Health Care Complaints Commission v Sharah

Preliminary Application

1. As foreshadowed at the time, we now provide a fuller set of reasons for our decision to refuse the respondent's preliminary application for the Tribunal not to proceed to conduct the inquiry, and to dismiss the application.
2. The preliminary application was made pursuant to the following provisions of clause 12 of Schedule D of the National Law [NSW]. 12 Certain complaints may not be heard [NSW] (1) [T]he Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if - (a) any of the following circumstances apply - (ii) the person about whom the complaint is made ceases to be a registered health practitioner; (b) in the opinion of the Tribunal it is not in the public interest for the inquiry or appeal to continue.
3. The application relied on the following grounds:
4. The respondent 1. has made admissions in writing to the Tribunal in respect of the complaints the subject of the application; 2. has ceased to be a medical practitioner; 3. has stated in writing to the Tribunal that he has not provided any form of counselling, therapy or treatment in the nature of mental health services since his registration was suspended on 22 October 2013; 4. is aged 79 years (DOB 2 May 1935); 5. has declared that he does not intend to re-apply for registration in the future.
5. The respondent poses no risk to the health and safety of the public.
6. Ground 2 alludes to the guiding principles and objectives of the National Law, in particular the following elements of s 3 (which applies to all jurisdictions that have adopted the National Law) and s 3A (an additional New South Wales provision applying to New South Wales): 3 Objectives and guiding principles (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 (3) The guiding principles of the national registration and accreditation scheme are as follows - (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. 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.
7. The respondent also referred to statutory objectives relevant to proceedings in this Tribunal, notably those that appear at s 3 of the Civil and Administrative Tribunal Act 2013, i.e.: 3 Objects of Act The objects of this Act are: (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and
8. The respondent's evidence relevant to the preliminary application was found in the statements filed shortly before the hearing or at hearing, i.e. statement filed 23 January 2015 (ex R1), the statutory declaration made 6 February 2015 handed up the hearing (ex R2) and the supplementary statement (ex R3) made the same date and also handed up at hearing (ex R3). The first statement took the form of a brief reply to the particulars of the complaints. In the second statement he referred to the steps that he had taken to relinquish his registration, and to his present deteriorating state of health. He declared that he did not intend to re-apply for registration in the future, and stated that his decision to retire from medical practice had been influenced by his age, health, and 'my self-reflection' arising from the current complaints.
9. The third statement was primarily addressed to the proposed prohibition order. He stated that he had not undertaken any activities of the professional kind to which the proposed order was directed. He referred to how he had handled enquiries from former patients for assistance, and the procedure he followed in uplifting any records from his records-storage and making them available to the new practitioner. He referred to the steps that he took if a person or former patient pressed him for advice. He referred to his activities in the St Mary MacKillop Parish in the Blue Mountains. He said: I attend mass at one of the three churches in the Parish daily, if not more. I assist with the maintenance of the grounds regularly at the request of the priests. I am also actively involved in the Legion of Mary community in Merrylands. With this community, I engaged in community door knocking for 2 hours per week to discuss religious faith. I also give communions.
10. He also referred to his private family activity, and other activities such as gardening, cooking and bushwalking.
11. The applicant opposed the preliminary application. The applicant accepted the respondent's evidence that he did not intend to resume practice. The applicant noted, however, that the respondent had not made full admissions in relation to all of the particulars of all four complaints. The matters that were not admitted, especially in relation to Patients A and B, bore on significant aspects of those patients' complaints, and went to matters of significance such as inappropriate prescription or failure to supply appropriate medications.
12. The applicant referred especially to the respondent's reply to Particular 4 (Patient A) where the conduct alleged, if established, constituted a grave dereliction (and arguably amounted to an indecent assault).
13. The applicant pressed the view that there was a public interest served by an allegation of this kind being resolved, and the public being informed, one way or the other, as to the appropriateness or otherwise of the practitioner's conduct. Adverse findings on an issue of this kind might bear on the gravity of the disciplinary finding, and the nature of a disciplinary order. The applicant added that in the present case, any period of time set by way of disqualification from reapplying to enter practice would be likely to be affected by any adverse finding on a matter of this kind. The applicant also referred to the clear desire of Patient A to participate in the hearing and have her complaint heard.
14. The respondent referred to a number of recent decisions of the Tribunal where a preliminary application of the present kind had been granted: e.g. HCCC v Khan [2014] NSWCATOD 83; HCCC v Manners [2014] NSWCATOD 156; HCCC v Campbell [2014] NSWCATOD 107; and HCCC v Harley [2014] NSWCATOD 110.
15. Our review of these cases suggests that the Tribunal most usually agreed not to undertake a public inquiry where the respondent had relinquished his or her registration, where there was a firm promise not to seek reregistration that was accepted as genuine, and where there were full admissions. In addition, there are sometimes other factors present such as grave ill health, or the respondent was of an age which makes any return to practice unlikely. It will be seen that a number of these factors are present in this case.

Assessment

1. We gave short oral reasons at the time refusing the application. To those reasons, we add the following.
2. The respondent did not furnish the Tribunal with any statement of admissions until two weeks before the hearing. That statement (Ex R1) was very imprecise. It was only at the opening of the hearing itself that a more itemised set of admissions, qualifications or denials was provided. While the respondent conceded that he was guilty of unsatisfactory professional conduct (Complaint One), professional misconduct (Complaint Two), and had an impairment (Complaint Three) which justified a finding that he was not competent (Complaint Four), he disputed a number of the particulars relied upon. This was not a case of full and frank admissions of the particulars as seen in some of the cases where the discretion not to proceed has been exercised favourably to the respondent.
3. Further, there was the contest that remained over the allegations made by Patient A. The allegations were very serious, and it was in the public interest, in our opinion, for those allegations to be ventilated and dealt with. In this regard, we gave weight to the desire of Patient A to be heard.
4. We were also concerned that by terminating the inquiry formal orders of the kind sought could not be made, and that the inability to do that, in the circumstances of this case, might not serve the public interest. Moreover, the new proposed order went to a matter which, on the face of it, was of some significance in this case. The respondent, appropriately, was candid in his supplementary statement (Ex R3), in referring to the degree of activity in which he continues to be engaged in his church community. These factors set this case apart from some of the instances that we have reviewed where, sadly, the respondent was so affected by illness or some other condition that he or she was very unlikely to have any further active life in the wider community. There was, on the face of it, a risk to the public in this case that needed to be addressed.

The Hearing

1. The respondent only required for cross-examination one of the patients named in the application, Patient A. She was called, and gave evidence on day 1 of the hearing. The respondent then gave oral evidence and was cross examined.
2. The material before the Tribunal included witness statements and relevant clinical records in relation to each of the patients. We were also provided with the transcript of the s 150 hearing held on 21 October 2013, and the reasons for decision in relation to the earlier inquiry held in 2005 into the respondent's conduct by the Professional Standards Committee under s 167 of the Medical Practice Act 1992, the subject of the additional particular to Complaint Two. On that occasion the respondent was reprimanded for conduct that exceeded professional boundaries, and conditions were imposed on his registration that required him to undertake a program of educational counselling.
3. In relation to the conduct the subject of Complaints One and Two, the applicant relied on an expert report from Associate Professor James Greenwood, MB BS (1977), MRANZCP (1983), FRANZCP (1986) dated 14 January 2014. Professor Greenwood is a consultant psychiatrist with 30 years of experience in private consulting practice who has worked in public and private hospitals, and in academic practice at the University of New South Wales. He was not required for cross-examination.
4. In relation to the issue of impairment, the basis for Complaints Three and Four, the applicant relied on an expert assessment dated 1 September 2014 from Dr Chanaka Wijeratne MB BS, FRANZCP, MD, consultant psychiatrist and conjoint senior lecturer in psychiatry, University of New South Wales.
5. As noted, subsequent to the hearing further material was filed by the parties: namely, an itemised response by the respondent to each of the particulars; applicant's submissions; respondent's submissions; and applicant's reply to those submissions.
6. Violation of appropriate professional boundaries is the allegation at the heart of many of the particulars, mixed with issues as to the clinical relevance of the conduct or communications of concern. For example, it was asserted that he had gratuitously and repeatedly introduced into his consultations with patients references to solutions of a religious kind, and that he had sometimes stroked or touched patients in a manner which was inappropriate, using pastoral or religious pretexts. There were also some allegations of touching of a more intrusive kind, as will emerge.

