Health Care Complaints Commission v Neale

NCAT Occupational|2023-08-04|Before: Associate Professor P

Health Care Complaints Commission v Iskander [2015] NSWCATOD 30 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Reid [2018] NSWCATOD 162 Health Care Complaints Commission v Reyes [2023] NSWCATOD 57 Health Care Complaints Commission v Robinson (No 3) [2023] NSWCATOD 34 Lee v Health Care Complaints Commission [2012] NSWCA 80 Legal Services Commission v Maddock [2021] NSWCATOD 46 Mills v Meeking (1990) 169 CLR 214; [1990] HCA 6; 91 ALR 16 New South Wales Bar Association v Meakes [2006] NSWCA 340 Peeke v Medical Board of Victoria [1994] VSC 7 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; 153 ALR 490 Qasim v Health Care Complaints Commission [2015] NSWCA 282 SAS Trustee Corporation v Miles (2018) 361 ALR 206; [2018] HCA 55 R v Daetz [2003] NSWCCA 216 R v Wilhelm [2010] NSWSC 378 Riley v Commonwealth (1985) 159 CLR 1; [1985] HCA 82; 62 ALR 497 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Silvano v R [2010] NSWCCA 118 Zaidi v Health Care Complaints Commission (1988) 44 NSWLR 162 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Brian Lewis Neale (Respondent) Representation: Counsel: E Bayley (Applicant) I Chatterjee (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) Mills Oakley (Respondent) File Number(s): 2022/00196128 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of the patient referred to in this decision is prohibited.

Introduction

On 9 March 2023 the Tribunal found Dr Neale (the Practitioner) guilty of unsatisfactory professional conduct and professional misconduct, thereby enlivening the provisions of s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) 2009 (National Law), which empower the Tribunal to suspend or cancel the practitioner's registration.
On 4 August 2023 the Tribunal received evidence and heard submissions with respect to the imposition of protective orders pursuant to the National Law (Stage 2 hearing).
These are the reasons of the Tribunal for the protective orders which the Tribunal finds are necessary to protect the health and safety of the public.

Background

The Tribunal found the Practitioner guilty of professional misconduct in reliance upon findings of fact with respect to an unsolicited telephone consultation which the Practitioner initiated with Patient A, who was a female then aged 21 years, on 1 September 2020. The Tribunal was comfortably satisfied that the Health Care Complaints Commission (Commission) established the particulars of Complaint 2 made by it, which alleged that: "1 On 1 September 2020 between approximately 2.23 p.m. and 2.34 p.m. the Practitioner called Patient A on her mobile phone and had a conversation with Patient A which included the Practitioner's comments particularised in particular 2 below ("the telephone call"). The Practitioner's conduct in making the telephone call was inappropriate in that: (a) no appointment was scheduled; (b) Patient A was not alone and the Practitioner could not be satisfied that the telephone call was private and could not be overheard; (c) Patient A was not given an opportunity to prepare herself for the discussion of sexual matters; (d) the timing, nature and content of the conversation did not serve a valid clinical purpose; (e) the Practitioner knew or should have known that the conversation was likely to cause Patient A psychological harm and/or distress. 2 On 1 September 2020 between 2.23 p.m. and 2.34 p.m., the Practitioner failed to maintain appropriate professional boundaries in the telephone call in that the Practitioner inappropriately: (a) asked Patient A if she would have sex with him; (b) offered money to Patient A in return for sex with him; (c) said words to the following effect: (i) "Some younger girls find older men attractive"; (ii) that the Practitioner had "a lot of money"; (d) asked Patient A if she was attracted to him; (e) persisted with asking questions after Patient A said "No"; (f) at the end of the conversation, said words to the following effect: (i) "I thought I'd just ask anyway. Forget I said anything and I'll go back to being your nice and caring psychiatrist". 3 The Practitioner's conduct in particular 2 was in breach of clauses 3.1 and 3.2 of the Medical Board of Australia "Guidelines: Sexual boundaries and the doctor-patient relationship" issued in December 2018."
The Commission sought an order under s 149C(1)(b) of the National Law cancelling the Practitioner's registration, and an order pursuant to s 149C(7) that an application for review of the cancellation order may not be made until after the expiration of 2 years. The Commission sought an order that the Practitioner pay its costs as agreed or assessed. It was agreed that, in accordance with the Tribunal's usual practice, the issue of costs would be determined after the Tribunal delivered its decision in the Stage 2 proceedings.
The Practitioner disputed that cancellation was warranted. In the written submissions of his Counsel, the Practitioner sought (49) that he be reprimanded pursuant to s 149A(1)(a) of the National Law but that, as the Practitioner "is no longer in practice, and does not intend a return to practice, conditions are not suggested".
The evidence reveals that, contrary to a number of assertions made by him, the Practitioner has not surrendered his registration as a medical practitioner, which, unless surrendered prior to that date, will not expire until 30 September 2023. In the light of that uncertainty, brief submissions were made with respect to whether the Tribunal has power to reprimand a practitioner who is not registered. Although, as will be seen, we ultimately do not need to decide that issue, we incline to the view that the Tribunal does not have power to reprimand an unregistered health practitioner.
Section 149A(1) of the National Law provides that the Tribunal may make "any one or more" of a six specific orders "in relation to the registered health practitioner". Section 149A(1)(a) confers the power to reprimand the practitioner. The definition of "registered health practitioner" in s 5 of the National Law includes an "individual" who is (a) "registered under this Law to practise a health profession, other than as a student", or, (b) "holds non-practising registration under this Law in a health profession". Section 5 defines "health profession" to include the "medical" profession.
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; 153 ALR 490) the High Court accepted that "the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning". Those considerations would not appear to justify constructing the words of s 149A to include unregistered health practitioners. Nor would they displace a construction which has the "powerful advantage in ordinary meaning and grammatical sense" (SAS Trustee Corporation v Miles (2018) 361 ALR 206; [2018] HCA 55).
The maxim of statutory construction whereby an express reference to one matter indicates that other matters are excluded supports finding that the legislature did not intend the provisions of s 149A of the National Law to apply to unregistered health practitioners (Riley v Commonwealth (1985) 159 CLR 1; [1985] HCA 82; 62 ALR 497). The provision is precisely drafted (Deputy Commissioner of Taxation v Lincoln Industrial Cleaners Pty Ltd (1975) 2 NSWLR 499; (1975) 7 ALR 118). There is no risk that the absence of inclusion of unregistered health practitioners in the provision may have inadvertently resulted from its amendment (Construction, Forestry, Mining and Energy Union v Hodgkiss (2007) 169 FCR 151; [2007] FCAFC 197; 248 ALR 169).
Save perhaps for the power to reprimand, the utility of the orders which the Tribunal may make pursuant to s 149(1) of the National Law is limited to registered health practitioners, as the terms of such orders makes clear. It is difficult to suggest how reprimanding an unregistered health practitioner could enhance the protection of public health and safety. Importantly, s 149C(4) empowers the Tribunal to make protective orders with respect to unregistered health practitioners whose registration would have been suspended or cancelled if they had been "still registered". We perceive no inconsistency in, or ambiguity with respect to the legislative provisions to which we have referred. Interpreting s 149A to exclude unregistered health practitioners does not appear to promote any mischief with which they were intended to deal (Mills v Meeking (1990) 169 CLR 214; [1990] HCA 6; 91 ALR 16). Although the point does not appear to have been extensively argued, we note that in Health Care Complaints Commission v Reyes [2023] NSWCATOD 57, to which the Commission referred the Tribunal, at [121] the Tribunal concluded that it lacked the power to reprimand an unregistered health practitioner.
Counsel for the Practitioner offered an undertaking, which the Commission and the Tribunal accepted, that, if there was any change in his registration, the Practitioner would forthwith inform the Commission and the Tribunal of such change. When the parties closed their cases, the evidence of the Practitioner was that he intended to surrender his registration as a medical practitioner. Consistent with seeking the imposition of a reprimand, presumably in view of the uncertainty with respect to the Tribunal's power to reprimand an unregistered practitioner, in his closing submissions the Practitioner's Counsel was equivocal about the Practitioner's intentions with respect to his registration.
Unsurprisingly in the circumstances, the case for the Commission became that, if the Practitioner was registered when the Tribunal delivered its decision, the Practitioner's registration should be cancelled but, if the Practitioner was not then registered, the Tribunal should make an order pursuant to s 149C(4) of the National Law which provides that: "If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board."
Rather than wait until the Practitioner surrenders his registration, or renews or does not renew his registration on 30 September 2023, the Tribunal will make orders in the alternative which will have application irrespective of whether the Practitioner is registered as at the date of the Tribunal's orders.

