Health Care Complaints Commission v Lui

Oral Evidence of Dr Ng

1. Dr Ng gave oral evidence. We noted the following in particular from that evidence. 1. He is a medical practitioner GP. He was approached last year by a colleague to give assistance to the Respondent with his record keeping. 2. Over 3 to 4 months he has had three sessions with the Respondent by phone and with internet access to his medical records. He goes through a whole days' work with the Respondent. He gives him guidance to make his records clearer. 3. On the first occasion they met, Dr Ng said he was aware that improvement was needed with the Respondent's record making. There is evidence that the Respondent has been paying greater attention to making his medical records. 4. Dr Ng has arranged to have monthly meetings with the Respondent and they spend about an hour on each occasion reviewing the Respondent's records. Dr Ng looks at 10 to 20 records on each occasion. The records are from the day of the session as the patients are fresh in the Respondent's mind. 5. Dr Ng has seen all three audit reports. The last occasion they met was in the last week of January 2023.
2. Neither of the parties provided any written outline of proposed submission prior to the hearing on 6 February 2023 or during same (no criticism intended). Both parties provided oral submissions only.
3. At the conclusion of the hearing on 6 February 2023, the Tribunal made the following Directions. "1. Within 7 days the parties are to provide the Tribunal with an agreed chronology setting out the dates when the Respondent was provided with each of the three audit reports which are in evidence in the Stage 2 hearing. 2. Within 7 days each party is to provide to the Tribunal a written (one A4 page only) submission which sets out any corrections necessary in relation to their oral submissions made 6 February 2023. 3. Within 7 days the HCCC is to provide the Tribunal and the Respondent with a minute of the non-publication order it seeks in relation to the Stage 2 Judgment. 4. The Respondent is to provide to the HCCC and the Tribunal within 14 days a list of the conditions which he submits the Tribunal would consider imposing on the registration of the Respondent should the Tribunal conclude that cancellation of the Respondent's registration is not required as a protective order and concludes either suspension of his registration, or a reprimand and or a fine, should be imposed coupled with conditions imposed upon his registration. 5. Within 14 days of receipt of the list of proposed conditions of the Respondent (as required by direction 3 hereof) the HCCC is to provide to the Tribunal and the Respondent a list of conditions it submits should be imposed on the Respondent's registration, together with a short supporting submission in relation to any condition which differs from that proposed by the Respondent, should the Tribunal determine to not cancel the Respondents registration as sought by the HCCC. 6. The Respondent may provide a short, written response, to any submission provided by the HCCC pursuant to these directions, within 7 days of receipt of the HCCC submission. 7. Judgment is reserved."
4. On 8 February 2023, the parties provided the following agreed chronology demonstrating when the Respondent received copies of the audit reports which form part of Exhibit 2A1. That document is as follows:

Chronology of medical record audits - Dr Lui Date Event

1. 27 August 2019 First audit conducted by Dr Marcela Cox
2. 1 February 2021 Dr Lui receives audit report outcome and report
3. 3 August 2021 Second audit conducted by Dr Penelope Elix
4. 7 October 2021 Dr Lui receives second audit report and outcome
5. 7 June 2022 Third audit conducted by Dr Angela Newberry
6. 12 August 2022 Dr Lui receives third audit report and outcome

The Submission of the HCCC

1. As stated earlier, the HCCC provided oral submissions. We noted the following in particular from that submission.
2. The HCCC relied upon the decision in Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do") and drew our attention to [35]. It emphasised the necessity when the Tribunal is making protective orders to have regard to the necessity to maintain the public's confidence in medical practitioners at large. It further emphasised the necessity for the protective orders to serve as a deterrent to other medical practitioners. It points out that denouncing the abhorrent conduct of a particular medical practitioner maintains public confidence by illustrating that those medical practitioners "whose conduct does not meet the required standards will not be permitted to practise."
3. Per Meagher JA in Do at [35]: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
4. The HCCC submitted the Respondent's conduct, as found by the Tribunal, falls into the category which can generously be described as "severe misconduct and incompetence". The HCCC pointed out the findings we had made in relation to each of the three patients the subject of the proceeding.
5. In addition to the conduct of the Respondent being "severe misconduct", the HCCC submitted that another aspect of his practice of medicine, which was the subject of the established complaint, was the deficiency in his medical records.
6. The conduct of the Respondent could not be seen as an isolated event given that there are three separate patients who made established complaints against the Respondent. Each had presented with entirely different medical needs. Each had experienced conduct by the Respondent which they believed was sexually motivated.
7. The Respondent referred us to the following passage in the decision of Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 ("Litchfield (1997)") at 636-637; [1997] NSWCA 264. "In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh J said in Ex Parte Tziniolis; Re Medical Practitioners Act (1996) 67 SR (NSW) 448 at 468; 84 WN (NSW) (Pt 2) 275 at 286: '… Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.' … "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe …."
8. We note the facts which were presented to the NSW Court of Appeal in Litchfield (1997) were as follows, as are set out in the judgment at 631-632: "The complaints before the Tribunal relate to inappropriate conduct of a sexual nature by the doctor in the course of professional consultations with three female patients aged between 20 and 30. Evidence was also given about an incident involving another female patient, DM, which was not the subject of a formal complaint. The facts, as found by the Tribunal, were as follows. The first patient, JT, was seen by the doctor in his surgery at Woolgoolga on G [sic] May 1987 for the purpose of having an inter-uterine 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, and then informed her that she was due for a breast examination and pap smear, and asked her to get on to 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 "of her breasts" and, after discussing acu pressure 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"."
9. The complainants in this case under consideration were, as submitted by the HCCC, all young and vulnerable at the time of the consultation they had with the Respondent. Each reported being disturbed and distressed by the consultation. Although each saw the Respondent for quite different medical complaints or needs, each experienced the same type of conduct which arose from the method the Respondent utilised to examine them. Dr Golding described the method of examination as defying logic. The HCCC submitted that was a reasonable conclusion given the findings made by the Tribunal.
10. The HCCC submitted that the evidence provided by the Respondent in the Stage 2 hearing did not suggest the Respondent had gained any real insight into the inappropriateness of his conduct in the examination of each of the subject patients.
11. In relation to the medical records which the Respondent is required to make and keep for his patients, the HCCC submitted the audit reports provided by it as part of the Stage 2 evidence, still show significant deficiencies. It submits the Respondent appears to have not made any real effort to make the changes to his medical record keeping as required by the audit reports which have been provided to him. He has only taken a positive step to address the deficiency in his record making since the Stage 1 judgment was published in August 2022.
12. The HCCC submitted the Tribunal should not accept the promises provided by the Respondent in his evidence in this hearing. The HCCC submitted that the evidence from the Respondent remains that any contact between his body and that of the patients was accidental and, inferentially, it was not a conscious and deliberate action.
13. Apart from the physical aspect of the manner in which he conducted his examinations of the subject patients, the HCCC submits the Respondent did not provide the patients with an acceptable explanation of what he was doing and why it was necessary for him to examine them in that manner before he did so. What follows is that he clearly did not permit the patients to provide their informed consent.
14. The HCCC drew our attention to the finding that the Respondent had not adhered to the Medical Council's policies on sexual misconduct (4 December 1991) which was alleged in Particular 5 of Complaint One. That policy addresses the necessity of establishing and respecting appropriate boundaries, both physical and emotional, in a doctor/patient relationship, which is well known, respected, and followed by all medical practitioners who practice ethically and in a completely patient centric manner. We refer to this policy again later in these reasons.
15. The HCCC submitted that suspension as a protective order, in this case, would not be appropriate because of the inadequate message that would send to the profession and also because the Respondent had not illustrated real insight into his misconduct. Suspension will mean he will be eligible to return to practice automatically following the expiration of the suspension period without having to satisfy the Tribunal or any other authority that he has changed and fully comprehends the seriousness of his misconduct. The HCCC submitted that if there is uncertainty about those matters, then cancellation of registration is the only effective protective measure. The decision in Chen v Health Care Complaints Commission (2017) 95 NSWLR 335 ("Chen"); [2017] NSWCA 186 at [21] is relied upon to support that submission. We set that paragraph out as follows: "Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it."
16. The HCCC submitted that an order for cancellation of the Respondent's registration was necessary in this case and that the period during which he should not be permitted to apply for a renewal be set at three years.
17. The HCCC submitted that the Respondent has not seen female patients since the conditions were imposed by the Medical Council on his registration in 2018 following the s.150 hearing. He should not be permitted to resume seeing female patients without the Tribunal being satisfied the Respondent has gained insight into the inappropriateness of his conduct as established by this Tribunal.