Complaints One and Two

1. We will begin with Complaints One and Two.
2. The onus of proving its allegations lies with the applicant on the civil standard (the balance of probabilities). Because of the seriousness of the allegations and the seriousness for the respondent of the consequences of adverse findings, the Tribunal should have firm evidence for an adverse finding, not 'inexact proofs': Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
3. As we have noted only one witness was called for cross-examination, Patient A. We therefore have a situation where the contest as to the details of what occurred in the consultation events particularised by the complaints requires us to choose between the uncontested written statements of the remaining patients and any contrary account given by the respondent. The written statements of evidence that the respondent filed in preparation for the hearing (exhibits R1, R2 and R3) are brief. The respondent's differing accounts are mainly to be found in his oral evidence at hearing. In his closing written submissions, the respondent submitted that 'in particular cases it may not be possible to reach a conclusion either way'.
4. In this case, therefore, a significant consideration is the credibility that should be accorded to the respondent in relation to his evidence that is different to, or contrary to, that given orally and in writing by Patient A, and in writing by the other Patients. We will turn to the Particulars.

Patient A

1. Patient A, then about 20 years old, first consulted the respondent in late 2004 in relation to Attention Deficit Hyperactivity Disorder (ADHD),. She attended the respondent for treatment regularly in the period 2004 to 2007, and then there was a gap until 2013.
2. We will not at this point set out the particulars, but instead summarise Patient A's concerns as reflected in her written statement for the proceedings (tab 20, vol 1). She stated that she first started seeing the respondent for her ADHD. She later stopped taking the medication, which she described as 'Dexy', as it made her slur her words. She said he had 'crosses and some sort of saints all around the practice', and that 'he used to preach to me all the time, telling me I had to pray'. She referred to comments he made about lesbians and paedophiles (see further particulars 1 and 2 below). She then moved to her further period of treatment from early to mid-2013. The treatment related to difficulties she was having with depression and her ability to concentrate. She referred to the way he touched her arm on one occasion, and comments he made about a tattoo. The tattoo contained, she said, a Protestant prayer. She complained that he grabbed her arm, stroked the tattoo and told her that she needed to continue to pray to God. This conduct is the subject of Particular 3. She referred to, what she saw as, angry remarks by the respondent towards her at later consultations. But she continued, she said, to see him because she needed prescriptions for 'Dexy'.
3. Her key complaint is reflected in Particular 4. It is the main area of contest in this case. The subject is an examination conducted by the respondent at a consultation on 13 June 2013 when the patient was about 28 years old. She states that at the consultation she began by giving him a copy of a letter from her cardiologist, Dr Aggrey Kiyingi. She set out various remarks Dr Sharah made after reading the letter where Dr Sharah referred to his family and to other people, which, as we read her statement, she saw as irrelevant to the reason she was there. He then read the letter from the cardiologist. In the letter the cardiologist advised that he was looking after her 'from a cardiovascular point of view'. He said that 'she gets regular chest pains and has got ischaemic heart disease', and listed the medications she was on. Dr Sharah then asked her questions about pains she might be experiencing, and the like, and about her medications. She said he then asked her what her blood pressure was, and she said she did not know. He proceeded to undertake a physical examination.
4. She stated that he then said 'I'll check it for you'. She said he stood up and got the blood pressure machine and stethoscope. She said she was wearing under it a red 'Everlast' singlet and a black puffer jacket. He asked her to take her jacket off. She stated that she only took her left arm out of her jacket. She said he put the blood pressure strap on the wrong way, took it off, and put it on her arm again. She said that he was now standing to her left and a bit behind her, and as the blood pressure strap was tightening he put the stethoscope in his ears, and placed it on her chest.
5. She then described in her statement in detail the movements of the hand he engaged in, as she perceived or felt them: at paras [27] to [30]. These movements form the basis of the detailed sub-particulars given in relation to Particular 4. They end with her stating that he had his hand eventually below her nipple and he squeezed her breast. At hearing she gave a demonstration of how she was positioned, and how she considered his hand moved.
6. She referred to asking him to stop once during these actions, and again at the end of them, yelling for him to stop the second time. She said she yelled 'fucking stop' and 'no more'. She said she had been hoping for the receptionist to hear her scream and come in, but she didn't. She said it was then that he pulled his hand out of her singlet and said 'Oh well, I can't hear a heart murmur'. She then referred to the action she took after leaving the respondent's rooms, who she contacted and what she told them, and to the formal complaint she made at the Windsor police station the next day. A copy of that complaint is annexed to her statement.
7. The material before the Tribunal includes witness statements corroborating her account, and the stress she felt. There are from her then boyfriend, from a receptionist at a nearby medical centre to which she went after leaving Dr Sharah's room, from two friends that she contacted for advice as to what to do, and from her aunt and by her father. There was also a statement from the respondent's receptionist remembering the fact of the consultation, and reporting that there was nothing out of the ordinary in Patient A's coming and going that day.
8. We will now set all four particulars at this point. It will be seen that in relation to Particulars 1, 2 and 3, the respondent acknowledged that a number of the comments attributed to him may have occurred. He contested the version of his physical conduct found in Particular 3 (the stroking the tattoo on the arm incident). He strongly contested the version of his physical conduct given in Particular 4 (alleged inappropriate intimate touching).
9. We will set out the response of the respondent to each of the sub-particulars below, based on our summaries of the evidence at hearing and the subsequent written submissions (which included references to the transcript).
10. Between approximately 2004 and 2013 the practitioner during consultations gave inappropriate religious advice to Patient A, which was uninvited, in that he said on multiple occasions words to the effect 'you have to pray'. Response: Probably used the words, but has no recollection of saying these words every time or how often.
11. During a consultation when Patient A reported that she had a lesbian friend who started to pray, the practitioner made the following inappropriate comments with the words to the effect of: (a) "lesbians don't know that they are doing something wrong so we still have to love them'; Response: Cannot recall, but may have said it. The written submissions drew attention to his remark in evidence: 'the issue being that no matter what a person is they're still entitled to respect and love and understanding'. (b) "it's the same as paedophiles, they don't know they are doing something wrong so we still have to love them". Response: Cannot recall, but may have said it.
12. In January 2013 during a consultation with Patient A, the practitioner failed to observe appropriate professional boundaries in that he: (a) grabbed her arm; (b) stroked a tattoo on her arm; Response to both (a) and (b): Denies that he 'grabbed' Patient A's arm, though he did not now have a distinct recollection. He acknowledged in evidence at hearing that he took hold of her wrist and read the tattoo. Denies any recollection at all of doing the action as demonstrated by Patient A when she gave evidence. Conceded that he may have 'looked at' tattoo. Denies that he 'stroked' the arm, in the sense of 'caressing' Patient A's arm. (c) advised her to continue to pray to God. Response: Conceded, as a common thing he would say. But has no specific recollection of saying this to Patient A.
13. On 13 June 2013 during a consultation with Patient A, while purporting to check Patient A's reported heart irregularities using a stethoscope, the practitioner inappropriately: (a) touched Patient A's breasts under her singlet with the stethoscope Response: Acknowledges that he conducted an examination with a stethoscope, and placed hand on chest and sternum. But denies that he squeezed or touched breasts in manner alleged. (We note that Patient A's evidence at hearing did not allege any contact with her right breast area. Her evidence was that he touched her left breast under her singlet with his stethoscope. He does not recall what Patient A was wearing except that it was loose. Admits that he touched her left breast 'to some extent' under her singlet with the stethoscope. Denies that he inappropriately touched the breast with his stethoscope. Said that he was engaged in conducting a 'routine cardiac, quick cardiac assessment', and that he did it in a way that he has performed such examinations ever since he started as a doctor, but acknowledged that he infrequently examined a patient's heart, perhaps once every one or two months. He stated that he had no intention other than to assess Patient A's heart and cardiovascular status. (b) touched Patient A's left breast under her bra with the stethoscope Response: Denies that he inappropriately touched Patient A's left breast with the stethoscope, and otherwise repeats his reply to (a). (c) squeezed Patient A's breast; Response: Denied. (d) pushed Patient A's hand away and said words to the effect of "don't be silly" after Patient A asked him to stop and tried to pull his hand away from her breast; Response: Says that Patient A put her hand on/over his hand (holding the stethoscope) and he put her hand back/away. Denies that this action was 'inappropriate', explaining that he moved Patient A's hand away from his hand because he 'didn't want contact with her'. Does not recall her saying anything when she put her hand on his hand. Surmises, by reference to the note he made at the time, that, Patient A may have said something like 'I'm uncomfortable'. Does not now recall but accepts that he could have said words to the effect 'don't be silly'. Does not now recall Patient A telling him to stop but accepts she could have. (e) exposed Patient A's breast; Response: Denied. (f) touched Patient A's exposed breast with a stethoscope; Response: Repeats his response to (a) and (e), and otherwise denies (f). (g) squeezed Patient A's exposed breast below the nipple. Response: Denied.

