more than one doctor with that name, I did not want to attribute something to somebody they had not done, so I did all I could to separate what was happening to me to what I have come across. I didn't believe it was him until I was actually told well on later after my complaint had been submitted."
It was then put to Patient A that her counsellor "confirmed to you her view about what she thought the questioning was about when you spoke to her?". Patient A replied: "She did but I - well, I, I told (Person T) after I'd explained to her what had happened, but when she got back to me with the information she found, to me that it was still not enough evidence or proof to attribute it to him. I, I still couldn't or didn't want to believe it was the same person. It wasn't enough proof at that point in time."
It was suggested to Patient A, inferentially in reliance upon what she had learned about the Respondent from the internet, that she had "gone with a particular colouring to how you look back at what was being said". Patient A rejected that proposition. Patient A reiterated her rejection of that possibly having occurred, and said that "What I found out later on down the track had nothing to do with what was said in that room by that person".
In response to the suggestion that Patient A was "drawing a conclusion" about what the Respondent had said to her, Patient A reiterated "I know what was said to me", and that "I only searched his name because alarm bells were ringing very loudly and I knew something was not right". Patient A was then reminded that she "didn't mention anything about these searches in your complaint or in the statement?", to which she replied "Yes, and that's because I didn't know it was him". There is no reason why that assertion should not be believed.
With respect to Counsel for the Respondent, we do not accept that Patient A's recollection of events is adversely impacted by whatever she subsequently learned about the Respondent from the internet. The fact that her complaint made no reference to anything of that kind is not insignificant in that context.
To the extent that the "context" for Patient A's allegations was challenged by the Respondent, we do not accept those criticisms. As Patient A's statements make clear, very considerable context was provided by her. Moreover, we have not been referred to anything by way of material "context" to which Patient A did not refer which was suggested to adversely impact upon the reliability of her recall of events.
The respondent's criticism of the absence of corroboration of Patient A's complaints overlooks the reality that, by his admissions, or inability to deny a number of Patient A's allegations, the Respondent himself provides some corroboration for Patient A's allegations. In evaluating the probabilities, it is open to the Tribunal to take into account that the Respondent admitted that he made numerous inappropriate comments to Patient A, often in substantially the same terms as Patient A alleged in August 2019, that he had no recollection of other allegations, and the character evidence to which we have earlier referred, which, cumulatively renders it more probable that the Respondent made the comments alleged by Patient A.
The submission (29) that "unless a recording was made, it would be impossible to provide complete context" overlooks the Respondent's contentions with respect to the status of Patient A's prior statements, and does not identify any way in which the "context" of the making of the prior statements was asserted to be incomplete. The author of the business record of the prior representations was not required for cross-examination on them. We have not been referred to anything emerging from the cross-examination of Patient A which could advance this contention.
We do not accept the contention of the Respondent that the Tribunal could not "safely conclude that the words said must have been said in the way, or precise terms, that the patient now recollects". The evidence to which we have referred earlier provides ample foundation for accepting that Patient A has consistently stated the substance of her allegations, and been unshaken by skilful cross-examination with respect to them. We do not understand that, for this, or any particular of Complaint 1 to be established, the Applicant must establish in "precise terms" what the Respondent said.
As a balanced reading of the cross-examination of Patient A confirms, and Patient A herself said on occasion during cross-examination, she "knows what was said". The consistency between Patient A's written evidence and her oral evidence more than two years later, absent substantial and successful rehearsal prior to giving the latter evidence, of which there is none, is in our view suggestive of the probability of a reliable recollection. The absence of "precise terms", even if established, does not in our view advance the Respondent's defence, given that he is unable to recall what he did or did not say in numerous instances, thus necessarily being reduced to suggesting that some of Patient A's allegations involved comments which he would "not usually" make. The evidence of other witnesses to which we have referred earlier establishes that it was not unusual for the Respondent to make inappropriate, insensitive and at times inoffensive comments, and to fail to respond to "cues" to cease doing so.
With respect to Counsel for the Respondent, we are unable to accept the contention (31) that because "much of the patient's assertions about things said is not disputed by the Respondent" that does not make it more likely that the disputed conversations also occurred. We do not accept that doing so cannot withstand "careful scrutiny". In our view, in circumstances where only two people know the truth, absent reasons for not doing so, logic suggests that the more parts of Patient A's version of conversations is admitted by the Respondent, the more readily those parts of her version which he disputes, or does not admit, and cannot recall, are able to be accepted.
With respect to Counsel for the Respondent, albeit in the context of Stage 1, much of the submissions advanced on behalf of the Respondent go to the Respondent's motivation, or absence of it, in saying what he admits that he said, or is unable to deny that he said, and assumes relevance when determining whether the conduct admitted or established constitutes unsatisfactory professional conduct.
To the extent that it is submitted that the absence of suggested motivation to misspeak the truth in cross-examination impacts upon our determination of allegations which are disputed or not admitted, we do not accept that to be a matter of relevance in that context. Nothing emerging from the evidence of Patient A reveals conscious or unconscious misspeaking, or misconceiving the truth. Although, having regard to the potential implications of these proceedings for him, the Respondent's recollection of disputed events might be coloured, we do not find that he has consciously misspoken or distorted the truth in his evidence.
Patient A's complaint to Person B, an employee of the after hours practice, in September 2019, after her last consultation with the Respondent, that she found the Respondent "somewhat inappropriate" was submitted to be incapable of assisting the Applicant's case (51-52). Other than the fact that Patient A made a complaint about the Respondent when she did, to the extent that any particular allegation was made, we do not rely upon it as evidence of the truth of that complaint. With respect to this submission, and the submissions generally that Patient A's evidence was influenced either by her internet searches with respect to the Respondent or anything said to her by her sexual assault counsellor or psychologist, we do not accept that to have been the case. Properly, and probingly, these matters were put to and rejected by Patient A. We are not persuaded that these matters render reliance upon Patient A's account of disputed issues of fact unsafe.
Under the heading "Issues with the accuracy of Patient A's recollection" (Submissions 31 January 2022 paras 62-73), Counsel for the Respondent advanced a number of reasons why "reliance cannot be placed on the accuracy of her recollection of when it was at various consultations things were discussed". This was submitted to be "important, because it raises an issue about the frailty of her recollection not only as to the sequence of events, but the context in which things were said to have been raised by her and/or Dr Litchfield".
We have earlier in these reasons recorded the sequence in which Patient A and the Respondent committed their versions of events to writing. The particulars of this Complaint are not the same as an indictment in criminal proceedings. Nor is the standard of proof of disputed allegations the same as in criminal proceedings. We do not understand that, within limits which do not arise in this case, the exact time when events occurred, or the precise terms in which statements were made precludes the Tribunal being comfortably satisfied that particular allegations are established. That is particularly so in circumstances where, as Patient A has stated from the time of her first complaint, conduct of the kind alleged by her which the Respondent admits would be highly likely to be distressing for a patient. As Patient A stated, and the Tribunal readily accepts, patients do not expect, and are distressed by comments of the kind which the Respondent admits in these proceedings from their treating medical practitioners. It would be surprising, even having regard to what the Respondent admitted that he said, if Patient A recalled with precision the dates and exact terms of the Respondent's statements to her.
The Respondent acknowledges (68) that Patient A made concessions during her evidence. As we have earlier recorded, Patient A's evidence was significant both for the concessions she made and the absence of features which would cause the Tribunal disquiet as to the reliability of her recollection. We are conscious of the reality that, whilst potentially supportive of the credibility of a witness, concessions can undermine the accuracy of the witness' recollection of disputed events. We are not persuaded that Patient A's concessions have that effect.
We have earlier referred extensively to the evidence of lay and medical witnesses, and the inferences we have drawn from it with respect to the probability that the Respondent made the statements complained of pursuant to earlier particulars. Those observations have relevance to our determination of particular 3.
Dr Golding said with respect to the Respondent's alleged comments about dating, intimacy with men, dating sites and Patient A probably "ending up in trouble again" that it was "possible" that the Respondent was "encouraging [Patient A] to develop relationships to help with her social isolation" but, as this was only the second clinical interaction, and the reason for Patient A's attendance had been medical not psychological, the "specific mention of dating sites and suggestion to "become intimate" with men in my view, does not respect the professional patient clinical relationship required for good medical practice described in s8.2.1" of the Code of Conduct, which requires "maintaining professional boundaries".
Dr Golding's opinion was that the "specific suggestion of dating sites and advising development of intimate relations with men" was "significantly below the standard". Dr Golding added that the "subsequent comment about the future of these efforts, suggesting that [Patient A] would end up in trouble again, as abusers know how to pick their targets, cannot be interpreted as therapeutic, positive or in the interests of his patient. As Dr Litchfield later conceded, this type of therapeutic advice should not have been given". Although relevant to a later particular, the reference to abusers knowing "how to pick their targets" does not form part of this particular. We do not understand however that detracts from the weight to which Dr Golding's opinion is entitled.
Dr Golding was further of the opinion that "this type of advice is part of the clinical responsibility of the sexual assault service, psychologist and psychiatrist that [Patient A] was seeing. There is no advantage and potential harm in Dr Litchfield providing advice of this nature during a GP medical consultation" (HCCC 1 Tab 18 p5).
This conduct was also considered by Dr Golding to fall significantly below the requisite standard. As with earlier particulars, nothing emerging from the cross-examination of Dr Golding militates against acceptance of his opinion in the event that the Tribunal is comfortably satisfied that the factual allegations underpinning it are made out.
For the foregoing reasons, we are comfortably satisfied that the facts alleged in support of this Particular 3 have been established, and that the Respondent is guilty of unsatisfactory professional conduct.

Particular 4

Particular 4 alleged that, during consultations on or about 22 and 23 August 2019 the Respondent said to Patient A: (a) "Was there more than one man at a time having sex with you?", "What was your husband doing while those men were having sex with you?", "Was he watching?", "Was he joining in?" and "Where did he find them?"; (b) "I highly recommend that you don't tell anyone about this"; (c) "You should not talk about your sexual assaults to anyone".
Particular 4A asserted that, during consultations between 28 June 2019 and 22 August 2019 the Respondent became "inappropriately involved in Patient A's past and breached doctor/patient boundaries" by: "(c) pressed Patient A for information about the history and context of the sexual assaults that initiated her PTSD; (d) tested the integrity of her narrative"."
By his Reply, the Respondent denied particular 4. The Respondent admitted particular 4A.
In her first statement (HCCC 1 Tab 4B p1) Patient A referred to her "second appointment" with the Respondent which was on 28 June 2019.
Particular 4 refers to consultations on or about 22 and 23 August 2019. The Agreed Facts (Exhibit X p2 para 11) record that: "during (some) consultations on 28 June until 22 August 2019 the practitioner: (a) pressed Patient A for information about the history and context of the sexual assaults that initiated her PTSD; (b) tested the integrity of her narrative"
Particular 4 arises from consultations on or about 22 and 23 August 2019. According to the clinical records (HCCC 1 Tab 56) Patient A's consultations with the Respondent on 22 and 23 August 2019 were the sixth and seventh times when he saw her. In her first statement (HCCC 1 Tab 4B) Patient A referred to "second appointment" which was on 28 June 2019. Patient A alleges that, during that consultation the Respondent said a number of things which, at least in substance, were not dissimilar to the allegations in particular 4.
Under the heading "3rd & following appointments" Patient A said that "during one of her "last 2 appointments" the Respondent asked questions such as "Was there more than one man at a time having sex with you?"; "How many were there?"; "What was your husband doing while those men were having sex with you?"; "Was he watching?"; "Was he joining in?"; "Where did he find them?".
Patient A further alleged that, during one of these appointments, the Respondent said to her "I highly recommend that you don't tell anyone else about this".
The clinical notes confirm that Patient A's last two appointments were on 22 and 23 August 2019.
Although recording Patient A as having complained that the Respondent had asked "questions about her abuse and abuser", and her "ex", the counsellor's notes of 27 August 2019 (HCCC 1 Tab 6) do not record Patient A as having made complaints to her in those terms. We have earlier referred to what was recorded there with respect to Patient A's previous sexual abuse.
In her statement of 20 March 2020 (HCCC 1 Tab 4) Patient A reiterated ([24]) the substance of her earlier allegations.
In his statement on 17 September 2021 (R1 Tab 1 p11 paras 63-67), the Respondent set out in considerable detail his response to Patient A's allegations. Not insignificantly, the Respondent's narrative commenced by saying: "Patient A volunteered being distressed at times by some of her symptoms of nightmares and flashbacks and told me of her own volition that there was often more than one man having sex with her when she was with her ex-husband."
Not insignificantly, the Respondent did not there, or subsequently, or through cross-examination, allege, or clarify, in what way Patient A had volunteered that there was often more than one man having sex with her when she was with her ex-husband. If Patient A had said anything of that kind, it would in our view render it more probable that, given his personality, the Respondent would have questioned Patient A in the terms alleged by her. The balance of the Respondent's statement in this paragraph do not advance his denial of Patient A's allegations.
The Respondent said (64) that "I was quite busy with other matters during the consultations of 22 and 23 August 2019 and I do not believe such questions were asked". The Respondent recounted, in considerable detail (64-67), what he recalled with respect to the consultations on 22 and 23 August 2019. Nowhere in that narrative did the Respondent engage with Patient A's allegations, or the context in which they were assertedly made. There is a stark contrast between the detail of what Patient A alleges that the Respondent said during the consultations, and the absence of engagement with those allegations in the statement of the Respondent.
With respect to him, the Respondent's statement is consistent with the criticism of his evidence by Counsel for the Applicant, in that, consciously or otherwise, the Respondent's version of the consultations deflects attention from the matters which give rise to these proceedings. Although Patient A was closely cross-examined with respect to some other, and potentially less serious allegations, we are unable to discern, other than in the broad sense identified earlier, any cross-examination of Patient A which creates a potential impediment to acceptance of her allegations with respect to these consultations.
Whilst we do not criticise Counsel for the Respondent, given that his instructions were clearly that nothing of the kind happened, having not tested the accuracy of Patient A's recall of the events alleged pursuant to this particular, the foundation for many of the submissions identified earlier with respect to the asserted inaccuracy or unreliability of her recall is absent.
Cross-examination of the Respondent makes clearer why his Counsel did not closely examine Patient A's allegations in cross-examination. The Respondent (Transcript 28 January 2022 p72) confirmed that he continued to deny "vigorously" particular 4(a) and said that his "denial is based on not, not being able to recall and, not believing I would … would ask such questions". The Respondent said with respect to some of Patient A's allegations "If it was said, I didn't hear it, or I would have not asked her any more questions".
The Respondent said with respect to other allegations that he had "absolutely no recollection of her saying, saying that to me". The Respondent agreed that a number of witnesses called on his behalf had "identified that your tendency to be obsessional in some regard might have caused you to engage in over questioning of Patient A".
The Respondent was asked "Is it possible that you became so fixated on pursuing your questions that you didn't notice that Patient A was asking you to stop?" The Respondent replied "It's probably possible, unfortunately. It's not something that I could admit, but it's possible; I'd like to have to admit, but it's possible".
The Respondent confirmed that Patient A had made a number of the statements alleged by her (Transcript p73 lines 5-24). The Respondent was asked whether he agreed that Patient A said to him "The shame is on him, not me. He is the sick one." (referring to her ex-husband), to which the Respondent replied "I don't recall saying it, but I accept it. It's possible that she said such a thing, but I don't recall."
The Respondent's submissions (8 March 2022 p11 para 47) assert with respect to this particular that the Tribunal is "confronted with a difference of opinion as to precisely what was said and why it was said". Ultimately we do not perceive the determination of this particular to turn on a "difference of opinion" between Patient A and the Respondent. The issue is whether, on the evidence, the Applicant has discharged the onus of proof which it bears to the requisite standard of proof. Nor, at this stage of the proceedings, are we concerned with "why" the Respondent said anything which was inappropriate. It was conceded, fairly, (47) that the Respondent admitted that he was "a bit obsessive and fixated" and "became a bit intrigued in getting to the bottom of her past trauma and unintentionally became overinvolved" or, as Dr Lennings described it, was "triggered" by the Patient A's case.
For the reasons which we have recorded in connection with this particular, and the matters recorded earlier with respect to the medical and lay evidence relating to the Respondent's personality, we are comfortably satisfied that Patient A's allegations are established.
For the reasons which he set out in some detail (HCCC 1 Tab 13, p6-8) Dr Golding considered that, if established, the conduct alleged by Patient A upon which this particular is based fell significantly below the requisite standard. As with earlier particulars, nothing emerging from the cross-examination of Dr Golding provides a basis for declining to accept his expert opinion.
We find the Respondent guilty of unsatisfactory professional conduct pursuant to particular 4. Dr Golding did not address amended particular 4A. Although it is perhaps unnecessary to do so in circumstances where specific instances of the conduct admitted with respect to particular 4A have been found to be proved, and arguably finding guilt twice for the same offending conduct, if we are wrong in finding particular 4 proved, or finding that the conduct alleged by it constitutes unsatisfactory professional conduct, we would find that the facts admitted by the Respondent with respect to particular 4A constituted conduct which fell significantly below the requisite standard, and was thus unsatisfactory professional conduct.

Particular 5

Particular 5 alleged that: "During a consultation on or about 24 July 2019 or 15 or 22 August 2019, the practitioner became inappropriately involved in Patient A's past and breached doctor/patient boundaries in that the practitioner said to Patient A, in reference to her ex-husband, words to the effect of "your son has half his father's DNA" and said "he would be like him in some ways (or could be like him in some ways)"."
By his Reply, the Respondent admitted particular 5.
The Applicant's expert, Dr Golding, addressed particular 5 of the Applicant's original Complaint (HCCC 1 Tab 13 p8-10 para 9). As is not in doubt, paragraph 5 of the amended application is materially different to particular 5 of the original application.
Dr Golding's supplementary report (HCCC 1 Tab 16) of 22 July 2021 preceded the filing of the Applicant's amended application. Dr Golding was cross-examined during the hearing of the proceedings. We do not perceive anything emerging from Dr Golding's evidence in chief or cross-examination on 22 November 2021 to impact upon whether the facts admitted in support of this particular constitute unsatisfactory professional conduct.
As is not in doubt, Patient A's son has "half his father's DNA" and, "could be like him in some ways". In the absence of expert evidence in support of a finding that the conduct of the Respondent fell significantly below the standard reasonably expect of him, we are not comfortably satisfied that unsatisfactory professional conduct is established pursuant to this particular.