Evidence

The Commission relied upon a number of documents which it tendered in the Stage 1 hearing. Those documents formed part of Exhibit HCCC1. In addition, the Commission tendered a bundle of documents in the Stage 2 proceedings which became Exhibit HCCCA1. The Commission also tendered an Evidentiary Certificate with respect to the Practitioner issued by the Medical Council of New South Wales, and an Evidentiary Certificate issued by Ahpra on 20 January 2023.
The Practitioner relied upon documents tendered by him in the Stage 1 proceedings and further documents contained in a volume behind 10 Tabs which, together with a further reference from a former patient, referred to as Patient C, comprised Exhibit RA.
The Practitioner was cross-examined. The Practitioner's character referees were not required for cross-examination. The Practitioner's expert witness, and former supervisor, Dr Kossoff, was cross-examined.
In his statement of 9 June 2023 (Exhibit RA, Tab 1) the Practitioner referred (7) to his supervision by Dr Lana Kossoff, who is a Consultant Forensic Psychiatrist and Clinical Psychiatrist, from 20 May 2021 to 18 January 2023. The Practitioner stated that, as part of his supervision arrangements, he attended fortnightly sessions with Dr Kossoff to discuss issues "including patient boundaries, professional ethics, medical record keeping, workplace stressors and practice management". The Practitioner stated that such ongoing supervision "ensured that I continued to learn from the experience of 1 September 2020 and the subsequent complaint and assisted me with implementing improvements to my clinical practice". The Practitioner further stated that, during the course of his supervision sessions with Dr Kossoff he had an "opportunity to reflect on my practice". Under the heading "Changes to Clinical Practice", the Practitioner set out a number of changes which he has made with respect to his practice, record keeping and patient information since the Complaint which gave rise to these proceedings.
The Practitioner stated (19) that "Since receiving the Complaint I also reflected on the use of role play as a treatment method and what occurred on 1 September 2020 at length. I confirm that the incident on 1 September 2020 was a deviation from my usual practise of psychiatry". The Practitioner further stated (20) that "Moving forwards, I determined that I would not undertake any form of role play as a form of therapy myself, but that I would refer the patient to a suitable therapist if I found that model of treatment clinically to be indicated. To this end, I confirm that I did not use role play again as a form of treatment following the incident giving rise to this Complaint. As I have now retired from practice, I also confirm that I have no intention of utilising this form of treatment in the future."
The Practitioner referred (21)-(22) to an article about him which was published by "The Australian" newspaper on 9 May 2023, following publication of the Tribunal's decision in the Stage 1 proceedings. A copy of the newspaper article was before the Tribunal. Although in other respects accurate, the newspaper report wrongly suggested that Patient A was 17 years of age on 1 September 2020. Patient A was then 21 years of age. Further, and erroneously, the newspaper report suggested that the Tribunal had cancelled the Practitioner's registration with a non-review period of such cancellation of 2 years. The Practitioner said he had been made aware of the newspaper article but had not read it.
In oral evidence the Practitioner stated that his wife had read the newspaper article and, notwithstanding her previous support of him, accused him of being a "paedophile" after doing so, and banished the Practitioner to a separate bedroom for approximately one week before requiring the Practitioner to vacate the matrimonial home. The Practitioner said that his wife subsequently would not allow him to return to the matrimonial home.
The Practitioner referred (23) to his experiences after members of his local community apparently read the newspaper article. Those included the Practitioner feeling unable to continue in his position in a local community band, and many friends having "turned" on him.
The Practitioner stated (24) that he had "now retired from medical practice", having seen his last patient on 25 January 2023. The Practitioner further stated (26) that he had "no intention to return to clinical practice, nor do I intend to renew my registration with the Australian Health Practitioner Regulation Agency (Ahpra) when it lapses this year".
The Practitioner was cross-examined, and reiterated on a number of occasions his humiliation, "shame and remorse and regret" in relation to the conduct of which he was found guilty. In the course of cross-examination the Practitioner made clear that, although he accepted the findings of the Tribunal, he did not resile from his assertion that he "articulated at the commencement of the call my intention to perform a role play", adding that he believed that there were "misunderstandings in the hearing". We do not believe that any material finding adverse to the Practitioner was referable to "misunderstandings". The Practitioner readily accepted that he "did this extremely badly" when referring to the purported role play, and that at the time he did so the Practitioner believed that he had a valid clinical purpose for doing so. However it is not apparent to us how the Practitioner could reasonably have held that belief having regard to the circumstances in which he made that telephone call to Patient A and the content of that call, given the admissions he has made.
The Practitioner accepted that the conduct of which he was found guilty was "appalling". In other instances the Practitioner "did not disagree" with the Tribunal's findings, although they were at variance with his evidence in the Stage 1 proceedings.
The Practitioner accepted that Patient A's account of the conversation on 1 September 2020 was "reliable and accurate", but qualified that by suggesting that such reliability and accuracy involved "repeating what she remembers and experienced". The Practitioner's equivocation with respect to this and other aspects of his offending conduct raises concerns as to the extent of his present insight into the gravity of that conduct.
The Practitioner rejected the Tribunal's finding that his account of the purported role play on 1 September 2020 was in the nature of a reconstruction of what he would like to think had happened. Although he is entitled to his opinion, the Practitioner's continuing inability to recognise that his own oral and written evidence invited that finding is concerning.
In the course of his cross-examination, despite being given a number of opportunities to do so, and without resiling from his denials of guilt, for which the Tribunal does not criticise him, the Practitioner offered no explanation for how the conduct of which he was found guilty, or even the offending conduct which he admitted, could have occurred. The Practitioner did not suggest that he was under financial or other pressure or stress of any kind in his professional or private life at that time, save to the extent that he appeared to suggest that, in some unidentified way, the Covid epidemic played a part in his aberrant behaviour.
