Health Care Complaints Commission v Ryken

NCAT Occupational|2016-02-26

alth Care Complaints Commission (Applicant) Dr Daniel Ryken (Respondent) Representation: Counsel: Mr A Britt (Applicant) Solicitors: Makinson d'Apice Lawyers (Respondent) File Number(s): 1520168 Publication restriction: Pursuant to Schedule 5D cl 7 of the Health Practitioner Regulation National Law publication of the name of the patients in the Amended Complaint (namely each of Patient A, Patient B and Patient C) is prohibited.

Summary

By Application for Disciplinary Findings and Orders dated 28 August 2015, the Health Care Complaints Commission (the Commission) seeks orders, pursuant to s 149C of the Health Practitioner Regulation National Law NSW No 86a (the National Law), that: 1. The respondent's registration as a chiropractor be cancelled, and that he may not make any application for a review of that order for a period of one year from the date of the order; alternatively, 2. The respondent's registration as a chiropractor be suspended for a period of six months, after which he may practice subject to various conditions, including but not limited to practise in a group practice approved by the Chiropractic Council of New South Wales (the Council) where there are at least two registered health practitioners (excluding the respondent), at least one of whom is a registered chiropractor of a minimum of seven years post-registration experience, such conditions to remain in place for a period of three years from the date of the Tribunal's decision. 3. The respondent pay the Commission's costs of the application.

The Complaints

The Commission, having consulted the Council in accordance with s 39(2) of the Health Care Complaints Act 1993 and s 145 of the National Law, complains that: 1. The respondent is guilty of unsatisfactory professional conduct under ss 139B(1)(a) and (l) of the National Law (Complaint One). 2. The respondent is guilty of professional misconduct under s 139E of the National Law. (Complaint Two).
The background to both complaints is as follows: At all relevant times the practitioner worked in his own practice, operating from his residential premises at North Curl Curl. The practitioner has operated this practice since 2004 when he first obtained registration as a chiropractor. From 2006 the practitioner worked four half days per week in Chatswood at the Feel Amazing Wellness Centre. The practitioner treated Patient A from about 15 January 2010 to about 29 January 2013. The practitioner knew Patient A in a personal capacity prior to the commencement of the therapeutic relationship. The practitioner treated Patient B from about 4 October 2008 to about 3 March 2014. The practitioner knew Patient B both as a patient and in a personal capacity. The practitioner treated Patient C from about 29 May 2012 to about 27 November 2012 and again from 6 September 2013 to 11 February 2014. It is noted in available patient records that Patient C was 32 weeks pregnant on her first visit to the practitioner on 29 May 2012.
The particulars of Complaint One are:
The practitioner failed to maintain appropriate professional boundaries with Patient A in that he: (a) engaged in telephone communication with Patient A during the period mid-May 2013 to July 2013, while he was Patient A's treating practitioner, which was of a personal nature having regard to the volume, frequency, timing and/or nature of the calls; (b) engaged in text message and Facebook exchanges with Patient A from early to mid-2013 which were of an intimate and/or sexual nature; (c) attended at Patient A's home in the evening on a number of occasions from early to mid-2013;
The practitioner engaged in inappropriate physical and/or sexual contact with Patient A in that he kissed Patient A on the lips after a Gymbaroo children's event in mid-2013.
The practitioner failed to maintain appropriate professional boundaries with Patient B in that he: (a) engaged in telephone communication with Patient B during the period August 2013 to November 2013, while he was Patient B's treating practitioner, which was of a personal nature having regard to the volume, frequency, timing and/or nature of the calls; (b) permitted Patient B to visit his home in late December 2013; (c) verbally consoled Patient B in relation to her relationship breakup during her visit to his home in late December
The practitioner engaged in inappropriate physical and/or sexual contact with Patient B in that he kissed and cuddled Patient B during her visit to his home in late December 2013.
The practitioner failed to maintain appropriate professional boundaries with Patient C in that he: (a) engaged in telephone communication with Patient C during the period early January 2014 to mid-March 2014, while he was Patient C's treating practitioner, which was of a personal nature having regard to the volume, frequency, timing and/or nature of the calls; (b) engaged in inappropriate communications with Patient C through Facebook account established sometime prior to February 2014 by the practitioner under a false name for the purpose of communicating with Patient C.
The practitioner engaged in inappropriate sexual relations with Patient C in that he: (a) engaged in sexual intercourse with Patient C in late January 2014; (b) continued a sexual relationship with Patient C between late January 2014 and early April 2014. Complaint One and the particulars thereof are repeated and relied on upon both individually and cumulatively as the particulars of Complaint Two.

Admissions of the respondent

On 27 January 2016, the respondent filed a Reply to Application for Disciplinary Findings. In this document, the respondent: 1. In answer to Complaint One: 1. admits he is guilty of unsatisfactory professional conduct as alleged; 2. admits the conduct alleged in pars 1, 2, 3, 4, and 5 of the particulars to Complaint One; 3. says in relation to par 1 that he and Patient A were friends prior to any therapeutic relationship, accepts that he ought to have referred Patient A to a different health practitioner, and says that he and Patient A remain friends; 4. says in relation to par 3 that he and Patient B were friends prior to any therapeutic relationship, and that he and Patient B remain friends; 5. says in relation to par 5 that some of the personal (i.e. non-therapeutic) contact was business-related, in that Patient C wanted the respondent to stock a product that she sold; 6. says, in answer to par 6, that he admits he engaged in inappropriate sexual relations with Patient C, that he engaged in sexual intercourse with Patient C in late January 2014, and that he continued a sexual relationship with Patient C between January 2014 and early April 2014. He says that the therapeutic relationship ceased on about 11 February 2014, and that he and Patient C remain friends. 1. In answer to Complaint Two: 1. admits he is guilty of professional misconduct. 2. admits the conduct alleged in par 1 of the particulars to Complaint Two.

The filed documents

A bundle of over 60 documents was filed by the Commission. These documents include, but were not limited to: evidentiary certificates provided by the Australian Health Practitioner Regulation Agency (AHPRA) and the Council; an expert report of Dr Andrew Paul; correspondence between the Commission and the respondent; correspondence between the Council and the respondent in relation to the s 150 proceedings; reports from the respondent's general practitioner and treating psychologist; references from friends and colleagues of the respondents; telephone records; clinical records and other information such as copies of text messages and copies of the respondent's Facebook page.
The respondent also tendered a bundle of documents, including letters of Dr Brett Gambrill and Mr Anthony Middlemass; details of a risk management program he had undertaken; and a statement of the respondent dated 21 January 2016.

