Health Care Complaints Commission v Robinson

NCAT Occupational|2022-12-08

c. To authorise the Medical Council of NSW to provide proposed and approved supervisors with the decision that imposed this condition and any other decision or report as determined by the Council. d. Not to practise until a supervisor has been approved by the Medical Council of NSW. 5. To submit to a random audit/inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW. a. The audit/inspection is to be held as required by the Council to assess his compliance with conditions imposed on his registration. The auditor(s) may: - inspect medical records; b. To authorise the auditor(s)/inspector(s) to provide the Council with a report on their findings. c. To meet all costs associated with the audit(s)/inspection(s) and any subsequent reports. 6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 7. To authorise and consent to any exchange of information between the Medical Council of NSW and future relevant persons or organisations at locations where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health Conditions (not for the public) 8. To attend for treatment by a psychiatrist of his choice and if recommended by his psychiatrist, to attend upon a psychologist. The frequency of treatment is to be determined by the treating psychiatrist. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: i. failure to attend for treatment; ii. termination of treatment; iii. a significant change in the health status or a significant failure to accept or implement the advice provided (including a significant temporary change); b. must provide the Council with the professional details of the treating practitioner; c. must provide evidence (in the form of a letter from his psychiatrist) to the Council of his attendance with the treating psychiatrist. Review provisions 9. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 10. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. (3) The Respondent is to pay the costs of the HCCC as agreed or as assessed. Catchwords: HEALTH - professional registration and discipline - disciplinary proceedings- stage 2 determination - protective orders following stage 1 decision of unsatisfactory professional conduct and professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Practitioner Regulation National Law (NSW), ss 3, 3A, 3B, 139B(1)(a), 139E, 149C(1) Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 Hampshire v Health Care Complaints Commission (NSW) [2021] NSWCA 283 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Bours (No 2) [2015] NSWCATOD 80 Health Care Complaints Commission v Burton [2017] NSWCATOD 57 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Gillett [2007] NSWNMT 7 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Robinson [2021] NSWCATOD 142 Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151 Lee v Health Care Complaints Commission [2012] NSWCA 80 Medical Practitioners Board of Victoria v Lal (2009) 23 VR 702; [2009] VSCA 109 NSW Bar Association v Meakes [2006] NSWCA 340 Category: Consequential orders Parties: Health Care Complaints Commission (Applicant) David Isaac Matzner Robinson (Respondent) Representation: Counsel: P Lowson (Applicant) R Mathur SC (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/00112474 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), an order is made prohibiting publication of the name of any person identified as a patient, or former patient, of the Respondent, or any information which may tend to identify any such person, including the name of any psychologist treating such patient.

REASONS FOR DECISION

On 24 November 2022 this Tribunal found David Robinson ("the Respondent") guilty of unsatisfactory professional conduct (Health Practitioner Regulation National Law (NSW) (National Law), s 139B(1)(a)) and professional misconduct (National Law, s 139E). That decision was made following the Tribunal's earlier decision, made on 14 September 2021, being the subject of an order made by the NSW Court of Appeal on 26 August 2022 which allowed the appeal of the Health Care Complaints Commission ("the Applicant", also referred to herein as "the HCCC") and required "[t]he whole of the Application for Disciplinary Findings and Orders filed by the Health Care Complaints Commission on 9 April 2020 be reconsidered by the Tribunal in accordance with these reasons": Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [116] (Simpson AJA).
In order to have regard to the reasoning provided in this determination, it is necessary to consider the decisions of this Tribunal made 14 September 2021 (Health Care Complaints Commission v Robinson [2021] NSWCATOD 142) and 24 November 2022 (Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151) together with the decision of the NSW Court of Appeal made 26 August 2022.
On 8 December 2022 this Tribunal heard from the parties, in that part of the proceeding which is referred to as "Stage 2". Stage 2 considers whether any protective orders should be made, consequent upon the Tribunal's findings that the Respondent is guilty of both unsatisfactory professional conduct and professional misconduct.
The evidence tendered by the Applicant in the Stage 2 hearing was received and marked as follows: 1. Exhibit 2A: Documents served by the HCCC in Stage 2. 2. Exhibit 2B: The whole of the transcript from the s.150 hearing in which the Respondent appeared. (The document was marked as part of Exhibit A1 in the Stage 1 hearing and was labelled as Tab 25). 3. MFI 1: The written submission of the HCCC provided for the Stage 2 hearing.
The Respondent tendered the following evidence. 1. Exhibit 2R1: Four documents containing evidence relied upon by the Respondent. 2. MFI 2: The Respondent's submission in relation to Stage 2. 3. Exhibit 2R2: Copies of letters from HWL Ebsworth to Mr Henley, Ms Rosenberg and Mr Franklin dated 5 December 2022.
The Respondent was the only witness required to give oral evidence. The Respondent said his Statement dated 6 December 2022 was true and correct. The Respondent was cross-examined by the Applicant. He was asked about his stated desire to apologise to Patient A for the harm he had occasioned to her. He was asked to identify the harm he considered he had visited upon Patient A. The Respondent said he understood she was physically distressed by the consultation. It was clear in the Respondent's mind that he had caused Patient A's distress.
At the conclusion of the hearing on 8 December 2022 we made the following directions: 1. The HCCC is to provide to the Tribunal with the decision of the Medical Council of NSW ("Medical Council"), as to compliance by the Respondent with the conditions imposed on his registration by the Medical Council, on 22 February 2018, upon such decision being made available to the HCCC. 2. The Tribunal requests the HCCC to provide a list of conditions, if any, it would submit should be considered, in the event of the Tribunal determining a protective order, other than cancellation of the Respondents registration, should be made. Any such list of conditions together with any written submission in support of same, to be provided to the Tribunal and the Respondent at the same time as the outcome of the Medical Council of NSW's consideration of whether the Respondent has complied with the conditions imposed on 22 February 2018. 3. Within 14 days of the Respondent receiving any list of proposed conditions from the HCCC, pursuant to these directions, the Respondent is to provide to the Tribunal, any submission in reply. 4. The Tribunal notes that should the decision of the Medical Council be that the Respondent has failed to comply with any condition made on 22 February 2018, the Tribunal may require the matter to be relisted for further evidence and submission. 5. In the event that the Medical Council report states that the Respondent has not complied with the conditions imposed on 22 February 2018, either party may apply to the Tribunal for a re-listing and further hearing. 6. The Tribunal notes the HCCC seeks an order for its' costs to be paid by the Respondent. The Respondent has informed the Tribunal he does not seek to be heard in relation to that application. 7. The decision of the Tribunal is otherwise reserved.

The evidence tendered by the HCCC in this hearing

The document marked as Exhibit 2A contained three documents relied upon by the HCCC. Those documents were listed as: 1. Dr Robinson's compliance history ("compliance history"); 2. Anonymous complaint received by the HCCC on 19 April 2001; 3. Letter from HCCC to Dr Robinson dated 9 May 2001.
The compliance history, set out detail of the Medical Council's overseeing of compliance by Dr Robinson with the conditions imposed upon his registration on 22 February 2018 following the s 150 hearing in relation to the Complaint, the subject of this proceeding.
The compliance history records against the date 21 November 2022, the following: "Routine Medicare data review for the period 27 May 2020 to 3 June 2022 found instances of female patients that were not recorded in the practice monitor logs. Council letter sent requesting response to anomalies. Dr Robinson's response is due 5 December 2022."
At the time of the hearing on 8 December 2022, there was no evidence from the Medical Council which addressed a resolution of the "anomalies".
In response to our question to the HCCC requesting a submission addressing how we should deal with the evidence, the HCCC provided the following. "The anomaly is raised in the compliance history on 21 November 2022 by the Medical Council. The HCCC submits it is not evidence that there is non-compliance. It is just that the Medical Council has raised an issue about compliance."
In response to the HCCC submission we noted on the record the following: 1. We will require to be informed by the Medical Council of the outcome of the investigation of the possible breach of a condition. 2. If the outcome is that no breach is found to have occurred, we will not need to hear further from the parties. 3. If the outcome is that a breach of a condition is established or alleged, we will need to have the hearing re-opened.
Exhibit 2B is the whole of the transcript of the s.150 hearing attended upon by the Respondent. That document was tendered in part in the Stage 1 hearing. It is found in Exhibit A1 in the Stage 1 hearing at Tab 25. We will refer to that evidence in detail if it is specifically addressed in the parties' submission. Suffice to say we have read that part of the transcript which was excluded from the Stage 1 hearing.
The parts of the transcript which had been objected to in Stage 1, and not admitted, related to the anonymous complaint, dated 19 April 2001, which had been received by the HCCC. That complaint is now in evidence in this hearing as part of Exhibit 2A, as is the letter from the HCCC to the Respondent dated 9 May 2001 (both documents referred to hereafter).
The second document in Exhibit 2A is a copy of the letter dated as received by the HCCC on 19 April 2001. The letter is written by a person who asserted they were the partner of a female who had attended upon the Respondent at Sydney Laser and Vision Centre, Suite 301 Harley Place, 251 Oxford Street, Bondi Junction. The letter is addressed to "[t]he centre manager". The letter does not identify the date of the consultation, the subject of the letter. The letter states, in part: "She came to see Dr David Robinson at your clinic for an eye test. Her examination was quite lengthy and very unusual. During the course of this "eye" test, she had her breasts examined! I find this strange as she was referred to the eye doctor by our local GP. …. I am fascinated by Dr Robinson's concern re breast health (since he is an ophthalmologist), and wonder does he perform lengthy breast checks on all his female patients, or just the young attractive ones? … I choose to remain anonymous as my partner was quite distressed by this whole ordeal and wishes not to be contacted by either yourself or anyone from your clinic."
We note it is regrettable that the anonymous complaint did not proceed further in 2001 as that may have given an opportunity for the Respondent to address a problem he has had to address with the complaint established in this proceeding and thereby saved Patient A from being subjected to the physical examination conducted by the Respondent upon her.
The third document in Exhibit 2A is a copy of a letter from the HCCC to the Respondent dated 9 May 2001. The letter enclosed a copy of the anonymous complaint received by the HCCC on 19 April 2001. The letter explains the role and function of the HCCC when a complaint is received against a registered medical practitioner. The letter then advised the Respondent: "The Commission has assessed this complaint and pursuant to s.27(1) of the [Health Care Complaints Act 1993 (NSW)], has declined to deal further with the complaint as the subject matter of the complaint does not warrant either conciliation or investigation. This decision was reached following consultation with the NSW Medical Board."

