Health Care Complaints Commission v Perera

Matters in issue

1. This complaint raised the following issues for determination: 1. What were the requirements under the initial conditions? 2. Is the practitioner's explanation that if Chaperone A, and the other two named female chaperones were not present for the whole consultation, that consultation only continued if a family member or friend was present during his examination of a female patient from 14 November 2014 to January 2015 credible? 3. Do the emails from the male chaperone support the practitioner's assertion that this person acted as chaperone at all consultations from late December 2014 until the practitioner returned to Queensland in April 2015? 4. Did the practitioner make "false" declarations to the Health Ombudsman in the relevant period? 5. Is the practitioner guilty of unsatisfactory professional conduct in respect of particulars not admitted by him as well as admitted particulars? 6. Is the practitioner's unsatisfactory professional conduct as admitted or as found sufficiently serious to justify his suspension or cancellation of his registration? 7. If the practitioner's conduct does not amount to professional misconduct what, if any, orders are appropriate?

Background

1. The following matters, unless noted to be an allegation, are established to the requisite standard of proof (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34).
2. The practitioner obtained a degree of Doctor of Medicine from the Karkiv Medical Institute, Ukraine in 1990.
3. The practitioner obtained his fellowship of the Royal Australasian College of Physicians in Australia 2010. At this time he was working in New Zealand.
4. In August 2011 he moved to Australia and became a permanent resident. Between August 2011 and August 2014 he worked as an independent private consultant cardiologist in Mackay, Queensland. He had clinical privileges at the Mater Hospital, Mackay.
5. In 2014 the practitioner was charged with criminal offences arising out of allegations made by a woman employed as his receptionist. The woman asserted he had sexually assaulted her between May 2013 and August 2014.
6. On 2 October 2014 the Health Ombudsman imposed initial conditions on the practitioner's registration effective from 7 October 2014 to 26 September 2016. The conditions then imposed are set out in Appendix "A" to these reasons.
7. Between November 2014 and April 2015 the practitioner engaged in work as a contractor at the Centre.
8. From April 2015 to date the practitioner has practised as an independent private consulting cardiologist in Mackay, Queensland.
9. On 14 April 2015 the Health Ombudsman wrote to the Director, HCCC. The Health Ombudsman explained that investigations by his staff had identified a number of irregularities between the practitioner's self-reports and Medicare records. The Health Ombudsman said the irregularities raised concerns about suspected non-compliance by the practitioner with the conditions. The Health Ombudsman sought assistance from the HCCC to confirm or disprove the suspected non-compliance.
10. On 29 April 2016 the Health Ombudsman informed the practitioner an investigation had been conducted into his alleged non-compliance with the conditions on his registration. On 28 September 2016 the existing conditions were replaced with more detailed chaperone conditions.
11. On 9 November 2016 a "not guilty" verdict was entered on all charges against the practitioner in the District Court, Mackay.
12. On 24 November 2016 the Health Ombudsman wrote to the practitioner and advised that, following the practitioner's acquittal on the criminal charges, and having received submissions and reviewed the transcript of the trial, that he was satisfied the practitioner did "not pose a serious risk to the persons". The Health Ombudsman advised that the conditions imposed on the practitioner's registration were no longer necessary.
13. The practitioner says in December 2016 that an investigation into the sexual abuse claims, a claim of prescribing for the receptionist who made the sexual abuse claims, and failing to advise the Australian Health Practitioner Regulation Agency of his criminal charge concluded. He says he was informed the Health Ombudsman did not intend to take any further action.
14. On 31 August 2017 the practitioner was notified by the Health Ombudsman that no action would be taken about an asserted breach of the conditions on his registration. The Health Ombudsman advised that his decision was arrived at after referral of the matter to Director of Proceedings [Queensland] for consideration of whether to refer the matter to the Queensland Civil and Administrative Tribunal. When the Director referred back to him, the Health Ombudsman said he had decided to take no action "on the basis the matter was lacking in substance".
15. The original complaint in these proceedings dated 1 September 2017 was lodged with the Tribunal on 5 September 2017.

