Health Care Complaints Commission v Morsingh

Protective Orders - legislation and principles

1. The Tribunal's powers upon finding 'the subject-matter of a complaint against the practitioner' to have been proved are set out in Part 8, Division 3, Subdivision 6 of the National Law. They include the power to reprimand or caution and the power to impose conditions on the practitioner's registration.
2. The National Law, in s 149C(1) provides as follows: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession.
3. The National Law, in s 149(5), provides as follows: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note - Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
4. In considering the making of protective orders in this matter, we bear in mind the objectives and guiding principles set out in the National Law at s 3 and s 3A.
5. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]-[35], Meagher JA said: 34. The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include to "provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered" and to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3. 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.
6. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said at [18]-[22]: 18 The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. 19 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] 20 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). 21 Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. 22 The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided.

Material relied upon by the parties

1. The HCCC did not tender any further evidence in relation to the protective orders, and simply made submissions.
2. A folder of material was tendered in Dr Morsingh's case. It contained, by way of evidence:

• A report of Dr Girgis, a general practitioner and Dr Morsingh's supervisor, dated 9 March 2021 ('first report'), and a further report dated 3 August 2021 ('second report'),
• A report of Mr Gooniah, a psychologist, dated 10 March 2021,
• Seven references from patients of Dr Morsingh,
• A character reference from each of a consultant cardiologist, a pharmacist and a general practitioner from the same practice as Dr Morsingh,
• Two letters from the practice manager of the practice in which Dr Morsingh works,
• A Compliance History current as at 9 March 2021,
• Evidence of Dr Morsingh's participation in continuing professional development.

1. The respondent also made submissions and produced a 'comparative case summary schedule'.
2. Both Dr Girgis and Mr Gooniah gave evidence before us.
3. Mr Gooniah, in his report, said that he assessed Dr Morsingh on 10 October 2018 and consulted with him in March, May and June of 2020 and February of 2021, in addition to having telephone conversations with him throughout that time. In cross-examination, Mr Gooniah said that he had also seen Dr Morsingh in 2019.
4. Mr Gooniah's assessment of Dr Morsingh involved the completion of the Personality Assessment Inventory and the Depression Anxiety Stress Scale 21. In cross examination, it emerged that this occurred in February 2021.
5. Mr Gooniah concluded that Dr Morsingh meets the criteria for an Adjustment Disorder. In cross-examination, Mr Gooniah said that he had formed the view that Dr Morsingh had an Adjustment Disorder on 10 October 2018, and this remains the case. Mr Gooniah set out in his report, in some detail, the personal and family circumstances which affected Dr Morsingh prior to the 10 October 2018.
6. In his report, Mr Gooniah said that Dr Morsingh's results on the Depression Anxiety Stress Scale 21 were normal for depression, anxiety and stress.
7. In relation to the Personality Assessment Inventory, Mr Gooniah said, in his report, that the PAI Interpretative Report included the following: The PAI clinical profile reveals no elevations that should be considered to indicate the presence of clinical psychopathology, although Dr Morsingh indicates a certain amount of turmoil in important life areas. Some denial or defensiveness may be responsible for the generally trouble-free picture that he is reporting, as he seems to be reluctant to admit to personal dysfunction or problems across many areas. The PAI clinical profile is entirely within normal limits. There are no indications of significant psychopathology in the areas that are tapped by the individual clinical scales. … In considering the social environment of Dr Morsingh with respect to perceived stressors and the availability of social supports with which to deal with these stressors, his responses indicate that he is likely to be experiencing notable stress and turmoil in a number of major life areas.
