Health Care Complaints Commission v Sivathasan [2026] NSWCATOD 22;

1. An order has been made for this to proceed as a Stage One hearing. This means we must find whether any or all of the first four Grounds of the Complaint have been established and then decide whether Dr Sivathasan is guilty of professional misconduct as asserted in Ground Five. Whether any protective orders are necessary will be determined after a separate, later Stage 2 hearing.
2. An order has been made prohibiting the disclosure of the identity of the patients.

1. Since 2004 Dr Sivathasan has held full registration as a medical practitioner in the United Kingdom (UK).
2. Since 2012 Dr Sivathasan has been a registered medical practitioner in Australia. He has completed training and post-graduate qualifications in cosmetic medicine, cosmetic surgery, and reconstructive surgery.
3. In June 2019 Dr Sivathasan started his own practice, Ignite Medispa, which provided cosmetic surgery, cosmetic procedures and dental and wellness services and was situated in a private hospital. Ignite Medispa was the business trading name for Dr NS Pty Ltd. Dr Sivathasan is the director and shareholder of Dr NS Pty Ltd. In 2021, Dr NS Pty Ltd acquired the assets of Just.Cos in Perth, Western Australia.
4. In 2022 Dr Sivathasan decided to return with his family to the UK for personal reasons. He found a potential buyer for Ignite Medispa.
5. Dr Sivathasan said he did not want to completely surrender his Australian registration in case, in the future, he decided to move back to Australia. He called the Australian Health Practitioner Regulation Agency (Ahpra) and they recommended he transition to non-practising registration. He was told that it would be much easier to transition back to practising registration from non-practising, because if he surrendered his registration he would have to complete a full application for re-registration.
6. On 26 June 2022, Dr Sivathasan applied for a change from practising to non-practising registration.
7. On 29 June 2022 Ahpra told Dr Sivathasan that his application for non-practising registration had been granted effective from 23 July 2022.
8. In mid-late July 2022, the sale of Ignite Medispa fell through and on 8 August 2022 Dr Sivathasan called Ahpra and was told that changing his registration back to practising registration should be possible without additional paperwork. On 9 August 2022 he received an email from Ahpra confirming that his enquiry had been forwarded for consideration.
9. On 24 August 2022, Dr Sivathasan received an email advising that he had to make a de novo application for general registration.
10. On 6 September 2022 Ahpra received an anonymous notification alleging that Dr Sivathasan was offering patient consultations while he held non-practising registration.
11. On 10 September 2022 Dr Sivathasan sent the completed application to Ahpra.
12. On 23 September 2022, Ahpra informed Dr NS Pty Ltd that it had received information which indicated that Dr NS Pty Ltd may be claiming that Dr Sivathasan was a practising medical practitioner. Dr NS Pty Ltd was directed to cease any such conduct to ensure that it did not continue to contravene the Health Practitioner Regulation National Law (NSW) (the National Law). .
13. Dr Sivathasan said that, on receipt of the letter, Ignite Medispa was closed.

1. The onus is on the HCCC to establish the various matters raised in the Application. To make any such finding we must be "comfortably satisfied" that the matter has been established on the balance of probabilities: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

"75 Registered health practitioner who holds non-practising registration must not practise the profession

(1) A registered health practitioner who holds non-practising registration in a health profession must not practise the profession.

(2) A contravention of subsection (1) by a registered health practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken."

1. Section 139B(1)(b) of the National Law defines unsatisfactory professional conduct as including a contravention by a doctor of a provision of the National Law.

1. In Complaint One, the HCCC asserts that Dr Sivathasan's treatment of patients was inconsistent with his non-practising registration.
2. Dr Sivathasan admits Complaint One.

1. On 16 September 2022, Patient A consulted Dr Sivathasan to discuss liposuction. He took her medical history, explained the procedure, its possible risks and complications and said he would perform the procedure.

1. On 17 September 2022, Patient B attended an abdominoplasty consultation, during which Dr Sivathasan conducted a physical examination of her abdomen, explained the procedure to her and informed her that he would perform the procedure.

1. On 16 September 2022, Patient C attended a consultation relating to the surgical removal of three moles on her face, during which Dr Sivathasan explained the procedure, took her medical and social history, informed her that he would perform the procedure and booked an appointment for the procedure to be done on 30 September 2022.
2. On 30 September 2022, Dr Sivathasan completed a clinical assessment of Patient C, administered a local anaesthetic, and removed three moles from her face.