The Respondent's Submission

1. The Respondent firstly address the submission of the HCCC. He put that the Tribunal should only restate, where necessary, the precise wording of the findings it made at Stage 1 as opposed to adopting a summary of the findings addressed by the HCCC in its submission.
2. The Respondent addressed the submission of the HCCC which stated he had not provided any evidence from the psychologist or counsellor he was reported to have attended upon in the audit report of Dr Cox and the subsequent audit reports. We note the comment in the audit report suggested he had attended upon a counsellor to assist him address the grief he was suffering consequent upon the death of his father. The Respondent submitted that there did not appear to be any requirement for counselling for him arising out of the concern for his record keeping.
3. In the second audit report which took place on 3 August 2021, the auditor reports that the Respondent was attending upon a psychologist or counsellor following the complaints being received and his having to deal with Medical Council processes. Again, at the date of the third audit conducted on 7 June 2022, the auditor reports the Respondent continues to see a psychologist or counsellor "whom he finds supportive."
4. The Respondent addressed the criticism raised by the HCCC, in its submission, that the Respondent had not appeared to have made any positive change to his record making following the date of the first audit in June 2019, by the time of the second audit conducted on 3 August 2021. That audit considered records dated between August 2020 and June 2021. The Respondent reminded us that it was not until 1 February 2021 that the Respondent received the audit report dated 27 August 2019. Three of the 12 medical records reviewed pre-dated 1 February 2021. The consequence of that time lag in supplying the audit report from August 2019 was that the Respondent had little time between the receipt of the report and the date of the next inspection/audit of his records, which took place on 3 August 2021, to show he was making the changes to his medical records as recommended by the first auditor.
5. Further, it was submitted the first audit report, and the words spoken by the auditor to the Respondent on the day in 2019 when the audit took place, may have caused the Respondent to believe that his medical record keeping was largely acceptable. Of the 20 records audited, the auditor determined that all but 3 were satisfactory.
6. In the most recent audit report, Dr Newbury had recommended that the Respondent obtain a mentor to assist with his medical record making. The Respondent had adopted and actioned that recommendation by engaging with Dr Ng. (We note Dr Ng gave evidence in this hearing at our request).
7. Another recommendation from Dr Newbury's report was that the Respondent undergo a performance assessment. That has not yet taken place; however, the Respondent informed us, through his counsel, that he has been informed that it will be arranged by the Medical Council.
8. The Respondent submitted that the focus of the hearing at Stage 1 has been the Respondent's lack of awareness of patient privacy, the risk of the Respondent making body contact with his patients (failure to ensure proper boundaries maintained) and the fact of actual body contact being made between the Respondent's groin and the buttocks of the three female patients. It was submitted that the Respondent has demonstrated that he recognises that his poor examination technique had impacted upon his patients and led to the proceeding before the Tribunal. He has also accepted that his medical record making was below standard and needed attention. It is submitted that the Respondent has taken his own steps to address his record keeping which the Tribunal would see as an acceptance by him that he accepts a change is necessary and he is addressing that.
9. Further in submissions the Respondent submitted that the fact that he has been in practice for 30 years and has not had any complaints made about his medical practice during that time, other than the complaints detailed in this hearing, is a matter which the Tribunal will have regard to in concluding the Respondent, in the future, can practise in a proper manner.
10. The Respondent pointed to the documents contained in Exhibit 2R1 at Tab E where he has methodically set out the criticism of the auditors of his record keeping and the Improvements he identified as necessary. This action it is submitted shows insight and intention to rectify inadequacies in his medical practice.
11. The purpose of the making of protective orders was the subject of submission by the Respondent. It was submitted it is well recognised that although adverse outcomes might flow to a medical practitioner from the making of protective orders, it is not the intention or purpose of a protective order to carry a measure of punishment.
12. It was submitted there has been no finding of nefarious intent on the part of the Respondent.
13. It was submitted that the evidence establishes the Respondent has sought to improve himself and rectify the identified aspects of his practice.
14. The Respondent acknowledged that part of the function of the imposition of protective orders is to operate as a deterrent to other medical practitioners.
15. The decision of the NSW Court of Appeal in the case of Law Society of New South Wales v Foreman (1994) 34 NSWLR 408; [1994] NSWCA 69 was drawn to our attention to illustrate the different approach which will be taken in cases where there is a clear intent to cause harm as opposed to a case where no such intent is found. The Respondent submits that in this case there has been no established intent on the part of the Respondent to cause harm to the three subject patients.
16. The Respondent also referred us to the decision in the case of Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102. The Respondent relied on the statement of Basten JA at [83], which is as follows: "The challenge in the present case is better understood, as discussed in the course of oral submissions, as one in which the Tribunal was required to exercise its discretionary judgment in a disciplinary jurisdiction, the purpose of which was to allow for orders protective of the interests of vulnerable individuals in the care or control of the Department. As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual: see, eg, Ziems v The Prothonotary of the Supreme Court (NSW) [1957] HCA 46; 97 CLR 279 at 286 (Dixon CJ), 289 (Fullagar J, quoting Jordan CJ); Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186 at 201-202; Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 at 201 (Kirby P). That is not to deny that such orders may be punitive in effect, a matter which may have particular significance in respect of the privilege against self-incrimination: see, eg, Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129 at [28]-[32], referred to in the context of a medical practitioner in Health Care Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 at [48]. Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. For example, the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [101] (reference to weighing the punitive effects in the balance should be understood in context as limited to the purpose identified here). Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist." (Emphasis added to show the particular words relied upon by the Respondent.)
17. The Tribunal was referred to the transcript of the evidence of the Respondent at page 349 where his evidence was that, in relation to Patient A, at the time he received the complaint he had thought it related to the way in which he applied oil to the patient's back in order to inspect possible lesions which may need excision.
18. The Respondent further relied upon the decisions in NSW Bar Association v Meakes [2006] NSWCA 340 ("Meakes") and Riley v Health Care Complaints Commission [2019] NSWCATOD 54 ("Riley") at [155] (quoted below). Those decisions, it was submitted addressed the appropriateness of a reprimand as a protective order. "We conclude that there is a clear message sent to the world at large, about the professional standing of a medical practitioner, by the publication of a reprimand in the manner in which it is visible on the registration details of a medical practitioner. Further the requirement for a medical practitioner, who has had a reprimand imposed, to notify his employers and the institutions in which he/she is permitted to practice, we accept, fulfils the requirement to protect the public, uphold the high standards required for registration of a medical practitioner and also uphold the public confidence in the competence of the medical profession as a whole."
19. The Respondent further submitted that a reprimand and a fine would be the appropriate protective order to impose in this case.
20. Should the Tribunal conclude that it was necessary to impose conditions upon the registration of the Respondent, the Respondent submitted that a supervision requirement should be set at no higher than level "C".
21. The Respondent reminded us that he has not been permitted to see female patients for four years arising from the imposition of the conditions in 2018 by the Medical Council.