The Investigation

On 25 June 2014 the respondent was notified by the Commission that it had received two complaints concerning his professional conduct, and invited the respondent's response.
The first complaint was a notification from a chiropractor, Dr Matthew Hall, received on 28 March 2014 by AHPRA. Dr Hall was a friend of both the respondent and his former wife. The notification relevantly states: [The respondent] told me that he became romantically involved with a patient. He said her name was ... … He said that he kissed her once only at a function away from his work. This occurred in 2013. He told me that he no longer sees her as a patient, nor is there any relationship between them at this stage. He also mentioned that he commenced a relationship in 2014. He told me that he ceased treating her as a patient, prior to pursuing the relationship .…
The second complaint received by the Commission concerned allegations that in 2013 and 2014 the respondent had engaged in inappropriate/sexual relations with three current and/or former female patients. The Commission did not disclose any further information about these allegations. The Commission also disclosed its knowledge of a possible pornography addiction for which the respondent was being treated by a psychologist. The Commission invited the respondent to provide a response, including the name of his treating psychologist.
The respondent's response was dated 17 July 2014. The respondent noted that his former wife had spent significant time with Dr Hall since their separation, and that in late February 2014, his former wife was arrested and subsequently charged with assaulting him. In March 2014, she was "institutionalised in hospital due to a mental breakdown", and subsequently was issued with an apprehended violence order.
In relation to the unidentified complaint referred to in the Commission's letter, the respondent relevantly stated: I have never had a sexual relationship with a current patient.
As will be seen, this statement was not true. The respondent continued: I had only ever had a sexual relationship with one former patient [Patient C]. . . . After my last consultation with [Patient C] on 11 February 2014, . . . [Patient C] wrote out and signed the attached document recording the cessation of the practitioner/patient relationship. I did not consider her to be in a position of vulnerability, she approached me about pursuing a relationship and I say that she did not do so as a result of my being a chiropractor but as a friend and equal. I did make some inquiries, including of chiropractic colleagues, in an effort to ascertain whether there was a specific period after a practitioner/patient relationship ended within which the practitioner could not have a personal relationship with the ex-patient. However, I did not find any set period. Given my assessment that [Patient C] was not in a position of vulnerability, had approached me about a relationship and had clearly terminated the practitioner/patient relationship, I did not believe that there was any ethical dilemma in our commencing to date.
This paragraph of the letter concludes with the following statement: The relationship did not become an intimate relationship until towards the end of February and ended soon after.
As will be seen, this statement was also not true.
In the letter of 17 July 2014, the respondent also denied that he had been treated for a pornography addiction or that he had been diagnosed as suffering from a mental health condition. As will be seen, the denial of being treated for a pornography addiction and not suffering from a mental health condition was not true, at least in form, if not in substance. Having been diagnosed by his general practitioner, Dr Ng, with obsessive compulsive disorder (sexual compulsions) and adjustment disorder with mixed anxiety and depressed mood on 1 July 2013, the respondent was referred by Dr Ng to Ms Georgina Whelan, a psychologist and sex therapist. In a report dated 17 April 2014, Ms Whelan stated that the respondent had responded well to cognitive behavioural therapy for sexual compulsion, and had a greater self-mastery regarding compulsive use of pornographic material.
Finally, in the letter of 17 July 2014, the respondent says that the assertions that had been made against him needed to be considered "in the context of the toxic breakdown" of his relationship with his former wife.
By notice dated 23 July 2014, respondent was asked by the Commission, pursuant to s 34A(1) of the Health Care Complaints Act 1993, to provide further information of his relationship with Patient C. In a response dated 30 July 2014, the respondent explained that Patient C initially consulted him in May 2012. In early 2013, she started a health supplement business and she approached him about stocking her products in his practice. He states that his friendship with Patient C "developed from there and remained platonic until after the practitioner/patient relationship ceased". He stated that: [a]s previously indicated, on 11 February 2014, the practitioner/patient relationship with [Patient C] ceased. The relationship did not become an intimate one until towards the end of February and ended soon after.
This statement was not true.
On 3 October 2014, the Commission informed the Chiropractic Council of NSW (the Council) that that it had requested the respondent's patient file from his psychologist, Ms Whelan. In a letter of that date, the Commission stated: within that patient file it is clear that [the respondent] has a sexual addiction and that he has a lengthy history of sexual compulsive behaviour. Indeed a letter from Ms Whelan to [the respondent's] treating GP, Dr Ng dated 2 August 2013 states that [the respondent] has "disclosed to everyone he knows that he has a sexual addiction and wants to change his behaviour" and that "prior to separation he was accessing Internet pornography several times per week up to 13 hours per day. He neglected daily activities, business requirements and interaction with his wife and children". In a letter from Ms Whelan to Dr Ng dated 20 February 2014, she states that [the respondent] has increased control of his sexual behaviour that requires further sessions to plan for relapse prevention and will likely require follow-up for approximately 18 months. Further, although [the respondent] has admitted to having a sexual relationship with a former client [Patient C] in late February to early March 2014, the consultation notes for 31 January 2014 state that [the respondent] had sex with '[name omitted]'. One can surmise that this person is [Patient C], and that it was also whilst she was a patient of [the respondent], as she did not cease treatment with him until 11 February 2014.
By letter dated 14 October 2014, the respondent was informed by the Council that it had determined to conduct proceedings pursuant to s 150 of the National Law. The respondent was asked to provide submissions.
The respondent's response was dated 21 October 2014. In relation to Patient C, the respondent confirmed that he initially treated Patient C from 29 May 2012 to 7 November 2012, and then again from 16 September 2013 to 11 February 2014. He then states: It is with great regret that I must inform you that on one occasion, in late January 2014, the relationship became an intimate one. On 11 February 2014, [Patient C] sought further treatment from me. I felt most uncomfortable about this given that we had sex once in late January. Nevertheless as [Patient C] was in pain, I agreed to treat her. At the end of that treatment session, [she] informed me that she had been separated from her husband for some time and was interested in having an ongoing personal relationship with me. I explained to [her] that if we were to proceed further, I could not continue to provide her with any treatment. [Patient C] agreed that I would not continue to treat her and she would not regard herself as my patient . . . While I did not consider [Patient C] to be at any stage in a position of vulnerability, I acknowledge that I clearly breached professional boundaries in sleeping with her while she was a patient. By way of explanation rather than excuse, at the time I was going through a great deal of emotional turmoil, for which I was seeking treatment from Ms Whelan. I accept that the information set out above contradicts that which I previously submitted to the [Commission] regarding my interactions with [Patient C]. I am extremely sorry for providing incorrect information to the Commission and can only submit that I panicked when I was asked to respond to the complaints made against me given the tumultuous life events I experienced in the last 18 months.
In relation to Patient B, the respondent states that: [Patient B] was a patient and friend whom I treated sporadically for a number of years. I provided chiropractic treatment to [Patient B] on 16 December 2013. Soon after, prior to Christmas 2013, [Patient B] visited me at my home. We were both struggling with relationship breakups and ended up consoling each other, including physically. However, we remain fully clothed and did not have sexual intercourse. Our interaction stopped at kissing and cuddling. I have treated [Patient B] only once since then, in March 2014 and do not propose to treat her again. We remained platonic friends and each regard the event in the lead up to Christmas 2013 as a mistake . . . At the time of the event of my physical interaction with [Patient B], my life was in turmoil and I made a mistake with the person I regard as a friend. I accept that I breached professional boundaries and I very much regret doing so. I acknowledge that I have not disclosed the matters concerning [Patient B] to the [Commission] and accept that I should have done so previously.
In relation to Patient A, the respondent states that she was a friend prior to becoming a patient. He states that their friendship proceeded to an exchange of text messages involving sexual innuendo, but that this was always "banter", rather than anything with any serious intent. He admits that in or about early to mid-2013, after a Gymbaroo program Patient A was conducting, he kissed her on the lips. He states "it was only a goodbye peck rather than anything romantic or lustful". He states at about this time: I realised that my text exchanges with [Patient A] had probably gone too far and I was uncomfortable about them. I informed her I could not treat her and cease doing so. I never engaged in sexual activity with [her].
The respondent agreed that he had sought treatment from Ms Whelan, a psychologist and sex therapist, since July 2013. He denies that he ever suffered from sex addiction or "porn addiction", although he acknowledges that he consulted with Ms Whelan in relation to his use of pornographic material in the context of the breakdown of his marriage, and as a coping mechanism relating to the death of his father when he was 18. He states that he has never understood himself as suffering from a diagnosed mental health condition, but notes that Ms Whelan indicated that he suffered from an adjustment disorder with anxiety and low mood post marital separation, which had resolved. He does not recall ever being informed he suffered from an adjustment disorder.
In conclusion, the respondent accepts that he made significant errors of judgement in his dealings with Patients B and C, and, "perhaps to a somewhat lesser extent", Patient A.
On 15 October 2014, the Commission asked the respondent to produce his patient files for Patients A and B. These were produced by letter dated 30 October 2014. In that letter, the respondent confirms the responses he had made in relation to each of Patients A, B and C in his letter of 21 October 2014. Additionally, he states that, on 29 October 2014, he had commenced voluntarily seeing Dr Brett Gambrill, an osteopath and chiropractor, for mentoring and advice on professional boundaries.
On 22 January 2015, the respondent was invited by the Council to respond to Dr Paul's report of 14 January 2014. In an undated letter to the Council, tendered as Exhibit 30, the respondent said that he largely agreed with Dr Paul's opinions. He makes certain observations about his conduct with each of Patients A, B and C which are set out below at [51].
The respondent then states that, until his separation/divorce, he had never had a complaint made about him. He says he feels that the complaints were taken out of context in order to "make me look predatory towards my patients which I am not". He says that he does not wish to suggest that the circumstances in which the complaints were made should excuse his conduct, but submits that the context is important, and that his separation/divorce took a big toll on him. He says that he deeply regrets his conduct "to the extent that it has breached the professional obligations I owe to my patients and the public". He admits that he alone is answerable for his conduct, and acknowledges that people may have suffered emotional hurt as a consequence of his actions. He now understands that it is generally inappropriate to ever provide treatment to a patient who is a friend or a relative, unless it is an emergency.
The respondent volunteers to have additional conditions placed on his right to practice. He would like to have the opportunity to work with the Commission on the complaints rather than the investigation proceeding to formal disciplinary proceedings. He is open to negotiating other conditions which the Commission may consider to be appropriate and is prepared to accept a formal reprimand.