Particular 6

Particular 6 alleged that, during consultations between 28 June 2019 and 23 August 2019 the Respondent: "purported to provide psychological counselling to Patient A for her PTSD in circumstances where: (a) the practitioner was not qualified to provide psychological counselling to Patient A for her PTSD; and (b) the practitioner was aware from 28 June 2019 that Patient A was attending a psychologist and a mental health service."
By his Reply, the Respondent admitted particular 6(b) but did not admit particular 6(a).
In the Respondent's statement (R1 Tab 1 p14 para 69) the Respondent said with respect to particular 6(a): "I admit that while I am qualified to provide some psychological counselling in my role as a GP and given some of my experience studying psychiatry and focused psychological strategies as noted in my Curriculum Vitae, my expertise in PTSD was still limited. Also I do not really believe that I was providing psychological counselling for Patient A with regard [to] her PTSD but rather an analysis of her PTSD symptoms and origin in relation to her somatic and CFS type symptoms and my own residual interest in integrative medicine at that time."
The Respondent further stated (70) that he had: "no particular wish to defend the role of GPs but GPs do have prerogative to ask questions relating to psychological status and mental health. They play a central role. There was no feedback on the file from the psychiatrist or the psychologist or the social worker."
The Respondent admitted (71) that he was made aware on 28 June 2019 that Patient A was attending a psychologist and mental health service but that there was "no note on file about feedback from either attendances". As the terms of the Respondent's statement confirm, it is less than clear whether he denies the allegation in particular 6(a), or admits the allegation but asserts that he did not actually provide, or purport to provide psychological "counselling" to Patient A.
Dr Golding was asked (HCCC 1 Tab 13 p9 para 10) to provide his opinion "in relation to whether Dr Litchfield was suitably qualified to provide treatment to [Patient A] for her PTSD" and whether the Respondent "ought to have referred [Patient A] to a specialist at any stage". For the reasons which he recorded, Dr Golding said that although the Respondent "had some experience in mental health, having completed one year of a Masters of psychological medicine in 1996 and a term as a Psychiatric Registrar in 1996, this could not be regarded as being sufficient to offer a meaningful foundation for psychological intervention". Dr Golding's opinion was that, on the assumption that the Respondent had engaged in "psychological intervention" the conduct of the Respondent was "significantly below the standard".
Given the reference in this particular to Patient A's PTSD, and the Respondent's references to it in his statement, it is relevant to record Dr Golding's opinion with respect to the appropriateness of the Respondent's "justification to delve into [Patient A's] PTSD during the course of their consultations" (HCCC 1 Tab 13 p10 para 11).
Dr Golding recorded that the Respondent suggested that: "The reasons for asking detailed questions about the events experienced by [Patient A] was to confirm the diagnosis of PTSD. Dr Litchfield also confirmed that he was aware that the diagnosis of PTSD had been determined by her psychiatrist and was supported by her psychologist and sexual assault counsellor."
Dr Golding was of the opinion that: "What he has chosen to do is to ask questions about the episodes himself to confirm the diagnosis. There does not seem to be any good explanation for this course of action and demonstrates only a very superficial understanding of the nature of PTSD."
Dr Golding was further of the opinion that the Respondent "should have employed other methods to confirm the diagnosis of PTSD rather than attempt superficial and potentially damaging incursions into areas he knew were the object of intensive and specific psychological assessment and treatment."
Dr Golding was accordingly of the opinion that the Respondent's conduct was significantly below the standard required of him.
Dr Golding's supplementary report (HCCC 1 Tab 16) did not further engage with this issue.
In cross-examination (Transcript 22 November 2021 p62 line 37) Dr Golding was asked whether the request for a letter to accompany Patient A's Disability Support Pension application provided "a context for why that questioning, or questioning that went further than it should, may have evolved?". Dr Golding replied: "In this circumstance Patient A was already connected up with psychologists and sexual, sexual assault counsellors, so I think there's a very big difference in between someone who wasn't connected up with any other services and an attempt made to try and fill any gaps and then asking questions when the person, patient is already connected up with subfield experts. I, I can't see myself doing that at all and I see potential for harm."
Dr Golding was asked (Transcript 22 November 2021 p64 line 21) whether the Respondent being required to complete the DSP application involved a "burden of responsibility for its veracity", and whether the Respondent had a number of "options" in that regard, including "getting information from the psychiatrist" or declining to assist further with the letter. Dr Golding replied: "Or, or taken, made efforts to communicate with the psychiatrist, so it's, you know, a medical, - it's a teams … in the aspects and you can make a phone call to the consulting specialist, and the idea is that a general practitioner rings the consulting psychiatrist and they have a discussion to, to further the, progress of the person, so there are there are other options, one of which, as you mentioned is to decline to write the letter".
Dr Samuels referred to the Respondent's suggestion (HCCC 1 Tab 43 p26 para 210) that he had become "fixated trying to connect her PTSD to her chronic fatigue syndrome", and that in retrospect that as Patient A was: "already under the care of a psychiatrist and psychologist and could have avoided asking as many questions, but he said he felt under some pressure to give her further paperwork for the DSP and he could not really understand why she needed further paperwork from him as she already had the other treating professionals."
Dr Samuels quoted the Respondent as having said: "I always see it as the role of a doctor to check veracity. At no time was my motivation other than to care for the patient. I was highly insensitive, I lacked judgement. I really think I didn't see how vulnerable this patient was."
Although relied upon in the broader context, the submissions of Counsel for the Respondent (31 January 2022 paras 56-56) raise matters of relevance to this particular. The Respondent submitted (56) that the Tribunal would accept his explanation: "that he had an interest in integrative medicine at the time, that he was faced with a challenging patient with complex conditions including possible CFS, that he mistook her talking about the matters as resilience, that he had a limited understanding of PTSD and how it should now be approached (having trained many years before and with a long absence from the profession), that he then further questioned her in the context of looking at evidence for the DSP, and that he lacked judgement and communication skills when it came to dealing with this complex patient, and his approach was affected by his personality traits."
The Respondent also referred to Dr Adams' observation (57) in her report of 7 May 2020 that: "Having had no training in domestic and family violence or trauma therapy, it had not previously occurred to Dr Litchfield the distress and sense of disempowerment that could be caused to a survivor of abuse by the style of questioning he had employed." The Respondent has been seeing Dr Adams for a significant time.
In his first report (R1 Tab 8 p3), the Respondent's expert, Dr Lotz, expressed his opinion that the Respondent "had issues with boundaries, such as enquiring in detail of his patient's background and personal issues" and that Patient A "appeared to have complex post-traumatic stress disorder, and would have been vulnerable". Dr Lotz believed that any enquiry into her personal issues was a further "violation".
In his later report (R1 Tab 10) Dr Lotz referred (p3) to the Respondent having "described being overinvolved with detailed questioning to his patients" the "most recent issue" having been "a misinterpretation by a very vulnerable female patient, who herself was in therapy for past trauma and domestic violent [sic] relationship issues". The cross-examination of Patient A before us does not suggest that anything alleged by her involved any "misinterpretation" on her part.
Dr Lotz recorded the Respondent as having "asked detailed questions, regarding her life issues, which in retrospect he admits were the realm of the treating therapist not the general practitioner". Dr Lotz recorded that the Respondent "does have an interest in psychiatry, has done various courses in psychological therapy, and had started a specialty training in psychiatry which he did not pursue to completion."
In his report (R1 Tab 5) Professor Morris said at page 2 that initially Patient A's consultations with the Respondent: were about physical medical problems. But the nature of the consultations changed following the request of the patient to have support for an application for the Disability Support Pension. This led Bruce Litchfield to question the patient about physical (chronic fatigue syndrome) and mental health (post-traumatic stress disorder) concerns that were relevant to the application for the DSP." Accepting the evidence of Professor Morris creates no obstacle to acceptance of this particular, as its terms, and the terms of Professor Morris' evidence confirm.
In his report (R1 Tab 3 p3), Dr Lennings recorded that the Respondent told him that he had worked as a GP in the 1980s and 1990s "in what he referred to as wholistic medicine" and "noted there was less development of psychological services and he had provided a somewhat psychologically informed service to his clients" but that, since returning to practice, he understood "that he should not be so inquisitive with his clients, and he understood that there were appropriate referral pathways (to psychiatrists/psychologists)".
Dr Lennings recorded the Respondent as saying that his enquiries were "because he had been asked to complete a Disability Support Pension form and hence his questioning of the client about some of her experiences", those enquiries now being regarded by the Respondent as "unwise and too intrusive".
We have earlier referred in some detail to Dr Lennings' evidence with respect to the personality of the Respondent. For present purposes it is sufficient to refer further only to Dr Lennings' comment (R1 Tab 3 p26 para 90) that "Where the concerns lie is his awareness in the moment when a client piques his curiosity and his interest in psychological issues and his awareness of when he should hold back from exploring that."
Counsel for the Applicant submitted (Submissions 31 January 2022 p2 para 21) that, in oral evidence, the Respondent said that he was "testing Patient A because he thought she may be delusional and may not have PTSD at all". It was submitted that, however categorised, the Respondent's questions "around and about Patient A's PTSD all fell within the broader context of psychological counselling". We agree with that contention. The Respondent's own evidence supports doing so.
In cross-examination (Transcript 28 January 2022 p39 line 25), the Respondent said: "I was told that she had the reports from Dr F and the psychologist but she wanted one from me and you know, I think at the time I just wanted to verify that she was, you know, the PTSD it was clear from Dr F' report that the PTSD was the main reason that she was applying for the Disability Support Pension so I just asked, followed up from the report from Dr F in asking further questions about how long she had been having the symptoms and just finding out more about her circumstances."
The Respondent also confirmed (p 39 lines 45-47) that, inferentially on or before 24 July 2019, Patient A had brought him a "hard copy" of Dr F' report (found at HCCC 1 Tab 59 p102). The Respondent acknowledged that the report said "I am a psychiatrist specialist who regularly sees Patient A at the Tweed Hospital" and admitted that Patient A there received "outpatient treatment for a diagnosis of Post-Traumatic Stress Disorder". If not previously, that report should have motivated the Respondent to be very careful to avoid exceeding the ambit of his professional qualifications, and the likely consequences for the health of his patient if he did not.
The Respondent was cross-examined (p40) with respect to parts of the report (lines 9-16) recording that Patient A's PTSD was: "severe and a consequence of long term abuse several years ago which leaves her with flashbacks, nightmares, disrupted sleep, fatigue, anxiety and intermittent lowered mood and these symptoms leave her at times exhausted and unable to function normally and [Patient A] sees two practitioners for therapy as well as myself for psychiatric reviews and medication."
The Respondent confirmed that he had "looked at" the report on 24 July 2019. With respect to him, the Respondent's answers to subsequent questions asked of him in relation to this topic serve only to confirm that he was purporting to provide psychological counselling to Patient A by persisting with his questioning with respect to matters which he acknowledged were being addressed by specialist practitioners, and were likely to be distressing, and have the potential to compromise Patient A's health.
The Respondent's statement "I went into it a little bit and that's all I can say about that at this point time" (Transcript p41 line 20-21) was, with respect to him, a considerable understatement having regard to the statements which he made previously to other health professionals to which we have referred.
In the course of his evidence in cross-examination (24 November 2021 p21 line 33) Professor Morris referred to what he described as a "perfect storm" involving the Respondent's questioning of Patient A with respect to her PTSD. Professor Morris said that Patient A was "a patient who came in initially with some medical problems then wanted to get him to agree to support a Disability Support Pension. Then he asked questions about what were the conditions that were, would justify this, gets into sort of asking about PTSD, doesn't realise that, you know, when you've got patients with post-trauma I mean, when I see a patient with a trauma history I say to them, "Look, I need to ask some questions about what happened to you when you were a child. You say that you were traumatised as a child. Could, it's difficult for me to ask these questions, but, I do need to know a little bit about what, what happened" although the patient may not wish to engage with the issue.
Professor Morris, a vastly experienced and eminent psychiatrist said that, in the circumstances of a patient with PTSD, "I just gently explore that area with the patient". Professor Morris said that the Respondent was "asking about her PTSD. How did she get PTSD? What were the, what were the traumatic features? Instead of just saying, "That's okay, PTSD", he was probably trying to justify the, the diagnosis, etc., and that was a perfect storm, and then, of course, the woman gets triggered by asking. By answering those questions it raised a whole lot of things that she's been exposed to in the past and he wasn't, sort of, necessarily as empathic as being able to, sort of, back off. And so, like, it was a perfect storm."
Professor Morris did not agree (p22) that the medical notes which the Respondent then had rendered it "clinically unnecessary" to question Patient A with respect to PTSD. Professor Morris said (p23 line 27) that it was not inappropriate to "ask about what trauma experience the patient had had if he was seeking to identify whether a patient had suffered from PTSD but that it's just the way you ask about those questions that's probably the more important". The evidence of Professor Morris to which we have just referred establishes how the Respondent could have made the inquiries which might have been appropriate in those circumstances. How the Respondent went about doing that contrasts starkly with the evidence of Professor Morris, whose opinion we accept.
Professor Morris equivocated to some extent in cross-examination with respect to whether it was "necessary" for the Respondent to "re-ask the patient about those details of the original trauma" which were recorded in medical reports which the Respondent then had. Professor Morris clarified that it "would be reasonable for the doctor to identify and convince themselves that the patient had the condition that they were claiming would be the one for the Disability Support Pension", and that it might be sufficient to do that in reliance on a report from a Psychiatrist saying "the patient has this condition".
Professor Morris, necessarily, relied upon factual assumptions provided to him in formulating his opinion. Though no criticism of Professor Morris, the Tribunal has the benefit of having seen and heard the Respondent cross-examined about this, and other relevant issues of fact. The context in which the Respondent questioned Patient A, as we have found it pursuant to earlier particulars, in our view rendered it inappropriate for the Respondent to either go beyond the expert reports which he admitted that he had, or, if not persuaded by them, to contact one of Patient A's specialist treating professionals.
We are comfortably satisfied that the Respondent was purporting to provide psychological counsel to Patient A for her PTSD in circumstances where he was not qualified to do so.
It remains to consider whether, having found the allegations pursuant to this particular established the Respondent is guilty of unsatisfactory professional conduct.
In his report of 24 August 2020 (HCCC 1 Tab 13 p9 para 10), Dr Golding referred to the Respondent's knowledge, from the time of his second consultation with Patient A, that Patient A "was seeing sexual assault services at Tweed Mental Health and a psychologist". Dr Golding's opinion was that the Respondent's decision: "to engage in psychological counselling with [Patient A], knowing that this was not the purpose of her presentation, is more difficult to understand when he knew that she was already engaged in therapeutic relationships with at least three other specialised services. Mr Litchfield expressed a view that at this time, [Patient A] was dealing with the psychological aspects of her PTSD and was "reasonably stably [sic]".
Dr Golding referred to section 2.2 of "Good medical practice: a code for conduct for doctors in Australia" (the Code) which refers to "recognising and working within the limits of your competence and scope of practice" and said that, although the Respondent: "had some experience in mental health, having completed on year of a Masters of psychological medicine in 1996 and a term as a Psychiatry Registrar in 1996, this could not be regarded as being sufficient to offer a meaningful foundation for psychological intervention that Dr Litchfield has engaged in."
Dr Golding was thus of the opinion that the Respondent was "not qualified to provide care to [Patient A] for her PTSD and his decision to do so is significantly below the standard".
Dr Golding was further asked his opinion with respect to "the appropriateness of Dr Litchfield's justification to delve into [Patient A's] PTSD during the course of their consultations." Dr Golding acknowledged the Respondent's reference to the "burden of responsibility" for the "veracity" of documentation submitted in support of a DSP application and identified (11) a number of courses which the Respondent could have taken to verify that information, most obviously speaking with the "psychiatrist who made the diagnosis of PTSD to ensure that the foundation for the diagnosis was robust and confirmed this with the sexual assault service and her counsellor". Dr Golding stated that "What he has chosen to do is to ask questions about the episodes himself to confirm the diagnosis. There does not seem to be any good explanation for this course of action and demonstrates only a very superficial understanding of the nature of PTSD".
By reference to section 2.2 of the Code, Dr Golding said that the Respondent: "should have employed other methods to confirm the diagnosis of PTSD rather than attempt superficial and potentially damaging incursions into areas he knew were the object of intensive and specific psychological assessment and treatment. If he did not feel that he was able to complete the paperwork, he should have made this clear and ensured that [Patient A] understood the reasons why this was the case. Dr Litchfield should not have engaged in avenues of enquiry that had the potential of making her condition worse."
For the reasons articulate by him, Dr Golding was accordingly of the opinion that the Respondent's "decisions to delve into [Patient A's] PTSD is significantly below the standard".
In the course of cross-examination of Dr Golding (Transcript 22 November 2019 p56), Dr Golding was asked (line 28): "The second contextual matter is that it appears from all of the material that Dr Litchfield is ill-equipped to deal with this patient particularly in terms of the understanding of the potential impact and continuing impact of PTSD?" Dr Golding replied "Yes".
Dr Golding was further asked (p57 line 8): "The fourth contextual matter is to suggest that Dr Litchfield appeared at the time to have an interest in integrative medicine which prompted him to engage in a perhaps misplaced wholistic approach in terms of engaging in some form of psychological counselling to encourage self-esteem and confidence and the like and improve overall health?" Dr Golding replied "Yes".
Dr Golding was then asked "That, in the way in which it occurred, may have unfortunately added to the patient's concerns rather than assuaged them". Dr Golding replied "Yes, I think that was my view".
In the course of cross-examination Dr Golding accepted (Transcript p60 line 5) that the "level of complexity and the, the requirements of the job [of a general practitioner] are as difficult as any other specialty".
Dr Golding was asked (Transcript p62 line 37): "You accept that on 24 July the medical record shows that Dr Litchfield was being asked for a letter to accompany the Disability Support Pension application and so it doesn't provide an excuse but it provides a context for why that questioning, or questioning that went further than it should, may have evolved?" Dr Golding replied: "In this circumstance Patient A was already connected up with psychologists and sexual, sexual assault counsellors, so I think there's a very big difference in between someone who wasn't connected up with any other services and an attempt made to try and fill any gaps and then asking questions when the person, patient is already connected up with subfield experts. I can't, I, I can't see myself doing that at all and I see potential for harm."
When it was suggested to Dr Golding that "a personality trait of the, of, of a doctor is sufficient excuse to ask a line of question which is damaging", he replied "I don't agree with that proposition." (Transcript p63 line 36), although he subsequently acknowledged that doing so might "explain the line of questioning". We agree with the opinion of Dr Golding. As the authorities have long accepted, the standard of skill and judgment required of a medical practitioner is not measured by reference to the "worst" cases (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630), for obvious reasons.
Dr Golding was reminded of the Respondent's concessions (Exhibit R1 Tab 1 para 80) with respect to "how and why I went wrong in this" and "may have been intrusive, overfamiliar, judgmental, and even offensive" (Transcript p64 line 1). Dr Golding reiterated (Transcript p64 line 29-34) his view with respect to the appropriate response of the Respondent if he had reservations about the veracity of Patient A's prior PTSD diagnosis.
In the preamble to a question, it was said by the Respondent's Counsel (p64 line 38) that the Respondent "did not appreciate that it was not his role to investigate her mental health to the extent that he did". As is clear from his evidence to which we have earlier referred, Professor Morris did not consider that the conduct of the Respondent which we have found established fell significantly below the standard reasonably expected of the Respondent.
Nothing emerging from the cross-examination of Dr Golding persuades us that we should not accept his opinion. To the extent that Professor Morris took a more benign view of the Respondent's conduct, and remembering that Professor Morris' evidence was primarily directed to Stage 2 considerations, we perceive no inconsistency in accepting the evidence of Dr Golding. Through no fault of Professor Morris, our findings with respect to disputed issues of fact provide greater underpinning of the opinions of Dr Golding on this issue than they do for those of Professor Morris.
We are comfortably satisfied that the Respondent's conduct fell significantly below the standard reasonably required of him and that, accordingly, he is guilty of unsatisfactory professional conduct.