HCCC Submission in Reply

1. The HCCC invited us to consider the findings we made at Stage 1 which can be found at [340] in the Stage 1 decision and following. In particular the HCCC referred to [345] where we found, in relation to Complaint 1: "In relation to Particulars 2 to 5 we find each of those Particulars established on the evidence before us. We do not find Particulars 6 and 8 established."
2. Particular 5, referred to in [345] of the Stage 1 decision recited: "5. The practitioner's conduct in particulars (3) and/or (4) was contrary to his obligations under the Medical Council of NSW's policy on Sexual Misconduct (4 December 1991)." The Particular needed to be read in conjunction with Particulars (3) and (4). The evidence which was relied upon to establish Particular 5 was the evidence of Dr Golding. He did not refer to that policy in his evidence. Notwithstanding that failure, the evidence could, we accept, have satisfied us that the Medical Council's policy on Sexual Misconduct could have been breached at the time the Respondent saw Patient A and the other two patients, had it still been operative in 2018, at the time of their consultations.
3. The policy was attached to the evidence of the HCCC in Exhibit A1 in the Stage 1 hearing at Tab 40. It appears to address primarily a consensual sexual relationship between a medical practitioner and a patient. That is not a circumstance found in this case. However, the policy is applicable, and the finding that Particular 5 to Ground 1 is established, is based upon par 5 of the Policy which states as follows: "The rationale for the boards position has been supported in many contexts by medical disciplinary authorities. Reasons for the rule include the following. (a) The doctor-patient relationship depends upon the ability of the patient to have absolute confidence and trust in the doctor. (b) The doctor is in a unique position regarding physical and emotional proximity. Patients are expected to disrobe and to allow doctors to examine them intimately. (c) The doctor-patient relationship is not one of equality. In seeking treatment, the patient is vulnerable. Exploitation of the patient is an abuse of power. (d) The doctor's role is one of authority by virtue of the patient seeking assistance and guidance. (e) Breaches of doctor-patient relationship have often caused severe psychological damage to the patient. (f) The community expectation of the medical professional is one of utmost integrity. The community must be confident that personal boundaries will be maintained and that patients are not at risk. (g) Improper sexual conduct by doctors brings community censure and damages the credibility of the medical professional as a whole. (h) The onus is on the doctor to behave in a professional manner and it is unacceptable to seek to blame the patient if a sexual relationship develops. (i) Personal involvement with the patient will often lead to clouding of judgment."
4. We here note that although we found that sexual purpose or intent on the part of the Respondent had not been established, we concluded that the Respondent's conduct caused the patients to lose confidence and trust in the Respondent as a medical practitioner. Each of the three patients reasonably reached a conclusion that the Respondent had engaged in sexual activity with them. The Respondent failed to act in a manner which recognised the unique position he held in the relationship with the patients. He failed to recognise the lack of equality in the relationship. He did not recognise the degree of vulnerability each patient was placed in because of the manner in which he chose to examine them. He clearly did not appreciate that his examination had the capacity to cause psychological damage to the patients. He did not ensure he maintained acceptable physical boundaries with the patients. He had failed to behave in a professional manner through the use of unconventional and unrecognised methods of examination he utilised with each of the three patients.
5. The HCCC submitted that the Respondent had failed to understand why he engaged in the examination of Patients A, B and C.
6. Although the HCCC conceded the Respondent was not provided with a copy of the audit report of Dr Cox until early in 2021, it submitted the report spoke of the auditor having spoken to the Respondent at the time the audit was conducted, namely August 2019. The engaging of the mentor, Dr Ng had not occurred until after the Stage 1 decision of the Tribunal.
7. The HCCC submitted the Performance Assessment which the Medical Council proposes the Respondent undergo ought not be seen as comfort to the Tribunal in consideration of the protective orders to be applied
8. The case cited under the name of Riley was one which concerned poor record making only. In this case, it is submitted the Respondent has not demonstrated any insight into the inappropriateness of his examination technique for each patient.
9. If there is to be a condition placed upon the Respondent's registration, then it should not include a supervision order at level "C". That would be inadequate in this case. Level "A" supervision would be required as the Respondent has not seen a female patient for five years.

