Health Care Complaints Commission v Mathad - [2018] NSWCATOD 20 - NSWCATOD 2017 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Mathad

[2018] NSWCATOD 20

NCAT Occupational|2017-11-30

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2017-11-30

Source

Original judgment source is linked above.

Judgment (53 paragraphs)

[1]

Introduction

Between June 2013 and November 2014 Dr Anil Kotilingaiah Mathad (the practitioner) practised in a busy general practice at Rutherford, NSW. The practice was owned by another medical practitioner. Although he had qualified as a medical practitioner in India in 2000, and was registered in Australia in 2006, the practitioner had not previously engaged in general practice. When he commenced practice at Rutherford he was aged 38, separated from his wife, and responsible for shared care of his two children.
The practitioner was terminated from his position at the Rutherford practice when a patient complained the practitioner had engaged in inappropriate conduct when examining her for possible pneumonia. The patient asserted the practitioner pulled up her bra, "tweaked" a nipple ring in her nipple and asked if it hurt when she had the piercing. Subsequently, two other patients made allegations that the practitioner had engaged in inappropriate conduct during examinations, and a further patient asserted she received text messages of a personal nature from him.
At the same time as the practitioner was working at the practice, a young female person, aged sixteen, commenced duties at the practice as part of her training pursuant to a TAFE Certificate III course. In these reasons we refer to the young person as Person F. The practitioner, on a number of occasions, drove Person F from the practice to her home in a Newcastle suburb. He did so on one or more occasions after being told not to do so by the wife of the practice owner in her management role. Significantly, the practitioner engaged in frequent text messaging to the young person. The texts included numerous requests that she agree to allow the practitioner to photograph her as well invitations to join him to go to the movies, the zoo and a well-known Sydney night-club. The practitioner's texting practices came to light when Person F complained about an inappropriate message the practitioner sent to her after he had consumed a sample of Viagra ™ (sildenafil) taken from the practice.

[3]

Background

The following background material is set out in a chronology provided by the HCCC the accuracy of which was not disputed by the practitioner's counsel although it was noted to contain material predominantly relevant to the HCCC's case. Unless noted to be an assertion, we find the following facts established to the requisite standard.
The practitioner graduated with a Bachelor of Medicine/Bachelor of Surgery from Gulbarga University, India in 2000. He practised as a senior house officer in the United Kingdom from 2000.
In about 2008 the practitioner migrated to Australia and was awarded his Australian Medical Council certificate.
Between January 2008 and June 2013 the practitioner was employed by the Hunter New England Local Health District.
On 28 March 2010 the practitioner was charged with Common Assault and Stalk/Intimidate in respect of Person G. He was convicted of these offences on 23 June 2010 in the Newcastle Local Court and required to enter into a good behaviour bond for a period of 12 months. The practitioner asserts that he separated from his wife about this time, but they reconciled in late 2013.
Between June 2013 and 25 November 2014 the practitioner practised as a general practitioner at Rutherford Family Medical Practice.
On 10 July 2013 the practitioner saw Patient A, who was then twelve weeks pregnant. Patient A asserts in a written statement the practitioner subsequently sent her text messages asking her to catch up with him for dinner or coffee, and after attending the coffee shop at which she worked, had sent a text saying words to the effect "I came into your work today but you didn't see me. You looked really good as you always do". Patient A had not provided her mobile phone number to the practitioner.
Between 14 October 2013 and 21 November 2014 Patient C consulted the practitioner on 15 occasions. She asserts while taking her blood pressure the practitioner intentionally touched her breasts and that on one occasion he pulled her top down and said "Hey boobies". She also asserts at a consultation he rubbed her leg.
Between October and December 2013 a nurse employed in the practice (Person E) asserts the practitioner engaged in harassing behaviour which she construed as having a sexual connotation, and that he showed her two photographs of topless women on a sports car.
On 28 November 2013 the practice owner wrote to the practitioner about complaints received that the practitioner had shown nude photographs to staff and a complaint had been made to a secretary by a patient about being asked out. The practice owner explained in the letter "We have to keep professional standards when dealing with our staff and patients". He also said "I very much like you to continue in general practice and finish your fellowship exams; but if it affects the practice I will have to ask you to leave and so I would like you to be careful in your dealings with the practice staff and patients". The practitioner disputes receiving this letter.
On 6 November 2013 a female patient, Patient B, then aged 19, asserts when attending the practitioner complaining of a lump in her left axilla the practitioner asked if he could touch her breasts saying "They look quite nice. Can I have a feel". Patient B says the practitioner, without warning, slid his hand into her bra on the opposite side to the lump. Patient B reported what the practitioner had done to staff at the Rutherford Medical Centre, a nearby medical practice immediately after the consultation.
In November 2013 Person F, a sixteen year old TAFE student commenced working at the practice as part of her traineeship for a Certificate III course in business administration. At the time of her employment Person F was living in a suburb of Newcastle. The practitioner commenced driving Person F home shortly after she commenced her traineeship. Person F says that the practitioner commenced sending text messages to her in March 2014. He gave her a gift of perfume that month but told Person F not to tell anyone he had done so. The practitioner subsequently sent text messages to Person F inviting her to babysit his children, to go to the zoo and on many occasions asked her to pose for him for a photographic shoot.
In about March 2014 when the practitioner was driving Person F home the HCCC asserts the practitioner asked her about her ex-boyfriend and when she became upset he stopped the car, started touching and stroking her left arm and kissed her on the right cheek.
On 10 March 2014 the practitioner sent two photographic clips from a video of a male person wearing underwear to Person F. He asserted these were photographs of a new practitioner who was to commence at the practice. One clip is a close-up of the male's genitalia. The practitioner conceded no new doctor was to commence at the practice and says the photograph from the video clip was a joke.
On 21 March 2014 the practitioner sent a text message to Person F at 9.09pm as follows: Ha Ha Ha ..I had taken the viagara sample from the room and taken them.. All night I had a hard on and in the morning a f headache lol. [original spelling].
On 24 March 2014 the practice owner wrote to the practitioner terminating his contract. The letter noted that "there were a few complaints from female patients in the past and you were given a written warning against inappropriate behaviour towards patients. [The practice owner's wife] also advised you not to take [Person F] in your car to her place. We were worried about this sort of thing happening". The practitioner's contract of employment was subsequently re-instated. Person F did not continue her traineeship at the practice after the practitioner was re-instated.
On 25 November 2014 during an examination of a patient complaining of bronchitis or pneumonia (Patient D) it is asserted the practitioner pulled her bra up over her nipples and started playing with her nipple piercing. The patient was very distressed by the practitioner's behaviour and ran into the adjoining consultation room which was occupied by another general practitioner, Dr R Verma (Dr Verma). The practitioner denies Patient D's version of the examination.
On 26 November 2014 the practice manager, Ms H Avery (Ms Avery) advised the practitioner that there was a Facebook message being circulated about him. On the same day a second termination notice was given to the practitioner to take effect with six weeks' notice.
On 9 June 2015 a notification was made to AHPRA by Patient C. The notification was prepared by the practice manager, Ms Avery.
On 8 January 2016 proceedings under s 150 of the National Law were conducted dealing with the complaints made by Patients C and D. The delegates of the Medical Council of NSW (the Council) determined, on the information before them, there was no risk to the public which required suspension of the practitioner's registration or for conditions to be placed on his registration.
On 13 May 2016 the Council wrote to the practitioner's lawyers enclosing extracts of statements by Patient A and B and an incident report prepared by the practice manager. The letter sought the practitioner's consent to the imposition of practice conditions on his registration. On 20 May 2016 the practitioner consented to the proposed conditions (principally a chaperone condition in accordance with the Council's chaperone policy).
The practitioner commenced work at the Ochre Health Medical Centre, Tea Gardens in March 2015. He remained working at that practice at the date of the hearing.