The Practitioner conceded, inferentially because he has retired from practising, that he had not considered undertaking further education with respect to professional boundaries. The Practitioner volunteered that his Supervisor, Dr Kossoff, was a "friend". To the extent that the Tribunal may have had any concerns with respect to Dr Kossoff's objectively in the light of that statement, the cross-examination of Dr Kossoff removed any such possible concern. Dr Kossoff revealed herself to be objective and made a number of concessions which were unhelpful to the Practitioner and consistent with that objectivity.
The Practitioner was cross-examined with respect to the circumstances surrounding former patients approaching him to give character evidence on his behalf. The Tribunal draws no inferences adverse to the Practitioner in relation to the circumstances in which any of the character references provided on behalf of the Practitioner came about. The Practitioner and his solicitors dealt with the approaches of those witnesses, and presentation of their character references appropriately.
The Practitioner's evidence with respect to his registration was somewhat equivocal. At one point the Practitioner suggested that he intended to let his registration lapse, and at another time suggested that he made an unsuccessful, and unsustained approach to the Regulator to surrender his registration, but ultimately "just left it". The Practitioner stated that he did not want to do "CME", which the Tribunal understands to be a reference to mandatory continuing medical education. The Tribunal's findings in the Stage 1 proceedings suggest that, if he were to practise, the Practitioner would need to undertake further education with respect to professional boundaries.
Dr Kossoff wrote a report in support of the Practitioner (RA) on 22 May 2023. Attached to the report were a number of supervision reports prepared by Dr Kossoff between August 2021 and October 2022 (Tabs 4 and 5).
Dr Kossoff's final supervision report of 17 May 2023 recorded that when she spoke to the Practitioner shortly prior to writing the report, "he said he was enjoying retirement and had no plans to ever return to clinical practise. I advised him that he would need to relinquish his registration with Ahpra. He was going to contact Ahpra to organise this". Consistent with her supervision reports, Dr Kossoff's final supervision report recorded that she had no concerns regarding the Practitioner's "clinical performance or health during the reporting period".
In her report of 23 May 2022, as she was invited to, Dr Kossoff focused predominantly on her observation of the Practitioner during her supervision of him over a period of more than 12 months. Dr Kossoff recorded (page 2) that the Practitioner "was also aware of the subject incident in regards to the performance issues including a lack of informed consent and inappropriate intervention and the absence of sufficient notes and we worked through each of these topics. [The Practitioner] was very regretful that the incident occurred and noted it was not his usual practice to undertake this type of intervention, but during the Covid pandemic, practice conditions were made more difficult because of audiovisual and telephone consults and difficulties with maintaining continuity of patient care due to quarantine periods."
As the Practitioner acknowledged in cross-examination, and had earlier acknowledged, the purported role play on 1 September 2020 was unsolicited, without warning, without knowledge of Patient A's circumstances, and, as the Practitioner acknowledged, there was "no urgency whatsoever to call" Patient A.
Dr Kossoff set out a number of changes which the Practitioner informed her that he had made to his practice as a result of the Complaint. The relevance of those changes is problematic given the evidence of the Practitioner, including in cross-examination on 4 August 2023, that he had no intention of practising medicine again, and had no financial need to seek to do so. Dr Kossoff recorded (page 5) that she had observed the Practitioner "to practise psychiatry in a competent fashion". Save for the offending conduct which gave rise to the current proceedings, no question of the Practitioner's competence has arisen, and his competence was not the subject of any complaint by the Commission in the Stage 1 proceedings. Dr Kossoff's description of the events of 1 September 2020 as "an isolated incident" is consistent with the Practitioner's acknowledged absence of prior complaints.
Dr Kossoff recorded that there had been no other "incidents of any boundary violations" and that the Practitioner "continued to be aware of the mistakes he made in managing the subject incident and was grateful that this had occurred". Dr Kossoff recorded the Practitioner's assertion that he "never had any intention to have a sexual relationship with his patient and had known her for some years prior to the subject incident and had never groomed her for any sexual activity".
Dr Kossoff recorded the Practitioner as having suggested that his conduct on 1 September 2020 "would not have occurred had his workload not been as busy and during Covid times the ability to access patients remotely was difficult, complex and confused at times". We do not recall the Practitioner having made that assertion during the Stage 1 hearing. The Practitioner did not adduce evidence, in the Stage 1 or 2 hearing which supports a finding in those terms. This appears to be a post hoc explanation, and suggests that the Practitioner is still unable to accept responsibility for his offending conduct.
Although the Tribunal does not understand the Practitioner to suggest that they provide an excuse for how he came to conduct himself in the way the Tribunal found he did, or that he admitted he did, the Practitioner's statements to Dr Kossoff provide little comfort for the Practitioner in terms of an explanation as to how his offending conduct, admitted or found, could have occurred, or his insight into his own culpability.
Dr Kossoff was briefly cross-examined. Dr Kossoff said in oral evidence that the Practitioner had "jumped into the role play". In his evidence the Practitioner attempted to suggest that the Tribunal's findings with respect to his evidence of doing so were taken out of context or based on his misunderstanding of the question which gave rise to his giving that evidence. Although it is not a reflection on Dr Kossoff, a number of the matters which the Practitioner told her were somewhat at variance with his statement of 12 February 2021. When Dr Kossoff was referred to what the Practitioner had been told by Patient A, compared with what she had understood the situation to be from the Practitioner, Dr Kossoff considered the conduct of the Practitioner to be "more extreme" and to involve a "serious error of clinical judgement". Later in her evidence Dr Kossoff said that the Practitioner had done a "foolish thing".
Although perhaps slightly influenced by her sympathy for the Practitioner, the Tribunal accepts Dr Kossoff's evidence with respect to the Practitioner's satisfactory performance during her supervision of him, and his expressions of remorse for his offending conduct. As with the evidence of the Practitioner himself, save to the extent mentioned earlier, upon which the Practitioner appeared to place only limited reliance, nothing emerging from Dr Kossoff's evidence begins to explain how the Practitioner came to conduct himself in the way in which the Tribunal found he did or the Practitioner admitted he did on 1 September 2020, or provide support for finding that the Practitioner has gained insight into his offending conduct.