Credit

1. Consistent with his presentation in the Stage 1 hearing, the Respondent presented in the witness box as a quiet and respectful person (we had to make requests for him to raise the level of his speech so that it could be heard by the Tribunal members and counsel). His English language command was largely good, however, some of the English words he used were difficult to understand. He was co-operative as a witness and predominantly answered the questions asked of him in cross-examination and also the questions from the Tribunal members. He did not seek to be his own advocate.
2. The Respondent did not seek to evade answering any question or proposition put to him. He presented as having given his evidence honestly and we were not asked to make any credit finding against the Respondent .
3. We have found the conduct alleged against the Respondent largely established, as set out in the Stage 1 hearing. The Respondent's case was, and remains, that he did not consciously bring his body into contact with any of the three patients who had stated he did exactly that. The Respondent, assuming his evidence is given honestly, was clearly oblivious to the non-medically indicated contact he was making with those patients. He was, at that time, required to take the greatest care not to make any contact with their bodies, other than that which he informed them he would make and to which they consented. That is not a special requirement confined to the subject three patients, rather, it is a requirement which is fundamental to the good, ethical and appropriate practice of medicine. It is a basic tenet of interpersonal relationships not to make physical contact with another person which is not sought or consented to. It may also contravene the criminal law. All that is emphasised in the confines of a medical practitioner's consultation room, where patients are at their most trusting and vulnerable. Failure to recognise that circumstance and conduct oneself in a respectful and caring manner, is anathema to the practice of medicine.

Consideration and Determination

1. Punishment of a medical practitioner for professional misconduct is not authorised by the National Law. It is the protection of the public which is the focus of "protective orders". It has long been recognised that adverse consequences for a medical practitioner can and will follow, to a lesser or greater degree, from the imposition of protective orders. However, the province/responsibility for penalty imposition upon medical practitioners, arising from established misconduct, lies under a different Act and with a different tribunal: see Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40; Litchfield (1997); HCCC v Gillett [2007] NSWNMT 7.
2. Section 149C(1)(c) of the National Law empowers the Tribunal to suspend or cancel a health practitioner's registration where the practitioner has been found to have engaged in professional misconduct.
3. In October 2022, sections 3 and 3A of the National Law were amended and new section 3B was inserted. Section 3 of the National Law sets out the objectives of the law, as those objectives apply to the national registration scheme. That section is as follows: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and (b) the registration of students undertaking - (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
4. Section 3B of the National Law sets out the objective and guiding principle to be applied by a Tribunal in New South Wales, in conducting an inquiry into a complaint and, if appropriate to do so, when making protective orders. Section 3B provides as follows: 3B Objective and guiding principles (NSW) In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
5. In Chen at [18]-[22], Basten JA in the Court of Appeal said the following: "The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided." (footnotes omitted)
6. Payne JA found in Chen, at [88], that: "The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order."
7. In Health Care Complaints Commission v Bours (No 2) [2015] NSWCATOD 80 ("Bours") the Tribunal considered at [22]-[25] the cancellation of registration: "The jurisdiction of the Tribunal is protective rather than punitive. The Tribunal's protective role in making orders have been considered in HCCC v Do [2014] NSWCA 307 the Court of Appeal opined: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It included protecting the public from the similar misconduct or incompetence of other practitioner and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining the standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operated both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." (at [35]). HCCC v Jane Waddell (No 2) [2013] NSWNMT 2 observes: "[106] The common thread throughout reasons for decisions and judgments concerning consequential orders make in this area of law is that the purpose of such orders is centred on protection, not punishment. The primary focus of protection is the public - protection from actual harm caused by health practitioners who do not meet the standards required by law and codes of conduct, and protection from a culture of sub-standard practice or lacking in professional ethics from which harm may flow. The objective is that the public might actually be protected, and might have confidence in the prudent and competent practice and the ethical conduct of health practitioners, and in the profession generally. The secondary focus is the protection of the integrity of the relevant profession. Indeed, this may reach to the protection of other members of the profession - that they may not be tainted by lack of sanction of colleagues who have failed to meet the considered legal, practice, and ethical standards. [107] There is no place for a punitive objective in making orders consequent on findings of unsatisfactory professional conduct or professional misconduct. It is undeniable, however, that the fashion of appropriate protective consequential orders made by a disciplinary Tribunal may have the 'felt effect' of punishment. That is, the health practitioner who is the subject of orders may feel that they have been penalised, punished, or even sentenced, in the traditional sense understood in many aspects of law. In that way, an order fashioned for protection may subjectively be construed by the health practitioner as being punitive. Indeed, in Lee v HCCC [2012] NSWCA 80 the possibility of a punitive effect (rather than a punitive object) was considered as a possibility in making an order to protect the community (at [20], per Barratt JA, MacFarlane JA concurring). [emphasis from source text] [108] The High Court's decision in Rich v ASIC [2004] HCA 42; [2004] 220 CLR 129 informs on this point: "Just as a law may bear several characters, a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted. That a proceeding may bear several characters does not deny that it bears 'each of these characters.'" (at [35]). The Tribunal has discretion as to whether a practitioner's registration should be cancelled or suspended under s 149C of the National Law. A finding of professional misconduct opens the door to the possibility of the cancellation of registration, although it must be noted that such order is not the automatic consequence of such finding. As outlined in HCCC v. Karalasingham [2007] NSWCA 267 (at [67]), in clarifying that the Tribunal is not bound to order deregistration in the face of a professional misconduct finding and in the absence of mitigating factors, "the discretion of the Tribunal is at large and will depend on the circumstances of the individual case". [emphasis from source text] HCCC v. Litchfield (1997) NSWSC 297; 41 NSWLR 630 at [638C] informs the Tribunal's consequential orders: "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.""
8. The applicable principles are usefully distilled in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88]: "Applicable Principles In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law [now s 3B]. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]."
9. In Health Care Complaints Commission v Burton [2017] NSWCATOD 57, the Tribunal held at [111]:- "In evaluating whether the conduct found to constitute unsatisfactory professional conduct, is "sufficiently serious" to justify the sanction of suspension or cancellation, 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: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. 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: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638."
10. The function of the orders resulting from the decision is not to underscore a punitive response, but to affect a mode of continuing public protection. As was stated in the Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [25]: ''… imposition of restrictions on the practice of a health professional are only to be done in pursuit of this higher objective [public protection]. Such a determination of necessity and appropriateness are made considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at [34]."
11. Basten JA set out in Meakes at [114]: "… it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. …"
12. Niall J said in Medical Board of Australia v Liang Joo Leow [2019] VSC 532 at [94]: "… In assessing how the public might view the facts, it is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered response, having regard to all of the competing factors. …"
13. The Tribunal should consider if the public confidence is either likely or unlikely to be affected by the decision in a single case. Public confidence needs to be considered in a measured way. The following was said in Medical Practitioners Board of Victoria v Lal (2009) 23 VR 702; [2009] VSCA 109 at [59]: "Like the goodwill which attaches to a business, however, public confidence in the medical profession is not turned on and off like a switch. Public confidence is won - or lost - gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high."
14. The statutory language is clear. The Tribunal must first find that restrictions are necessary to ensure health services are provided safely and are of an appropriate quality before it can move on to consider discretionary matters under s 149C of the National Law. Further, as the language of section 3A(2)(c) is in the present tense, the test of necessity must apply to the current practice of the practitioner.