[4]

Issues

Our examination of the amended complaint and the written and oral evidence of the witnesses identified the following matters as requiring resolution by us: 1. Was the practitioner's conduct in sending text messages to Patient A conduct which demonstrates his judgment was significantly below the standard expected of a practitioner of an equivalent level of training or experience and/or improper conduct? Although the practitioner concedes he now understands he should not have engaged in text messaging because of breach of a patient's privacy, or because such messaging could lead to drawing of adverse inferences, he says that the text messages have been misconstrued. Thus, we are required to determine the veracity of his explanation, and the discrepancies between his evidence and that of Patient A, as well as discrepancies between Patient A's statement and her oral evidence, as part of our overall determination of this issue. 2. Did the practitioner engage in inappropriate behaviour of a sexual nature by squeezing Patient B's right breast when she presented with a lump in her left axilla, or is the practitioner's version of the consultation correct? 3. Did the practitioner fail to provide appropriate assessment and plan for future review of Patient B following a consultation around 6 December 2013? 4. Did the practitioner on a number of occasions between 14 October 2013 and 25 November 2014 engage in inappropriate touching of the Patient C or was any touching inadvertent? Did he grab her shirt pulling it down and saying "Hey boobies"? This issue involves assessment of the veracity of the evidence of Patient C and the practitioner, including whether or not Patient C was influenced to make her complaint by Facebook postings. 5. Is Patient D's evidence that the practitioner played or flicked her nipple piercing to be preferred to that of the practitioner who denies such conduct? If the conduct occurred, was it inappropriate behaviour of a sexual nature? 6. Is Person E's evidence about the practitioner showing her photographs of two topless women posing on a car credible? 7. Is Person E's correct in her assertion that the practitioner engaged in inappropriate conduct of a sexual nature that was unprofessional and unwelcome or did she misconstrue the practitioner's statements or were her complaints motivated by her dislike of the practitioner? 8. Are we independently satisfied that the practitioner's conduct in sending approximately 120 text messages to Person F, a sixteen year old trainee at the practice was inappropriate conduct? It is not in dispute that the practitioner sent each of the text messages set out in particular 3 of Complaint Two of the Amended Complaint? 9. Was the practitioner's conduct in driving Person F from the practice at Rutherford to an inner Newcastle suburb after he had been directed by his employer not to do so inappropriate? 10. Was it inappropriate conduct of a sexual nature when the practitioner asked Person F about her ex-boyfriend whilst driving her home, pulled his car over when she started to cry, stroked her arm and kissed her on the cheek (or as asserted by the practitioner on the top of her head) or was the practitioner's conduct similar to that of a caring parent consoling a distraught child? 11. Was the practitioner's conduct in giving Person F perfume in March 2014 and saying he hoped she had not told anyone as they might feel a bit jealous inappropriate, or should the practitioner's explanation of this matter be accepted? 12. In reaching our determination in relation to the allegations of inappropriate conduct made by Patients A, B, C and D and Persons E and F is there sufficient similarity in the nature of the complaints to support a conclusion that each complainant should be accepted on her evidence? 13. Although the practitioner has conceded his text messaging to Person F constitutes unsatisfactory professional conduct does that conduct of itself, or when considered with the other particulars established, if any, constitute professional misconduct? 14. Is the practitioner a person who is not suitable to hold registration because of the nature of his criminal conviction and in light of findings made by us in respect of Complaints One, Two and Three?

[6]

Relevant Law

The HCCC brings the complaint relying first on s 139B (1) (a) and (l) of the National Law. Those provisions are as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Complaint 3 alleges the practitioner is guilty of professional misconduct under s 139E. That section relevantly is framed as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Complaint 4 is based on s 144 of the National Law. It provides: The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
Criminal finding is defined in s 138 as criminal finding means - (a) a finding that an offence has been proved without proceeding to a conviction; or (b) a finding that an offence has been proved and the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period or on other conditions decided by the court.
Complaint Five is also based on s 144. Section 144 (e) is as follows: Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.)
In Chen v Health Care Complaints Commission Basten JA described the structure of Part 8 of the National Law and explained at [19] to [20] the consequences of a finding of professional misconduct. His Honour said: 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.[14] 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,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] overservicing[17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[18] 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).[footnotes omitted].
Well known principles establish that the onus of proof of the complaint rests with the HCCC. The particulars of the complaint must be established to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34).
In Clyne v New South Wales Bar Association (1960) 104 CLR 186 the High Court confirmed that the reason for the making of disciplinary orders in professional disciplinary matters if misconduct is established is to protect the public, and not to punish the practitioner.

[8]

Patient A's statement and oral evidence

In a statement dated 9 March 2016, Patient A explained that she had seen the practitioner in July 2013 because her regular general practitioner, Dr Verma, was absent from the practice on maternity leave. At that date, Patient A was approximately twelve weeks pregnant. She attended to obtain specialist referrals including ultrasound referral. Approximately one week after the consultation she received a text message from the practitioner saying words to the effect "just seeing how you are". Because she had suffered previous miscarriages, Patient A construed the message from the practitioner as one from a caring and interested general practitioner. Patient A responded saying she had just had her ultrasound. She says in her statement she subsequently received two or three messages from the practitioner saying words to the effect "maybe we could catch up for coffee or dinner sometime". Patient A felt uncomfortable when she received these messages and did not reply. She explained she had not given the practitioner her mobile telephone number and assumed he had obtained it from her medical records.
Patient A says that not long after her consultation, when she was working at a local coffee shop, the practitioner came into the shop and because she felt uncomfortable she avoided contact with him. She explained later that evening she received another text message from the practitioner which said words to the effect "I came to work today but you didn't see me. You looked really good, as you always do". Patient A did not respond to the text or go back to the practice again for the rest of her pregnancy. Patient A explains she spoke to her mother about the practitioner and the text messages.
Following the birth of her child, Patient A records in her statement that she saw Dr Verma. At that time she spoke to a staff member at the counter about her concerns about the practitioner and his text messages. Patient A was unable to retrieve the practitioner's text messages because her old phone, on which she received the messages, had been damaged.
In her oral evidence Patient A conceded the text message from the practitioner may have invited her to lunch or coffee, rather than dinner or coffee, or lunch or dinner. She was also unable to precisely recollect whether she reported the practitioner's conduct in sending text messages about inviting her for coffee or lunch to a staff member of the practice at the counter after leaving her appointment with Dr Verma, or to the same staff member at the coffee shop.