The submissions of the Commission

The Commission submitted (4) that the relevant principles with respect to the Stage 1 determination included: "(a) protection of public safety and health is paramount (s3B National Law); (b) the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community (Prakash v Health Care Complaints Commission [2006] NSWCA 153); (c) public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered (s3(2)(a) National Law); (d) deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession (HCCC v Litchfield (1997) 41 NSWLR 630); (e) protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession (HCCC v Do [2014] NSWCA 307); (f) the Tribunal's jurisdiction is primarily protective, not punitive (HCCC v Litchfield (1997) 41 NSWLR); (g) it is unavoidable that protective orders may be incidentally punitive (Lee v HCCC [2012] NSWCA 80)."
In support of its contention that cancellation of the Practitioner's registration was warranted, the Commission submitted (6) that, whether the degree of seriousness was sufficient to warrant suspension or cancellation is a matter of degree and judgement (Sabag v Health Care Complaints Commission [2001] NSWCA 411) and that assessing the gravity of offending conduct was not by reference to the worst cases but by reference to the extent to which the offending conduct departs from proper standards (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 530; [1997] NSWSC 297).
The Commission submitted that the Practitioner's offending conduct with respect to the purported role play on 1 September 2020 warranted cancellation of his registration and that (8) even if the Practitioner was intending to perform a role play that did not reduce the significance of the offending conduct. The Commission relied on the Tribunal's finding, at [134], that the Practitioner's conduct posed a risk of harm, involved a great betrayal of trust and hurt and insensitive, offensive and inappropriate remarks to a patient who the Practitioner knew, or should have known, was vulnerable and whose health was likely to be adversely impacted by such violations, the Practitioner's conduct represented a real risk to Patient A's health and safety.
The Commission submitted (9) that, if it be necessary to do so, the findings of guilt with respect to Complaint 3, which related to inadequate records, warranted cancellation of the Practitioner's registration. In isolation, we do not agree with that contention. Without diminishing the significance of that finding, it does not materially advance the Commission's case.
The Commission reiterated (10)-(11) the findings of the Tribunal with respect to the Practitioner's offending conduct, and acknowledged (12) that the Practitioner has taken some "limited step towards improving his practice" particulars of which it identified. If, as he has said in evidence, the Practitioner has retired, and does not intend to practise again, doing so is of limited significance for present purposes.
The Commission submitted (13) that the Practitioner has: "not yet demonstrated sufficient insight and sufficient rehabilitation because: (a) his recent statement does not address the proven conduct; (b) his recent statement does not accept the Stage 1 findings against him; (c) his Stage 2 oral evidence included that there were "misunderstandings and miscommunications" during the Stage 1 hearing, he maintained that he told Patient A there would be a role play, he disagreed with the tribunal finding that he did not say anything to Patient A about a role play, he disagreed with the Tribunal's decision rejecting his assertion that Patient A missed something and he maintained that he believed he had a clinical purpose for the call; (d) he has not completed any further education on professional boundaries."
The Tribunal does not criticise the Practitioner for declining to resile from his earlier evidence. Had he done so, properly, the Commission may have been able to make submissions criticising his credibility. As will be seen, in the circumstances of this case, a critical focus of interest, both in terms of assessing the risk of reoffending and rehabilitation, is the absence of any explanation for serious professional misconduct which is not suggested to be other than out of character for the Practitioner could have occurred. The crux of the Commission's submission in that regard was that, in the absence of any explanation for how the conduct found or admitted by the Practitioner could have occurred, it is not open to the Tribunal to find that the risk of his reoffending is low.
The Commission, correctly, emphasised the absence of further education with respect to professional boundaries, or any intention to undertake such education, which is not to demean the supervision which Dr Kossoff has undoubtedly provided to the Practitioner in that context. The Practitioner's evidence, that he has retired and does not want to do CPD (continuing professional development), may in part explain why he is reluctant to undertake such further education in the future. We are not convinced that the Practitioner recognises his need for further education in relation to boundary issues.
The Tribunal has earlier referred to and rejected the criticisms of the Commission with respect to the Practitioner's character references. The Tribunal notes the contents of the character references by 3 former patients and 2 medical practitioners. Without denigrating the character referees or their comments, in circumstances where it is acknowledged that, save with respect to his offending conduct with respect to Patient A, the Practitioner is of good character, with no prior disciplinary indiscretions, having regard to the community expectation that medical practitioners will be of good character, the weight to be given to the Practitioner's character references is limited. That is particularly so having regard to the requirement that the paramount consideration is the health and safety of the public.
With respect to setting a non-review period if the Practitioner's registration is cancelled, the Commission relied (15) on the Tribunal's power to set a non-review period pursuant to s 149C(7) of the National Law, provided that the Practitioner is registered when the Tribunal delivers its decision. As recorded earlier, the Commission's case is that, irrespective of whether the Practitioner is or is not registered when the Tribunal delivers its decision, it should achieve, in substance, that outcome. The Commission submitted that, if the Practitioner is not registered when the Tribunal delivers its decision, the Tribunal should find that it would have cancelled the Practitioner's registration if he had been registered, and prohibit him from being re-registered for a period of two years pursuant to s 149C(4) of the National Law.
The Commission submitted that the setting of a non-review period is not to punish the Practitioner but to protect the public and that the Tribunal should be cautious about relying on the "range" of orders made in previous disciplinary proceedings and the importance of the "predominant consideration" being the protection of the public (Lee v HCCC [2012] NSWCA 80).
In response to the Practitioner's reliance upon the protective orders made in a number of decisions of the Tribunal, the Commission submitted that each case turns on its own facts and circumstances, and that the non-review periods imposed in previous matters do not "set a benchmark for subsequent cases" (HCCC v Elshaimy [2019] NSWCATOD 17).
The Commission submitted that fixing a period of non-review indicates a "minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and it holds open to the practitioner the possibility of return to the profession at a later time" (Chen v HCCC [2017] NSWCA 186).
The Commission emphasised the "clear message of denouncement of the Practitioner's conduct to other professionals" inherent in the fixing of a non-review period during which the Practitioner may reasonably take steps to rehabilitate him or herself in the interests of public health and safety.
For those reasons the Commission submitted that the protective orders sought by it were appropriate.
The Commission submitted (17) that suspension followed by conditions would be inadequate to protect the public, primarily because, if such orders were made the Practitioner could "decide to return to practice at any time while he remains registered". The Commission referred to the uncertainty which permeates the Practitioner's evidence about his intentions with respect to his registration. There is force in those submissions. As is not in doubt, and the Commission submitted, if the Practitioner's registration is "merely suspended, he would be entitled to consult patients again immediately after the suspension period expires".
Conversely, and as the Commission also submitted, if the Practitioner's registration is cancelled, he would be required to bring an application to be reregistered, and satisfy the Tribunal that he has demonstrated sufficient insight and rehabilitation to be re-registered as a medical practitioner.