Anonymisation issues and other issues relating to the documents

1. The first Schedule to the complaint ascribes a pseudonym to one chaperone who was an employee of the Centre and who gave evidence before us. Other chaperones employed at the Centre and identified in the HCCC's documents are not listed in the Schedule. Six patients have pseudonyms attributed to them, but the majority of the patients whose names are set out in Schedule A and Schedule B of the complaint do not. In order to protect the privacy of the chaperones and patients we have not mentioned their names but endeavoured to identify them by reference to their date of consultation with the practitioner or their chaperone role.
2. The documents originally served on the practitioner and lodged with the Tribunal contained documents including Medicare records, a chaperone registry summary prepared by the Health Ombudsman and a spread sheet also prepared by the Health Ombudsman. An amended index to the documents relied on by the HCCC was lodged with the Tribunal shortly prior to the hearing. The index notes that parts of the documents referred to above should not be read. It appears that this was because a number of Medicare items, originally thought to represent consultations by the practitioner with patients, actually refers to services ordered by the practitioner but carried out by cardiac technicians including multi-channel ECG monitoring, 24 hour Holter Monitoring and diagnostic imaging. This reliance on a large number of Medicare items explains, in part, the reason the Health Ombudsman referred the matter to the HCCC for investigation.

The National Law

1. Complaint One asserts the practitioner is guilty of unsatisfactory professional conduct under s 139B (1) (c) in that he contravened a condition to which his registration was subject.
2. Section 139B (1) (c) of the National Law is as follows: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following - …. (c) A contravention by the practitioner (whether by act or omission) of-- (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board
3. Complaint Two asserts the practitioner is guilty of unsatisfactory professional conduct being improper or unethical conduct under s 139B (1) (l). Section 139B (1) (l) is in the following terms: (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
4. Complaint Three asserts, based on the particulars set out in respect of Complaint One and Complaint Two, that the practitioner is guilty of professional misconduct under s 139E of the National Law. Section 139E provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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 suspension or cancellation of the practitioner's registration.

The onus and standard of proof

1. The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction and the seriousness of the complaints both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336.

The objects of the National Law

1. The objects of the National Law, found in s 3 and particularly in NSW in s 3A, guide and direct the Tribunal in its decision-making. At the heart of all proceedings is the mandate that decisions made by the Tribunal must protect the health and safety of the public.

What were the requirement under the initial conditions?

1. The initial conditions required that a consultation with a female patient take place in the presence, of a person aged over 18 years, for an entire assessment, consultation, examination or treatment (the consultation). The person, either male or female, could be a person who accompanied the patient to the consultation, be an adult guardian of the patient or any other person with the consent of the patient (including a member of staff where the practitioner was working).
2. We pause to note that the conditions did not require the practitioner disclose to any chaperone that he had conditions on his registration, or the basis on which those conditions had imposed. We note he did not disclose the conditions or the basis for them to the male chaperone or to Chaperone A. Nor did the conditions require a chaperone to be approved by a regulatory body, or for the chaperone to acknowledge to a regulatory authority that he or she understood the nature of their role and responsibilities. The practitioner did notify the Centre where he was engaged as a contractor (not an employee) of his conditions, notwithstanding the condition only required disclosure to an employer.
3. We later, for ease of understanding, set out Condition 3 in full. There is no doubt that the condition required the chaperone log to be completed in all respects "at the time of the assessment, consultation, examination or treatment". There was not full compliance with this condition on numerous occasions, not because there was not a chaperone present, but rather the notebook was not signed at the relevant time. We agree the concession made by the practitioner in his cross-examination that a chaperone might not recall with precision a particular consultation if asked to sign a log sometime after the event. This concession demonstrates why it was important, even if onerous to the practitioner, to ensure full compliance with condition 3. This is particularly so in the context of the then very serious sexual assault charges pending against the practitioner.