Particular 7

Particular 7 alleged that, at the consultations between 29 June 2019 and 23 August 2019 the Respondent: "(a) purported to provide psychological counselling to Patient A, either for her PTSD or for some other purposes, and/or (b) maintained inappropriate boundaries with Patient A, in that the practitioner: (i) asked Patient A questions about the sexual assaults; (ii) made comments to Patient A about her personality including that she was an "empath" or "empathetic"; (iii) made comments to Patient A about sexual assault, including that abusers know how to pick their targets and that they can recognise "empaths"."
The Respondent admitted particulars 7(a) and 7(b)(i) and (ii) but denied that he had stated to Patient A that abusers "know how to pick their targets" and can recognise "empaths".
Particular 7A alleged: "Further or in the alternative to particular 7, that the practitioner: (i) provided some psychological counselling to Patient A for the purpose of encouraging her self-esteem, confidence, offer reassurance, motivate her physical and psychological health and improve overall general health; (ii) provided the counselling in part driven by his interest in integrative care; (iii) became more involved in Patient A's traumatic history than was appropriate; (iv) unintentionally asked questions and made some remarks that were thoughtless, judgmental and offensive."
The Respondent admitted particular 7A. As the Respondent's Counsel submitted, Dr Golding did not consider that the conduct alleged in particular 7A fell significantly below the requisite standard. Although we are not bound by Dr Golding's opinion in this regard, the case having been conducted in reliance upon it, and no evidence for making a more malign finding having emerged, we are not comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct pursuant to particular 7A.
It is necessary to determine whether the Respondent said to Patient A words to the effect "abusers know how to pick their targets" and/or that abusers "can recognise empaths". The findings recorded earlier in these reasons with respect to the personality of the Respondent, as each of the medical and lay witnesses with experience of his personality considered it, are relevant to the evaluation of the allegations in support of this particular.
In her first statement (HCCC 1 Tab 4B p3) Patient A said "On one occasion he said that abusers known how to pick their targets, they can recognise empaths", in the context of her statement with respect to "3rd & following appointments". In her statement of 20 March 2020 (HCCC 1 Tab T4 p25 para 20) Patient A repeated that allegation, and further said ([21]) that she believed it had occurred during her third consultation with the Respondent, but did not elaborate further on it.
In his statement (R1 Tab 1 p15 para 78) the Respondent denied having said the words alleged by Patient A.
In cross-examination of Patient A (Transcript 22 November 2019 p49 line 22), Counsel suggested to her that the Respondent "does not recall asking those particular questions of you". It was suggested to Patient A that "Dr Litchfield does not believe that he would have said to you that, "abusers can recognise empaths". Do you accept that?". Patient A replied "He said that". We are not aware of Patient A being otherwise tested with respect to her allegation.
The "confidential progress notes" maintained at Living Well Psychology and Counselling with respect to consultations with Patient A between 27 August 2019 and 30 October 2019 (HCCC 1 Tab 6) record a number of statements which Patient A is said to have made during those consultations. We have recorded earlier the inferences we draw, and do not draw, from the contemporaneous or near contemporaneous notes taken by Patient A's psychologist, and why we do so.
In notes made during, or shortly after a consultation on 27 August 2019, Patient A's psychologist recorded Patient A asserting that the Respondent "keeps calling [Patient A] a Empath". The notes further record Patient A as having alleged that the Respondent said "I recognise you are an Empath" and "The target knows how to pick their victims". It is relevant in our view to evaluating this complaint that Patient A made those statements when she did, and in the terms in which she is reported to have made them. We have earlier recorded that, having regard to the conceded deficiencies in them, the Respondent's reliance upon his clinical notes in support of his denials of Patient A's disputed allegations creates no obstacle to the acceptance of Patient A's allegations.
For the reasons we have recorded with respect to earlier particulars, we are comfortably satisfied that Patient A's version of the disputed conversations has been proved.
As we have recorded in the context of evaluation of an earlier particular, Dr Golding (HCCC 1 Tab 13 p5) said that suggesting to Patient A that "abusers know how to pick their targets" could not be "interpreted as therapeutic, positive or in the interests of his patient". For the reasons which he recorded, to which we have also referred earlier, Dr Golding was of the opinion that the Respondent's comments fell significantly below the requisite standard. Nothing emerged during the course of cross-examination of Dr Golding with respect to this issue which provides a basis for rejecting his opinion.
For the foregoing reasons, we find this particular proved to the requisite standard and are comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct.

Complaint 2

Complaint 2 asserted that the Respondent was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law in that he had contravened a provision of the Regulations under the National Law. The particulars of the complaint alleged that: "Between 28 June 2019 and 23 August 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016 in respect of his medical records for Patient A in that he failed to record sufficient information relevant to Patient A's diagnosis or treatment, namely the duration and/or nature of her history of sexual assaults."
The Respondent admitted this particular. It is unnecessary, having regard to what is stated there, for the purpose of evaluating this Complaint, to refer to the Respondent's comments with respect to it (R1 p16 paras 83-84).
In his report of 24 August 2020 (HCCC 1 Tab 13 p11 para 12), Dr Golding addressed this Complaint and said that: "Part of the responsibility involved in deciding to get involved in complex psychological conditions like PTSD, is to accept the associated burden of documentation. Any information obtained during a clinical encounter is only of real benefit to the patient if this information is documented in a way that is available for other clinicians. This is particularly the case within the clinical environment that Dr Litchfield was working where patients did not have access to the same clinician and were likely to see different clinicians each visit."
Dr Golding referred to the provisions of s 8.4.1 of the Code which requires "keeping accurate, up to date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners".
After recording the Respondent's clinical notes for his consultation with Patient A on 24 July 2019, Dr Golding commented that "There is no mention of any of the discussion held by Dr Litchfield and [Patient A] that would alert him or any of his colleagues in the future of the information obtained during this difficult and painful interaction". Dr Golding was of the opinion that "The level of medical documentation is significantly below standard".
Nothing emerging from the evidence of the Respondent, or any other witness, militates against finding the particular established with respect to the clinical notes of 24 July 2019. In the absence of evidence with respect to the clinical notes for other consultations, we are not comfortably satisfied that the Complaint extends beyond that consultation.
The evidence does not provide any basis for declining to accept Dr Golding's opinion that the Respondent contravened a provision of the Regulations under the National Law and that, accordingly, he is guilty of unsatisfactory professional conduct.

Complaint 3

Complaint 3 asserted that the Respondent was guilty of professional misconduct pursuant to s 139E of the National Law in that he has: "(i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or (ii) engaged in 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 the suspension or cancellation of the practitioner's registration."
This Complaint relied upon findings of unsatisfactory professional conduct pursuant to Complaints 1 and 2, individually or cumulatively. Section 139E(a) of the National Law defines "professional misconduct" as "unsatisfactory professional conduct of a sufficiently serious nature to justify a suspension or cancellation of the practitioner's registration" or s 139E(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".
As we have earlier identified, the resolution of the dispute with respect to the Applicant's purported reliance upon the Respondent's record of disciplinary findings and orders assumes significance in this context.
The Applicant submitted that, in view of his past disciplinary record, the Respondent was "on notice" that any further disciplinary breaches would be viewed more seriously than those same breaches would be if he had no, or more benign prior disciplinary findings and orders, particularly with respect to boundary issues. The Respondent submitted that the seriousness of the Respondent's present disciplinary breaches fell to be evaluated solely by reference to the conduct proved with respect to them, and without regard to his prior disciplinary record.
We have earlier referred to the basis upon which the Applicant sought to rely upon the Respondent's disciplinary record. Counsel for the parties made extensive written submissions with respect to receipt of the Part B documents sought to be tendered by the Applicant in reliance upon s 5 of Schedule 5D to the National Law. Those documents were submitted to be relevant to the Respondent's disciplinary history. Section 5(1) of Schedule 5D relevantly provides that the Tribunal: "may receive and admit", as "evidence in any proceedings: (a) the judgments and findings of a court (whether civil or criminal and whether or not of this jurisdiction); (c) the judgment and findings of a tribunal (whether or not of this jurisdiction); (d) a finding, decision or determination of a professional standards committee established under this law or a corresponding prior Act; (g) a transcript of the depositions or of shorthand notes, duly certified by the Registrar or clerk of the court or tribunal as correct, of the evidence of witnesses taken in a court or tribunal referred to in paragraphs (a)-(c);" Where the Tribunal "is of the opinion that the judgment, findings, verdict, certificate, decision, determination or evidence is relevant to the proceedings".
As is not in doubt, the Tribunal has received documents into evidence, ultimately uncontroversially, falling within the above categories.
Section 5(2) of Schedule 5D provides that if the Tribunal: "is of the opinion that evidence so admitted is capable of establishing that a registered health practitioner has engaged in conduct that is sufficiently similar to the conduct alleged against the practitioner in the proceedings, it may rely on the evidence in - (a) making a finding that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct; or (b) exercising any of its powers under subdivision 3 or 6 of Division 3 of Part 8."
Clause 5(3) provides that the power conferred by section 5 is "in addition" to any other power conferred on the Tribunal by the CAT Act with respect to the use of the evidence.
We accept that the terms of s 5(2) of Schedule 5D are sufficiently broad to enable the Tribunal to rely upon the Respondent's disciplinary record, as it merges from the judgments, decisions and orders which are uncontroversially before us, at either, or, arguably, both stages of the proceedings. Although, for the reasons which follow, not relying upon the Respondent's disciplinary record in assessing the seriousness of his conduct makes no difference to our decision in this case, we accept that not doing so could make the difference between finding or not finding professional misconduct in other cases.
We are not satisfied that the prior findings of courts or tribunals to which we have uncontroversially been referred are "sufficiently similar to the conduct alleged" against the Respondent in these proceedings to impact upon the probability of the Respondent having said or done the things alleged against him in these proceedings. Having regard to the basis on which the Applicant sought to rely upon them, nothing turns on that decision. With respect to the submissions of Counsel for the parties, in those circumstances, we need not say more about that issue.
The remaining, and more difficult issue is whether the Respondent's disciplinary record is relevant to determining whether the unsatisfactory professional conduct which we have found proved is sufficiently serious to constitute professional misconduct.
The submissions of Counsel for the parties, for which the Tribunal is grateful, confirm that this issue is less than straightforward. In submissions on 24 November 2021, (HCCC 2 p1), Counsel for the Applicant stated the basis upon which the Respondent's disciplinary history was sought to be relied upon in the following terms: "(b) as a consequence of the prior misconduct and the associated disciplinary and reinstatement proceedings the Respondent was specifically on notice of the need to maintain appropriate patient/doctor boundaries; (c) the fact that he was specifically on notice of the need to maintain appropriate patient/doctor boundaries, and was subject to conditions in part intended to ensure that appropriate patient boundaries were maintained, makes the context of his conduct in Complaint 1 more serious, and is a factor that supports the finding that the conduct is sufficiently serious in nature to justify a finding of professional misconduct in Complaint 3."
In submissions of 11 February 2022, p2, Counsel for the Respondent submitted that "The only conceivable relevance of Dr Litchfield's past conduct, any admissions thereto, and any findings about such condition is at Stage 2 of these proceedings". We accept that the Respondent's disciplinary record is relevant to the determination of Stage 2 of these proceedings.
Albeit in different ways, each party sought to gain support for its or his case from the Judgment of Hunt AJA, with whom Mason P and Hodgson JA agreed, in Lindsay v Health Care Complaints Commission [2005] NSWCA 356. As with virtually all disciplinary decisions, Lindsay turned on its own facts. We do not accept that, on balance, Lindsay advances either party's case with respect to this controversy. The critical issue in Lindsay, we perceive, related to the findings of fact with respect to misconduct, rather than whether findings of unsatisfactory professional conduct were sufficiently serious to constitute professional misconduct. We have had particular regard to paragraphs 26 to 30 of the Judgment in Lindsay to which Counsel for both parties referred us.
In view of the finding with respect to professional misconduct which we record later in these reasons, we do not need to rely upon the Respondent's disciplinary record in assessing the seriousness of the Respondent's unsatisfactory professional conduct, and do not take it into account in our Stage 1 determination. So doing has, in our view, the attraction of avoiding a situation in which the Respondent's disciplinary record is taken into consideration to his detriment when determining the seriousness of his conduct at Stage 1, and then taking it into consideration again, and again to his detriment when determining the appropriate protective orders at Stage 2 of the proceedings. On balance, in the circumstances of this case, we are satisfied that our approach is fair to the Applicant. Having invited the Tribunal to adopt this approach if Stage 2 is enlivened, the Respondent cannot complain about our approach to his disciplinary history at Stage 1.
Counsel for the Applicant (Submissions 31 January 2022 p7 para 27-p12 para 36) referred to a number of authorities in support of the Applicant's contention that, individually or in combination, the conduct relied upon in Complaints 1 and 2 amounted to professional misconduct. Counsel relied (28) on the decision in Health Care Complaints Commission v Burton [2017] NSWCATOD 57 at [111] in which it was said that, in evaluating whether unsatisfactory professional conduct was sufficiently serious to justify a finding of professional misconduct: "circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, any mitigating factors and an evaluation of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment."
It was further said that "In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases, but by reference to the extent to which it departs from proper standards". The assessment of the objective seriousness of the present Respondent's offending conduct is informed by the standards against which his conduct was assessed and found to fall substantially below the standard reasonably expected of him.
Whereas the Tribunal has the expert evidence of Dr Golding to which we have earlier referred, establishing the extent to which the Respondent's conduct with respect to individual particulars of complaints departs from proper standards, the evaluation of whether that conduct is "sufficiently serious" to constitute professional misconduct falls to the Tribunal, which undertakes that evaluation without the direct assistance of expert opinion evidence.
Counsel for the Applicant relied (29) upon Hampshire v Health Care Complaints Commission [2021] NSWCA 283, at [47] in which Basten JA's statement in Chen v Health Care Complaints Commission [2017] NSWCA 186; [2017] 95 NSWR 334 at [20] was cited. The passage in Hampshire upon which the Applicant placed particular reliance stated that the Tribunal had: "recorded Dr Hampshire's explanation of his conduct, being his excessive ingestion of alcohol and taking one 10 milligram Temazepam tablet, when finding that it did not accept that Dr Hampshire had no recollection of his conduct in relation to Patient A. The weight to be given to that explanation in assessing the serious nature of the conduct was a matter for the Tribunal. The Tribunal's finding that the conduct the subject of the boundary violation warranted the suspension or cancellation of Dr Hampshire's registration and therefore a matter to professional misconduct was an evaluative judgement well open to the Tribunal."
The Tribunal has taken into account, to his detriment, the Respondent's asserted absence of recollection of a number of Patient A's allegations in evaluating Complaint 1. Although comfortably satisfied that Patient A's version of disputed conversations should be preferred to that of the Respondent, the Tribunal's findings do not involve finding that the Respondent was untruthful or disingenuous in saying that he did not recollect having made a number of the comments alleged by Patient A. Nor has the Tribunal found the Respondent to have otherwise conducted his case before it in a manner which aggravates the seriousness of his offending conduct.
As Basten JA said in Chen, each case depends upon "an evaluative judgement to be made by the Tribunal as to the nature and seriousness of the conduct". It is relevant that the Respondent has readily conceded that he does not recall numerous disputed conversations, and, accordingly, was only able to say that he was unlikely to have said the things alleged by Patient A. Properly in those circumstances, Counsel for the Respondent's cross-examination of Patient A was directed to closely, but carefully and sensitively testing the accuracy of her recollection of the conversations. The Respondent's defence to the Applicant's Complaints before the Tribunal, as conducted by his Counsel, by comparison with his apparent stance at the s 150 hearing, does not in our view increase the objective seriousness of his offending conduct. It was appropriate that the accuracy of Patient A's recollections was tested, as they were in a proper and constrained manner.
The Applicant submitted (30) that the Respondent's conduct pursuant to Complaint 1 fell towards the "top end of the spectrum of seriousness" for a variety of reasons, including Patient A's vulnerability, and the clearly established reasons for it, the Respondent's awareness of that vulnerability and of the nature and extent of that vulnerability from at least his third consultation with Patient A, that Patient A's vulnerability resulted in her having heightened trust in and reliance on the Respondent acting in her best interests; that, notwithstanding Patient A's vulnerabilities, and where the Respondent admitted having no previous experience in providing a certificate for a Disability Support Pension, outdated experience in the treatment of PTSD, and little if any exposure to such serious examples of domestic violence involving serious sexual assaults, he nevertheless took it upon himself to investigate and verify aspects of Patient A's PTSD symptoms by "quizzing" her about details of the assaults; the investigations were undertaken notwithstanding that the Respondent knew that Patient A was attending a psychiatrist and two psychologists, including one specialising in sexual assaults; the Respondent undertook those investigations as a consequence of his "obsessional traits", and for his own benefit, without regard to the impact of his actions on the particularly vulnerable Patient A; the Respondent had available to him Patient A's medical history but did not access it sufficiently; the Respondent engaged in conversation with Patient A which was inappropriate and breached patient/doctor boundaries, the Respondent had every opportunity over a two month period to identify that he required assistance and obtain that assistance from a supervisor or peer but did not do so; and, in relation to Complaint 2, the failure to record his investigation into Patient A's PTSD were serious having regard to the fact that Patient A attended on other doctors at the practice, the risk of retraumatising Patient A if there was repeated questioning by different practitioners about details of her PTSD and the fact that the Respondent conducted his investigation at least in part due to a belief that Patient A might initially have been delusional with respect to her PTSD.
The matters to which Counsel for the Applicant referred provide cogent support for finding that the Respondent's offending conduct is sufficiently serious to constitute professional misconduct. We do understand that the National Law, or the authorities require more than a finding that unsatisfactory professional conduct is sufficiently serious to constitute professional misconduct, although, if Stage 2 is enlivened, the more serious the offending conduct of the practitioner, the stronger the case for cancellation or suspension of his or her registration to protect the health and safety of the public becomes. Evaluating the seriousness of the Respondent's conduct by reference to a "spectrum" of seriousness, as invited by the Applicant, is problematic in the absence of references to cases which are asserted to provide the components or extremities of the spectrum.
The Applicant's case from at least 24 November 2021 in support of finding the Respondent guilty of professional misconduct was the asserted knowledge that he had a tendency to minimise areas of practice where his experience and/or skills were lesser, was practising under conditions that still required him to liaise with a supervisor and comply with other requirements, had some awareness of his obsessional personality traits, and had previous experience of disciplinary matters.
We accept that all but the last of the matters relied upon by the Applicant are relevant to assessing the objective seriousness of the Respondent's unsatisfactory professional conduct. The last matter raises the issue which may be better considered at Stage 2. In the circumstances of this case, so doing would not alter the outcome of the proceedings. We perceive that, if the Respondent's disciplinary history is taken into account in assessing the seriousness of his offending conduct, and the proceedings progress to Stage 2, it would be difficult to justify again taking that history into account without unfairly prejudicing the Respondent.
In submissions of 11 February 2022 (47) Counsel for the Applicant submitted that the contentions of the Respondent conflated "the proof of conduct with the evaluative process involved in determining whether or not the unsatisfactory professional conduct that has been found proven amounts to professional misconduct". Having regard to our decision with respect to the Part B documents, and the Applicant's clear disavowal of reliance upon professional misconduct which has previously been found proven to prove disputed allegations of fact in these proceedings, any risk of the asserted "conflation" dissolves.
It was submitted by Counsel for the Respondent (Submissions 8 March 2022 para 8) that "the context in which Dr Litchfield found himself exploring aspects of Patient A's past is extremely important in assessing the nature of the conduct", and developed that submission in some detail. We struggle with the proposition that the Respondent, in order to mitigate the seriousness of his unsatisfactory professional conduct, can rely upon his personal circumstances, and the "context" in which he found himself by virtue of the patient's circumstances, as well as his own, without thereby rendering relevant his past disciplinary history. To accede to that suggestion would, in our view, potentially involve focussing on the personal circumstances of the Respondent, and risk failing to regard the health and safety of the public as the paramount consideration, as required by the objective and guiding principle mandated by s 3A of the National Law. It would also potentially involve assessing the culpability of offending conduct subjectively, rather than objectively, an approach which lacks support from the authorities, or the provisions of the National Law.
It is instructive for the purpose of testing the Respondent's contention to look at the "five contextual matters" to which his Counsel referred (p3 para 18 of his submissions). In our view it would be unrealistic to take those matters into account when assessing the objective seriousness of the Respondent's unsatisfactory professional conduct, without also taking into consideration that he was under supervision at the time of his offending conduct, and that he had considerable prior experience of disciplinary proceedings involving boundary violations, which had resulted in his inability to practise medicine for many years, all matters which assume significance when the appropriate protective orders are determined at Stage 2.
It was further submitted by Counsel for the Respondent (p11 paras 85-88) that evidence which "may explain but not excuse or justify the conduct" could be relied upon by the Respondent "to distinguish between deliberate misconduct as opposed to, in this case, conduct derived from a combination of personality issues, outdated clinical knowledge, perceived need to verify a DSP application and a misplaced desire to address a multitude of matters in a general practitioner context". The objective and guiding principle which finds expression in s 3A of the National Law render it difficult to accept that the objective seriousness of unsatisfactory professional conduct varies according to factors of the kind identified by Counsel for the Respondent, relevant though some of them may be in a Stage 2 determination.
Although ultimately unnecessary, in view of our approach to the Respondent's disciplinary history, we have considered the submissions of Counsel for the Respondent (p22 para 106) with respect to the asserted procedural unfairness of the Applicant's purported reliance upon the Respondent's disciplinary history for the purpose which was made clear on 24 November 2021. Given that the proceedings were heard over a number of days in November 2021, and a number of further days in January 2022, we are not persuaded that, whatever procedural unfairness may have potentially arisen prior to or on 24 November 2021, by the conclusion of evidence on 31 January 2022 the Respondent was in any doubt as to the case which was being presented against him, in terms of its legal or evidentiary foundations.
Counsel for the Respondent submitted that the "Respondent's personality traits/diagnosis of ASD" supported a finding that his unsatisfactory professional conduct did not constitute professional misconduct (p23 para 108), a contention which was further particularised (p23 para 110). For the reasons we have recorded earlier, we do not accept that these factors assist the respondent at Stage 1 of the proceedings. We cannot accept that a medical practitioner's personality, or diagnosed or undiagnosed health conditions can justify violation of patient-doctor boundaries.
The statement of Basten JA in Chen that professional misconduct is "merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation" and the terms of the legislation, in our view, support an objective evaluation of the seriousness of the unsatisfactory professional conduct which has been found, without regard to the personal circumstances of the practitioner who is found guilty of such conduct. The Respondent's purported reliance upon the asserted vulnerability of Patient A is in our view misconceived. In circumstances where he knew, or should have known that Patient A was, or might be, "vulnerable", the Respondent should have been particularly careful about the topics of his comments, and their terms. Rather than mitigating, Patient A's vulnerability with respect to the topics raised by the Respondent's comments, and how he persisted with them, aggravated the objective seriousness of his conduct.
The unsatisfactory professional conduct which we have found proved involves serious boundary violations with insensitive, offensive and inappropriate remarks to a patient who the Respondent knew, or should have known, was vulnerable and whose health was likely to be adversely impacted by such violations. The offending comments were made on more than one occasion and, we accept, continued despite Patient A, both verbally, and by her body language, making apparent to the Respondent that she did not want him to explore the matters which he was seeking to explore, and was uncomfortable with his doing so. As the evidence establishes, the Respondent's conduct represented a real risk to Patient A's health and safety. The Respondent's offending conduct was improper and unethical, and seriously so.
The nature and extent of Patient A's vulnerability, which was, or should have been well known to the Respondent before he said the things which we are comfortably satisfied that he said to Patient A elevates the objective seriousness of his conduct. Although it may be relevant to Stage 2, we do not accept that the "perfect storm" to which Professor Morris first referred, and other experts subsequently referred, mitigates the seriousness of the Respondent's offending conduct. It is improbable that in present day Australia, a general practitioner would not regularly have to treat patients who have been actual or apprehended victims of sexual abuse or domestic violence. Unsurprisingly, no medical witness in these proceedings suggested, or could have suggested that the "perfect storm" could not recur.
The Respondent's attempts to provide psychological counselling for Patient A when he was clearly not qualified to do so also elevate the seriousness of his offending conduct, particularly when the Respondent knew that Patient A was attending a psychiatrist and two psychologists, including one who specialised in sexual assaults, and that his own qualifications and experience ill equipped him to venture into the domains of those experts.
The Respondent's failure to recognise that he required assistance, or seek the guidance of his supervisor is also a matter which elevates the seriousness of his conduct.
Dr Golding concluded his report (HCCC 1 Tab 13 p13) by saying: "In my view, based on the information provided by Dr Litchfield there has been significant breaches of the standard. These include failure to maintain professional boundaries and failure to meet minimum standards of medical care for a vulnerable patient. If [Patient A's] version of events is accepted, the breaches compound to being profoundly disturbing."
As our findings confirm, Patient A's version of events has been substantially accepted. Dr Golding concluded in his report by saying: "I have been saddened to review this case reflecting on the potential effect of these events on a vulnerable woman who has sought help from her GP for a condition that was completely unrelated to the condition that she presented to the doctor for in the first place."
In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [75], Bell P, as Bell CJ then was, referred with approval to the statement by Basten JA in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46] that: "Generally, the concept of "reasons" requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgement, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint."
For the reasons which we have recorded, the Tribunal finds that the Respondent's unsatisfactory professional conduct with respect to Complaint 1 is sufficiently serious to comfortably satisfy us that the Respondent is guilty of professional misconduct. In our view, Dr Golding's expression "profoundly disturbing" accurately reflects the objective seriousness of the Respondent's offending conduct. Without downplaying the importance of maintaining adequate medical records, the finding of unsatisfactory professional conduct pursuant to Complaint 2 does not increase, or need to increase the objective seriousness of the unsatisfactory professional conduct established pursuant to Complaint 1.