8. Mr Gooniah took into account the test results with Dr Morsingh's self-report and arrived at his diagnosis.
9. In his report, Mr Gooniah provided a long description of an Adjustment Disorder, part of which said: States of subjective distress and emotional disturbance, usually interfering with social functioning and performance, arising in the period of adaption to a significant life change or stressful event….Individual predisposition or vulnerability plays an important role in the risk of occurrence and the shaping of the manifestations of adjustment disorders, but it is nevertheless assumed that the condition would not have arisen without the stressor. The manifestations vary and include depressed mood, anxiety or worry (or a mixture of these), a feeling of inability to cope, plan ahead or continue in the present situation, as well as some degree of disability in the performance of daily routine. Conduct disorders may be an associated feature, particularly in adolescents. The predominant feature may be a brief or prolonged depressive reaction, or a disturbance of other emotions and conduct.
10. Mr Gooniah conceded, in cross-examination, that he was not an objective expert witness. He used to work at the same practice as Dr Morsingh, being the practice at which Dr Morsingh's consultation with Patient A took place. Dr Morsingh refers patients to him. He treats Dr Morsingh and one of his family members.
11. Mr Gooniah conceded that he was not able to express an opinion about Dr Morsingh's mental condition on the day of his consultation with Patient A, except to say that, during that period of time, Dr Morsingh was suffering from an Adjustment Disorder.
12. In his report, Mr Gooniah said: 8.1 Based on the reading the documents listed in section 1.5, Dr Morsingh's self-report from his assessment and sessions to date, and a review of the results from the DASS21 and PAI, it is clear that Dr Morsingh is suffering from an Adjustment Disorder as described in section 7. 8.2 Dr Morsingh has had acute stress reactions where his anxiety and/or his depressive symptoms have been exacerbated however he has managed to ask for help, and remain compliant with his self-care and other coping strategies. 8.3 Of concern is what is in the best interests of his [ie Dr Morsingh's] children….Dr Morsingh has been able to sustain his employment as a GP under the existing conditions of treating only male patients and female patients aged 11 years old and under. … 8.4 I am of the opinion that if Dr Morsingh is unable to practise as a GP this will decrease his capacity primarily financially to care for his children and mother. I am of the opinion that it will see a significant change in their lives which I believe will have a detrimental impact on all of them, …
13. It is clear to us that Mr Gooniah's evidence was coloured by his long association with Dr Morsingh, and that he has, in his report, taken on the role of an advocate rather than an objective expert witness. Some of his evidence was directed towards persuading the Tribunal to make protective orders which serve the interests of Dr Morsingh and his family. Mr Gooniah did not consider the interests of members of the public, as patients or potential patients, the interests of Patient A or the need to identify and maintain standards of conduct for the medical profession in New South Wales.
14. Mr Gooniah's evidence is of little assistance to us because he has not been in a position to conduct himself, in this matter, as an objective expert witness.
15. Mr Gooniah was unable to say whether Dr Morsingh's Adjustment Disorder contributed to his conduct on 29 November 2018, because he was unable to say what Dr Morsingh's mental condition was on that day. Mr Gooniah did make it clear, however, that, in his opinion, Dr Morsingh continues to suffer from an Adjustment Disorder.
16. Dr Girgis is a general practitioner who practises with Dr Morsingh. He provided his reports in his capacity as Dr Morsingh's supervisor, a role he has had since 4 April 2019. He met with Dr Morsingh monthly from 4 April 2019 until 23 July 2020, at which time the meetings became fortnightly meetings.
17. Dr Girgis, in his first report, demonstrated his own understanding of doctor/patient boundaries, including sexual boundaries. Dr Girgis said that Dr Morsingh's understanding of doctor/patient boundaries had improved over the time that they had been meeting.
18. Dr Girigis said that he had discussed with Dr Morsingh the obtaining of a patient's consent to any touching. They also discussed avoiding or ceasing a physical examination when the patient is uncomfortable.
19. Dr Girgis said that Dr Morsingh's understanding of clinical examination and patient management improved during the period of supervision. Dr Girgis had discussed with Dr Morsingh the need to be gentle and not cause a patient any undue pain or unnecessary discomfort. Dr Girgis explained in detail to Dr Morsingh the need to communicate constantly with a patient throughout an examination.