[11]

Discussion and conclusions

We found Patient A to be a credible and truthful witness. Her evidence of reporting is corroborated by the practice owner's letter to the practitioner dated 24 March 2014 pointing out the inappropriateness of the practitioner's conduct. We make this finding notwithstanding there were some discrepancies between Patient A's statement and her oral evidence. Those discrepancies are understandable having regard to the fact that nearly four years has elapsed since her only consultation with the practitioner. We find whether the practitioner's text invited Patient A for lunch or dinner is largely immaterial. It is the fact the practitioner sought to invite the patient to meet him, and although he received no response, that he engaged in a further text commenting on her appearance that is material. We adopt Dr Marles' opinion that the conduct was inappropriate and below standard.
We found the practitioner's explanations in his oral evidence implausible and that he sought to justify his own inappropriate actions by claiming, for the first time, that Patient A, had suggested she would serve him if he came into the coffee shop where she was employed. Patient A did not accept such a conversation had occurred. We accept and prefer her evidence to that of the practitioner on this topic.
We find that Patient A was not aware of, or influenced in, making her statement by other patients or persons.
We will later address in these reasons the question of similar fact evidence. It is sufficient at this point we note although the practitioner said he now understood texting patients was generally inappropriate, his answers to questions in cross-examination demonstrated a lack of insight into his inappropriate actions by way of comments or texting with female patients and employees of the practice. His actions took place in circumstances which may be described as at least as brazen in the case of Patient A, if not bizarre, as submitted by Ms Mathur. On its face it would appear unlikely that a general practitioner would pursue a meeting with a pregnant young woman, but we are satisfied he did so. We are satisfied Particular 1 of Complaint One is established.

[13]

Patient B's statement and oral evidence

Patient B provided a written statement, gave oral evidence and was cross-examined. At the time of making her statement in 2016 Patient B was aged 21 years. She had been seen at the practice on a number of previous occasions for personal matters rather than seeing the doctors in an adjacent practice where she was employed.
Patient B reports that when she consulted the practitioner because of her concerns about a lump under her armpit that she was wearing a loose t-shirt singlet top that was orange/peach in colour with a strapless bra underneath. She was then aged 19 years. She records that the practitioner commenced that her shirt brought out the colour of her eyes.
Patient B attended the practice with her boyfriend who remained in the waiting room during the consultation.
Patient B relates getting up onto the examination table and that the practitioner felt the lump and the area around it. Patient B says that she then sat on a chair near the desk and the practitioner pulled his chair around to her side of the desk and was facing her. Patient B asserts the practitioner said "Can I touch your breasts. They look quite nice, can I have a feel". She goes on to say: At the same time as he said this [the practitioner] slid his hand, without warning, down inside my top and under my bra and onto my breast which was on the opposite side to where the lump was.
Patient B relates she was shocked, pulled back in her chair and said words to the effect "Why, what are you doing" and that the practitioner replied immediately "No reason, I just wanted to feel them". She replied "No" and said she pulled further away. She went on to explain: He pulled his handout at this point. I recall feeling like the way he touched my breast was not the same as when he was checking the lump on my side, and recall him smiling and smirking while he did it. It was like a grope, more of a squeeze.
Patient B relates that after leaving the consulting room she walked out to her boyfriend who was in the waiting room. She then went immediately to the adjacent medical centre where she had been employed and told her old manager what had happened. She also reported the practitioner's behaviour to her boyfriend as he drove her home. She states "As we drove home I felt upset, dirty and ashamed and started to question whether this was all in my head".
In her oral evidence Patient B said that the practitioner had examined her left armpit while she was on the examination table, and that he did not examine her left breast. She explained that the practitioner had touched her right breast only and this had occurred when she was sitting on the chair.
Patient B explained that she had no recollection of receiving a form to have an ultrasound, although the practitioner may have printed out such a form, she did not take it because she was so shocked at what had occurred. She said she was so worried about the lump, if she had been given an ultrasound request form, she would have gone straight away to have the ultrasound examination.
Patient B's boyfriend also provided a statement recording his recollection of his conversation with Patient B and of her appearance immediately after the consultation. His report corroborated Patient B's evidence.
The practice manager at the adjacent medical practice also provided a statement about Patient B being distressed by the consultation. She said she advised Patient B to make a report to the practice manager of the practice.
The practice manager, in her statement dated 8 April 2014, said that she had received a complaint from Patient B on the afternoon of the consultation, and although the patient had been given a complaint form it was not completed and returned to the practice. The practice manager reports Patient B said the practitioner had said "Do you mind me being naughty and checking your other booby".

[15]

The practitioner's evidence

The practitioner denies the particulars in respect of this patient. In cross examination he disclosed for the first time that he had a memory of the patient, and what she was wearing, because two days after he saw her she came to the front desk and reported that "the doctor said 'Can I have a look at the other side. It's so much fun doing this sort of examination'". He went on to say "This is what she had said in those exact words, and that [the practice manager] has actually written in her statement that - she probably doesn't remember it, I don't know, but she's twisted it a bit and said, I was being naughty or something". He also said he discussed the consultation with the practice manager and that he had independently been told of the complaint by a front desk staff member. The practitioner's evidence is that he said: I told her it's not much fun doing those - these sorts of examinations and then I had asked her to examine on the left side, you know like on the left side of the axilla [Transcript 4 December 2017 p 66]
When challenged about Patient B's description of her clothing the practitioner said "I clearly remember what she was wearing it was tight in the neck, you know .." He went on to explain that examining someone's axilla is "like not very clean examination". The practitioner maintained he had only examined Patient B on the chair. When challenged as to why he had referred the patient for a breast ultrasound without examining her breast the practitioner said: It was never breast pain, okay? It was always an armpit pain or axillary pain and the breast is totally different, the breast tail extends only marginally extends into the axilla. The axilla is quite high up in the armpit, the breast tail extend to the lower part of that diamond or prism as we call it and when I examined her I examined her axilla and not the breast.[Transcript 4 December 2017 p 69]
The practitioner maintained the position that he had decided a breast examination was not necessary based on the patient's history. He said "I made a conscious decision on that spot at that time that I don't need to do a breast examination, I just needed to do axillary examination, do an ultrasound and then take it from there".