Evidence relied on by the HCCC

1. The HCCC relied on a number of documents including Medicare records, copies of the practitioner's patient "log" or notebook entries which we describe below, a statement by Ms Santos Brahmbhatt, the practice manager at the Centre, and a statement of Chaperone A. Chaperone A acted in a chaperone capacity for some of the consultations in the period November 2014 to December 2014.
2. The Presiding Member refused to admit into evidence a statement and a supplementary statement of the male chaperone, but did admit email correspondence between him and the practitioner. The male chaperone was unable to be located by the HCCC and was not available, as requested, for cross-examination. The Presiding Member rejected the statements as they were untested. She determined that the statements could be afforded little or no weight, and were of little probative value. In reaching this determination the Presiding Member took into account the discrepancies in the sophisticated language in the statements, and ungrammatical language in the email correspondence from the male chaperone. In reaching her determination the Presiding Member also took into account that the best evidence was the email correspondence between the practitioner and the male chaperone attached to the latter's supplementary statement together with an email and attachment sent by the male chaperone to the practitioner and dated 1 March 2016.
3. Chaperone A was employed as a cardiac technician at the centre. She was requested to attend the practitioner when seeing female patients, but said she was not always able to stay for the full appointment because to do so impacted on her other duties. At [7] of her statement she explained that on the occasions she was present for the entire consultation and that she would sign "the chaperone register" before leaving the consultation. When she was not present for the entire consultation, she would sign "the chaperone register" later the same day or the next day. At [9] of her statement she records "Dr Perera would phone me when he needed me to act as a chaperone. I could not always assist due to my job schedule as a cardiac technician". At [10] Chaperone A states that she "would estimate" that for less than half the appointments she was present for the entire consultation.
4. In her oral evidence Chaperone A explained that the practitioner had introduced her to his patients saying "this is [chaperone A's first name]". Chaperone A explained that she was not employed to be a chaperone, but that she had applied "on line" for a job as a ECG Technician in the ultrasound room. She explained when she sat in for the whole appointment she had to stay back because her primary job was delayed by about two hours. She said that, after Christmas 2014, she had told the manager that the chaperone duties were not the job she had applied for. It was shortly before this time that the Centre placed an advertisement on Gumtree to which the male chaperone responded.
5. Without any criticism of Chaperone A intended by us, it was clear from her oral evidence that she resented having to act in a chaperone capacity as it hindered her in her professional work and meant she had to work longer hours. We also accept she signed an entry in a small notebook not a chaperone log of the type later supplied to the practitioner by the Health Ombudsman. Unsurprisingly, given the appointments were for a brief period in 2014 she had no recollection whether there was another person such as a family member present at a consultation when she left before the consultation concluded, and she could not remember names of patients.
6. We found Chaperone A was a truthful witness, but that her recollection of events was poor.

Is the practitioner's explanation that if Chaperone A, and the other two named female chaperones were not present for the whole consultation, that consultation only continued if a family member or friend was present during his examination of a female patient from 14 November 2014 to January 2015 credible?