20. In his second report, Dr Girgis said that he continues to meet with Dr Morsingh on an on-going basis for about an hour on each occasion. Dr Girgis said that Dr Morsingh continues to progress satisfactorily in relation to the following topics: …medical record reviews, workload clinical outcomes, professional behaviour, patient boundaries, management of anxiety, clinical examination and patient management, communication skills, prescribing and the use of alternative therapies, management of chronic non-cancer pain, reflection on CPD and professional training, overall patient care and management, appropriate prescribing practices and other matters.
21. In cross-examination, Dr Girgis agreed that he had been a colleague of Dr Morsingh for 8 years, and that, for some of that time, Dr Morsingh was the Medical Director of the practice and therefore Dr Girgis' manager.
22. In cross-examination, Dr Girgis agreed that he had previously given a character reference for Dr Morsingh in which he expressed surprise that 'a complaint of this type' had been made against Dr Morsingh, by which, he explained, he meant a complaint of sexual harassment.
23. In cross-examination, the following exchange took place (transcript p 15): Q You see there that you say Dr Morsingh's understanding of professional behaviour improved since I first commenced supervising him? A Yes. Q Are you able to explain please for the Tribunal what you mean by improved? A He's got the insight now that when he sees a patient he wouldn't talk about himself and he wouldn't bring any family issues to the consultation, and the consultation would be centred around the patient and his or her problems in general, and - Q Right - sorry, go on? A And use any patient for any sexual relationship, or sexual exploitation. Q Right. You say that that's an insight that he has now, do you say that that, in your impression, is an insight that he did not have when you started supervising him? A I think he wasn't applying that properly perhaps before, but now he's more aware of the boundaries, of the professional conduct.
24. Dr Girgis said that he had received the same impression of Dr Morsingh's improvement in relation to professional boundaries as he had in relation to sexual exploitation of patients. In making both of these assessments, Dr Girgis relied on there having been no complaints to him in relation to Dr Morsingh concerning those issues.
25. Dr Morsingh did not, in his interactions with either Mr Gooniah or Dr Girgis, admit that he had touched Patient A's breasts, admit that he told her that he loved pressing a point on the top of the breast on a woman because "they always hold a lot of tension here" or admit that his behaviour towards her had any sexual connotation.
26. We have read all of the patient references and professional references provided, and we take them into account. They show that seven patients were pleased with their interactions with and treatment by Dr Morsingh, and that a general practitioner, a cardiologist and a pharmacist who have professional dealings with him view him positively.

Consideration

1. In considering what protective orders to make, we bear in mind that the protection of the health and safety of the public is our paramount consideration (National Law, s 3A).
2. Protective orders in professional disciplinary proceedings are protective, not punitive (see Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [73]).
3. Dr Morsingh is guilty of professional misconduct. It is necessary for us to consider whether the conduct which constitutes that misconduct is 'sufficiently serious to justify suspension or cancellation' of Dr Morsingh's registration as a medical practitioner (see Chen, quoted above at [15]).
4. Counsel for Dr Morsingh argued that in order to suspend or cancel Dr Morsingh's registration as a medical practitioner, it was necessary for us to find that he was not fit to practise medicine. We reject that submission. It is not an accurate statement of the law (see Chen at [15]).
5. In Morsingh Stage 1 at [128] we set out extracts from the Medical Board of Australia's document entitled 'Guidelines: Sexual Boundaries in the Doctor-Patient Relationship' and dated 12 December 2018. The Guidelines replaced similar Guidelines, which were published in 2011, and codify what ought to be the well-known requirements of doctors in relation to sexual boundaries, which are neatly summarised in the Guidelines in the following way: Doctors are expected to act in their patients' best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons …
6. The Guidelines state propositions which should be obvious to a general practitioner with 24 years of experience, such as Dr Morsingh, which is that there is a power imbalance between a doctor and a patient, in the doctor's favour, and that patients place trust in their doctors and are entitled to expect that an examination will only be undertaken in their best interests and never for an ulterior, sexual motive.
