Health Care Complaints Commission v Neale

NCAT Occupational|2023-02-08|Before: Associate Prof P

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 publication of the name of the patient referred to in this decision is prohibited

REASONS FOR DECISION

By Amended Complaint filed on 3 February 2023, the Health Care Complaints Commission ("the Commission") sought findings of unsatisfactory professional conduct and professional misconduct against Dr Brian Lewis Neale ("the Practitioner") and orders that the Practitioner's registration as a medical practitioner be cancelled pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) ("National Law") with a non-review period of that order of two years. The Commission also sought that the Practitioner pay its costs of the proceedings.

Agreed facts

The parties tendered an Agreed Statement of Facts which recorded: "1 In 1979, Dr Brian Lewis Neale (the practitioner) obtained a Bachelor of Medicine/Bachelor of Surgery in Rhodesia (Zimbabwe). 2 In 1980-1981, Dr Neale worked as a general practitioner in Zimbabwe. 3 In 2001-2006, Dr Neale worked as a Psychiatry Registrar in Tasmania. 4 In 2006, Dr Neale completed a fellowship with the Royal Australian and New Zealand College of Psychiatrists. 5 In 2006-2009, Dr Neale worked as a staff Psychiatrist at Adult Community Mental Health Services in Tasmania. 6 In 2009, Dr Neale was first registered as a psychiatrist in NSW. 7 Over 2009-2015, Dr Neale worked as a staff specialist psychiatrist at the Manning Base Hospital in Taree. Dr Neale's role included adult inpatient unit, outpatient clinics, support of the Child and Adolescent Mental Health Team, supervision and training of a psychiatric registrar and junior medical staff, clinical supervision with the Community Mental Health Team. 8 In 2015, Dr Neale started working as a consultant psychiatrist at the Mayo Private Hospital and Clinic (the practice) in Taree. Dr Neale's role included adult inpatients, outpatient clinics, supervision of two psychiatric registrars. 9 On 31 May 2016, Dr Neale received a letter from [Patient A's GP] referring Patient A. Patient A was then 16 years old. 10 On 30 August 2016 Patient A attended her first consultation with the practitioner. 11 At this time, Patient A was also seeing a school counsellor … and receiving treatment from her psychologist …. 12 On 31 October 2016 Patient A attended a further consultation with the Practitioner, during the course of which inter alia Dr Neale used the Wender Utah Rating Scale to assess Patient A's attention deficits. 13 At around this time, Dr Neale referred Patient A to be tested for attention deficit and hyperactivity disorder, which was conducted … [a] clinical psychologist at Clinical Psychology Solutions in November 2016. 14 On November 2016, Dr Neale received a letter from … (the clinical psychologist), copied to [Patient A's GP] and [Patient A's psychologist], reporting that Patient A had completed the Test Of Variables of Attention (TOVA) reporting "significant attention deficits". 15 On 18 November 2016, Patient A attended a further consultation with Dr Neale during which time inter alia Dr Neale: 15.1 diagnosed Patient A with an attention deficit disorder; and 15.2 commenced Patient A on methylphenidate (Ritalin) 10mg (2 mane and 1 midi) and issued her with a prescription for 100 tablets (5 repeats); and 15.3 wrote [to Patient A's GP] inter alia informing her of his diagnosis of an attention deficit disorder and the commencement of Patient A on Ritalin. 16 Dr Neale did not, at this consultation, measure Patient A's blood pressure. 17 Between 18 November 2016 and May 2017, Patient A saw Dr Neale on a further three occasions, being 13 December 2016, 31 January 2017 and 28 February 2017. 18 On 23 March 2017, Dr Neale had discussions with [the school counsellor] concerning Patient A moving out of her parents' home and living independently. 19 On 3 April 2017, Dr Neale wrote to Centrelink supporting Patient A's decision to live independently. 20 On around 30 May 2017, Patient A attended a further consultation with Dr Neale during which time inter alia Dr Neale issued Patient A with a further script for Ritalin 10mg (100 tablets, 5 repeats, 2 mane and 1 midi). 21 On 1 August 2017, Patient A attended a further consultation with Dr Neale. Between 2 August 2017 and 18 August 2019, Patient A did not attend on Dr Neale. 22 On 23 April 2019, the Practitioner received a referral letter from Patient A's new GP …. 23 On 19 August 2019, Patient A recommenced attending on Dr Neale. Between 20 August 2019 and 31 August 2020, Patient A attended on Dr Neale on 7 further occasions, being 12 September 2019, 30 September 2019, 22 October 2019, 4 or 5 November 2019, 10 February 2020, 6 April 2020, and 4 May 2020. 24 The consultations on 30 September 2019 and 4 or 5 November 2019 were Telehealth consultations. 25 The consultations on 6 April 2020, and 4 May 2020 were via Skype. 26 Dr Neale did not prepare a file note for the 4 May 2020 consultation. During the hearing it was unclear whether Dr Neale conceded that he had not prepared a file note for the 4 May 2020 consultation although he admitted none was on the clinical file and he did not otherwise produce a file note for that occasion. 27 On either the 10 February 2020, 6 April 2020, or 4 May 2020 consultation, Patient A discussed her grandfather. 28 Dr Neale does not have a record of his discussion in his medical record for Patient A. 29 On 21 August 2020, Dr Neale unsuccessfully attempted to contact Patient A on two occasions on Skype. 30 On 1 September 2020, between 2.23 p.m. and 2.34 p.m. Dr Neale called Patient A on her mobile phone and had a conversation with Patient A (the "telephone call"). 31 Patient A did not have prior notice of the telephone call and it was not a scheduled appointment. 32 Patient A was, at the time, at a friend's house. 33 The parties are in dispute about the purpose of the telephone call. 34 However, Dr Neale accepts that he did not, in the course of the telephone call, properly or adequately explain the purpose and process of any treatment and did not confirm that Patient A understood and was ready to proceed. 35 Further, Dr Neale accepts that he did not give Patient A an opportunity to prepare herself for the discussion of sexual matters."

Principles governing the application - Stage 1

The principles governing Stage 1 of the proceedings are not in doubt and require only brief reiteration.
The Commission bears the onus of proof of each element of its complaints - the Practitioner does not have to prove anything. The factual content of the Commission's allegations must be established on the balance of probabilities and the question of whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10. The principles identified in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 apply (Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53), and require the Tribunal to be mindful of the nature and seriousness of the allegations to be proved, with the result that the Tribunal must be "comfortably satisfied" that the allegations are made out on the balance of probabilities.
In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA said at [14] that: "… in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision."
In A v N [2012] NSWSC 354 ("A v N"), Ward J (as Ward P then was) at [348] agreed with the statement by McClelland CJ in Equity (as his Honour then was) in Watson v Foxman (1995) 49 NSWLR 315 ('Watson') at 318 that: "'… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.'"
Her Honour further referred at [349] to McClelland CJ in Equity's statement in Watson at 318-319 that: "'Each element of the cause of action … must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding: Helton v Allen [1940] HCA 20 [1940] 63 CLR 69 at 712. Considerations of the above kind can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action …, in the absence of some reliable contemporaneous record or other satisfactory corroboration.'"
Ward J added in A v N at [350] that: "[Where evidence is given long after the occurrence of the events in question] … [i]t is by no means unlikely that [the witness] will have put their own gloss or interpretation on events in which they were emotionally involved and that, by now, those perceptions will be reinforced in their minds so that they will be convinced of the truth of those perceptions. Not only … do memories fade with time, so also may particular perceptions or impressions of events may become accepted as fact …"
In Campbell v Campbell [2015] NSWSC 784, Sackar J (at [76]) quoted the principles set out by Hallen J in Evans v Braddock [2015] NSWSC 249 at [74] that: "'A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous documents, which will often provide valuable, and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation …. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable facts, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine….'"
In Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146, the Tribunal recorded at [105] that: "… the authorities have consistently cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on demeanour. That is because a witness may, for example, appear evasive or combative for reasons that are unrelated to the honesty or reliability of their evidence. Likewise, a witness may give evidence in an apparently forthright and persuasive manner and yet their evidence may have been found to be unreliable or, worse, dishonest. Scientific research has cast doubt on the ability of anyone, including decision-makers, to distinguish truth from falsehood on the basis of appearances: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [30]-[31]. Nevertheless, as the High Court made clear in Fox v Percy at [41], demeanour evidence, if not decisive, remains relevant to the assessment of the credibility of witnesses, especially when supported or contradicted by other forms of evidence."
As the authorities recognise, forgetfulness, contradictions or inconsistencies in testimony, not involving matters of substance, are not indicative of falsity on the part of witnesses, but may assume significance when the reliability of the witnesses' recollection of disputed events is evaluated.
The Commission's complaints alleged that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law in that he has engaged in "Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience."
The Commission also alleged that the Practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine pursuant to s 139B(1)(l) of the National Law.
The terms "improper" and "unethical" conduct are not defined in the National Law, but have been given their ordinary meaning by the Tribunal in numerous decisions in proceedings pursuant to the National Law. Doing so is in accordance with Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. The Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners etc, or abnormal or irregular" was adopted in Health Care Complaints Commission v Ross [2019] NSWCATOD 153 at [59]. In R v Byrnes & Hopwood (1995) 183 CLR 501 at 513-514; [1995] HCA 1 the High Court said that "improper" was an "indefinite term", and, although "not a term of art", the issue of impropriety needed to be determined by reference to the "particular duties and responsibilities of the particular officer whose conduct is impugned", which is not subjectively determined, but by reference to a "range of considerations that may be taken into account".
The dictionary definition of "unethical" as "contrary to moral precept; immoral; in contravention of some code of professional conduct" was adopted in Ross at [59] and in Health Care Complaints Commission v Little [2016] NSWCATOD 146.
The National Law does not define professional misconduct. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 ("Chen"), Basten JA said at [19] that 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." At [20], Basten JA said: "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 judgement 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 judgement to be made by the Tribunal as to the nature and seriousness of the conduct. …"
The Tribunal undertakes the determination of the Commission's Amended Complaint in the light of, and by reference to, the foregoing principles.

