Health Care Complaints Commission v Mohan

1. The conduct alleged and found established by the Tribunal was:

"1. Between approximately April to 2 July 2022, while working night shifts at the Hospital alongside Person A, the practitioner behaved inappropriately towards Person A by:

a. invading Person A's personal space so that he was physically close to her.

b. poking Person A in the stomach with his pen.

c. grabbing Person A's pen out of her breast pocket without asking for permission before doing so.

d. pulling Person A's surgical mask down.

e. making a comment to Person A that she looked prettier without a mask on when no one else was present.

f. pulling out Person A's hair tie on approximately ten occasions.

g. making comments to Person A that she looked prettier with her hair down.

h. looking at Person A's mobile telephone over her shoulder as she was using it.

i. massaging Person A's shoulders when she was ordering food for the team.

j. grabbing Person A's wrist and pulling her into a small medication room and:

i. standing in front of Person A when her back was up against the wall, blocking the entrance to the room;

ii. pulling down Person A's surgical mask,

iii. touching Person A's lip with his thumb; and

iv. making the comment to Person A 'you look beautiful.'

k. asking Person A if she had a boyfriend.

l. asking Person A if he could see a picture of Person A's boyfriend on her mobile telephone.

m. putting his hand on Person A's waist and pulling her into a vacant, dark hospital room.

n. asking Person A when she was next working.

o. asking Person A the following:

i. where she lived;

ii. how far her house was from the hospital;

iii. what her house looked like; and

iv. if he could see a picture of her house on her mobile telephone."

1. Person A said that the Respondent's attention made her feel uncomfortable and the incident in which the Respondent pulled her by her waist into a darkened room left her shaking and scared and she asked other nurses on her shift not to leave her alone with the Respondent. Such was the level of her discomfort that she reported her concerns to the Nursing Unit Manager who told her that she would not be rostered to work on the same shifts as the Respondent. Unfortunately, shortly after making the complaint, Person A found herself working with the Respondent who again asked her personal questions. Person A said she felt "quite traumatised" and said she wished to leave work at that hospital. The hospital arranged a referral for her to a psychologist with whom she had a number of sessions.

1. In relation to Person B, the complaint alleged:

"2. In 2021, over a three to four month period during night shifts at the Hospital working alongside Person B, the practitioner behaved inappropriately towards her by:

a. grabbing Person B's pen out of her breast pocket without asking for permission before doing so on approximately ten occasions.

b. poking Person B in the shoulder with her pen on approximately ten occasions.

c. massaging Person B's shoulders on approximately five occasions.

d. asking Person B to show him 'sexy pictures' on her mobile telephone when no one else was present on approximately five occasions.

e. making a comment to Person B that she was 'beautiful' when she was wearing blue scrubs and that she should wear those scrubs all the time.

f. trying to touch Person B's hair when she changed her hairstyle.

g. commenting when Person B changed her hairstyle that she looked 'beautiful' and 'sexy.'"

1. Person B is a more senior nurse than Person A. She said that when the Respondent massaged her shoulders she told him she would report him and, on another occasion, told him that his conduct was unprofessional. Person B said that the Respondent would "laugh off" her comments. She noted that the Respondent's conduct, the subject of the complaint occurred when there were only two nursing staff around and said that he did not behave like that in front of other people.

1. The particulars of the complaint in relation to this complainant were:

"3. Between 2008 and 2019 during night shifts at the Hospital while working alongside Person C, the practitioner behaved inappropriately towards her by:

a. making sexual remarks towards Person C.

b. commenting on the size of Person C's bottom.

c. slapping Person C's bottom.

d. poking Person C in her side to get her attention.

e. grabbing Person C's pen out of her breast pocket multiple times without asking for permission before doing so.

f. asking Person C to show him pictures on her mobile telephone when no one else was present."