7. The trust of patients in their doctors contributes to the health of the community, in that a patient with trust is more likely to seek medical advice and assistance in the event of illness.
8. Patient A's consultation with Dr Morsingh on 29 November 2018 was not used by Dr Morsingh, as it should have been, to meet and address her health needs and concerns. Instead, Dr Morsingh leapt to a diagnosis of trigeminal neuralgia. He has subsequently conceded that this was a wrong diagnosis. Patient A did not have trigeminal neuralgia. Despite communicating the diagnosis to Patient A, Dr Morsingh took few of the steps which would be expected following such a diagnosis. He did not write a referral to a neurologist. He did not undertake a targeted examination. He did not prescribe any medication, or schedule a follow-up appointment. He simply handed Patient A an information leaflet.
9. Rather than address and meet Patient A's health needs and concerns, Dr Morsingh conducted a physical examination which did not substantially relate to Patient A's symptoms. He did this without Patient A's consent and without rational explanation.
10. In the course of the physical examination, Dr Morsingh pressed the outside of Patient A's breasts with his fingers, under her t-shirt. Patient A described this pressing as 'very painful'. She told him to stop, saying "no, no, stop". He did stop, briefly, but then resumed touching her, despite the fact that she was crying to an extent that Dr Morsingh himself described to us in evidence as "a wealth of tears". He again pressed the outside and the top of her breasts, causing her to recoil in pain (see Morsingh Stage 1 at [9]).
11. Following the 'examination', Dr Morsingh gave Patient A a bottle of doTerra essential oil and texted her a link to a website through which she could buy essential oils in a manner which would earn Dr Morsingh's wife/ex-wife a commission. Dr Morsingh did not disclose his financial interest in the doTerra essential oils. He gave her no information about the lack of evidence of any therapeutic effectiveness of the product. Dr Morsingh partially disrobed and showed Patient A his tattoo, despite her saying that she did not want to see it. He spoke about himself and his family problems. He hugged Patient A and made personal remarks about her appearance.
12. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638, the Court of Appeal (Gleeson CJ, Meagher and Handley JJA) said: Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe.
13. Instead of meeting Patient A's medical needs and concerns in the consultation on 29 November 2018, Dr Morsingh used the consultation to indulge his own social and sexual inclinations, and even tried to interest Patient A in buying essential oils, in circumstances where his wife/ex-wife would profit.
14. These factors, alone, make Dr Morsingh's actions sufficiently serious to justify suspension or cancellation of his registration as a medical practitioner.
15. Dr Morsingh has persistently denied that he pressed Patient A's breasts in the course of the 'examination' and that he hugged her at the end of the consultation. His account of his touching of Patient A during the consultation, and his stated rationale for his 'examination', has changed several times in the course of the investigation of the complaint and the processes under the National Law. He has denied that he made the comments alleged in Complaint 1 particulars 2(b) and 5.
16. Instead of admitting his conduct, and addressing the reasons for it, Dr Morsingh has sought to escape culpability by discrediting Patient A.
17. In giving evidence before us in Stage 1 of these proceedings, Dr Morsingh sought implicitly to discredit Patient A by referring to her 'alternative lifestyle' and by saying that "she discussed about smoking of cannabis", despite the fact that there was no entry in his notes about the smoking of cannabis (see transcript p 41).