Complaint 4

Complaint 4 asserts that the Respondent has an impairment "namely Autism Spectrum Disorder" (ASD) or, in the alternative: "has an impairment in that he has one or more of the following traits: (a) he has obsessive, rigid, inflexible personality traits; (b) he gets caught up in the minutiae of clinical interaction and finds it hard to focus on the bigger picture; (c) he is impulsive and can say things that may be detrimental, hurtful or offensive to others; (d) he has difficulties interacting with colleagues and peers; (e) he does not seem to have much awareness of other people's emotional distress or underlying vulnerabilities; (f) his manner in the clinical setting is open to misinterpretation and may lead to discomfort within patients."
The Respondent's reply to this Complaint stated that he: "admits Complaint Four in that he may have a mild impairment, noting that various diagnoses have been made as to whether he fulfils the criteria for ASD or Aspergers or aspects of same, but the resolution of this issue and the nature and extent of any impairment, including whether it detrimentally affects or is likely to detrimentally affect capacity to practice the profession is ultimately a matter for expert evidence."
The submissions of Counsel for the parties define what our consideration of this Complaint involves. Counsel for the Applicant referred (Submissions 31 January 2022 p12 para 37 to p13 para 39) to the definition of impairment in the National Law which provides (s 5(a)) that: "The person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect … the person's capacity to practice the profession."
In view of the expert evidence before us, and the Respondent's concessions with respect to it, the inclusion of "condition" in the definition of impairment renders it unnecessary for the Tribunal to seek to resolve the differing expert opinions with respect to the diagnosis of the "condition" which the Respondent undoubtedly has. The issue for determination is whether the Applicant's condition "detrimentally affects" or is "likely to detrimentally affect" the Respondent's capacity to practise medicine.
The Applicant submitted that that evidence establishing that the Respondent suffers from ASD, and thus a condition, included the reports of Dr Samuels, who considered the Respondent to have: "some autistic spectrum traits which impact upon his clinical thinking and judgement, his ability to prioritise the hierarchy of diagnostic issues and to become overinvolved and preoccupied with aspects of the presentation and problems with social interactions in terms of reciprocal communication and responding to social cues."
Dr Lotz, considered the Respondent to be "on the autistic spectrum, predominantly Asperger's Syndrome". Dr Adams considered that the Respondent "demonstrates several of the characteristics seen in adults with Asperger's Syndrome, particularly in relation to social situation abnormalities". Professor Morris considered that the Respondent suffered "impairment caused by mild Asperger's syndrome". Dr Lennings considered that the Respondent has "some traits of ASD".
The Cambridge Dictionary includes in the definition of "condition" the "particular state that something or someone is in", including the "state of health" of a person. Affording "condition" in s 5 of the National Law its ordinary meaning in the context in which it appears, is consistent with the objects and purpose of the National Law (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; [1998] 194 CLR 555 at 384).
Counsel for the Respondent submitted (Submissions 8 March 2022 p24 para 115 to p27 para 166): "115 The real issue for the Tribunal is not whether Dr Litchfield has an impairment, but whether it is likely to detrimentally affect the Respondent's capacity to practice medicine." That condition was appropriate. The issue for determination is the likely effect of the Respondent's impairment on his capacity to safely practise medicine.
It was further submitted by the Respondent (116) that the: "key concepts for the Tribunal's consideration are whether it is likely in the future to have the relevant effect and whether it will in fact detrimentally affect his capacity. The two run together. The fact of having some kind of formal, contained or clearly articulated diagnosis, together with the work that Dr Litchfield has done with Dr Adams and Dr Lotz, and the guidance of the template, are significant factors which the Tribunal would be satisfied would mean that the likelihood of a complaint like this happening again is extremely remote if non-existent. To the extent that it may have residual concerns about how the safety issue may be properly managed in the future, the Tribunal can set appropriate conditions and safeguards in place."
As the submissions of the Respondent contend, unlike previous Complaints, the determination of which has involved evaluation of past events, this issue involves an evaluation of present events, and a prediction with respect to the future based upon that evaluation. As Counsel for the Respondent's submissions make clear, although, procedurally, this is a Stage 1 issue, given that we have earlier found professional misconduct, thereby enlivening a Stage 2 determination, the substance of this complaint also goes to the heart of determining the orders which are appropriate to protect the health and safety of the public and the public interest. We accept the submission of Counsel for the Respondent that the Tribunal must be vigilant to avoid conflating Stage 1 and 2 issues by venturing into consideration of conditions which might adequately address any impairment which is found pursuant to s 5 of the National Law.
We perceive that, in the circumstances of this case, in the context of a Stage 1 determination, this issue should be addressed by determining whether, without "conditions and safeguards", to adopt Counsel for the Respondent's expression, either of the matters articulated in s 5 of the National Law is established. If either is, then, a matter for consideration at Stage 2 would be whether, in the light of the findings made with respect to impairment at Stage 1, there are conditions and safeguards which could be imposed upon the registration of the Respondent which would adequately protect the health and safety of the public and the public interest, without the necessity to cancel or suspend the Respondent's registration.
As the submissions of both Counsel recognised, this issue ultimately turns upon our evaluation of the evidence of each of the experts to whom Counsel for the Applicant referred in the submissions which we have earlier identified.
Given the detailed and cogent submissions of Counsel for each of the parties, the Respondent of 8 March 2022, the Applicant in reply on 11 March 2022, it is appropriate that we expose the reasons for our determination of this Complaint is by reference to those submissions. Given the concession on behalf of the Respondent that he has an "impairment", our focus is on the likelihood that such impairment will have the effect to which s 5 of the National Law refers.
We accept that the Applicant bears the onus of establishing to the Tribunal's comfortable satisfaction that condition detrimentally affects, or is "likely to affect the Respondent's capacity to practise medicine". Sensibly in our view, the focus of attention has been on whether the Respondent's impairment is likely to affect his capacity to practise medicine in the future.
The level of satisfaction required with respect to whether a future state of affairs is "likely" has been the subject of judicial consideration. In Tillmans Butcheries Pty Limited v Australasian Meat Industry Employees' Union [1979] 42 FLR 331 at 346; 27 ALR 367 at 380, Deane J (then a Judge of the Federal Court of Australia) said that: "The word "likely" can, in some contexts, mean "probably" in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a 50 per cent chance … It can also, in an appropriate context, refer to a real or not remote chance or possibility, regardless of whether it is less or more than 50 per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to "prone", "with a propensity" or "liable"."
The meaning of "likely" is determined by the context in which it appears in the National Law, and the objects and purpose of the legislation. If a "penalty" can result from a failure to predict the probability of the event in question, the higher standard of "likelihood" as a probability is generally indicated (Australian Securities Commission v Nomura International plc [1998] 89 FCR 301 at 395-6; 160 ALR 246 at 338, RJE v Secretary, Department of Justice [2008] VSCA 265; [2008] 21 VR 526 at [21], [53]. Conversely, if a "benefit" results from the likelihood of the event, the likelihood is more likely to involve "more than a remote possibility" (Secretary, Department of Employment, Education, Training and Youth Affairs v Barrett [1998] 82 FCR 524 at 527-8; 52 ALD 499 at 502).
As cancellation of the Respondent's registration as a medical practitioner could be seen as involving a penalty, in view of the objects and purpose of the National Law, determining the relevant likelihood on the basis of probability may appear to impose an unduly onerous burden of proof on the Applicant, effectively equating "likely" with "will". Conversely, to require proof only of "more than a remote possibility" would, in the circumstances of this case, where there is, on any view of the evidence, at least a possibility that the Respondent's condition is likely to detrimentally affect his capacity to practise medicine, impose an unduly generous standard of proof on the Applicant.
Ultimately, as with all aspects of the application, the Applicant bears the onus of establishing, to the comfortable satisfaction of the Tribunal, each element of each of its complaints. In those circumstances, in the absence of authority to the contrary, and we have not been referred to any such authority, nor found authority which appears directly relevant for present purposes for ourselves, we propose evaluating this Complaint on the basis that the Applicant must establish to the Tribunal's comfortable satisfaction that there is a "real chance" that the Respondent's impairment is likely to adversely impact his capacity to practise medicine.
In Australian Competition and Consumer Commission v Metcash Trading Limited [2011] FCAFC 151; [2011] 198 FCR 297; 284 ALR 662, Buchanan J considered the meaning of "likely" in the context of the Competition and Consumer Act 2010 (Cth). Buchanan J said, at [40], that the "real chance" test involved "an error of analysis and an incorrect approach to the issue of construction" and articulated a different interpretation of the relevant test. His Honour observed that "some of the authorities support this (His Honour's view); some do not. At present, the authorities against it are the more influential. The test ("real chance") to which they give support was followed by the Trial Judge." The Trial Judge's decision was not disturbed on appeal by the Full Court in that case. Although, having regard to Buchanan J's analysis, the issue is less than certain, we are satisfied that the "real chance" test is fair to both parties and not inconsistent with the objective and guiding principle of the National Law.
Under the heading "Summary of main point by experts" the Respondent (119-166) referred to the evidence of the various experts called on behalf of each party. It was submitted (122) that the asserted absence of "professional guidance or opinion prior to this complaint about the underlying basis for his personality issues" and absence of "the benefit of the structured and focused training that Dr Adams has had with him" constitute a "highly significant difference from the unstructured and unfocused therapy he received previously", thereby militating against making a finding in either of the terms provided by s 5 of the National Law.
Reliance was placed upon Dr Samuels' statement in cross-examination (Transcript 23 November 2021 p66 line 4) that the historical therapy received by the Respondent "certainly didn't seem to address the personality traits particularly", and that the Respondent's current psychotherapy "was targeted at the very matters about which Dr Samuels was suggesting the framing of conditions". The evidence of Dr Samuels, at transcript p65 line 48 was asserted to support that submission.
It was submitted that the Respondent's expert, Dr Lennings, (124), identified 19 matters which, cumulatively, were submitted to militate against making either of the findings sought by the Applicant. In essence, the 19 points advanced on behalf of the Respondent involved the absence of reference to ASD by the "many psychiatrists" who had seen the Respondent "from the 1990s up to the 2012 proceedings", the Respondent's prior understanding being "largely in relation to physical touch and being aware of the things he does", suspicion that the "circumlocutory conversational style … was likely to be more of an issue in high anxiety situations", the Respondent's "ability to better identify since his diagnosis the things he needs to be aware of and avoid", the absence of "obvious factors suggesting a current risk of sexual acting out", the Respondent's presentation as "open and honest" and lacking "some guile", a "radical shift in environment" potentially activating "otherwise dormant aspects of the personality", the Respondent's "investigative interest" potentially becoming "maladaptive when excessive and under stress", the assessed "absence of extreme patterns of behaviour", the Respondent's interaction with Patient A "revealed a very socially and emotionally clumsy and insensitive manner" that the Respondent "possesses ASD traits", the absence of suggestion of any "conscious attempt at grooming or unconscious acting out of sexual interest or prurient interest" with Patient A, the Respondent having been "less aware of boundaries in conversation", the absence of suggestion of "narcissism in terms of using patients to further his own emotional or psychological sense", the "triggering of his interest in psychological detail" being "controllable through supervision and onsite discussion with a supervisor" and "outside of the forensic context it does not appear that he has significant impairments that would ordinarily result in him being unable to practice medicine". The Respondent also relied on Dr Lennings' oral evidence (Transcript 25 November 2021 p61) that the Respondent "had previously focused on really understanding the issues about touch and physical boundaries and giving less thought to boundaries in terms of conversation".
It was submitted (127) that Dr Lennings considered that the Respondent had demonstrated "insight as to those matters he admitted". It was also submitted (128) that "Dr Lennings felt that on most days Dr Litchfield did have an awareness as to how to engage with people and not over question, but there was something specific that triggered him in this instance". That submission was said to gain support from the evidence of Dr Lennings at transcript 25 November 2021 p66.
The Respondent referred to Dr Lennings' oral evidence with respect to Patient A that "in this particular instance, there was something about that particular interaction where it went too far in terms of his ability to think "well, what's the impact of what I'm saying on this particular patient?"" (Transcript 25 November 2021 p67 line 10), and to his evidence that the Respondent "got triggered in terms of investigative interviewing … and then when he became more aware of the vulnerabilities, he had a rather ham fisted attempt to try and increase her self-esteem".
The Respondent relied (130) on the evidence of Dr Lennings that his "understanding of Dr Litchfield is that he had seen a number of patients over the last 2 or 3 years prior to this event where there had been psychological components of the patients' presentation but he hadn't been triggered. There was a particular confluence of events that led him to being triggered that ended up with him then exploring in an inappropriate way some of the psychological issues for this particular client" (Transcript 26 November 2021 p6 line 43).
It was ultimately submitted with respect to Dr Lennings' evidence (131) that it "points to this complaint as being a highly unusual one-off event in circumstances where Dr Litchfield had otherwise been practicing for 3 years without apparent difficulties". The crux of the Respondent's submissions in reliance upon the evidence of Dr Lennings was thus that the Tribunal could not be satisfied that there more than a possibility that the Respondent's impairment would have the requisite effect on his capacity to safely practise medicine.
With respect to the impact on either of the matters referred to in s 5 of the National Law by virtue of the Respondent's current admitted inappropriate conduct occurring at a time when he was under supervision, the Respondent submitted (132) that the combination of post-complaint diagnoses, and a "greater awareness on Dr Litchfield's part of the danger in over investigation" and the probability that "supervisors in the future will similarly have a more targeted and nuanced understanding of his issues and what to interrogate him about, and how to better observe him". These factors were submitted to militate against finding that, notwithstanding the reality that the current inappropriate conduct occurred whilst the Respondent was under supervision, there was a real risk of a repetition of that conduct. Implicit in Counsel for the Respondent's submissions is that, without conditions and supervision, the Respondent's impairment is likely to detrimentally affect his capacity to practise medicine.
The evidence of Dr Lennings to which the Respondent referred (134) that the Respondent was a person "who has an awareness that he at times exercises poor communication competence and can get rather obsessive" and that "with that awareness or despite that awareness, he has continued from time to time to experience some difficulties in that area but mostly had been in control of that … and he had mostly been able to work effectively because he was able to manage those kinds of issues" (Transcript 26 November 2021 p10 line 11-21) is supportive of finding that the Respondent's impairment is likely to detrimentally affect his capacity to practise medicine.
The Respondent submitted (136) that Professor Morris found: "that the Respondent had characteristics of mild Asperger's Syndrome which causes an impairment to practice medicine, relating to his unusual personality style and style of communication giving rise to obsessional questioning and a focus on the particular rather than the whole picture, difficulty in recognising non-verbal communication and problems with fine tuned emotional responses and maintaining social boundaries and well meant by impulsive comments that can be interpreted as inappropriate."
Professor Morris was submitted to have considered that the Respondent was otherwise competent to practise medicine, "with conditions as proposed in his report". As we have earlier recorded, in our view, the consideration of the imposition of conditions as an alternative to suspension or cancellation of the Respondent's registration arises in the Stage 2 evaluation.