Medical evidence

Also included in the materials is a short letter of Dr Daniel Ng dated 20 October 2014. Dr Ng is the respondent's treating general practitioner. There is a typographical error in the letter, so it is not clear for how long the respondent has been a patient of Dr Ng. However, it is clear that the respondent had been a patient since, at the latest, 1 July 2013. Dr Ng states that the respondent has a history "consistent with obsessive compulsive disorder (sexual compulsions) and adjustment disorder with mixed anxiety and depressed mood" for which he consulted Dr Ng voluntarily on 1 July 2013. Dr Ng states that the respondent was treated with Serlatine (Zoloft) and referred to Ms Whelan. At the time of preparing the letter, Dr Ng states that the respondent was in full remission, and only required clinical measures of relapse prevention.

Psychological Evidence

On 2 August 2013, Ms Whelan provided a report to Dr Ng. She stated that the respondent had been referred for focused psychological strategies for sexual compulsions and adjustment disorder post marital separation. He attended three sessions from July to August 2013. Ms Whelan relevantly states: 1. The respondent has had an adjustment disorder with anxiety and low mood after the recent separation from his wife of 17 years. He ruminates obsessively about how to repair his marriage and has guilt regarding the impact of the separation on their two children. He compulsively talks about his separation to anyone will listen. He has disclosed to everyone he knows that he has a sexual addiction. He wants to change his behaviour. 2. The respondent has a two-month history of marital separation since his former wife discovered him engaging in "sexting"; he has had a prolonged compulsive use of pornography since the age of 18, accessing Internet pornography several times per week up to 13 hours per day. The respondent described his lack of control over sexual behaviour despite attempts to stop. He is distressed and feels guilt. He has continued with this behaviour, despite the possibility of adverse consequences, and has historically blamed his wife as justification for use of pornography. 3. The respondent's use of Internet pornography gradually escalated since the death of his father at age 18. 4. In summary, the respondent is suffering an adjustment disorder with low mood and anxiety related to marital separation, as a consequence of progressively worsening sexual compulsions.
Clinical notes of Ms Whelan of 12 September 2013 record that the respondent stated that women at work were flirting with him, and that Ms Whelan and he discussed boundary setting, and improving boundaries about personal disclosure.
A further report of Ms Whelan to Dr Ng dated 12 September 2013 states that the respondent's low mood was slowly improving, with greater certainty of marital reunion. She said that the respondent currently had no urges to look at internet pornography.
Clinical notes of Ms Whelan of 19 December 2013 reflect a relapse of the respondent in accessing pornography. The respondent was accessing erotica up to four times a day on his iPhone.
Clinical notes of Ms Whelan of 31 January 2014 reflect that the respondent had had sex with Patient C (described as "amazing"). Other sex with a sex worker was dissatisfying. He reported that he was fearful of "falling for" Patient C. The clinical notes also record that the respondent was again watching pornography.
A report to Dr Ng of 20 February 2014 states that, after 12 sessions in 2013, the respondent had responded well to cognitive behavioural therapy for sexual compulsions. He had increased self-mastery of compulsive sexual behaviour and reduced internet pornography use. He had a better understanding of the aetiology of compulsions and strategies to manage them. His adjustment disorder post separation had resolved. In summary, Ms Whelan reported that the respondent had an increased control of sexual behaviour and that his mood had stabilised. She stated that he required further sessions in 2014 to plan relapse prevention. Due to the lengthy history of sexual compulsive behaviour, it was likely he would require follow-up, intermittently, for approximately 18 months.
Clinical notes of Ms Whelan dated 16 April 2014 reflect the respondent having sex with Patient C.
A further report of Ms Whelan dated 17 April 2014 was prepared after the respondent had attended five sessions in 2014. Ms Whelan states that the respondent had responded well to cognitive behavioural therapy for sexual compulsion and had a greater self-mastery regarding compulsive use of pornographic material. She also states that the respondent has a reliance on sex as a self-soothing behaviour, and has trouble setting boundaries with other women, despite his desire to reunite with his wife.

Expert evidence

During the course of its investigation the Commission retained Dr Andrew Paul to prepare a report. Dr Paul is an eminently qualified chiropractor and osteopath and no objections were taken to either his expertise or the tendering of his report. He also gave brief evidence to the Tribunal by telephone. His report of 14 January 2015 was lengthy and detailed and concludes: [The respondent] has exploited his relationship with his patients using an excuse of his own emotional vulnerability during his marriage breakdown. He has also said that the patients involved were often also going through an emotional period in their own relationships and marriages. As one of the issues regarding doctor-patient sexual relationships that do not always require sexual intercourse to qualify as such is the doctor has a power imbalance and the patient is a vulnerable. The patients were emotionally vulnerable during their marriage issues.

Patient A

Dr Paul concluded that: 1. The respondent asking Patient A to partake in flirtatious and sexually suggestive text messages and Facebook messages; 2. The respondent kissing Patient A on the lips; 3. The level of communication between the respondent and Patient A, which indicated a level of friendship which was more than that of a regular doctor-patient relationship was conduct that was below the standard expected of a practitioner of an equivalent level of training or experience as the practitioner complained about at the time of the events the subject of complaint.

Patient B

Dr Paul concluded that, the respondent had crossed the doctor-patient boundary, by inviting Patient B to his house and then kissing and cuddling her. He comments that the doctor-patient relationship is inherently unequal, with the patient often vulnerable. In many situations, the patient may depend emotionally on the doctor. It is an abuse of this power imbalance for the doctor to enter into a sexual relationship with a patient, and that the respondent's conduct was below what is reasonably expected of a practitioner of an equivalent level of training or experience.
Dr Paul also concluded that the level of communication between the respondent and Patient B indicated a level of friendship which was more than that of a regular doctor-patient relationship, and was conduct that was below the standard expected of a practitioner of an equivalent level of training or experience as the practitioner complained about at the time of the events the subject of complaint.

Patient C

In relation to Patient C, Dr Paul comments that friendships between practitioners and patients can extend outside the practice environment. As members of similar communities this would be natural in the case of the supplement business. However, friendship should only ever stay platonic and never develop into a flirtatious, intimate or sexual relationship. As the respondent states in his letter of 21 October 2014 that he had an intimate relationship with [Patient C] while she was a patient, the friendship possibly was crossing professional boundaries prior to this date. Dr Paul concludes that, at some time in the period from early 2013 to 11 February 2014, the development of an intimate relationship was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct and invited strong criticism.
Dr Paul also considered that, the establishment by the respondent of an alias Facebook account in which to engage in sexual chats with Patient C, indicated that he knew he was crossing professional boundaries and was conduct that was below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Dr Paul states that the respondent's invitation to Patient C to drinks and intimate conversation about their sex lives is not appropriate in a doctor-patient relationship and is conduct that is below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Dr Paul was asked to comment on the appropriateness of the respondent's alleged conduct in inviting Patient C to his house on numerous occasions over a 3 to 4-week period to have sexual intercourse with her both while she was still his patient in the weeks after the practitioner/patient relationship ceased. Dr Paul states it is very inappropriate to have a sexual relationship with a patient anywhere, and to invite her to his house with the intention of sex is very inappropriate while she was a current patient, and continues to be inappropriate after the doctor-patient relationship was terminated, as the relationship is inherently unequal. In this respect, he refers to section 9.2 of the Chiropractic Code of Conduct.
Dr Paul concludes that the respondent's conduct, while Patient C was a patient, is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time and invited strong criticism. After Patient C ceased being a patient, the conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of conduct.