18. In the conduct of his case in Stage 2 of these proceedings, Dr Morsingh did not allege that Patient A had been untruthful about her account of the consultation, but, instead, put forward a case which suggested that Patient A experienced a psychiatric event during the consultation with him. Dr Nielssen, a psychiatrist, was called in Dr Morsingh's case, presumably on Dr Morsingh's instructions. In summary, Dr Nielssen discussed the theoretical possibility that a person in high distress might form an inaccurate memory on account of a misinterpretation of an event which was occurring. Alternatively, Dr Nielssen theorised, Patient A may have had a flashback which caused her to conflate what was happening with Dr Morsingh with a sexual assault she had experienced previously. Such a flashback would be associated with a personality disorder or a psychiatric condition. Dr Nielssen agreed, in cross-examination, that he had never examined Patient A, that he was not present at her consultation with Dr Morsingh on 29 November 2018 and that he was therefore unable to say what had happened in the consultation. There is no evidence that Patient A suffers from any psychiatric condition or personality disorder. Dr Nielssen's evidence was purely theoretical information having no basis with respect to Patient A. In Morsingh Stage 1, we rejected the suggestion that either of his theories applied to Patient A (see Morsingh Stage 1, [56]-[63]). In cross-examination, Dr Nielssen agreed that the evidence before the Tribunal did not support either of his theories with respect to Patient A.
19. Choosing to conduct his case by attempting to deflect blame onto Patient A by alluding to her 'alternative lifestyle' and the smoking of cannabis, and by putting forward psychiatric evidence to imply that Patient A suffered from a psychiatric condition or personality disorder, adds to the seriousness of Dr Morsingh's conduct. It is wholly inconsistent with the care for a patient expected of a medical practitioner.
20. It was noted in Chen that a finding of professional misconduct may reveal a defect of character in the health practitioner on account of which the Tribunal may conclude that the practitioner should not be allowed to practise unless, in the future, the practitioner is able to satisfy the Tribunal that the defect has been overcome (see [15], above).
21. Dr Morsingh's professional misconduct suggests several defects of character. His pursuit of his own objectives and his disregard for Patient A's well-being indicate selfishness. His persistence in touching Patient A when she was crying, and after she had protested, indicates a lack of compassion. His continuous denial of the most serious allegations against him, and his changing account of the consultation with Patient A, indicate dishonesty.
22. In his submissions, counsel for the HCCC said, at paragraph 25: Dishonesty is a very serious matter for a medical practitioner (cf, eg, Lee [2012] NSWCA 80 at [67] (Barrett JA, Macfarlan JA and Tobias AJA agreeing). It is also incumbent on a practitioner to cooperate and to be as candid with regulatory authorities (cf, eg, Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323, 333-334 [43]-[45] (Basten JA, McColl JA and Harrison J agreeing). The Tribunal cannot be satisfied that a practitioner who has been persistently untruthful about matters that are centrally relevant to the complaints against him, and has persistently sought to undermine the victim's truthful account about those matters, is capable of acting with integrity and observing the high ethical standards that apply to the medical profession or that they are a suitable repository of public trust and confidence (cf, eg, Health Care Complaint Commission v Ahmad [2015] NSWCATOD 103 at [309]). There is also a greater need for specific and general deterrence in those circumstances.
23. We agree with those propositions.
24. Dr Morsingh has not admitted several of the allegations against him, including the sexual touching. He has, therefore, failed adequately to address his behaviour, identify the reasons for it and take remedial steps.
25. In saying this, we acknowledge the evidence of Mr Gooniah that Dr Morsingh has been suffering from an Adjustment Disorder since prior to the consultation in 2018. The implied link between Dr Morsingh's misconduct and his Adjustment Disorder was not clearly articulated. If there is a causal connection then that is a matter of on-going concern because Mr Gooniah said that the Adjustment Disorder is continuing. When a psychiatric disorder is relied upon for any reason in proceedings of this kind, we would expect to be provided with an expert report from a psychologist or psychiatrist which diagnoses the disorder, explains in detail how it related to the offending conduct, describes the process for addressing and remediating the psychological or psychiatric causes of the behaviour, and details what stage in that process the practitioner had reached. There was no such report in this matter.