1. On 12 August 2022 Patient D attended to have her existing cheek fillers dissolved. Dr Sivathasan took her medical history, discussed the risks and benefits of the procedure, discussed other potential procedures, and performed the procedure.
2. On 14 September 2022 Patient D returned for Botox and cheek fillers. Dr Sivathasan explained the possible complications and side effects, injected fillers into her cheeks, and injected Botox into her frown lines and around her eyes.

1. On 10 August 2022, Patient E attended to have a Basal Cell Carcinoma (BCC) removed from above her eyebrow. Dr Sivathasan explained the procedure and its possible risks, administered a local anaesthetic, removed the BCC and stitched the wound, and prescribed antibiotics and pain medication.
2. On 19 August 2022, Patient E attended to have a BCC removed from her forearm. Dr Sivathasan administered local anaesthetic, removed the BCC and stitched the wound, prescribed pain medication, discussed potential further options to assist in the asymmetry created by the procedure, and performed an 'un-tethering' procedure on the scar above her eyebrow.
3. Further, at various times between 19 August 2022 and 5 September 2022, Dr Sivathasan provided medical advice to Patient E both by phone and by SMS.
4. On 26 August 2022, Dr Sivathasan conducted a follow up appointment with Patient E where he provided medical advice relating to her cellulitis infection.
5. On 31 August 2022, Dr Sivathasan conducted a follow up appointment with Patient E where he again provided medical advice relating to her cellulitis infection.
6. On 5 September 2022 Dr Sivathasan examined the wound where the BCC had been removed from Patient E's arm, removed the final sutures from her forearm, and administered an IV infusion.

1. Between 25 July 2022 and 23 September 2022, Dr Sivathasan conducted around 151 consultations and appointments, in contravention of his non-practising registration.
2. The records show that these appointments for consultations were for a range of procedures such as penis augmentation, breast augmentation, facelifts, liposuction, administration of dermal filler, anti-wrinkle treatments, micro needling and IV infusions.

1. As we have said, Dr Sivathasan admits the facts asserted in Complaint One.
2. There are statements from Patients A, B, C, D and E and some of the records of Ignite Medispa in evidence.
3. We find that the HCCC has established that the conduct particularised in Complaint One occurred.
4. It is common ground that the word "practice" is not defined in the National Law.
5. We accept the definition of non-practising registration set out in the Medical Board of Australia and Ahpra's 'Non-Practising Registration FAQ' dated 29 July 2013, as reflecting the ordinary meaning of the expression:

"This type of registration is open to people who are not practising. It allows a person to remain on the register and to continue to use the protected title 'medical practitioner'. Anyone with non-practising registration must not provide medical treatment or opinion about the physical or mental health of an individual. They are not able to prescribe or to formally refer to other health practitioners...

Practice is any role, whether remunerated or not, in which the individual uses their skills and knowledge as a health practitioner in their profession. For the purposes of the Board's standards, practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession.

Under the National Law, medical practitioners with non-practising registration must not practise the profession. The definition of practice is intended to be broad and inclusive...."

1. We find that Dr Sivathasan, by engaging in the conduct particularised in Complaint One, was practising as a medical practitioner in contravention of s 75 of the National Law.
2. We find Dr Sivathasan guilty of unsatisfactory professional conduct.

1. In Complaint Two the HCCC asserts that Dr Sivathasan's prescribing was inconsistent with his non-practising registration.

(1) On 28 July 2022, Dr Sivathasan prescribed Amoxicillin 875mg and Clavulanic Acid 125mg to Patient J.

(2) On 10 September 2022, Dr Sivathasan prescribed Hydrocortisone Acetate 1% Ointment to Patient E.

1. Dr Sivathasan admits and we find that the documents in evidence establish that the conduct particularised in Complaint Two occurred.
2. Dr Sivathasan admits that prescribing is not permitted while holding non-practising registration.
3. We find that Dr Sivathasan, by engaging in the conduct particularised in Complaint Two, was practising as a medical practitioner in contravention of s 75 of the National Law.
4. We find Dr Sivathasan guilty of unsatisfactory professional conduct.