The evidence tendered by the Respondent

The Respondent relied upon the following further tendered documents in this hearing: 1. Exhibit 2R1: Four documents containing evidence and detail relied upon by the Respondent. 2. Exhibit 2R2: Copies of letters from HWL Ebsworth to Mr Henley, Ms Rosenberg and Mr Franklin dated 5 December 2022. 3. Exhibit 2R3: Written statement by the Respondent.
Exhibit 2R1 contained the following documents. The first is a statement of the Respondent dated 6 December 2022. In that document we have particularly noted the following evidence. 1. The Respondent attached a list of conditions which he proposed the Tribunal consider imposing on his registration as part of protective orders. 2. The Respondent annexed a table which he said reflects the number and age of female patients he had consulted since the conditions were imposed upon his registration on 22 February 2018. That table states the Respondent has consulted with 4,159 female patients since March 2018. We have noted the ages of the patients are not set out in the table. The Respondent said he had consulted with about the same number of male patients and female patients during the stated period. 3. The Respondent is working 30 to 35 hours per week. 4. The Respondent stated he has complied with the conditions imposed by the Medical Council in February 2018. 5. The conditions have been onerous on the Respondent. It has impacted upon him professionally. He has had to place an A4 Information Notice at any place where he is practicing medicine. That includes the East Sydney Private Hospital where he said about 80 doctors work and also at the St George Eye Centre where over 10 ophthalmologists work. The Notice is as follows: "Dr Robinson sees all female patients with a practice monitor." Further, each female patient is required to sign an acknowledgment which contains the following: "The Medical Council of NSW has received a complaint about Dr Robinson which is being investigated. While the investigation is under way, the Council requires that Dr Robinson must have a practice monitor (a registered nurse or medical practitioner) directly observe his appointment with you." 6. The Practice Monitor is also required to be present when the Respondent writes a prescription for a female patient and when he speaks to a female patient on the phone. 7. The Respondent set out a compendium of the educational activities he has undertaken relevant to this matter. We have had regard to that large list of items. 8. The Respondent set out his further reflections upon his conduct which gave rise to the complaint. Those reflections included the following. 1. "Although I learned during my studies the usual approach is to take a history, perform physical examinations and then order tests and investigations before providing a management plan, I regret not having referred Patient A back to her usual GP (and preferably a female) to perform this physical examination. I now recognise that this would have been the preferred approach." (emphasis added by us for the purpose of addressing these words further in these reasons) 2. The Respondent recognises he could have offered Patient A the option of having her breasts and abdomen examined by a female doctor. He sees that that "would have likely made her feel more comfortable." He is sorry he did not do that and expresses apology to the patient. 3. In future the Respondent promises to "never again … perform this physical examination myself and will always refer a patient to a more suitable doctor if I believe the examination is clinically indicated." He further states: "It is clear to me now that ophthalmologists should not perform any physical examinations below the clavicles." 4. The Respondent stated that at the time of conducting the physical examination of Patient A he did not "fully appreciate the power imbalance inherent in a doctor/patient relationship." He said that he now does "appreciate its existence, and the way in which it is felt by the patient". 5. The Respondent stated: "I also did not fully appreciate at the time that the breast examination I conducted on Patient A would have been construed by her as a very sensitive examination for her to undertake." The Respondent is now cognisant of such potential sensitivity in a patient. He reached that understanding after personal reflection and extensive study. 6. The Respondent appreciates the inappropriateness of the physical examination he performed on Patient A. He expressed regret and expressed his apologies to Patient A.
The Respondent then included in Exhibit 2R1 a reference from Mr Michael Henley ("Mr Henley"), a partner in the law firm HWL Ebsworth Lawyers. Mr Henley had provided a testimonial reference for the Respondent in the Stage 1 hearing and also gave oral evidence. He is a personal friend of the Respondent. He has known him for many years. He has read the judgments of the Tribunal in this matter and that of the NSW Court of Appeal, referred to earlier in these reasons. He still adheres to the evidence he has previously provided to the Tribunal. Mr Henley has had many discussions with the Respondent about the proceeding before the Tribunal and he said in relation to the Respondent: "The guilt and shame that he feels is immeasurable." Mr Henley opined that the Respondent's "reputation has been tarnished". He suggests the Respondent's family have been affected to a significant extent. He also opined the Respondent has suffered embarrassment over the last five years since the cause of the complaint before the Tribunal arose.
The Respondent relied upon a further reference/testimonial from Ms Michal Rosenberg ("Ms Rosenberg"). She had provided a reference for the Respondent for the Stage 1 hearing and had also given oral evidence. She states she has read the two decisions of the Tribunal in this matter. She has known the Respondent since 2006 and assisted him when he performs ritual circumcision on babies. She holds the view that the Respondent "is an upstanding member of the community, and my view of him has not changed."
A statement by Rabbi Israel Selwyn Franklin ("Rabbi Franklin") is also included in Exhibit 2R1. Rabbi Franklin had provided a testimonial for the Respondent and gave oral evidence in the Stage 1 hearing. He states in his document that he has now had the advantage of reading the decisions of the Tribunal which have been published in this matter. Notwithstanding the findings made against the Respondent, Rabbi Franklin said that his views of the Respondent as stated in his earlier evidence have not changed. In discussions with the Respondent post the publication of the Tribunal's findings against him, Rabbi Franklin said the Respondent has "expressed unsolicited regret for any pain and suffering endured by Patient A." Rabbi Franklin expressed great confidence in the Respondent describing him as "a religious individual of high moral standing."
Exhibit 2R2 consists of copies of letters sent to Rabbi Franklin, Mr Henley and Ms Rosenberg. Each letter is dated 5 December 2022. The letters enclosed copies of the Tribunal decisions in this matter. The letters acknowledged the evidence provided by the recipient of the letter in the earlier hearings of the Tribunal and requested a further written character reference for the Stage 2 hearing.
Exhibit 2R3 consists of a reference provided by the Respondents' father Dr Lyon Phillip Robinson, who is a registered medical practitioner ,practising as a specialist ophthalmologist at Bondi Junction NSW.
Dr Lyon Robinson has been provided with the two decisions of the Tribunal in relation to his son the Respondent. Dr Lyon Robinson speaks glowingly of his sons ophthalmic skills, good and caring personality and of positive feedback from patients the Respondent has treated. He opined from what he had seen of his sons medical practice that he "wanted only the best for his patients." He said: "David has been very impacted by all these proceedings as has his family and all the staff of the practice. They have all stood by and supported him." He also said: "I have had many discussions with David during these proceedings and he clearly recognises and understands that he had poor judgment in not being aware that he could cause trauma to his patient by the clinical examination and that it would have been much better to refer this patient back to her own GP. The most recent decision of the Tribunal has brought into focus for David the importance of maintaining boundaries."
Each of the HCCC and the Respondent provided a written submission for the hearing. The HCCC's submission was marked as MFI.