[17]

Discussion and conclusions

Mr Aitken's written submissions note a number of inconsistencies or apparent inconsistencies in the evidence about this patient. He notes the difference between the words Patient B reports the doctor saying prior to touching or examining her breast and those of Ms Avery, the practice manager's record. He submits the patient is mistaken about any part of the examination taking place on the examination couch. He attributes the patient's distress to the fact that she did not expect her right breast to be examined.
Mr Aitken also points out Patient B's absence of any recollection about an ultrasound referral and the practitioner's clinical notes.
We accept that there is a discrepancy between the words asserted to have been spoken by the practitioner in Patient B's statement and the record made by Ms Avery.
We find that because no formal complaint was made at the time by Patient B that Ms Avery's reporting of the words said are a reconstruction relying on her memory and are unreliable.
We find that although the practice manager from the adjacent practice does not record in her statement the precise words the practitioner is alleged to have spoken, her evidence substantially corroborates Patient B. We make this finding having regard to the fact that her statement was made in excess of two years after the consultation. The practice manager records Patient B complaining of the nature of the touching of her breasts and the inference which may be drawn from her statement is that the practitioner's touching was inappropriate. This evidence is consistent with Patient B's evidence.
We found Patient B to be an honest and credible witness. Her questioning of herself about what had occurred is believable in the context of a 19 year old young woman who did not expect a doctor would speak to her or touch her as she describes the practitioner did. In these circumstances it is not surprising that she sought advice from an older trusted woman with whom she had worked and later spoke to the practice staff.
We do not accept that Patient B's complaint was motivated or coloured by reading Facebook posts some years after the event concerning the practitioner. Her complaint was one made immediately after the consultation to her boyfriend, and very shortly thereafter to the practice manager at the practice where she had formerly been employed. She acted on the advice of the practice manager where she was formerly employed and reported the incident to the practice, although not at that time making a formal written complaint. Unsurprisingly, she did not return to see the practitioner. We are satisfied she did not embellish her evidence and that she was genuine when she said "I wouldn't bring myself here if I was a liar". [transcript 29 November 2017 p 83]. We are satisfied that Particular 2 of Complaint One is established.
Particular 3 relates to an assertion the practitioner failed to provide an assessment or follow up. We are conscious that Patient B states she did not receive an ultrasound referral, although the notes indicate a referral was prepared. However, no ultrasound report is included in her medical records. On the face of the record we cannot be satisfied this particular is established. The patient's medical records disclose proposed treatment of her pain with analgesia and a follow up ultra-sound. Dr Marles is not critical of the practitioner's records. Accordingly, we are not satisfied to the Briginshaw standard that this particular is established.

[19]

Patient C's statement, Ms Avery's statement, and other evidence including the oral evidence

To consider this complaint it is necessary we examine both the written and oral evidence of Patient C, and the evidence of Ms Avery who recorded Patient C's complaints.
On 9 June 2015 a complaint prepared by Ms Avery and signed by Patient C was made to the Australian Health Practitioner Agency (AHPRA). This statement refers to the practitioner rubbing Patient C's leg on a specific date (14 October 2013) at her first consultation and that this made her feel uncomfortable. The statement goes on to record the practitioner, at most consultations, inappropriately touched the side of her breasts when taking her blood pressure. The statement also refers to one occasion on which the practitioner grabbed her blouse saying "boobies" and pulling it down at the front. It is asserted that the practitioner said he just wanted to look at her tattoos.
The statement also refers to the practitioner holding Patient C's hand and making the comment "Don't forget about me".
Ms Avery records that when working at the practice on 29 November 2014 Patient C called her and asked what she thought about the practitioner, and whether she found him to be "flirty". Ms Avery records at [17] that Patient C told her she had seen a Facebook post about a patient who had a bad experience with the practitioner. Patient C is also recorded as saying the practitioner had inappropriately touched the side of her breast when taking her blood pressure, even doing so when her partner was in the consultation room, and also reporting the incident with her blouse and the word "boobies".
Ms Avery records at [19] that Patient C told her she had not earlier made a complaint because of a violent assault, and because she was worried no one would believe her because of her appearance. Ms Avery goes on to record that Patient C spoke to her on a few occasions over the following six months, but said she did not want to make a formal complaint. She explained she had consulted her psychologist about the practitioner's actions.
Ms Avery records at [21] Patient C came to the office on 9 June 2015 and said she wished to make a formal complaint. Ms Avery offered to help her write up the complaint because she "did not know how to write up something like this".
Ms Avery also produced notes made on her computer in late 2014 and which she finished some two weeks later in early December 2014. She noted: I was contacted on Saturday afternoon by [Patient C], a patient of [the practitioner]. She said that people had been contacting her about what had happened in the surgery with [the practitioner]. She said that she could only comment on her previous experience with him. She said that she felt sick when she found out that it had happened again. She said that she knew she begged me not to report it to anyone before as she did not want Dr Alex [Dr Jake Alexander] thinking that it was her fault. She felt people would judge her because of her appearance. She did not want to make a formal complaint last time but wishes she had of. She said that she was sorry for not telling me but [the practitioner] had continued to touch her. She said that she felt that she had to continue to see him because Dr Alex wanted her to go to [the practitioner]. She said she would panic every time she had to go to the doctors. She said that she had a bad fall last week and had to be seen. She said that she hurt her breast also but was too scared to tell him because she knew it would give him the perfect excuse to play with her breasts. She said she would give a formal statement if it meant that she could protect others from him. She stated that he would always try to rub her breast or put his hand down her top. Even when checking her BP he would purposely touch her breast when putting the cuff on. She said she was too scared to tell me about the continuing harassment from him.
On 5 November 2015 Patient C signed a statement provided to the HCCC.
At [5] Patient C explains that her memory about dates has been affected by medications prescribed for her diabetes, blood pressure and depression.
At [7] Patient C records (contrary to the evidence in her statement prepared by Ms Avery) that when the practitioner first touched her she felt "a bit flattered by what he had done" but goes on to say "I began to realised [sic] that he was a bit sleazy and it started to make me feel uncomfortable". When the practitioner is asserted to have rubbed her leg without clinical reason, Patient C explains she did not complain. However, when referring to the incident when she asserts her blouse was pulled down, she says she was shocked and pushed the practitioner away.
Patient C records speaking to Ms Avery about the practitioner's conduct on several occasions and asking her not to tell anyone because she hated conflict. She records that she also told her family and her psychologist, Mr Paul Causely.
Patient C records at [16]: One day I rang up the practice and was told [the practitioner] was not working there anymore. I spoke with [Ms Avery], and she said that there was somebody else that was put in an uncompromising position. I was having a nervous breakdown about the fact that I had not done anything. I felt guilty that it was my fault. I was a mess about not making a complaint sooner.
Patient C records that "later on" she heard about a similar complaint about the practitioner from a friend who had seen something on Facebook.
Patient C's psychologist's clinical notes of 23 November 2014 record that Patient C had spoken to Ms Avery about inappropriate touching by the practitioner and that she was in turmoil about whether she should write a letter.
On 31 December 2014 Patient C consulted Dr Lesley Allen, (Dr Allen) another practitioner working at the practice. Dr Allen records that Patient C had expressed concern she had failed to act in respect of the practitioner in respect of inappropriate touching. Dr Allen notes: My interpretation was that she was beginning to process her own emotions and regrets having discussed these issues with psychologist Paul Causley and that it was a brave thing to come and feel safe enough to express them back at the surgery where the problems had occurred.