1. Person C said that while the Respondent was a "very approachable, friendly doctor" at a time when she was a Registered Nurse, he became "too friendly" and began making sexual remarks to her and would hit her on the bottom as she went past. Because of the power imbalance between doctors and nurses as Person C perceived it, she did not make a complaint.
2. The Respondent denied each and every particular of the complaints. Throughout his evidence the Respondent maintained that he had not done the acts or said the things alleged by the complainants which were found to be established by the Tribunal. He asserted that their evidence was fabricated and did not resile from his statements made to the Strathfield Private Hospital in response to the raising of the complaints with him, that not only did the complainants lie but attributed to each of them a motive to lie. His evidence was rejected.
3. The Tribunal found the particulars established and concluded that the conduct amounted to professional misconduct.

1. During the Stage 1 hearing, the Respondent said that after being notified of the complaints, in July 2022, he undertook a sexual harassment awareness course offered by MCQ International. The course was delivered on-line and comprised 5 modules. He said it took him some 36 hours to complete. Having done the course, the Respondent said he reflected on his conduct and concluded that he had done nothing wrong. He said that he had not learned anything that he did not already know.
2. In elaboration, he said that he knew not to touch colleagues or move into their personal space and said that to touch a colleague on the bottom would be "grossly inappropriate".
3. In his statement filed in relation to the Stage 2 proceedings, the Respondent said he realised that the education provided by MCQ and "... in particular my reflection upon that education and how it applied in my work place, was inadequate ....". He said he had engaged with Morrison Consulting and Advisory to provide tailored one to one training on subjects that include professional boundaries and sexual harassment.
4. He was asked in what way the previous course was inadequate, and he said it did not give him much insight and he wanted to learn more having read the findings in the Stage 1 proceedings. The Respondent agreed that at the time of the Stage 1 proceedings he understood about appropriate workplace behaviour and maintained that his conduct had been appropriate, and when asked again why then did he consider this education "inadequate", said that he did not want to be in the same situation again for the sake of his career. The Respondent continued and said that he now understands that how people perceive his words might be different from what he intended.
5. Of course, the comments made by the Respondent were only part of the complaints made by the complainants; the complaints also concerned the Respondent's inappropriately touching them.
6. In the context of the Respondent's assertion that he did none of the acts attributed to him, whether spoken or physical, and in circumstance when he said he was aware of inappropriate conduct in the workplace, there seems little he needs to learn by having further education.
7. He said that he now does not discuss personal matters with his work colleagues and restricts his conversation to professional matters.

1. When the allegations against him were raised by the hospital where he was working, the Respondent engaged with a clinical psychologist, Dr Edmond Nathan. The Respondent was asked whether he had discussed with Dr Nathan the impact of the complaints on other people, he said "of course" adding that he wanted to "reform" himself.
2. Dr Nathan's records were in evidence before the Tribunal. The first entry dated 24 August 2022, refers to the Respondent's stress "...due to false accusations of inappropriate touching a nurse...". The entry of 11 September 2024 reflecting a visit after the Stage 1 determination had been delivered notes:

"After the final decision made on the 29/8/24. Dr Balaji was devastated. He felt he was in a dark hole, ashamed, experienced insomnia and confused about what to do next. He felt like it was a character assassination on him."

1. There was no discussion recorded in the notes which would suggest that the Respondent sought greater insight into the allegations found proved against him nor was there any indication that the Respondent and Dr Nathan were working towards a change in the Respondent to address the concerns reflected in the complaints and the Tribunal's findings and, finally, there is nothing in the notes to suggest that the Respondent discussed with Dr Nathan the impact on other people arising from the complaints about his conduct.

1. The Respondent provided a statement to the Tribunal and was cross-examined. In his statement he said:

"5. I maintain my position with respect to the allegations and I have accepted the outcome.

6. I am genuinely sorry Person A, Person B and Person C had to give evidence at the Tribunal hearing as that would have very distressing from (sic) them.

7. I offended them with my behaviour and I understand the need to reflect and improve."

1. A little later in his statement, the Respondent said at paragraph 10(d):

"Whilst I have not changed my evidence about past events, I accept my admitted behaviour with Persons A, B and C, caused them distress and was unacceptable and I am now very conscious of my behaviour and the impact on others. ...."