Complaint 1

Complaint 1 alleged that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law. The background to the Complaint recorded: "The drug methylphenidate (Ritalin) is a drug of addiction, within the meaning of the Poisons and Therapeutic Goods Act 1996 (PTGA), being a drug contained within Schedule 8 of the Poisons List proclaimed under section 8 of the PTGA ("Schedule 8 drugs")."
For the purpose of s 139B(1)(a) of the National Law, the Commission relied upon particulars 1 and 2 of its Amended Application "individually or in combination".
The particulars of Complaint 1 alleged that: "1 On 18 November 2016, and 29 or 30 May 2017, the practitioner inappropriately prescribed methylphenidate (Ritalin) to Patient A and in doing so, failed to: a. undertake an appropriate assessment of Patient A before prescribing the medication to her, including: i. obtaining informed consent; ii. excluding a range of physical health comorbidities; iii. considering the potential for abuse and dependence, and possibility of diversion; iv. considering the potential for adverse effects, including interactions of the drug with other drugs. 2 On 18 November 2016 and 29 or 30 May 2017, the practitioner inappropriately prescribed methylphenidate (Ritalin) to Patient A which: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the purpose for which it was prescribed, the quantity prescribed, dosage prescribed and the frequency and duration of prescribing by the practitioner."
By his Reply, the Practitioner admitted the background pleaded by the Commission, but denied the particulars of Complaint 1 "in its entirety". The Practitioner said in relation to the particulars: "1 Dr Neale admits prescribing Methylphenidate to Patient A on 18 November 2016 but denies that such prescription was inappropriate, and otherwise denies particular 1 of Complaint 1 (a) denied in its entirety. 2 Dr Neale admits prescribing Methylphenidate to Patient A on 18 November 2016 but denies that such prescription was inappropriate, and otherwise denies particular Two of Complaint 1 (a) denied in its entirety (b) denied in its entirety."
In his letter to the Commission of 10 January 2022 (HCCC1 Tab 28) under the heading "Prescription of Ritalin" the Practitioner said: "The scientific evidence for the management of ADHD is overwhelmingly in favour of stimulant medication as opposed to other medications and psychological strategies. As [Patient A] was close to her HSC years, I felt that the most effective treatment available was warranted to try to keep her in school and to succeed. As to my standard practice with diagnosis (or differential diagnosis) and prescription of treatment, when I get patients referred to me by their GPs: 1. I undertake an assessment; 2. I arrive at a diagnosis (or differential diagnoses); 3. I advise the patient of the diagnosis and discuss it if they have questions; 4. I make recommendations as to the ways in which it might be managed and the most appropriate treatment; 5. Together we agree as to how to proceed. It is a mutual process. I then talk about the most common side effects and end by asking the patient if the patient wants to trial the medication that is my method of obtaining informed consent, I do not ask them to sign a form but all the above steps have been undertaken and that they give consent for me to prescribe the medication. I have had patients who were reluctant to take medication for various reasons, I encourage them to take their time in thinking about it and possibly doing their own research. I often give them a prescription which they can use if they decide to go ahead with the medication or we can discuss it further at the next appointment. When I start any patient on any stimulant medication, they all get the same advice: 'Start on 1 tablet in the morning; when you are satisfied you are tolerating it well, go to 1 in the morning and one at midday; and if that is tolerated well go to 2 in the morning and 1 at midday if necessary. Stay on that dose until reviewed. Call the office and leave a message for me if you have any concerns.' I would have and did encourage in my standard practice with [Patient A] both with respect to her diagnosis and the prescription of Ritalin. I accept that my medical records do not document each of these matters, and this is an issue that I have taken steps to correct going forward. As to the script issues, I always prescribe 100 tabs with 5 repeats with a repeat interval of 1 month. These drugs are very tightly controlled in terms of repeat intervals etc. The prescription is taken to the Pharmacy and is retained by that Pharmacy without the possibility of transferral. If patients want to access their script early it can only be done if I personally authorise the Pharmacy to do so. If I want to stop the medication I phone the Pharmacy and advise them to destroy the script which has only ever happened a couple of times. Unfortunately, [in] Taree the pressure on our services is not conducive to reviewing patients as soon or as frequently as we would like. Pre-COVID I used to tell patients to expect a phone call from me after about 7 to 10 days to briefly discuss how they were going, this was not a booked appointment and would be done when I had free time between patients and patients/Medicare were not charged for the service. During the pandemic I was able to invoice for these services. Now with the restrictions to my practice which I have strictly adhered to, I am unable to make these check up calls and will consider my prescription practices to suit. In relation to the specific case of [Patient A], I prescribed Ritalin for the first time on 18 November 2016. [Patient A] had a booked appointment on 12 December 2016 which she cancelled by text message. Sharon Merric (my receptionist) tried to phone her to reschedule but reported there was no reply. However, contact was made eventually because another appointment was made and I saw her on 13 December 2016 at which time [Patient A] reported benefit from the medication and no problems. Accordingly, she was advised to continue with Ritalin 10mg 2 in the morning and 1 at lunchtime."
In his supplementary statement of 6 February 2023 (R2), the Practitioner reiterated his "standard practice" with respect to prescribing Ritalin to a patient for the first time, and referred to his "invariable practice" with respect to monitoring patients for "any evidence of diversion", and his "standard practice" in relation to consideration and discussion with patients of possible side effects of taking Ritalin.
The Practitioner said with respect to Patient A that he had considered the "risk of appetite suppression and weight loss" but that when he first prescribed Ritalin for Patient A, who was then 17 years and 5 months old, he considered that "appetite suppression was unlikely to be a problem for her". The Practitioner said that the risks of insomnia, constipation, tics, abnormal movements and possibly psychosis if the medication was taken in excess did not cause him concern with respect to Patient A who "did not have any previous history of drug use when I first reviewed her in November 2016". The Practitioner acknowledged that it was: "… best practice when prescribing Ritalin to take a thorough history from a patient in relation to previous cardiovascular illness, to have them undergo an ECG, and to confirm with their general practitioner (GP) that there are no cardiovascular issues to be aware of. I accept that I was remiss in failing to check [Patient A's] blood pressure prior to prescribing Ritalin for her. At that time, I was operating under the assumption that her GP had checked and would continue to monitor her blood pressure routinely. In this regard, I noted that her GP's … referral to me dated 31 May 2016 noted that there was no relevant past medical history recorded for [Patient A]. At the time, I took this referral letter at face value."
The Practitioner referred to changes that he has made since Patient A's complaint. Under the heading "Failure to contact [Patient A's] school, counsellor and family members prior to prescribing Ritalin", the Practitioner recorded his understanding that Patient A's "family situation was difficult and she had a strained relationship with her parents". The Practitioner further stated in that regard that, "from the inception of the therapeutic relationship", he had understood that Patient A's father was "opposed to any mental health diagnosis or treatment, and that her mother was not on speaking terms with her, and indeed had barely spoken to her in the preceding months". The Practitioner recorded that while he first met Patient A's parents after she commenced on Ritalin on 10 April 2017, his "clear impression then confirmed that her parents were not supportive of any mental health intervention". The Practitioner said that in those circumstances "any perceived benefit from engaging her parents in clinical decisions regarding [Patient A's] treatment appeared limited. I was also of the view that [Patient A] had the capacity to make appropriate clinical decisions for herself."
The Practitioner referred to Patient A having made "repeated references" to "poor performance at school and difficulties with concentration". The Practitioner accepted that he "did not seek to collaborate [sic] [Patient A's] account of her situation at school when assessing whether it was appropriate to prescribe Ritalin for her, and that I trusted that she was providing a sufficiently accurate account of her circumstances."
The Practitioner was cross-examined in relation to this Complaint. As Counsel for each party provided the Tribunal with comprehensive and helpful written submissions referring to the written and oral evidence of the Practitioner and the experts retained by each of the parties, which recorded the matters upon which each placed particular reliance, we will deal with aspects of the evidence of those witnesses emerging from cross-examination in our consideration of the Complaint.
The Commission relied upon a report of Dr Danny Sullivan ("Dr Sullivan"), a Consultant Forensic and Adult Psychiatrist, dated 8 November 2021 (HCCC1 Tab 10). There was no challenge to Dr Sullivan's qualifications or expertise. Dr Sullivan recorded (HCCC1 Tab 15D) that the opinions recorded in his original report were unchanged by any matters raised in the report of Dr Jeremy O'Dea (Dr O'Dea) (R3) upon which the Practitioner relied.