The practitioner's written and oral evidence

1. The practitioner asserts that when he commenced to practise at the Centre he informed the owners of the conditions on his registration. He says that the owners agreed to provide employees to act in a chaperone capacity including two named female chaperones and chaperone A. However, the practitioner said this arrangement "became problematic" because the employees were required from time to time for other duties requiring his consultation to be paused until one of the other chaperones was located, or a friend or relative of the patient could act as the chaperone.
2. The practitioner says because of the difficulties with the chaperone arrangement in December 2014 he requested the owners of the Centre to advertise for a position and the male chaperone (an overseas trained doctor who was not registered in Australia) was engaged. The practitioner asserts at [40] of his statement: Subsequently [the male chaperone] was employed for this role and he acted as a chaperone exclusively for me from December 2014 to mid-April 2015.[The male chaperone] had no other duties in the practice other than being my chaperone. At that time the male chaperone was preparing for the Australian medical registration examinations. He wanted to gain clinical experience and knowledge as part of preparing for his final medical examinations. As such, he was willing to volunteer as my chaperone and simultaneously acted as an observer during consultations. From my good faith I have him an allowance to assist him with his living expenses.
3. The practitioner states that when the conditions were imposed on his registration he telephoned the Health Ombudsman's office to advise he was moving to NSW, and that he made enquiries about his chaperone register as he was not familiar with how to maintain such a register. He says: I was told to simply follow the written conditions imposed on my registration and to include all the information listed. I maintained my chaperone registry in a small notebook.
4. At the hearing the practitioner produced a spiral bound notepad, which was small enough to fit into his pocket (the notebook), of the type used to record consultations with female patients. He explained he used a separate page for each patient. He entered patient details, date and time and the chaperone address. He requested the chaperone to sign the notebook. He says at the end of each month he tore the pages out of the notebook, pasted them onto a sheet of A4 paper, scanned the A4 sheet and forwarded it to the Health Ombudsman "together with the required statutory declaration". He says he believed he had complied with the conditions "and did not intend to mislead or intentionally make any false declarations in relation to the chaperone register".
5. The practitioner explained that after he received a template register from the Health Ombudsmen's office when he returned to Queensland he used that template. He says that from the end of April 2015 to November 2016, during which period he consulted, examined and treated 2,900 female patients, he complied with the conditions and was able to maintain the register using the template more efficiently than when he used the notebook.
6. In his statement the practitioner acknowledged circumstances where he had not properly complied with the conditions imposed by the Health Ombudsman. We will refer briefly to those concessions shortly.
7. In his oral evidence the practitioner explained that after he relocated from NSW to Queensland he found a few unsigned pages from the notebook. He said he was prompted by this discovery to go through all his chaperone records from November 2014 to April 2015 and as a result found a few more chaperone signatures were missing although he had the chaperone name, address recorded. Because he had no doubt that male chaperone was the only chaperone he used in the period from December 2014 he called overseas and then emailed him and requested he sign the entries.
8. When questioned about three documents he sent to the Health Ombudsman after May 2015, the practitioner explained after scanning the pages from his notebook and sending the entries to the Health Ombudsman, he had realised the chaperone had not signed the entries. The practitioner said he approached the chaperone to sign and later re-submitted the pages to the Health Ombudsman. The Health Ombudsman's records corroborate this evidence.
9. The practitioner told us that he took the conditions imposed on his registration very seriously, that he tried to comply with the conditions to the best of his ability, that he never saw a patient without a chaperone, and that he did not make a false declaration because he held the belief he was complying with the conditions. He apologised for his unintentional errors, and took responsibility for them.
10. In cross-examination the practitioner conceded that chaperones who were asked to sign retrospective entries may not have a specific record of the relevant consultation. He also said that some of the patients were from non- English speaking backgrounds and relatives were happy to sign logs as the patients' (and their relatives) main purpose was to get treatment. We infer from this statement the patients did not question why there were being asked to sign the log.
11. We found the practitioner's evidence generally to be credible. He made appropriate concessions. We accept that while he did not, in a number of instances, correctly maintain his records, that he did make arrangements to have another chaperone present at consultations if a staff chaperone was unavailable or unable to stay for the whole consultation. We accept his evidence that if Chaperone A left a consultation, he obtained the services of another chaperone being another staff member or a relative.
12. We also accept his explanation that the management of the Centre proposed the use of an employee as a chaperone because there was a concern that if a relative or friend knew the practitioner had conditions on his registration that may affect referrals from local general practitioners.

Is Particular 1 of Complaint One established?