The written submission of the HCCC

In relation to the written submission of the HCCC we particularly noted the following.
The HCCC submits that consistent with the finding of professional misconduct, its primary position is that in order to protect the public, and to uphold the high standards of the profession, the appropriate protective order is that the Respondent's registration is cancelled with a period of exclusion from applying for reinstatement for a period of one year.
The HCCC addressed sections 3, 3A and 149C(1) of the National Law. (In October 2022, sections 3 and 3A of the National Law were amended and new section 3B was inserted.) It referred us to the decisions in Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264, and Health Care Complaints Commission v Gillett [2007] NSWNMT 7. It reminded us that those decisions speak to the principle that protective orders are not intended to punish the practitioner, but to protect the public.
The HCCC referred us to the decision in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 and the judgment of Basten JA. In particular we have found [20] and [21] of that decision helpful. We set those out here: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it."
There is further reference to the decisions of the Tribunal in Health Care Complaints Commission v Bours (No2) [2015] NSWCATOD 80 and Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31. We have had regard to the extracted portions of those decisions which the HCCC set out in the submission.
The HCCC then submitted that the Tribunal is required to consider: "a. The nature of the wrongdoing reflected in the Complaints established; and b. The orders required to protect the public, protect the reputation of the profession, and encourage adherence to appropriate conduct by members of the profession and the individual practitioner, in light of the wrongdoing identified."
In support of that submission, the HCCC referred us to the decisions in Health Care Complaints Commission v Burton [2017] NSWCATOD 57 and Hampshire v Health Care Complaints Commission (NSW) [2021] NSWCA 283.
The HCCC referred us to [158]-[160], [167], [169] of our decision reported as Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151. It then made the following submission: "The [R]espondent's misconduct involves several elements of significant departures from acceptable and standard practice. Failing entirely to consider the power imbalance between himself and 19 year old Patient A, the [R]espondent provided minimal and confusing information before taking her to another room and conducting a series of physical examinations on her thyroid, chest, abdomen and breasts, going so far as to have Patient A demonstrate a breast examination to him. The [R]espondent did this in circumstances where he was on notice from an anonymous [complaint] twenty years earlier that he should not be engaging [in] this conduct, or certainly not without a chaperone present. The [R]espondent conducted physical examinations of Patient A that were not appropriate. Moreover he undertook the examinations without obtaining informed consent. Informed consent is a fundamental element of a doctor-patient relationship that underpins the trust endowed upon a medical practitioner to engage in conduct that otherwise occurs only between close family members or intimate partners. The Good Medical Practice code of conduct encapsulates that informed consent "[…] is a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved." The code notes that this involves providing information to patients in a way that they can understand before asking for their consent. Further, the respondent failed to record the breast examination in his letter to the patient's GP. …"
The HCCC noted that the majority of the Tribunal has determined that the breast examination of Patient A by the Respondent was not "sexual in nature". It then submitted: "… The Tribunal must avoid according any benefit to the [R]espondent from the fact that this Particular was not established. In determining appropriate protective orders the seriousness of the conduct as found should be the focus of the Tribunal's consideration. In this regard, the physical examinations of the patient have been found to be inappropriate, and have been found to have occurred without Patient A giving informed consent. …"
The HCCC submitted that the findings which were made by the Tribunal established, objectively, serious matters relating to the Respondents practice of medicine. Further, the HCCC submits the conduct must be seen as particularly serious as the Respondent was on notice of a previous complaint having been made against him (the 2001 anonymous complaint) which alerted him to the serious impact upon a patient where a breast examination is alleged to have been undertaken by him.
The HCCC submission then addressed the evidence of Dr Diamond, given in the Stage 1 hearing. It reminded the Tribunal of the possible diagnosis addressed by Dr Diamond, namely "some degree of "tunnel vision", possibly associated with mild autism spectrum disorder". It submitted: "… Specifically it is not apparent on what basis the Tribunal could be satisfied that these aspects of the [Respondent's] neurological make-up will not operate in the future to put patients at risk. A period of one year will allow the [R]espondent to take the opportunity to have further sessions with an appropriate health [professional] and to produce evidence on any application for reinstatement on to the register that the [R]espondent can manage and control any future circumstances that might otherwise trigger his obsessive tunnel vision, which on Dr Diamond's evidence contributed to the professional misconduct in December 2016."
The evidence given by the HCCC's expert, Dr Campbell, was then addressed by the HCCC which reminded us of the extent and seriousness of the criticism by Dr Campbell of the Respondent's inappropriate conduct in the consultation with Patient A.
The HCCC concluded its written submission with the following: "The [R]espondent's conduct represents such a significant departure from accepted standards that cancellation of registration is the appropriate response to protect the public and the reputation of the profession, and to provide general deterrence to other practitioners who, like the [R]espondent, fail to maintain high standards in respect of every part of their medical practice."
The HCCC also provided oral submissions which it provided to us in the hearing on 8 December 2022. We noted the following from those submissions. We have not set out submissions which were repeated in the written submission provided. The HCCC submitted: 1. If the Tribunal was to consider imposing conditions on the Respondent's registration which singled out his ability to consult with female patients then that really raised the issue of his suitability to practise medicine and would call for a cancellation of his registration. 2. Although it is conceded by the HCCC that the misconduct established in the Stage 1 hearing is a "one-off offence", the degree to which the standard was departed from is very significant. 3. The established misconduct raises concerns about the Respondents judgment across all aspects of his medical work. 4. The oral evidence of Dr Diamond was addressed. In particular it was submitted the evidence supported conclusions that: 1. When conducting his examination of Patient A the Respondent was not reflective of the 2001 complaint. 2. He is subject to a "tunnel vision" approach in the sense that he was not reflecting broader considerations which were applicable to his conduct when examining Patient A. 3. The nexus between concrete thought processes and future presentations. 4. There is always a possibility the conduct could happen again, as acknowledged by Dr Diamond. 1. The HCCC acknowledged Dr Diamond's opinion that the Respondent would not repeat the misconduct which had been found against him in this hearing, and that the Respondent was less likely to offend in the future. 2. There is no evidence that the Respondent intends to continue attending upon Dr Diamond or any other mental health worker. 3. The Respondent has not explained why he did not have a chaperone with him during the consultation with Patient A as he had said he would do. 4. The fact of the s 150 orders having been made and complied with, is not part of the evaluative process of protective orders. 5. The proposed conditions of the Respondent are inadequate to protect the public and in one case require the Respondent to do no more than he is required to do by his College (continuing medical education). 6. Although the Respondent has expressed his apology to Patient A and recognised the adverse impact upon her by his conduct, he has still not "owned" his own conduct in the consultation with her. 7. The Respondent did not recognise the power imbalance between a doctor and patient. 8. His evidence demonstrates that he is still focusing upon the impact upon him of the consultation he conducted with Patient A. 9. In the s 150 hearing the Respondent said he had resolved following the 2001 complaint to engage a chaperone if it was necessary to undertake a physical examination of a female patient. He was unsure if he had a chaperone with him when he examined the female patients breasts in 2001.