Dr Sullivan stated by way of introduction to his expert opinion (at par 25): "Dr Neale's overall care and treatment of [Patient A] between 30 August 2016 and 4 May 2020 was generally adequate, but with some shortcomings. Dr Neale appeared to have taken a comprehensive history, formulated diagnoses, and relied on evidence-based treatments for diagnosed conditions (with some reservations noted below). There was evidence of communication to referrers and relevant third parties. Dr Neale reviewed treatment and adjusted it according to response. He referred to other practitioners to support diagnoses or engage in psychological treatment. The frequency of follow up was generally adequate although a process for following up missed appointments was unclear. The quality of medical records was adequate for history, but documentation of treatment plans was inadequate, falling marginally below the standard reasonably accepted by a practitioner of equivalent training and experience. However, in individual private practice there is perhaps less need for records to communicate to peers."
In respect to the request to "provide your opinion on the adequacy and appropriateness of Dr Neale's prescribing of Ritalin 10mg for [Patient A's] ADHD on 18 November 2016 and 29 May 2017", Dr Sullivan stated (at pars 30-31): "30 Prescribing of methylphenidate (Ritalin, a stimulant medication) appeared based on a partial assessment involving application of a rating scale and referral to a psychologist for further testing. The prescription of methylphenidate requires exclusion of a range of physical health comorbidities which might be exacerbated by stimulant medication; consideration of abuse and dependence potential and of the possibility of diversion; and consideration of adverse effects including drug interactions such as with fluoxetine. There is no documentation of these considerations or of the process of informed consent. 31 Furthermore, an initial prescription with 100 tablets and 5 repeats is problematic due to the risk of abuse, overdose and diversion. Best practice would rely upon an initial prescription and review within weeks to ascertain effectiveness and determine whether dose titration or timing required adjustment disorder with mixed anxiety and depressed mood".
Dr Sullivan was of the opinion (at par 33) that the Practitioner's "prescribing of methylphenidate fell significantly below accepted practice standards".
In his report of 18 November 2022 (R3), Dr O'Dea expressed his opinion (at par 26) that the Practitioner's prescription of Ritalin for Patient A "was clinically appropriate in the circumstances, having regard to the purpose for which it was prescribed, the quantity prescribed, dosage prescribed and the frequency and duration of prescribing".
Dr O'Dea further stated (at par 27) that whilst the Practitioner's record keeping in relation to the prescription of Ritalin for Patient A was "limited, he documented a history of symptoms of ADHD; completed a WURS himself; and referred [Patient A] to a psychologist for assessment of ADHD, who performed a TOVA; with both rating scales supporting a clinical diagnosis of ADHD; and communicated with the referring medical practitioner regarding his diagnosis and treatment in this regard".
Dr O'Dea noted (at pars 28-29) that the Practitioner: "28 … did not record having attempted to collect collateral information from [Patient A's] parents or her schools, in formulating his diagnosis of ADHD and prescribing Ritalin. I note his explanation for not seeking collateral information from [Patient A's] parents. As [Patient A] was 17 years and 5 months of age at the time and notwithstanding Dr Neale's concerns regarding [Patient A's] relationship with her parents, it would be considered best practice to seek such collateral information, and to discuss the diagnosis and treatment with [Patient A's] parents regardless. 29 I also note that Dr Neale did not make reference in his clinical notes to a general medical history or a physical examination of [Patient A]; that should be considered in the prescription of psychostimulant medications, due to contraindications and precautions with the prescription of Ritalin. Whilst it would not have been appropriate for Dr Neale to conduct a physical examination of [Patient A] himself, best practice would have been to clarify [Patient A's] physical medical status with her general medical practitioner prior to prescribing Ritalin."
Dr O'Dea referred to "best practice" with respect to recording consent (at par 31) and to commencing Ritalin (at par 32) "at a relatively low dose, such as 10mg daily, and to titrate the dose slowly and steadily to a therapeutic level, with regular review in the early stages of this process; this can and does often have practical problems, and may not be readily feasible in a busy rural psychiatric practice".
Dr O'Dea was thus of the opinion (at par 32) that: "… commencing at a dose of 30mg daily in a 17 year old female, such as [Patient A], under such circumstances, with planned reviews as detailed in Dr Neale's report dated 10 January 2022, addressed to the Health Care Complaints Committee, may not be considered inappropriate clinical practice."
Dr O'Dea added (at par 33) that: "Writing an initial script for 100 tablets of Ritalin, with 5 repeats, may also not be considered inappropriate practice under the circumstances. Whilst Dr Neale could have documented that the repeats be dispensed no more frequently than every month; as detailed by Dr Neale in the report he prepared dated 10 January 2022 and addressed to the Health Care Complaints Committee, the pharmacist would usually not dispense the repeats at an increased frequency without reference to the prescribing psychiatrist."
In its closing submissions, the Commission submitted (at par 9) that the evidence established that on 18 November 2016, when the Practitioner started prescribing Ritalin to Patient A: "a. Patient A was then 17 years old. b. The practitioner had previously received a referral letter from Patient A's GP which reported feeling down, self-harm and suicidal thoughts. The GP letter did not mention Patient A's weight or blood pressure. c. The practitioner knew that Patient A was seeing a school counsellor … and receiving treatment from her psychologist … the practitioner had not received or requested any information from Patient A's school counsellor or psychologist; d. The practitioner did not sight Patient A's school reports and did not seek to collaborate the Patient A's account of her situation at school. e. The practitioner did not seek Patient A's consent to obtain any collateral information from Patient A's school counsellor, psychologist or family before prescribing. f. The practitioner knew that methylphenidate (Ritalin) may not be suitable for some patients with conditions including high blood pressure and depression. g. The practitioner knew that methylphenidate (Ritalin) posed a potential risk of side effects, including allergic reaction, depression, a decreased weight and suicidal ideation. h. The practitioner prescribed a total quantity of 600 tablets of Ritalin. i. The practitioner knew that stimulant medication should be commenced at a low dose then titrate, due to the risks of possible side effects and allergic reaction. j. The practitioner knew, generally, that Ritalin had a street value. k. The practitioner knew that methylphenidate (Ritalin) may be abused or diverted. l. The practitioner continued fluoxetine (20mg). m. The practitioner knew that co-prescribing methylphenidate and fluoxetine poses a potential risk of drug interaction. n. The practitioner made a handwritten note including: 'Difficult situation at home … aligned with (F) but does not believe in MH/meds … script: Ritalin 10mg TT plus T x 100 x 5 cont Fluoxetine 20' o. The practitioner did not record consideration of any physical health comorbidities, potential for abuse, dependence and diversion, adverse effects or the process of informed consent. The practitioner did not record mental state examination, discussion of risks, collateral information, rationale for medication choices, consideration of alternate courses of action, reasoning about treatment choices, contingency plans, risks and benefits, potential adverse effects and compliance. The practitioner did not measure or record Patient A's blood pressure or weight. The practitioner was remiss in failing to check the patient's blood pressure before prescribing. p. The practitioner typed a letter to Patient A's GP … but did not ask Patient A's GP to monitor Patient A's weight, blood pressure or potential adverse effects. The practitioner did not copy the letter to Patient A's psychologist, notwithstanding her request. q. The practitioner now concedes that he could have prescribed a lower starting dose or no repeats."
The Tribunal finds each of those facts to have been established. To the extent that they were not admitted by the Practitioner, the evidence identified in Counsel for the Commission's submissions provides an evidentiary basis for so finding.
It was further submitted by the Commission (at par 10) that: "On 29-30 May 2017 when the practitioner prescribed further Ritalin: a. Patient A was still 17 years old. b. The practitioner increased Fluoxetine (40mgs) and prescribed further Ritalin. c. The practitioner wrote an authority script dated 30 May 2017 prescribing Ritalin 10mg tablets, 3 tablets each day, in a quantity of 100 tablets, with 5 repeats. d. The practitioner did not sight Patient A's school reports and did not seek Patient A's consent to obtain any collateral information from Patient A's school counsellor, psychologist or family before prescribing further Ritalin. e. The practitioner made a handwritten record dated 29 May 2017 (top) and 30 May 2017 (bottom): '29.5.17 moving into friends families' house Report 2D's 2E's - gave parents all she could hear was (M) complaining to (B) about it > doing Pathways course Drama + Entertainment means extra year at school ↑ fluoxetine to 40mg Auth script x 56 x 5 Pharmacy: Guardian (near Coles, Taree) Ritalin = 10mg TT + T Auth script x 100 x 5 30.05.17' f. The practitioner did not record consideration of any physical health comorbidities, potential for abuse, dependence and diversion, adverse effects or the process of informed consent. The practitioner did not record mental state examination, discussion of risks, collateral information, rationale for medication choices, consideration of alternative courses of action, reasoning about treatment choices, contingency plans, risks and benefits, potential adverse effects and compliance. The practitioner did not measure or record Patient A's blood pressure or weight. g. The practitioner did not type any letter to Patient A's GP or psychologist and did not ask Patient A's GP to monitor Patient A's weight, blood pressure or potential adverse effects. h. The practitioner now concedes that the GP would be unaware he prescribed an additional 600 tablets of Ritalin and he could have prescribed no repeats. i. The practitioner typed a record dated 29 May 2017: "Seen on 10 April with parents - both angry about my support of [Patient A] moving out of home. But interactions in the room, esp on part of mother, reinforced my opinion."