Findings in relation to Patient A

1. In relation to Particulars 1 and 2, Patient A's evidence at hearing was consistent with her statement, and reasonably precise. The respondent accepted that he may have made the statements attributed to them. We find both Particulars proven.
2. It was professionally inappropriate to suggest in a treatment setting of the kind described that a solution might be found in frequent praying (Particular 1). Similarly it was professionally inappropriate to make gratuitous remarks about lesbians, and then to compare lesbian relationships to the conduct in which paedophiles engage (Particular 2). Comments of this kind go well beyond comments of a light, social kind that are not unusual in the consultation environment.
3. Particular 3 refers to the incident relating to the tattoo. Particular 3(c) is another instance of a comment invoking the power of prayer, similar to Particular 1. For the same reasons, we find it proven.
4. Particulars 3(a) and 3(b) relate to his actions in relation to taking her arm and examining the tattoo. We find that the respondent did take hold of her arm and did examine her tattoo, and that a touching motion was probably involved. However we could not be satisfied on the evidence that the actions involved amount to 'grabbing' with its connotation of an action of an unnecessary, or violent, degree; or that there was 'stroking' with its connotation as an act of endearment with a possible sexual aspect. As pleaded, we find these particulars not proven.
5. We will now turn to the principal area of contest, the events of 13 June 2013, the subject of Particular 4.
6. As perceived by Patient A, the respondent engaged in a form of examination which exceeded what was appropriate in the circumstances, involved inappropriate touching of her left breast, and included squeezing of the breast. Her allegation is one, at the least, that the respondent exceeded what needed to be done, professionally, to check her heart by manual examination; and, therefore, his conduct amounted to an assault and, perhaps, to an act of indecency. As noted by Basten JA in Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241 at [9]: For example, an adult male who asks a girl to undress may not be involved in any act of indecency if he is a medical practitioner and she is a patient. On the other hand, even in that circumstance, it would be possible for him to incite an act of indecency if his real motive were not professional, but personal, involving sexual gratification.
7. We have referred, in summary above, to the clash of evidence, as between Patient A and the respondent in relation to the respondent's actions. At hearing, Patient A gave a description and demonstration of what she said happened, as did the respondent. The medical members of the Tribunal sought clarification from the witnesses as to a number of matters.
8. The Tribunal accepts that, in the circumstances described, in particular the presentation of a letter from a cardiologist with a finding of ischaemic heart disease in relation to a young woman, it would not be unreasonable to undertake a manual heart examination, known technically as auscultation and palpation of the chest. Such an examination ordinarily involves the use of the stethoscope with one hand and the placing of the other hand on the chest and the sternum (or breastbone), and in the case of a woman may involve a lifting motion in relation to the left breast with the open hand so as to assist the placing of the stethoscope.
9. As described by the respondent, the procedure that the respondent followed was consistent with acceptable medical practice. As described by the patient, the procedure was unexpected, invasive and conducted in a threatening way because of the degree of force used, and had, perhaps, a sexual connotation.
10. Patient A had been a regular patient of the respondent. He had never performed a manual heart examination on her previously. In evidence, the respondent expressed regret that he had failed to explain to her, before he started, what he proposed to do, and what was involved. The respondent undertook the procedure without the patient's express consent. An intimate procedure of this kind cannot, we think, be justified by an implied consent, especially where there is no prior history of similar procedures having been undertaken in respect of the patient.
11. We accept that Patient A was taken by surprise, and upset, by the procedure. We accept her evidence and that found in the witness statements from others that she was very upset afterwards, and felt violated.
12. We make the following findings in relation to each of the sub-particulars.
13. We are satisfied that sub-particular (a) is proven, as to the left breast only, as is particular (b). Both of these relate to touchings occasioned by the movement of the stethoscope. The touchings would not, in the experience of the medical members of the Tribunal, be unusual in a manual examination of the present kind. It is not unusual to place the stethoscope in or near the locations mentioned in the particulars, and for some incidental touching of the kind described, possibly to occur.
14. The next three particulars describe conduct relating to the direct use by the respondent of his free hand.
15. We find sub-particular (c) not proven. In our opinion, actual squeezing of the breast was not confirmed by Patient A in her oral evidence. We accept that the respondent may have used some kind of lifting motion in relation to her breast so as to place the stethoscope immediately below that area. In our view, the term 'squeezing' carries a sexual connotation. The evidence does not support a finding of squeezing for sexual gratification.
16. The examination appears to have lasted for about 20 to 30 seconds. The respondent acknowledged that he was standing behind Patient A when he commenced the examination, and remained basically in that position. As we have already noted, he did not ask her consent for the aspects of the procedure that involved placement of the stethoscope and the hand in the region of her breast. As already noted, we accept Patient A's evidence that she was surprised by what occurred, and felt violated. Therefore, we find particular (d) proven.
17. We find sub-particular (e) not proven. We consider that the word 'exposed' carries the connotation of a full or substantial exposure of the breast, and like the allegation in relation to squeezing, the word can have a sexual dimension. In our view, the respondent probably 'exposed' Patient A's breast to the extent that a lifting movement may have disturbed it from the full protection of the bra, but we are not satisfied that there was any exposure in the sense of an unclad display of part or whole of the breast.
18. We find not proven sub-particulars (f) and (g). We are not satisfied, as explained in dealing with particular (e) that the breast was 'exposed' to any significant degree or, as explained in our consideration of particular (c) that any action of squeezing occurred. We accept that there may have been incidental touching in the regions to which these particulars refer.
19. It remains to consider the Particular as it stands in light of these findings as to the sub-particulars. We have found proven the touchings by the stethoscope the subject of sub-particulars (a) and (b), and the interaction the subject of sub-particular (d). The sub-particulars are preceded by the words - 'while purporting to check Patient A's reported heart irregularities using a stethoscope, the practitioner inappropriately' [performed the actions the subject of the sub-particulars]. We are satisfied that the respondent had a reasonable medical basis for conducting the examination, and that he was not 'purporting' to undertake that examination. We accept his evidence that he saw such an examination as desirable and relevant to a treatment need.
20. However, we do consider, that the actions described in sub-particulars (a) and (b), which would otherwise be appropriate, were rendered inappropriate by his failure first to explain his intentions to the patient, deal with any concerns she might have, and obtain her consent. She was a patient with a history of emotional difficulties, and she had never been the subject of that kind of examination from the respondent though a regular patient. Moreover, she would, we consider, have been less likely to have anticipated the possibility of such an examination from a doctor she was consulting, basically, for assistance in relation to mental ailments not physical ailments. We make the same overall finding in relation to sub-particular (d).
21. Accordingly we find that the respondent conducted himself inappropriately in relation to the matters the subject of sub-particulars (a), (b) and (d); and Particular 4 is therefore proven to that extent. In this regard, we accept the frankness of his acknowledgment at hearing, and in his written submissions, that he made an error of judgment in his approach to the examination of Patient A on 13 June 2013.