The submissions of the Practitioner

The Practitioner submitted, that, however inept the purported role play had been, the Practitioner had at all times conceded that reality and his belief that, although misguided, there was some therapeutic benefit for Patient A in the purported role play. Although that may have been the Practitioner's belief, it was devoid of a rational foundation.
Under the heading "Disciplinary orders - the legal framework" the Practitioner referred to a number of the authorities to which the Commission referred in its submissions and submitted (21) that: "Broadly speaking five matters can be identified of general relevance" [21.1] any need to protect the public, and in particular the future patients of the Practitioner, against further misconduct by the Practitioner; [21.2] the need to protect the public through general deterrence (of other practitioners); [21.3] the need to protect the public by reinforcing high professional standard(s) and denouncing transgressions; [21.4] the maintenance of public confidence in the profession; and [21.5] the desirability of making available to the public any special skills possessed by the Practitioner."
In view of the Practitioner's evidence that he has retired and has no intention of practising again, the last mentioned factor cannot assume relevance for present purposes.
The Practitioner relied [22] on the statement by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 that: "Punitive effects may be directly relevant to the need for protection so that, 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 and to produce a level of insight into his or her own character or misconduct which did not previously exist."
The Tribunal accepts that a number of Basten JA's observations have application to the Practitioner. It is less convinced that the Practitioner has a "level of insight into his or her own … misconduct" which previously did not exist by reason of the absence of proffered or plausible explanation for how the Practitioner came to conduct himself in the way he admitted or was found to have on 1 September 2020. That absence of explanation in turn, as the Commission submitted, impacts on the assessment of the likelihood of the conduct being repeated, even if that likelihood is objectively low.
The Practitioner submitted (24) that "while the effect of any orders made on [the Practitioner] including (for instance their impact on his finances or reputation) are not directly relevant, they can nonetheless be relevant for their indirect effect. Most commonly this is by way of the effect of such order on the likelihood of a repetition of the impugned conduct".
In view of the evidence of the Practitioner, any "impact on his finances" cannot assume direct or indirect significance for present purposes. In terms of reputational damage, the Tribunal's decision is on the public record, and for good reason. It would make little sense for the exercise of the protective jurisdiction exercised by the Tribunal pursuant to the National Law to be attended by non-disclosure of the identity and offending conduct of medical practitioners. It is likely that, even if accurately reported in the media, some members of the community would react in the way in which the Practitioner said that they have. To what extent the reactions of those members of the community has been exacerbated by the erroneous reporting in The Australian newspaper cannot be known, but, the two respects in which the newspaper report was inaccurate are likely to have played a part in the reactions of those people.
The Practitioner relied (42) on the consequences for him of the inaccurate publicity given to the findings of the Tribunal in the Stage 1 hearing, the Tribunal as a "punishment that is inflicted upon an offender otherwise than by a court of law" (R v Wilhelm [2010] NSWSC 378). In criminal sentencing, a court can take into account "loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his [or her] offence or at least by reason of the offender having committed the offence" (Silvano v R [2010] NSWCCA 118). The weight given to any "extra-curial punishment" depends upon all the circumstances of the case and in some cases attracts little or no weight (R v Daetz [2003] NSWCCA 216). Although there are "some similarities" between criminal sentencing and the formulation of protective orders under the National Law, "there is no precise analogy" (Gautam v Health Care complaints Commission [2021] NSWCA 85), and the purpose of the two proceedings are materially different (Health Care Complaints Commission v Iskander [2015] NSWCATOD 30). The Tribunal's paramount consideration must remain the protection of the health and safety of the public.
We have some sympathy for the Practitioner in relation to the Australian newspaper's misreporting of the Tribunal's decision in the Stage 1 proceedings, but are not persuaded that, whether as extra-curial punishment, or on any other basis, the consequences of the misreporting for the Practitioner should be given any weight. Save with respect to the age of Patient A, the newspaper accurately reported the facts found by the Tribunal to establish professional misconduct. The Practitioner's evidence falls short of establishing the kind of loss or detriment which the authorities suggest is necessary to attract weight in the determination of these proceedings.
In support of his contention that a reprimand was appropriate, the Practitioner submitted (26) that a reprimand "speaks to the public, the profession, and the individual practitioner involved. It acts as a deterrent both directly, and indirectly as it "reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession" (NSW Bar Association v Meakes [2006] NSWCA 340 per Basten JA at 114, speaking of disciplinary orders generally, and reprimands in particular)."
The Practitioner submitted (27), and the Tribunal accepts, that a reprimand is not a "trivial or inconsequential outcome" (Peeke v Medical Board of Victoria [1994] VSC 7; Legal Services Commissioner v Maddock [2021] NSWCATOD 46). We have reservations about the impact of a reprimand on an unregistered practitioner. We also have reservations about how adequately such a reprimand "speaks" to the medical profession or the public about how conduct of the kind admitted or proved in this case is viewed by the Tribunal.
The Practitioner's submissions referred to his own evidence, and that of Dr Kossoff to which the Tribunal has previously referred, and to the character references upon which the Practitioner relied to which the Tribunal has also referred. We have taken those references into account, but, for the reasons recorded earlier, they are afforded only limited weight.
The Practitioner submitted (47) that his offending conduct was "appropriately characterised as a singular and aberrant episode, albeit a serious one". The Tribunal agrees with that contention. The fact remains however, as earlier recorded, and emphasised by the Commission, that there is no adequate explanation for how this "aberrant" conduct could have come about. As the Commission submitted, without knowing how the offending conduct could have occurred, it is difficult to find that there is not a significant risk that it could recur. The Tribunal has earlier recorded its acceptance of the Practitioner's contention that, save by reason of his offending conduct on 1 September 2020, there is no reason to find a risk to the public by reason of the Practitioner's medical skills or judgment, and we do not understand the Commission to suggest otherwise.