To the extent that they may not have been admitted, the evidence establishes each of the matters relied on by the Commission.
The Commission referred (at pars 14-16) to relevant codes of conduct, codes of ethics and guidelines with respect to Ritalin. Although those documents are of assistance, as will be seen, the issue ultimately becomes the extent to which the "shortcomings", as the expert evidence referred to them, of the Practitioner's conduct with respect to the matters particularised in the Complaint is conduct which fell "significantly" below the standard reasonably required.
It was submitted by the Commission (at par 17) that the Tribunal should accept Dr Sullivan's expert evidence as he has "ample relevant experience, was briefed with the relevant material, clearly explained his reasoning and maintained his criticism in oral evidence". With respect, each of those factors also applied to Dr O'Dea's evidence.
The Commission relied (at par 18) on the evidence of Dr O'Dea criticising the Practitioner in the five respects there identified. Not insignificantly, each of the shortcomings identified by Dr O'Dea with respect to the conduct of the Practitioner was by reference to "best practice". The Commission submitted (at par 19) that "after being taken to the agreed facts and the practitioner's oral concessions, Dr O'Dea then, appropriately, increased his criticism in some respects during cross-examination" and was "critical of the practitioner prescribing Ritalin without attempting to obtain collateral information from Patient A's school or treating psychologist and was critical of prescribing Ritalin without obtaining Patient A's blood pressure or asking the GP to monitor Patient A's blood pressure." The evidence provides a foundation for those contentions.
In reliance upon the matters which it submitted emerged from the evidence, which the Tribunal accepts the evidence established, the Commission submitted that the Complaint was established. The Commission submitted that any attempt by the Practitioner to rely upon a lesser standard because he was engaged in rural practice should be rejected, and that the Tribunal should apply the same underlying general standard of care in its evaluative determination, irrespective of where the Practitioner was in practice: Health Care Complaints Commission v Simonson [2017] NSWCATOD 87. At least for the purposes of a Stage 1 hearing, the Tribunal agrees with that submission.
In submissions on behalf of the Practitioner, his Counsel noted (at par 3) that Dr Sullivan's criticisms with respect to the Practitioner's diagnosis of ADHD were not the basis of a separate complaint. In closing submissions, Counsel for the Commission properly acknowledged that to be the case.
Counsel for the Practitioner submitted (at par 4) that he had been "forthright in admitting that he was remiss in failing to take or monitor blood pressure, and at the relevant time proceeded on the assumption that Patient A's GP would do so, on being informed of the prescription of Ritalin". It was, properly, acknowledged that, in view of the qualifications to Dr O'Dea's report emerging from his cross-examination, criticism of the Practitioner on the basis that he should have obtained "collateral information" was reasonable.
Counsel for the Practitioner noted that Drs Sullivan and O'Dea disagreed as to whether corroborative information was always essential in the context of prescribing Schedule 8 medication (at par 7).
It was submitted on behalf of the Practitioner (at par 8) that Dr O'Dea had suggested that, though desirable, "obtaining collaborative (sic) information was not necessarily practicable". As is not in dispute, obtaining such information from Patient A's parents was problematic.
It was submitted on behalf of the Practitioner (at par 9) that he had sought school reports but was advised by Patient A that there were difficulties in obtaining this due to her home situation. There is no reason to doubt the Practitioner's evidence in that regard. It is consistent with other evidence with respect to the attitude of Patient A's parents to her difficulties and to obtaining psychiatric assistance to address them.
A number of submissions were made (at pars 9-11) with respect to whether the Practitioner could, as he submitted he could, have obtained Patient A's school records. The Tribunal is unable to determine whether the Practitioner could have accessed Patient A's school records, the relevant matter being that the Practitioner did not seek access to them. A number of submissions were made with respect to the Practitioner's attempts to speak to Patient A's parents (at pars 12-13). Objectively, it is difficult to suggest what more the Practitioner could reasonably have done in that regard, or that anything which he might have attempted to do would have been successful.
The Practitioner relied upon the fact that, at the relevant time, Patient A was "just under the age of 18". That is, in our view, relevant to assessing the seriousness of the Practitioner's conduct in the respects in which it fell below "best practice".
The Practitioner relied significantly on what was submitted to be a relevant distinction between the practices of Dr Sullivan and Dr O'Dea, and what was submitted, in substance, to be the more practical approach of Dr O'Dea as opposed to the purer approach of Dr Sullivan.
Not insignificantly, other than potentially school records, the evidence does not suggest what other corroborating or collateral information the Practitioner might reasonably have sought or obtained. The Practitioner's evidence with respect to Patient A's presentation, and the testing results obtained, whatever the deficiencies in any of those tests, provided support for the Practitioner not needing to be alert to the risks of abuse or diversion when Ritalin was prescribed.
The Practitioner's case was encapsulated in the submissions (at pars 20-21)that: "20 … Dr O'Dea's opinions are to be preferred, reflecting as they do a more realistic standard. In the alternative however, and if the Tribunal cannot resolve the dispute in opinion, then it would be unreasonable to find that Dr Neal was for this reason below standard given a legitimate dispute among expert views as to the appropriate standard. 21 Finally and without being critical, Dr Sullivan's emphasis on the need for independent corroboration is perhaps influenced by the nature of his practice, which he identified as almost wholly criminological."
The Practitioner relied on his evidence with respect to his "usual practice" and to his assertion that he "has never deviated from his usual practice" (at par 25).
The Tribunal is reluctant to place reliance upon supervision reports which postdate Patient A's complaint. In our view, although there may be cases where doing so would be of assistance, the present Complaint particularises conduct alleged to have occurred on two specific dates. What the Practitioner did or did not do after the complaints were made does not assist us in the present circumstances. In any event, there is, as suggested during oral submissions, something of a "double-edged sword" risk in having regard to post-complaint conduct - the extent to which a practitioner has changed her/his practices may suggest that previous practices were below the requisite standard.
Although, as will be seen, the veracity of the evidence of the Practitioner in relation to Complaint 2 warrants careful scrutiny, the absence of challenges to the credibility of his evidence with respect to Complaint 1 militates against finding that, although he did not document a number of the matters which he asserted that he had discussed with Patient A, or considered, the Practitioner would have done those things in accordance with his invariable practice.
As submitted on behalf of the Practitioner, the admissions made by the Practitioner support accepting his evidence with respect to his usual practice. As also submitted on behalf of the Practitioner, it is significant that the difference of opinion between the eminent experts who have given evidence in this matter relates more to the degree to which the conduct of the Practitioner fell below the requisite standard than to whether it revealed "shortcomings" or something less than "best practice", which it did.
With respect to the submissions on behalf of the Practitioner, the Tribunal does not need to prefer the opinions of Dr Sullivan to Dr O'Dea, on any of the grounds asserted by each of the parties. Having regard to the qualifications and experience of each expert, doing so would involve an impermissible measure of arbitrariness. We cannot reject the opinion of either expert.
The standard of proof is relevant in this regard. As is not in doubt, the Commission bears the onus of establishing each element of the Complaint to the comfortable satisfaction of the Tribunal. The Tribunal is satisfied that, in the respects which were identified and agreed upon by Dr Sullivan and Dr O'Dea, and taking into account concessions appropriately made by each of them in cross-examination, the conduct of the Practitioner fell below the standard reasonably expected of him. We are not comfortably satisfied, however, that it fell significantly below that standard.
In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, the High Court said that where direct proof is not available "it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture". In Marshall v Prescott [2015] NSWCA 110 at [83], Beazley P (as Her Excellency then was), with the concurrence of Macfarlan and Emmett JJA agreed with that observation. We find ourselves unable to prefer the evidence of either expert to that of the other expert beyond the level of "conjecture".
Although the Complaint pursuant to s 139B(1)(l) of the National Law is directed to different conduct, having regard to the definitions of improper and unethical conduct to which we have earlier referred, the Tribunal is unable to be comfortably satisfied that the Practitioner is guilty of such conduct. The first Complaint is accordingly not made out.

