Health Care Complaints Commission v Pilkington

NCAT Occupational|2020-02-21

REASONS FOR DECISION

Mr Pilkington first registered as a physiotherapist in 2011. In 2013 the practitioner worked in a physiotherapy practice in Blacktown.
On 24 October 2013 Patient A observed the practitioner filming her on his mobile phone under a curtain while she was in a state of undress in the course of a clinical consultation. Patient A continued with the treatment for a short time. She then made an excuse, left the consultation early and once outside called a trusted person who accompanied her to make a report to the police.
Police went to the practitioner's home that evening and seized his mobile phone. Initial analysis of the phone discovered material that appeared to be videos of Patient A and other patients, as well as child abuse material including a file titled, '12 year old masturbates to orgasm on web cam.'
The practitioner refused to be interviewed by, or provide a statement to, the police.
The Physiotherapy Council (the Council) received a complaint related to the practitioner's conduct concerning Patient A. The Council wrote to the practitioner, and in a letter of response dated 5 December 2013 the practitioner admitted that he had filmed Patient A and added that 'similar actions had occurred on a number of other occasions during the previous 18 months.' The Council ordered a health assessment by Dr Samuels and sought Mr Pilkington's consent to the imposition of 'chaperone' conditions from 13 December 2013. [1]
Dr Samuels' report, dated 24 January 2014, expressed the opinion that Mr Pilkington's 'paraphilic behaviours have impacted upon patient care', that he had 'limited understanding of boundary issues in the professional setting' and that his disclosure concerning the filming of a child patient 'raises concern in regard to his suitability to work with children.' Dr Samuels concluded by expressing concern that Mr Pilkington was working as a physiotherapist 'in any capacity'.

The Complaints and Issues

The HCCC brings five complaints. The first is that the practitioner has been convicted of a criminal offence, and the order sought in relation to this complaint is that the circumstances of the offence render the practitioner unfit in the public interest to practise the profession of physiotherapy pursuant to s 149C(1)(c). Complaint 2 is that the practitioner's conduct in filming Patient A was unsatisfactory professional conduct by reason of improper or unethical conduct relating to the practice of physiotherapy. Complaint 3 is that the practitioner's conduct in making videos of other female patients in the course of consultations was unsatisfactory professional conduct by reason of improper or unethical conduct relating to the practice of physiotherapy. Complaint 4 is that the particulars of complaints 2 and 3, both individually and cumulatively, amount to professional misconduct. The HCCC position was that the conduct was of such severity as to require cancellation of registration for misconduct pursuant to s 149C(1)(b). Complaint 5 is that the practitioner is not a suitable person to hold registration as a physiotherapist by reason of particularised conduct concerning his filming of his then partner, his friend, and members of the public, without their knowledge or consent. That conduct is the subject of a distinct complaint because it falls outside of the practice or purported practice of physiotherapy and was not ultimately the subject of the criminal conviction. Complaint 5 gives rise to a third basis upon which cancellation of registration was argued, which is that the practitioner is not a suitable person to be registered as a physiotherapist under s 149C(1)(d).
In addition to cancellation of registration, the HCCC sought a non review order of a period of 6 years, an order prohibiting the practitioner from providing health services pursuant to s 149C(5), and its costs of the proceedings.
The practitioner admitted all of the particulars, and conceded complaints 1 to 4, but did not concede complaint 5. It was the practitioner's position that he was not a suitable person to hold registration at the time of the events but now, some 6 years later, he was suitable. Nevertheless, the practitioner conceded that cancellation of registration was an appropriate order in the circumstances and that a form of prohibition order, in somewhat more limited terms than that sought by the HCCC, would be appropriate. Mr Pilkington submitted that a cancellation order would be a form of recognition of the seriousness of the conduct and would meet the need to maintain public confidence in the profession through ensuring that he underwent a re-registration process prior to returning to practice.
At the same time, Mr Pilkington submitted that there was no need for general deterrence or specific protection, as he had been through 'more than enough' to deter other practitioners from like conduct, and he posed no individual risk to the public. In opening submissions the practitioner stated that he 'couldn't think of anything I could do in the future that I haven't already done' by way of remediation and ensuring his fitness to practice.
Mr Pilkington opposed a 6 year non review period on the basis that he had effectively been out of practice for 6 years, that he would be able to demonstrate his suitability to return to practice much sooner, and that no 'signal' to the profession or general deterrence factor was necessary.
The practitioner submitted that he should not be liable for the entirety of the HCCC costs, in particular the cost of counsel, because he had understood that, by conceding the complaints, the matter would proceed to an attenuated hearing and the HCCC would not brief counsel.
The issues are therefore:

Whether the practitioner is a suitable person to hold registration as a physiotherapist;
Appropriate protective orders;
Costs.