The nature and seriousness of the Respondent's professional misconduct

1. We have found the Respondent guilty of professional misconduct. It is trite to say that all findings of professional misconduct are made where there is a finding of seriously unsatisfactory or inappropriate medical practice. Although we were not satisfied that the Respondent was sexually motivated in conducting the consultation and examination of each of the three patients A, B and C, we have accepted that each patient left the consultation distressed and confronted by the manner in which the Respondent performed each of the examinations. Each examination was for a different medical complaint. Each of Patient A and Patient B concluded the Respondent had conducted their physical examination in a manner either designed by him to provide him with a sexual experience or, alternatively, which did excite him sexually. Patient C was clearly very concerned about the Respondent bringing his groin area into contact with her buttocks. Each clearly would never return to again subject themselves to medical treatment by the Respondent. None of the three has ever returned to see the Respondent.
2. Patients B and C clearly did not lose their confidence in the medical profession as a whole as they each attended upon another medical practitioner who assisted each in making a complaint against the Respondent. That medical practitioner gave evidence in the Stage 1 hearing.
3. When Patient A gave her evidence, she did not inform the Tribunal of ongoing hesitancy which she currently experiences in attending upon a medical practitioner. However, given the experience she described with the Respondent, it is reasonable to conclude she would have a degree of anxiety when she had to attend upon a medical practitioner who was not previously known to her. It would also be reasonable to assume Patients B and C would have the same anxiety.
4. The way in which the Respondent examined each of the patients has been opined by Dr Golding, the HCCC's expert, to have aspects which are not recognised as clinically appropriate or effective. We have accepted that evidence. To that extent the Respondent was demonstrating a level of incompetence in his medical knowledge and practice. Part of that incompetence was allowing unnecessary and inappropriate body contact with each of the three patients. Each stated he had brought his groin area into contact with their buttocks.
5. We find it difficult to accept that any medical practitioner would not understand the importance of maintaining appropriate physical and emotional boundaries with a patient. We cannot understand how a medical practitioner, practising ethically, professionally, and knowledgably, could allow their groin area to come into contact with any part of a patient's body. The reason for any such body contact was not told to the patients before their examinations. In that conduct, the Respondent did not enable the subject patients to be able to provide informed consent to the examination he conducted.
6. In addition to the unacceptable aspects of the Respondent's conduct highlighted above, the Respondent also failed to properly inform Patient B and Patient C why he was examining them in the way in which he did. In the case of Patient A, there was no explanation to her, by the Respondent, as to why it was necessary to conduct his examination of her standing and bent over while he stood close behind her.
7. The Respondent has conducted his case before us by accepting he was using "poor technique" in both his interaction with, and examination of, the three patients who complained. Although we have found we are not satisfied the Respondent was sexually motivated in his examinations of each of the three patients, we are satisfied the Respondent's conduct cannot be "brushed aside" by the description "poor technique".

The Respondent's Medical Records

1. The HCCC is critical of the Respondent for not improving his medical record making so that it is now compliant with the National Law and the Good Practice guidelines and codes. This Tribunal found that the records of the Respondent, made in relation to the patients the subject of the complaints, were not to the appropriate and acceptable standard. The conditions made by the Medical Council in 2018 gave rise to the audit reports in evidence before us. The conclusion written by the auditor in the report dated 27 August 2019 and received by the Respondent on 1 August 2021, contains the following: "6. CONCLUSION The majority of Dr Lui's entries are of a reasonable standard to allow another doctor to take over care of the patient. It is clear that Dr Lui had been making changes to the content of his progress notes and he is encouraged to continue this process. Dr Lui was given feedback about the ways his records could be further improved as discussed above and he was receptive of this advice."
2. The most recent audit report was prepared by Dr Newberry. At the conclusion of her report, received by the Respondent on 12 August 2022, she made recommendations for the benefit of the Respondent. One of those recommendations was that the Respondent find "a mentor from another practice with whom he can discuss the nature and format of good records." The Respondent submits he has done that by engaging with Dr Ng.

Is it possible to protect the public health and safety without cancelling or suspending the Respondent's registration?