Complaint 2

Complaint 2 of the Commission's Amended Complaint alleged that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law in that he engaged in "conduct that demonstrated that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience", and was improper or unethical conduct relating to the practice or purported practice of medicine pursuant to s 139B(1)(l) of the National Law.
The particulars of Complaint 2 alleged: "1. On 1 September 2020 between approximately 2:23pm and 2:34pm 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 the conversation was likely to cause Patient A psychological harm and/or distress. 2. On 1 September 2020 between approximately 2:23pm and 2:34pm, 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 in the Doctor-Patient Rrelationship" issued in December 2018."
By his Reply, the Practitioner admitted engaging in unsatisfactory conduct by reason of the facts admitted with respect to particular 1 of Complaint 1, but otherwise denied engaging in the conduct alleged in particulars 2 and 3 of this Complaint.
The Practitioner said with respect to the particulars of Complaint 2: "1. Dr Neale admits making "the telephone call" (as defined) but denies engaging in the conduct alleged in particular 2 below. Dr Neale engaged on the day in question in a "role play" with Patient A, with the intent of assisting Patient A with developing assertiveness against sexually inappropriate behaviour, in the specific context of prior disclosures by Patient A of inappropriate behaviour by her grandfather. Dr Neale articulated at the commencement of the call his intent to perform a role play but accepts that Patient A was insufficiently prepared for such role play; may not have appreciated the exercise being performed; and the manner and execution of the role play was inappropriate." a. Admitted. b. Admitted. c. Admitted. (Although, during the course of the hearing, the practitioner denied that he had said to Patient A words to the effect that he had "a lot of money".) d. Denied, in so far as it is alleged that Dr Neale did not hold a valid clinical purpose in undertaking "the telephone call" (as defined). Dr Neal otherwise admits that the manner in which the conversation occurred failed to serve a valid clinical purpose. e. Dr Neale admits that he should have known that the "telephone call" (as defined) in the manner in which it was executed, was likely to cause Patient A psychological harm and/or distress but denies having such knowledge at the time of "the telephone call" (as defined). 2. Denied. Dr Neale engaged on the day in question in role play with Patient A, with the intent of assisting Patient A with developing assertiveness against sexually inappropriate behaviour, in the specific context of prior disclosures by Patient A of inappropriate behaviour by her grandfather. Dr Neale articulated at the commencement of the call his intention to perform a role play but accepts that Patient A was insufficiently prepared for such role play; may not have appreciated the exercise being performed; and that the manner and execution of the role play was inappropriate. a. Dr Neale admits that words to the effect were said but denies that they constituted a proposition by Dr Neale to Patient A, and repeats [2] above. b. Dr Neale admits that words to that effect were said, but denies that they constituted a proposition by Dr Neale of Patient A, and repeats [2] above. c. Dr Neale admits, in relation to subparagraphs (i) and (ii), that words to that effect were said, but denies that they constituted a proposition by Dr Neale to Patient A, and repeats [2] above. (It should be noted that during the hearing the Practitioner denied having said that he had "a lot of money" to Patient A.) d. Dr Neale admits that words to that effect were said, but denies that they constituted a proposition by Dr Neale to Patient A, and repeats [2] above. e. Dr Neale does not admit this particular. f. Denied in its entirety. 3. Denied in its entirety. Dr Neale repeats and relies on [2] above."
As is apparent from the Practitioner's Reply, save in one respect, each of the statements allegedly made by him during the telephone call were admitted. As the Practitioner's Counsel suggested early in the hearing, and Counsel for the Commission properly agreed, the "context" in which the words were said was controversial, and the resolution of that controversy was pivotal to the findings of fact which would inform the Tribunal's determination of this Complaint.
On the same day as the telephone call, Patient A made a handwritten note of what she said had occurred (HCCC1 Tab 4A). In her note Patient A wrote: "At 2.23 p.m. Dr Neale called me just checking in with how I've been because I had missed our previous appointment. He asked about my mental health and my medications as per usual with our calls. At the end of the call he asked if I would do him a personal favour. Thinking he meant call the office or something like that. He then asked "Will you have sex with me?". I laughed thinking he was joking in reference to another relative we had disgussed [sic] before. I said "no, I'm good". He then began to mention how sometimes younger women can be attracted to older men and asked if I was attracted to him. Again I said no still hoping it was some kind of joke. He started to mention he had money and we could do some kind of trade to do with it and I kept to my point of "no, I'm good". He ended it with "I thought I'd just ask, anyway … forget I said anything and I'll just go back to being your nice and caring psychiatrist take care [Patient A]" I said bye and the call ended. I wasn't sure if DR/Patient confidentiality worked both ways so I asked my friend if it was something I was allowed to talk about. I mentioned what happened and we talked to their mum who also happened to see Dr Neale and encouraged me to report him for it. I feel great betrayal of trust and hurt because he was my favourite DR to see. Same with my friends mum who has been seeing him for about 13 years and I've been seeing him since I was 16, so about 5 years. Before mentioning the sex stuff between my personal life things he asked if I was around anyone and if they could hear what we were talking about. I didn't think much of it at the time because psychiatrist conversations are very personal."
It is not in doubt that the telephone call was of 11 minutes 23 seconds duration (HCCC1 Tab 4B).
Patient A gave a statement to the Commission on 18 June 2021 (HCCC1 Tab 6). The statement was substantially in accordance with her statement made on the day of the telephone call. Patient A said in her June 2021 statement (at pars 12-20): "12. The telephone call started like a normal call that I would receive from Dr Neale and lasted approximately 10 minutes. During the call, he asked me the same couple of questions that he would ask me every time, including "how do you think you're doing?", "how do you think your medication is going?", "has anything changed?" and "how are you feeling?". 13. I remember telling Dr Neale that I was good because my friends had come back from Sydney to escape Covid and it was the first time all my friends were in the same place. 14. At the end of the telephone call, Dr Neale asked me to do a favour for him. I thought he was going to ask me to go (to) the office to sign some forms, pick something up, or collect a prescription. 15. My initial reaction was to laugh because I thought that he was joking and I'm an awkward person, who laughs when something like that happens. 16. Dr Neale didn't drop the subject and kept pushing it. He offered me money in return for sex, said to me that some younger girls find older men attractive and that he had a lot of money. 17. Dr Neale kept on pushing and I kept on telling him that I was not interested. He then suddenly dropped the subject and told me to forget that he had said anything, and he will go back to being my nice and caring psychiatrist. 18. During the telephone call Dr Neale did not say anything to me about a role play, or that we were going to do a role play. 19. I could hear Dr Neale clearly during the phone call and at no point of the call could I not hear him. 20. I remember that Dr Neale sounded different and sad during the phone call and did not sound like he was joking or being sarcastic."
Patient A then referred to her handwritten statement of 1 September 2020 and said (at par 22) that: "In [the statement], I stated that I thought Dr Neale was referring to a relative we had discussed before. By this, I meant discussions I had with Dr Neale about my pops who was really creepy and made comments to me about my sex life and what I did when I was alone. He has never touched me in a sexual way, but has made comments that were inappropriate, sat close to me on the couch and placed his hand on my leg".
In cross-examination, Patient A was composed and measured in what she said, and how she said it. Patient A was not shown to have "an axe to grind", or any reason to misspeak the truth. Patient A confirmed that, prior to the telephone call, she thought Dr Neale was a "good practitioner", who did not make her feel uncomfortable. Patient A reiterated, without embellishment, how she felt uncomfortable as a result of the Practitioner's statements. Patient A conceded that it was "possible" that she had made the comments about her grandfather to which she referred in her second statement to the Practitioner in May 2020, but was not sure whether she had only mentioned him on one occasion.
It is not in doubt that the latest time when Patient A could have said anything to the Practitioner about her grandfather prior to the telephone call was on 4 May 2020, although, as recorded earlier, the Practitioner has not produced a record of anything which was said to him during that conversation. Patient A was firm in denying that there had been any mention of a "role play" at any time during the telephone call. Although it is less than entirely clear, Patient A may have said that the first time she heard any suggestion of a "role play" was during the course of her evidence before the Tribunal. In the circumstances identified below, we consider that it is more likely than not that Patient A intended to refer to the statement which she gave to the Commission in June 2021 as the first time she heard any mention of a "role play" during the telephone call.
In his letter to the Commission of 9 April 2021 (HCCC1 Tab 18), the Practitioner suggested that, during the telephone call he had attempted to conduct a "role play" with Patient A. It was understandable, in those circumstances, that the Commission would have raised that suggestion with Patient A when preparing her formal statement. It is probable that Patient A intended to say in her cross-examination that the first suggestion she heard of a role play was in June 2021. Even if Patient A, mistakenly, said that the first she had heard of a role play was during her cross-examination, that would not in our view give cause for disquiet with respect to either her credibility or the reliability of her recollection.
Nothing emerging from the cross-examination of Patient A persuades us that her evidence should not be accepted. There was no suggestion that, for any conscious or unconscious reason, Patient A was misspeaking or misremembering the truth in any of the written statements she made, or in her oral evidence before the Tribunal. It is significant that the words Patient A recorded within hours of the telephone call were not disputed by the Practitioner. As earlier observed, Patient A did not embellish her evidence, was responsive to questions in cross-examination, made appropriate concessions and, neither by the answers she gave nor the manner in which she gave them, caused the Tribunal to doubt that her evidence was truthful and reliable.