[34]

Person E's statement and oral evidence

Person E relates in her statement dated 31 May 2016 that approximately one month after she commenced at the practice the practitioner commenced contacting her on the practice's internal computer communication system. She says he sent messages to the effect "What are you doing", "do you want to catch up" and "I'm bored". Person E said she ignored the messages but on one occasion the practitioner messaged her saying words like "Are you ignoring me today. You're not answering my messages". She also reports that the practitioner would wink and smile at her in the presence of patients but without their knowledge.
Person E says her first impression of the practitioner was that he was nice but overfriendly. She says he "used to make flirty comments to me in person". She says he commented on how blonde her hair was, and touched her hair. Person E records that the practitioner also commented that she had nice white skin. She said at [17] the practitioner would occasionally put his hand on her shoulder or around the back of her waist, and that he would be close behind her "not like you would stand with a colleague or boss".
At [22] of her statement Person E records the practitioner coming into her practice room and making personal comments. She says he asked what she was doing on the weekend and invited her to his home. She reports he said to her "Why don't you want to hang out with me. It would be more fun to hang out with me. We could have lots of fun together". Person E says she believed the practitioner wanted to have a sexual interaction with her.
At [26] Person E states that the practitioner asked her if she would like to see some of his photographs. She goes on to record at [27]-[29] When I looked at his computer screen I could see there were a lot of photos - they were just tiny dots. When he opened each photo, I saw that each photo was of a hotted up car with a woman laying on top of the car. The woman had no top on. She was wearing a bikini bottom or little shorts. The same woman was lying in different positions in each photo. I noticed at least two different women in the photos. One had brown hair and one was blonde. They were both caucasian. I recall there being two different cars - one blue and one red. [t]he practitioner] said that he had taken the photos himself. I thought "Why the hell would he show me naked photos?". After I saw those photos I got the impression that when [the practitioner] talked about how he like [sic] to take photos, he meant that he liked taking photos of naked women. When he said he wanted to take photos of me at his house, I got the impression that he meant he wanted me to come to his house to be photographed semi naked.
Person E also records that the practitioner's behaviour made her feel sick about going to work and she talked about it with her mother.
Person E recounts the "last incident", after which she reported the practitioner's behaviour to Ms Avery, was an occasion when he came into the tea room and asked how she was. Person E said "I'm tired". The practitioner responded "Yeah, it would be nice to be in bed now doing something else". Person E says the way the practitioner spoke to her made it clear he wanted a sexual relationship with her and again asked her what she was doing on the weekend and whether she would go out with him.

[40]

Person F's statement and oral evidence

Person F provided a written statement to the HCCC and gave oral evidence before us by telephone.
In her statement Person F states that, after she commenced work at the practice as part of her 12 months' traineeship, the practitioner "secretly winked" at her which she did not like. She then records at [18] that the practitioner commenced texting her outside work. She says she is unsure how the practitioner obtained her mobile phone number but she might have given it to him because he gave her a lift home.
Person F relates how the practitioner did not give her a gift at Christmas and that she did not expect one, but that in March when driving her home he gave her a bottle of perfume.
At [22] to [28] Person F records a number of texts she received from the practitioner asking her to be a model and engage in photo shoots. The practitioner offered to pay her for modelling, to buy clothes for her and arrange for her to have a "makeover". The following day the practitioner sent a text to Person F at 1.01pm asking her to go for coffee. At 2.45pm. he sent a text saying "I'm outside". Person F thought he meant outside her house.
At [27] Person F , in each case using the practitioner's first name, states On 16 March 2014 [the practitioner] texted me at 8.08pm. He asked me "have I pissed u off or anyone has told u not to travel with me?? Be honest …I need to correct if I have anything wrong… Bcos ur a very good girl and I shouldn't hurt u. I said "No. I just think if ms Alex has said to to … why risk my job when I can get public transport anyway" [the practitioner] answered back and said 'awww sweetheart .. She can only say things to me ..Not to u .. And we are not doing anything at work .. We are travelling after work … That's nobody's business. Ur 17 right?
Person F relates being questioned by the practitioner about her former boyfriend including on one occasion when he was giving her a lift home. She reports she was becoming increasingly upset and commenced crying. She says the practitioner stopped driving near McDonald's at Hexham and pulled over to the side of the road. She records: [the practitioner took my left forearm where I have scars. The scars are there because when I was 15 I used to cut myself. You can still see the scars. [the practitioner took my left forearm. I think he took hold of it with his right hand. He started to touch and stroke his hand up my left arm. He had both his hands on by left harm "You shouldn't do that" meaning I shouldn't have cut myself. I was crying. I didn't want to talk about my ex-boyfriend or the scars, and I didn't want to be in the car with [the practitioner]. Then [the practitioner] kissed me on right cheek. I thought 'what's happening' I knew that he had definitely crossed the line. I knew it was definitely not OK what he did. I think he knew that I knew what he had done wasn't OK. He started up the car and we drove off.
Person F reports that the practitioner kept asking her if she wanted something to eat, but finally said he would take her home. Person F says that was probably the last time she went in the practitioner's car.
On 21 March 2014 the practitioner sent Person F the text message about taking Viagra (which we have earlier set out in these reasons). After receiving the text message, Person F called a friend who came and picked her up. Her friend told her the message was inappropriate and that she should tell Ms Avery. Later that morning Person F contacted Ms Avery and sent her a copy of the message.