Patient B

1. Patient B, a woman, consulted the respondent on one occasion on 5 September 2013 in relation depression and for assistance after being discharged from an alcohol detoxification program.
2. There are four Particulars concerning the respondent's conduct towards her. Particulars 5, 6 and 7 concern alleged incidents of inappropriate comment with similar characteristics to those seen in relation to Patient A. Particular 8 relates to an alleged failure to prescribe a medication.
3. Patient B had been referred to the respondent as part of an alcohol detoxification program she was undertaking as an outpatient of the Cumberland Hospital. She had gone to the respondent when it was impossible to get an appointment in the near term with a psychiatrist attached to the mental health team at the hospital. At the time of the consultation she was 48 years of age.
4. She referred in her statement to attending the respondent's rooms at about 3 pm, feeling like 'she was walking into a church', and noting that there was a cross on the wall and on his desk, and 'a few statues of Mother Mary holding baby Jesus'. Patient B had a Lebanese background. The respondent told her he attended Our Lady of Lebanon Church in Harris Park three or four times a week.
5. She presented him with a letter from her referring doctor. The letter is in evidence. It referred to her wider personal history, including regular sexual abuse since she was eleven years old by a man who at the time was her mother's boyfriend and to whom ultimately she was married when she was seventeen, that she had had four children to him, a significant drinking problem at various stages of her life, dependence on cigarettes, and suffered from depression. In her statement she gave an account of what she told the respondent in elaboration of the information that appeared in the referring doctor's letter. She said she spoke continuously for about 30 minutes, and that during that time he listened and said nothing.
6. Patient B said that he then started to speak. He started by saying 'Don't cry, Jesus Christ drank, you don't need any medication' and proceeding to place a cross in the palm of her hand. He suggested to make time for prayer and for going to church. There were other remarks of a religious nature during the consultation, and they are the subject of Particular 7 below. Particular 5 concerns remarks made about her abusive 'stepfather', the boyfriend of Patient B's mother, who later becomes Patient B's husband. Particular 6 is concerned with a remark directed to her about her perception of herself.
7. We will now deal with these Particulars.
8. Particular 5 is:
9. On 5 September 2013 during a discussion about abuse towards Patient B by her step-father, the practitioner gave Patient B inappropriate advice with words to the effect of: (a) Patient B's stepfather didn't know any better; (b) Patient B's stepfather was too excited; (c) Patient B's stepfather couldn't handle himself; (d) Patient B's stepfather wasn't educated; (e) Patient B should forgive her stepfather and her mother.
10. The witness statement provided by Patient B is precise and detailed. We accept her evidence. The respondent conceded he may have made the remarks attributed to them, but argued that they needed to be seen in context. We find proven the making of the remarks set out at (a) to (e) but again the issue is whether the remarks were 'inappropriate' and constituted 'inappropriate advice'.
11. Clearly, the respondent made remarks of an off-hand nature, which might be seen by a patient in Patient B's circumstances as justificatory of the conduct of an abuser, and therefore be seen as diminishing the significance of her sense of violation and hurt, and of her need for treatment. We are satisfied that the remarks were inappropriate, and Particular 5 is established.
12. Particular 6 is:
13. On 5 September 2013, during a discussion about Patient B's emotional issues, the practitioner gave Patient B inappropriate advice with words to the effect of 'there are always people worse off than you, you should get over it'.
14. In her witness statement, Patient B records this remark, and explains the context. It is not denied. For the same reasons as given in relation to Particular 5, we found this Particular proven. The remarks diminished a grave history of abuse of the patient.
15. Particular 7 is:
16. On 5 September 2013 the practitioner during a consultation gave inappropriate religious advice to Patient B, which was uninvited, when he said words to the effect of: (a) 'Jesus hates you'; (b) 'don't cry, Jesus Christ drank, you don't need any medication'; (c) 'this is your medication', after handing Patient B a cross; (d) 'I want you to go to church tonight. Make time to go to church'; (e) If she connects with Jesus she will feel better; (f) she should see a priest and tell the priest she wants to confess; (g) if she didn't go to church and show Jesus that she loved him, she would end up in hell with her former husband and her slut of a mother; (h) if she prayed to Jesus she would end up in heaven one day with the practitioner playing football.
17. The respondent admitted the making of the statements particularised at (d) to (h). He formally denied the statements at (a) to (c), but admitted the giving of the cross to the patient. As noted earlier, Patient B's statement was precise and detailed. She lodged her formal complaint with the Commission three weeks later (on 26 September 2013) and signed her statement a few weeks' after that, on 30 October 2013. Her statement was not contested. At hearing the respondent give a detailed account as to what transpired. He denied making the comments the subject of sub-particulars (a) to (c). In these circumstances, we find those aspects of particulars (a) to (c) not proven. Accordingly, we find sub-particular (c) proven in relation to the handing over of a cross, and find sub-particulars (d) to (h) proven. We find the remarks proven were inappropriate and uninvited.
18. Particular 8 is that:
19. On 5 September 2013 the practitioner inappropriately failed to prescribe Campral to Patient B, as requested by Patient B.
20. The respondent's response is that the patient did not request a prescription and that, in any case, he did not fail inappropriately to prescribe Campral B.
21. In her witness statement Patient B said that, during the uninterrupted 30 minute period when she spoke to him about her circumstances, she told the respondent of the fact that she took a lot of medication especially Campral. She said that after leaving his office, she made an appointment for a week's time. She said she then called the Mental Health Line, and spoke to a counsellor. She said she told her that he 'refused' to give her prescription for Campral. She said the counsellor advised her not to listen to him, to get a prescription at the nearest medical centre, and gave her the information to enable her to make a complaint.
22. She saw the respondent followed her discharge from the detoxification program conducted at Cumberland Hospital. The e-discharge summary dated 22 August 2013 records that the patient 'was very motivated to cease alcohol and responded well to diazepam, thiamine and acamprosate treatment.' Her discharge treatment plan included 'GP to please continue acamprosate at current dosing (666mg TDS) for one year'.
23. The referral letter from her GP Dr Aboud to the respondent dated 2 September 2013 requests an opinion and management by the respondent of the patients mixed anxiety and depression "following alcohol abuse and cessation and long history of family trouble, Rape and abuse". While Avanza is on the list of medications provided by Dr Aboud, Campral (Acamprosate) is not on the list. It therefore appears that the patient had already ceased Campral prior to seeing the respondent.
24. While it is difficult to read the respondent's file notes, Campral is mentioned as a treatment along with AA. A letter to Dr Aboud from the respondent dated 8 September 2013 notes the history of alcoholism, reports that the patient has been abstinent from alcohol 'in the last few weeks and doesn't want any tablets for that.' He mentions her treatment with Avanza, stating "and I have left her on that.' He then states, 'She didn't want any medication for alcoholism.' This seems to clearly indicate that he discussed alcohol pharmacotherapy with the patient.
25. The respondent's oral evidence to the Tribunal was that the patient 'had been treated for the alcoholism successfully and she had several weeks without medication except the Avanza.' This is consistent with the evidence in the documentation provided. He then went on to state that he 'brought up' the issue of Campral 'and she was doing well and she said she didn't want it, so I was surprised when the complaint came in that she implied that I didn't give it to her, she didn't want it.' This is also consistent with what he states in his letter to Dr Aboud.
26. We find Particular 8 not proven.