The Practitioner provided three statements with respect to the telephone call. In the first (HCCC1 Tab 18), under the heading "Additional detail in relation to the 'sexually intrusive behaviour' exhibited by [Patient A's] grandfather", the Practitioner recorded three matters which he recalled Patient A having informed him of with respect to her grandfather. None of those matters involved the grandfather expressly or impliedly asking Patient A to have sex or asking Patient A to have sex, with or without payment, or asking her whether she felt attracted to him or to older men.
The Practitioner did not suggest in his first statement, which was closest in time to the telephone call, when he thought that Patient A told him the matters about her grandfather to which he referred. The Practitioner's oral evidence suggested that he thought that it had been during the consultation in May 2020. Notwithstanding that every other consultation which the Practitioner had with Patient A is, or came to be, recorded in the clinical file, no notes of the May 2020 consultation appear in the file, or have been produced by the Practitioner.
The handwritten notes purportedly made on or about the time of the telephone call by the Practitioner (R4), which are undated, and the only file notes which are undated, were imported into the records of the practice on 6 November 2020. The Practitioner stated that the information "volunteered" to him by Patient A, the "tone employed while she conveyed the information, with disquiet and concern, caused me to form the opinion the behaviour was unwanted and sexual in nature". The Practitioner recorded that he did not "conclude the behaviour disclosed by [Patient A] posed any immediate significant danger to [Patient A]", and advanced three reasons why he did not "enquire further" about it. In oral evidence, the Practitioner confirmed that he was of that opinion on the day prior to the telephone call.
Under the heading "Why role play as a treatment technique was not explained to [Patient A]", the Practitioner undertook something in the nature of a reconstruction of what he thinks he said during the telephone call. With respect to him, the matters there referred to appear to be post-hoc rationalisations of what he would like to think may have occurred, and are of little assistance to the Practitioner in his defence of this complaint.
Under the heading "Additional comments in relation to my comment", the Practitioner said, "I believe in hindsight, I may not have given [Patient A] the opportunity to provide me with this information prior to me launching into the role play". The Practitioner's oral evidence makes quite clear that he gave Patient A no opportunity to provide him with any information about her circumstances, and particularly whether Patient A's grandfather's conduct was still an issue, prior to "launching" into the purported role play. The Practitioner set out a number of changes which he had made in his practising life in the light of the aftermath of the telephone call. More of the same material was set forth in the Practitioner's closing remarks.
As the authorities make clear, ordinarily, the closer to an event that a statement is made about it, the more likely it is to accurately reflect what happened. The Practitioner's first statement was seven months after the telephone call. It is not insignificant that, in it, the Practitioner really raised nothing which contradicted Patient A's version of events, right down to the reference to his "launching into the role play". In cross-examination the Practitioner reiterated that he had "launched straight into the role play".
The Practitioner's second statement nine months later in January 2022 (HCCC1 Tab 28) suggested, under the heading "Overview", that "without diminishing my responsibility for that conduct, and as identified in the material I have already provided the Commission, that professional failure arose by reason of a specific confluence of factors including a particular problem (being the inappropriate conduct of [Patient A's] grandfather), a perceived solution (being the role play), an opportunity in time, COVID-19 and the increased use of telephone consultations and the miscommunication between [Patient A] and myself".
The Practitioner then said: "… I absolutely maintain that at no time did I ever make a request to [Patient A] for sex, offered payment in return for sex, or ask if [Patient A] was attracted to me. As explained in the course of the section 150 hearing, and in my prior correspondence, those questions arose in the context of a role play that at the time I thought would assist [Patient A] in setting boundaries by giving her practice in how to say "No" to unwanted sexual advances. There was never any nefarious intent on my part, nor have I ever been sexually or otherwise attracted to [Patient A]. What occurred on 1 September 2020 was purely for the purpose of providing to [Patient A] therapeutic treatment, albeit performed poorly and with adverse effect to her."
After referring to other matters raised by the Commission, the Practitioner revisited the "phone call with [Patient A]" on 1 September 2020, and said "I fully accept that the manner in which I conducted the "role play" was inadequate and fell below expected practice standards". The Practitioner further said: "While I wholly accept that the manner in which I introduced the role play and the manner it was carried out was inadequate, I do maintain that I did identify (albeit in very short compass) my intent to carry out the role play. I certainly accept that [Patient A] may have missed what I said about doing role play, and I attribute no blame to her whatsoever in doing so, as that arose from the deficiency in the manner in which I had set it up. …"
Significantly, at no time in any statement made by him or oral evidence in chief, or through cross-examination of Patient A on his instructions, did the Practitioner ever suggest any words which were used by him to "identify" his intent to carry out the role play. His own evidence that he "launched straight into the role play" is consistent with the Practitioner having said nothing to Patient A about the role play before launching into it.
We are comfortably satisfied that the Practitioner did not say anything to Patient A which would have alerted her to any intention he may have had to conduct a role play during the telephone call, much less any explanation of what that might entail, or, unsurprisingly in those circumstances, any attempt to obtain Patient A's informed consent before commencing any role play. Nothing to which the Tribunal has been referred or which arose from cross-examination of Patient A suggests that Patient A "may have missed" anything said by the Practitioner about a role play. The Practitioner has not given evidence of anything which Patient A could have missed.
It is not insignificant in the context of our evaluative decision that, having made three statements, at no time has the Practitioner ever suggested that what he claims he said to Patient A, signifies in any way his intention to attempt a role play with her. Similarly, nothing emerging from cross-examination of Patient A, or any other evidence, supports the assertion of the Practitioner in his 10 January 2022 statement that Patient A "may well have missed or does not remember the relevant comments in our telephone conversation on 1 September 2020 introducing the role play". The "relevant comments" having not been identified, or suggested to Patient A, there is no rational basis on which his assertion that she may have missed or not remembered "relevant comments" can be accepted.
In his third statement of 6 February 2023 (R2) under the heading "File note of the telephone call on 1 September 2020", the Practitioner referred to "brief contemporaneous notes" made during the telephone call with Patient A on 1 September 2020. The Practitioner suggested (at par 19) reasons why the file note may not have been as "comprehensive as my usual file notes", or why it was not imported into the practice records at or soon after the time of the consultation. The Practitioner said "I did not feel that my discussion with [Patient A] had gone awry at the time". Cross-examination of the Practitioner elicited answers which were entirely inconsistent with that assertion. On the Practitioner's evidence before the Tribunal, his attempted role play undoubtedly immediately went "awry", and should have been seen to have done so at the time.
The Practitioner added (at par 20): "Had I had concerns about the telephone call at that time, I would certainly have prepared a detailed note about it and would have taken steps to ensure that [Patient A] received appropriately follow up". The Practitioner did not otherwise add to what he had previously said about the telephone call. It is concerning that the Practitioner wrote "File note of the telephone call on 1 September 2020" after having had all the time which he did for reflection on the inappropriateness of his conduct during the telephone call.
The file note (R4) is itself curious, although it is consistent with the Practitioner's statement that he "launched straight into" a purported role play. If it accurately records the sequence in which things were said during the telephone call, which the Practitioner was not sure in cross-examination that it did, it is significant that "not reporting any problem. No script needed" and "no further issues" appear at the end of the note rather than, as would have been expected, as the first matters discussed with Patient A. The Practitioner agreed in cross-examination that had he asked those matters first there would have been no reason for attempting the role play. It was not put to the Practitioner, properly in our view, that the file note was created shortly prior to 6 November 2020 by the Practitioner as an attempt to "cover his tracks". Thus we cannot, and do not make findings in those terms. However, we remain sceptical about the provenance of the note which was recorded on the practice file on 6 November 2020 (R4) and the circumstances in which it was created. Such scepticism does not inform any findings made with respect to this Complaint.
The Practitioner's statement that he did not feel that anything went awry at the time of the purported role play in his most recent statement is difficult to understand in view of the Practitioner's evidence that Patient A was "getting angry" towards the end of the call. Nothing advanced by the Practitioner, either in any of his statements or oral evidence explains why, having been "not particularly concerned" about Patient A on 30 August 2020, and having, on his evidence, known nothing about Patient A's circumstances subsequent to, at the latest, May 2020, the Practitioner saw the need to telephone Patient A in the manner in which he did on 1 September 2020.
In terms of what was said on 1 September 2020, the absence of any reason for doubting the reliability of Patient A's recollection of the telephone call, and the numerous defects, inconsistencies and contradictions in the Practitioner's evidence, and improbability of his version of the telephone call, leave us comfortably satisfied that what was said during the telephone call was what Patient A alleged within hours of the call had been said.