1. As set out in HCCC v Jane Waddell (No 2) [2013] NSWNMT 2 ("Jane Waddell") at [106]: "The primary focus of protection is the public - protection from actual harm caused by health practitioners who do not meet the standards required by law and codes of conduct, and protection from a culture of sub-standard practice or lacking in professional ethics from which harm may flow."
2. Again, at paragraph [107] of Jane Waddell, the Tribunal stated: "There is no place for a punitive objective in making orders consequent on findings of unsatisfactory professional conduct or professional misconduct. It is undeniable, however, that the fashion of appropriate protective consequential orders made by a disciplinary Tribunal may have the 'felt effect' of punishment." [emphasis from source text]
3. As outlined in Health Care Complaints Commission v. Karalasingham [2007] NSWCA 267 (at [67]), in clarifying that the Tribunal is not bound to order deregistration in the face of a professional misconduct finding and in the absence of mitigating factors, "… the discretion of the Tribunal is at large and will depend on the circumstances of the individual case": see Bours at [24]).
4. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 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: Litchfield (1997) at 638.
5. The Tribunal in Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 ("Litchfield (2022)") at [591] stated: "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."
6. Further, in Litchfield (2022) at [634], the Tribunal said: "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."
7. In determining whether to cancel or suspend the registration of the Respondent, we firstly need to consider whether we are able to conclude that the Respondent will not offend again in the manner we have found or in any other manner which would put at risk the health and/or safety of the public.
8. As has been said by this Tribunal, differently constituted, it is impossible for the Tribunal to form a definitive conclusion on such a matter. We appreciate "all things are possible", however, the test cannot be to determine if it is at all possible that the Respondent may again conduct himself in a manner similar to that which we have found established.
9. We have observed the Respondent during the hearings we have conducted in this matter. We have understood the impact upon the Respondent of the conditions which were imposed upon the Respondent in November 2018 by the Medical Council. We have seen that the Respondent has been the subject of three audits of his medical records since 2018. We have seen the steps he has taken to remediate his medical knowledge and procedural and examination techniques. We accept the Respondent understands the seriousness of this proceeding and that a possible outcome is the cancellation or suspension of his medical registration.
10. The Respondent is the only proprietor of the practice he conducts. He has three other contracted medical practitioners who work with him.
11. The Respondent has had to provide to the referees who gave evidence in this proceeding copies of this Tribunal's determination at Stage 1. He has had to publish to those referees detail of the allegation that he was sexually motivated by the manner in which he conducted his examinations of three female patients.
12. The Respondent has not been permitted to consult with any female patient since November 2018. Such a requirement must be made known to those other medical practitioners who work in his practice, and also any practitioner from outside of his practice, who refer patients to him for skin procedures. About 10 to 20 percent of his practice is skin procedures. Some patients are referred by practitioners in his practice. Other patients are referred by practitioners outside of his practice. Each of the referring practitioners have to know they cannot refer female patients to him.
13. We are conscious of our finding that demonstrates this is not a case which could be said to be "an isolated act of professional misconduct". This case has involved findings in relation to three separate female patients, each of whom saw the Respondent for a different medical complaint or need, yet each was examined in a manner which led to similar complaints.
14. Assessing and weighing all the evidence we have heard in this matter and considering what we have said above, we conclude we are reasonably satisfied the Respondent will not in the future conduct his medical practice in a manner which demonstrates sexual motivation on his part or in a manner where any of his patients leave his consultation room feeling that they have been sexually abused or otherwise taken advantage of. In so finding, we are satisfied that if his practice of medicine is restricted for a time, with conditions imposed upon his registration by us, there is not an unacceptable risk, which we can assess, of the Respondent continuing to practise in a manner which we have found he has practised and which places the health and safety of his patients at risk.
15. Given the findings which we have made in this matter, and particularly given the impact the Respondent has had on the three patients which have made the complaints, we conclude that a protective order which requires a cancellation or suspension of the Respondent's registration is necessary to protect the public. That is so, even though we are as satisfied as we can reasonably be, that the Respondent will not again conduct himself with a patient the way we have here found he did with Patients A, B and C .
16. Although the Respondent has stated he has changed the manner in which he will conduct a physical examination of a female patient in the future, we find it incredulous that he did not understand that he should not bring his groin area into contact with any part of a patient's body. Further, the fact that he was oblivious to the impact upon female patients of his bringing his body into contact with the buttocks of those patients, when it was entirely unnecessary to do so, and clearly not clinically indicated, bespeaks a mindlessness and disregard for patients which has no role in the proper practice of medicine.
17. It is the necessity to maintain the public confidence in medical practitioners and health service providers, together with the necessity to maintain the appropriate and acceptable standard of practice of medical practitioners, which leads us to the conclusion that cancellation or suspension of registration is required in this matter.

Will a protective order, other than a cancellation or suspension of registration, in this case, serve as a proper deterrent to the profession at large and maintain the public confidence in the medical profession and the authorities which oversee and govern it?

1. As stated earlier, "[d]enouncing such misconduct operated both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise": Do at [35].
2. General deterrence will usually play a role in determining the appropriate protective order. However, noting that the professional misconduct proven in this case stems from a gross failure of technique, rather than a conscious behaviour of a sexual nature, the case of the Respondent is that the necessary message to the profession carries less weight than it otherwise would.
3. We were satisfied that the Respondent had failed to provide an adequate explanation to his patients (A, B and C) about the method and purpose of the examination he was about to conduct, thereby failing to obtain informed consent from the patients before he conducted the examination.
4. The obtaining of informed consent is fundamental to a patient allowing a medical practitioner to physically examine them in a consultation. Failure to obtain that consent may change the nature of the interaction necessary to conduct a physical examination and displays disrespect for the rights of a patient to have explained to them the nature of what is being undertaken and then to enable the patient to either consent to the examination, or otherwise. Further, failure to obtain informed consent illustrates the power imbalance in the relationship of doctor and patient. It makes clear to a patient that he/she has no ability to object to the examination. It illustrates the attitude of the doctor, namely that he/she does not consider it is necessary to seek consent and/or provide sufficient information, which allows for properly informed patient consent.
5. In our view, given that we have found the Respondent breached doctor/patient physical boundaries in a manner which allowed Patient A and Patient B to believe they had been sexually taken advantage of (or, in the case of Patient C, inappropriately touched), together with our finding the Respondent did not have the informed consent of his said patients to the examinations he performed, a protective order which will send a clear message to the profession and the public is necessary. That protective order needs to be either a cancellation of registration or a suspension and the imposition of conditions once the Respondent recommences practice.
6. If we determine a cancellation is required, then the Respondent could not practise again until he has come before the Tribunal (probably a differently constituted one) seeking reinstatement. The time at which he could make such an application would be determined by us. His case would then be considered as and when the business of the Tribunal allowed. If the Respondent's registration is suspended, then the currently constituted Tribunal can set conditions which we consider appropriate to safeguard the public. The period of suspension can also be stipulated.
7. We are concerned that unless a protective order is made, which clearly has significant implications for the Respondent beyond embarrassment by the publication of the Tribunal's findings and determinations, the profession might regard the Respondent's inability to show significant improvement in the making of his medical records as being considered by us as a matter of insignificance. We consider there are two aspects to the Respondent's failure to be able to make medical records which are not the subject of a finding of "unsatisfactory", on audit, by the Medical Council. Those concerns are that either the Respondent has taken a "that will do" attitude to making medical records for his patients or he is really struggling in demonstrating the capacity to understand what is required and apply it.
8. We pause here to observe that in all the decisions we have referred to in these reasons, there is an underlying assumption that the vast majority of registered medical practitioners practise their medicine in a perfectly ethical manner and at a high standard. That being so, that cohort of practitioners would clearly understand the impact upon the Respondent of the complaints having been made against him in this proceeding. They will see that he firstly faced the Medical Council s 150 hearing, as a result of which conditions were placed on his registration which included an embargo upon his being able to see female patients and the requirement for audit of his medical records. They will see those conditions were imposed in November 2018. They will see that the Respondent has undertaken two separate hearings before this Tribunal (Stage 1 and Stage 2) and has had published details of the complaints made against him. They will see this decision which finally, some five years after the complaints by Patient C were made, sets out the protective orders which this Tribunal will make. Such outcomes for the Respondent must be seen as sending a very clear message to the profession about the importance of practising in an acceptable manner and in the best interests of their patients. That small cohort of practitioners who might not practise their medicine ethically, acceptably and in the best interests of their patients will also clearly be provided with the same deterrent message, assuming they are capable of receiving it.
9. We understand the public are likely to be very concerned about the conduct of the Respondent in this case. We would understand that members of the public, appraised of the facts in this case, even if they have absolute confidence in their own GP, would be likely to have some level of apprehension, albeit very small, about seeing the GP they are accustomed to seeing. However, it is reasonable to suspect that should that same body of patients be required to attend upon a medical practitioner they have never seen before, then we consider they are likely to be apprehensive and guarded, even to the point of refusing to see that GP and rather wait until the known GP becomes available.
10. We consider that in this case, a protective order which demonstrates the Tribunal has taken a seriously disapproving view of the Respondent's conduct will support public confidence in the medical profession and that it will be appropriately controlled, by the institutions and bodies charged with its regulation, so as to protect the public.

