Health Care Complaints Commission v Muthukrishna

Professional history

1. In 2011, Mr Muthukrishna completed a Master of Physiotherapy (Graduate Entry) at the University of Sydney. Shortly after becoming registered as a physiotherapist in January 2012, Mr Muthukrishna commenced working part-time as a physiotherapist at St George Hospital, Sydney. In September 2014, Mr Muthukrishna commenced as the director and principal physiotherapist of Improve Your Move Physiotherapy in Rockdale, Sydney (the Practice). Mr Muthukrishna remains the principal of that practice and says that he has not worked as a physiotherapist since his registration was suspended.

Complaint 1: professional boundaries complaint

1. In April 2016, Patient A was referred to Mr Muthukrishna by her GP for treatment of back and neck injuries sustained in a motor vehicle accident. Between 14 April 2016 and 7 December 2016, Patient A attended the Practice on 34 occasions for treatment by Mr Muthukrishna.
2. Mr Muthukrishna claimed that at a consultation on 15 November 2016, Patient A caressed his arm. At Mr Muthukrishna's suggestion, they later met at a local café. A personal relationship developed. On two occasions between 16 November 2016 and 5 December 2016, Mr Muthukrishna and Patient A had sexual intercourse, once in a car and once in Mr Muthukrishna's home.
3. Mr Muthukrishna did not treat Patient A between 16 November 2016 and 7 December 2016, on his account because he understood that to do so would be in breach of his professional obligations not to treat a person with whom he was having a sexual relationship. The last consultation with Patient A took place on 7 December 2016. Mr Muthukrishna claims that shortly before that consultation, he ended the personal relationship with Patient A. Mr Muthukrishna said that he nonetheless decided to proceed with the consultation on 7 December 2016 to ensure Patient A received continuity of care by referring her to other practitioners and by providing instruction to Patient A about an ongoing exercise regime. In these proceedings, Mr Muthukrishna claimed that at all times he knew that the personal relationship with Patient A was both inappropriate and in breach of the Code of Conduct.
4. In June 2021, Patient A disclosed the affair with Mr Muthukrishna to her husband. When confronted by Patient A's husband at the Practice, Mr Muthukrishna admitted to that relationship. In complaints lodged with the Australian Health Practitioner Regulation Agency (AHPRA) and the Commission, the husband stated that Mr Muthukrishna took advantage of his wife who was vulnerable and suffering the "emotional toll" of the accident.

Code of Conduct for physiotherapists

1. In March 2014, the Physiotherapy Board of Australia issued a Code of Conduct under s 39 of the National Law (the Code of Conduct).
2. Contained in cl 8 (professional behaviour) of the Code of Conduct, cl 8.2 states: "8.2 Professional boundaries Professional boundaries allow a practitioner and a patient/client to engage safely and effectively in a therapeutic relationship. Professional boundaries refer to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner's own personal views, feelings and relationships which are not relevant to the therapeutic relationship. Professional boundaries are integral to a good practitioner-patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice involves: a) maintaining professional boundaries b) never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner's care; … … Practitioners need to be aware of and comply with any guidelines of their National Board in relation to professional boundaries."
3. Clause 3.13 of the Code of Conduct states: "3.13 Ending a professional relationship. In some circumstances, the relationship between a practitioner and a patient or client may become ineffective or compromised and may need to end. Good practice involves ensuring that the patient or client is informed adequately of the decision and facilitating arrangements for the continuing care of the patient or client, including passing on relevant clinical information."

Conclusion

1. The meaning of the words "improper" and "unethical" for the purpose of s 139B(1)(l) of the National Law was considered in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 (Kesserwani) at [21]-[27] and Health Care Complaints Commission v Liu [2016] NSWCATOD 133 (Liu) at [51]-[55]. We apply the meaning of the words "improper" and "unethical" adopted by the tribunals in Kesserwani and Liu.
2. Engaging in a sexual relationship with Patient A was conduct of an improper and unethical nature. By that conduct, Mr Muthukrishna contravened the Code of Conduct. Mr Muthukrishna knew or ought to have known that Patient A was a vulnerable person on account of the physical and psychological effects of her injury. That, as Mr Muthukrishna claimed, Patient A may have initiated the social contact does not detract from its impropriety. The obligation to maintain professional boundaries lay with Mr Muthukrishna, not Patient A.
3. In addition, Mr Muthukrishna's actions in continuing to treat Patient A after their personal relationship had commenced, albeit on one occasion, demonstrated poor judgment. It constituted conduct of an improper and unethical nature. As Mr Muthukrishna conceded in these proceedings, to refer Patient A to another practitioner or to give her information about ongoing exercises, it was not necessary that Patient A attend a consultation with him.
4. We find that the conduct particularised in Complaint 1 amounts to both unethical and improper conduct within the meaning of s 139B(1)(l) of the National Law.