The Respondent referred (138) to Professor Morris' description of a "perfect storm" (Transcript 24 November 2021 p21) with respect to the Respondent's engagement with Patient A (Transcript 24 November 2021 p22 lines 1-6) and to the "constellation of things coming together" which Professor Morris did not see as "going to happen with every patient" (Transcript 24 November 2021 p26 line 21). Sensibly, Professor Morris did not suggest that it could not happen with any patient in the future.
As is not in doubt, and the submissions of Counsel for the Respondent did not seek to gainsay, implicit in Professor Morris' opinion that the health and safety of the public would be adequately protected if the Respondent practised with conditions is his recognition that the Respondent's condition is likely to detrimentally affect his capacity to practise medicine. The recurring theme of Counsel for the Respondent's submissions, in the context of a one stage hearing, albeit directed initially to Stage 1, is almost an acceptance of a finding in those terms.
Counsel for the Respondent referred to the evidence of Dr Samuels (140-156) who, as he observed, was the Applicant's expert, that he did not "believe that Dr Litchfield's clinical interactions with the complainant reflected a sexual predatory behaviour, and I think he was generally curious about her health issues". The Respondent addressed in some detail Dr Samuels' apparent move from his "previously held view" with respect to the Respondent's ASD traits, and to whether the questioning of Patient A about her past abuse may have included some "prurient interest" (146). Dr Samuels' evidence, which involved the possibility, or the inability to exclude some underlying prurient interest or other matter, particularly in the absence of support from any other experts, does not support a finding that any aspect of the Respondent's impairment involves the risk of behaviour with an underlying prurient interest or conscious or unconscious desire for sexual gratification.
The Respondent submitted (149) that Dr Samuels "also agreed that the comments (made by the Respondent to Patient A) would have been made without recognising that the patient may become distressed at them, and that the over questioning was consistent with Dr Litchfield's personality style" (Transcript 23 November 2021 p32 lines 34-3). The Respondent also referred (151) to the "fine details of supervision" which Dr Samuels thought to be necessary conditions of the Respondent continuing to practise. Nothing emerging from this evidence militates against finding that the Respondent's impairment is likely to detrimentally affect his capacity to practise medicine.
It was further submitted (153) that the "Tribunal could be satisfied that with his work with Dr Adams and continuing education about this area of practice (appropriate communications), Dr Litchfield is far better placed to recognise those cues and engage as a "gatekeeper" about them (to use his word), and seek appropriate clinical assistance with a patient, than he would have been in August 2019". We accept that the Respondent is "far better placed" than ever before to see and do those things. Whether he can do so if he resumes practice is another question. The contention of the Applicant that these matters constitute a "work in progress" is difficult to reject.
It was further submitted (155) that the Applicant's reliance upon the evidence of Dr Samuels with respect to this Complaint failed to have regard to the fact that Dr Litchfield has: "had his attention drawn to these features as traits of ASD or Asperger's Syndrome which he needs to be aware of" and "had significant therapy and instruction on how to manage and avoid things such as an impulse to get caught up in the minutiae, or to be impulsive and say things which, in this case, were fuelled by a clumsy desire to help self-esteem, or how to identify cues as to a patient's emotional distress or other underlying vulnerabilities."
It was ultimately submitted (156) with respect to the evidence of Dr Samuels that the Tribunal would not conclude from his "evidence in total anything other than that Dr Litchfield is mildly impaired, but that he is not so impaired such that, with conditions, his condition would be likely to detrimentally affect his capacity to practice medicine". It was further submitted that the Tribunal "could safely conclude from Dr Samuels' evidence that Dr Litchfield is competent to practice and is safe to practice with appropriately crafted conditions".
It is difficult to resist a finding that the Respondent's impairment is likely to detrimentally affect his capacity to practise medicine in circumstances where, notwithstanding the matters to which Counsel for the Respondent has referred with respect to Dr Samuels' asserted uncertainty as to the conditions which are appropriate to be imposed, no expert who has given evidence before the Tribunal suggests that the Respondent should be able to continue to practise medicine without what, on any view, would be more onerous conditions than those to which he was subject at the time of his offending conduct.
The Respondent submitted (157-159), that his psychiatrist, Dr Lotz had "significantly more interaction" with the Respondent than any of the other experts who had seen and assessed him. It was submitted that the Tribunal would accept the evidence of Dr Lotz that the Respondent's prognosis is "favourable in that once the individual has the insight into their symptoms of ASD, they can start modifying their behaviour and be aware of how people perceive them". The Respondent also submitted (158) that the evidence of Dr Lotz established that the Respondent can now "manage his ASD in a way that sufficiently guards against any inappropriate treatment of patients". That contention involves an extension of the opinion on which it was based which we struggle to accept.
The Respondent further submitted (159) that: "In answer to the proposition that Dr Litchfield engaged in a boundary violation with Patient A, despite being aware of the risk to his registration of a boundary violation, Dr Lotz said that the Respondent did so without being aware of it". In view of the nature and extent of the boundary violations which we have found proved, the Respondent's failure to be "aware" of them is relevant to, and supportive of finding the requisite "likely" effect with respect to the Respondent's impairment.
In his report (R1 Tab 8 p7 para 7), Dr Lotz expressed his opinion that the Respondent was "not impaired within the meaning of the National Law as described above". Dr Lotz had earlier, in response to the question whether the Respondent currently suffered from "any physical or mental condition", stated that "Dr Litchfield does in my opinion have a diagnosis of ASD". That does not mean that the Respondent does not have an impairment within the meaning of the National Law.
Dr Lotz also suggested (p7 para 8) that the Respondent "should work in a multi practice, and not in a solo practice" and that the Respondent's supervisor, Dr Kelly, "had had no issues with Dr Litchfield working in his practice and under his mentorship". That comment ignores the reality that the conduct of the Respondent which gave rise to the present proceedings occurred whilst the Respondent was under Dr Kelly's supervision and, with respect to Dr Kelly, was not picked up by him, it not being in doubt that the Respondent made no report to him of any difficulties in his consultations with Patient A.
With respect to him, cross-examination of Dr Lotz (Transcript 27 January 2022 p28 line 7 to p29 line 43) raised some concerns as to his objectivity with respect to the likely impact of the Respondent's condition on his capacity to safely practise medicine in the future.
In cross-examination (Transcript 27 January 2022 line 42) Dr Lotz confirmed that "Autism Spectrum Disorder is a lifelong condition". In cross-examination (27 January 2022) Dr Lotz was reminded that he had stated in his 2020 report that the Respondent was "a classic sufferer of Asperger's Syndrome. In his professional career he (the Respondent) has probably asked questions which can be construed as boundary violations in his practice and that he was not observant of the social distress may have caused a patient". Dr Lotz was asked whether he accepted "that it is the role of a general practitioner, or any medical practitioner, to ensure that boundaries are not violated?". In his response (p27 line 33) Dr Lotz said that "It depends on the vulnerability of the patient". That is a proposition which we are unable to accept. Dr Lotz further said that his "point is that with Aspergers they don't really know where the boundary is and often may ask questions … that may be more the role of a therapist than a general practitioner".
Dr Lotz ultimately (Transcript 27 January 2022 p50 line 6) accepted that "irrespective of the vulnerability of the patient it is the doctor's responsibility to maintain appropriate boundaries". Dr Lotz was then asked "And to the extent that Dr Litchfield has Autism Spectrum has [sic] Disorder that disorder unmanaged in the first instance contributes to his inability at times to manage those boundaries, is that right?". Dr Lotz replied "Correct, correct". Dr Lotz stated (Transcript 27 January 2022 p55 line 39) that he "didn't find any other psychiatric disorders other than ASD" with respect to the Respondent. We do not understand any other medical witnesses in this case to suggest otherwise.
We do not understand Dr Lotz to suggest that the Respondent could safely practise medicine without conditions. If that was Dr Lotz's opinion, it is in our view contrary to the preponderance of expert opinion evidence. Dr Lotz's own diagnosis of the Respondent's "condition" establishes an impairment pursuant to s 5 of the National Law. His written and oral evidence is consistent with the Respondent having an impairment within s 5 of the National Law.
The Respondent submitted (160) that the evidence of Dr Adams, the Respondent's treating Psychologist, "supported his return to practice" on the basis that the Respondent poses no threat to the health and safety of the public. The Respondent submitted (164), by reference to Dr Adams' evidence, that the Applicant's argument "that no amount of conditions would be sufficiently protective" if the Respondent were to return to practice was flawed. In her report (HCCC 1 Tab 55 p5), under the heading "Conclusion", Dr Adams said of the Respondent that "at times, he can become overzealous and irritatingly persistent with his questioning", and that he "now understands the need to be more circumspect in his communications with patients and the exploration of psychological and non-organic mechanisms". Dr Adams did not, and could not suggest that the Respondent's understanding of those needs will prevent a repetition of the conduct which has led to the current proceedings.
Dr Adams also referred to discussions with the Respondent of the "role of the GP as a gatekeeper managing the primary care of patients as part of a team: wholistic care depending on the facilitation of the expertise of a team more than an individual GP." Dr Adams stated her "support" for the Respondent's return to practice, and stated that he "understands the need for more rigorous attention to social boundaries and his role as the gatekeeper to refer on those patients with mental health needs to mental health professionals".
Dr Adams referred to working with the Respondent on "structuring a communication template to help in decision making regarding how to regulate time and communication during consultations, and when to refer on". The template is found at R1 Tab 1B. Dr Adams supported the Respondent's return to medical practice, and said that "continued psychological support and current supervision for a further six months is recommended to facilitate the transition back into medical practice".
In cross-examination (Transcript 25 November 2021 p43 line 20) Dr Adams agreed "Dr Litchfield does have difficulty finishing. Yes", and that she thought that was "under the same behaviour" as his "obsessional interest in getting to the bottom of something". Dr Adams also agreed that was "something that he still, from time to time, continues to have" in his interactions with her. Dr Adams further agreed (Transcript 25 November 2021 p42 line 35) that the "desire to get to be bottom of something" was an "obsessional trait" of "Aspergers, of wanting to find the answer, of getting the details. Yes, it is an obsession. An obsessive - it's an obsessive behaviour". Dr Adams confirmed that this "obsessive behaviour" was something that she was "still working with Dr Litchfield on" in her sessions. Implicit in her doing so is Dr Adams' opinion that the Respondent's obsessive behaviour remains of concern to her.
Dr Adams explained (Transcript 25 November 2021 line 24) that the: "template is protection for him, and it's really trying to highlight the necessity for him for a couple of things. One is the timing. … he has a difficulty in closing off if he gets obsessive about questioning. And to try and focus that, to be really aware of it, that's what we're trying to do with this template, is to help him really focus his attention on the timing, to make sure that he doesn't allow that obsessive personality to come into play and to limit himself and not let himself go down into a rabbit hole, which he did with Patient A, I believe."
Dr Adams was asked (Transcript 25 November 2021 p44 line 39) whether she considered that the template would prevent the Respondent from starting on that "slippery slope". Dr Adams replied: "Yes. And it's really just making - I mean, making him aware of that. You know, aware of the necessity of the boundary. Trying to make him more obsessional about the boundary, rather than getting overinvolved in questioning on a different topic. So I'm trying to help him become obsessional about time, and the boundaries, and focus."
Dr Adams described the "traffic light" concept with which she was working with the Respondent (Transcript 25 November 2021 p45 line 5) as "just a tool to draw his attention to really taking note of the signals that people might be doing. So he's got a deficit in reading social cues. So how do we deal with that? We deal with that by making it obvious. And so he's, you know, aware now of looking for those clues, those clues that warn him that "this is not a good place", that "We don't need to go any further on this issue"". When asked whether that was "a work in progress" with the Respondent, or whether the Respondent was "getting better at it", Dr Adams replied (line 20) "It's something that he's always got to be aware of, yeah. And he is aware of it, but he needs to constantly be - remind himself of that". Dr Adams suggested (line 25) that "ongoing therapy" with her or someone similarly qualified was necessary "at a very minimal level".
In response to a question from the Tribunal (Transcript 25 November 2021 p57 line 25) Dr Adams said that the Respondent "recognises that he needs to filter what he says, because he's been operating without a filter. But in reality, he's only really had this one complaint after returning to registration and yet he's seen many many thousands of people". Dr Adams added that "Now that this mistake has been drawn to his attention, that he's going to be actually, really, extremely careful in the future if he is registered, that this is a very sacred and important thing to him that he values highly". That evidence overlooks the reality that the Respondent was under supervision when the conduct which gives rise to these proceedings occurred, and risks minimising the magnitude and significance of the Respondent's "mistake". We accept Dr Adams' evidence that the Respondent "will do everything in his power to get it right". So doing does not, in our view, militate against making the finding sought pursuant to this Complaint in view of the unanimous view of the experts who have given evidence of the need for conditions to attach to the Respondent's registration if he is to return to practice.
Counsel for the Respondent ultimately submitted (166) that: "In short, the prognosis could collectively be described as Dr Litchfield has a mild impairment, whether it be described as having ASD traits, or Asperger's Syndrome (ASD), but it would not prevent him from working as a general practitioner, subject to some safeguards by way of conditions being put in place. It simply cannot be said that with appropriate conditions in place any impairment would continue to be likely to detrimentally affect his capacity to practice medicine in the future." Implicit in that submission is acceptance that it is open to the Tribunal on the expert evidence to make a finding that the Respondent's impairment is likely to detrimentally affect his capacity to practise medicine. Whether that is conceded or not, we are comfortably satisfied at the probability level that the Respondent's impairment is likely to detrimentally affect his capacity to practise medicine.
We agree with the submission of Counsel for the Applicant (Submissions 11 March 2022 p4 para 23) that, for this Complaint to be established, the Applicant does not need to satisfy us that the Respondent's impairment will "in fact detrimentally affect his capacity" as the terms of s 5 make clear. We also agree with the submission of Counsel for the Applicant (24) that the issue is not whether conduct of the kind which we have found established pursuant to Complaint 1 is likely to happen with every patient, the risk is whether the Respondent's impairment is likely to detrimentally affect his capacity to practise medicine safely with all patients. We also agree with the submission of Counsel for the Applicant that "the issue is the risk of it happening again with any patient".
We agree with the contention of Counsel for the Applicant (p5 para 28) that, because the Respondent is "far better placed than he was in 2019 to recognise cues, is not the same as him being in a position from which he can satisfactorily identify cues". The Respondent has undoubtedly made considerable efforts to avoid the risk of a repetition of the conduct which gives rise to the current Complaint, on all of the evidence, including the Respondent's own candid evidence. The Tribunal is not satisfied that those efforts will prove sufficient to avert further inappropriate comments to patients.
The fact that the Respondent's ability to practise medicine has been predicated upon acceptance of his need of a consultation template (R1 Tab 1B), and the nature and extent of the provisions of it provide further support for finding this Complaint proved.
For the reasons we have recorded, the Tribunal is comfortably satisfied that this Complaint has been made out. The Tribunal finds that: 1. the Respondent has an "impairment" within s 5 of the National Law; 2. the Respondent's impairment is likely to detrimentally affect his capacity to practise medicine without risk to the health and safety of the public.