Patient C

1. Patient C was referred by her general practitioner for an opinion and management. Patient C's history included issues relating to her childhood and former marriages as well as bipolar disorder. Patient C consulted with the respondent on two occasions, 21 November 2012 and 5 December 2012.
2. There is no witness statement from Patient C. Instead the applicant relies on the handwritten complaint lodged by the patient on 8 January 2013 referring to the second consultation (she gives the date as '4/12/2012 at 4pm'). The evidence also includes clinical records and the contents of the letters written to the applicant in response to its enquiries. She went to the respondent to get a certificate of incapacity to help with an application for a disability pension. She customarily wore traditional Muslim dress, and was dressed in that way on the occasion of her two attendances on the respondent.
3. In her complaint she stated that she first attended the respondent's clinic on 21 November 2012. She returned on either 4 or 5 December 2012. She had her nine year old daughter with her. She referred to him greeting them, and talking to her daughter, touching her head, and touching her back a few times. She then left her daughter at reception and entered the consultation room. She then refers to the exchanges between them, and felt he was not interested in her situation and giving a diagnosis. She objected to the references to Jesus, and the cross, explaining that she was a Muslim and while Jesus was acknowledged as a prophet, she found his comments inappropriate and unwelcome. She referred finally to his actions as she left the room, stating that he 'hugged' me. She objected to the fact that he did not prescribe anything for the mental conditions of which she complained.
4. Particulars 9, 10 and 11 all concern the conduct to which her complaint referred. We note in brackets the sub-particulars that are fully admitted. Again whether the sub-particular is established depends on whether the conduct found proven was 'inappropriate'.
5. On or around 5 December 2012 at a consultation with Patient C, after the patient reported her diagnosis to the practitioner, the practitioner made inappropriate comments to Patient C in that he said words to the effect of: (a) She was beautiful and bright; (b) There was nothing wrong with her.
6. On or around 5 December 2012 the practitioner failed to observe appropriate professional boundaries when he hugged Patient C at the end of a consultation.
7. On or around 5 December 2012 at a consultation with Patient C, the practitioner made inappropriate religious gestures in that he: (a) used holy water to draw the sign of a cross on Patient C's forehead; (b) prayed over Patient C on at least one occasion; (c) did (a) and/or (b), above, with the knowledge that Patient C was Muslim.
8. We will deal with the three Particulars together. The respondent admitted using the words attributed to him in Particular 9(a), and initially denied using the words set out in Particular 9(b). However in evidence his evidence was that he may have said something like this, but with a broader context than appears in the allegation. He thought that he would have said that there was nothing wrong with her sufficient for her to be classed as disabled.
9. The issue is whether the words used constituted inappropriate comments in a professional setting.
10. We find sub-particular (a) proven. While the respondent may have seen comment (a) as a way of being pleasant to a new patient, and easing the way, it carried the risk of being unduly familiar, and being taken by a patient as insensitive to her understanding of the distress that had led her to seek the assistance of a psychiatrist. A psychiatrist of the respondent's level of experience should have been well aware of the misunderstandings that might flow from making statements of such a kind with a new patient. In relation to the remarks the subject of sub-particular (b), in light of the respondent's explanation, we are not satisfied that they were so inappropriate as to support an adverse finding.
11. At hearing, in relation to Particular 10 the respondent denied that he 'hugged' the patient at the end of the consultation. He stated that he put his hand on her back to support her. He acknowledged that it could have been misunderstood as a hug. We have the patient's written account in her complaint made on 8 January 2013 shortly after the event (which was on or about 5 December 2013), compared with the respondent's account at hearing more than two years later. We prefer the more recent statement, and note that the patient was not required for cross-examination. She referred to an act of hugging twice in her statement, the first being in relation to her child when she and her were greeted in the waiting area, and the second being the act now under notice. We doubt that she would have mistaken touching on the back for a hug with its connation of a two arm folding movement.
12. As to Particular 11, the respondent admitted (a), denied (b) (praying over the Patient) and admitted that he knew she was Muslim ((c)). We find particular (a) proven. As to particular (b), there is a similar conflict In the evidence to the one we have just discussed in relation to Particular 10(b). For the same reasons, we accept the patient's account.
13. Clearly the conduct to which Particular 11 refers (the use of religious gestures) was inappropriate and was magnified in its inappropriateness, when the patient was an adherent of a non-Christian faith.