The Hearing and Evidence

The hearing proceeded as both Stage 1 and 2 hearing in one day. The HCCC filed a limited bundle of evidence, which included a peer expert report by Ms Tracey Powell.
The practitioner submitted a response to the complaint, a 'confession' written around early 2014, a series of four reports by his former treating psychiatrist Dr Mark Ryan (February 2014, April 2015, August 2016 and February 2017), a 'Summary' document about Neurofeedback Research, which concludes by expressing opinions about Mr Pilkington's actions, diagnosis and likelihood of recidivism (this document had no author, signature or date but Mr Pilkington asserted it was authored by Dr Ryan in late 2016 or early 2017), a series of reports on EEG observations by two other practitioners acting under Dr Ryan's instructions (a Dr Jon Hegg from the Brain Training Centre in Kambah and Dr Juri Kropotov from the Institute of the Human Brain of Russian Academy of Sciences, St Petersburg), and several character references from family and friends, all dated from 2015, and from his current partner, dated 2017.
Mr Pilkington gave oral evidence, and Dr Ryan appeared by phone.

The Peer Expert Evidence

In her report, Ms Powell the peer expert was strongly critical of the practitioner's conduct in covertly filming multiple patients during treatment. She characterised that conduct as a breach of the duties in the Code of Conduct to be ethical and trustworthy, to ensure informed consent and to recognise that there is a power imbalance and not exploit patients physically or sexually. Ms Powell expressly characterised the practitioner's conduct as physical and sexual exploitation. Ms Powell noted that the video of a child patient was also a breach of the Code of Conduct duty to place the interest and wellbeing of the child first and to treat them with respect.
Ms Powell also commented upon another aspect of the practitioner's conduct that was not particularised as a distinct matter within the complaint, and which was the subject of contested evidence. This concerned a claim by the practitioner's former employer that the practitioner had refused to disclose to him the names of other patients whom he had filmed in states of undress. This matter is relevant as it goes to the practitioner's past and current attitude to his professional obligations, and to the question of him taking what he claims is 'full responsibility' for the conduct, and so is addressed below.
In a statement made to police in November 2013 the practitioner's former employer reported a conversation in which, some days after Patient A's complaint to the police, Mr Pilkington disclosed this event to him. It was the employer's account that he and Mr Pilkington had a conversation on 29 October 2013 while the practitioner was still under his employ. In that conversation he asked Mr Pilkington whether he had taken footage of any other patients and, when Mr Pilkington confirmed that there was 'more than one', asked for the names of those patients. He recollects Mr Pilkington refusing to do so and saying words to the effects of, No I don't think I should. I['d] rather have only one complaint than have multiple complaints. I just need to simplify the matters and get it sorted quickly.
Ms Powell commented upon this as an assumed fact, and was critical of the practitioner on the basis that he had a duty under the Code of Conduct to disclose an adverse event.
In his undated s 40 response to the HCCC, from approximately October 2018, the practitioner did not challenge the factual account but disputed that he had any obligation to disclose under the Code of Conduct 3.10 provision on open disclosure of adverse events, stating, As [the person making the request] was neither a patient nor a legal or otherwise official representative of the patient, the HCCC or the Police, or even my employer by that time [I] felt I was under no obligation to disclose those names to him and would be remiss if I did so without legal advice.
Under cross examination Mr Pilkington stated that the relevant conversation in which he had been asked for the names of other patients had occurred two days later, on 31 October 2013 when he went into the workplace for the last time to collect his things and sign a termination of employment document. He denied saying that he would 'rather have only one complaint.' Rather, he claims he simply refused to answer the question. His rationale for that refusal was that he did not yet have legal advice on who he was allowed to tell what, and that as this person was no longer his current employer he had no obligation to answer the question.