Complaint 5

Complaint 5 asserted that the Respondent was not competent within the meaning of s 139(a) and/or s 139(b) of the National Law, in that he lacks the mental capacity to practise as a medical practitioner and/or lacks sufficient communication skills for the practice of medicine. The Complaint reflects the terms of the statutory provisions upon which it is based.
The particulars of Complaint 5 are the particulars of Complaint 4, and that the Respondent: 1. "has an impulsive communication style; 2. lacks awareness of other people's emotional distress or underlying vulnerabilities."
By his Reply the Respondent denied this Complaint in reliance upon "expert appraisals including the work he has done with Dr Adams and Dr Lotz as to how he would approach practice in the future".
Section 139 of the National Law provides that a person is "competent to practise a health profession only if the person has", relevantly for present purposes, (a) "sufficient…mental capacity" and (b) "sufficient communication skills for the practice of the profession".
The particular of the Complaint pursuant to s 139(a) of the National Law state that it is made in reliance upon "the particular of Complaint 4". The sufficiency of the Respondent's "communication skills" is the foundation for the Complaint pursuant to s 139(b).
In submissions (8 March 2022 p37 para 167 to p38 para 174) with respect to this Complaint, the Respondent submitted that Dr Samuels had "consistently maintained that Dr Litchfield is competent to practice, with conditions" and reiterated in oral evidence (Transcript 23 November 2021 p75 lines 1-4 p28-30 38-40) that belief. Counsel submitted that Dr Samuels, was "struggling more about the types of conditions that would be protective" but, ultimately would be confident if "sufficiently robust conditions" were imposed. Counsel for the Respondent also referred to the evidence of Dr Samuels in re-examination (Transcript 23 November 2021 p75 lines 1-4 p28-30 34-40) that the Respondent may be excellent in some areas of general practice, probably 75% of his practice being adequate, but that the conditions proposed were to protect a sub-group of patients who were "vulnerable, challenging, complex patients".
Counsel for the Respondent submitted (168) that Professor Morris also was of the opinion that the Respondent was competent to practise medicine under conditions. The Respondent also relied upon the evidence of Dr Lennings in support of the Respondent's asserted competence to practise.
The Respondent's case with respect to this Complaint is essentially that "None of the experts, including the Applicant's own expert Dr Samuels, consider that Dr Litchfield is not competent to practice medicine" (169). It was further submitted (170) that there was no evidence before the Tribunal to the requisite standard to establish that Dr Litchfield lacks the mental capacity to practise medicine. It was conceded (171) that there was "some evidence that Dr Litchfield has issues in certain respects with his communication skills which are and have been remediable by vigilance and the training and guidance that he has received and continues to receive. There is no evidence that he lacks sufficient communication skills for the practice of medicine".
Counsel for the Respondent submitted that the reality that the Respondent's offending conduct had occurred whilst he was under supervision, though a "possibly superficially attractive" consideration, ignored the fact that "the concrete and precise formulation of what it is that he has, and how that might be addressed, did not occur until after the complaint had been made and targeted therapy had been commenced". It was also submitted that the consultation template adequately filtered or channelled any possible deficiency in the Respondent's skill in communicating with patients. It was further submitted (173) that the Respondent's conduct during consultations with Patient A suggested a "judgement overwhelmed by an ASD desire to get more detail, and a lack of skills in relation to dealing with PTSD patients, but not a lack of competency".
The Respondent submitted with respect to this Complaint that it did not: "properly reflect the true nature of how Dr Litchfield's Asperger's Syndrome/ASD traits might affect his practice of medicine. They do not render him, incompetent, rather they serve as both an advantage and possible disadvantage in terms of how he might go about communicating in a consultation. The Respondent stresses the advantage aspect as it has been acknowledged by a number of the experts that Dr Litchfield's questioning may be welcomed by many patients as a sign of the extent to which he is interested in understanding and dealing with their presenting problem. His therapy has focused on recognising when that questioning should be curtailed, and his own learning has focused on the same thing, in relation to complex and vulnerable patients."
The Applicant submitted (Submissions 11 March 2022 p5 para 31) that it was open to the Tribunal to find that the Respondent was not competent to practise medicine if it is unable to identify appropriate conditions. We have some difficulty with that proposition in circumstances where the adequacy of any proffered or other possible conditions upon which the Respondent might practise medicine is a Stage 2 determination. On the other hand, assessing competence without reference to conditions in the present circumstances is somewhat artificial. Our understanding of s 139, and the terms of the Applicant's Complaint, suggest that it is necessary for the Applicant to comfortably satisfy the Tribunal that the Respondent "lacks" the "mental capacity" to practise medicine, and that, as particularised in this Complaint, and/or that he lacks "sufficient communication skills" to safely practise medicine.
In the context of the Stage 1 determination, and having regard to the terms of s 139, we do not consider that reference to possible conditions or restrictions on the Respondent's practice of medicine is relevant to either of the matters which require our evaluation of this Complaint. We agree with the contention of the Applicant (Submissions 11 March 2022 p6 para 34) that the Tribunal "will have to examine closely the issue of whether Dr Litchfield's competence to practise can be assessed separately to the imposition of conditions". In the circumstances of this case, we consider that the issue of conditions is more appropriately considered in the context of Stage 2. That is particularly so in view of the Tribunal's finding with respect to Complaint 4, the substance of which considerably overlaps the substance of this Complaint. We agree that the Tribunal is "entitled to have regard to the fact that the imposition of conditions on Dr Litchfield, including supervisory conditions, and his adherence to them, did not prevent the conduct with Patient A occurring" in evaluating this Complaint. Notwithstanding that he was under conditions, the Respondent was unable to avoid making comments to Patient A which exhibited deficient communication skills in the practice of medicine.
Counsel for the Applicant referred (Submissions 31 January 2022) to the decision of the Tribunal in Health Care Complaints Commission v Thiruvarangam (AKA Rangam) [2017] NSWCATOD 179 (Rangam) in which the Tribunal considered the meaning of "mental capacity" in the context of the definition of "competence". It was accepted that "even where technical competence is demonstrated in some respects (or even generally), this does not preclude a finding that a practitioner lacks mental capacity to practice, and so is not competent" (Health Care Complaints Commission v CWY [2017] NSWCATOD 6 at [82]). We accept that to be the case.
The Tribunal also considered the decision in Health Care Complaints Commission v Flett [2016] NSWCATOD 138, and said: "If the Respondent had sufficient insight to appreciate the limitations on her capacity as a result of her limited cognitive resources, she would perhaps have the capacity to practice (safely) as a nurse - because it could be assumed that she would practice within those limitations."
The Respondent contends that he now has sufficient insight to appreciate the limitations of his ability, is actively, and the evidence suggests effectively addressing those limitations, and could be expected to practise within those limitations. As the Applicant submitted, the Respondent successfully made those claims in 2012. Against the background of what subsequently occurred, the Respondent's contention cannot readily be accepted.
The Applicant submitted (42) that there were a number of matters suggesting that the Respondent lacked competence. The first of those matters (43(a)) was the inability to "identify when he needs assistance". Had the issue of competence been assessed at the time of the conduct which gives rise to these proceedings, a finding in those terms would have been probable. Almost three years later, and in view of the evidence before the Tribunal to which we have earlier extensively referred, we are not comfortably satisfied that the Respondent now is not able to identify when he needs assistance. Similar observations apply to the submissions on behalf of the Applicant directed to this issue at 42(b), (c), (d), (e) and (f).
As it is not suggested that the Respondent is otherwise not competent to practise, this Complaint involves our evaluation of the Respondent's "mental capacity" to maintain appropriate boundaries in his communications with patients in general, and with vulnerable patients in particular. We accept that it is relevant to an assessment of the mental capacity to practise that, notwithstanding his history of disciplinary proceedings, the Respondent was unable to restrain himself from engaging in the inappropriate conduct which we have found established in earlier Complaints.
As is not in doubt, the Respondent admitted the particulars in support of Complaint 4 with respect to impairment, which are relied upon in support of this Complaint. The evidence before us comfortably establishes that the Respondent has an impulsive communication style, and lacks awareness of other people's emotional distress or underlying vulnerabilities as alleged in the particulars of this Complaint. The issue is whether his communication skills are "sufficient" for him to be competent to practise medicine.
As is not in doubt, since his return to practice, the Respondent has treated many patients, whether that be in the hundreds or, as Dr Adams suggested, the thousands, creating abundant opportunities for the Respondent to communicate inappropriately with those patients. In assessing the Respondent's capacity, it would in our view be wrong to ignore the fact that, without diminishing the seriousness of the conduct which we have found proved, the Respondent has been found guilty of misconduct with respect to only one patient. None of that excuses the failure to observe appropriate doctor/patient boundaries with Patient A, but the absence of complaint from many more patients, and the positive evidence of other patients, character witnesses, expert witnesses and other witnesses, lay and professional, relied upon by the Respondent suggest that the Applicant has not established that the Respondent is not competent to practise medicine having "sufficient" capacity within s 139(a) and "sufficient" communication skills within s 139(b). Although establishing disputed issues to the comfortable satisfaction of the Tribunal is not a mathematical exercise, the extent of the infrequency of complaints against a practitioner is relevant to that determination.
The Cambridge Dictionary defines "sufficient" as "enough for a particular purpose". In the context in which "sufficient" appears in s 139, and having regard to the objective and guiding principle which finds expression in s 3A of the National Law, we adopt that definition for the purpose of determining this Complaint. As is readily apparent, the definition "enough for a particular purpose" implies a reasonable but not exceptionally high standard.
For the reasons we have recorded, the Tribunal is not comfortably satisfied that the Respondent is not competent to practise medicine in accordance with the requirements of s 139 of the National Law.
Our determination is clearly evaluative but does not involve impermissibly accepting that the "benchmark" is the lowest level of competence but, having regard to the expert evidence to which we have referred, is a standard which is objectively appropriate in the circumstances.

Conclusion with respect to Stage 1

Having found the Respondent guilty of professional misconduct, and that he has an impairment which is likely to affect his capacity to safely practise medicine, Stage 2 is enlivened, and it becomes necessary to determine whether, as the Applicant contends, the Respondent's registration should be cancelled, or, as the Respondent contends, he should be permitted to practise, subject to the imposition of rigorous conditions on his registration.