1. Particular 1 is drafted as follows: Between 12 November 2014 and 17 December 2014, the practitioner breached Condition One of the Chaperone Conditions in that he failed to ensure that Chaperone A was present for the entire consultation on various occasions.
2. Condition 1 of the conditions is in the following terms: The practitioner must not assess, consult, examine or treat any female patients without another person (the chaperone) present for the entire assessment, consultation, examination or treatment for a period of two (2) years.
3. Condition 2 provides "the chaperone" must be at least 18, and nominates the qualifications for a chaperone. The qualifications include a person who is a person who has accompanied the patient to the consultation. Condition 2(c) provides "any other individual with the consent of the patient (including a member of staff at the practice or facility…" may be the chaperone".
4. On a literal reading of Condition 1 it requires the same person (the chaperone) to be present for the entire assessment. However, the condition may be read (in the way interpreted by the practitioner) as enabling a family member or accompanying person, who was present when the consultation commenced, to assume the role of chaperone when a staff member left the consultation. That family member could then complete the necessary log entry. That person would be "another person" present for the entire consultation. We accept the practitioner's evidence that this was what occurred on some occasions.
5. The chaperone logs disclose there were consultations between 12 November 2014 and 17 December 2014 when a family member or friend acted as the patient's chaperone.
6. Against that background to find Particular 1 is established, it is necessary to read into the drafting the words "when Chaperone A was the Chaperone" so that the particular reads: Between 12 November 2014 and 17 December 2014 the practitioner breached Condition One of the Chaperone Conditions when Chaperone A was the chaperone in that he failed to ensure that Chaperone A was present for the entire consultation on various occasions.
7. We do not find Particular 1 of Complaint One established to the requisite standard. We note this particular requires the HCCC to establish that "the practitioner failed to ensure that Chaperone A was present for the entire consultation" during various (unspecified) consultations occurring between 12 November 2014 and 17 December 2014. We could not be satisfied, based on Chaperone A's inexact recollection of those consultations, when she left before the conclusion of a consultation, and whether the patient had a relative or friend present.
8. Given the drafting of the particular, we find that there were occasions, prior to the male chaperone's employment, that other employees acted as chaperones or a relative fulfilled that role. The practitioner's evidence in this respect is corroborated by the notebook entries. Further, we accept the practitioner's evidence that Chaperone A's departure on occasions from consultations was because she prioritised her cardiac technician commitments, rather than the practitioner failing to secure her attendance.
9. We also accept the interpretation of the condition, adopted by the practitioner, if an employee left the consulting room, of having a relative or friend who was present at the commencement of the consultation, completing the record at the end of the consultation, was open. The intent of the condition, which the practitioner understood, was that he should not see female patient without another person of the class specified in Condition 2 present for the entire consultation.
10. In conclusion, we find given the drafting of Particular 1 and Condition One, that the evidence relied on to establish this particular on falls in the category of inexact proof and or indefinite testimony referred to by Dixon J in Briginshaw.

Do the emails from the male chaperone support the practitioner's assertion that this person acted as chaperone at all consultations from late December 2014 until the practitioner returned to Queensland in April 2015?

1. The HCCC relied on emails from the male chaperone to establish that a number of entries in the notebook. which was used as the chaperone log, were not signed contemporaneously with the entry. While on their face the emails indicate that the male chaperone was prepared to sign anything the practitioner required, we accept the practitioner's evidence of the circumstances leading to the email correspondence.
2. We are satisfied that a number of the entries in the notebook used to maintain the log when the male chaperone acted as chaperone were not completed at the time of the consultation. But we accept the practitioner's evidence that the male chaperone was present for each consultation at which he was recorded as chaperone.