[42]

The practitioner's evidence

We have already set out details of parts of the practitioner's statements in respect of Person F. He was extensively cross-examined by Ms Mathur about his text messages and his relationship with Person F.
When crossed-examined about the events in his car particularised in Particular 5 the practitioner asserted he was consoling Person E as you would console a child. He said he stroked her back and head. He said: I saw somebody crying, you know, at that point I didn't know what to do and because we were driving on this busy highway so I had to console her or I had to, you know, pacify her and probably that's what I did at the time. [Transcript 4 December 2017 p 11]
The practitioner went on to explain that he had kissed her on the forehead.
The following exchange occurred between Ms Mathur and the practitioner about the Viagra message: Q. And can you explain, Dr Mathad, why it is that this person who you're consoling as one does a child, can you explain what you were thinking when you sent this child a text message which spoke about your all night erection? A. I would like to tell you again that she - I didn't consider her my child, whenever I saw he I would relate her to seeing my children in her place because she - since August when she started working with us she would tell me, you know, quite a lot of things about herself, her dysfunctional family, how difficult it was for her to, you know, like to come there to earn money. And I'm not saying that she was my child or I was - when I saw her I could see my children in her place if I continued to be separated from my wife and, you know, it would hurt me that, you know, somebody has had - at that young age would have to go through all those things, you know, to make them meet ends, to travel such a long distance. So, you know, I was trying to be nice and, you know, trying to be helpful to that person, trying to make her laugh. I never considered her my child. I know she was a young person, I didn't know how old she was exactly at that time. So it was - I do admit that it was very reckless of me by sending a text message of that sort to that person. [Transcript 4 December 2017 p 12]
The practitioner was also cross-examined about two photographs he sent to Person F, a close up of one Ms Mathur accurately described as being "zoomed in … in the area around the semi-clad man's genitalia". He agreed that sending these photographs as a joke was quite reckless and senseless at the time. He later described his action as "impulsive".
The practitioner was questioned about his actions in the light of his knowledge of Person F's background as follows: Q. So would you agree, Dr Mathad, that she was a particularly vulnerable staff colleague as a result of what you knew was to her upbringing? A. You know, like I won't - I can't comment whether she was particularly vulnerable. At that time where she was working she was of sound mind and, you know, she used to tell me about a little bit about her background which everybody has, you know, something or the other. you know, happening in their lives. So all these words which are vulnerable and things like that are new to me now and if you think she was vulnerable, you know, retrospectively looking at her background, circumstances, and you add them up and you say she was vulnerable at that time then probably she was vulnerable. Q. Well you never considered that at the time, whether she was a vulnerable individual or not? A. At that time if somebody was, you know, like having a tough life I was trying to, you know, like help them and trying to, you know, make them laugh. That is what was my intention and I probably took it too far.[Transcript 4 December 2017 p 18]
The practitioner conceded that his representation to Person F that he paid models $200 for a few hours was untrue. He went to explain in answer to a question posed by Ms Mathur as follows: Q. It's come up in that text message, you've expressly put it out there, "I pay"‑‑ A. I'm not saying that I will pay her. Q. Why would you tell her what you pay other models other than to suggest to her that that's what you'll pay her? A. I was telling her that is an average or that is how much people can earn if you know, if they model. I was not saying that I'll pay you this much. If she had agreed then definitely I would then you know negotiate and give her some money. [Transcript 4 December 2017 p 39]/

[44]

Text messages

We find we can place little weight on the practitioner's statement that he now recognises his interactions with Person F were inappropriate. This statement is in direct contrast to the stance he adopted in August 2016. At the time of his response to the HCCC the practitioner was not aware that Person F had retained his text messages and that they would form part of the evidence in these proceedings. The content, timing and frequency of the text messages produced leave no doubt about their inappropriate nature. As Ms Mathur noted, the text messages the practitioner sent included 27 text messages to Person F seeking to induce her to be photographed.
We find that the practitioner's answers to questions posed to him in cross-examination did not demonstrate the level of insight the practitioner professes in his statement. His answers demonstrate he continues to seek to justify his predatory behaviour by suggesting he was trying to be humorous. As Ms Mathur noted, the practitioner sent 27 text messages to Person F seeking her agreement to be photographed.
Further, we find he still has a lack of recognition of the power imbalance between himself and Person F, a vulnerable minor, given his explanation that she was "of sound mind". He made deliberately misleading statements to her to induce her to engage in photographic sessions. His lack of insight is cogently demonstrated when he explained in an answer to a question in cross-examination that he would have "negotiated" with Patient F a suitable payment. This statement demonstrates his inability to recognise the power imbalance in the relationship. Person F's inability to deal with the practitioner's persistent inappropriate texting with sexual innuendo is demonstrated by her friend's evidence that she was scared to do anything. Person F no doubt feared what might happen in the context of her work placement. Further, she was a vulnerable minor lacking in the necessary maturity, experience and support to deal with the practitioner's behaviour. It was fortunate her more mature friend counselled her to report the Viagra text message to Ms Avery.

[48]

Propensity evidence

As noted earlier in these reasons, Ms Mathur submitted this was a case where the Tribunal should engage in propensity reasoning and relied on the decision in the Court of Appeal in Zaidi v Health Care Complaints Commission and Another (1998) 44 NSWLR 82 as authority for that proposition. In Zaidi Mason P distinguished the situation of a Tribunal in NSW hearing professional disciplinary proceedings under the now repealed Medical Practice Act 1992 (NSW) and that pertaining in other jurisdictions where the criminal standard of proof applied. The President adopted remarks made in Purnell v Medical Board of Queensland (Court of Appeal Queensland 15 August 1997) (unreported) by McKenzie J.
McKenzie J referred to the proof being that of whether an act was done. His Honour explained that "where there is an issue of proof of the commission of an act on a particular person may become more certain if other witnesses testify that a similar act has been committed on them". However, his Honour noted a caveat to that statement, namely that the complaints of similar act must be made by witnesses who are truly independent of the complainant whose testimony is in issue. This, his Honour explained, meant there had been no collaboration between the complainant and other witnesses. His Honour also noted that the number of complaints is not a critical factor. His Honour said: One similar allegation containing the same peculiar feature or features may have considerable weight in supporting a complainant's evidence. On the other hand where acts alleged do not contain any particularly unusual features but are similar, the fact that there are a number of allegations from different persons may assist in drawing an inference that the act with which the court or tribunal is concerned occurred to the requisite standard of proof.
In Zaidi three female complainants had asserted they had been sexually assaulted by the medical practitioner. The practitioner's appeal that the Tribunal had been in error "in considering the several particulars of the complaint evidence given in respect of other particulars, when the conditions for admissibility of similar fact evidence in such matters were not satisfied."
Ms Mathur submitted matters are relevant to support our findings are: 1. Each patient (Patient A, B, C and D) made complaints at the time or shortly after the alleged improper behaviour. In respect of Patient C Ms Mathur relies on her earlier but undocumented reported to Ms Avery. She submitted that Person E reported the practitioner's conduct to her mother and that Patient F complained immediately after she received the Viagra message. 2. In respect of propensity evidence she submitted the practitioner's behaviour in each case was brazen and bizarre in that he: 1. texted a 12 week pregnant women suggesting catching up for coffee and sending a message that she looked good; 2. asked a patient if he could touch her breasts because "they look quite nice" and then squeezing the patient's breast through her top; 3. flicked Patient D's nipple piercing during a chest examination; 4. showed photographs of topless women posing on his BMW to Person E ;and 5. initiated a friendship with a 16 year old girl, telling her of his use of Viagra and his all night erection. 1. Ms Mathur submitted the second common thread in the complainants' evidence is that the conduct was of a sexual nature being a primary obsession with the breast - squeezing of Patient B's breast, brushing Patient C's breast, showing breast photographs to Person E as well as his sexual conduct in kissing a 16 year old girl and texting her about his erection. 2. Ms Mathur submitted the expert evidence of Dr Marles, which we have referred to in these reasons, supports a finding of propensity evidence.
Mr Aitken properly cautioned us in his submissions contrasting the unique or peculiar features in Zaidi with the disparate facts in this matter ranging from text messages to asserted indecent touching and collectively finding the practitioner's conduct was brazen and bizarre. He further drew attention to the issue of whether the witnesses' evidence was contaminated having regard to the concession Patient C and Patient E that they had read Facebook posts, and Patient B was aware of rumours circulating in the area about the practitioner.
We have examined each Particular individually and with limited exception found the particulars proved without the need to rely on similar fact or propensity evidence. While it has not been necessary for us to rely on propensity evidence in respect of one patient to support the evidence of the other patients, the evidence overall does evince similar themes or circumstances. The themes include unprofessional behaviour in the surgery including winking, messaging, remarks with sexual innuendo as well as inappropriate texting, and touching of either young or vulnerable patients and Person F. We find Dr Marles' observations at 5.5.6 of her second report bolster our conclusions.