Patient D

1. Patient D, a woman who was about 31 years of age at the relevant times, consulted with the respondent on 4 July 2013 and 11 July 2013. In December 2012 her unborn child had been diagnosed with Hypoplastic Left Heart Syndrome. She and her husband decided to induce labour at 22 weeks and the child was stillborn. As a result, she developed Post Traumatic Stress Disorder (PTSD) and was having suicidal thoughts. She was referred to the respondent. At the time she was taking a medication, Duromine, to help her lose weight. The respondent was informed of these matters, most notably the circumstances surrounding the loss of her baby.
2. It will be seen that the first two Particulars that follow again deal with acts or conduct with religious connotations. The final particular, Particular 14 deals with clinical competence. All of the particulars were admitted. The events are the subject of a witness statement dated 24 October 2014, and elaborate on the complaint made online by Patient D a few days after the second consultation, on 17 July 2013.
3. At a consultation on 4 July 2013 the practitioner gave inappropriate religious advice to Patient D, which was uninvited, when he said words to the effect of: (a) 'God can help you'; (b) 'God is love'. 13 At a consultation on 11 July 2013 the practitioner gave inappropriate religious advice to Patient D, which was uninvited, when he said words to the effect of: (a) 'God was love, so love was important'; (b) her son was God's will; (c) she ask for God's forgiveness for her son's death.
4. Between 4 and 11 July 2013 the practitioner failed to: (a) formulate and/or implement an adequate management plan for Patient D; (b) conduct an adequate mental state examination of Patient D; (c) perform an adequate risk assessment of Patient D.
5. We find each of the Particulars proven in respect of all their elements. We draw attention to the following part of the patient's witness statement for their account of the emotional impact of the respondent's conduct. 'After the first consultation I felt extremely uncomfortable, he had continuously brought up religion. I am not religious in any way, but I was too vulnerable and absolutely petrified of the terrible place I was in emotionally to say anything. He also kept using words like 'abortion' and 'termination', which absolutely mortified me, as that was not what we did to our baby boy. To hear these abhorrent words made me sick to my stomach'
6. She made a similar statement about feelings of revulsion after the second consultation: 'After the appointment, I was in a state of shock. I was shaking, I couldn't breathe. I texted my parents regarding what happened and called my husband in an extreme emotional state.'
7. In his report Professor Greenwood observed that the respondent had no right to impose his own religious beliefs on the patient. He noted that religious belief is specifically excluded from a psychiatric diagnosis under the NSW Mental Health Act (s 68(g) and Sched 1, cl 16(1)(b)). He commented as to the matters the subject of Particular 14, that no adequate management plan was put in place. The respondent, he considered, missed completely a PTSD diagnosis. His instruction to her to eat sensibly and to exercise was very inadequate response to her distress. His notes did not reveal any satisfactory mental examination. There should have been a risk assessment in circumstances where she was seriously distressed.

Patient E

1. Patient E, then aged 67 years, consulted with the practitioner between approximately July 2013 and 23 August 2013 in relation to anxiety, alcoholism and drug dependency. Patient E was homeless.
2. Between August 2013 and late November 2013 the practitioner failed to observe appropriate professional boundaries in that he rented a room in his practice, which was also his private residence, to Patient E.
3. The practitioner contravened clause 7 of the Health Practitioner Regulation National Law Regulation (NSW) 2010 in that he failed to make and keep a clinical record for Patient E.
4. The patient's account of his treatment, and relationship with the respondent, is contained in the file notes of two calls to the applicant, in particular the note relating to the second call (19 December 2013). The Medicare records refer to 17 consultations in the period June to September 2013 and to four prescription events (for diazepam's).
5. Particular 16 is admitted. The file note records that the patient said he had lived with the respondent for about a month, and at first paid $100 week rent, and later he asked for $200 a week. We find the Particular proven. Clearly it is inappropriate for a doctor to be entering into rental relationships with patients in circumstances of the present kind, especially when the accommodation falls within the business premises from which the practice is conducted.
6. Particular 17 is not admitted. While the respondent acknowledged that there was no clinical record in his record system, the respondent claimed that a clinical record had been created, but he had given it to the patient in response to a demand from him, and he did not make copies. At hearing, he was unable to answer repeated questioning as to what he might have included in the missing record, he referred to the patient as a 'doctor shopper', and then at a later point said the record was about five pages long. We were not satisfied that the respondent ever made a record. We find the Particular proven.

Patient F

1. Patient F, a man born in 1954, consulted with the respondent between approximately October 2005 and January 2013 in relation to anxiety.
2. Between 2008 and late 2013, the practitioner failed to observe appropriate professional boundaries in that he rented a property that he owned to Patient F.
3. This allegation refers to a rental arrangement, under which a family occupied a residential dwelling owned by the respondent, which he described in a letter to the applicant as 'my duplex'. In a letter of reply to questions asked by the applicant prior to the s 150 hearing, the applicant said that Patient F and his wider family (his wife, and four children) were refugees from Afghanistan, that he wanted to help them out, and that had paid $200 a week for the whole of the five years.
4. The respondent admitted the Particular. The respondent first treated Patient F in 2005, and saw him intermittently thereafter. He was initially referred to make an assessment of his level of disability, and to provide a report in relation to his eligibility for a disability support pension. It is unacceptable to a doctor to have a doctor-patient relationship with a person with whom he also has a significant financial relationship, in particular in circumstances where the doctor-patient relationship includes functions that may involve the making of assessments that bear on the financial welfare of the patient.

Patient G

1. This case was added to the proceedings after the original application was filed, and was added as part of the amendments that make up the amended complaint. Volume 3 of the applicant's bundle deals with the case. It derives from a letter of complaint from Patient G, a woman born in 1960, dated 30 April 2014. There is also a statement made 26 June 2014. She was referred to the respondent for psychiatric treatment after being diagnosed with depression and anxiety. The Medicare records show nine consultations over the period December 2012 to August 2013.
2. It will be seen that there are four Particulars, many with sub-particulars. It will be seen that the first three refer to remarks by him that are said to be inappropriate. As in a number of the cases already traversed they relate to religious matters (Particular 18, Particular 19) and comments of a personally offensive nature (Particular 20). The final particular, Particular 21, goes to competence.
3. During consultations between 12 August 2012 and 15 August 2013, the practitioner gave inappropriate religious advice to Patient G, which was uninvited, when: (a) on more than one occasion he said words to the effect of 'you need to think more about where you are heading and to let Jesus into your life'; and (b) he said words to the effect of 'you should join the church'; (c) he recommended that Patient G should read a particular book about miracles; (d) he said words to the effect of 'what do you have to be scared of? You should be looking forward to the kingdom of heaven' during a discussion about Patient G's fear of illness and death; (e) he said words to the effect of 'once you get to heaven you can have a little dress shop on a cloud' during a discussion about Patient G's fear of illness and death.
4. During consultations between 12 August 2012 and 15 August 2013, the practitioner, inappropriately and without medical or psychiatric justification: (a) discussed religion with Patient G at every consultation including after Patient G had made it clear to the practitioner that she did not want to discuss religion during consultations; (b) discussed his experience of bringing Jesus into his life with Patient G; (c) gave Patient G a small cross; (d) recommended that Patient G disregard public information surrounding the Royal Commission into Institutional Responses to Child Sexual Abuse and the Catholic Church.
5. On or around 15 August 2013 at a consultation with Patient G, after the patient stated she was having a particularly bad day to the practitioner, the practitioner made inappropriate comments to Patient G in that he said words to the effect of 'did you see the gentleman who was in here before you? He has a physical disability. He has to learn to cope with day to day struggles. I think you need to grow up a bit.'
6. Between 12 August 2012 and 15 August 2013 the practitioner (a) failed to make a proper diagnosis for Patient G; (b) develop or implement a plan of management for Patient G; (c) provided treatment to Patient G which was not supported by conventional psychiatric practice.
7. The respondent, admitted in whole, Particulars 18, 20 and 21. He admitted (b), (c) and (d) of Particular 19, and with a qualification, he admitted item (a) of Particular 19. His qualification was that the she did not make her lack of interest clear at 'at every consultation'. This aspect of the allegation reflects words used by the patient in her original complaint to the applicant, where she said: 'on every occasion I was told to accept Jesus into my life and pray, join a church group, disregard news events discrediting the catholic church'. He acknowledged that she did, over time, make it clear to him that she was not that interested in religious perspectives on her condition.
8. Particular 21 is supported by a report from Professor Greenwood dated 15 August 2014.
9. We find all particulars proven. We prefer the patient's account on the one factual matter debated by the respondent, the matter of whether he engaged in the unwanted communications every time he saw the patient. We find that he did. It is plain, we consider, from the evidence generally, that the respondent had a way of interacting with his patients which made routine references to religion and the role religious belief and practices might play in obtaining alleviation or cure of their conditions.