Complaint 2

1. In a letter dated 31 August 2021, the Commission informed Mr Muthukrishna that it had received a complaint from Patient A's husband. In that letter, the Commission requested Mr Muthukrishna to provide a written response to that complaint together with a copy of Patient A's records by 21 September 2021.
2. On 20 and 21 September 2021, Mr Muthukrishna entered into Cliniko, an electronic data base used by the Practice to maintain patient records, the treatment notes of his 34 consultations with Patient A throughout the period, 14 April 2016 to 7 December 2016. In these proceedings, Mr Muthukrishna claimed that the electronic records duplicated handwritten contemporaneous notes of those consultations. After entering Patient A's clinical notes into Cliniko, Mr Muthukrishna destroyed his handwritten records.
3. At s 150 (of the National Law) proceedings held on 22 December 2012, the Council questioned Mr Muthukrishna about the electronic records he had produced to the Commission. When asked about the entry, "created 21 September 2021" contained in those records, Mr Muthukrishna said that around the time of the consultations he "entered notes into Cliniko" and in September 2021, "transferred" and "copied and pasted" the original notes into a "newer template", to make them "easier to follow".
4. Later in the proceedings, when asked by the Council to provide "the original notes [in] whatever format", Mr Muthukrishna said that he "would try and I'll look up the system of how to do that".
5. In a letter dated 1 March 2022, the Commission invited Mr Muthukrishna to respond to the allegation that the electronic records he provided to the Commission were not made contemporaneously. In a letter in response dated 22 March 2022, Mr Muthukrishna: 1. admitted that he entered Patient A's clinical notes into Cliniko on 21 September 2021; 2. claimed that he was aware that those records would reveal the date they were entered into Cliniko; 3. claimed that the reason he entered Patient A's clinical notes into Cliniko and destroyed his handwritten notes of his consultations with Patient A was because of the lack of available space at the Practice; 4. acknowledged that when questioned by the Council on 22 December 2021 about the Cliniko records he "was unable to adequately and succinctly explain the correct reasons". He said that he had not anticipated that "digitising clinical records" would be an issue raised in those proceedings. In addition, Mr Muthukrishna claimed that three months had passed since he entered the records into Cliniko and "my ability to recollect my actions at the time of questioning was not up to par". He said he was experiencing high levels of stress and anxiety during the s 150 proceedings; 5. said, by the statement made to the Council on 22 December 2021 that "clinical notes were originally typed into Cliniko at the time of the consultations", he meant, "I typed into Cliniko the treatment notes for the paper file and linked them to each corresponding consultation time"; 6. said that by the explanation given to the Council on 22 December 2021 for entering Patient A's notes into Cliniko - "for ease of viewing and to help submissions, the notes were copied and pasted into a new format and that is why the dates did not match up" - he was "referring to the process of digitising the paper files into Cliniko".
6. In a letter dated 23 May 2022, the Commission invited Mr Muthukrishna to respond to the contention that he had provided conflicting evidence about the reason he entered Patient A's records into Cliniko in 2021. In a letter in response dated 23 June 2022, Mr Muthukrishna denied that he provided false or misleading information to the Commission or the Council about the Cliniko records. However, Mr Muthukrishna conceded that the statement he made about copying and pasting Patient A's electronic records into a "newer template" was incorrect because in September 2021, none of Patient A's clinical records had been entered into Cliniko. In addition, he said when he agreed to provide the Council with the original handwritten treatment notes he knew he had destroyed those records but was "confused". He gave the reason for destroying the original records as "risk of clinic flooding".
7. In evidence given in these proceedings, Mr Muthukrishna initially appeared to retract the admission contained in the Agreed Facts that he knowingly misled the Council about when he first entered Patient A's notes into Cliniko. He later acknowledged, as stated in par 35(c) of the Agreed Facts, that when he told the Council that he entered Patient A's records into Cliniko at the time of the consultations, he knew that statement was untrue.