The Practitioner submitted that, whether with respect to cancellation or suspension of his registration or otherwise, individual deterrence should not assume significance in the Tribunal's decision as (52) the "likelihood of a repetition of the same or similar conduct by [the Practitioner] is remote". For the reasons that we have earlier recorded, we are unable to find that risk to be "remote" and incline to the view that it is low to moderate.
The Practitioner relied upon a number of decisions of the Tribunal. Accepting the limitations on comparable verdicts, it is necessary to consider those decisions.
In support of the Practitioner's contention that his offending conduct did not justify cancellation of his registration, reliance was placed upon the decision of the Tribunal in Health Care Complaints Commission v Ghougassian [2021] NSWCATOD 169 (Ghougassian). The Practitioner submitted (56) that whilst the conduct of the Practitioner was found in that case to constitute professional misconduct, ultimately neither cancellation nor suspension was found to be warranted, with a reprimand imposed.
The citation of the decision in Ghougassian refers to the Stage 1 hearing. The Tribunal concluded [112] that it did not: "consider that the conduct of the Respondent constitutes professional misconduct. However, it observes that the degree of inappropriate conduct in video taping a 13 year old without a bra and without parental consent for an obscure reason and violating a host of boundaries with relation to Patient A and Person X is concerning; including the number of apparently unnecessary pin prick testing of breast skin, inappropriate photography of Person X's legs and not obtaining proper consent, not keeping records properly, inadequate consent for filming of Patient B, and the Respondent's general lack of awareness of potential distress to patients from such intimate exposures, compounded by the fact that that a chaperone was not offered. The Tribunal considers that such conduct falls short of satisfying the definition of professional misconduct."
The Stage 2 decision in Ghougassian (Health Care Complaints Commission v Ghougassian (No 2) [2021] NSWCATOD 217) confirms, as submitted on behalf of the Practitioner that, pursuant to s 149A(1)(a) of the National Law, the practitioner was reprimanded. The Tribunal also imposed a number of conditions on the practitioner's registration. As readily conceded by Counsel for the Practitioner, having not made a finding of professional misconduct, the Tribunal was not empowered to suspend or cancel the practitioner's registration.
In determining that a reprimand and the imposition of an extensive set of conditions on the practitioner's registration adequately protected the health and safety of the public, the Tribunal referred [10] to a report before it with respect to an education programme in which the practitioner was found to have "engaged and contributed fully", to his "demonstrated insight into the concerns about his practice" and to his having "reflected at length on the circumstances which gave rise to the complaint". After referring to other mitigating factors, the Tribunal found [11] that the practitioner had: "endeavoured, by undertaking such courses, to address the shortcomings that were found in the Tribunal's decision. The Tribunal notes that the Applicant acknowledges that the circumstances surrounding the photographing of Person X occurred in unusual circumstances; that it showed a deep misunderstanding of the Respondent in dealing with Person X. The unusual circumstances related to the fact that the Respondent was deeply concerned for the welfare of Person X in view of bruising and scratches which he observed on her body, and the fact that such injuries may have been caused by Person X's parent or parents. The Applicant submits that such conduct should be addressed. The Tribunal notes that the video recording of Patient B was also inappropriate."
The Tribunal recorded [14] that the practitioner had been "in practice for more than 40 years without blemish" and accepted evidence from another medical practitioner as to the "standing of the Respondent as a medical practitioner". The Tribunal concluded [15] that, in view of the matters to which it had referred, it had "confidence that the health and safety of the public, which is the Tribunal's first consideration, will be met by the conditions proposed but that the condition prohibiting the Respondent from treating patients under the age of 18 years is not necessary. The Respondent has demonstrated now his awareness and has taken courses to address his shortcomings and to provide him with greater insight. Further, the Tribunal is mindful that the Respondent has been suspended since 20 May, and that in this period the Respondent has undertaken courses relating to ethics and consent, and will have been able to reflect upon the shortcomings of his conduct".
As is necessarily the case in "arbitral and adjudicative" proceedings (Ghosh v Health Care Complaints Commission [2022] NSWCA 229), minds may reasonably disagree with respect to the making of protective orders in reliance upon the same set of facts. The Tribunal takes into account the decisions in Ghougassian but does not consider that they provide material assistance for the Practitioner in this case. In addition to the fact that the Tribunal declined to find professional misconduct in Ghougassian, as the Tribunal's reasons imply, the Practitioner's offending conduct was mitigated by the "unusual circumstances" in which it occurred. Although unusual, the circumstances in which the present Practitioner's offending conduct occurred do not mitigate that conduct. If anything, the circumstances of the Practitioner's offending conduct aggravated its seriousness. As the Tribunal's reasons in the Stage 2 decision in Ghougassian confirm, the practitioner had undergone education and gained insight which the Practitioner in this case has not demonstrated.
The Practitioner relied on the decision of the Tribunal in Health Care Complaints Commission v Gautam [2020] NSWCATOD 146, a case in which a paediatrician, who was "found to have inappropriately touched and kissed the mother of a patient during a consultation" was reprimanded and suspended for 3 months. The Tribunal's decision was not disturbed on appeal (Gautam v Health Care Complaints Commission [2021] NSWCA 85).
In Gautam the practitioner was found to have sat next to the mother of his 4 year old patient, in the absence of the patient, "rubbed her shoulder with his right hand" and "kissed her above her forehead". The practitioner was found to have stated to the patient's mother, while the patient was in the consultation room "You need to come back without [Patient A] and afterhours when the ladies are gone, to discuss strategies and I won't bill you". The practitioner was found to have said to the patient's mother, after sending the patient from the consultation room "We need to be careful because people will think something is going on", and to have "put his right hand around her left upper arm, and led her towards another part of the consultation room before saying to the patient's mother "Come over here, come this way, no-one can see us". The practitioner was found to have then "leaned his head forward to kiss [the patient's mother] on or near her lips" and having "kissed her near her lips".