The conceded particulars

1. The practitioner has conceded particulars 3, 4 and 5 of Complaint One. That is, he concedes he failed to include an entry in the chaperone register submitted by him to the Health Ombudsmen for 10 patients who he saw in the period 22 December 2014 to 10 April 2015. But he says that each patient was seen in the presence of the male chaperone. As already noted, we accept this aspect of his evidence.
2. Particular 4 relates to a failure to have a family member who acted as chaperone for Patient C to sign the entry in the notebook. The chaperone did provide her name and address. We accept this is a technical breach of the condition, but not one which compromised patient safety. We accept the omission to ensure the chaperone provided her signature as well as her name and address was an inadvertent error occurring in the context of a busy practice.
3. Particular 5 also relates to a failure to have the chaperone sign the notebook contemporaneously with the consultations by Patient D, E and F with the practitioner in November/December 2014. The practitioner asserts chaperone A signed one entry sometime after the consultation. That assertion is consistent with chaperone A's oral evidence and we accept that is what occurred. We accept that in these circumstances there was a breach of condition 3 of the conditions because the notebook was not signed by Chaperone A at the time of the consultation.
4. Particular 6 of Complaint One is set out as follows: The practitioner breached Condition Three of the Chaperone Conditions in that he failed to ensure that the chaperone register was completed at the time of the assessment, consultation, examination or treatment in relation to the entries set out in the schedule attached and marked B.
5. Condition Three of the conditions provided as follows: The practitioner must maintain a chaperone register (the register) detailing in every case where the practitioner has assessed, consulted, examined or treated a female patient. The register must be completed in ink at the time of assessment, consultation, examination or treatment and must contain the: a. full name of patient, appointment date, time and location; b. full name of the chaperone; c chaperone's contact address and telephone number; d date and time the chaperone began acting as the chaperone; e date and time the chaperone ceased acting as chaperone; and f chaperone's signature.
6. The practitioner explains in his statement "that in the Reply that the 'chaperone register may not have been complete' - may mean: 1. I did not make an entry for that patient in my notes, 2. I may have completed the registry but have not sent to OHO due to technical error".
7. At the commencement of the hearing, Mr S Barnes, counsel for the practitioner, explained that because of the practitioner's residence in Queensland, he had only seen him in conference the day prior to the hearing. Following advice about the drafting in the complaint the practitioner instructed him to make further admissions. In respect of particular 6 of Complaint 1, Mr Barnes explained the 32 patients named in Schedule B to the complaint fall into 3 categories. First, 7 of the named patients and consultations are identical with the patients named in Schedule A. He described this as a "double up". Secondly, completed log entries for 16 patients are set out in the annexure to the practitioner's statement. However, although it is said by the practitioner in his statement that the entries were completed at the time of consultation they were not included in logs sent to the Health Ombudsman. Finally, there are 9 patients for whom no entries are available. No issue was taken about this explanation by the HCCC.
8. In short, the practitioner acknowledges that the register may or may not have been completed for 9 of the 32 patients referred to in the amended schedule to the amended complaint. The practitioner has produced notebook entries in the annexure to his statement for sixteen of the patients listed in the schedule. We accept those entries were completed as required. But given the omissions acknowledged by the practitioner, we find that this particular is established in part.

Did the practitioner make "false" declarations to the Health Ombudsman in the relevant period?