1. When asked about his "admitted behaviour", the Respondent said that this related to his comments in which he told a nurse she was "beautiful" and on another occasion commented on the colour of a nurse's hair. In the Stage 1 Proceedings, the Respondent said when he told the nurse she was beautiful, it was a "mistake" and said he realised that it was not acceptable. He believed when he said it, it would be taken as a compliment.
2. The Respondent was asked in the Stage 2 proceedings how he imagined his proven conduct might have affected the complainants. He said "bad", when asked to elaborate, he said "very bad". He was unable to say more about how the complainants may have felt as a result of his conduct.
3. While the Respondent might well understand that the process of giving evidence would have been distressing for the complainants, he was unable to consider how his conduct made them feel.

1. Both in his Statement and in his evidence, the Respondent spoke about the personal and financial difficulties he has experienced because of the Tribunal's determination. He has given up his partnerships in various practices, in part at least because his previous partners did not want him to continue working with them. While he said he had not worked as a general practitioner since February 2025, it seems that at least up until May 2025 he had been working in a general practice one day each week.
2. The Respondent said that he wished to sit for the Royal Australian College of General Practitioner's (RACGP) Fellowship exams. He had a failed attempt at an earlier time. He said that a practitioner is allowed three attempts to pass the exam.
3. In his statement, the Respondent said that he planned to sit the fellowship exams on 4 July 2025 and needed to pass the exam by July 2027, later said to be December 2026. He said that if his registration was suspended or cancelled, he would be unable to sit those exams with the result that he could not work as a general practitioner and would have to go back to working in a hospital as a CMO.
4. Correspondence from the RACGP was tendered to support the Respondent's contention that he must complete the examination process by December 2026. The email from the RACGP dated 12 May 2025 noted that the Respondent had "recently" enrolled for the Applied Knowledge Test in the second half of 2025. The letter advised that he was not eligible to sit the Fellowship examination because, a pre-requisite to eligibility, the General Practice Experience Pathway will expire on 1 June 2025 and thus not be in force at the time he wished to sit the examination in the second half of 2025. The letter continued and noted that his "candidacy end date would be adjusted to 31 December 2026" noting that this end date would ensure that he had two semesters remaining in which to complete the necessary Fellowship examinations.
5. The text of the letters seems to indicate that the Respondent's capacity to sit the examinations comes to an end in December 2026. However, it seems to us that he has been in a position to sit those examinations for some time and quite why, on the threshold of the Stage 2 hearing, he sought to enrol for the examination was not made clear. We will return to this issue later in these reasons.

1. The Respondent tendered a number of letters from colleagues who had worked with the Respondent in general practice, some of whom were women. He was described as behaving in a "professional yet caring manner" and was a person with whom staff got along well. Ms Morris, the Practice Manager at a medical centre where the Respondent worked up until 2018 said that she had not seen him being "over-friendly" or invading the personal space of other staff members. She regarded him as being respectful, friendly and polite. Counsel for the Respondent submitted that the Tribunal could find that the Respondent was a person of good character and that the conduct the subject of the complaints was out of character.
2. The conduct comprising the complaints was neither isolated nor of short duration. The particulars of complaint relating to Person A occurred between April and July 2022. Her evidence was that the Respondent's conduct towards her escalated over time to the point where he pulled down her mask and touched her lips with his thumb and on another occasion pulled her by the waist into a darkened, empty patient room. The particulars in relation to Person B covered a period of 4 months in 2021 and included the Respondent touching her by poking her with a pen, massaging her shoulders and commenting on her appearance. The particulars relating to Person C referred to the Respondent's conduct between 2018 and 2019 and included him making remarks about the size of her bottom and slapping her on the bottom.
3. While one complainant, Person B said that she observed the Respondent to be jocular and jovial with other staff, she did not observe him making personal comments to those staff members. She said the Respondent's complained of conduct occurred only when there were only two nurses on night shift.
4. The overwhelming evidence of the complainants was that the Respondent's conduct made them uncomfortable, upset and afraid. They did not describe it as being jovial.
5. While those who wrote the references for the Respondent may well have formed a positive view of him and saw nothing untoward in his reactions with staff or colleagues, those working on the night shift with him at the hospital saw an entirely different, unsettling side of the Respondent. It is not possible to describe his conduct as an aberration or "out of character", it was a different somewhat unpleasant side of his character.