[49]

Complaint Three - Professional misconduct

We have already set out Basten JA's succinct summary in Chen of the National Law and in particular his explanation of the circumstances in which a finding of professional misconduct may be made.
The particulars of Complaints One and Two are relied on individually and cumulatively. We note that the practitioner concedes his conduct in respect of the particulars in Complaint 2 (being particulars 3, 4 and 6) are admitted and that his conduct constitutes unsatisfactory conduct.
We find the practitioner's conduct in respect of Person F was significantly below the standard of a practitioner of an equivalent level of training and experience. It was also highly improper. The texting and behaviour exhibited by the practitioner to this minor was a gross abuse of his power. It was behaviour perpetuated on a vulnerable minor undergoing a traineeship. We find the practitioner relentlessly pressured Person F with frequent text messages endeavouring to persuade her to engage in photographic sessions when it was very clear she did not want to do so. This was deplorable conduct by a 38 year old professional who either completely lacked insight or integrity or pursued Person F knowingly with sexual intent. His invitations to Person F to go to the movies, or go out with him to the zoo or a nightclub were likewise inappropriate.
The explicit photos clips of the semi clad man sent to Person F were not funny or a joke as the practitioner suggested, rather the photo clips were inappropriate having a sexual connotation. It is not surprisingly that this 16 year old girl turned to her more mature friend for advice but did not act until she received the Viagra message because she was scared. It is of concern that she was initially questioned about the veracity of her allegations and the practitioner was able to assert pressure in threatening legal proceedings to be re-instated to his position. It demonstrates cogently the practitioner knew how to assert power in the practice.
We find the practitioner's conduct in respect of Person F to be so serious that it could justify his suspension or cancellation of his registration. However, our findings in respect of Person F cannot be regarded in isolation.
We find the practitioner engaged in highly inappropriate conduct in his examinations of Patients B, C and D. We have also found that he inappropriately sent text messages to Patient A, and that his conduct towards Person E constituted harassment. Again, the practitioner's conduct in respect of each of these women demonstrates a blatant disrespect for doctor/patient boundaries or appropriate behaviour between or by professionals. The practitioner in his actions, including his text messages to Ms Avery where he used derogatory language about patients referring to them as "psyco druggie bludgers" and "retards", demonstrated complete and utter disrespect for Patient C and D and other patients suffering mental illness or drug addiction. He targeted his unwanted, uncalled for attentions on the younger single nurse in the practice and Person F, a trainee. We have no hesitation, based on our findings, that the practitioner's conduct was such that it could justify his suspension or cancellation of his registration. Thus, we are satisfied that Complaint 3 is established.

[50]

Complaint Four - the criminal conviction

The practitioner was charged and convicted on 25 June 2010 of one count of Stalk or Intimidate under s 13(1) of the Crimes (Personal and Domestic Violence) Act 2007 and one count of common assault under s 61 of the Crimes Act 1900 (NSW). He was directed to enter into a bond to be of good behaviour for a period of twelve months. The practitioner concedes the conviction and sentence pleaded are correct.
The practitioner in his statement sets out the circumstances in his home at the time of the incident leading to the criminal conviction. He says "the situation resulted in a loud shouting match in the middle of the night. I concede with shame that I slapped [Person G] on the face in a fit of rage. I also put my hand over her mouth to make her be quiet". Later in his statement the practitioner acknowledged it is never appropriate to have a physical altercation with a person such as Person G. He says "I apologise for my behaviour and am deeply ashamed that this matter occurred".
Ms Mathur cross-examined the practitioner about the circumstances of the assault. The practitioner acknowledged that he might have said to his neighbour that "nothing in the house is hers" and. "She [referring to Person G] hasn't paid for anything". He also conceded when pointing a finger at Person G he had said "I will not spare you"
The following exchange occurred in the cross-examination: . So, you know, like a lot of things were said and on that day it went to an extreme that I had to forcibly shut her mouth and, you know, so that the neighbours were not inconvenienced and the kids also, you know like were very, very affected. Q. So you say that the assault had to occur so that in part the neighbours weren't inconvenienced? A. Yeah because everybody, you know, in the - it was quite late in the evening and everybody was hearing and, you know, a lot of the neighbours were concerned about our constant arguments and it is not that I wanted to, you know, like slap her because the neighbours were inconvenienced, it was just that ongoing thing. I tried to convince her to stop yelling and abusing but it didn't and I just had to put my hand on her mouth to shut her up. Q. What about simply leaving the apartment so she had no one to yell at-- A. Yeah, exactly. Q. --did that occur to you, Dr Mathad? A. It didn't occur, sorry. [Transcript 5 December 2017 p 27]
Mr Aitken submitted the events leading to the criminal conviction had occurred over seven years ago, that Person G had not been called as a witness and that the Facts Sheets in the AVO proceedings had not been established as the final facts before the Local Court in finding the offences were proved and proceeding to conviction.
Mr Aitken submitted that we ought not to reject the practitioner's evidence as to his recollection of the physical assault "about which he has expressed considerable regret". Mr Aitken submitted we should not extrapolate from the practitioner's statement that he had to shut up Person G that "he showed a complete lack of insight into the treatment of women and the domestic violence context in which that occurred". Rather he submitted that the statement about shutting up Person G was his thinking at the time but now agreed it was not the right thing to do.