1. The practitioner maintains that he did not provide false statements to the Health Ombudsman. This, he says, is because he believed the declarations he forwarded in compliance with the conditions were accurate.
2. Complaint Two is framed as follows: The practitioner submitted declarations in compliance with Condition 5 of the Chaperone Conditions, falsely stating that he had complied with the Chaperone Conditions, on the following dates: a. 16 January 2014; b. 17 December 2014 and c. 18 January 2014.
3. It is not in dispute as a result of the practitioner's concessions in respect of Complaint One and our findings in respect of particular 6 of that complaint, that there were deficiencies in the practitioner's record keeping. We find this was attributable, in part, to the notebook method he adopted as a chaperone log and unsatisfactory chaperone arrangements until the male chaperone was retained by the Centre.
4. We accept that it was after the investigation commenced that the practitioner checked records, obtained the male chaperone's signature where missing from entries, and sent further pages of the notebook to the Health Ombudsman.
5. The particular as pleaded asserts the practitioner "falsely stated" he had complied with the conditions. The unsatisfactory conduct pleaded is that the conduct was either improper or unethical.
6. The words improper or unethical conduct have been considered in a number of decisions of this Tribunal (see Health Care Complaints Commission v Little [2016] NSWCATOD 146; Health Care Complaints Commission v Liu [2016] NSWCATOD 133).
7. In both Health Care Complaints Commission v Little and in Health Care Complaints Commission v Liu the Tribunal referred to the dictionary definition of the words and adopted the definitions as being applicable to the words as used in the National Law.
8. In R v Byrne and Hopwood (1995) 193 CLR 501 [1995] HCA 1 the High Court considered the word "impropriety" and said: It was unnecessary for the other judgments to expound the meaning of "improper use"(12) but that case has rightly been taken to approve an objective test of impropriety(13). Impropriety does not depend on an alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important(14): the alleged offender's knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.
9. In Health Care Complaints Commission v Liu the Tribunal referred to the discussion of French CJ in Parker v Comptroller-General of Customs (2009) ALJR 494; [2009] HCA 7. There his Honour said: The relevant ordinary meanings of "improper" include "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong"
10. "Unethical" is defined in the Macquarie Dictionary as follows: contrary to moral precept; immoral. in contravention of some code of professional conduct.
11. Our first task in respect of Complaint Two is to determine whether the practitioner did submit declarations "falsely" stating he had complied with the chaperone conditions. Falsely is defined in the Macquarie Dictionary as: not true or correct; erroneous: a false statement; a false accusation. uttering or declaring what is untrue: false prophets; a false witness. deceitful; treacherous; faithless: a false friend. deceptive; used to deceive or mislead: false weights; to give a false impression.
12. Thus, after we determine our factual findings in respect of the particular relied on to support Complaint Two, we must then consider whether the conduct is established by judging it against like conduct satisfying those expressions (an objective test).
13. The test to be applied in considering whether a practitioner has made a false statement or been reckless or indifferent in making such a statement is a subjective test (see Fraser v Health Care Complaints Commission [2015] NSWCA 421; Giudice v Legal Profession Complaints Committee [2014] WASC 115).
14. We are not satisfied that this particular, and hence the complaint has been proved to the necessary standard. This is because we accept the practitioner's evidence that he did not know his records were incomplete until January 2015, and that until that time he believed he had complied with the conditions on his registration. In that belief he submitted documents referred to as statutory declarations to the Health Ombudsman in December and January 2014.

Does the practitioner's conduct constitute unsatisfactory professional conduct?

1. The authorities on the necessity to comply with conditions are clear and unambiguous (see particularly Prakash v Health Care Complaints Commission [2006] NSWCA 153; Re Dr Than Le (Medical Tribunal 20 September 2001 46 at [95]). It is to be remembered at time the conditions were imposed there was a clear and cogent basis for their imposition. At that time it was necessary, if the practitioner was to be permitted to continue practice, that he do so without risk to the health and safety of his woman patients and free from any possibility of sexual abuse.
2. Conditions imposed under s 150 of the National Law, or as a result of immediate action in other States, fulfil an important role in the scheme of the National Law. Conditions may enable a practitioner to continue to practise in his or her profession during the investigation of a complaint, including in circumstances of untested allegations involving boundary violations. The conditions are crafted to ensure, to the maximum extent possible, that the health and safety of the public is upheld and protected while they are in force. Accordingly, a significant responsibility lies with a practitioner during the currency of any conditions to comply with them notwithstanding administrative inconvenience or cost.
3. Complaint One relies on s 139B (1) (c) to ground a finding of unsatisfactory professional conduct. We are satisfied that the practitioner's concessions, and our findings that particular 6 of that complaint is established in part, satisfies the statutory definition of unsatisfactory professional conduct in s 139B (1) (c) of the National Law.