The written submission of the Respondent

The Respondent provided a written submission which was marked as MFI2. We noted the following in particular from that written submission.
The Respondent submitted that the appropriate protective order would be for a reprimand to be registered against the Respondent together with the imposition of conditions on his registration as a medical practitioner.
The Respondent submits that he is not a risk to the health and safety of the public should he be permitted to continue practice as a medical practitioner specialised as an ophthalmologist. He submits he has been compliant with conditions imposed by the Medical Council following a s 150 hearing 5 years ago. During that five-year period, he has also undertaken further education during that 5 year period which addressed aspects of his misconduct as established in this Tribunal.
The legal principles underpinning the imposition of disciplinary orders, was addressed by the Respondent and we noted the following: 1. The disciplinary powers of the Tribunal in the National Law must be exercised in accordance with the objects and guiding principles set out in sections 3 and 3A (and section 3B). 2. The scheme of registration and regulation of health practitioners operates in a transparent, accountable, effective, and fair way. Most importantly, the health and safety of the public will be protected if restrictions on the practice of a health professional are imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 3. The HCCC seeks the most extreme restriction on the respondent's registration, namely cancellation. Such a restriction cannot be imposed unless the HCCC proves to the requisite standard that they are necessary to ensure health services are provided safely and are of an appropriate quality. 4. It is accepted that there are other considerations, not included in the express terms of the statute, which underlie the purpose for which orders may be made in disciplinary matters, such as the maintenance of the good repute of the profession, and public confidence in the provision of health services. 5. The function of the orders resulting from the decision is not to underscore a punitive response, but to affect a mode of continuing public protection. As was stated in the Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [25]: '… 'imposition of restrictions on the practice of a health professional are only to be done in pursuit of this higher objective [protection]. Such a determination of necessity and appropriateness are made by considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at [34]." 1. Basten JA gave clarity to the intersection of these principles and the effects of disciplinary orders in NSW Bar Association v Meakes [2006] NSWCA 340 at [114]: "… it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. …" 1. The consequences to Patient A following the Respondent, as an ophthalmologist, conducting a breast examination is prone to invite a "visceral response" and therefore requires recognition of this fact and caution. 2. The Tribunal would see the significance of the other finding made by the Tribunal, namely an acceptance of Dr Diamonds evidence regarding the nexus between the Respondent's personality profile encompassing rigid thinking and his honest belief as to the appropriateness of the examinations as a consequence of his obsessional thinking: Health Care Complaints Commission v Robinson [2021] NSWCATOD 142, at [129]-[132]. 3. Public confidence is unlikely to be affected by the decision in a single case. Indeed, it is erroneous to think the question of public confidence must be considered in each case. The Respondent adopts what was said by the Victorian Court of Appeal in Medical Practitioners Board of Victoria v Lal (2009) 23 VR 702; [2009] VSCA 109 at [59]: "Like the goodwill which attaches to a business, however, public confidence in the medical profession is not turned on and off like a switch. Public confidence is won - or lost - gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high." 1. It is to be noted that the Respondent's conduct reflects an isolated failure of judgement and care, with a single patient and during a single consultation. The Respondent's lack of reasonable judgement on this occasion is a matter that can be both addressed and safeguarded against in the future by imposing conditions. 2. As pointed out by Basten JA in Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31], elements of deterrence are subsidiary to other protective elements in the exercise of a protective jurisdiction. The actual deterrent effect that disciplinary proceedings have on the profession is very hard to ascertain, particularly, as the Respondent submits, in matters that relate to a single failure in judgement and contemporary expectations, which this case entailed. 3. As the language of National Law, s 3(3)(c) (now s 3A(2)(c)) is in the present tense, the test of necessity must apply to the current practice of the practitioner.
The Respondent then addressed the question of an appropriate protective order to be applied in this case. He addressed the appropriateness of a reprimand and the imposition of conditions upon his registration. We noted the following submission: "In NSW it has been said in a number of cases that a reprimand in itself acts as a deterrent both directly and indirectly: NSW Bar Association v Meakes [2006] NSWCA 340 (per Basten JA) and further, upholds and reinforces the standards of and confidence in the profession: Riley v Health Care Complaints Commission [2019] NSWCATOD 54 at [155]; Health Care Complaints Commission v Perera [2018] NSWCATOD 112; Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156. A reprimand may be all that is necessary to indicate there is no further need for deterrence: Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102; Health Care Complaints Commission v Lord [2019] NSWCATOD 182. … In Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 (13 May 2013) the Tribunal considered the effect of a caution on the one hand and a reprimand on the other. It was held that '[t]he ordinary meaning of the words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences.' It does represent denunciation."
The Respondent addressed the possible imposition of "Practice Monitor Conditions". He submitted: "Despite this onerous condition, the [R]espondent has demonstrated full compliance over 5 years and has retained many of his former female patients. He has consulted with over 4,000 female patients since the practice monitor condition was put in place. This we submit is a testament to the trust and confidence female patients place in him as their ophthalmologist."
The Respondent relied particularly on the evidence of Dr Diamond. He made the following further submissions in relation to that evidence. 1. Dr Diamond's opinion was that "I do not believe Dr Robinson poses a risk of engaging in the relevant conduct again" and he supported removal of the practice monitoring condition. 2. Despite a personality profile encompassing at times rigid thinking, Dr Diamond's report of 13 July 2020 is particularly on point regarding the appropriate protective orders sought by the Respondent. He gives the following expert opinion regarding the respondent's ability to practise safely in the future: "My further understanding as of my recent contact with Dr Robinson on 28 April 2020 confirms that he continues to practi[s]e safely in compliance with his existing conditions. It is notable that he has dutifully embraced all the requirements of his conditions and has methodically adapted his practice so as to be fully compliant with them. This is in keeping with his obsessive and rigid personality functioning. It goes to the question of Dr Robinson being able to continue to practi[s]e medicine within the confines of the conditions that are imposed on his registration. It supports the view that he is capable of practising his speciality competently and safely with compliance with these conditions… Dr Robinson has pursued a mentorship relationship and has engaged with it. He has pursued additional education that has assisted him in understanding more subtle responsibilities that he carries as a medical practitioner and in particular the need to preserve professional boundaries in the clinical setting by understanding the position and subjective experience of the patient. He has increased in empathic capacity to understand the effects of his conduct. He has improved awareness of the implications of his decision making upon patients who may not readily accept his conduct of physical examination when it is outside of the usual examination performed by ophthalmologists. Dr Robinson has engaged in educative material and has diligently studied this material in keeping with his obsessional personality characteristics. He has reached firm views about what is or is not acceptable conduct. He holds different views currently as compared with his uninformed understanding of appropriate and considered conduct in the clinical setting, as compared with his previous conduct." 1. In short, as far back as July 2020, the Respondent's treating psychiatrist's opinion was that the Respondent could practise safely. During cross-examination of Dr Diamond at the Stage One Hearing in February 2021, Dr Diamond gave the following evidence regarding his current functioning and risk: "Q. Dr Diamond, just in respect of the last set of questions that you answered, where you gave evidence about the link between aspects of Dr Robinson's personality and his explanation, as he gave it to you, for the conduct that he engaged in with Patient A, you've expressed the opinion that you don't think he would engage in the same conduct again. Is that expression of opinion based on your conversations with, or your consultations with Dr Robinson, where as part of his personality, now that he has read articles, consulted with mentors and engaged in further learning, he has learnt not to engage in that specific behaviour again; is that correct? A. Yes. Q. But in terms of to the extent that his personality might involve those characteristics - for example, the fixed thinking that you've described, of linear processing and an absence of nuanced thinking - is it the case that that might present risks in a different context to the one about which he has now learnt in respect of Patient A? A. I think, ironically, in a case like this, and knowing what I do know about Dr Robinson, because he is so rules driven and so logic driven, he would have learnt that lesson a lot more clearly than most other people. Now, I accept that you say, but it could arise in a different context where he hasn't learnt that particular lesson, but I think he has engaged in the learning of the lessons of preserving appropriate boundaries with patients, and I think his propensity to be a rule breaker is lower than it would have been had he not engaged in that exploration and education. I think he's come through this process as less likely to offend on the basis of his underlying personality and way of thinking than he would have had he not been through this learning process and learnt those rules. Q. And that's in respect of patient boundaries; is that right? A. Yes. Q. Are you extending it beyond that to any other issues? A. I'm extending that to understanding his clinical role, where he has clearly learnt that even though he's a registered medical practitioner, that in the role that he now performs it's clearly not something that he sees any longer as being appropriate to his clinical examination to be carrying out breast examinations on young female patients, you know, regardless of what he might think he might find pathologically, he now sees very much how that is at odds with his professional peers and the lesson that he has learnt is that you don't do that. I think that's firmly in his mind and I think he understands his professional role a lot more clearly now."
The Respondent submitted: "There is no evidence to support a finding that the respondent cannot practise safely and appropriate conditions cannot meet any residue concerns the Tribunal might hold regarding public health and safety."
The Respondent set out a lengthy list of further education undertaken by him in order to address the aspects of his medical practice which were the subject of complaint in this hearing. We do not repeat that list, however, we note it addresses matters of "professional doctor/patient boundaries"; the use of chaperones and medical monitors in medical practice; informed patient consent; Medical record making.
The Respondent relied upon the evidence of the character witnesses. It was submitted that the references provided by those witness, who were also required for cross-examination, paints a picture of a medical practitioner of significant repute and a man who demonstrates integrity and devotion to his practice of medicine and community activities in which he engages.
The Respondent then included a "Conclusion" to his written submission. In that submission, the Respondent addressed his misconduct with Patient A which he said was carried out based upon his belief that the examination he conducted of Patient A was necessary and reasonable. The Respondent submitted: "The fact that his belief has subsequently been found not to be a reasonable belief to hold [in Health Care Complaints Commission v Robinson [(No 2)] [2022] NSWCATOD 151 at [158]] does not detract from the fact that it was a belief held with no nefarious or ill intent."
The Respondent submitted: "… the earlier findings of the Tribunal as to the [R]espondent's honesty as a witness are also relevant to the trust and level of confidence the Tribunal can now hold in Dr Robinson moving forward with conditions and supports a reprimand and conditions as the appropriate protective order."
In the final paragraph of the written submission, the Respondent submitted: "… that a period of 12 months cancellation is simply not warranted, nor appropriate, nor necessitated in the all the circumstances of this case. The conduct is limited to a single occasion and a single patient. In the absence of proof of sexual purpose, there is no nefarious thinking behind the act, no 'moral turpitude,' no ill intent, no impropriety and nothing unethical. It was an unreasonable error of judgement which does not warrant suspension, let alone - cancellation."