[52]

Relevant Law

Counsel were unable to direct us to an appellate authority dealing with the issue of not a suitable person to hold registration. We were referred to two first instance decisions of this Tribunal (HCCC v Farrell [2017] NSWCATOD 160 and Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116. In Istephan the Tribunal said: We find the consideration of the relevant principles in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 correctly reflects the proper construction of s 144 in the context of the National Law. In that decision the Tribunal, as we have done, had reference to s 55, as giving context to interpret the words "suitable person". In Brush at [72] and [73] the Tribunal explained: We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills. The Tribunal's interpretation of "suitable person" in Brush is consistent with the interpretation of the Queensland Court of Appeal in when considering those words in the context of whether or not a person was a suitable person to be granted an adult entertainment licence under the relevant legislation (see Chief Executive Department of Tourism, Fair Trading & Wine Industry Development v 4 Play (Oz) Pty Ltd. [2008] QCA 267). Here the Court of Appeal took into account the applicant's reputation, character, honesty and integrity and also had regard to the applicant's past financial dealings with the Australian Taxation Office.
It is useful that we also set out s 55(1) of the National law. It relevantly provides: Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or (c) the individual has previously been registered under a relevant law and during the period of that registration proceedings under Part 8, or proceedings that substantially correspond to proceedings under Part 8, were started against the individual but not finalised; or (d) in the Board's opinion, the individual's competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or (e) the individual's registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia; or (f) the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or (g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or (h) in the Board's opinion, the individual is for any other reason - (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely.
Ms Mathur submitted that save for the practitioner's concessions about the text messages sent to Person F, he had denied the other particulars alleged against him. She submitted if we found the particulars proved, those findings would demonstrate a complete lack of insight by him and that would have to be considered when assessing the practitioner's character, and whether he is fit and proper and a suitable person to practice medicine.
Mr Aitken pointed out that the practitioner's suitability to practise is not based on lack of ability or some ongoing impairment. He focussed on the practitioner's criminal conviction noting it had occurred over seven years ago and was a "one off" event. He submitted, "[t]he test to be applied is of suitability to hold registration. It does not turn simply on some moral defect of character". He went on to submit, contrary to our findings that even if the conduct in respect of the patients and persons particularised in the complaint were proven they would not amount to professional misconduct and that they "do not form a sufficient foundation for a finding that the respondent is not a suitable to hold registration including if taken together with the evidence in relation to Person G"
We accept that on the pleadings before us it is not asserted that the practitioner lacks the competence and technical skills to practise medicine or that he has an impairment (as defined in the National Law). While the evidence before us is presently scant, we accept that the practitioner has worked as a general practitioner at Tea Gardens for several years since the complaint, and is in the process of completing his fellowship examinations with the Royal Australian College of General Practitioners.
We find we must give some consideration to the practitioner's past conduct in assessing his fitness to practise and that our assessment should not be confined to his present status. If the practitioner's criminal conviction was the only matter relied on to support this Complaint we would not be satisfied the complaint is established. In reaching this finding we do not underestimate the seriousness and inappropriate nature of the assault but we do have regard to the fact it occurred over seven years ago and there is nothing to suggest that the practitioner did not comply with his good behaviour bond. We are also cognisant that we have not had the benefit of any evidence from Person G. We take into account the practitioner has expressed remorse for his action although we are troubled by his present lack of insight demonstrated by his admission that it had never occurred to him to leave the premises to de-escalate the situation and his assertion in his oral evidence that he had " to shut her up".
The question of a practitioner's reformation of character in the context of fitness to practise is frequently measured against the criteria referred by Walsh JA Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488.
The question of character in the context of fitness to practise was discussed in Bahramy v Medical Council of NSW [2014] NSWCATOD 116 as follows: When considering issue of "good character" the principles set out in HCCC v Karalasingham [2007] NSWCA in the reasons of Basten JA are instructive. His Honour, at [45] explained the words " 'not of good character' do not bear a special or technical meaning. " His Honour went on to discuss situations, by reference to authority, where personal conduct, as distinct from professional misconduct, may be relevant to the question of a practitioner's good character. His Honour cited, with apparent approval, the factors set out in the decision of McBride v Walton (unreported NSWCA 15 July 1994) as follows: To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine, one must consider: (a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other misconduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.
We have considered the fact that the practitioner has denied his conduct in respect of all the patients and persons, save and except the text messages sent to Person F, and as Ms Mathur points out, he had little option but to admit this aspect of Particular Two when the text messages were downloaded from Person F's phone and presented in evidence. We are considerably troubled by the practitioner's explanations that he proffered for his conduct in respect of Person F. His explanations lack credibility and indicate a lack of both insight and remorse.
Even if the practitioner's examinations of Patient B, C and D and his actions in respect of Patient A and Person E were not perceived by him to have a sexual motive but for some sort of misplaced humour the behaviour was completely unprofessional and inappropriate. The practitioner's statements and evidence given in cross-examination did not demonstrate to us any real insight or understanding of the effect of his conduct particularly in relation to Person F. We say this notwithstanding the practitioner did record apologies for his conduct in respect of Persons A, E and F and expressed regret that he had continued his examination of Patient D when she was clearly very distressed by him doing so.
We are conscious that the practitioner had no general practice experience prior to his employment at Rutherford and the conduct all occurred during a limited period in 2013 and 2014. The question of whether this conduct overall demonstrates a lack of judgment by an inexperienced general practitioner rather than a defect of character requires careful consideration. On balance, we are unable to conclude all of the conduct could be simply regarded as an error of judgment.
We find the practitioner's conduct, viewed as a whole, and in particular his treatment of Person F, does not suggest the practitioner has the level of professionalism necessary to engage in the practice of medicine. The practitioner's conduct was not isolated to one person or patient. His explanation of why he engaged in physical violence against Person G did not indicate to us a true reformation of character.
The practitioner has been aware of Complaint Five for a considerable period of time, but his evidence of insight has been limited to qualified apologies to Person E and Person F, and a statement that violence against women is never acceptable. We have balanced these matters and the practitioner's lack of general practice experience against our other findings about him. Overall, we conclude on the evidence before us that Complaint Five is established.

Health Care Complaints Commission v Mathad

At a glance

Court

Decision date

Source

Judgment (53 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (12)

Cited By (1)