Respondent's position

In a letter to the Commission, undated, but tendered as Exhibit 30 in the application, the respondent stated that he largely agreed with Dr Paul's opinions. However, he also states: 1. In relation Patient A, she had been a friend of his for a long time before he was her chiropractor. He says that with the benefit of hindsight and learning, he should never have accepted her as a patient. He says his conversations and messages with her often included a lot of personal banter and innuendos which would be acceptable between consenting friends. However, he realises, with the benefit of hindsight and mentoring, that his conduct was not appropriate with a person who becomes a patient. 2. In relation to Patient B, he accepts that his conduct was not appropriate. In relation to the "kissing and cuddling" he had described in previous correspondence, he said he did not feel that it was inappropriate to console another friend through their personal dilemmas, although he understands that he should not have treated Patient B. Notwithstanding that acknowledgement, he says that he does not feel "that there was any power imbalance in a relationship". He states that the level of communication was that of a friendship, rather than a normal patient practitioner relationship. 3. In relation to Patient C, he relevantly states that: 1. his relationship with her evolved in an unexpectedly unprofessional manner, and that his conduct fell below the standard reasonably expected of a practitioner of his experience; 2. the use of an alias on Facebook was to protect his identity from his former wife, rather than a way to protect his name being associated with a patient. He does not recall the conversations as being sexual in nature, but does not deny the conversations may have been; 3. he never invited Patient C out for drinks or discuss their sex lives. He says that Patient C came to his residential premises, while she was a current patient, to deliver her supplement products. She was only invited to his home once they had developed a dating relationship and the patient practitioner relationship was terminated; and 4. he agrees the degree of telephone contact may be considered above the normal level of telephone contact, but states that they were exploring the possibility of stocking Patient C's health products in his practice.

Evidence at the hearing

The Tribunal heard oral evidence at the hearing from Mr Anthony Middlemas, Dr Andrew Paul, and the respondent.

Evidence of Mr Middlemas

Mr Middlemass is a naturopath and massage therapist, and the owner of the Feel Amazing Wellness Centre (the Centre). The Centre describes itself as a "holistic healing practice".
In his statement (Exhibit B), Mr Middlemass states that the respondent "has been working with us" for the past eight years, and that Mr Middlemass had had ongoing contact with the respondent regarding his employment as part of the practice. Mr Milner states that the respondent had demonstrated his skills as a chiropractor with a commitment to meeting his clients' needs in a professional manner, while working with individuals to attain greater wellness through living healthy lifestyles. He said the respondent had shown flexibility with working in a multi-disciplinary team, and the ability to work with a variety of people. Mr Middlemass states that they have had discussions about his circumstances and what is appropriate professional behaviour, including in relation to his conduct with clients and staff. In Mr Middlemass' capacity both as an employer and chaperone, he observed the respondent's friendly and professional manner, putting clients at ease whilst treating them with respect and maintaining professional boundaries.
Mr Middlemas attended the hearing by telephone, and gave some brief oral evidence in chief. He confirmed that he had no concerns about the respondent or any concerns about the respondent treating female patients. He had received no complaints by any patients in respect of the respondent. He was aware of the proceedings and the content of the complaints made. He confirmed that the respondent disclosed the complaints to him when they were made.
Mr Middlemas was then cross-examined. He stated that there was one chiropractor, one psychologist and four massage therapists (not including himself) working at the Centre. Mr Middlemas is the owner, and shares management of the practice with the office manager. The respondent works at the practice four half days a week. Mr Middlemas is the respondent's chaperone on Monday, Thursday and Fridays, and the office manager the chaperone on Sundays. Mr Middlemass stated in cross-examination that while he chaperoned the respondent, he did not sit in the consulting room to observe the patients, although he did sit outside the door. There were some occasions when he could not observe the respondent providing treatment to female patients, for instance when Mr Middlemass was treating patients himself. While he tried to schedule appointments so that he could be just outside the respondent's consulting room, he conceded that he might not always be able to observe, for instance when he was on the phone or talking to clients. He said that he did not know what happened on Sundays. When he became aware of the respondent's conduct he was concerned, although he did not have concerns at the time. During the course of the cross examination he conceded that he did not "technically" employ the respondent, and that employment was not the right term.
The relevance of the cross-examination was that, in later submissions, the Commission submitted that the failure of the respondent to ensure compliance with the current chaperone conditions on his right to practice militated against the Tribunal allowing the respondent to continue to practice, even subject to conditions, and that his registration should be cancelled, or otherwise suspended. The Tribunal notes that the current relevant restriction on the respondent's right to practise is: [The respondent] must not consult, treat or examine any female patient in any practice context unless a chaperone is continuously present observing the treatment. The chaperone must be acceptable to the patient, be over 18 and not be a member of the [the respondent's] family.
When the respondent was cross-examined, he stated that he was shocked to hear that Mr Middlemas had not complied with the condition placed on his registration that a chaperone be continuously present observing the treatment.

Evidence of Dr Paul

Dr Paul's opinions contained in his expert report are summarised above. He was briefly asked some questions by the Tribunal in relation to his concerns in relation to Patient B. He stated that he was concerned that that relationship was "going to the next level".
Dr Paul was also asked to explain the concept of "transference", which had been referred to by the respondent in his cross-examination, and the concept of vulnerability.

Evidence of the respondent

The respondent gave some brief evidence in chief concerning his marriage, his relationship with his wife prior to their marriage in 2005, and the birth of their children in 2007 and 2008. He said he was devastated when his marriage collapsed and they separated in June 2013. This followed his wife's miscarriage due to ectopic pregnancy. Following a weight loss, she became more confident and started going out, whereupon the relationship fell apart. He found it very difficult to cope. He did not commence seeing Dr Georgina Whelan until after the separation.
He then gave evidence about each of Patients A, B and C. He first got to know Patient A through her work at Gymbaroo. They developed a close friendship and enjoyed a similar sense of humour.
In relation to Patient C, they first got to know each other well when Patient C spoke to him about selling her health products (protein powder and the like) at his practice. He was treating Patient C but he realised that he was talking about himself to her, what he described as quote "transference" was occurring. He gave an amount of evidence about what he understood transference was and why this is harmful for vulnerable patients He commenced a sexual relationship with Patient C in January 2014. After that he sought advice and thought it appropriate to "formalise" their professional relationship. They terminated their formal therapeutic relationship in February 2013.
He realises now that he should never had had a relationship with Patient C and he has been undertaking his own research so is to better understand professional boundaries.
He gave some brief evidence about his Facebook profile. He created the account in a different name so that his wife, whom he described as "extremely controlling", could not monitor his activities. This happened after an incident with his ex-wife when she broke into the house and assaulted him. She was arrested and subsequently charged.
The respondent gave some brief evidence about his remarriage, and that they were expecting a child. He gave evidence about his income (which he stated as being $45,000 in 2015). His current wife is a casual teacher who earns about $25,000 a year. While he owns a house, he and his wife live with his in-laws. The respondent was asked how the Tribunal could be confident that he would not transgress again. The respondent explained that he was in a "really bad place" at the time of the matter which is the subject of the complaint, and that he had no support. He said that he used to have the support of his former wife but now she only "bad mouths" him. The respondent said he had completely reformed and re-educated himself and, and was completely changed. He says he has a wife now and is a family man.
The respondent was then cross-examined by Mr Britt for the Commission.
The respondent was not a comfortable witness. No doubt this in part was due to the unfamiliarity of the process and his concerns that he faced deregistration or suspension from practice at the conclusion of the hearing. He was nervous, and at times defensive. He had a tendency to give generalised and confusing answers to questions, while some answers were simply unconvincing.
For instance, he had written a series of letters to the Commission including the letter dated 17 July 2014 (Exhibit 13). In that letter he stated that he had never had a sexual relationship with a current patient (a statement which he later admitted not to be true), and that he denied having been treated for pornography addiction, or that he had been diagnosed as suffering from a mental health condition. When cross-examined by Mr Britt he was asked directly whether he wrote the letter. His response was "I believe so". When asked again whether those statements were true, he replied that they were "not completely" true. When Mr Britt put other statements in the respondent's own correspondence to him, which statements were clearly untrue, rather than admitting as such, the respondent made comments including "I stuffed up".
Nevertheless, at least from 21 October 2014, the respondent admitted the matters the subject of the complaint, which admissions were maintained in his Reply to the present application dated 15 January 2016 and in oral evidence.
The respondent appeared to be remorseful, but it was not clear to the Tribunal that he genuinely now had insight into his conduct. Much of his explanation centred around "transference", a matter on which he said he had conducted much research. However, as the Commission submitted, this concept had never been raised by the respondent (for instance in his statement) prior to the hearing, or in any correspondence, nor was it referred to in any expert evidence.