In his report (HCCC1 Tab 10) Dr Sullivan considered it "inappropriate" for the Practitioner to contact Patient A without a scheduled appointment as there were "no explicit grounds for concern about her clinical state at that time" and that, for the reasons he recorded (at pars 42-43), the Practitioner's conduct fell "below expected practice standards".
Dr Sullivan's opinion, rightly in our view, did not change if the primary reason the Practitioner had contacted Patient A on 1 September 2020 was because "he had been thinking about issues she had raised with her grandfather and how he could best assist her in addressing the situation".
In relation to the telephone call itself, Dr Sullivan's opinion was sought on the assumption that Patient A's version of events was accurate. For the reasons he detailed (at par 45), on that basis, Dr Sullivan was of the opinion (at par 46) that the Practitioner's contact "fell significantly below expected practice standards". As we have earlier recorded, Patient A's version of the telephone call was accurate. The Practitioner's versions of the call were not.
Dr Sullivan was asked to assume the Practitioner's version of events. Dr Sullivan said in that regard that he did not consider that the decision to "use role play therapy was appropriate" (at par 47). For the reasons which he identified (at pars 48-49), Dr Sullivan considered that "the choice of role play in an unscheduled telephone call was not appropriate" and that the Practitioner's contact in those circumstances "fell significantly below expected practice standards".
Dr Sullivan was then asked to assume a number of scenarios, based upon the Practitioner's version of events. Dr Sullivan did not "consider that the role play he deployed was adequate", noting (at par 50) that: "(i) He could not be satisfied that the interaction was private and that [Patient A] would not be overheard by others; (ii) [Patient A] did not have the opportunity to prepare herself to discuss sexual matters; (iii) There was no explanation of the roleplay or preparation which enabled her to understand that it was a role play rather than a request from the doctor for sex - that is, there was no informed consent process; (iv) The suggestion that he could give her money in exchange for sex bore little relation to the concerns that [Patient A] had expressed about her grandfather and could not reasonably be extrapolated to the context of the role play; (v) The transition from role play to the usual doctor/patient relationship did not enable debriefing or assessment of [Patient A's] perspective of the role play and how she had interpreted it or reflected upon it."
For those reasons, Dr Sullivan considered that the Practitioner's conduct "fell significantly below expected practice standards".
For the reasons he detailed (at pars 52-54), Dr Sullivan considered that the Practitioner's actions following the call to Patient A on 1 September 2020 fell "below expected practice standards".
Dr O'Dea stated unequivocally at par 49 in his report (R3) that the Practitioner's conduct "in relation to the telephone call of 1 September 2020, and his subsequent actions would be considered significantly below acceptable clinical the [sic] standards of a psychiatrist". Dr O'Dea set out a number of reasons why he formed that view. Dr O'Dea further recorded (at par 53) that: "Notwithstanding Dr Neale's explanation of his conduct in relation to this telephone call, his conduct in at least not documenting his rationale and preparation for this role play, not documenting his having gained [Patient A's] express consent for the role play; and not documenting in more detail the content and outcome of the role play, would be considered to have been significantly below the standard of practice expected of a psychiatrist."
Not surprisingly in the circumstances the cross-examination of Dr Sullivan and Dr O'Dea in relation to this topic was limited, and appropriately so, having regard to the absence of significant disagreement between them, and substantial agreement that, even on his own account of the telephone call, the Practitioner's conduct fell below the requisite standard.
In its written submissions in support of this Complaint, the Commission set out in detail the findings of fact which it submitted that the Tribunal would make in finding the Practitioner guilty of unsatisfactory professional conduct. For the reasons which follow, it is unnecessary for us to set out those matters in full. We accept that the matters particularised (at par 26), each of which references evidence establishing the matters there referred to, comfortably establishes that the conduct of the Practitioner fell significantly below the relevant standard. Similarly, the particulars identified at par 27, and the Commission again referenced evidence supporting each of those, are established to the comfortable satisfaction of the Tribunal.
The contention of the Commission (at par 30) that the "practitioner's assertion that he was performing a role play should be rejected because it is implausible" is not a submission with which we need to engage. Nor in order for this Complaint to be upheld is it necessary to make a finding in those terms. Notwithstanding the number and variety of concerning aspects of the Practitioner's evidence with respect to his conduct during the telephone call, we are not affirmatively satisfied that his intention during the telephone call was to "proposition" Patient A to have sex with him, either on an unpaid or paid basis. We cannot reject the Practitioner's claim that, although inappropriate and completely unprofessional, he was attempting, or believed that he was attempting, a role play during the telephone call. Declining to make the finding urged on behalf of the Commission changes nothing in terms of the matters with which we are concerned. Just as innocently intended unsatisfactory professional conduct does not cease to be unsatisfactory because there is an absence of intention, it is unnecessary to find, however suspicious the circumstances may seem, as the Commission inferentially invites us to, that the Practitioner did not intend, or consider that he was purporting to conduct a role play on 1 September 2020 and that, in reality, what he admits he said to Patient A was what he really meant at the time.
We are mindful in this context of the standard of proof and the need to be comfortably satisfied. Not being comfortably satisfied of the "implausibility" of the Practitioner's proffered explanation for the "role play" neither diminishes the force of the Commission's case or enhances the Practitioner's resistance to it.
Similarly, although, as the Commission submits, the circumstances surrounding the undated file note are, at least, curious, we have not been invited to, and do not find, that the notes were created for the purpose of defending a possible complaint. As we have earlier recorded, whatever the provenance, the file note does not materially support the Practitioner's case, and if, as may be so, the sequence of events during the telephone call is as the file note suggests, the file note is distinctly unhelpful to his case. We have earlier referred to the inconsistencies in the evidence of the Practitioner with respect to the file note, an example of which the Commissioner relied upon in its submissions (at par 33).
In submissions on behalf of the Practitioner it was submitted (at par 49) that the Tribunal "does not have to accept one or the other" of the two differing versions of events. Whether the Tribunal has to do that or not in the circumstances of this is academic, given that we are comfortably satisfied that Patient A's version of the telephone call is reliable and accurate and we have no difficulty in preferring her version of the conversation to that of the Practitioner. In addition to the matters to which we have expressly referred, the passages from the authorities cited earlier in these reasons provide support for that finding. Even on the Practitioner's version of events, the Tribunal would be comfortably satisfied that the Practitioner is guilty of unprofessional conduct.
We respectfully disagree with Counsel's submission that the Tribunal does not have to accept one version of the telephone call or the other in the circumstances of this case. There are cases in which the parties to a conversation may each accurately recall parts of the conversation, and other parts inaccurately, and the Tribunal's findings reflect that. No such dilemma confronts the Tribunal in this case. There is an additional, and potentially important reason why the Tribunal has made the findings it has with respect to the telephone call. Those findings are pivotal to our evaluative determination of whether the conduct of the Practitioner is sufficiently serious to constitute professional misconduct.
Counsel for the Practitioner valiantly attempted in written submissions (at pars 50-66), to impugn the reliability of Patient A's recollection of the conversation. As we have earlier recorded, nothing emerging from the evidence of Patient A in cross-examination, including those matters to which Counsel for the Practitioner referred, provides a rational basis for doubting the essential accuracy of her recollection of events, first recorded within hours of the telephone call, or, to the extent of any inconsistency between her recollection of events and that of the Practitioner, preferring Patient A's version of events to that of the Practitioner.
Under the heading "The competing plausibility of the two narratives", it was submitted that the Practitioner's "version of events at first blush certainly seems unusual". Notwithstanding all of the matters raised on behalf of the Practitioner, and whether the Practitioner's version of events is, or remains, "unusual", we are comfortably satisfied that Patient A's recollection of the telephone call was essentially accurate and amply able to be preferred to that of the Practitioner.
To the extent that it is controversial, and ultimately we doubt that it really is, the evidence comfortably establishes that the Practitioner is guilty of unsatisfactory professional conduct, on both the bases asserted by the Commission. To the extent that Drs Sullivan and O'Dea may not have expressed their opinions as to the degree to which the Practitioner's conduct fell short of the required standard in the precise terms of the statutory provision, we are comfortably satisfied that their opinions were that the Practitioner's conduct did fall significantly short of the required standard. Not insignificantly, as each expert psychiatrist made clear in his report, their opinions did not change even if the Practitioner's version of the telephone call were preferred to that of Patient A.
The real question for determination then becomes whether the unsatisfactory professional conduct of the Practitioner is sufficiently serious to justify a finding of professional misconduct.
Appropriately in our view, the Practitioner's experienced and highly competent Counsel concluded his written submissions with respect to this Complaint by saying (at par 84.2): "It is accepted that on Dr Neale's version of events, he is guilty of unsatisfactory professional conduct."