The Tribunal found [56] the practitioner guilty of professional misconduct involving conduct of a "very serious nature" with respect to professional boundaries, in that it exploited the doctor/patient relationship, undermined the trust that patients and the community have in doctors and a potential to cause psychological harm in an "inherently unequal" relationship involving a "power imbalance for a doctor to enter into a sexual relationship with a person who is closely related to a patient".
The Tribunal relied [57] upon the practitioner's awareness that the mother of the patient was "vulnerable and depended emotionally on him to assist Patient A in becoming fit to attend kindergarten in the foreseeable future".
The Tribunal declined to cancel or suspend the practitioner's registration after taking into account [66] that the conduct occurred on a "single day and that there is no evidence of any other improper conduct on the part of Dr Gautam; the practitioner had taken steps to avoid a repetition of his offending conduct; the practitioner relied on a number of character references which the Tribunal accepted; the practitioner from whom Dr Gautam purchased his practice had known Dr Gautam for 13 years and regarded him as "a person of the highest integrity who has always acted in the best interests of his patients" with "exemplary" standards of paediatric practice. An Associate Professor paediatrician who had known Dr Gautam for 6 years described him as a "valued colleague and teacher who is respected by his colleagues, an astute diagnostician and an extremely hard working professional who practises in an empathetic and diligent manner with clinical skills of a high standard; the mother of another patient found Dr Gautam to be "kind and professional, caring and dedicated, extremely hard working and professional in an empathetic and diligent manner, as did the mother of another patient who had been consulting Dr Gautam since 2016". In reliance upon those factors, the Tribunal declined to cancel the practitioner's registration and reprimanded him and suspended him for practising for 3 months.
As with the decision in Ghougassian, albeit professional misconduct was established in Gautam, the Tribunal does not consider the decision materially assists the Practitioner in this case. Although there is some commonality in the evidence which was before the Tribunal in this case, and that which was before the Tribunal in Gautam, there are significant differences. Unlike the present case, the practitioner in Gautam was found to have gained insight into his offending conduct. He had also taken effective steps to avoid any possible repetition of his offending conduct. There was evidence from colleagues supportive of the practitioner's assertions that his conduct was out of character and unlikely to be repeated by a practitioner whose professional colleagues held him in the esteem to which they testified.
The Practitioner also relied upon the decision in Health Care Complaints Commission v Robinson (No 3) [2023] NSWCATOD 34 in which a suspension of 3 months and conditions were imposed on an Ophthalmologist who conducted a breast examination on a 19 year old patient which was not appropriate or objectively medically indicated. As submitted by the practitioner, the Tribunal found [64] that patients attending on the practitioner "for a medical need related to their eyes" would not expect to "experience a physical examination of another part of their body below the clavicle". The Tribunal reiterated its finding at the Stage 1 hearing that the complainant, a young female patient having been "subjected to a breast examination, must reasonably be expected to raise concerns in the general public about the provision of specialist medical services by the Respondent".
The Tribunal reiterated its finding that the practitioner had failed to obtain informed consent from Patient A, it being considered "highly likely that had Patient A been fully informed about her options, including the opportunity to return to see her GP for any examination below the clavicle, she would have taken that option rather than have the Respondent carry out the examination he did".
In reaching its decision the Tribunal had regard [65] to a number of factors including: 1. That the case involved "one offence", with an "isolated lapse of judgement in a practitioner who was first registered in 1986, and in circumstances where the Respondent genuinely believed he was conducting an appropriate and clinically indicated examination"; 2. That the Respondent has been subject to "very restrictive conditions on his registration" for 5 years, there being no suggestion that there had been "any failing on the part of the Respondent nor has there been any other aspect of his practice which has required intervention by the Medical Council"; 3. The Respondent had been "subject to the humiliation of having to display a notice in each place of his practice which sets out that he is the subject of conditions upon his practice arising from a complaint which is being investigated"; 4. The practitioner has been required to have each female patient who was prepared to see him "acknowledge that he is not permitted to consult with her unless a practice monitor, approved by the Medical Council and acceptable to the patient, is present at all times", notwithstanding which the practitioner had consulted with 4,159 female patients whilst subject to that condition; 5. The practitioner had expressed contrition to the Tribunal for the consequences to Patient A of his examination of her. The practitioner had expressed an "understanding of the power balance in the doctor/patient relationship and as such has demonstrated insight"; 6. The publication of the Respondent's conduct having been "widely available" and the conditions under which he has practised have "caused his family to suffer"; 7. The practitioner otherwise had a "clean record"; 8. The practitioner adduced significant character evidence.
The Tribunal also relied upon expert opinion evidence of a psychiatrist with respect to the improbability of the practitioner reoffending and his insight into his offending conduct.
The Tribunal concluded [80] that the appropriate protective order was suspension of the practitioner's registration for a period of 3 months accompanied by an extensive list of conditions upon the practitioner's return to practice. As with the decisions in Ghougassian and Gautam to which we have referred, there is some commonality in the evidence in Robinson and the evidence in the present case. There are, however, significant differences, as our brief reference to the reasons for the Tribunal's decision confirms.
The Tribunal takes into account the decisions upon which the Practitioner has relied which, we acknowledge, provide some, but limited support for his case. The most significant difference between the present case and the decisions upon which the Practitioner relied is that, unlike this case, the practitioners in those cases demonstrated insight into their offending conduct. Such insight enabled the Tribunal to make findings with respect to the likelihood of re-offending which were favourable to the practitioners. Although the risk of his re-offending is not high, the absence of demonstrated insight into his conduct on 1 September 2020 by the present practitioner does not enable us to make such findings in this case.