1. Section 139B(1)(e) of the National Law provides that a contravention of s 34A(4) of the Health Care Complaints Act 1993 (NSW) (the HCC Act) is unsatisfactory professional conduct.
2. Section 34A(4) of the HCC Act provides that, in the course of investigating a complaint, the HCCC can require a person to provide information, produce documents or give evidence that would assist in the investigation. The person must not, without reasonable excuse, fail to comply with the requirement.
3. On 22 September 2023 the HCCC served a s 34A Notice (the Notice) on Dr Sivathasan requiring him to provide information and produce documents. He replied on 4 November 2023.
4. The HCCC says that Dr Sivathasan failed to comply with the Notice, in several ways, without reasonable excuse.
5. Dr Sivathasan denies Complaint Three.
6. We note that Complaint Three overlaps with Complaint Four Particular 4.

1. In relation to Complaint Three, the HCCC says that Dr Sivathasan, who should have replied to the Notice by 6 October 2023, replied late, on 4 November 2023, and has not provided a reasonable excuse.
2. Dr Sivathasan says he has a reasonable excuse. The HCCC had asked for documents located in the United Kingdom which he received at the end of October 2023.
3. We accept that this is a reasonable excuse.
4. The HCCC also says that Dr Sivathasan's response to the Notice was incomplete because he refused to provide some of the information and documents required by the Notice on the ground that it constituted commercial aspects of Dr NS Pty Ltd, which operated Ignite Medispa, and that he could not see the relevance of that information. In circumstances where Dr Sivathasan described himself as operating Ignite Medispa through a company, stated that he was its sole operator and ultimately responsible, and also answered several other questions about the operations of the company in that letter, we do not accept that he had a reasonable excuse for failing to provide the information and documents.
5. Next, question 1(b) of the Notice asked for the names of the practitioners and support staff who had provided services to patients during the non-practising registration period. Dr Sivathasan replied that he could not accurately recollect the information and could not provide any details without access to the software records. However in cross examination before us he said that only he and a beautician worked at Ignite Medispa in that period. We accept the submission made by counsel for the HCCC that Dr Sivathasan should have said this in his reply to the Notice if he was trying to be candid with the regulatory authorities. He has not provided a reasonable excuse for failing to do so.
6. Next, question 1(c) of the Notice asked him whether he had ever personally consulted or performed any of the procedures set out in the Notice during the period of non-practising registration. Dr Sivathasan replied that he could not accurately recall and could not provide any details without access to the software records. However in cross examination before us he said he did not, in that period, perform any surgery. The list of procedures includes, for example, breast augmentation. We accept the submission made by counsel for the HCCC that Dr Sivathasan should have said this in his reply to the Notice if he was trying to be candid with the regulatory authorities. He has not provided a reasonable excuse for failing to do so.

1. Failure to provide information and documents without a reasonable excuse is a contravention of s 34A of the HCC Act.
2. We find Dr Sivathasan guilty of unsatisfactory professional conduct.

1. The HCCC asserts that the conduct in each Particular of Complaint Four was improper or unethical.
2. Section 139B(1)(l) of the National Law provides that any improper or unethical conduct relating to the practice or purported practice of the practitioner's profession is unsatisfactory professional conduct.
3. The terms "improper conduct" and "unethical conduct" are not defined in the National Law. They should be given their ordinary meaning: Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 at [16-18].
4. The relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong": Parker v Comptroller of Customs [2009] HCA 7 at [29]. If Dr Sivathasan's conduct was not in conformity with standards of professional conduct and practice it may be regarded as improper: R v Byrnes [1995] HCA 1; (1995) 183 CLR 501 at 514-515.
5. Unethical conduct is arguably a more serious matter than improper conduct. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to contravention of a professional code of conduct.

1. Between August and September 2022, Dr Sivathasan recorded false and/or misleading dates on prescriptions he issued to Patients E, F, G, H and I because he dated their prescriptions earlier than 23 July 2022, the date on which he commenced to hold non-practising registration.

1. Patient E said, and Dr Sivathasan admits, that she was prescribed medications on 10 August 2022 but the prescription she received was dated 21 July 2022, two days before Dr Sivathasan's non-practising registration commenced.
2. Dr Sivathasan draws a distinction between the date on which he prepared a prescription and the date on which he handed it to a patient.
3. Dr Sivathasan said it was his "usual practice" to, ahead of time, prepare a number of prescriptions for common combinations of medications for very common indications. For example, he had a set prescription for simple painkillers, and a set prescription for an appropriate course of antibiotics. He would then add the patient's name on the day he gave the prescription to the patient. In the interim he kept them in separate folders.
4. Dr Sivathasan admits that this practice was not appropriate, and that it would be misleading to someone who read the prescription.