Consideration

1. Mr Muthukrishna made untruthful and misleading statements to the Council about when he entered Patient A's clinical records into Cliniko and about being able to produce the original handwritten notes. In his subsequent correspondence with the Commission, he persevered with the fiction that the reason he entered Patient A's records into Cliniko in September 2021 was space restrictions and the risk of the records being damaged. The inescapable conclusion is that he made a deliberate decision to deceive the Council. For reasons unclear, Mr Muthukrishna apparently believed that the Council might take a more favourable view of his records if he provided the Council with an electronic rather than a handwritten version.
2. Mr Muthukrishna's conduct in giving the Council information he knew was false was both unethical and improper. As has repeatedly been observed by NCAT, the smooth operation of the system regulating health practitioners in Australia requires practitioners to be truthful and candid in their dealings with the regulatory authorities. The health and safety of the public demands that health practitioners fully cooperate with those charged with responsibility for overseeing and regulating the health sector: see, for example, HCCC v Chowdhury [2015] NSWCATOD 65 at [81]; Health Care Complaints Commission v Attia [2016] NSWCATOD 167 at [133].
3. As a result of destroying the original handwritten records of the consultations with Patient A, it is not possible to determine whether, as claimed by Mr Muthukrishna, the electronic records he produced to the Council duplicate the original handwritten records of those consultations. Indeed, there is no evidence to support Mr Muthukrishna's claim that he made handwritten records of those consultations. When the Practice was audited in July 2022, Council auditors found few patient records and concluded that the standard of recordkeeping was "not at a standard expected of a physiotherapist". In s 150 proceedings on 3 August 2022, Mr Muthukrishna said that he made clinical notes of only five per cent of consultations and relied upon his memory when treating patients. As the issue was not raised in the Complaint, it is not necessary to make any findings about the accuracy of Patient A's Cliniko records. However, the absence of any contemporaneous records highlights the difficulty of assessing claims made by Mr Muthukrishna about what occurred during those consultations.
4. We find that the conduct particularised in Complaint 2 amounts to both unethical and improper conduct within the meaning of s 139(1)(l) of the National Law.

Complaint 3

1. Mr Muthukrishna concedes that the unsatisfactory professional conduct particularised in the Complaint amounts to "professional misconduct", that is, conduct of a "sufficiently serious nature" to justify an order for suspension or cancellation.
2. That concession in our view was properly made. On the spectrum of unsatisfactory professional conduct, the admitted conduct, while serious, was not of the most serious nature. Nonetheless, in aggregate, the conduct particularised by Complaint 1 and Complaint 2 is of a "sufficiently serious nature" to justify an order for suspension or cancellation.
3. Complaint 3 is established.

What, if any, disciplinary powers should be exercised?

1. Where a complaint made under the National Law is admitted or proven, the Tribunal may exercise any of the powers in Div 3, Subdiv 6 of Pt 8 of the National Law. They include the powers to caution, reprimand and to impose conditions on a practitioner's registration. Where, as here, a practitioner is found guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration: National Law, s 149C(1). In exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: National Law, s 3B.
2. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that: "… The adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order. …"
3. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA observed at [20] that in making protective orders, the task of the decision maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Dept of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83].

Submissions

1. The Commission urges us to cancel Mr Muthukrishna's registration and, in addition, to order under s 149C(7) of the National Law that Mr Muthukrishna not seek review of the cancellation order for a period of between 18 to 24 months.
2. In oral submissions, Mr Muthukrishna said that he recognises the serious nature of, and takes full responsibility for, his conduct. He said he has put in place measures to ensure that the physiotherapists he employs at the Practice do not make the "same mistakes". Mr Muthukrishna claimed that for the past 12 to 18 months he has been engaged in a process of "self-reflection" with a therapist. In addition, Mr Muthukrishna claimed that he has undertaken several courses in ethics and intends to continue to educate himself about that issue.

Consideration

1. Cancellation is an appropriate order in the circumstances of this case for several reasons. First, it serves to denounce Mr Muthukrishna's conduct and to deter Mr Muthukrishna and other practitioners from engaging in such conduct. Second, on the available material, we could not be satisfied that the conduct would not be repeated. Mr Muthukrishna has provided no evidence in support of his claim that he has reflected upon his conduct, attended a therapist, and undertaken courses on ethical conduct. Third, at this point in time, the risk that the admitted conduct might be repeated could not be ameliorated by the imposition of conditions on Mr Muthukrishna's registration or some other form of order.
2. We decided to order that Mr Muthukrishna not be permitted to seek review of the cancellation order for a period of 18 months and not 24 months as requested by the Commission. We made that decision because in circumstances where Mr Muthukrishna's registration has already been suspended, we considered a 24-month non-review period to be excessive.

Costs

1. The principles governing the Tribunal's power to award costs were recently summarised in Patrech v Psychology Board of Australia (no.2) [2023] NSWCATOD 9 at [8]-[12]. We adopt that summary.
2. There is no evidence, and nor does Mr Muthukrishna suggest, that the Commission has engaged in any disentitling conduct which might justify a departure from the "usual rule" that "costs follow the event".
3. The Commission is entitled to the costs of these proceedings. Mr Muthukrishna is to pay the Commission's costs, as agreed or assessed.

Orders 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW), Mr Muthukrishna's registration as a physiotherapist is cancelled. 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), Mr Muthukrishna may not apply for review of the cancellation order for 18 months. 3. Mr Muthukrishna is to pay the Health Care Complaints Commission's costs of these proceedings pursuant to clause 13(1) of Schedule 5D of the Health Practitioner Registration National Law (NSW) as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

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: 28 July 2023