The Respondent also gave oral submissions in response to the submissions made by the HCCC. We noted the following from that oral submission. 1. The character of the Respondent is an important matter for the Tribunal to have in mind when it is considering the conditions which might be imposed upon his registration and the question of protection for the health and safety of the public. 2. Although the Respondent told the s 150 hearing he had resolved to use a chaperone when physically examining a female patient, it must be remembered that it was some 17 years between the 2001 complaint and the examination he performed on Patient A. 3. In relation to proposed conditions, the Respondent submits that a mentor can be the subject of supervision by the Medical Council and routinely is required to provide reports to the Medical Council during the continuation of the condition requiring the use of a mentor. 4. The topics to be addressed in continuing medical education, as suggested in the Respondent's proposed conditions, are designed to address the areas of practice which were found unsatisfactory by the Tribunal. 5. In response to a submission that the Respondent lacks insight because of the words set out in his statement in evidence in this Stage 2 hearing, the Respondent denies that is a reasonable conclusion. It was submitted that he had admitted the unsatisfactory professional conduct in the Stage 1 hearing. He has at all times admitted the full extent of the physical examination of Patient A. 6. The Respondent has made clear he now understands and accepts that his examination of Patient A caused her psychological and physical distress. His referees refer to the acknowledgment of the hurt the Respondent had caused to Patient A and his sincere regret. Those admissions are evidence of insight. 7. The evidence of Dr Diamond would satisfy the Tribunal that the Respondent would practise safely and not put patients at risk of harm should he be permitted to continue to practise. 8. In relation to the submission of the HCCC that there was no evidence to show that the Respondent would continue seeing Dr Diamond as a patient, the Respondent submitted it was not put to Dr Diamond that such ongoing treatment from a psychiatrist was required by the Respondent in order to practise safely as a medical practitioner. The Respondent submitted that what can be drawn from the evidence of Dr Diamond is that the courses and education and mentoring that the Respondent has undertaken since the s 150 hearing five years ago, have achieved the objective of burning into his mind that which is required as contemporary standards of medical practice. Dr Diamond has opined that Dr Robinson is no longer a risk to the health and safety of his patients should he be permitted to continue to practise. 9. The "risk to the public" which is to be considered is an unacceptable risk, not "any risk at all". The decision of the Tribunal in Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 addresses the question of unacceptable risk. The Respondent relies on the reasoning set out in that decision in relation to the assessment of "risk to the public". 10. The onus lies on the HCCC to establish to the satisfaction of the Tribunal that a cancellation of registration order is necessary to protect the health and safety of the public or for any other reason. 11. The "deterrence" aspect of consideration of the necessity for a protective order is subsidiary to protection of the public: National Law, s 3A (now s 3B). 12. In relation to the deterrence aspect of protective orders, the Respondent submitted such a deterrence is readily apparent to the reader of the decisions of this Tribunal in that the Respondent has been examined before the s 150 hearing and had conditions imposed upon his registration which have remained in place for 5 years. Those conditions, on any reading would be seen to have been embarrassing to any practitioner, onerous and expensive to facilitate/implement. Other medical practitioners will see that the Respondent has been before this Tribunal for 11 hearing days. The full detail of the misconduct found against the Respondent is now on the public record for all interested persons to read. His name has not been anonymised. If the members of the profession also see that the Respondent has been the subject of a reprimand, it will certainly fulfil the requirement of deterrence.
In the directions made on 8 December 2022, the HCCC was to provide to the Tribunal and to the Respondent its proposal for conditions in the event of the Tribunal declining to cancel the registration of the Respondent. That proposed list and supporting submission was to be provided at the same time as the outcome of the Medical Council determination of whether the Respondent has complied fully with the conditions it imposed in 2018. In compliance with that submission, the HCCC provided the following conditions it submits would be considered by the Tribunal if cancellation is not the outcome of this determination. "PROPOSED CONDITIONS OF THE HCCC On 7 February 2023, the Tribunal requested the HCCC provide a list of conditions it would submit in the event of the Tribunal determining a protective order other than cancellation. The Commission repeats its primary submission that Dr Robinson's registration as a medical practitioner should be cancelled under s 149C(1)(b) and a non-review period of 12 months under s 149C(7) of the National Law. To assist the Tribunal, the Commission puts forward the following conditions: Practice conditions 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least two registered specialist ophthalmologists (excluding the subject practitioner): a) Where there is always one other registered specialist ophthalmologist on site. 3. To complete within 12 months of the date of the Tribunal's decision the Ethics Counsel Program for Health Professionals organised by the Ethics Centre. a) Within 3 months of the date of the Tribunal's decision the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. b) Within 1 month of completing the abovementioned course, the practitioner is to provide documentary evidence to the Medical Council of NSW that he has satisfactorily completed the course. c) To bear responsibility for any costs incurred in meeting this condition. d) In the event that the Ethics Counsel Program for Health Professionals is unavailable, he must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why he is making this proposal, by no later than 3 months from the date of the Tribunal's decision. 4. To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: - professionalism and professional ethics; - maintaining of appropriate professional boundaries with patients; - referral of patients with suspected tumour and/or who require X-ray/CT/MRI imaging; - practising within the practitioner's scope of practice; - discussion of the Medical Board of Australia's Good medical practice: a code of conduct for doctors in Australia and Guidelines: Sexual boundaries in the doctor-patient relationship; - discussion of the Royal Australian & New Zealand College of Ophthalmologists (RANZCO) Code of Conduct: The Standard Of Patient Relations. b) To authorise the Medical Council of NSW to provide proposed and approved supervisors with the decision that imposed this condition and any other decision or report as determined by the Council. c) Not to practise until a supervisor has been approved by the Medical Council of NSW. 5. To submit to a random audit/inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW. a) The audit/inspection is to be held as required by the Council to assess his compliance with conditions imposed on his registration. The auditor(s) may: - Inspect medical records; b) To authorise the auditor(s)/inspector(s) to provide the Council with a report on their findings. c) To meet all costs associated with the audit(s)/inspector(s) and any subsequent reports. 6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 7. To authorise and consent to any exchange of information between the Medical Council, of NSW and future relevant persons or organisations at locations where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health Conditions (not for the public) 8. to attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorize the treating practitioner to inform the Medical Council of NSW of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; (iii) a significant change in the health status (including a significant temporary change) (b) must provide the Council with the professional details of the treating practitioner; (c) must provide evidence to the Council of his attendance with the treating practitioner, as specified by the Council. Review provisions 9. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 10. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia."
We wish to acknowledge the assistance we have received from the HCCC in providing us with the above possible conditions which the Tribunal might consider if a cancellation of the Respondent's registration is not considered as an appropriate Protective Order in this case. The assistance is provided notwithstanding the HCCC has submitted that the order to be made needs to be cancellation. It should not be seen as a softening of the position taken by the HCCC to assist the Tribunal, as has been requested.
The provision of possible conditions to be imposed on the Respondent's registration, in the absence of a cancellation, does provide valuable assistance to the Tribunal as it permits us to see what conditions might be available to protect the public and still permit the provision of the medical service the Respondent could provide. A conclusion that conditions on the registration of a practitioner would protect the safety of the public is not the only matter to be considered in determining that cancellation of a practitioner's registration should be avoided. It is, as is pointed out in the decisions we have referred to in these reasons, one of a number of matters to be considered and weighed in reaching a determination.
In response to the list of possible conditions provided by the HCCC, the Respondent provided an amended list of conditions he would propose, together with some supporting submissions. The Respondent's proposed conditions are as follows: "1.To notify the Medical Council of NSW prior to changing nature or place of his practice anywhere in Australia. 2. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 3. To complete within 12 months of the date of the Tribunal's decision the Ethics Counsel Program for Health Professionals organised by the Ethics Centre. a. Within 3 months of the date of the Tribunal's decision the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. b. Within 1 month of completing the abovementioned course, the practitioner is to provide documentary evidence to the Medical Council of NSW that he has satisfactorily completed the course. c. To bear responsibility for any costs incurred in meeting this condition. d. In the event that the Ethics Counsel Program for Health Professionals is unavailable, he must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why he is making this proposal, by no later than 3 months from the date of the Tribunal's decision. 4. To nominate an experienced ophthalmologist to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each mentoring meeting the practitioner is to include discussion of his personal and professional development along with the issues highlighted in the decision which has led to the conditions imposed and patients presenting with a suspected tumour and/or who require X-ray/CT/MRI imaging. In addition, to discuss with an approved mentor, the following documents: i. The Medical Board of Australia Guidelines Sexual boundaries in the doctor-patient relationship; ii. Royal Australian & New Zealand College of Ophthalmologists (RANZCO) Code of Conduct: The Standard O\of Patient Relations. b. To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concerns about his practice and compliance with these conditions. c. To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which led to this conditions being imposed. To be mentored for a minimum period of 12 months and as subsequently determined by the Council. 5. To prepare a 12 month formal CPD (Continuing Professional Development) plan which identifies educational activities that relate directly to the clinical aspects of ophthalmology including, but not limited to: ethical questions, professional boundaries, communication, patient consent, patients presenting with a suspected tumour and/or who require X-ray/CT/MRI imaging, and medical records. To submit the initial plan by 31 December of each year, for approval by the Medical Council of NSW. To provide written evidence of compliance with the approved plan on a three-monthly basis. a. To complete or retake the following education activities, should they be available, or to complete an equivalent educational activity, and to provide written evidence of compliance to the Medical Council of NSW: i. MDA National Online Learning and Development activities: 1. Beware Boundary Violations; 2. Crossing the Line with Patient Boundaries: Communication with Patients; 3. Revised Code of Conduct: What You Need to Know; 4. New Guidelines on Sexual Boundaries: Communication with Patients; 5. Maintaining Physical Contact Boundaries: Communication with Patients; 6. Managing Boundaries; 7. 12 Commandments to Mitigate AHPRA Notifications; 8. Using Observers During Intimate Examinations: Communication with Patients; 9. Sexual Misconduct & Chaperones: Regulation & Legislation; 10. Avoiding Complaints: Communication with Patients; 11. Do I Need Consent?; 12. A Matter of Informed Consent; 13. Intimate Examinations: Respect and Responsibility; 14. Top Tips & Medico-Legal Mistakes Parts 1 & 2: Communication with Patients; 15. Informed Consent Challenges; 16. Noteworthy: The How, What Where & Why Of Medical Records. 6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 7. To authorise and consent to any exchange of information between the Medical Council of NSW and future relevant persons or organisations at locations where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 8. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 9. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia.
In the submission which the Respondent provided to support these conditions we noted the following: 1. In relation to the HCCC's proposed condition 2, the Respondent submits that such a condition would result in practical barriers for the Respondent to practise at his current workplace, namely Sydney Laser and Vision Centre. The centre "infrequently has one other ophthalmologist present at any given time". 2. The Respondent proposes a Mentor would serve the same purpose in this case as a supervisor at category C level. He submits more than five years has elapsed since the conduct complained of. The Respondent has complied with the conditions as imposed by the Medical Council in February 2018. He submits: "More than 5 years ago, he engaged a mentor to good effect. There simply is no evidence or basis to warrant Category C supervision in all the circumstances." 3. The Respondent submits that Conditions 4 and 5 as proposed by the HCCC are "simply unresponsive to the Tribunal's findings and lack a reasonable basis." The Respondent submits the HCCC has not explained the foundation for the proposal to require an audit or inspection of the Respondent's medical practice. The Respondent objects to being required to meet the cost of any such audit. 4. The Respondent takes particular and strenuous objection to the provision in proposed condition 8 of the HCCC document, which would require the Respondent to "attend for treatment by a psychiatrist of his choice". The Respondent relies upon the evidence of Dr Diamond in which he did not recommend treatment by a psychiatrist and he opined the Respondent was fit to return to work as a medical practitioner. Further, the Respondent objects to the Medical Council having access to the consultation notes from any attendance by the Respondent upon his chosen psychiatrist. In relation to that last point, we do not read the proposed condition as requiring such production of notes. All that would be required, in our view, would be a letter from the psychiatrist, addressed to the Medical Council, advising that the Respondent had attended at appointments, as requested by his psychiatrist.
We are cognisant of the possibility that the Respondent's chosen psychiatrist may opine that the Respondent would be better served by engaging a psychologist to attend rather a psychiatrist, and we consider that should be provided for in any conditions we might consider imposing.