Mr Pilkington

The practitioner presented throughout the conduct of the hearing as intelligent, orderly, considered and articulate. He presented his case very calmly and capably. To the limited extent that demeanour and presentation can be a guide to one's state of health, he showed no signs of the learning disability, impulse control, attention deficit disorder, distractibility and inattention that are noted as the diagnosis at the outset of 'neurofeedback reports' undertaken by Mr Hegg at Dr Ryan's direction in 2015.
In a 'confession' document authored by the practitioner sometime in early 2014, and sent via email on 6 March 2014 to the friend whom he had filmed in his home, Person B, the practitioner explains his conduct, at some length, as an addiction. This statement refers to him filming patients, 'After a 12 hour day or early on a Saturday morning, times when I was fatigued and not thinking clearly…' and when there was a 'stressful week at work or I would be having a rough time at home.'
In his 2018 s 40 response the practitioner began by stating that he was 'very sorry' to have harmed Patient A and the other patients and then stated that he would take the opportunity to, tell my side of the story, not to excuse or deny, but to explain how such behaviour could occur in the first place, and to assure that it will never happen again.
Mr Pilkington states that he has received a 'broad diagnosis' from Dr Ryan, and those who worked under his direction, of, an underlying genetic predisposition that gave rise to a vulnerable neural architecture that was particularly susceptible to fatigue.
There follows a lengthy paraphrasing of Dr Ryan and his associate's views, including a number of what appear to be unsourced quotes from various reports, concluding with Mr Pilkington's claim that, The outcome of this impairment was that when fatigued and stressed I would effectively lose any ability to control my impulses.
Mr Pilkington's 2018 statement notes that at the time he filmed Patient A he was planning a wedding with his long-time partner and had just bought a house, 'objectively good things but no less stressful because of it' and that another practitioner at the practice had been off work for four days, leading to an increased workload.
The statement continues by presenting in table format the practitioner's management strategies for dealing with stressors such as fatigue, heat, caffeine, white noise, interruptions, working alone and stressful events/periods.
In a written statement to the Tribunal Mr Pilkington stated, From 2011 to 2013, in my first years as a practising Physiotherapist, I found myself behaving inappropriately from time to time…I was fully aware that these behaviours were highly unethical and constituted a violation of trust with my patients however Iacked the tools to stop myself…I found myself continuing to do so.
Under cross examination, Mr Pilkington stated that he had undertaken sleep function tests under Dr Ryan's direction, but that these tests were not included in his evidence and that they had not disclosed anything irregular.
In oral evidence Mr Pilkington stated that he had been engaged in various forms of customer service work since 2013, had been in a stable relationship for the past six years, was now living in a NSW regional centre, and had only undertaken physiotherapy and massage on family members on a gratuitous basis. He expressed surprise at the suggestion from counsel for the HCCC that treating family members could constitute a breach of the terms of his suspension from registration.
It was Mr Pilkington's evidence that he had accessed child abuse material 'very very infrequently.' He stated that he had not accessed pornographic material nor filmed anyone without their consent, since the time of the complaint in October 2013. He believes that he is now able to successfully inhibit his impulses and that he no longer has the impulses that he did at the time of the conduct, because at the time he was heavily using internet pornography largely of a voyeuristic nature. In Mr Pilkington's view, the fact that he had gone through a criminal process which could have resulted in gaol ('one of the most stressful circumstances for someone in our society to go through') without repeating the conduct demonstrated that he no longer posed a risk to the public.
Under cross examination, counsel for the HCCC pressed Mr Pilkington on how he would respond to future stressful situations and pressure on his impulse control. He stated that he believed he could treat patients 'quite effectively' without requiring them to disrobe and that there was no risk of him repeating the conduct, adding, I accept that there's no such thing as a zero percent chance of anything occurring, but I don't believe that I am at any increased risk over anyone else in this room.
The gravamen of the practitioner's position was that his conduct arose from an escalating addiction to pornography and poor impulse control exacerbated by fatigue. The fatigue was further exacerbated by the pornography addiction as he stayed up at night using it instead of sleeping. At the time of the conduct he states he was spending 10 to 20 hours a week accessing pornography. The filming of patients, and others, was an expression of that addiction and was undertaken in a spontaneous and unplanned way; moreover the motivation was to capture the image not to view it. Mr Pilkington stated consistently, from the 2014 'confession' onwards, that he deleted most of the material. In oral evidence he stated that he 'almost never' watched the videos he had taken of patients. He also stated that ceasing pornography use meant that his impulse to 'film people' had ceased.