26. Mr Gooniah's report and evidence does not disclose any interaction of his with Dr Morsingh which gives us any assurance that the underlying causes of Dr Morsingh's misconduct are being addressed. As we have said, Mr Gooniah's evidence was tinged with advocacy for Dr Morsingh, and was focussed on the welfare of Dr Morsingh and his family, rather than Patient A or Dr Morsingh's present and future patients, generally. If it is to be argued that a practitioner has overcome the causes of his or her misconduct, then clear proof of reform must be provided. The passage of time without misconduct is not sufficient (Lee v Health Care Complaints Commission [2012] NSWCA 80 at [72], referring to Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637).
27. We acknowledge and accept that Dr Girgis has been telling Dr Morsingh, in their fortnightly meetings, about professional and sexual boundaries, and the importance of being careful not to cause patients unnecessary pain. Dr Girgis said that he had noticed some improvement in Dr Morsingh's understanding of these and other issues. It is very surprising that a general practitioner of Dr Morsingh's years of practice should need instruction in these basic ethical considerations. We have no basis upon which we can be confident that Dr Girgis' efforts with Dr Morsingh are bringing about a change in his behaviour. Clearly, Dr Morsingh did not think that it was appropriate to touch Patient A's breasts without a clinical reason to do so on 29 November 2018. Dr Morsingh did not give evidence in this stage of the proceedings.
28. We place little weight upon the assertions of Dr Girgis and Mr Gooniah that they are unaware of any further complaints in relation to Dr Morsingh. Dr Morsingh is practising under supervision with restrictive conditions, in the knowledge that protective orders are being considered.
29. Counsel for Dr Morsingh put forward a list of cases for the purpose of comparing the protective orders in those cases with the present case. None was on all fours with the present case. In Lee, at [28]-[31], Barrett JA and Macfarlan JA said, (Tobias AJA agreeing): 28 The appropriateness of considering earlier cases of professional misconduct by medical practitioners and the "range" of orders made in those cases was referred to by Mason P (with whom Meagher JA and Stein JA agreed) in Gayed v Walton [1997] NSWCA 121. In that case, the Tribunal had ordered deregistration of a medical practitioner whose professional misconduct consisted of prescribing dangerous drugs in excessive quantities. Counsel for the practitioner submitted that the order for deregistration was outside an appropriate range when viewed in the light of a number of earlier decisions of the Tribunal. Counsel argued that the instant case was one where the upper limit of an appropriate range might be a fine or possible suspension; and that the Tribunal should have been prepared to impose an order less stringent than deregistration, particularly if coupled with a condition withdrawing the appellant's authority to prescribe dangerous drugs. 29 In line with the thinking to which I have referred, Mason P said: "While obviously in a matter such as this it is appropriate to look at the cases said to form the so called evidence of the range, there is always a difficulty in getting help from individual cases because of the problem of drawing comparisons between one case and the next. Each must be looked at according to its own facts. Some of the cases to which we were taken did not involve a finding of professional misconduct. Some did and it may be recognised that there was the appearance of what may have been a lighter order made than here. It may be that if there is any deficiency it is in the level of order made in some of those cases . . ." . . . 30 In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, Basten JA, with the concurrence of Giles JA and Bergin J, accepted (at [70]) that a legitimate consideration, in an appeal such as the present, "is whether the orders made reveal inconsistency of approach on the part of the Tribunal, when viewed against other decisions revealing similar kinds of misconduct". His Honour agreed (at [71]-[72]) that other cases might be of value as examples in indicating a range of appropriate orders but could not be seen as precedents. 31 There is also the point that the purpose of orders in cases of professional misconduct differs significantly from the purpose of sentencing in the criminal field. As was explained in Director-General, Department of Ageing, Disability and Home Care v Lambert (above) at [83], the overwhelming emphasis in the present type of case is on the protection of the public, with notions of punishment relevant only incidentally if and when material to the achievement of the protective purpose. While protection of the public plays a significant part in the sentencing of criminal offenders, considerations of punishment, individual deterrence and general deterrence have a very prominent role that is, generally speaking, subsidiary in the exercise of a protective jurisdiction.