Determination

We have had regard to the submissions which each party has helpfully provided. We have considered the decisions which we have been referred to and we have found nothing to say about why any of those decisions might not assist us in reaching our determination in this matter.
We have had regard to the applicable principles which are usefully distilled in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88]: "Applicable Principles In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]."
In reaching a decision as to the protective order to be made in this case, we have considered the following in particular.

The nature of the professional misconduct 1. There must be a recognition in this case, that the general public, as potential patients of the Respondent, would not anticipate that if they were referred to the Respondent for a medical need related to their eyes, they would experience a physical examination of another part of their body below the clavicle. The fact that Patient A, a young woman, was subjected to a breast examination, must reasonably be expected to raise concerns in the general public about the provision of specialist medical services by the Respondent. 2. The fact that the Respondent undertook an examination which was not appropriate and was, according to Dr Campbell, not medically indicated in a patient of Patient A's age and presentation, has the potential to bring the reputation of the professional as a whole into disrepute. 3. There was a serious failure on the part of the Respondent to obtain informed consent from Patient A. We consider it highly likely that had Patient A been fully informed about her options, including the opportunity to return to see her GP for any examination below the clavicle, she would have taken that option rather than have the Respondent carry out the examination he did. The seriousness of failure to obtain informed consent is, we consider, a major fault in the practice of the Respondent in that circumstance and demonstrates a failure to appreciate the rights of the patient and the power imbalance which is at play in a doctor/patient relationship. It is reasonable to conclude that this failure may not have been confined to this one incidence of disrespect for a patients' rights, although there is no evidence of a complaint in relation to the same having been made. 4. We do not repeat verbatim the findings which we made constituting the professional misconduct, however, in nearly every aspect of the consultation between the Respondent and Patient A, there has been a finding of conduct outside of the standard expected of the Respondent given his training and seniority of practice. We are particularly conscious of the failure to provide a chaperone. We are conscious of the inadequacy of the letter reporting to Patient A's GP. We are conscious of the inadequacy in the medical records. 5. A finding of professional misconduct speaks of the seriousness of the misconduct and is based upon a finding that a protective order requiring cancellation or suspension of registration may be required. 6. The misconduct should be seen as at the more serious end of the spectrum of professional misconduct because the Respondent had been the subject of a complaint (not investigated because it was anonymous), by the partner of a female, who had been subjected to the same type of breast examination, by the Respondent, in 2001. 7. The case put by the Respondent, that this misconduct arose because of a lapse in judgment and understanding of what is expected of him as a specialist medical practitioner, raises a concern as to whether the misconduct, which has been revealed, represents the only deficiency in the Respondent's medical knowledge and adherence to the conduct of ophthalmologists with his level of training and experience. 8. The misconduct is at such a level that the HCCC seeks cancellation and a period of twelve months to be imposed before the Respondent can once again apply to the Tribunal to be re-instated.

We have regard to the following submissions which the Respondent relies upon to show he will not be a risk to the public should he be permitted to practise with or without conditions on his registration: 1. This is a "one-offence" case. It demonstrates an isolated lapse of judgement in a practitioner who was first registered in December 1986, and in a circumstance where the Respondent genuinely believed he was conducting an appropriate and clinically indicated examination. (We note it is the only established complaint, however, the Respondent acknowledged that he knew that there had been a complaint in 2001, which was not investigated). 2. The Respondent has been the subject of very restrictive conditions on his registration since the s 150 hearing, five years ago. Those conditions included the Medical Council having oversight of the Respondent's ongoing practice for a period which has now continued for five years. It included the Medical Council having authority to obtain details from Medicare Australia to ensure compliance with conditions by the Respondent. The Medical Council has had authority to obtain information from "future relevant persons or organisations, where the Respondent works, of any issues arising in relation to compliance with the conditions imposed". The conditions allowed the Medical Council to audit and inspect the Respondent's medical records, appointment diaries, patient booking schedules and contact details. It gave the Medical Council the right to observe the Respondent's contact with female patients. It gave the Medical Council the right to consultation with all practice monitors and any female patient who has had contact with the Respondent during an audit or inspection conducted by the Medical Council's delegates/officers. Finally, the Respondent is to meet the costs of all audits, inspections or reports which is incurred by the Medical Council in relation to the conditions. We acknowledge that the conditions are extensive, intrusive, far reaching and potentially expensive. Although the conditions have been in place for five years, there is no evidence before us to suggest there has been any failing on the part of the Respondent nor has there been any other aspect of his practice which has required intervention by the Medical Council. 3. The Respondent has been subjected to the humiliation of having to display a notice in each place of his practice which sets out that he is the subject of conditions upon his practice arising from a complaint which is being investigated. (We note the conditions imposed by the Medical Council on 22 February 2018 do not specifically contain such a requirement. We have, however, accepted the Respondent's unchallenged evidence in relation to the same.) 4. The Respondent has been required to have each female patient, who is prepared to see him, acknowledge that he is not permitted to consult with her unless a practice monitor, approved by the Medical Council and acceptable to the patient, is present at all times. Notwithstanding that requirement, the Respondent has consulted with 4,159 female patients whilst subject to that condition. 5. The Respondent has expressed contrition to the Tribunal for the consequences to Patient A of his examination of her. 6. The Respondent has accepted he was in error in conducting the examination he did and that such an examination was inappropriate and would not be conducted by a colleague with the same qualification, training and experience. 7. The Respondent has given a promise not to carry out another such examination if permitted to continue practice. 8. The Respondent has expressed an understanding of the power imbalance in the doctor/patient relationship and as such has demonstrated insight. 9. The Respondent has acknowledged he did not obtain informed consent from Patient A before conducting the examination of her. 10. The publication of the Respondent's misconduct has been widely available. The requirement for him to enlist the assistance of people who are close to him has caused his family to suffer. (Mr Henley's evidence was not specific as to how the family members have suffered, however we accept Mr Henley's evidence.) 11. The Respondent's father, also an ophthalmologist, who has practised with the Respondent, has given evidence as to his observations of the Respondent as a medical practitioner and person. He retains complete confidence in the Respondent. 12. The Respondent's submission emphasises, relying upon s 3(3)(c) (now s 3A(2)(c)) of the National Law, that restrictions on the practice of a health practitioner are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 13. There is a requirement not to make a visceral response to the misconduct. 14. The public confidence in the medical fraternity at large is unlikely to be eroded by this one case. It is generally accepted that the public do have confidence the medical profession will practise medicine ethically, proficiently, professionally and in their patients' best interests. That is unlikely, submits the Respondent, to be affected by this one case. The fact that over 4,000 female patients have been prepared to consult with the Respondent, notwithstanding the necessity for the practice monitor to be present, demonstrates that, so far as can be judged, there remains a high level of confidence in the Respondent as an ophthalmologist. 15. The Respondent otherwise has a "clean record" (no adverse comment or recorded complaint) as a practitioner. This is the only complaint established against him. The only other recorded instance of dissatisfaction with his work was that contained in the letter of 2001, which was anonymous and not investigated. 16. The character of the Respondent, as revealed by his attendance before the Tribunal, the findings made in relation to his credit, and the nature of the testimonials provided for the hearing from friends and family, can be accepted as a comfort to the Tribunal as to the reliability of the Respondent to practise safely and appropriately in the future, as he has promised. The Respondent submits that is a mitigating factor, in the determination of Protective orders. 17. There was no evidence that the Respondent required ongoing psychiatric or psychological treatment in order to continue to practise medicine safely. 18. The deterrence requirement of protective orders will be satisfied by the already published version of the Stage 1 decision and the Court of Appeal decision. Further the publication of the stage 2 portion of the judgment will add to the deterrence requirement. 19. The experience of the Respondent arising from the complaint made against him, as published in the decisions that have been made in this proceedings and will be made in this determination, will, submits the Respondent, serve as sufficient deterrence to the profession at large and will not require further action such as a suspension or cancellation of his registration. 20. The Respondent submits that the action thus far taken against the Respondent, and that which would be demonstrated by the imposition of a reprimand and conditions attached to his registration, will serve to show the public at large, that the medical profession is being appropriately regulated by those overseeing it, and thereby support the public confidence in the medical profession.