Findings in relation to Complaint One: Unsatisfactory Professional Conduct

1. We are satisfied that the particulars we have found proven in relation to Complaint One warrant a finding of unsatisfactory professional conduct. The conduct in which the respondent engaged was significantly below the standard reasonably to be expected of a practitioner of an equivalent level of training or experience (see s 139B(1)(a)).
2. We accept that there may be clinical circumstances, especially in the practice of psychiatry, where an exploration of the patient's religious beliefs may be necessary to the making of a diagnosis or the provision of treatment. However, the cases the subject of the application point to a different situation - where the practitioner was pressing his religious beliefs on patients in a proselytising way, and suggesting to them solutions as having an important curative value that were drawn from religious customs and practices (prayer, possession of symbolic objects such as crosses). Further, he appeared to see these solutions as preferable to ones with a scientific basis such as appropriate medication. We accept the assessments made by Professor Greenwood in relation to his conduct of this kind.
3. We also accept Professor Greenwood's assessments as to the unsatisfactoriness of his conduct in failing to formulate adequate management plans or make appropriate diagnosis (e.g. Particulars 14 and 18) or to make proper clinical records (e.g. Particular16). The failure to which Particular 16 refers involved a contravention of the law relating to the keeping of medical records. Such a contravention supports a finding of unsatisfactory professional conduct on that ground (s 139B (1)(b)). Our adverse findings also included ones that support a finding of unsatisfactory professional conduct on the ground of unethical conduct (s 139B (1)(c)). We refer especially to the findings in respect of Particulars 15 and 17.

Findings in relation to Complaint Two: Professional Misconduct

1. Complaint Two (of professional misconduct) relied on the same particulars as Complaint One, together with one more, i.e.:
2. On 6 September 2005, the Committee made a finding that the practitioner had engaged in unsatisfactory professional conduct under section 36 of the Medical Practice Act 1992.
3. The applicant's bundle included the reasons for decision of the Professional Standards Committee dated 6 September 2005. The Committee's inquiry examined a case involving one patient, who had seen the respondent 38 times, where the respondent's 'religious beliefs' were found to have been 'inappropriately involved' with therapy provided to a patient. In that case, he had also invited the patient to move into his home. This Particular is proven.

Assessment

1. To determine whether proven unsatisfactory professional conduct amounts to professional misconduct, the law requires an objective assessment that gives appropriate weight to the protective function of professional regulation and the degree and extent of the unsatisfactory conduct. See further HCCC v Dr Gow [2008] NSWMT 2 at [67].
2. The case of Patient A is the most egregious of the cases relied upon by the applicant. The respondent failed to display any insight at the time into the anxiety and sense of threat that she might have felt in being the subject of a procedure that involved a degree of intimate contact with her (and, in our view, this lack of insight persisted in his subsequent dealings with the complaint and in his evidence at hearing). In particular, he assumed her co-operation in the procedure without ensuring that he had obtained her informed consent. While we have not found proven the most serious of the allegations made against him in respect to the nature of his touching, we nonetheless regard the matters that were proven to our satisfaction as a very serious breach of standards.
3. As our review of the Particulars generally indicates, the respondent had by the years relevant to most of the complaints, 2012 and 2013, developed a style of practice in which he encouraged patients to deal with their mental health difficulties by resort to religious practices and customs. He was perceived by some of the patients to be more interested in promoting religious solutions than in dealing with their needs by the methods and treatments in which he had professional training, and which allowed him to practise psychiatry. More than one of the patients referred to the displays of religious objects and material in his waiting room and consulting room, something which, in our view, is clearly inappropriate. The respondent was indifferent, we consider, to whether patients might find unwelcome and confronting references to the power of prayer, religious beliefs and gestures that had religious symbolism, such as clasping hands and presenting crucifixes. A number of patients also referred to him making remarks which were casual and off-hand involving generalisations about good and bad conduct, and making suggestions to patients about how they might cope or deal with their difficulties in a way that diminished their self-confidence, and they found demeaning.
4. In our view, despite the findings of the 2005 inquiry in relation to the crossing of professional boundaries, and the resulting education and counselling that he undertook in 2006, he reverted to the inappropriate style of practice that lies at the heart of most of the matters raised by these proceedings.
5. In our view, the particulars we have found proven in relation to Complaint One do justify the further and more serious finding of professional misconduct because the unsatisfactory professional conduct found proven is 'of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration (s 149E (a)), and, on the additional ground, that there is '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' (s 149E (b)).

Complaints Three and Four: Impairment, Competence

1. Complaint Three is that the respondent has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of medicine. Complaint Four is that he is not competent to practise medicine within the meaning of s 139(e) of the National Law.
2. Both complaints rely on the same particular, i.e.:
3. The practitioner has a personality style and/or functioning which causes a pattern of behaviour towards patients that fails to observe appropriate professional boundaries.
4. Both Complaints are admitted by the respondent.

Assessment

1. As previously noted, the law defines 'impairment' to mean in the case of a registered practitioner that: the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) … the person's capacity to practise the profession;
2. As noted by the applicant in its submissions, impairment and incompetence may be related, and an impairment may warrant a further finding of incompetence. Section 149C(1) of the National Law provides that the Tribunal may order that a person be deregistered 'if the Tribunal is satisfied (a) that the person is not competent to practise medicine'. Section 139 provides that a person is 'competent' to practise a health profession 'only if the person - (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession'.
3. A physical or mental 'impairment' could, therefore, be of such a degree that the level of sufficiency required to practise medicine competently is no longer present.
4. It does not, of course, follow that an impairment that 'affects or is likely to detrimentally affect' a person's capacity to practise medicine should necessarily result in not being allowed to practise at all or in being deregistered. See further, Lindsay v Health Care Complaints Commission [2010] NSWCA 194 per Sackville AJA at [168]-[169] (Young, Giles JJA agreeing).
5. In his report dated 8 November 2013, Dr Wijeratne noted: When asked his opinion as to why there had been so many complaints against him his initial response was, 'These things happen.' When asked to clarify, he stated that 'the religious aspect always comes up' with regard to the complainants. He reiterated his beliefs that 'God is relevant to peoples' lives, like air and food, and gives meaning and direction.' He said that the issue of religion sometimes comes up in discussion with his patients but he did not use it as a therapeutic measure. He does not really use holy water but with regard to one of the recent complaints, he had just been given a bottle from Lourdes in November 2012 which he had used on five patients. He said that he used religion as part of the holistic approach to patients, which includes managing their physical and emotional needs, and providing a purpose in life.
6. In our view, in his evidence at hearing the respondent continued to reflect views of the kind noted by Dr Wijeratne.
7. Dr Wijeratne concluded his report of 8 November 2013 by referring to diagnostic considerations and then gave his opinion. He found that the respondent did not suffer from any mental disorder or illness, and explained the criteria he had used in reaching that conclusion. He amplified on this opinion in a further report to the applicant, dated 1 September 2014.
8. However he said: There is a long standing pattern of boundary transgressions involving the alleged imposition of his own religious beliefs in the course of his clinical practice; socialisation with patients, including inviting at least three patients to live with him or rent property owned by him; and alleged inappropriate physical touching of patients and their family. Another Council appointed practitioner, Dr Diamond, was of the opinion in 2005 that Dr Sharah remained a practitioner at risk. The most likely cause of this behaviour is personality style. Dr Sharah is likely to be impaired within the meaning of the Heath Practitioner Regulation Law (NSW). I do not think any appropriate public practice or private health conditions could be imposed on his registration.
9. The respondent was questioned at hearing in relation to this opinion. He said that he did not 'impose' his beliefs on patients, but he would ask them about their faith, as he saw it as a relevant matter. In our view, the respondent routinely brought a pre-occupation with matters of religion into his treatment of patients, regardless of clinical relevance.
10. The respondent has conceded that he suffers from an impairment. As noted in Health Care Complaints Commission v Street [2014] NSWCATOD 124 at [62]: It is necessary to identify a present impairment to find the complaint proven (see Tung v Health Care Complaints Commission [2011] NSWCA 219 at [58], [60]). It is not necessary to define the condition suffered with a high level of precision, or in terms of narrow diagnostic labels (Grant v Health Care Complaints Commission [2003] NSWCA 73 at [11]).
11. We find Complaint 3 proven, and the impairment to be as described in the Particular.
12. Further, we find Complaint 4 proven. We are satisfied that because of the impairment, the respondent is not competent to continue to practise medicine.

