Health Care Complaints Commission v Litchfield

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Agreed facts

1. 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

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.
2. 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).
3. 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.
4. 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.
5. 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".
6. 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."

Complaint 1

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.
2. 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)."
3. 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"."
4. 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.
5. 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"."
6. 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".

Complaint 2

1. 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.
2. 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."
3. 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

1. 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."
2. In support of this Complaint the Applicant relied upon Complaints 1 and 2, and the particulars of them, individually and cumulatively.
3. 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

1. 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."
2. The Complaint accurately reflects the terms of the provisions of the National Law upon which it is based.
3. 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."
4. 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."
5. 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

1. 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".
2. The Complaint reflects the terms of the provisions of the National Law upon which it is based.
3. 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."
4. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Particular 1

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".
2. 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."

Particular 2

1. 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.
2. 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.
3. 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.
4. 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"."
5. 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."

Particular 3

1. 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".
2. 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.
3. 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"."
4. 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.
5. 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".
6. 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".
7. 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."

Particular 4

1. 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".
2. 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"."
3. By his Reply, the Respondent denied particular 4. The Respondent admitted particular 4A.
4. 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.
5. 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"
6. 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.
7. 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?".

Particular 5

1. 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)"."
2. By his Reply, the Respondent admitted particular 5.
3. 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.
4. 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.
5. 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

1. 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."
2. By his Reply, the Respondent admitted particular 6(b) but did not admit particular 6(a).
3. 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."
4. 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."
5. 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.
6. 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".

Particular 7

1. 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"."
2. 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".
3. 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."
4. 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.
5. 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.

Complaint 2

1. 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."
2. 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).
3. 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."
4. 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".
5. 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".
6. 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.

Complaint 3

1. 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."
2. 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".
3. 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.
4. 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.
5. 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".

Complaint 4

1. 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."
2. 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."
3. 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."
4. 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.
5. 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."

Complaint 5

1. 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.
2. 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."
3. 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".
4. 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".
5. 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).
6. 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".
7. 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.

Conclusion with respect to Stage 1

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Future conduct of the matter

1. When final orders are made costs will be reserved and directions made for filing of submissions in that regard.
2. 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