Is it possible to frame conditions which, if imposed, will ensure the Respondent will practise safely and that the public will thereby be protected?

We have set out the conditions which were submitted by each of the HCCC and the Respondent. The Respondent submits that conditions imposed on his registration would be appropriate and adequate given the risk that can reasonably be assessed as applicable to the public, should the Respondent continue to practise. The HCCC says that is not the case. It submits only cancellation will suffice.
We are satisfied, in this case, that there is no unacceptable risk that the Respondent would again practise in a manner which would see a repeat of the type of misconduct we have found against him. Whilst there can never be absolute certainty about that matter, we are as satisfied as we can reasonably be, having regard to the totality of the evidence which informs us about the Respondent, that it is not foreseeable that he would again so act inappropriately in the manner we have found against him. We are supported in that conclusion by the evidence of Dr Diamond. That said, we could, if the Respondent's registration is not cancelled, reinforce our confidence against re-offending, by imposing conditions which will be monitored by the Medical Council for as long as the conduct of the Respondent demonstrates the conditions may be necessary. Dr Diamond was also supportive of conditions being imposed.
We have had regard to the evidence of Dr Diamond, who opines that he is confident the Respondent would not re-offend in the future if permitted to practise. We note he could give no guarantee and he acknowledged that all things are possible. The HCCC raised with us whether the Respondent would need ongoing neurological oversight to ensure the public's safety, should he continue to practise.
We note in the submission of the Respondent addressing the conditions which had been proposed by the HCCC, he quoted from the evidence of Dr Diamond as follows: "'I have not found him to be demented, I have not found him to be affected by substance abuse, I have not found him to be suffering some form of psychosis.' Further, 'I came to the view in time because I addressed this every time I saw him that he really was quite tunnel visioned in his way of looking at things. He has an idea in his head and he pursues it to its end point by going through very specific logical steps from A to B, to C, to D, and he's not somebody who appears to me to be thinking very broadly or yes, broadly, I think. The impression I got of how he functions was much more in a linear, logical progression, and really quite obsessive in his obsessional, I might say in his pursuit of a particular goal, and it didn't seem to be sexually driven, from the interaction I had with him.'"
That extract from the evidence, in our view, does support the requirement for some future oversight by a psychiatrist, of the Respondent's choice, even if it were for the purpose of review and recommending that the Respondent consult with a psychologist of his choice. We note the opinion of Dr Diamond that the particular psychological profile of the Respondent is one where he "really was quite tunnel visioned in his way of looking at things". We would feel more comfortable with a decision which required the imposition of conditions, rather than one that did not (such as a cancellation) where the particular approach of the Respondent to his practice (as opined by Dr Diamond) is monitored by a health specialist who may be able to assist the Respondent in overcoming, controlling, amending or changing the type of psychological state which led him to conduct the examination of Patient A and which brought the Respondent before the Tribunal.
Notwithstanding that we may conclude the Respondent will practise safely, if permitted to continue practising with conditions imposed, we need to keep in mind the requirement to uphold the public confidence in the medical profession and to provide a deterrent aspect to the protective orders we can impose. We need to consider whether the Respondent's misconduct was such a departure from the expected standard as to require a cancellation order.

If we are minded to impose conditions, what would those conditions be or guard against?

We conclude that, were we to impose conditions to protect the public in relation to the future practice of the Respondent, we would require conditions which: 1. Ensure that the respondent undertakes a course of education, nominated by the Medical Council, which addresses matters relating to medical ethics; doctor/patient boundaries; informed consent; recognising the rights of patients in the doctor/patient relationship. 2. Supervision (at category C under the Medical Council of NSW Compliance Policy) by an ophthalmologist, approved by the Medical Council, who can meet with the Respondent at reasonably frequent occasions and be available to the Respondent for telephone consultation, should that be required, and otherwise as required by the Medical Council of NSW Compliance Policy - Supervision. We would also suggest that the supervisor approved, if at all possible, should not be a medical practitioner practicing in the same geographical area as the Respondent (the Eastern suburbs of Sydney) and should not be a friend of the Respondent or any member of his immediate family (including his father). We do require a supervisor rather than a mentor as we conclude the Medical Council requirements and the requirements we specify will ensure a level of oversight of the Respondent's practice, which may not be achieved by the Respondent engaging a mentor. We appreciate the difference may be marginal, however, the public safety requires we have a high level of comfort in the effectiveness of any condition we would impose. 3. An audit of the Respondent's record keeping should be carried out by an appointed auditor of the Medical Council within 12 months and thereafter as the Medical Council sees appropriate or as otherwise required by the Medical Council, as a condition of the medical practitioner's registration. 4. For a period of not less than 12 months, the Respondent should be required to attend upon a psychiatrist of his choice and comply with his psychiatrist's recommendations (including that he engages the services of a psychologist of his choice). A report should be authorised, by the Respondent, from his psychiatrist to the Medical Council of NSW should the Respondent fail to attend appointments or should the Respondent be seen to be not compliant with his psychiatrist's recommendations. 5. The review body should be the Medical Council of NSW for the purpose of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).
Generally, subject to the changes which we might make, the type of wording around the recommended conditions provided by the HCCC is seen by us to be appropriate should we proceed with conditions.
One of the conditions suggested by the HCCC is that the Respondent be required to practise in a group practice where there are two other registered specialist ophthalmologists also practising and that there always be another ophthalmologist present in the practice whilst the Respondent is there at work.
The precise circumstances of the practice where the Respondent currently works was not explored in the evidence heard in this case. We do know that the Respondent works in a clinic which trades under the name of Sydney Laser Vision Centre ("the Clinic") in Bondi Junction, Sydney. We know that his father also practises from that site however, the extent of his father's practice, or attendance at the practice rooms, is not known. We also know the Respondent practises (operates) at other places as an ophthalmologist. We do not know whether other practitioners are present at the Clinic whenever the Respondent is also working there, or at the other sites where he operates. Conditions should not be imposed which are not possible to be implemented. The HCCC seeks that such a condition be a requirement to be in place before the Respondent commences practice following the orders. The failure of the Respondent being able to implement such a condition forthwith would thereby act as a pseudo-suspension of registration until put in place.
We consider a specialist ophthalmology practice to be in a different category of practice as compared to a GP practice, in terms of being readily established and amenable to the flow of practitioners, in and out of the practice, from time to time. We are aware that the Respondent practises laser surgery, however, we are unaware of what equipment and facilities he requires to undertake that practice. Without that knowledge, we do not consider it is appropriate that we make the type of condition suggested by the HCCC. If it be the case that the Respondent already practises in a setting where there are at least two other ophthalmologists also practising and that invariably there is another practitioner working at the Clinic at the same time as the Respondent, we see no reason to have a condition which requires what is actually the "status quo" for the Respondent.
In lieu of such a requirement, we consider a condition which will assist with ensuring patient safety is one which requires the Respondent to attend, during a 12 month period, two medical conferences of his choice (approved by the Medical Council), each of one day's duration or longer, where other medical practitioners are physically present and where papers are presented by medical practitioners. We consider that may allow the Respondent to be alerted to changes of approach by ophthalmologists to practice which he is otherwise unaware of. We do accept that the Respondent has made a major effort to acquaint himself with advances in ophthalmological practice arising out of this proceeding, as his evidence demonstrates.
We are concerned by the words of the Respondent in his statement (part of Exhibit 2R1) where he said "[a]t the time of conducting the physical examination of Patient A" he did not "fully appreciate the power imbalance inherent in a doctor/patient relationship." He said that he now does "appreciate its existence, and the way in which it is felt by the patient". We do not see how awareness of power imbalance between a doctor and patient can be measured in degrees. We consider awareness of "power imbalance" is a concept which is either recognised or it is not. We are concerned that the Respondent may have restricted the environment in which he lives and works to one where he has little meaningful interaction with other medical practitioners and thereby restricts his ability to absorb and adopt practices and concepts which will be well practised by those practitioners.
We are also concerned about the words of the Respondent, as set out in his statement forming part of Exhibit 2R1, as follows: "I also did not fully appreciate at the time that the breast examination, I conducted on Patient A, would have been construed by her as a very sensitive examination for her to undertake." We consider every medical practitioner would be absolutely alive to such potential sensitivity and not subject the patient to an examination in such a circumstance as existed when the Respondent examined Patient A. This, to us, suggests the Respondent does require the assistance of his chosen psychiatrist in the first place, and possibly a psychologist, if recommended by that psychiatrist, to help the Respondent recognise sensitivities which he is or may be unresponsive to and/or lacking the ability to recognise at this time. We do not consider the medical notes taken by the Respondent's psychiatrist or psychologist should be required to be provided to the Medical Council as part of a condition imposed.