1. There is no better starting point for a discussion about what consequences should flow from our finding the complaints proven than the objects and principles contained within the National Law. First, s 3 of the National Law says that the scheme of national registration and accreditation of medical practitioners is 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. Section 3B provides that the protection of the health and safety of the public must be the paramount consideration in exercising the functions under a NSW provision.
2. It is well established that the protection to which the sections speak is not limited to past or potential patients but includes protecting the public from similar misconduct as well as upholding public confidence in the high standards of the medical profession.
3. Meagher JA described the exercise of disciplinary powers in Health Care Complaints Commission v Do [2014] NSWCA 307 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."

1. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 (Prakash) at [91] Santow JA said that orders not only protect and maintain high standards but:

"There is also 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."

1. We adopt what was said in Prakash that the work of the orders following a finding that a complaint has been made out is to be, "...protective of the interest of the public at large, .... However, the public interests include, indirectly the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners."
2. In Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] Basten JA said:

"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: 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: 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 (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." (citations omitted)

1. Proportionality between the protective orders and the consequences for the practitioner is a matter to be taken into account. In Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88] the Tribunal said quoting NSW Bar Association v Meakes [2006] NSWCA 340 at [113]:

"...[N]o order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purposes of the legislation."

1. There can be no denying the gravity of the Respondent's conduct in sexually harassing his female colleagues. The conduct occurred over a period of years and involved three female colleagues. It occurred during night shifts and when there were few people around and only two nurses rostered on. The Respondent's conduct escalated from inappropriate comments on the complainants' appearance to touching and, in relation to Person A, laying hands on her and pulling her into an empty darkened room and touching her lips. There was nothing jovial about his comments nor could the complaints reflect a misinterpretation of his meaning. The complained of conduct was situational, that is the Respondent took advantage of the relatively isolated circumstances of night shift in a hospital ward. His conduct was deliberate.
2. Each complainant, in her own way, was unsettled and upset by his conduct. Person A wanted to resign her position and underwent psychological counselling as a consequence of the Respondent's conduct.
3. We accept the characterisation of the Respondent's conduct submitted by the Applicant's counsel, namely that the Respondent "disregarded the dignity and well-being of his female professional colleagues".
4. The Respondent's conduct was an abuse of power
5. While the Respondent's statement to the Tribunal on the Stage 2 proceedings refers to the distressing effect on the complainants of having to give evidence, his own evidence sought to discredit each by attributing motives to lie and fabricate the complaints against him. Any expressions of empathy for the complainants has to be tempered by the Respondent's attempts to discredit them as liars.