Appropriate Orders

1. Section 3A of the National Law (a discrete NSW provision) provides: Objective and guiding principle (NSW) In the exercise of the functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
2. In a recent decision, Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said at [35] per Meagher JA (Basten, Emmett JJA agreeing): 35 The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
3. The applicant has applied for the following orders (submissions 12 May 2015): 1. The respondent is disqualified from being registered as a medical practitioner pursuant to s 149C (4) of the National Law. 2. The respondent cannot re-apply for registration for at least a two year period from the date of the Tribunal's decision. 3. The respondent is to pay the applicant's costs. 4. The respondent is prohibited from providing therapy, counselling, psychotherapy, or any mental health service on a public, private or volunteer basis until any reinstatement is made pursuant to s 163B of the National Law in relation to the respondent's medical practitioner registration.
4. In his final submissions (12 June 2015), the respondent did not resist the making of the first three orders. We will make orders in the terms sought.

Application for Prohibition Order

1. The more significant issue in this case is the application for a prohibition order in relation to his future conduct.
2. The order is sought under s 149C (5A), as the respondent is no longer registered, and adopts that test laid down in s 149C (5) in respect of practitioners who are deregistered. The Tribunal must be satisfied that such an order is needed because the respondent 'poses a substantial risk to the health of members of the public'.
3. The respondent opposes the order. The Medical Practice Act 1992 had an analogous power with the criterion expressed in the same terms.
4. In Health Care Complaints Commission v Taylor [2010] NSWMT 10, the Tribunal declined to make such an order. The Tribunal held that 'substantial risk' referred, adopting an American legal dictionary's explanation, to a risk 'that is real or apparent on the evidence presented not a risk that is without substance, or which is fanciful or speculative'. We agree with this approach.
5. In that case the deregistered doctor opposed a prohibition order that would, he submitted, have stymied his ability to pursue a new career in executive coaching. He had been a practising psychiatrist, and had lost his registration because of boundary violations that had involved a personal, sexual relationship with a patient. He was now developing a business in executive coaching. The order proposed in that case was along similar lines to the order now sought. The respondent had given commitments that were accepted not to engage in any form of practice of medicine in his dealings with clients of his coaching service. The Tribunal was not comfortably satisfied on the material before it that there was a 'substantial risk' of transgression.
6. The respondent's supplementary statement (Ex R3) addresses this area. He said that since the date of his effective retirement (the date of suspension, 21 October 2013) he has not engaged in any form of counselling, therapy or treatment in the nature of mental health services to any person. He explained the protocol he follows if he is approached by a former patient or a new person. The difficulty to which the proposed prohibition order seeks to respond is his level of activity in the life of the Catholic Church. Also relevant as we see it, are some aspects of his private life to which the first report from Dr Wijeratne referred.
7. In relation to his Catholic Church activities, the respondent stated: Since 21 October 2013, I have been actively involved in the St Mary MacKillop Parish, Blue Mountains. I attend mass at one of the three churches in the Parish daily, if not more. I assist in the maintenance of the grounds regularly at the request of the priests. I am also actively involved in the Legion of Mary community in Merrylands. With this community, I engaged in community door knocking for 2 hours per week to discuss religious faith. I also give communions.
8. Dr Wijeratne referred in his report other interests of the respondent that involve active involvement in the life of the wider community. He noted that the respondent had been a candidate for several state or federal seats since 1990, most recently at the 2013 election, for the Christian Democratic Party. He described him as the 'figurehead' for the Men's Justice Movement, a group that has concerns over the Family Law Court which, Dr Wijeratne said, he believes favours women over men after marriage background. (The respondent and his wife divorced after a marriage of about 30 years in 1990, there were five children.)
9. It will be seen that the respondent is a well established member of a number of outside groups. He intends, at the least, to be continue to be active in the life of the parish to which he referred. As the complaints in this case revealed, he is, we think, not reticent or shy in promoting his beliefs. He is likely, we consider, to be well known in the communities in which he circulates to be a retired doctor, and is likely to be the subject of requests for assistance and counselling.
10. It may not be easy for him, given the history with which these proceedings have dealt, and having regard to the expert opinions from Professor Greenwood and Dr Wijeratne, for him to distinguish between counselling or assistance that is confined to matters of a religious kind, and those matters that have a medical or scientific dimension. He is an active proselytiser of his views, and that is right of course. There is, we consider, a danger that he may transgress the boundary between proselytisation of personal views and beliefs, and the rendering of advice that has a medical or psychiatric character, or may be perceived in that way - not unreasonably - by the persons with whom he deals.
11. In this case we do not see the risk presented by the respondent as one of practising medicine in the active sense of suggesting medical treatments, and providing them. But there is possibility that because of his status as a retired doctor he may, in fact, discourage people from seeking medical advice when such discouragement is not appropriate, because of the strength of his belief in divine providence and solutions based in religious customs and practices.
12. In our view, he has a continuing difficulty with the setting of appropriate boundaries, and we consider that it is likely to persist even though, we accept, that with many people he will simply refer them on if he is asked for medical advice or assistance.
13. In that regard, we are also concerned as to the extent to which the respondent truly acknowledges that he has a problem of impairment and competence. While he formally admitted these charges, he contradicted himself at hearing by indicating that he still thought he was competent to practise. We are not satisfied that he fully understands or accepts the inappropriateness of his behaviour towards patients, and that he would defer from counselling others if offered the opportunity in future.
14. However, we have to be satisfied that the danger is a 'substantial risk'. The proposed order was added to the application after s 149C (5A) took effect and not long before the hearing.
15. We do not regard the application as fanciful or speculative, in the sense that it has no arguable basis. However, we do not have any professional expert assessments as to the necessity for such an order. Furthermore, nothing has been put to us by way of inappropriate activity on the respondent's part since his retirement.
16. While we have the concerns that we have expressed about the respondent's difficulty with observing boundaries, we do not think it appropriate to impose the order sought.
17. Our view is that the applicant has not demonstrated that there is a sufficient risk that the respondent will engage in the activities the subject of the proposed order, though we accept that the situation is one where some risk is present given the respondent's history.
18. Order 1. The respondent is disqualified from being registered as a medical practitioner pursuant to s 149C (4) of the National Law. 2. The respondent cannot re-apply for registration for at least a two year period from the date of the Tribunal's decision. 3. The respondent is to pay the applicant's costs. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2015