Findings

In making its findings of fact, the relevant principles are to be applied by the Tribunal: 1. The Tribunal is not bound by the rules of evidence: see Sch 5D of cl 2 of the National Law and s 38(2) of the Civil and Administrative Tribunal Act 2013. 2. While the Tribunal may inform itself in any way "it thinks fit", it should base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined: Sudath v HCCC [2012] NSWCA 171 at [75]. See too Smith v the Nursing and Midwifery Board of Australia [2013] NSWNMT 10 NSW at [18] and [19]. 3. The onus of proof is the civil standard, as explained in Briginshaw v Briginshaw (1983) 6 CLR 336 and other authorities including Forster v Hunter New England Area Health Service [2010] NSWCA 106). Also see the recent discussion of the authorities in HCCC v Smith [2015] NSWCATOD 85 at [131] to [134].
Based on the filed materials, and the admissions (both written and oral) made by the respondent, the Tribunal finds as follows.

Personal

The respondent was born on 7 May 1980. He is 36 years old.
He was married in 2005. Two children were born respectively in 2007 and 2008. The respondent and his wife separated in about mid- June 2013, and were subsequently divorced.
On 1 July 2013, the respondent's general practitioner Dr Ng diagnosed the respondent with obsessive compulsive disorder (sexual compulsions) and adjustment disorder with mixed anxiety and depressed mood. He was referred to Ms Georgina Whelan, a psychologist and sex therapist.
The respondent remarried on 22 January 2016. He and his present wife are expecting a child.

Professional

The respondent holds a Bachelor of Chiropractic Science and a Master of Chiropractic Science from Macquarie University. He was first registered as a chiropractor in 2004.
As at the time of the hearing, the respondent was practising as a registered chiropractor, subject to the "chaperone conditions" in relation to the treatment of female patients the Council imposed on his registration on 29 October 2014.
Until the time of the conduct the subject of the present complaint, no complaints or disciplinary proceedings under the Chiropractors Act 2001 had been received by the Council regarding the respondent.
At the time of the hearing the respondent practised in two practices. The first is at the Feel Amazing Wellness Centre at Chatswood. The second place of practice of the respondent is a practice maintained at his mother's home in Curl Curl, where the respondent conducts his practice alone.

Patient A

Patient A was a friend of the respondent for "a long time" [1] prior to becoming a patient. The friendship always involved a degree of sexualised discussion. [2] Their friendship included exchanges of text messages involving sexual innuendo (described by the respondent as "banter").
The respondent treated Patient A to 28 January 2013.
On 30 May 2013, an exchange of text messages took place between the respondent and Patient A relevantly including the following in relation to the booking of an appointment: The respondent: Monday and Friday, they're usually quieter. Or if you're in trouble, I can always check you out on my portable table on Wednesdays. Don't normally work Wednesdays, so consider yourself privileged! Xo Patient A: Mmmm, vivid dreams. Must have been something you ate?? Can we book loooong sessions mainly consisting of massage on . . . The respondent: Haha. Only problem, I have to be out of there by 12 so they won't be looong.
On 31 May 2013 an exchange of text messages took place between the respondent and Patient A relevantly including the following in relation to the sending of a photo/picture from Patient A to the respondent: Patient A: . . . u don't want that pic next to your bed x I'll work on another more suitable one for you . . . The respondent: [sends an emoticon of a smiling face] . . . Waiting! . . . For a more suitable one? The respondent: Next week
In the period January 2013 to July 2014, the respondent and Patient A had telephone or SMS contact on the following occasions: 29 January (SMS); 5, 8 February (SMS); 15 and 28 May (SMS) and 24 May (phone call); 5, 14, 17 and 29 June (SMS) and 12, 28 and 29 (phone call); and 2, 4 July (phone calls) and 23 and 25 July (SMS).
In or about mid-July 2013, the respondent kissed Patient A on the lips, which the respondent described as "a goodbye peck rather than anything romantic or lustful".
Facebook exchanges took place between the respondent, the respondent's former wife, and Patient A on 27 and 28 June 2013. In one of the responses from Patient A to the respondent's former wife, Patient A stated: [the respondent ] obviously has some issues as he showed that he is keen but I blocked the one and only move that he made (a kiss). I have nothing to tell [my husband] nothing happened. Yes, a few flirty texts but we have always been like that. he even came over here a few times looking but as you will see from texts I never let him in i never told [my husband] because I'm old enough to sort it out myself. I [told the respondent] to go home and go to you as he does love you guys so much the photos you talk of were randoms i pulled off the net as a joke coz we have joked since the manly daily article. Not worth throwing your marriage away, perhaps discuss with him why he chased oh, by the way I did see him for my [birthday] and he gave me some [chocs] in front of the school gates, so no dramas there I believe chat soon. (Grammar and punctuation as in original)
The respondent then joined the Facebook message chain and relevantly stated to his former wife: this is a fuckup of our relationship. I instigated it because of personal issues that I'm having at the moment. I'm not saying that what I did was right by any means, but I don't think that bringing [Patient A's] family into it is going to solve anything. It's just creating a public spectacle that ultimately will hurt both sets of children. [Patient A], I'm really sorry to get you involved in my shit. I tried something new that I shouldn't have. But to be fair, the messages that we sent each other were flirtatious, enough so that I wouldn't want either [of] our partners to read (which should have been an indication that I shouldn't have set them). I think we should stop contact Facebook messages, phone calls everything. I do value our friendship, but it's gone too far, and I have to put things into perspective. Sorry.
Patient A wrote further that same day to the respondent's former wife: I admit the messages were flirty and that is a fault in my personality. If you read the messages again, you will notice that they were instigated by [the respondent] (as were the drives to my house).
The respondent has not treated Patient A since the time he sent that Facebook message.

Patient B

The respondent treated Patient B from 4 October 2008 to 3 March 2014.
In the period August 2013 to November 2013, the respondent and Patient B had telephone or SMS contact on the following occasions: 13 August (SMS), 26 August (phone call); 2, 3, 9, 17, 21, 23, 29, 30 September (SMS), 9, 16, 21, 27 September; 14 October (SMS and phone call); eight November (two telephone calls
Following a treatment on 16 December 2013, Patient B visited the respondent at his home. The respondent provided Patient B with his address to enable her to do so. The respondent and Patient B were physically intimate. The conduct did not include sexual intercourse.
The applicant next treated Patient B in March 2014.
He has not treated her since.

Patient C

The respondent treated the Patient C from 29 May to 27 November 2012, and then from 6 September 2013 to 11 January 2014.
Sometime prior to February 2014 respondent set up a Facebook account in the name of Chris Ongaro. He used this account to communicate with Patient C.
In late January 2014, the respondent engaged in sexual intercourse with Patient C.
On 11 February 2014, Patient C sought further treatment from the respondent. The respondent agreed to treat her. At the end of the session, Patient C informed the respondent that she was interested in an ongoing personal relationship with the respondent. The respondent said that if they were to proceed with their personal relationship he could not continue to provide her with any treatment. Patient C agreed and signed a document stating that "I authorise that of 11th Feb 14 I am no longer a patient of Dr Daniel Ryken".
The sexual relationship with Patient C continued from late January 2014 until early April 2014. During that period the respondent invited Patient C to his home on numerous occasions to have sex with her.
In a text exchange between Patient C and the respondent's former wife on 9 March 2014 the following exchange occurs: Patient C: In [the respondent's] defence, [it] was more likely my fault for unprotected sex' The respondent's former wife: Although given [the respondent] is a fucking slut please get yourself tested! I laughed at the hospital when they suggested it to me but I probably should given his history. Patient C: yes good point!! Fark that's the last thing I need `… an std. Patient C: I can't believe he was fucking so irresponsible. His attitude about it is as disgusting. I believe it was his way of controlling you … an std.