1. We are satisfied that the practice described by Dr Sivathasan was misleading and improper.

1. In February 2023, Dr Sivathasan inappropriately deleted Ignite Medispa's account information and data with Cliniko, a practice management software, which contained patients' clinical records and appointment details for the period that he held non-practising registration.

1. Dr Sivathasan admits that Cliniko was used in the practice but denies that it was practice management software. Dr Sivathasan said it was only used to manage appointments. The practice management role, he said, was performed only by BP Premier, which Ignite Medispa started to use after it acquired Just.Cos.
2. We consider that Cliniko was practice management software. Patients on the Ignite Medispa's website would make an appointment by using the Cliniko software. As part of that process each patient would enter personal details including their name, date of birth and contact details and also the medical reason for the consultation. The patient, in some cases, was asked to pay a deposit for the appointment and Cliniko kept records about payments made by the patient.
3. Dr Sivathasan said that after he closed the business it made no sense for him to maintain the subscription for Cliniko as he was not going to use it. He cancelled the subscription. Dr Sivathasan said that when he made that decision he did not realise that he was under investigation.
4. We do not accept this evidence.
5. We are satisfied that Dr Sivathasan was on notice that he was being investigated when he cancelled the subscription. In our view this is clear from the email on 23 September 2022 from Ahpra to Dr NS Pty Ltd which Dr Sivathasan obviously read because it caused him to close Ignite Medispa :

"Dear Proper Officer

Concerns about your activities

... We have received information which indicates that Dr NS Pty Ltd may have been, and may continue to be, claiming that Dr Niroshan Sivathasan is a practising Medical Practitioner. We are concerned that Dr NS Pty Ltd may have contravened, and may be continuing to contravene, provisions of the National Law relating to claims that another person holds a type of registration that they do not hold and unlawful advertising.

I have been appointed inspector under section 239 of the National Law. It is my role to investigate this matter."

1. The letter was signed by "Inspector Criminal Offences Unit".
2. The transcript of the conversation between Dr Sivathasan and Cliniko is in evidence. It is clear that Dr Sivathasan wanted the records deleted:

"February 15, 2023

12:16 PM | Niro Sivathasan: Dear Joe, Re. Dr NS Pty. Ltd. T/A Ignite Medispa Subsequent to our discussion in November, I have closed my business. My former practice staff have downloaded patient information, and we no longer require Cliniko to maintain any registration details. As the practice's insurance shall be expiring and given the multiple concerns of data breaches in the medical sector, I am writing to advise that I don't need any registration details to be maintained. Therefore, please confirm that any backups of our account have all been securely deleted ... so that I may inform the insurer specifically with regard to the risk around potential compromise of patient confidentiality...

12:24 PM | Joe from Cliniko: Hi Niro,

I am happy to help out here by deleting your data permanently. As this process is permanent and irreversible, I'll need to make sure I'm deleting the correct account of which you're an owner of, run a verification, and get direct consent from you that you want to delete this account..."

1. Dr Sivathasan said he cancelled the subscription because he had privacy concerns about leaving patient information with a third party. We do not accept that this was a real concern in circumstances where he downloaded the records and caused them to be uploaded to Ignite Medispa's marketing software for purposes including sending newsletters. Dr Sivathasan does not now know where that marketing software is.

1. We are satisfied that causing the destruction of records containing patient information shortly after being notified that he was being investigated was both improper and unethical.

1. On 21 September 2023, Dr Sivathasan participated in an online interview with the HCCC under s 34A of the HCC Act and gave false and/or misleading evidence when he said Ignite Medispa used BP Premier as its practice management software, when in fact it did use Cliniko.

1. We have already referred to s 34A of the HCC Act giving the HCCC power to request information and documents from a person while investigating a complaint. The same section also gives the HCCC power to require that person to appear before the HCCC and give evidence that would assist in the investigation.
2. Dr Sivathasan participated in an interview pursuant to s 34A on 21 September 2023. In cross examination before us he accepted that, at that interview, he conveyed that Ignite Medispa had only used BP Premier as its practice management software, for example when he said:

"Question: Did you have any practise management software at Ignite?