Consideration

In reviewing the submissions of the parties, the Tribunal has recorded its findings with respect to a number of the matters raised by each of them. Without restating them, those findings inform our determination of the Stage 2 proceedings.
To the extent that the Tribunal has the power to reprimand or suspend a practitioner who is not registered, which is acknowledged by the parties to be problematic, the Tribunal is not persuaded that doing so would adequately protect the health and safety of the public. Nor would doing so appropriately convey to the medical profession how seriously conduct of the kind that the Practitioner has admitted or been found guilty of is viewed by the Tribunal. Nor would suspension or reprimand sufficiently signal to the public the Tribunal's view of the seriousness of such conduct.
For a reprimand to be other than an expression or token of disapproval, it must have some practical impact. It is difficult to see how a reprimand has any practical impact on the Practitioner if, as he has consistently asserted in his evidence, he has retired and has no intention of practising medicine again. If, on the other hand, and contrary to his evidence before the Tribunal, the Practitioner does not intend to surrender his registration or let it lapse on 30 September 2023, as the Commission has correctly submitted, suspension would mean that, when the period of suspension had expired, the Practitioner could simply resume the practice of medicine, without having been required to, or have undertaken any formal or informal training or rehabilitation, or demonstrated the kind or degree of insight into his offending conduct which we have found to be lacking.
Having regard to the Tribunal's acceptance of the contentions of the Commission that the Practitioner has not adequately explained how the offending conduct which he has admitted or which the Tribunal has found proved could have come about, to make an order for suspension would do nothing to protect the health and safety of the public. Put bluntly, there would be no reason why, his suspension having been served, the Practitioner could not resume practice and, potentially, reoffend.
As the Tribunal's findings in the Stage 1 proceedings confirm, and the Commission has emphasised, the Practitioner's offending conduct involved breaches of trust, a significant risk to the health and safety of a vulnerable patient, and egregious boundary violations. Although in an application for re-registration, in Zaidi v Health Care Complaints Commission (1988) 44 NSWLR 82, the Court of Appeal accepted that although "confession is not a necessary pre-condition to reinstatement", there was no error in "concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness". Although less than "vigorous", and notwithstanding his contrition, the Practitioner's inability to fully accept his culpability, even in reliance upon his own admissions, and apparent need to rationalise his offending conduct, consequential lack of insight into its gravity and need for rehabilitation comfortably satisfy the Tribunal that suspending the Practitioner's registration, with or without a reprimand, would constitute an unacceptable risk to the health and safety of the public.
We cannot accept that anything short of cancellation of the Practitioner's registration or, if he is not registered when our decision is published, the alternate relief sought by the Commission, would adequately protect the health and safety of the public, or adequately send the appropriate messages to the medical profession and the public. In the circumstances the Tribunal will grant the primary alternate relief sought by the Commission.
It remains to consider whether an order should be made pursuant to s 149C(7) of the National Law prohibiting the Practitioner from applying for re-registration if he is registered on the date of our decision, or, if he is not, an order pursuant to s 149C(4) which would have substantially that effect.
In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said, at [22] that fixing a period within which re-registration may not be sought indicated the "minimum period within which the Tribunal considers the person should not be able to practise his or her profession" but "holds open the possibility that an application for re-registration thereafter will at least be considered".
In Health Care Complaints Commission v Reid [2018] NSWCATOD 162, the Tribunal said that an order under s 149C(7) of the National Law has three aspects: a. it provides for the safety of the public ensuring that only those practitioners fit to practise do so; b. it sets a period of time during which a Tribunal predicts, or attempts to predict, the time in which a practitioner may reasonably take steps to rehabilitate himself or herself; c. the authorities stress the deterrent aspect of the order by sending a clear message of denouncement of the conduct to other professionals.
In Qasim v Health Care Complaints Commission [2015] NSWCA 282, the Court of Appeal said that the matters to be taken into consideration when deciding whether to impose a period of non-review included the period of time likely to be required for the practitioner to change conduct so as to be competent to practise without risk to the health and safety of the public, and the practitioner's insight into his or her conduct.
The Commission sought a non-review period of two years. Inferentially, the Practitioner opposed any non-review period. Realistically, at 67 years of age, and despite his stated intentions, the Practitioner may have some years during which to again make a contribution to his patients and community as a medical practitioner, the years in which he might effectively do that are probably limited and declining.
The steps towards rehabilitation which the Practitioner has taken, and his prior good record suggest that, with appropriate education and reflection, the Practitioner could possibly satisfy the Tribunal that his re-registration would not constitute an unacceptable risk to public health and safety after the expiration of a non-review period of 12 months.

The appropriate orders

The uncertainty with respect to the Practitioner's registration as a medical practitioner creates a dilemma for the Tribunal in relation to the appropriate form of its orders. Arguably, the Tribunal could permissibly make orders cancelling the Practitioner's registration pursuant to s 149C(1)(b) of the National Law, and imposing a non-review period of 12 months pursuant to s 149C(7) if he is registered as at the date of its orders, and make orders pursuant to similar effect s 149C(4)(a) and (b) if the Practitioner is not registered as at that date. Nothing to which we have been referred by the parties, or discovered for ourselves suggests that the Tribunal cannot make orders in the alternative in those terms.
Not having been informed that the Practitioner is not currently registered pursuant to his undertaking to the Tribunal, the Tribunal prefers to make orders which are unequivocal and clearly within power cancelling the Practitioner's registration pursuant to s 149C(1)(b) and imposing a non-review period of 12 months pursuant to s 149C(7) of the National Law.
Although we have no reason to believe that, contrary to his undertaking, the Practitioner has surrendered his registration without informing the Commission and the Tribunal, rather than risk uncertainty with respect to the jurisdiction of the Tribunal to make orders pursuant to s 149C(4)(a) and (b) of the National Law, we will reserve liberty to the Commission to apply on 48 hours' notice in the event that the Practitioner is not registered as at the date of the Tribunal's decision.

Orders

Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) the registration of Brian Lewis Neale is cancelled.
Pursuant to s 149C(7) of the Health Practitioner Regulation National law (NSW) an application for review of order 1 may not be made until after the expiration of twelve months from the date of these orders.
Grant leave to the Applicant to apply on 48 hours' notice in the event that the Respondent's registration has been surrendered or expired prior to the date of these orders.
A party seeking an order for the costs of these proceedings file and serve written submissions not exceeding 7 pages in length in support of such application within 21 days of these orders, or within such further period as the parties may agree.
A party opposing an order for the costs of these proceedings file and serve written submissions not exceeding 7 pages in length in support of such opposition within 42 days of these orders, or within such further period as the parties may agree.
A party filing written submissions with respect to costs include in such submissions any matters relied upon in opposition to an order dispensing with a hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (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: 11 September 2023

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