30. We acknowledge that the complaints before us relate to a single consultation in the course of many years of practice by Dr Morsingh. However, the issues these complaints raise have not been addressed by Dr Morsingh in a constructive way. Our paramount consideration must be the protection of the health and safety of the public in the future.
31. No evidence is before us of Dr Morsingh having any insight into the actual impact upon Patient A of his actions. Evidence of his understanding of the potential for impact is confined to an exchange he had in evidence with Tribunal Member Dr Haikal-Mukhtar at p 102 of the transcript: Q My final question to you, just because you have had the time to reflect on this particular experience, what do you think that impact on that patient would have been? A It could make them mistrust doctors and GPs in the future. So it's not going to be good for their interactions with the medical profession going forwards. They had a bad experience in India, they had a bad experience with me, so it's not going to be a good thing for them. Q Why do you think it could affect their trust in the profession? A Because they've, they've been let down. Q In what way? A They put their trust in someone. They expected much better input and treatment and obviously they didn't get that. So it, it, it's a, it's a disappointment.
32. The actual impact on Patient A was accurately summarised in the submissions for counsel for the HCCC at paragraph 17 as follows: 17. It was apparent from Patient A's evidence, and her mother's, that the Respondent's conduct has at least an emotional impact on her. In her initial complaint, Patient A described being 'emotionally triggered' by the Respondent's conduct and 'extremely uncomfortable [and] vulnerable'. In her statement she described feeling 'disrespected, violated and upset' by the Respondent touching her breasts, and 'powerless and vulnerable'. Her mother described Patient A being 'visibly upset' and 'hugging herself in a self-protective manner' hours after consulting with the Respondent. Patient A's evidence in the witness box, while impressively stoic, included moments of emotion which made clear that recalling these events continued to be upsetting for her more than two years on.
33. Dr Morsingh has not apologised for his behaviour, much of which he has not acknowledged, and he has not expressed any remorse or contrition. The emphasis of his case is on the impact of these proceedings upon himself and his family, particularly with reference to his financial position. These factors are common to almost all disciplinary proceedings and we take them into account. They are subordinate to the paramount consideration, which is the protection of the health and safety of the public.
34. We have given close consideration to the question of whether Dr Morsingh could continue to practise under supervision with a condition requiring him not to consult with or treat females over the age of 11 years old except in an emergency. We do not consider that such a course would be sufficient to denounce misconduct of the kind which is the subject of this matter, either to Dr Morsingh or to the general body of medical practitioners.
35. In order to protect the public, denounce the crossing of professional and sexual boundaries and maintain public confidence in the medical profession, it is appropriate to cancel Dr Morsingh's registration as a medical practitioner under s 149C(1)(b) of the National Law.
36. There will be an order under s 149C(7) of the National Law that Dr Morsingh may not apply for re-registration as a medical practitioner for a period of two years. We consider that two years is likely to be the minimum period within which Dr Morsingh can adequately discover, explore and address the defects of character demonstrated by his misconduct and the reasons for that misconduct.
37. Given the sexual nature of the practitioner's misconduct, and the paucity of the attempt by the practitioner to address the underlying cause of his misconduct, it is appropriate that we make a prohibition order under s 149C(5) of the National Law, as requested by the HCCC.
38. The HCCC applied for costs. The HCCC has been wholly successful in these proceedings. No reason has been put forward as to why costs should not follow the event. There will be an order for costs.

Orders 1. Dr Morsingh's registration as a medical practitioner is cancelled pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW). 2. A non-review period of two years is imposed upon Dr Morsingh pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW). 3. Dr Morsingh is prohibited from providing any health service as defined in section 4 of the Health Care Complaints Act 1993 (NSW) until such time as he is a registered health practitioner pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW). 4. Dr Morsingh is to pay the costs of the Health Care Complaints Commission.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2022