Mr Pilkington stated under cross examination that he had filmed his then partner during skype conversations on numerous occasions, at first using a web camera focused on the computer screen, and later using screen capture software. He filmed his friend using the same web camera which was 'already set up' and sitting on the desk in the room the friend was staying in.
Under cross examination Ms Barnes for the HCCC put to Mr Pilkington that these acts indicated forethought and planning on his part, such as the placement of cameras to focus on the screen, and an area where he assumed the friend would be unclad, respectively. It also involved the installation or activation of software, and in the case of the friend, setting the camera to be motion activated.
Ms Barnes put to the practitioner that the fact that the files were found on multiple devices, including a storage device, indicated organisation and planning, as Mr Pilkington must have moved them for storage and use. Mr Pilkington stated that he had not intentionally copied the files to other devices, rather he periodically backed up his computer onto a storage device and so all files would be copied across to the storage device if they hadn't been deleted first. Mr Pilkington confirmed that he downloaded pornography via various peer to peer networks which were on his computer but not on his phone. He conceded that to find some of the images and videos he was in possession of he would type in particular search terms. He conceded that some of those search terms included ages, such as '12 year old'.
In light of this explanation, the Tribunal questioned Mr Pilkington about how the child abuse material in the file titled, '12 year old masturbates to orgasm on web cam' came to be on his mobile phone when the police seized it. He responded that it was a 'back up'. However when asked whether he had backed his computer files up onto his phone, rather than the other way around which is customary, he said 'no'. The Tribunal asked whether Mr Pilkington had copied that file from the computer onto his phone to enable ready access to it and he said 'yes'. He then corrected his answer to say it wasn't really 'ready access' because he had encrypted the file to make sure it was in a format that others could not observe it.
When asked for his reflections on the conduct overall, Mr Pilkington stated that he was upset that he caused patients harm, and was, very sorry that Patient A had to be put in this situation for me to make changes that needed to be made. I am equally remorseful and grateful to her.
In respect of the child abuse material, Mr Pilkington stated that at the time he was not thinking about the harm inflicted on children to make it, he thought of it as victimless at the time because he was only downloading it. When asked by the HCCC whether he accepted that such material was created to 'meet demand from people like you?' Mr Pilkington denied this, stating that he was not the 'target audience' because he had never paid for the content and so was not creating that market. He added that he accepted that he was still 'in that marketplace.'
The Tribunal members asked the practitioner a series of questions about how he understood his conduct, and the role of his treatment.
The Tribunal asked why he had stopped the filming conduct at the point of Patient A's complaint to the police. The practitioner replied that being caught, 'Took the game out of it.'
The Tribunal asked the practitioner whether he had talked to Dr Ryan about his conduct in the context of the objectification of women and girls and he responded with words to the effect of, Yes. He thought it was less relevant to this circumstance. He thought it was more about the use of the technology and not about the kind of offence. It was not about flesh and blood humans, it was a pornographic compulsion that spread out into real life through making more pornography rather than doing anything to women. It was a passive modality. I didn't do anything to women themselves.
When asked whether he had objectified women and girls through the conduct the practitioner replied words to the effect, I would say yes and no. The actions themselves do objectify, but that was not the reason for the behaviour, and was not a cause of the behaviour.
The Tribunal took Mr Pilkington to the police statement made by his former partner in February 2014 in which she stated her recollection of a conversation between them on the day following Patient A's complaint, as follows: I asked him, 'How many patients he photographed.' Nic said, 'more tha[n] [a] few.' I asked him if he photographed my mother as she had been treated by him. Nic said, 'No'. I remember Nic chuck[l]ed when he said this. I asked him if he photographed my personal trainer to which he said, 'Yes'.
The practitioner confirmed that this conversation had occurred and accorded with his recollection of it. The Tribunal asked him why he had laughed. In response to this question Mr Pilkington stated that he had a 'black sense of humour'. When asked to explain the humour, he laughed and said that while he didn't want to be offensive, 'her mother was not the most attractive person and there needs to be a level of attraction for these sorts of compulsions to take effect.'
The Tribunal asked the practitioner to explain why he believed he was a suitable person to practise as a physiotherapist, and how the Tribunal could be confident that the public would be safe. Mr Pilkington stated that he had not repeated the conduct in the long period since, had come to terms with it over a long time, had strengthened his ability to inhibit impulses, and what was causing the impulses had been 'porn usage', and that as he no longer used it, the impulse was no longer there.