Relevant Law

It is appropriate to set out the relevant provisions of the National Law. These are as follows.
Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and (b) the registration of students undertaking-- (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Sections 3A, 139B and 139E of the National Law are additional provisions for NSW. Section 3A, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. A "NSW provision" is defined in s5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note: This definition is an additional New South Wales provision.
Section 139B relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. . . . (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Relevant principles

The relevant principles to be applied by the Tribunal include the following: 1. The disciplinary powers of the Tribunal are set out in s 149 of the National Law. The Tribunal has a range of powers which appear in ss 149A and 149B. 2. The paramount consideration in proceedings is to protect the public: s 3A of the National Law; Re Dr Parajuli [2010] NSWMT 3 at [31]; 3. The jurisdiction of the Tribunal is protective in nature, and not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. 4. In the exercise of its protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the chiropractic profession, the preservation of public confidence in the chiropractic profession and the protection of the community: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153; Health Care Complaints Commission v Howe [2010] NSWMT 12. 5. The purpose of the proceedings includes the need to deter others from engaging in similar conduct: 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. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services.

Consideration - unsatisfactory professional conduct

Relevant standards

The relevant Code for the majority of the respondent's conduct the subject of the Complaint is the Chiropractic Board of Australia's Code of Conduct which came into force in 2009 (the 2009 Code).
The 2009 Code relevantly provides: 3.14 Personal relationships Good practice includes chiropractors providing care to those in a close relationship, for example close friends, work colleagues and family members, can be inappropriate because of a lack of objectivity, possible discontinuity of care and risks to the chiropractor or patient. When a chiropractor chooses to provide care to those in a close relationship good practice requires that: a) the conflict of interest is acknowledged and declared b) adequate records are kept c) confidentiality is maintained d) adequate assessment occurs e) appropriate consent is obtained for the circumstances which is acknowledged by both the chiropractor and patient f) the personal relationship does not in any way impair clinical judgement, and g) an option to discontinue care is maintained at all times. . . . 9.2 Professional boundaries Professional boundaries refer to the clear separation that should exist between a chiropractor's professional conduct aimed at meeting the health needs of patients, and a chiropractor's own personal views, feelings and relationships that are not relevant to the therapeutic relationship. Professional boundaries are integral to a good chiropractor-patient relationship. They promote good care for patients and protect both parties. Good practice involves: maintaining professional boundaries b) never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a chiropractor's care; this includes those close to the patient, such as their carer, guardian, spouse or the parent of a child patient c) recognising that sexual relationships with people who have previously been patients are often inappropriate, depending on the extent of the professional relationship and the vulnerability of the person who was previously a patient, and d) avoiding the expression of a chiropractor's personal beliefs to patients in ways that exploit their vulnerability or that are likely to cause them distress.
A new Code came into effect on 17 March 2014 (the March 2014 Code), which may be of significance in relation to the respondent's conduct in relation to Patient C from that date until their sexual relationship ended in early April 2014. However, the content of the March 2014 is virtually identical to that of the 2009 Code.
The March 2014 Code relevantly provides: 3.15 Personal relationships Good practice includes chiropractors recognising the potential conflicts, risks and complexities of providing care to those with whom they have a close relationship, e.g. close friends, work colleagues and family members. In some cases, this can be inappropriate because of a lack of objectivity, possible discontinuity of care and risks to the practitioner or patient. When a practitioner chooses to provide care to those in a close relationship, good practice requires that: a) the conflict of interest is acknowledged and declared b) adequate records are kept c) confidentiality is maintained d) adequate assessment occurs e) appropriate consent is obtained for the circumstances which is acknowledged by both the chiropractor and patient f) the personal relationship does not in any way impair clinical judgement, and g) an option to discontinue care is maintained at all times. 9.2 Professional boundaries Professional boundaries allow a practitioner and a patient to engage safely in a therapeutic relationship. Professional boundaries refer to the clear separation that should exist between a chiropractor's professional conduct that is aimed at meeting the health needs of patients, and a chiropractor's own personal views, feelings and relationships that are not relevant to the therapeutic relationship. Professional boundaries are integral to a good chiropractor-patient relationship. They promote good care for patients and protect both parties. Good practice involves: a) maintaining professional boundaries so that patients are not exploited financially, physically, emotionally or sexually b) never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a chiropractor's care; this includes those close to the patient, such as their carer, guardian, spouse or the parent of a child patient c) recognising that sexual relationships with people who have previously been patients are often inappropriate, depending on the extent of the professional relationship and the vulnerability of the person who was previously a patient, and d) avoiding the expression of a chiropractor's personal beliefs to patients in ways that exploit their vulnerability or that are likely to cause them distress.
The respondent has admitted that, in relation to Patient A: 1. He failed to maintain appropriate professional boundaries with Patient A in that he: 1. (a) engaged in telephone communication with Patient A during the period mid-May 2013 to July 2013, while he was Patient A's treating practitioner, which was of a personal nature having regard to the volume, frequency, timing and/or nature of the cells; 2. (b) engaged in text message and Facebook exchanges with Patient A from early to mid-2013 which were of an intimate and/or sexual nature; 3. (c) attended at Patient A's home in the evening on a number of occasions rom early to mid-2013; 1. He engaged in inappropriate physical and/or sexual contact with Patient A in that he kissed Patient A on the lips after a Gymbaroo children's event in mid-2013.
In relation to Patient B, the respondent has admitted that: 1. He failed to maintain appropriate professional boundaries with Patient B in that he: 1. (a) engaged in telephone communication with Patient B during the period August 2013 to November 2013, while he was Patient B's treating practitioner, which was of a personal nature having regard to the volume, frequency, timing and/or nature of the calls; 2. (b) permitted Patient B to visit his home in late December 2013; 3. (c) verbally consoled Patient B in relation to her relationship breakup during her visit to his home in late December 1. He engaged in inappropriate physical and/or sexual contact with Patient B in that he kissed and cuddled Patient B during her visit to his home in late December 2013.
In relation to Patient C, the respondent has admitted that: 1. He failed to maintain appropriate professional boundaries with Patient C in that he: 1. (a) engaged in telephone communication with Patient C during the period early January 2014 to mid-March 2014, while he was Patient C's treating practitioner, which was of a personal nature having regard to the volume, frequency, timing and/or nature of the calls; 2. (b) engaged in inappropriate communications with Patient C through a Facebook account established sometime prior to February 2014 by him under a false name for the purpose of communicating with Patient C. 1. He engaged in inappropriate sexual relations with Patient C in that he: 1. (a) engaged in sexual intercourse with Patient C in late January 2014; 2. (b) continued a sexual relationship with Patient C between late January 2014 and early April 2014.
Given: 1. The written admissions of the respondent contained in his "reply to application for disciplinary findings" dated 15 January 2016 are summarised above. 2. The concession made by the respondent's legal practitioner during the hearing that the respondent maintained those admissions. 3. The oral admissions made by the respondent during the course of the hearing. 4. The corroborative evidence to support the allegations (details of which appear on pp 9 and 10 of the Commission's written submissions of 24 February 2016). 5. The opinions of Dr Paul expressed in his report, 6. the Tribunal is comfortably satisfied that Complaint One is established.
The Tribunal finds therefore that the respondent is guilty of unsatisfactory professional conduct, in that his conduct in respect of each of Patients A, B and C is conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience: s 139B(1)(a).
The Tribunal also finds that the respondent is guilty of unsatisfactory professional conduct, in that his conduct in respect of each of Patients A, B and C is conduct that is improper or unethical conduct relating to the practice of the respondent's profession as a chiropractor: s 139B(1)(l).