Is it necessary to cancel the Respondent's registration to protect the public, provide a deterrent to other practitioners and retain the public confidence in the medical profession? Will an order such as suspension of registration or a reprimand be sufficient in the particular circumstances of this case?

We conclude that the protective order which is required in this case is a suspension of the Respondent's registration for a period of three months. That is to be accompanied by conditions attached to his registration upon his return to practice at the conclusion of that period. We have so concluded because, although we accept the Respondent can practise safely now, with the imposition of conditions, we do accept that the Respondent's conduct demonstrated such significant failing, in a practitioner of his seniority, experience, and learning, that a reprimand will be insufficient to fulfil the obligation cast upon this Tribunal by the National Law and the decisions which are binding upon us. We conclude that maintaining public confidence in the medical profession itself, and in its proper and appropriate regulation, requires that practitioners who are found guilty of professional misconduct at the level illustrated in this case need to have imposed on them protective orders which clearly show the profession and the public that such misconduct will have serious consequences, and that safeguards in the form of supervised conditions will be put in place and operate until the practitioner is determined to be able to practise safely. In this case the impact of the Respondent's medical practice on Patient A was such that she was moved to make a complaint to the NSW Police. When patients are moved to take such action, it is a statement of the serious impact of inappropriate medical practice.
We reach that conclusion in the face of the HCCC requiring the Tribunal to cancel the registration of the Respondent. We conclude that cancellation, in this case, goes beyond the requirement of the National Law to ensure that, in the application of the provisions of the National Law, restrictions on the practice of health professionals are applied only if it is necessary to ensure health services are provided safely. We have also concluded that the protective orders we propose to make do place the health and safety of the public as the paramount consideration. We conclude that the protective orders we will make will promote the maintenance of proper ethical and professional standards of medical practitioners, for the protection of the public and the profession. The orders will also act as a deterrent to medical practitioners.
We conclude the provisions of the National Law will be satisfied by the protective orders we will make.

Costs

The HCCC seeks an order for its costs to be paid by the Respondent. In support of that order the HCCC submitted: "The Tribunal has the power to order the practitioner to pay costs under clause 13(1) of Schedule 5D of the National Law. The Tribunal may fix the amount of costs itself or order that the amount of costs be as agreed or assessed: clause 13(3A). The Commission seeks an order that the practitioner pay the Commission's costs for reasons including: a. The Court of Appeal has affirmed that costs are awarded to compensate the successful party and accepted that as a general rule, costs of proceedings before the Tribunal should follow the event; b. The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party; c. There was no disentitling conduct by the Commission to warrant a departure from the general rule."
In support of that submission the HCCC relied upon the decision in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46].
In this case, the Respondent has contested the HCCC's case in relation to both a finding of professional misconduct and also the protective orders to be imposed. Neither party was completely successful in having the Tribunal impose the protective orders individually sought. Nonetheless, we find it has been necessary for the HCCC to pursue the case it did and we find there was nothing about the conduct of the case by the HCCC which warrants any interference with an approach that that its costs should be paid by the Respondent. We propose to order the Respondent pay the costs of the HCCC as agreed or as assessed.

Orders The orders of the Tribunal are as follows: 1. The Respondent's registration as a medical practitioner (General and Specialist - Ophthalmology) is suspended for three calendar months from the date of this order. 2. The Respondent's registration is to be subject to the following conditions. Practice conditions 1. To obtain Medical Council of NSW (Medical Council) approval prior to changing the nature or place of his practice. 2. To complete, within 12 months of the date of the Tribunal's decision, the Ethics Counsel Program for Health Professionals organised by the Ethics Centre. a. Within 3 months of the date of the Tribunal's decision, the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. b. Within 1 month of completing the abovementioned course, the practitioner is to provide documentary evidence to the Medical Council of NSW that he has satisfactorily completed the course. c. To bear responsibility for any costs incurred in meeting this condition. d. In the event that the Ethics Counsel Program for Health Professionals is unavailable, he must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why he is making this proposal, by no later than 3 months from the date of the Tribunal's decision. 3. To attend at least two medical conferences of not less than one day's duration, where there are other medical practitioners present and medical practitioners presenting papers, in person (educational lectures). Such conferences to be approved by the Medical Council. Evidence of attendance to be provided to the Medical Council within 14 days of attendance having taken place. 4. To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. The approved supervisor or supervisors are to be practitioners who do not practice in the immediate vicinity of the Respondent's practice in the Eastern suburbs of Sydney and are not to be personal friends of the Respondent, his immediate family, or his father. b. At each supervision meeting, the practitioner is to review and discuss his practice with his approved supervisor with particular focus on:

professionalism and professional ethics;
maintaining of appropriate professional boundaries with patients;
referral of patients with suspected tumour and/or who require X-ray/CT/MRI imaging;
practising within the practitioner's scope of practice; and
discussion of the Medical Board of Australia's 'Good Medical Practice: A Code of Conduct for Doctors in Australia' and 'Guidelines: Sexual Boundaries in the Doctor-Patient Relationship', and discussion of the Royal Australian & New Zealand College of Ophthalmologists (RANZCO) 'Code Of Conduct: The Standard Of Patient Relations'. c. To authorise the Medical Council of NSW to provide proposed and approved supervisors with the decision that imposed this condition and any other decision or report as determined by the Council. d. Not to practise until a supervisor has been approved by the Medical Council of NSW. 5. To submit to a random audit/inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW. a. The audit/inspection is to be held as required by the Council to assess his compliance with conditions imposed on his registration. The auditor(s) may:
Inspect medical records; b. To authorise the auditor(s)/inspector(s) to provide the Council with a report on their findings. c) To meet all costs associated with the audit(s)/inspection(s) and any subsequent reports. 6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 7. To authorise and consent to any exchange of information between the Medical Council of NSW and future relevant persons or organisations at locations where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health Conditions (not for the public) 8. To attend for treatment by a psychiatrist of his choice and, if recommended by his psychiatrist, to attend upon a psychologist. The frequency of treatment is to be determined by the treating psychiatrist. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: i. failure to attend for treatment, ii. termination of treatment, iii. a significant change in the health status or a significant failure to accept or implement the advice provided (including a significant temporary change); b. must provide the Council with the professional details of the treating practitioner; c. must provide evidence (in the form of a letter from his psychiatrist) to the Council of his attendance with the treating psychiatrist. Review provisions 9. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 10. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. 1. The Respondent is to pay the costs of the HCCC as agreed or as assessed.

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: 23 March 2023

Care Complaints Act 1993(NSW)

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