Dr Ryan

The HCCC issued a summons for Dr Ryan's clinical records but these were not provided.
Dr Ryan has been registered as a psychiatrist since 1999 and he works in a field he describes as 'offering personal healthcare interventions' for a global heath care company, with a particular focus on assessment of depression and ADHD and the role of sleep and fatigue. A copy of Dr Ryan's CV was not in evidence. In giving oral evidence, Dr Ryan did not have before him copies of the various reports noted below. Dr Ryan stated that his treatment of the practitioner had involved 'about 12 months of regular contact working on strategies that were relative to his predicament.'
In a report of February 2014 written for the Council process, Dr Ryan stated that he had first seen Mr Pilkington on 6 November 2013.
In the 2014 report Dr Ryan states that the history he took was similar to that reported in Dr Samuel's report. Dr Ryan characterises the conduct as obsessive compulsive and addictive, and opines that it indicates 'very poor judgment and suggests problems in self-regulation.' There is no mention of a long history of sleep deprivation or impaired impulse control or ADHD. The report concludes that Mr Pilkington is, making progress although there is still some way to go and at some point he should also undertake appropriate education in relation to ethical behaviour and professional conduct.
An April 2015 report provided by Dr Ryan to Mr Pilkington's solicitors begins with a fresh account of the conduct as having generally occurred 'at the end of a long day(s) of work and/or after several nights of limited sleep'.
The April 2015 report takes issue with Dr Samuel's report in the following terms: At that stage [2013] there did not appear to be any obvious psychiatric diagnosis and a medicolegal psychiatric assessment by a Dr Samuels concluded that apart from the paraphilia there was no apparent anxiety or depression. However in my view such an exclusive clinical diagnostic approach is lacking and fails to provide any real or adequate understanding of this man and his behaviours.
Dr Ryan states that he was 'struck' by the 'spontaneous account' of Mr Pilkington's behaviours which 'suggested to me that there were problems related to impulsivity and compulsivity', and he goes on to link these to a 'neurophysiological vulnerability, likely aggravated by fatigue and sleep debt.'
The 2015 report states that the practitioner has developed a clear empathic understanding of the effects and impact of his behaviour on others and this has coincided with the emergence of empathy and appropriate emotionality that was not previously apparent.
In the August 2016 report Dr Ryan restated his view as follows: Mr Pilkington's behaviours are understandable as a neuropsychiatric disorder in which higher order cognitive processing and response inhibition are impaired. In his case these problems become apparent when fatigued. Arguably there is likely to be an element of reduced responsibility and definitely a case for treatment rather than punishment.
The final report is dated February 2017. Dr Ryan stated that he ceased treating the practitioner around this time. In that report Dr Ryan stated that Mr Pilkington had been, very compliant with a range of strategies. Specifically he has been very disciplined with sleep hygiene and this has enabled clear and definite improvement in well being and functioning - particularly impulse control and other self regulation. Consequently there has been no instance of problematic behaviours of the sort that resulted in his legal predicament.
Dr Ryan goes on to characterise Mr Pilkington's conduct as a process of using pornography and 'escalation to more and more provocative and illegal content' and compulsive and disinhibited behaviours, such that 'there is and has been no evidence for paraphilia or paedophilia.'
In oral evidence Dr Ryan stated that he was not aware that the practitioner's conduct involved filming members of the public and a friend who was a guest in his home. That is, his understanding of the conduct was limited to the filming of patients, Mr Pilkington's then partner, and possession of the child abuse material.
In oral evidence Dr Ryan described Mr Pilkington as having a: Long term history of impulsivity and inattention and that implied that he'd been carrying a sleep debt - that accumulates over time and lack of sleep escalates his cognitive impairment.
When asked whether his view would change now he was aware that Mr Pilkington had not disclosed all of the conduct to him, or if he became aware that some of the conduct involved planning and premeditation, Dr Ryan replied, 'Yes well, somewhat'. He then stated that the distinction between planning and impulsivity was 'not as clear as it might seem', and that while there may be different legal implications from the various disclosed and undisclosed behaviours, in his view they involved the 'same flavour of functioning' and would engage similar strategies of treatment.
In response to a question from the HCCC about the element of sexual gratification in the practitioner's conduct Dr Ryan stated that this 'wasn't the prominent theme in what was motivating his behaviour.' Dr Ryan stated, 'His brain just didn't have the brakes working properly at that point.' Later in his oral evidence Dr Ryan stressed the role of fatigue, and stated that the research evidence on clinical error rates in health care professionals demonstrates the significant impact of fatigue.
The HCCC asked Dr Ryan whether in his opinion the search terms used by the practitioner indicated a sexual attraction or motivation and he replied, I never sort of went into that with any sort of detail with him. He was responding to the obligatory nature of the impulse. It was no longer in any way rational or sensible. My sense of him was that it was an escalated search behaviour.
Dr Ryan was asked if he referred Mr Pilkington to a treatment program specifically targeted towards sex offenders and he replied, that it was, Not something I canvassed with him. It didn't reflect my formulation of what was happening to him.

Submissions

The HCCC submitted that little weight should be accorded to the 'neurofeedback documents' submitted by Mr Pilkington on the basis that they had been made some time ago, one of them was of unclear provenance and Dr Ryan was unable to state whether he stood by them.
Ms Barnes noted that Mr Pilkington had not undertaken any training, ethics courses or education in response to Dr Ryan's 2014 recommendation. She submitted that the practitioner had not taken any specific steps towards rehabilitation in the past 6 years. The treatment with Dr Ryan did not address the nature of the offending conduct. While addressing the role of sleep deficit in impulse control may be generally helpful, it did not fully address the offending conduct as sexual conduct, as an abuse of professional position, and as conduct of a gravely serious and harmful nature. Mr Pilkington had not acted compulsively by gambling or stealing, but by selectively filming 'attractive' female patients within his consulting room in a professional context, filming unknown women in public places, filming women within his home and downloading and copying child abuse material onto various devices.
Moreover, the HCCC submitted the conduct occurred over a lengthy period and in multiple contexts, and could not be characterised as spontaneous or disorganised. Mr Pilkington did not acknowledge that the conduct involved forethought and objectification. This conduct represented abuses of trust in multiple arenas of his professional and personal life.
In closing submissions, the practitioner submitted that he had a duty of disclosure to the relevant authority, not to his former employer, and so was entitled to refuse to identify the other patients he had filmed when asked about it in 2013.
Mr Pilkington referred more than once to the 'swiss cheese' model (a widely used model of system failure used in healthcare) to explain his conduct. In doing this the practitioner identified various factors such as impulse creation, impulse inhibition, fatigue, and so on, as his 'defences' which were analogised to the layers of cheese with holes that, when aligned, allowed the conduct to fall through or occur.
Mr Pilkington submitted that he had 'a functional impairment not a structural impairment', which was now effectively remediated through his concluded treatment with Dr Ryan. He would however consult Dr Ryan again before attempting to return to practice.
The practitioner stated that he had six years of opportunity to put himself in a better position and had done so. He was not a suitable person to be a physiotherapist at the time of the conduct, but that does not mean that he will never be a suitable person. In his view, he is currently suitable.
While conceding that a cancellation order was appropriate, Mr Pilkington stated that he should be able to treat people in the meantime, whether as a physiotherapist or as a massage therapist, if those people have a full knowledge of the particulars of the matters. In his view the terms of any prohibition order should allow him to undertake such activities.