Consideration - professional misconduct

The Tribunal accepts the Commission's submission that there is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The Commission submits, and the Tribunal accepts, that the concept contained in s 139E should be given a purposive interpretation, requiring the Tribunal not only to consider the object of the protection of the public, but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 at [43] to [50]. In its terms, s 139E refers to conduct that is of a sufficiently serious nature to justify suspension or cancellation of the respondent registration; it concerns itself with the measure of the seriousness of that conduct. The determination of whether conduct amounts to professional misconduct therefore has as its starting point an objective assessment of the respondent's conduct against the standard "reasonably expected of an equivalent practitioner". When coming to a decision about whether conduct is sufficiently serious to justify the sanction of de-registration, circumstances which bear on that objective assessment of the conduct may properly be taken into account: Health Care Complaints Commission v Gow [2008] NSWMT 2 at [67].
The Commission submits that the conduct of the respondent included a number of aggravating factors, being: 1. The slow sexualisation of the relationship with Patient C by the respondent. 2. Significant breaches of boundaries. 3. His conduct was likely to bring the profession into disrepute. 4. The respondent knowingly entering into the relationship with Patient C. 5. The respondent's lack of insight and propensity for boundary infractions has been chronic over an extended period of time; Involving multiple breaches in respect of three patients. 6. The respondent's initial lack of candour in responding to the complaints against him.
The Commission submitted that even if the respondent was somehow impaired at the relevant time, this does not prevent his conduct from amounting to professional misconduct: Reimers v Health Care Complaints Commission [2015] NSWCA 317. However, the issue of impairment was not raised in the proceedings.
The Tribunal accepts these submissions of the Commission.
The Tribunal notes that the respondent accepts that he is guilty of professional misconduct.
In the circumstances, the Tribunal is also comfortably satisfied, on the basis of the evidence summarised above, the respondent's written and oral admissions, and the expert opinion summarised above, that Complaint Two is established.
The Tribunal considers that the conduct of the respondent in relation to Patient B is professional misconduct falling within s 139E(a) of the National Law, namely unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
We also consider that the conduct of the respondent in relation to Patient C is professional misconduct falling within s 139E(a) of the National Law, namely unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
We consider that the conduct of the respondent in relation to the three Patients A, B and C, is professional misconduct falling within s 139E(b) of the National Law, namely more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Disciplinary Powers

Section 149A of the National Law relevantly provides that, if the Tribunal finds the subject matter of the complaint against a practitioner to have been proved, the Tribunal may do any one or more of the following in relation to registered health practitioner: (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
If the Tribunal is satisfied that the practitioner is guilty of professional misconduct, it may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration: s 149C.

The Commission's submissions

The Commission submits that the respondent's registration should be cancelled and that he be ordered not to make any application for a review of that cancellation for a period of one year from the date of these reasons.
Alternatively, the Commission submits that the respondent's registration should be suspended for a period of at least six months, after which time he be subject to conditions for a period of three years.
The Commission submits, and the Tribunal accepts that the following principles are applicable: 1. Whether the degree of seriousness is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v health Care complaints Commission [2001] NSWCA 411 at [82]. 2. Where there is a finding of professional misconduct, the Tribunal has a wide discretion in relation to the disposition of the complaint. The circumstances of the particular case will determine the appropriate disposition: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. A finding of professional misconduct does not automatically lead to cancellation of a practitioners' registration.
In summary, the Commission submits that cancellation of the respondent's registration is required for the following reasons. 1. The seriousness of the respondent's conduct in terms of the standards the public has a right to expect of the practitioner. 2. the risk that the respondent poses to the health of members of the public.
The Commission acknowledges that the respondent has admitted his guilt and has taken some preliminary steps including completing a risk assessment course and voluntarily entering into an informal arrangement with a mentor.

The respondent's submissions

The respondent submits that cancellation of his registration for a period of 12 months would be extremely onerous and punitive. He submits that he has now gained insight into the damage done by his conduct and that he now demonstrates sufficient appreciation and understanding of that conduct. He submits that the following matters would reassure the Tribunal that his behaviour will not re-occur: his real and genuine contrition; in the absence of complaint from any of Patients A, B and C, his remorse for his past conduct and the reformation of his character.
The respondent also submits that he has been in practice for 11 years without any other incident save for those the subject of the proceedings. He admits the impropriety of his conduct, accepts full responsibility for his actions. He submits that at the time of his conduct he was suffering from psychological issues. He submits that he "has had his eyes opened', that he has remarried and has a child on the way now.
The respondent is dependent on his earnings as a chiropractor to support his children from his previous marriage as well as his child who is soon to be born. He also submits that he has little income. The Tribunal notes that no corroborative evidence was provided of this.
In particular, the respondent relies on a decision of the Court of Appeal in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, where Basten JA, with Giles JA and Bergin J agreed, stated that [70] that "a legitimate consideration is whether the orders made reveal inconsistency of approach on the part of the Tribunal, when viewed against other decisions revealing similar kinds of misconduct". There the Court of Appeal considered two other cases, respectively involving unsatisfactory professional conduct and professional misconduct. It noted at [73] that: neither case should not be viewed as a precedent, establishing that deregistration is inappropriate for such offences. Rather, it should be viewed as an example, the weight of which will depend upon the similarity of the circumstances in each matter, revealing that the range of appropriate disciplinary orders will at least encompass orders of the kind made in the present case.
The respondent refers the Tribunal to the decision of the Tribunal in Health Care Complaints Commission v Woods [2012] NSWCHT 2. This decision involved a medical practitioner who inappropriately examined a patient in removing her clothing, touching her breasts, making sexually inappropriate comments, and sending her a text message of a sexual nature after the consultation. The practitioner also sent another patient a series of sexually inappropriate text messages. The Tribunal found that the practitioner's proven misconduct did not raise any concerns regarding his clinical competency. However, accepted that he possessed the lack of insight into his offending behaviour. The Tribunal suspended his license for three months, and ordered him to enrol in a formal educational course in ethics.
The respondent accepts that Dr Woods did not have sexual intercourse with any of the four patients the subject of the complaint, but submits that in circumstances where there was no legitimate clinical reason for the examination of the patient's breasts, arguably the conduct was more serious than the consensual sexual relationship between himself and Patient C. The respondent further submits that Dr Wood demonstrated no insight, whereas respondent has. He further submitted that Dr Woods gave evidence that was consistently implausible whereas the respondent gave generally clear, coherent acceptable evidence, was contrite and accepted responsibility for his acts.
In those circumstances, the respondent submits that a suspension of any more time than was "meted out" to Dr Woods would impose a greater penalty upon the respondent then is justified. He submits that if the Tribunal is minded to suspend him, it ought not be for a period in excess of what was delivered to Dr Woods.
Finally, the respondent submits that having a sexual relationship with a patient need not result in anything more serious than a reprimand: Health Care Complaints Commission v Stoodley: Medical Tribunal of NSW, 5 November 2008.
The respondent asked that he be permitted to remain in practice subject to conditions. He says that he would be prepared to consider conditions including employing a receptionist or chiropractic assistant while he is consulting; practising in a practice approved by the Council where there was at least one registered health practitioner of a minimum of 7 years experience (excluding the practitioner) with whom the respondent must confer on a monthly basis about any professional boundary issues; not undertake locum positions; to appoint a mentor; and to consult a psychologist or psychiatrist.
The respondent also asks the Tribunal to take into account the following matters: 1. The various positive references provided to the Tribunal. 2. His mentoring with Dr Gambrill. Additionally, he states that on 29 October 2014, he had commenced voluntarily seeing Dr Brett Gambrill, an osteopath and chiropractor, for mentoring and advice on professional boundaries. The Tribunal notes that a letter of Dr Gambrill dated 29 December 2015 was tendered by the respondent (Exhibit A). Dr Gambrill is a registered chiropractor and osteopath, and was a clinical supervisor and occasional lecturer for the Sydney College of chiropractic for 20 years. He has operated his own private practice for 34 years. He has known the respondent since 2000 when he was a chiropractic student and worked for him as his assistant. He is aware of the complaints made against the respondent and confirms that respondent has consulted him as a peer and mentoring, and offered advice and assistance with regards to professional ethics. They have spoken in person and over the phone several times over the last year. In particular, they have discussed the treatment of friends and when it is more appropriate to refer friends to another practitioner in order to maintain professional boundaries. Dr Gambrill feels that they have made "strong progress" in the discussions and he is confident that the respondent understands these standards.