1. It was submitted for the Commission that the Respondent has no insight into the nature and consequences of his conduct in relation to these complaints or, indeed in general. In those circumstances, it was submitted that the Tribunal could not be confident that the Respondent would not conduct himself in the same way in the future if he was permitted to practise.
2. Counsel for the Respondent submitted that notwithstanding the Respondent's continuing denial of the complaints, he has a level of insight into the effect on the complainants of his conduct.
3. Any insight the Respondent has acquired is difficult to identify. He was unable to articulate how his conduct affected the complainants other than to say "bad" even against their clear evidence of how his conduct made them feel. The overwhelming effect of his evidence is that he wanted to make sure he did not run into problems with his behaviour in the future because of the impact of these complaints on his personal and professional life rather than the distress he caused to the complainants.
4. True it is that the Respondent has enrolled in a course for the purposes of understanding the nature of sexual harassment in the workplace and, perhaps, the nature and consequences of his own conduct as found by the Tribunal. In the context of the evidence thus far, it is difficult to predict whether the Respondent will develop insight into his conduct. Although he has been seeing a psychologist regularly for assistance in dealing with his distress at the allegations, there is nothing in Dr Nathan's notes which suggest that the Respondent has discussed behaviour changes he might need to make to change his conduct.
5. As counsel for the Respondent submitted, there may be a number of reasons why the Respondent maintained his denial of the conduct and his contention that the complainants fabricated their evidence in the face of the Tribunal's findings. However, for whatever reason, the Respondent denied the complaints. His evidence shows little if any understanding of the nature and effect of his conduct.
6. That a practitioner continues to deny conduct which has been found proven does not, of itself, dictate that his registration must be cancelled. The authorities on the issue to which both counsel referred, Ng v Health Care Complaints Commission [2018] NSWCATOD 105 and Morsingh v Medical Council of New South Wales [2024] NSWCATOD 199, while concerning applications for reinstatement, nonetheless have application here and demonstrate that the question of denial and insight and the protective function of the National Law is a nuanced one. Those cases demonstrate that a Tribunal can be satisfied that the health and safety of the public is not at risk if a practitioner is permitted to continue to practise notwithstanding continuing to deny the found conduct.
7. Whether the Respondent's maintenance of his denials reflect a firm belief that his conduct was not inappropriate or whether he continues to deny his conduct for other reasons could only be a matter of speculation. What is clear is that the impact of the Tribunal's findings has had a major financial and professional impact on him and it is a situation which he wishes to avoid occurring in the future. While hardly an adequate source of comfort for a Tribunal attempting to determine whether a practitioner is a risk to the health and safety of the public, it is a matter to be considered.
8. As we have said, whether the Respondent obtains any benefit from the program he is about to undertake is difficult to determine. It was suggested in submissions that the Respondent may obtain a benefit from seeking psychiatric assistance in understanding his conduct and in setting boundaries. That may well be the case.
9. Finally, while the character references provided for the Respondent have little persuasive weight to support the finding that the Respondent's conduct was aberrant, they demonstrate that he is capable of conducting himself appropriately in certain circumstances.
10. All of these matters provide some evidence that were the Respondent permitted to continue to practise, he may not present a risk to the health and safety of the public.

1. The Commission argues that the appropriate order to be made is cancellation of the Respondent's registration for a period of 12 months. To cancel the Respondent's registration would operate not only to ensure that the Respondent understands the gravity of his conduct and that it is inimical to proper professional conduct but also to denounce the conduct and reassure both the public and other professionals that sexual harassment of colleagues is not to be tolerated within the medical profession.
2. For the Respondent it was submitted that the objectives of protection of the public health and safety could be met by permitting the Respondent to continue to practise but with conditions which would require his attendance with a psychiatrist and completion of the course provided by Morrison Consulting and Advisory.
3. It was further submitted for the Respondent that an order either for suspension or cancellation of his registration would have the effect of being a disproportionate penalty because it would mean he would be unable to sit for the Fellowship exams for the RACGP. As we have said, correspondence from the RACGP seems to indicate that he has until December 2026 to sit the exam. It would be difficult for the Respondent if he could not sit the exam, however that, of itself would not in this case militate against an order for cancellation or suspension if otherwise warranted.
4. The Tribunal considers that nothing short of cancellation of the Respondent's registration will serve the purposes and principles to which we have referred. To cancel rather than suspend provides the further assurance that the Respondent must make good his assertions of wishing to reform himself and provide evidence of steps he has taken to achieve that. We will order that the Respondent not seek re-registration for a period of 12 months from the date of these orders.

1. As is usual, and agreed here, we will order the Respondent to pay the Commission's costs of the proceedings.

(1) Pursuant to s 149C of the Health Practitioner Regulation National Law (NSW), the Respondent's registration is cancelled, and he may not apply for re-registration within 12 months of the date of these orders.

(2) The Respondent is to pay the Health Care Complaints Commission's costs of the proceedings.

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.