Consideration and Findings

We concur in the peer expert's view that the conduct involving the patients was substantially below the expected standard, and that it was sexually exploitative conduct of a grossly improper and unethical nature.
Although we are not in a position to determine on the balance of probabilities which account of the 2013 conversation about the request for disclosure of the patient names is accurate, we concur in the peer expert's criticism because neither version reflects well on the practitioner's attitude to his ethical obligations at that point in time. Whenever the conversation occurred, the practitioner was ethically obligated to respond with candour to the request for information about patients who were affected by his misconduct which was made by the owner of the practice at which the conduct took place. The fact that the practitioner continues to defend this conduct as appropriate in the context of his professional responsibilities is of concern.
Throughout these proceedings, the practitioner characterised his conduct as 'not doing something' to a 'flesh and blood' person. Although he now states that he accepts that his conduct was not victimless, the Tribunal is not convinced that the practitioner fully appreciates the harmfulness of his conduct, nor that he genuinely accepts responsibility for it.
The evidence and submissions of the practitioner, while well-crafted and superficially persuasive, were replete with instances of him minimising the seriousness of the conduct and his own responsibility for it. There was limited acknowledgement from the practitioner that the conduct was harmful, that it was an abuse of power and abuse of a position of trust. In particular, there was no sense that Mr Pilkington had any genuine empathy for the feelings of the women and girls whose vulnerability he had exploited. A number of examples, by no means all that occurred in the course of the hearing, are highlighted below.
At every stage of the proceedings the practitioner used minimising and passive language to characterise his misconduct. It was repeatedly described as something which had happened to him, or which he allowed or was unable to stop from happening, never as something that he did, that he did to others, and that he did to others who were under his care.
In oral evidence the practitioner at one point referred to his conduct as 'allowing a brief moment of titillation to ruin my life.'
In his December 2013 letter to the Council Mr Pilkington referred to his failure to seek professional help during the period of the conduct and stated, 'As a consequence of my inaction [Patient A] was affected by my problem and for this I offer her my unequivocal and deeply felt apology.'
See also egs in paras 5, 31, 34, 44.
The exchange between the practitioner and his former partner when his conduct concerning Patient A was exposed, and his current reflection on that exchange, was a particularly telling manifestation of the practitioner's lack of appreciation of the abusive nature of his conduct and its effects upon those who were the targets of it. On finding out that her partner of several years had been non-consensually filming his female patients, Person A would quite likely have been in a state of some distress. Person A did not at that time know that the practitioner had also filmed her, and his friend. Her first question was to ask if her own mother, whom she had entrusted to the practitioner's professional care, had also been violated in this manner. Mr Pilkington's reaction at the time was to laugh, because he thought his partner's mother was unattractive. In the witness box, recalling this event, he laughed again.
The practitioner's reference to detection 'taking the game out of it' suggested a distinct lack of understanding and reflection about how his behaviours impacted on his patients and his profession.
The practitioner relied upon the treatment program and opinion evidence of Dr Ryan to portray himself as vulnerable, at risk, a victim of addiction and circumstances, and helpless (at the time) to stop what was occurring. We reject this characterisation as unfounded in fact.
This was not a single, or limited, form of impulsive act. It was a sustained course of repeated conduct over a long period of time, of around three years, representing the entirety of the period in which the practitioner was registered as a physiotherapist. Nor did it occur at a time of acute crisis or in circumstances of personal turmoil such as to justify the conclusion that it was 'out of character'. To the contrary, the evidence was that Mr Pilkington had a supportive family, and stable relationship, housing and employment.
This was not impulsive, unplanned or unintentional behaviour. There were clear examples of planning and premeditation, such as Mr Pilkington setting up the camera in advance to film his partner and to film his friend.
This was not conduct that involved only the 'game' of capturing images which were not motivated by sexual objectification or sexual self-gratification. The Tribunal concludes that the behaviour was motivated by sexual objectification and a desire for power and control, as exemplified by the practitioner's admission that he selected only 'attractive' women as targets for filming, the non-consensual nature of the filming, the fact that he primarily chose targets who were under his professional care, and through his storage of the images on multiple devices. The encrypting and transferring the child abuse file to his phone evinces both the intention to access the material readily, and organisation and forethought in trying to avoid detection.
The practitioner's use of the 'swiss cheese' model of accident causation also exemplifies his tendency to minimise and avoid responsibility for his conduct. Notably, the 'swiss cheese model' explains iatrogenic harm as a form of system failure that allows accidents and clinical errors to occur. In essence it poses this as series of system defences to harm (the layers of swiss cheese) which, by a confluence of acts and omissions by multiple actors and processes, whether small or large, longstanding or brief, align such that the holes match up and lead to errors. [2] However, the practitioner is not a system in which different elements and actors align or clash in a manner outside his control. Every element of the 'system' he identified (impulse, impulse control etc) is in fact himself, and under his sole control and responsibility. Nor was any of the practitioner's extensive conduct an accident.
The Tribunal gives no weight to Dr Ryan's opinion that the practitioner is fully remediated and presents 'minimal to no risk of re-offending'. Further we have serious doubts about the utility of Dr Ryan's treatment in enabling Mr Pilkington's future remediation.
Without in any way seeking to discourage unwell health practitioners from seeking treatment, or taking away from the important work that health regulators do in supporting and managing impaired health practitioners to practise safely, when, as in this case, a health practitioner who is finally caught out after a long period of very serious misconduct runs directly to the doctor, a degree of scepticism about the clinical history and diagnosis is merited.
Mr Pilkington's presentation to Dr Ryan immediately followed the police commencing an investigation of Patient A's complaint.
There was no contemporaneous or corroborating evidence that the practitioner suffered a learning disability, was diagnosed with ADHD or expressed symptoms of impaired impulse control or a sleep disorder prior to his presentation to Dr Ryan. To that point the practitioner had completed a number of tertiary studies and held down stable full time employment since 2011. There was also no evidence of a sleep disorder found throughout the treatment process.
Dr Ryan described his 'neurofeedback' practice as very focused upon sleep deficit and impulse control. Through Dr Ryan's lengthy and somewhat vague oral testimony (recollecting that both he and the Tribunal were unaided by any clinical records), we were reminded of the adage that to a man with a hammer, the whole world is a nail. Moreover, Dr Ryan had an incomplete account from the practitioner of the offending conduct and had accepted the practitioner's account (which we do not) that the filmed material was not for sexual gratification. Thus, Dr Ryan did not characterise the practitioner's conduct as a form of sexual offending.