Complaint 3

Complaint 3 alleged that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law in that he contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW Regulation).
The particulars of Complaint 3 alleged that: "Between 30 August 2016 and 1 September 2020 the Practitioner failed to make and keep adequate records in relation to Patient A, including: (a) failing to document the rationale, context, content or outcome of the telephone contact with Patient A on 1 September 2020."
By his Reply, the Practitioner admitted Complaint 3.
We have earlier referred to the file note which purportedly recorded the Practitioner's version of the telephone call on 1 September 2020. For the reasons which he set out in his report, at pars 56-59, Dr Sullivan found that the Practitioner's "record keeping fell below the standard expected" generally, and particularly with respect to the telephone call with Patient A on 1 September 2020, which Dr Sullivan considered (at par 63) "fell significantly below the standard expected".
Dr O'Dea in his report did not express any views with respect to this Complaint. Although it may be strictly unnecessary in the circumstances to further consider Complaint 3, largely for the reasons advanced by Dr Sullivan, and not disputed by Counsel for the Practitioner, we are comfortably satisfied that Complaint 3 has been established and that the Practitioner is guilty of unsatisfactory professional conduct on the basis asserted by the Commission.

Complaint 4

Complaint 4 asserted that the Practitioner was guilty of professional misconduct pursuant to s 139E of the National Law in that the Practitioner has: "i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the Practitioner's registration."
The particulars of Complaint 4 were: "1. Each particular of Complaints One, Two and Three on their own justifies a finding of professional misconduct. 2. In the alternative, when two or more of the particulars of Complaints One, Two and Three are taken together, a finding of professional misconduct is justified."
As the Tribunal has not found unsatisfactory professional conduct proved pursuant to Complaint 1, the issue becomes whether Complaint 2 in isolation or, in combination with Complaint 3, justifies a finding of professional misconduct. We do not understand the Commission to submit that Complaint 3 in isolation could establish professional misconduct. If we are wrong in that regard, we record that we are not satisfied that Complaint 3 in isolation could support a finding of professional misconduct. Nor are we comfortably satisfied that, if Complaint 2 on its own does not justify a finding of professional misconduct, taking it in conjunction with Complaint 3 would result in such a finding.
The principles relevant to determining whether unsatisfactory professional conduct constitutes professional misconduct were identified by the Commission in its submissions (at par 44). Professional misconduct is merely a category of "unsatisfactory professional conduct which is sufficiently serious to justify a suspension or cancellation": Chen.
Whether the degree of seriousness of the Practitioner's conduct is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411. Assessing the gravity of offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which the conduct departs from proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264.
The Commission relied (at par 45) on a number of matters in support of its contention that the Practitioner was guilty of professional misconduct. Those submissions must be read in the light of the Tribunal's rejection of Complaint 1. Poor records can amount to professional misconduct. We accept that a failure to maintain appropriate medical records in respect of treatment of a patient over time is a significant and sustained departure from what is required of a competent and diligent medical practitioner: Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168. We agree that the Practitioner's poor records of some consultations, and absence of records of other consultations, means that another practitioner cannot safely assume the care of Patient A.
There is no doubt that more than one instance of unsatisfactory professional conduct may, when the instances are considered together, amount to professional misconduct.
The Commission submitted (at par 46) that, even if the Practitioner was attempting to perform a role play, that did not change anything, or preclude a finding of professional misconduct.
We accept that inappropriate remarks can amount to professional misconduct: Health Care Complaints Commission v Black (No 2) [2015] NSWCATOD 5. We agree with the Commission that "asking Patient A for sex and offering her money for sex in an unprompted phone call posed a risk of harm", and accept that Patient A felt "great betrayal of trust and hurt".
The Tribunal is comfortably satisfied that the Practitioner's statements to Patient A during the telephone call were inappropriate, even though we have not found them to have been motivated by sexual gratification. To the extent that the Practitioner engaged in well-intentioned but "misguided" conduct, as was submitted on his behalf, during the telephone call, that would not in our view change anything, essentially for the reasons urged on behalf of the Commission, virtually all of which the Practitioner admitted, and could not really deny. The Practitioner's written and oral statements are replete with admissions that, despite his asserted good intentions, everything about the purported role play, the circumstances in which it was purportedly undertaken, the way in which it was, what did not happen before it commenced or after it concluded, are all entirely consistent with unsatisfactory professional conduct of a very serious magnitude. We agree that if, as he claims, the Practitioner considered there to be some therapeutic benefit for Patient A in undertaking a role play, put bluntly, he could hardly have gone about achieving that outcome in a more inappropriate way (see Health Care Complaints Commission v Sinnathurai [2021] NSWCATOD 102).
The Commission relied significantly on the decision of the Tribunal in Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 ("Litchfield (2022)") with respect to a finding of professional misconduct. The Tribunal accepts that an objective evaluation of the seriousness of unsatisfactory professional conduct is required when determining whether the offending conduct is sufficiently serious to constitute professional misconduct. We cannot and need not add to what was said in Litchfield (2022) in that regard.
We have no evidence of the Practitioner's personal circumstances at the time of his offending conduct. Although such matters, and the motivation of a practitioner, may be relevant to a Stage 2 determination, nothing raised by the Practitioner in this case causes us to adopt other than an objective evaluation of the seriousness of the Practitioner's offending conduct by reference only to the conduct and the circumstances in which it occurred. That is particularly relevant to Complaint 2. It is clear from the circumstances in which Patient A came to be seeing the Practitioner as her psychiatrist that she was vulnerable and her health was likely to be adversely impacted by the conduct of the Practitioner during the telephone call. As was found in Litchfield (2022) at [456], the conduct of the Practitioner involved serious boundary violations with 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 seriousness of the offending conduct is not in any way alleviated by the actions of the Practitioner when he realised that the role play had gone "awry". As we have earlier recorded, just when that was is unclear on the Practitioner's evidence. Whenever it was, the Practitioner's conduct throughout the telephone call represented a real risk to Patient A's health and safety.
It was submitted, entirely properly in our view, on behalf of the Practitioner (at par 86) that: "In the event (which is denied) that the Tribunal finds that the Commission's version of events with respect to Complaint 2 occurred, then it is accepted that such conduct amounts to professional misconduct. Dr Neale accepts that such conduct would be wholly out of keeping with the practice of his profession." As our findings with respect to Complaint 2 confirm, the scenario to which Counsel for the Practitioner referred is enlivened.
It was submitted (at par 88) that: "On Dr Neale's version of events, and even cumulatively taking into account the other complaints, his conduct as a whole does not amount to professional misconduct".
Although, given our findings with respect to the telephone call, we do not need to express a concluded view, having regard to the expert evidence, particularly of Dr Sullivan, which was not seriously challenged with respect to Complaint 2, even if the Practitioner's version, or versions, of the telephone call were accepted, his conduct would in our view be sufficiently serious to justify a finding of professional misconduct. On any version of the Practitioner's account of the telephone call, each of the deficiencies identified by the Commission in its submissions was present. It is difficult to suggest how, if the Practitioner genuinely believed that a role play would in some way be beneficial to Patient A, he could have gone about it in a more inappropriate and misguided manner. Quite apart from how the Practitioner imagined that "launching straight into" a role play with a patient "out of the blue" over the telephone, about whose circumstances at the time he knew nothing, could possibly have been helpful to her, was never explained.
We do not accept, for the purpose of determining whether the unsatisfactory professional conduct of the Practitioner is sufficiently serious to constitute professional misconduct, that steps taken by him after the complaint was made militate against making such a finding. Those matters may be relevant at a Stage 2 hearing, but in our view they are not relevant for the purpose of this Stage 1 determination.
In Health Care Complaints Commission v Burton [2017] NSWCATOD 57 at [111], the Tribunal said that, in evaluating whether unsatisfactory professional conduct was sufficiently serious to justify a finding of professional misconduct: "… circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, any mitigating factors and an evaluation of whether the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment."
The Practitioner has not referred to any relevant matters in mitigation of his offending conduct. The gravity of the Practitioner's offending conduct is not mitigated by the fact that Complaint 2 relied on only one consultation, having regard to the findings which we have earlier recorded, with respect to it.
As the Court of Appeal explained in Hampshire v Health Care Complaints Commission [2021] NSWCA 283 at [57], the "weight" to be given to the Practitioner's explanation in assessing the serious nature of his conduct is "a matter for the Tribunal" and involves an evaluative judgment to be made by the Tribunal as to the "nature and seriousness" of the conduct. The Practitioner's explanations for his offending conduct are entitled to little weight, for the reasons which we have earlier recorded.
Both the nature and seriousness of the conduct which has been proved, pursuant to particular 2, strongly supports a finding of professional misconduct pursuant to Complaint 2.
If we are wrong, and Complaint 2 alone does not support so finding, in conjunction, our findings with respect to Complaints 2 and 3 establish professional misconduct.
For the foregoing reasons, the Tribunal is comfortably satisfied that the unsatisfactory professional conduct of the Practitioner is sufficiently serious to constitute professional misconduct pursuant to both grounds on which the Commission relies.

Conclusion

The Tribunal finds the Practitioner guilty of professional misconduct. The proceedings will be listed for the making of directions with respect to a Stage 2 hearing.

Orders 1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct and professional misconduct. 2. The proceedings are to be listed for directions to fix a date for the Stage 2 hearing on a date to be appointed by the Registrar.

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 March 2023

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