Stage 2

Section 149C of the National Law is the source of the Tribunal's power to suspend or cancel the Respondent's registration as a medical practitioner.
In evaluating the Applicant's complaints, we have referred extensively to lay, medical and expert evidence which is relevant in the determination of Stage 2, and do not need to re-state that evidence, or our findings with respect to it. We take that evidence into account in evaluating Stage 2 of the proceedings. A number of matters raised in the context of Complaints 4 and 5 also have relevance to determining the appropriate protective orders.
The Respondent relied on a number of "character references" in support of his case. Most obviously the character references were referrable to Stage 2 proceedings. To the extent that they may have been intended to be relied upon at Stage 1, we have not taken them into consideration at that stage. If the character references were relied upon with respect to the asserted unlikelihood of the Respondent having made the dispute comments alleged by Patient A, we do not accept that the evidence impacts upon the unlikelihood of his having said those things, or misspeaking the truth with respect to those allegations (Health Care Complaints Commission v Gao [2022] NSWCATOD 73). If the character references were relied upon in either of those contexts at Stage 1, it would be difficult to exclude the Respondent's history of disciplinary proceedings in courts and tribunals to rebut any asserted unlikelihood of the Respondent not having made the disputed comments in reliance upon good character. We perceive no prejudice to the Respondent in taking that approach.
We have earlier referred in detail to evidence given by Dr Kelly with respect to the Respondent's communication style. Although Dr Kelly understands, and has considerable ability to deal with the Respondent's communication style, regrettably, he was unable to do so in the case of Patient A. If the risk of history repeating itself is to be alleviated, Dr Kelly would need to be more vigilant and active in his supervision of the Respondent than previously, and by reference to more onerous and prescriptive conditions of such supervision. Whether that is realistically likely requires careful consideration.
The Respondent also relied upon a character reference from Dr Gerald Hindman (R1 Tab 30). Dr Hindman made a statement on 24 August 2021. In his statement, which was, with respect to him, less than entirely objective, Dr Hindman, who has been supervising GP registrars at the Kennedy Drive Medical Centre since 2016, referred to his association with the Respondent, and his supervision of him, which extended over a period of 18 months.
In his statement Dr Hindman said that numerous patients of the practice had made "unsolicited comments" with respect to the Respondent's "willingness to listen to their presenting complaints and regarding his helpfulness with their management", and that he had personally "never seen any indications of the issues raised in the complaints or the particulars of the complaints". Dr Hindman's observations of the Respondent are not entirely consistent with those of other witnesses who have given evidence in these proceedings which we accept.
In evidence in chief (Transcript 26 November 2021 p47 line 22-39) Dr Hindman stated that the "agreed facts" which had been provided to him did not cause him to change the opinions which he had previously expressed. Cross-examination of Dr Hindman with respect to the matters which the Respondent admitted in the "agreed facts" revealed an unfortunate desire to defend the indefensible (Transcript 26 November 2021 p60 line 48 to p61 line 38). Dr Hindman said "I still can't see Dr Litchfield saying some of those things" and "I cannot hear Dr Litchfield saying a lot of those things that are claimed", including matters which the Respondent admitted.
Dr Hindman confirmed (Transcript p65 line 18-30) his opinion that "perhaps Dr Litchfield had been pressured into saying some things for the purpose of the proceedings". There is, properly, no suggestion that the Respondent suggested that to him, as Dr Hindman confirmed. Dr Hindman's misconception of the case against the Respondent was evident by his non-responsive suggestion that "the whole of this situation to me does not add up to Dr Litchfield being the predator that he is being made out to be" (p65 line 47-49). Dr Hindman confirmed (Transcript p68 lines 19-21) his opinion that "In the situation of the general practice consultation" the Respondent was "qualified to provide psychological counselling for PTSD" (p68 lines 18-20). Dr Hindman made clear that patients wanting to "air things" and wanting doctors "to comment as well" was what he thought "counselling is" (p68 lines 30-36).
Dr Hindman was asked about his "views about patients with significant psychological histories not being believable?" (p69 line 30-34) to which he replied "Yeah. They weren't quite my words but sometimes what they tell us is not right". Dr Hindman confirmed that, since the complaint which gave rise to these proceedings, he has treated the Respondent at his practice. Dr Hindman also confirmed that he has a "social relationship" with the Respondent and an affiliation through a "volunteer mission trip to the mountains in the north of Thailand", and said (p72) that he knew the Respondent "fairly well".
In response to questions from the Tribunal (p73 line 36 ff) Dr Hindman was asked with respect to the Respondent's "personality style", "What was your take in terms of his personality in terms of how he communicated?". Dr Hindman replied "He does like to get to the bottom of things. He does, I guess intense is the word sometimes but when he is meeting new people or if he is speaking to people, he definitely likes to follow up on comments and yeah, know what people are talking about, yeah", but rejected the suggestion (p73 line 44-47) that the Respondent "has an impulsive communication style, that he sometimes has no filter". No other witness who has given evidence in these proceedings shares that opinion. Dr Hindman was also asked whether he had ever noticed that the Respondent "has trouble interpreting social cues?". To which he replied "He may have some trouble being - yeah. Sometimes we ask him to stop now, yes".
Dr Hindman either failed to observe aspects of the Respondent's communication style and social awareness which every other witness in this case noticed, or he has been less than candid about those matters out of loyalty to the Respondent. Dr Hindman's evidence does not assist the Respondent's case with respect to this stage of the proceedings. Nor does Dr Hindman's demonstrated history of supervision of the Respondent inspire confidence that, if he were to again be the Respondent's supervisor, he would maintain the vigilance which the evidence, and the Respondent's own case suggests to be necessary. We do not understand the Respondent to suggest that, if he is able to practise, Dr Hindman would supervise him.
Person H provided a character reference for the Respondent (R1 Tab 20) dated 4 August 2021. We have earlier referred to Person H's evidence and her cross-examination. The evidence of Person H, which we accept, establishes that, not without some difficulty, the Respondent has shown a capacity to moderate his communication style and increase his social awareness. Person H's evidence that the Respondent's clinical practice has not otherwise been in question is consistent with the evidence of other witnesses, and the absence of evidence suggesting deficiencies with the Respondent's clinical competence.
Professor Peter Miller (R1 Tab 22) provided a character reference for the Respondent on 12 August 2021. Professor Miller has known the Respondent since 2020 and sees him "very regularly at a group we both attend and have enjoyed social occasions with him". Professor Miller's formal qualifications are "predominantly in human resource roles" and as "an industrial advocate for the New South Wales Government" with "the last 20 years as an academic, teaching, researching, and publishing in predominantly human resource areas and research design".
Professor Miller referred to the Respondent's "enquiring mind" in his character reference, but otherwise said little of probative value with respect to the matters in issue before the Tribunal in general, or the Respondent's communication style in particular. A number of Professor Miller's comments were misconceived, particularly his suggestion that it was "offensive that a mild disability would be raised as a reason that might be used to allege it would "detrimentally affect" the performance of anyone, especially in these more informed days and considering the antidiscrimination legislation".
Professor Miller was not required for cross-examination on his reference. Acceptance of his evidence does not assist the Respondent with respect to the Stage 2 determination.
In his reference (R1 Tab 44) Dr Lindsay deposed to his having known the Respondent "for over 48 years as a very close friend, as a medical student when we first met and as a medical practitioner". In his reference, Dr Lindsay said that the Respondent had always been "outgoing, sociable, communicative and interested in people" but otherwise did not elaborate on the Respondent's personality style, communication skills or social awareness, the greater focus of his reference being directed to his perception of flaws in the case against the Respondent.
In cross-examination (Transcript 27 January 2022 p66 line 35) Dr Lindsay said that the Respondent was "very analytical and he can be interrogating, he can be a little bit obsessional I think it makes for a good doctor but it can be for some people a little bit overwhelming". He further stated (p66 line 42-46) that the Respondent "can be very questioning and people want to say Bruce I've had enough and that's changed enormously over the last 10 years I guess nothing like it. He was always very hard to end a phone call with Bruce because he always had another question but otherwise nothing else particularly".
Dr Lindsay also said (p68 line 43-44) that he believed that "Some of Bruce's personality may have been overwhelming to some of those patients. I'm not sure, but easily misinterpreted". Dr Lindsay added (p68 line 50) that he thought that "Possibly Bruce has been slightly blindsided and he perhaps didn't see what was coming, which often does happen".
In his cross-examination (Transcript 27 January 2022 p71) Dr Lindsay was defensive of the Respondent with respect to the allegations which he had admitted in the Agreed Facts, and, with respect to him, said that "all those issues that this lady was facing" made it "difficult" for the Respondent (p71 line 8), more than once suggesting that Patient A "has a lot of mental health issues". Dr Lindsay was asked (p72 line 40) "Are you suggesting that Patient A's mental health issues have caused her to misinterpret things that have been said by Dr Litchfield, where those things were not in fact wrong?". He replied "When if they were said to perhaps somebody else they mightn't have misconstrued, yes, I would say that".
A number of Dr Lindsay's answers made clear that his benign interpretation of some of the comments which the Respondent admitted in the Agreed Facts was reliant upon his "knowing Bruce". Ultimately Dr Lindsay agreed with the proposition that being aware of the history of Patient A, the Respondent should not have said the things which he admitted, to which he replied "I think it was probably insensitive, yes" (p73 line 32-34).
Dr Lindsay's evidence does not materially assist the Respondent in the determination of Stage 2 of the proceedings.
Person B (R1 Tab 28) provided a character reference on 20 August 2021. Person B, who worked at a clinic where the Respondent worked, met the Respondent in 2018. He stated that he had found the Respondent to be "polite and professional at all times" and that "for many months following his suspension patients were still querying when he was to return to the clinic". Sensibly, Mr B was not required for cross-examination. His evidence does not materially impact on our determination of Stage 2.
Person S (R1 Tab 32) provided a character reference for the Respondent dated 25 August 2021. Person S has been employed on a number of occasions at the [medical practice] since 2005, retiring in 2018, returning to work in the practice in 2019 and continuing to do so since that time. Person S referred to working with the Respondent from January 2017 and finding him: "to be overbearing and difficult to work with. His communication and interpersonal skills were to say the least very poor. I felt that he lacked insight into his behaviour towards his colleagues. He could not or would not listen to advice that was given regarding the running of an afterhours practice. He would badger people if he didn't get the answer that he thought was the correct one. If I tried to explain the reasoning behind why something could not be done in the way that he wanted, he would go to other staff members and try and get an answer that suited him. There would be conflict between him and I on nearly every shift that we worked together."
Person S stated that, after a conversation with Dr Kelly: "I slowly started to notice that Dr Litchfield was indeed beginning to listen and take advice more easily, although at times he could regress back a little. He was able to communicate more effectively and would accept things without questioning why all the time."
Person S's opinion of the Respondent was that he was "overenthusiastic and wanted to please everyone all the time" and that, when she left the practice for a time in 2018 she was "impressed with his improvements as I believed that he must have been working very hard to become a valuable member" of the practice. As did other witnesses, Person S spoke well of the Respondent's clinical skills.
In evidence in chief (Transcript 27 January 2022 p77 line 8-12), Person S said that she had: "never had had a complaint from patients whatsoever, it was actually the opposite to that. People were asking for him, people were ringing up asking when they could see him. They were coming out saying what a lovely man he was, what a lovely doctor he was. A lot of the people said he was very through."
In response to a question from the Tribunal (Transcript 27 January 2022 p82 line 25-31) Person S described the Respondent as: "Very, not determined but like I would say one-eyed about something, he was very focused on one particular thing and not taking in the circumstance the surroundings around that thing. It was - his focus was very straight down the line, he was really focused and he - you know, someone may come back the other side of him and say but this is how it's done but he'd continue on that same path he was talking about."
Person S was then asked (line 33-34) whether she found "that he had trouble picking up on people's discomfort, if people were uncomfortable?". To which Person S replied (line 35-40): "I would definitely, most definitely. He didn't realise that when he was speaking face to face, especially behind the counter where it's close confines, he did not pick up on it at all and you know they're backing away from him and he doesn't realise that he's in their personal space and then he'd apologise, if you said something he would apologise, he said oh I'm sorry I didn't mean to do that and he would back - back away. But you had to point it out to him."
The evidence of Person S provides support for finding that, provided that he is subject to appropriate constraints, the Respondent has the capacity to control the aspects of his personality which have led to his current difficulties.
Dr Paul Baylon (R1 Tab 34) provided a character reference for the Respondent dated 26 August 2021. Dr Baylon has known the Respondent since 1993 and met him again in May 2020. Dr Baylon stated that the Respondent: "has excellent two-way reciprocal communication skills, with adequate understanding and interpretation of conversations and subject matter. Although he allows relevant feedback and interjection by me in Conversations, he has a tendency to focus on parts of the conversation that he is interested in and this can result in him continuing most of the conversation. At times I have found this challenging trying to get him back on track, using cues, then more direct awareness that he is overfocusing."
Dr Baylon's observations are consistent with those of all of the expert witnesses who have given evidence in these proceedings. Dr Baylon was briefly cross-examined, nothing emerging from his cross-examination assumes significance for present purposes.
Since his return to practice in 2016, albeit we have found that it involved professional misconduct with respect to Patient A, having treated, the evidence suggests, at least hundreds of patients, the Respondent has not otherwise been accused of inappropriate conduct. Although hearsay, there is a consistency in the evidence of those associated with the medical practices in which the Respondent has worked since his return to practice that patients have expressed confidence in his competence. The clinical competence of the Respondent has been noted by all relevant health professionals.
The evidence establishes that the capacity of the Respondent to moderate his communication style has been enhanced by the diagnoses with respect to his personality style, and his acceptance of the need to modify aspects of that style. The evidence of Professor Morris, Dr Samuels, Dr Lennings and Dr Adams provides support for that finding. The Respondent's ongoing involvement with Dr Adams, and, to a lesser extent, Dr Lotz, provides further support for that finding.
We accept, as submitted by the Applicant, that the Respondent "had an inflated idea of his own knowledge and skills" at the time of his offending conduct, and "thought he could identify that Patient A was delusional even though she had a treating psychiatrist who had at least endorsed the diagnosis of PTSD, and treating psychologists including specialist in sexual assault", and that, although not "experienced in sexual assault/domestic violence of this nature but decided to closely question Patient A about her experiences". The Respondent's answers to questions from the Tribunal suggest that the Respondent's capacity to avoid focussing too much on his professional strengths, and not enough on his limitations remains a "work in progress".
We are not persuaded, on all of the evidence, and particularly the expert medical evidence before us, and the absence of complaints by any of the many patients who the Respondent has seen since his return to practice, that the Respondent would reoffend if he were permitted to resume practice, provided that appropriate conditions were attached to his registration, and complied with, and that such compliance was closely monitored. The Respondent does not suggest that he should be permitted to resume practice without conditions.
The Respondent's inappropriate statements to Patient A involved serious errors of judgement. The Respondent's subsequent insight into his personality style, and diagnosis of a psychological condition, provides support for declining to find that permitting him to practise medicine constitutes an unacceptable risk to the health and safety of the public or the public interest. The Applicant accepts that its own witness, Dr Samuels, was of the opinion that Dr Litchfield was competent to practise medicine - albeit with conditions attached, and subject to his adherence to those conditions.
In support of its contention that, even with conditions, permitting the Respondent to resume practice constituted an unacceptable risk, the Applicant relied upon Dr Samuels' report that the Respondent has: "a very rigid, inflexible personality style. He finds it hard to focus on the bigger picture and gets caught up in the minutiae of clinical interactions. He is often impulsive and says things which can be detrimental or hurtful to others or offensive. He does not seem to have much awareness of other people's emotional distress or underlying vulnerabilities. He has difficulties interacting with peers and colleagues and his manner in the clinical setting is open to misinterpretation and may lead to discomfort within patients."
The evidence provides support for each of the matters to which Dr Samuels referred. The issue, however, is whether the Respondent lacks the capacity to comply with a regime of onerous conditions, aimed at filtering his communications in order to avoid a repetition of his offending conduct. A relevant consideration is that the unfortunate combination of factors or, as Professor Morris described it the "perfect storm", which arose in a number, but not all of, the Respondent's consultations with Patient A, and resulted in the present proceedings, is not suggested to have arisen with respect to any of the Respondent's many other patients. It is not suggested that Patient A was, or was likely to have been the only patient who the Respondent would have seen who suffered from PTSD and/or was a victim of actual or threatened domestic violence or other abuse.
The Applicant acknowledged (49), accurately, that none of the experts who gave evidence in these proceedings suggested that the Respondent should be permitted to practise without conditions, one of which was utilisation of the "consultation template". It was submitted that "Dr Adams recommended the template (to help in decision making regarding how to regulate time and communication during consultations, and when to refer) and conditions including continued psychological support and supervision". We agree that, if the Respondent is able to continue to practise medicine, adherence to the contemplation template from time to time devised by Dr Adams should be a condition of his doing so.
Professor Morris was submitted to have "recommended conditions including limiting to patients with limited single episodes of care, no follow up patients, no complex emotional problems, advanced patient screening, weekly supervision and chaperoned for any female examinations where clothes are removed". We agree that the restrictions which Professor Morris proposed if the Respondent is permitted to continue to practise medicine. As Professor Morris explained in his oral evidence, practically advance screening of patients who the Respondent should not see is not easy or straightforward. If the Respondent is permitted to continue to practise, he, and those employing him, would need to be diligent in "screening" the patients who the Respondent sees, and vigilant to avoid a repetition of the conduct to which Patient A was exposed.
Dr Lennings was submitted to have "recommended conditions including onsite supervision, supervise and review case list in advance or randomised patient checks, no double shifts and limited patient numbers". We do not understand that the imposition of those conditions is disputed if the Respondent's registration is not cancelled.
It was further submitted (50) that "Even Dr Lotz described relevant features which would impact capacity (asking detailed questions without observing patient distress/discomfort) and was of the view that Dr Litchfield should practice in a multi doctor practice". On the evidence before us, it is inconceivable that the Respondent would be permitted to practice in any but a multi doctor practice.
Although submitted specifically with respect to Complaint 5, the Respondent articulated its overall position clearly as: "Unless the Tribunal is satisfied that conditions can be framed that would prevent Dr Litchfield from engaging in the boundary issues that occurred with Patient A, and unless the Tribunal is satisfied that Dr Litchfield would adhere to the conditions, then Complaint 5 is made out and Dr Litchfield is incompetent to practice medicine, and must have his registration cancelled." That proposition encapsulates the issues which ultimately assume pivotal importance in the determination of Stage 2. The Tribunal must ultimately be comfortably satisfied that any suite of proposed conditions reasonably provided for the sufficient protection of the public, bearing in mind that if sufficient and workable conditions could not be formulated, the cancellation of the Respondent's registration would remain as an option in order to protect the public.
It was also submitted in this context that the Respondent's "history is relevant", particularly in so far as: "conditions were framed for Dr Litchfield's return to practice in the context of a history of boundary violations. By and large Dr Litchfield adhered to the conditions as framed. But those conditions failed to protect Patient A, in part because Dr Litchfield complied with the letter of the conditions, but did not, or was unable, to self-identify that he lacked relevant knowledge and experience and needed to consult with more experienced colleagues."
Each of the criticisms of the Respondent articulated in the Applicant's submissions has substance. The Respondent's disciplinary history, and the consequences of it for him, should have made him hyper-vigilant in his communications with all patients, and particularly with vulnerable patients, as he knew Patient A to be. Having been unable to practise the profession he loves for years, and encountered such difficulty in being allowed to resume practice, the Respondent's re-offending conduct, particularly as it occurred when he was under supervision which was intended to prevent such re-offending is little short of remarkable. That is even more so in view of the reality that, at his age, cancellation of his registration, or a lengthy suspension may herald the end of his career as a medical practitioner. Were it not for the expert evidence to which we have referred extensively, the Respondent's disciplinary history, and its implications, would weigh almost decisively in favour of cancelling his registration.
It is not ultimately possible for conditions to be framed which would guarantee that the Respondent would not re-offend. The power to cancel his registration having been enlivened, the issue for the Tribunal is ultimately whether it is satisfied that allowing the Respondent to practise with strict conditions would constitute an unacceptable risk to the health and safety of the public or the public interest.
Counsel for the Applicant submitted (52) that if a doctor requires such a template as the consultation template, and such onerous conditions as are proposed, to the risk of avoid harm to a patient is he "in truth competent to practise?". As Counsel fairly acknowledged this involves walking a "fine line" because, "if such a tool as the template allows a medical practitioner with ASD to function, then why wouldn't that facility be available to support that person function(ing) fully notwithstanding the impairment". The Applicant appropriately raised the question- "The template might address the recently diagnosed ASD, but is "might" sufficient? Having regard to the fact that the safety of the public is paramount, the answer must be "no"".
The evidence of the experts to which we have referred in these reasons, and particularly the evidence of Dr Adams, which we accept, provides support for finding that the template is likely to materially reduce the risk of the respondent inappropriately communicating with patients in the future, by maintaining his focus, and assisting him to "filter" his comments in ways that he otherwise might not. The template should not be viewed in isolation from the numerous onerous conditions which the Respondent invites the Tribunal to impose on his registration.