In light of the above, and our concerns about the lack of empathy, insight and responsibility expressed by the practitioner, we cannot accept Dr Ryan's opinion that the practitioner poses no on-going risk to the public.
The character references submitted by the practitioner speak of him as a loyal, caring and trusted friend and family member. Although it is a positive thing for Mr Pilkington that he has supportive friends and family, and a current partner, who have remained supportive of him in light of their knowledge of the criminal charge, we are unable to place much weight upon these character references because they were made for the purpose of the criminal proceedings. The references do not concern the professional abilities or attitudes of Mr Pilkington as a health practitioner, and have little to offer in this context.
In relation to complaints 2 and 3, Mr Pilkington breached the trust of Patient A and numerous other female patients to covertly film them within the treatment setting. This was abusive and exploitative, it involved the sexual objectification of patients who had come to him for help, and who were under his care. Those patients, who were partially unclothed for the purpose of treatment, had their vulnerability manipulated into a product for sexual self-gratification, that by reason of its covert and transferable form, was entirely under the practitioner's control. There is no question that this conduct was so seriously unethical and improper as to amount to professional misconduct.
A cancellation order is required to protect the health and safety of the public, both because of the risk that the practitioner still poses to patients and to signal to the profession and the public the seriousness with which the misconduct is judged.
The circumstances of the criminal offence, of possession of child abuse material, is such as to make the practitioner unfit in the public interest to practise physiotherapy. The practitioner remains on the child protection register as a result of the conviction. Child abuse material is created through child sexual abuse and such abuse causes profound and long-lasting harm to the health, welfare and well-being of children. An offence such as the one the practitioner has been convicted of is regarded as extremely serious in the community, and as one that would cast the trustworthiness and integrity of almost any health practitioner, whether or not they treated child patients, into question.
The practitioner also covertly filmed a child patient during treatment. This escalation of behaviour is of particular concern to the Tribunal. In dealing with minors, the community expects healthcare professionals to hold themselves to the highest standards of conduct and accountability.
The maintenance of the reputation of the profession and the trust that is reposed in the profession by the public are relevant matters in determining whether a practitioner is not a suitable person to hold registration: HCCC v Roopra (No 2) [2013] NSWDT 3.
The practitioner abused the trust of his partner, and of a friend who was his house guest and intruded upon and violated the privacy and dignity of members of the public in covertly filming them. This conduct is of such gravity as to render the person unsuitable to practise physiotherapy.
The public relies upon health practitioners to treat them with respect, and to prioritise their welfare. It is hard to imagine how the public could have confidence in the profession of physiotherapy if the practitioner were found to be a suitable person to practice in light of the Tribunal's findings.
In fixing a period of non-review the Tribunal is not required to take into account the fact that a respondent has been suspended from practice for a period: Qasim v HCCC [2015] NSWCA 282 [73]. However what the practitioner has done in that period of time may be relevant to demonstrating remediation and reform. In this matter, the practitioner has not undertaken any ethical training or remediation efforts, despite such efforts being suggested by his psychiatrist in 2014.
Nor has the practitioner addressed the controlling, demeaning and sexual nature of his abusive behaviour. Rather it appears that he engaged a psychiatrist, largely for the purposes of the criminal proceedings, to treat him for fatigue and poor impulse control. The practitioner has relied upon this treatment in a minimising, deflecting and even exculpatory manner, which provides the Tribunal no reassurance that it should be regarded as preventative of any possible future recurrence.
In light of all of our findings, the only appropriate order to protect the health and safety of the public is cancellation of the practitioner's registration.
A non-review period can signal to the profession and the public the seriousness with which the Tribunal views the conduct, and can indicate a minimum period that the Tribunal considers is required for the practitioner to demonstrate remediation: Chen v HCCC [2017] NSWCA 186.
Given our concern about the risk the practitioner still poses to the public, our lack of confidence in his limited treatment and remediation efforts to date, and the need to signal to the public and the profession the seriousness with which we judge this conduct, a non-review period of 7 years is appropriate.
The criminal proceedings addressed a small portion of Mr Pilkington's conduct and we reject his submission that those proceedings provide sufficient signal to the profession. In particular, those proceedings did not address Mr Pilkington's violation of his patient's privacy and dignity through his misconduct.
We find that the higher threshold of substantial risk to the health of members of the public is also met, justifying the imposition of a prohibition order.
Given the seriousness of the conduct, the range of personal, public and professional settings in which it occurred, and the practitioner's continued minimisation and lack of insight about the abusive nature of the conduct, we are concerned that he would pose a substantial risk to the public in almost any health service. In addition the continued gratuitous provision of physiotherapy services while suspended and the practitioner's wish to continue to provide physiotherapy and massage therapy services to friends and family while under a cancellation and prohibition order cause concern about his continued lack of boundaries and appropriate professional judgement.
We are mindful of the view expressed in HCCC v Goyer (No 2) [2019] NSWCATOD 195 that a prohibition order framed to include every health service as defined by s 4 may be so broad as to be unenforceable. While that view was an obiter view only, and has not been judicially tested, we are concerned to identify a range of specific health services to ensure both that the practitioner is able to understand the scope of the orders, and that they are enforceable.
As such, we make clear that the purpose of the prohibition order is to cover all health services in a treating or caring role, including as a personal care assistant, where the practitioner would be in physical contact with patients or in which patients may be required to partially or fully undress in the course of treatment or care provision. The prohibition order is defined to include: (a) medical, hospital, nursing and midwifery services, (e) ambulance services, (f) community health services, (h) welfare services necessary to implement the above services, (j1) massage therapy, and (k) services provided in other alternative health care fields, within the terms of s 4 of the Health Care Complaints Act 1993 (NSW).
The cancellation of registration and the prohibition order mean that Mr Pilkington is not permitted to provide physiotherapy or massage services, respectively, even on a gratuitous basis to treat people known to him, as he has indicated he wishes to do.
The HCCC has been wholly successful in its case and has acted properly in the proceedings. The hearing was required because not all complaints were admitted, the practitioner submitted medical reports, which it was appropriate to test, and the parties urged different approaches to the question of the practitioner's motivation and remediation and to his suitability to practise.
The HCCC is entitled to the costs of the proceedings: Qasim v HCCC [2015] NSWCA 282 [84]-[85].