Does the practitioner's conduct constitute professional misconduct?

1. We accept the practitioner's evidence that at all consultations with female patients during the currency of the conditions the subject of the complaint he had a chaperone employed by the Centre, or the male chaperone or a relative (or a combination of them). We also accept that he did not have a template for a chaperone log notwithstanding his enquiries of the Health Ombudsman's office when the conditions were imposed. He adopted a clumsy, unsophisticated system for recording compliance with the conditions, a system that inevitably led to errors. He failed on a number of occasions to obtain the chaperone's signature to the notebook entries at the relevant time, or to carefully check, for example, against billings, that all consultations were recorded in the notebook and copies sent to the Health Ombudsman. We accept one error that involved an oversight in an entry when a relative acted as chaperone but did not sign the log although she provided her name and address.
2. The period of complaint is limited to a relatively brief period (essentially with one exception between November 2014 to December 2015). We also take into account that following his return to Queensland, and the provision of the template chaperone log, there is no suggestion the practitioner failed to comply with the original or substituted conditions.
3. We also accept that the practitioner has acknowledged his errors, and accepts responsibility for them. We have also given some weight to the practitioner's evidence that during the period he was in NSW he was under significant stress because of his impending criminal trial, and his financial responsibilities for his family in Queensland.
4. We are not satisfied that the established conduct is of such a serious nature that it justifies the suspension or cancellation of the practitioner's registration. Rather, the practitioner's conduct disclosed tardy record keeping using inappropriate methodology rather than deliberate non-compliance or disregard of the conditions. Accordingly we find Complaint Three is not proved.

What protective orders should be made?

1. At the commencement of our reasons we set out the orders sought by each of the parties.
2. As we have not found professional misconduct established, suspension of the practitioner's registration is not available. This is not a case where the imposition of conditions on the practitioner's registration is warranted.
3. Although the HCCC sought we should impose a fine on the practitioner, in the circumstances of this case, we do not find a fine is necessary given our conclusions about a reprimand discussed below.
4. We conclude that the appropriate order is to reprimand the practitioner. The reprimand reflects that compliance with conditions during their currency is of upmost importance and a breach of a condition or conditions reflects a lack of responsibility by the professional involved. It demonstrates that the practitioner is sanctioned for abrogating that responsibility through carelessness and/or inattention to detail. Secondly, the reprimand acts as a deterrent to other practitioners to engage in like conduct. Thirdly, and importantly, the reprimand upholds and reinforces the standards of the profession to which it expects its members to adhere.
5. Although the HCCC sought we should impose a fine on the practitioner, in the circumstances of this case, we do not find a fine is warranted.

Costs

1. No submissions were advanced on behalf of the practitioner that there were circumstances which would justify a departure from the normal position that the practitioner pay the HCCC's costs of and incidental to these proceedings.
2. Clause 13 of Schedule 5D sets out the power to award costs. The principles to be applied in awarding costs in proceedings under the NSW provisions of the National Law are well established (see HCCC v Do [2014] NSWCA 307).
3. These proceedings were necessitated because of the practitioner's failure to strictly comply with the conditions imposed on his registration by the Health Ombudsman.
4. We considered whether there were circumstances that would disentitle the HCCC to be reimbursed for the costs of the proceedings. We find, notwithstanding that the HCCC did not established Particular 1 of Complaint One, and Complaints Two and Three, that the proceedings were not unduly extended because of these complaints. We note that both parties' counsel conducted this matter in a timely but thorough manner enabling the matter to be concluded in one day. Accordingly, we will order that the practitioner pay the HCCC's costs as agreed, and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

ORDERS 1. Dr Suresh Perera ('the practitioner") is reprimanded. 2. The practitioner is to pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Appendix A (1.03 MB, pdf)

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

Amendments 06 August 2018 - 6/8/2018 - typographical error in line 1 paragraph [91] 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: 06 August 2018