The Applicant's case is that the Tribunal cannot be comfortably satisfied that any conditions which might be imposed upon the Respondent's registration would adequately protect the health and safety of the public. The Applicant relied upon the findings of the Medical Tribunal in its 2012 decision stating at [125]: "The Tribunal finds that given the substantial and genuine insight that the Applicant has into his misconduct, his greater maturity, his settled personal life with a supportive partner, and the deep thought he has given as to strategies he would adopt in future practice (such as obtaining informed consent, not undertaking certain procedures, referring patients, the need for a chaperone), and his clear understanding that this is his last chance to practice medicine, that there is very little risk that the Applicant will reoffend. His standards have changed and in the Tribunal's view, the Applicant now understands and can assess how he must conduct himself as a member of the honourable profession of medicine." The Applicant submitted that, notwithstanding that in 2012 the Respondent persuaded the Medical Tribunal that there was little risk of his reoffending, and was given a "last chance" to practise medicine, the Respondent was unable to refrain from doing so, and doing so whilst under the supervision of a doctor who had loyally, and at considerable personal inconvenience, supported his being able continue to practise.
Albeit not in the ways in which he previously offended, the Respondent has undoubtedly reoffended as recorded earlier in these reasons. It is particularly concerning, as the Applicant submits, that the Respondent reoffended in the circumstances in which he has.
The Applicant relied upon a number of decisions in which reinstatement was considered (62). With respect, reinstatement applications are materially different to the present case and authorities dealing with that issue are of limited assistance. The decision of the Tribunal in Health Care Complaints Commission v Govan [2021] NSWCATOD 219 to which the Applicant referred (63) records, by reference to the authorities therein referred to, a number of the principles which govern the evaluation of Stage 2, but is of limited assistance for present purposes.
Counsel for the Applicant reiterated (65) a number of principles which are relevant to our determination. We accept that the protection of public safety and health is paramount, that the maintenance of standards of the profession, preservation of public confidence in the profession and protection of the community are mandatory relevant considerations (Prakash v Health Care Complaints Commission [2006] NSWCA 153). We also accept that 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" and that the "subject matter of the complaint may be broader than individual particulars of it and therefore includes those matters of fact advanced in support of it" (Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315).
It was submitted, correctly, that whether professional misconduct is sufficiently serious to warrant cancellation or suspension of a practitioner's registration is a matter of degree and judgement (Sabag v Health Care Complaints Commission [2001] NSWCA 411). We accept that our evaluation requires an assessment of the "gravity of the professional misconduct found proved, and consideration of remorse and insight, if any, demonstrated by the practitioner" (HCCC v King [2013] NSWMT 9). We accept that, although at earlier times less than apparent, the Respondent genuinely regrets his offending conduct, and desperately hopes that he does reoffend again if he is able to continue to practise medicine.
We have earlier recorded the objective seriousness of the professional misconduct which has been found proved. The Respondent's written and oral evidence, supported by the opinion evidence of Dr Lotz and, more significantly in our view, Dr Adams, demonstrates that the Respondent's insight into the problems caused by his personality have considerably improved. That finding needs to be weighed carefully- the Respondent was also found to have "genuine and substantial insight" into his misconduct in 2012.
As the authorities direct, we have assessed the gravity of the Respondent's conduct not by reference to the worst cases, or by applying the standard of perfection, but by reference to the extent to which the conduct departs from proper standards as they emerge from the expert evidence upon which we have relied.
We also accept that, although primarily protective, it is unavoidable that protective orders may be incidentally punitive, as Basten JA recorded in Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at 83; [2009] 74 NSWLR 523. We also accept that specific and general deterrence are relevant considerations, as part of maintaining the standards of the profession and ensuring public safety and faith in the profession are relevant (HCCC v Do [2014] NSWCA 307). We perceive that because of the Respondent's disciplinary history, both specific and general deterrence assume greater significance than in cases involving practitioners with no, or less extensive disciplinary histories of boundary violations.
The Applicant is correct to submit (66) that the Respondent has "breached the trust bestowed on him by the former Tribunal who allowed him to return to practice on the basis that it was his last chance", as the passage we have recited earlier confirms.
In support of its contention that the Respondent's registration should be cancelled, the Applicant advanced a number of other matters (67). We agree that the conduct found proven is "serious" as submitted by the Applicant and that its impact on Patient A was "serious, significant and ongoing". We also accept that the findings which we have earlier recorded involved serious breaches of the doctor patient relationship.
It was further submitted by the Applicant that the "incidental interim suspension of Dr Litchfield from the practice of medicine for the last two years does not, alone, convey" the appropriate censure, or, inferentially message to either medical practitioners or the public that such conduct will not be tolerated. We are not entirely comfortable with that proposition, given the time for which the Respondent has been suspended from practice, which now approaches three years. Relative to his age, that suspension is a significant indication to him, and other practitioners, of what can happen to a medical practitioner when serious allegations of misconduct are made against him or her. Although of his own doing, we are aware from statements by his Counsel, that the financial burden of his suspension, and of these proceedings on the Respondent is substantial. As the Respondent's identity will become public when the Tribunal's decision is published, if he is permitted to continue to practise, and practise subject to onerous conditions, the Respondent's reputation as a medical practitioner is unlikely to be enhanced.
The Applicant also submitted that: "Even if the Tribunal is satisfied that Dr Litchfield's ASD contributed to all of the conduct found proven, the Tribunal could not be satisfied either that Dr Litchfield has sufficient tools for managing is ASD to ensure that it will not cause him to engage in misconduct again or that there are conditions capable of managing the risks associated with Dr Litchfield's ASD."
We agree that the Respondent lacks "sufficient tools" to manage the possible consequences of his impairment or his personality style. The real issue is thus ultimately whether the Respondent has the capacity to observe the spirit, and not just the terms of the conditions which will be imposed on his registration.
We are not satisfied that the Respondent's offending conduct is entirely explicable by reference to his ASD, or any other diagnosed condition. The evidence does not establish that the Respondent's personality style itself will be, or could be changed. The Respondent knows what he must not do, or say during consultations with patients. The Respondent accepts that he can only do so if he is allowed to practise subject to onerous conditions. We accept that the respondent would do his best to comply with conditions.
It was submitted by the Applicant that the Respondent's insight into his misconduct "remains a work in progress" and that, as such, cancellation for a further period of time before he can seek re-registration is an appropriate response to the professional misconduct found proven. There are difficulties with that proposition, most obvious of which is determining for how long the Respondent should be unable to apply for re-registration. More importantly, no period of further cancellation would realistically change the nature or substance of the risk assessment which this case raises. At best, after any period of further suspension, the Respondent could adduce evidence of what experts consider would happen if he were permitted to resume practise. If the Tribunal finds that no regime of conditions attaching to the Respondent's registration adequately protects the health and safety of the public, cancellation of his registration would, in the circumstances of this case, be appropriate. If not, other than deterrence, it is difficult to see what further suspension would achieve.
The evidence of Dr Adams, at least implicitly, involves acceptance of the proposition that the Respondent's management of his personality style is a "work in progress" and will remain so for some time. As Dr Adams' evidence makes clear, she would be willing, as would be the Respondent, for her ongoing treatment of the Respondent to continue beyond the six month period which was expressly suggested by her. The Tribunal is concerned that, given the matters to which we have referred, the Respondent should not be at liberty to cease seeing Dr Adams for at least two years after he resumes practice, or thereafter be able to do so unless Dr Adams considered that further consultations were not warranted.
Although the submission of the Applicant with respect to the "continued shifting of blame onto Patient A as late as his September 2021 statement" has substance, the Respondent's oral evidence, much of which has been taken into account to his detriment with respect to Complaints 1 and 4, suggests that he now has an encouragingly different and more insightful approach to his misconduct, and his personality.
A number of submissions were made criticising Drs Hindman, Lotz, Kelly and Lindsay (68). We have earlier recorded our perception of the shortcomings in their evidence. With respect to Dr Kelly, it is in our view inevitable that we note that his supervision of the Respondent within the conditions as then imposed was deficient in ultimately protecting the public. There are cogent reasons why that is so, but that does not change the reality that, whilst under conditions which Dr Kelly was supervising, the Respondent reoffended on Dr Kelly's watch. Whilst Dr Kelly is to be commended for undertaking what has been an onerous task in the past, if the Respondent is permitted to continue to practise, under even more onerous condition, he will need to be more diligent and vigilant than was practical and possible in the past under the previous set of conditions. Although there can be no guarantees, Dr Kelly represents the best chance of the respondent complying with any future conditions which are imposed on his registration.
With respect to Dr Hindman, we would not be confident that he would be an appropriate supervisor of the Respondent if he is permitted to continue to practise medicine. The submission of Counsel for the Applicant that "the evidence of the Respondent's professional colleagues, treating practitioners and friends to see only the good in Dr Litchfield" (69) resonates with the Tribunal.
We accept that, as his treating Psychiatrist, Dr Lotz is understandably constrained in saying things which may be unhelpful in his professional relationship with the Respondent. The Respondent could continue to consult Dr Lotz as a treating psychiatrist in accordance with any conditions imposed on his registration if he is permitted to continue to practise.
Particularly having regard to Dr Kelly's greater insight as it emerged during his cross-examination in these proceedings, and the ability to frame conditions with greater specificity than has previously occurred, we do not find that Dr Kelly would be an unsatisfactory supervisor of the Respondent in the future. Whereas the attitudes of the other witnesses to whom the Applicant referred would, if any of them was advanced as a supervisor, eliminate them from that role, we do not have those concerns with respect to Dr Kelly.
The Applicant further submitted (72) that, inherent in the proposals for supervision of the Respondent were "filtering" mechanisms. The Applicant submitted that such a measure was "impossible to operate in practice as any patient attending for a physical illness or injury may have and raise without notice and in an otherwise routine appointment underlying mental health needs of unknown complexity". It was further submitted (73) that "suggestions that certain medical practices would be well suited for Dr Litchfield were optimistic at best, and plain wrong at worst". A number of examples were cited in support of that submission.
Whilst the Applicant's criticisms are valid, and no regime of supervision guaranteeing that the Respondent would not reoffend could be implemented in practice, the reality remains that, since his return to practice, the Respondent's consultations with Patient A are the only ones which have given rise to complaints. That is relevant to the risk assessment which the tribunal must undertake in this case in the interests of the health and safety of the public.
We agree with the submission of the Applicant (74) that the Respondent has "an inflated sense of his own capabilities" which could impact the exercise of his judgement as a medical practitioner. The evidence confirms that the Respondent at times struggles to reflect on his own limitations, preferring to emphasise what he perceives to be his strengths. We are not persuaded, however, that any "inflated sense of his own capabilities" would be inimical to the Respondent's compliance with the imposition of onerous conditions on his registration. The absence of other complaints, or demonstrated consequences of any overinflated sense of the Respondent's capabilities with other patients, reinforces that impression.
The Applicant ultimately submitted, by reference to Dr Adams' evidence (77-78) and the consequences of the Respondent's going "down a rabbit hole", that "when aspects of Dr Litchfield's ASD come to the fore - such as his fixated obsession in investigating an aspect of Patient A's symptoms or diagnosis - Dr Litchfield loses sight of the professional boundaries that are an essential element of a safe medical practice". It was thus submitted that the Tribunal could not be satisfied that any conditions which may be imposed upon the Respondent's registration would adequately protect the health and safety of the public.
The Respondent submitted (8 March 2022) a number of matters with respect to "protective orders and possible conditions". The Respondent submitted (199) that "cancellation would be a disproportionate exercise of the power vested in the Tribunal" and submitted "five main reasons" why that was so. The first of those matters was (201) that: "Objectively viewed the conduct in relation to Patient A in isolation, given it in large part flowed from the unintended operation of ASD traits and was otherwise accompanied by a poor understanding of PTSD, a desire to verify the DSP, and a misplaced interest in exploring a possible link between CFS and the PTSD, was not malicious or deliberate or wilful misconduct. The quality and nature of the conduct and its underlying intent or lack of intention to harm are critical factors in the Tribunal's evaluative process."
We respectfully disagree with that contention to the extent that it relies on the absence of intention on the part of the Respondent. The paramount consideration in these proceedings is the health and safety of the public. A well-meaning practitioner engaging in inappropriate conduct with a patient constitutes no less risk to the health and safety of the public than one who is "malicious or deliberate or wilful". The submission (202) that the Respondent has "given evidence that he deeply regrets the harm inadvertently caused to the patient by his questioning, and does not seek to excuse it by referring to its being unintentional, but rather he seeks to distinguish the effect of his conduct from harm deliberately or wilfully caused by a practitioner seeking to exploit a vulnerable patient" does not advance the Respondent's case, save to the extent that we accept that the Respondent regrets the harm which he caused to Patient A.
The second matter advanced by the Respondent was that, although the Respondent "has a prior and serious disciplinary history, this is not a case of repeat conduct". That contention is literally correct. Whilst no finding made in these proceedings involves "sexual gratification on the part of the Respondent", the offending conduct is grave, particularly given the Respondent's "serious disciplinary history" and reality that, having been given what the Medical Tribunal described in 2012 as a "last chance", it occurred whilst he was under supervision. These factors create serious impediments to accepting that conditions could be imposed on the Respondent's registration which would adequately protect the health and safety of the public.
The third matter relied upon by the Respondent (204) was that the Tribunal could "share" the "confidence" of the Tribunal in 2012. The Tribunal in 2012 made specific findings with respect to the conduct of the Respondent which led to the ultimate cancellation of his registration in 1997. It was submitted (205) that the "relevance of this factor is that it stands apart from those disciplinary matters where the practitioner has a history, but has never had his or her registration cancelled before, and has never demonstrated that degree of reform". With respect, common sense and logic suggest that, given his problematic disciplinary history, the Respondent should have been particularly vigilant and diligent to avoid conduct of any kind which could jeopardise his hard fought return to the practice of medicine. His absence of intention to reoffend suggests that, as the Applicant contends, the Respondent's capacity not to is problematic. We do not see this factor as advancing the Respondent's case.
The fourth matter relied upon by the Respondent was that issues of deterrence did not require cancellation (206). For the reasons advanced by Counsel for the Respondent, which are supported by the evidence, although relevant, we do not consider that specific or general deterrence assumes decisive significance in our evaluation of Stage 2. We have earlier indicated how we take deterrence into account in this case. We respectfully disagree with the contentions on behalf of the Respondent (207-209) in reliance upon the absence of "deliberate or wilful misconduct". Where the paramount consideration is the health and safety of the public, it is the conduct, and its actual or likely effect on the health and safety of the public which are the key to both specific and general deterrence.
The fifth matter advanced by the Respondent (210) was that allowing the Respondent to continue to practise would not be inimical to the maintenance of the public's confidence in the medical profession. That proposition begs the question of whether, if the Respondent is allowed to continue to practise, the conditions attaching to such privilege would justify the public's confidence both in the medical profession itself and its oversight or regulation. We agree with the contention of the Respondent (211) that the Respondent having "already been suspended from practice (can be seen) as reflecting the necessary element of sending a message to the profession and deterring other practitioners from similar conduct" has merit.
We accept, and take into account, the Respondent's submissions (212) with respect to his "efforts at reform", in the ways there identified. We accept that the Respondent has made, and has the capacity to make a contribution to the welfare of the community as a medical practitioner as was submitted on his behalf (213).
The Respondent submitted (216) that appropriate protective orders "would be the imposition of clearly crafted and directed conditions, along with a reprimand" or (217), if professional misconduct was found proven and the Tribunal considered that it must "mark the matter with a period of suspension as well, then the Respondent respectfully submits that the period of suspension imposed would not be significant, taking into account that nearly two years and three months of suspension have already occurred". Although a reprimand would be appropriate, for the reasons suggested earlier, we see little to be gained by further suspension. Put crudely, as the submissions of the parties confirm, there are only two realistic options in this case.
With respect to Counsel for the Respondent, nothing submitted on behalf of the Respondent with respect to the appropriateness of Dr Hindman as a supervisor persuades us that such a course would be appropriate. We have given our reasons for so concluding earlier.
Counsel for the Respondent advanced a list of conditions (Submissions 8 March 2022 p49-51) which were submitted to provide a regime of appropriate protective orders in lieu of cancellation of the Respondent's registration. It was submitted (233-236) that the Tribunal may wish to further refine the conditions in ways there identified. The Tribunal would do so, but, as previously indicated, would do so after considering the Applicant's response to the Respondent's proposed conditions if cancellation is not ordered.
Having considered each of the matters to which we have referred, the Tribunal is satisfied that conditions at least as onerous as those advanced on behalf of the Respondent would adequately protect the health and safety of the public if the Respondent is permitted to continue to practise medicine. Central to that finding is the fact that each of the experts whose evidence was directed to this issue expressed the views which they did in the light of all the relevant evidence which has been before the Tribunal. Although perhaps in minor respects, none of their opinions was based upon benign findings with respect to the Applicant's complaints. Nor were those opinions shown to be unduly sanguine, or to involve an assumed capacity to comply with conditions on the part of the Respondent which was unfounded. The nature and extent of the conditions suggested by the experts supports that finding.
The conditions of the respondent's registration should include each of the particular matters which we have identified by reference to the expert evidence of Professor Morris and Drs Samuels, Adams, Lotz and Lennings, including conditions prohibiting double shifts, and requiring continued psychotherapy from Dr Adams or another suitably qualified person approved by the Medical Council, and ongoing consultations with Dr Lotz or another psychiatrist approved by the Medical Council.
The Respondent's case appears predicated on his being employed in Dr Kelly's practice and supervised by him. The proposed conditions would appear to have the best chance of success if that were to occur. If the Respondent were not to return to Dr Kelly's practice, he would need the approval of the Medical Council before being employed in any other practice. Any supervisor of conditions of practice for the Respondent should be provided with the consultation template and any reports with respect to the health of the Respondent or progress notes of any health professional who is treating the Respondent as and when they become available.
The suggestion with respect to the supervisor regularly contacting the health professionals who the Respondent sees from time to time (235) has merit, as does the suggestion (236) that the Respondent "avoid ongoing treatment of patients in general practice who had significant psychological/social trauma histories". The suggestion that, "initially level B supervision in primary care may involve looking at a list of patients and their issues and asking questions about them" also has merit.
Dr Kelly is ready, and apparently willing to re-employ the Respondent in his practice as soon as that is lawfully possible. As we have earlier recorded, if the Respondent is permitted to resume practice, the conditions to be imposed upon his doing so will necessarily be more onerous than those which were previously imposed having regard to the reality that they did not adequately protect the health and safety of the public. Whether Dr Kelly, or any other supervisor who might be approved by the Medical Council is willing to undertake what will clearly be quite onerous responsibilities is a matter for any such supervisor and the Medical Council.
Although arguably the minimum requirement by way of conditions, the conditions advanced on behalf of the Respondent, and the potential to further refine them in the light of the matters to which we have referred, would, in our view, be adequate to protect the health and safety of the public. In coming to our conclusion, we have considered the Applicant's submission that, if so many and such onerous conditions need to be imposed on the Respondent's registration to avert an unacceptable risk to the health and safety of the public, and the public interest, the Tribunal cannot be satisfied that the Respondent should be permitted to do so. We accept that there are cases where that is so, but, on balance, find, on the expert and other evidence before the Tribunal that this is not such a case. The absence of any suggestion to that effect by Professor Morris or Drs Samuels, Adams or Lennings supports so finding.
It was submitted on behalf of the Applicant, properly, that the opportunity to make submissions with respect to protective orders in the light of the Tribunal's findings should be reserved. Although we do not invite further submissions with respect to our Stage 1 findings, or our finding that conditions can be imposed with which the Respondent would comply which adequately protect the health and safety of the public, it would be entirely appropriate, within a relatively short time, to permit the Applicant to file a list of suggested conditions, and the Respondent to reply to that suggested list. Whilst we would not anticipate that further submissions with respect to the content of the conditions would be lengthy, or delay finalisation of the proceedings, it would in our view be appropriate to invite each party to make submissions, in summary form not exceeding 7 pages, in support of its or his final version of suggested conditions.

Future conduct of the matter

When final orders are made costs will be reserved and directions made for filing of submissions in that regard.
Final Orders will be made after parties file further submissions together with proposed conditions, and those submission are considered by the Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2022

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (57)

Cited By (7)