Are we sufficiently confident that the Respondent will not, if permitted to continue practice, conduct himself in the manner he did with Patient A, B and C?

1. As stated earlier, we are confident the Respondent will not again practise medicine in the manner which we have found constituted professional misconduct.
2. We consider the impact upon the Respondent of the outcome of the Medical Council hearing in November 2018, in particular the imposition of conditions upon his practice which included that he could not consult with female patients, together with the publication of the Stage 1 decision, is sufficient to satisfy us, as we have said earlier, that it is acceptably unlikely that this Respondent would offend again in a similar manner should he be permitted to continue to practise medicine.

Do we hold sufficient confidence that the Respondent is capable of being able to create and maintain medical records for his patients which would be considered "satisfactory" upon further audit by the Medical Council, given the steps he has taken to obtain help with that aspect of his practice since the last Medical Council audit of his records?

1. We do acknowledge that the Respondent has now (and belatedly) taken action to obtain help in repairing the deficiency in his medical record making skills. We had the advantage of hearing from Dr Ng and we were impressed by his evidence. Since he has been working with the Respondent (only in the last three months), he has seen improvement in the Respondent's medical record making. It is reasonable to conclude that if the Respondent was to continue to meet with Dr Ng for some time into the future, his record making would become satisfactory overall.

Conclusion on protective orders.

1. With the provisions of sections 3, 3A and 3B of the National Law prominently in our thoughts, we have considered in this determination the following: 1. The seriousness of the Respondent's professional misconduct. 2. The different areas of the practice of medicine which the Respondent has failed to appropriately carry out. 3. The necessity to protect and promote the public confidence in the medical profession at large. That includes showing the public that the profession will be properly regulated and, where necessary, action will take place to ensure only medical practitioners who practise medicine ethically, appropriately, legally and competently will be permitted to continue to practise, where their medical competence and/or manner of practice, is the subject of an established complaint. 4. The necessity to make a protective order which will operate as a deterrent to other medical practitioners. 5. The guiding principles of the national registration and accreditation scheme as set out in s 3A(2)(c) of the National Law, namely: 3A Guiding principles [NSW] (2) ... (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are an appropriate quality. 1. The provisions of s 3B of the National Law, namely: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. The action taken by the Respondent to remedy the deficiencies in his practice which have been identified in this proceeding. 2. The evidence of demonstrated remorse and insight on the part of the Respondent.
2. We are mindful 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: Litchfield (1997) at 638.
3. We are required not to make a visceral reaction to the misconduct here established, rather we are to take a measured approach as required by the National Law and the binding authorities.
4. Further, we are required to consider the Respondent's circumstances, knowledge, and probable future ability to practise medicine appropriately and competently, as he presents himself now and as the evidence accepted in the hearing demonstrates he will practise, at the date of this hearing and whether we are confident he can and will now practise his medicine in a manner which complies with the Good Practice guidelines and codes.
5. We also need to consider if it is possible to frame conditions which can attach to the Respondent's registration and which will, as far as it is possible to do so, guard against any re-offending by the Respondent in the practice of medicine.
6. We need to be satisfied allowing the Respondent to continue practising medicine would not constitute an unacceptable risk to the health and safety of the public, or the public interest: Litchfield (2022).
7. The years of practice and prior record of the Respondent is also a matter which needs to be remembered in determining protective orders. The Respondent has demonstrated a lengthy period of practice without complaint.
8. Pursuant to the directions made by us on the day of the hearing in this matter, each of the HCCC and the Respondent were required to provide a minute of the Conditions which the Tribunal might consider imposing upon the registration of the Respondent in the event the Tribunal did not impose a period of cancellation as a protective order. The Respondent did provide us with such a minute of conditions. The HCCC, by email to the Registrar, advised they would not provide such a minute as it was their case that the Respondent's registration should be cancelled.
9. The fact that the Tribunal seeks the assistance of the HCCC, in the manner set out above, does not mean that it is proposing to make an order which is not a cancellation order. The failure to offer assistance as sought by the Tribunal robs the Tribunal of valuable information upon which it can exercise the discretion which is reposed in it under section 149C and other relevant provisions in the National Law.

The Respondents' proposed conditions.