Orders 1. The registration of the practitioner as a physiotherapist is cancelled pursuant to s149C(1)(b), (c) and (d); 2. Pursuant to s 149C(7) of the National Law the practitioner may not apply to the Tribunal for a review of these orders for a period of 7 years from the date of these orders; 3. Pursuant to s 149C(5) the practitioner is prohibited from providing health services as defined in s 4(a),(e), (f)-(h), (j1), (k) of the Health Care Complaints Act 1993 (NSW), whether provided as public, private or volunteer services, unless and until the Tribunal reviews order 1, above; 4. The respondent is to pay the applicant's costs of these proceedings as agreed or as assessed under the Legal Profession Uniform Law Act 2014 (NSW). 5. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibition of disclosure or publication of the names of Patient A and Persons A and B listed in the schedule to the complaint.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

Endnotes

We note that it was some years later that an inquiry commissioned by the Medical Board of Australia found that so called 'chaperone' conditions are not generally appropriate in cases of proved or admitted sexual misconduct. Even as an interim measure in situations where allegations are contested the report recommended that they not be used if there are serious criminal charges or allegations concerning multiple patients: Ron Paterson, Independent Review of the Use of Chaperones to Protect Patients in Australia (2017).
See James Reason, 'Human Error: Models and Management' (2000) 320 (7237) BMJ 768. 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: 16 March 2020

Legal Profession Uniform Law Act 2014(NSW)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (4)

Cited By (3)