Consideration

Where there is a finding of professional misconduct the Tribunal has a wide discretion, and the circumstances of the particular case will determine the appropriate disposition of the matter. Whether the degree of seriousness of conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag at [82].
The Tribunal is entitled to take into account the misleading of the Commission by the respondent in its investigations: Sabag at [105].
The Tribunal considers that the conduct of the respondent considered as a whole is of sufficiently serious to warrant his suspension as a chiropractor. We consider that there is a need to protect the public against further misconduct by the respondent, and this respect we note the recognition of the respondent through his representative that he may be vulnerable to transgressions again. We accept the need to protect the public through general deterrence of other practitioners, by reinforcing high standards and denouncing transgressions, and to otherwise maintain public confidence in the profession.
Included in the documents as Exhibit 31 is a paper Boundary Violations published by Avant Mutual Group Ltd in January 2010. The following extract from that article is apposite to the circumstances of the respondent: Since the Hippocratic Oath was written in 400BC it has been stated that doctors must abstain from 'the seduction of females or males 'who are their patients'. The modern rationale against relations with patients is based on the following: Patients can be vulnerable during intimate settings when dealing with their doctor. There is and always will be, a 'power imbalance' in favour of the doctor in the doctor-patient relationship … Sexual contact betrays the obligation to act in the patient's best interests.

Costs

As a general rule, the costs of proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45].
The Commission has been successful in obtaining relief against the respondent. The respondent did not oppose the Tribunal making a costs order in favour of the Commission. In the circumstances, the respondent should pay the Commission's costs of the proceedings.

Orders

The Tribunal orders that 1. The respondent is guilty of unsatisfactory professional conduct. 2. The respondent is guilty of professional misconduct. 3. The respondent is publicly reprimanded. 4. The registration of the respondent is suspended for a period of six months from the date of these reasons. 5. Upon the ceasing of the six-month period of suspension the conditions appearing in Attachment B are to be placed on the respondent's registration for a period of 18 months. 6. The Chiropractic Council of NSW is the appropriate review body of these conditions for the purposes of Part 8 of the National Law. 7. Sections 125 and 127 of the National Law are to apply while the practitioner's principal place of practice is anywhere in Australia other than NSW so that a review of these conditions can be conducted by the Chiropractic Board of Australia. 8. The respondent is to pay the Commission's costs as agreed or as assessed. ATTACHMENT A AMENDED COMPLAINT The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Chiropractic Council or New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Mr Daniel Ryken ("the practitioner") being a chiropractor registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 1396(1)(a) and (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed, or are exercised, by the practitioner in the practice of chiropractics is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of chiropractics. BACKGROUND TO COMPLAINT ONE At all relevant times the practitioner worked in his own practice, operating from his residential premises at North Curl Curl. The practitioner has operated this practice since 2004 when he first obtained registration as a chiropractor. From 2006 the practitioner worked four half days per week in Chatswood at the Feel Amazing Wellness Centre. The practitioner treated Patient A from about 15 January 2010 to about 29 January 2013. The practitioner knew Patient A in a personal capacity prior to the commencement of the therapeutic relationship. The practitioner treated Patient B from about 4 October 2008 to about 3 March 2014. The practitioner knew Patient B both as a patient and in a personal capacity. The practitioner treated Patient C from about 29 May 2012 to about 27 November 2012 and again from 6 September 2013 to 11 February 2014. It is noted in available patient records that Patient C was 32 weeks pregnant on her first visit to the practitioner on 29 May 2012. PARTICULARS OF COMPLAINT ONE
The practitioner failed to maintain appropriate professional boundaries with Patient A in that he: (a) engaged in telephone communication with Patient A during the period mid-May 2013 to July 2013, while he was Patient A's treating practitioner, which was of a personal nature having regard to the volume, frequency, timing and/or nature of the cells; (b) engaged in text message and facebook exchanges with Patient A from early to mid-2013 which were of an intimate and/or sexual nature; (c) attended at Patient A's home in the evening on a number of occasions from early to mid-2013;
The practitioner engaged in inappropriate physical and/or sexual contact with Patient A in that he kissed Patient A on the lips after a Gymbaroo children's event in mid-2013.
The practitioner failed to maintain appropriate professional boundaries Patient B in that he: (a) engaged in telephone communication with Patient B during the period August 2013 to November 2013, while he was Patient B's treating practitioner, which was of a personal nature having regard to the volume, frequency, timing and/or nature of the calls; (b) permitted Patient B to visit his home in late December 2013; (c) verbally consoled Patient B in relation to her relationship breakup during her visit to his home in late December
The practitioner engaged in inappropriate physical and/or sexual contact with Patient B in that he kissed and cuddled Patient B during her visit to his home in late December 2013.
The practitioner failed to maintain appropriate professional boundaries with Patient C in that he: (a) engaged in telephone communication with Patient C during the period early January 2014 to mid-March 2014, while he was Patient C's treating practitioner, which was of a personal nature having regard to the volume, frequency, timing and/or nature of the calls; (b) engaged in inappropriate communications with Patient C through Facebook account established sometime prior to February 2014 by the practitioner under a false name for the purpose of communicating with Patient C.
The practitioner engaged in inappropriate sexual relations with Patient C in that he: (a) engaged in sexual intercourse with Patient C in late January 2014; (b) continued a sexual relationship with Patient C between late January 2014 and early April 2014. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT TWO As for Complaint One. PARTICULARS OF COMPLAINT TWO
Complaint One and the particulars thereof are repeated and relied upon both individually and cumulatively. ATTACHMENT B - CONDITIONS
To practise only in a group practice approved by the Chiropractic Council of NSW where there are at least two registered health practitioners (excluding the subject practitioner) and: 1.1 At least one of the registered health practitioners is a registered chiropractor of minimum 7 years' post-registration experience. 1.2 There is always one other registered health practitioner on site.
Not to undertake locum positions.
To obtain Chiropractic Council of NSW approval prior to changing the nature or place of his practice.
Within 14 days or resuming practice (following the end of suspension), or changing the nature or place of his practice, he is to forward evidence to the Chiropractic Council of NSW that he has provided a copy of this decision including these practice conditions to the principal of the practice or other responsible senior officer in any place that he works.
To authorise the Chiropractic Council of NSW to notify current and future persons or organisations at places where he works as a chiropractor in Australia, of any issues arising in relation to compliance with these conditions.
Within 21 days of returning to practice (following end of suspension) the practitioner is to nominate a registered experienced chiropractor to act as his professional mentor for approval by the Chiropractic Council of NSW in accordance with the Chiropractic Council of NSW's Compliance Policy - Mentoring (as varied from time to time). The practitioner is: 6.1 To participate in monthly meetings with the Council-approved mentor at a frequency to be determined by the mentor, however not less than monthly for the first 6 meetings. 6.2 To include discussion of the following at each meeting: A. his personal and professional development. B. the issues highlighted in this decision. C. any personal or clinical practice issues that may arise throughout the course of the mentoring relationship. 6.3 To authorise the Chiropractic Council of NSW to provide proposed and approved mentors with: A. A copy of this decision. B. A copy of these practice conditions. 6.4 To authorise the mentor to inform the Council (in an approved reporting format) on a 3 monthly basis that these meetings have occurred, and ensure that the mentor does in fact provide those reports. 6.5 To authorise the mentor to inform the Council immediately if the mentoring relationship ends or of any concerns regarding the performance of the practitioner or his compliance with any conditions on his registration, 6.6 To be mentored for a minimum period of 12 months and as subsequently determined by the Council. 6.7 To otherwise comply with the Chiropractic Council of NSW's Compliance Policy - Mentoring (as varied from time to time).
To attend for treatment by a psychologist or psychiatrist of his choice, at a frequency to be determined by the practitioner and the treating practitioner. 7.1 To provide the Council with the name and detail of the treating practitioner. 7.2 To authorise the Council to provide the treating practitioner a copy of the Reasons for Decision. 7.3 To authorise his treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).
The practitioner is to be responsible for any costs associated with meeting conditions 1 - 7.

Endnotes

Respondent's statement dated 21 January 2016, par [9].
Ibid I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 12 May 2016 - Name removed from paragraph 10. 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: 12 May 2016

At a glance

Court

Decision date

Source

Judgment (36 paragraphs)

Parties

Cases Cited (12)

Cited By (6)