1. As requested by us, the Respondent provided the following as proposed conditions should a protective order other than cancellation of Registration be made. "Condition 1 To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision and as subsequently determined by the appropriate review body. (a) To practi[s]e under Category C supervision in accordance with the Compliance Policy of the Medical Council of NSW. (b) To attend monthly supervision meetings with the approved supervisor. (c) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. Communication and consent ii. Privacy and patient modesty iii. Physical examination iv. Medical record keeping, and particularly: • Documentation of history taking during consultations; • Documentation of family history, health summaries, past history, front sheet information; • Documentation and physical examination findings; • Clinical reasoning and documentation of provisional diagnoses and differential diagnoses; • Documentation of management plans, including safety netting and follow-up; • Recall and reminder systems; • Organisation of individual entries. (d) At each supervision meeting, the approved supervisor is to randomly select 5 patient records from the preceding month for review and discussion. Details of the discussion and any feedback is to be included in the supervision reports. (e) In addition to the supervision meetings, the practitioner will undertake six consultation observation sessions with the Council-approved supervisor for at least one hour, to be completed within the first six months of supervision commencing. These observations sessions will alternate between: i. The supervisor observing the practitioner conduct patient consultations, and ii. The practitioner observing the supervisor conduct patient consultations. Each session should include opportunity for feedback and discussion. Feedback about the observation sessions is to be included in the supervision reports. (f) The practitioner is to meet any costs associated with his supervision. Condition 2 The Medical Council of New South Wales is the appropriate review body to review the conditions imposed on the practitioner."

What protective orders might be sufficient to protect the public in the future?

1. In this case, although we have not been satisfied, to the requisite standard, that the Respondent was sexually motivated in the conduct of his examinations of Patients A, B and C, we have accepted that Patient A and Patient B, each believed that the Respondent had conducted himself in a sexual manner during the examinations such that they, individually, felt they had been taken advantage of (or improperly examined) by the Respondent for a sexual purpose of his own. Patient C, whilst not clearly expressing a belief she had been the subject of some sexual activity on the part of the Respondent, was very troubled by the circumstance of the Respondent bringing his groin area into contact with her buttocks. Her concern was clearly heightened by the fact that the examination performed was different, in nature, to the earlier consultation which had taken place in the presence of her fiancé. She felt so disturbed by the examination that she spoke to her fiancé's mother about the happenings and then asked another medical practitioner to assist her to make a complaint, about the circumstances of her examination, by the Respondent.
2. We take the view that if a medical practitioner conducts an examination of a patient in such a manner that the patient concludes, on good, reasonable and rational grounds, that he/she has been sexually used, abused or taken advantage of, then that examination amounts to serious misconduct assessed at the same level of misconduct as one where the Tribunal finds the misconduct was sexually motivated.
3. We conclude that the nature and extent of the professional misconduct in this case, is such that the protective order required is one of cancellation of the Respondent's registration. We conclude that protective order is necessary to maintain the publics' confidence in the medical profession and does thereby protect the health and safety of the public at large. It also serves as a deterrent to the medical profession.
4. We then need to determine the period of time the Respondent should be prevented from applying to the Tribunal to be permitted to regain his registration. The HCCC seeks a period of three years. We consider, in all the circumstances of this case, that length of time is excessive and we would set a period of 12 months. We are conscious of the workload of the Tribunal and conclude that even if the Respondent was to file his application for reinstatement right on the anniversary of the publication of this judgment, he might reasonably expect it would be 12 to 18 months before the Tribunal could hear and determine his application.
5. Part of the conclusion we have made that 12 months is required before the Respondent can apply to the Tribunal for reinstatement, includes a deterrent aspect. Additionally, we conclude that a period of 12 months will enable the Respondent to truly reflect upon his conduct and learn to conduct his practice absolutely alive to the rights of all patients to be treated with respect, provided with a full explanation of any examination which the Respondent is about to perform and why that examination is necessary. The Respondent needs to have an absolute resolve to ensure that nothing about the manner of his interaction with his patients will enliven in them a concern about whether they are actually receiving medical treatment. The Respondent also needs to master the requirement to make and keep proper and acceptable medical records for his patients.
6. In relation to the requirement for informed consent to be given by a patient, the Good Medical Practice code published by the Medical Board of Australia in March 2014 (titled "A code of conduct for Doctors in Australia") sets out in Part 3.5 (at p 9) details under the heading "Informed consent": "Informed consent is a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved." The code notes that this involves providing information to patients in a way that they can understand before asking for their consent. It also requires that the doctor "[obtain] informed consent or other valid authority before undertaking any examination, investigation or provide treatment (except in an emergency)".
7. The Respondent needs to accept the code, as stated above, embrace the same as absolutely applicable to every patient he sees, and ensure that he is able to apply the code when he returns to practice.
8. During the hearing, we observed some evidence that the Respondent had sought out and was receiving treatment from a psychologist. That treatment was for "grief" following the death of his father. We were left with a concern that he may have required additional assistance to ensure he comprehends and understands the seriousness of his offending as has been the subject of findings made by this Tribunal. We anticipate the Respondent will have the opportunity to explore any such deficiencies during the period of disqualification.
9. We propose to order that the Respondent's registration be cancelled. We propose to order that the Respondent not be permitted to apply to the Tribunal for reinstatement of his registration for a period of 12 months from the date of this order being made.

Costs.

1. The HCCC seeks an order that the Respondent pay its costs of the proceeding.
2. Section 175B of the National Law provides as follows: 175B Costs The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
3. In the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46] the Court set out: "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all of the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside."
4. The Court of Appeal decisions in Qasim v Health Care Complaints Commission [2015] NSWCA 282 (at [85]) and Do (at [51]) also address the awarding of costs in proceedings under the National Law. In Do at [50] per Meagher JA (with whom Basten and Emmett JJA agreed), His Honour observed that s 175 is a provision having national operation and should not be subject to local rules. "It should, therefore, be treated as conferring an unfettered discretion on the Tribunal."
5. The Respondent has not made a submission on costs, however, even where such an order is consented to, the Tribunal has an obligation to ensure such an order is appropriate.
6. Neither party has been wholly successful in having the Tribunal make the protective order which each sought or recommended. However, the proceeding was appropriately brought before the Tribunal by the HCCC. There was nothing about the conduct of the proceeding by the HCCC which would warrant interfering with an order that the Respondent should pay the costs of the HCCC and we will so order.

Orders 1. Pursuant to s 149C(1)(b) of the National Law the Registration of the Respondent as a Medical Practitioner (General and Specialist: General Practice) is to be cancelled. 2. Pursuant to s 149C(7) the Respondent is not to make an application under Division 8 (NSW) of the National Law for a period of 12 months from the date of this order. 3. The Respondent is to pay the costs of the HCCC as agreed or as assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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: 23 March 2023