Answer: Yes, yes, I did. BP Premier."

1. We have found that Cliniko was also being used as practice management software.
2. We find that the evidence Dr Sivathasan gave at the interview was incomplete and misleading.
3. We further find that the giving of incomplete and misleading evidence to the HCCC was both improper and unethical.

1. At the same interview, Dr Sivathasan gave false and misleading evidence when he said he told patients at the beginning of a consultation that he held a non-practising registration, when in fact he did not communicate this to at least Patients B, D and E.

1. The HCCC relies on the following passage in the transcript of the interview:

"Question: So the question was, what communications, if you had any, were sent to your clients to inform them of your change in registration status? So the change to non-practising registration?

Answer: Okay, so in terms of formal, like, emails or that kind of thing to inform everyone?

Question: Anything, really. Was there any communications given?

Question: Text messages, emails, phone calls, anything.

Answer: Okay. So as a rule of thumb, it's part of all of my introductions, you would say, you know, who I am. I'm licensed in Australia, licensed in the UK and so on. So during that period, I think it's logical I would have said something along the lines of "Dr Niroshan Sivathasan. I'm registered as a medical practitioner in Australia and also registered in the UK and practising in the UK and my plan is to move to Perth". So in terms of follow up, it would have been part of that spiel.

Question: To the client, so like, patients?

Answer: Well, yeah, yeah.

Question: Okay. So you would have just talked them through.

Answer: Well, I would have, yes of course, yeah. As in like, sorry, just to answer your question, what do you mean there?

Question: Yeah, because we're asking you if you had any communications with your patients about the change in your registration status from general registration to non-practising.

Answer: Okay, okay.

Dr Sivathasan's solicitor: But I think you've, I think you've answered that question, Dr Sivathasan. You've said that you talk to each one of them about it. I mean ... when if they inquired or came to you or whatever, but you did it in person.

Answer: Correct.

Question: Is that the case? Was that communicated in person or by any other means?

Answer: Yeah, I'd always mention it because one of the things was with this whole turf war between plastic surgery and non-plastic surgery or cosmetic surgery, general surgery, one of the things was of course to identify yourself, explain your training and your other credentials, where you're working and that kind of thing. That was almost like a rule of thumb that we would use for all the patients all the time.

Question: So you would in person clarify to your patients at the beginning that you were on a non-practising registration at the time?

Answer: I believe so." (emphasis added)

1. Dr Sivathasan does not now maintain that he always mentioned to patients that he held non-practising registration. On cross examination before us he said he only told a handful of surgical patients. He agreed that he did not want patients to know because they would wonder why and he considered that the reason was personal. He also accepted the evidence of Patients D and E, both of whom said he had not mentioned it.

1. We find that Dr Sivathasan did not always inform patients that he held non-practising registration during the relevant period and that he in fact only told a handful of them. We find that the evidence he gave at the interview was false and misleading.
2. We further find that the giving of misleading evidence to the HCCC was both improper and unethical.

1. As we have said, on 4 November 2023, Dr Sivathasan provided information to the HCCC, in response to a letter issued under s 34A of the HCC Act. The HCCC says the letter contained false and/or misleading evidence because Dr Sivathasan said Ignite Medispa used BP Premier as its practice management software, when in fact it did use Cliniko.
2. The Medical Board of Australia's 'Good medical practice: a code of conduct for doctors in Australia' (Code) required Dr Sivathasan to cooperate with any legitimate inquiry into any complaints procedure applying to his work (cl 10.11.1) and disclose to anyone entitled to ask for it, information relevant to an investigation into his conduct (cl 10.11.2).
3. Providing false or misleading information to the HCCC may amount to improper or unethical conduct, whether or not it was done deliberately or dishonestly: Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 at [52]- [54].

1. The HCCC says that Dr Sivathasan failed to disclose that he used Cliniko software at Ignite Medispa when he answered several of the questions.
2. We have found that Cliniko was practice management software and contained the data we have already described.
3. The relevant questions were:

(1) Question 1(a) in Section 1 of the letter asked for, inter alia, the names, dates of birth and contact details of patients Dr Sivathasan had seen while he held non-practising registration. In his reply Dr Sivathasan said the information had been held on BP Premier but he no longer had access to the server.

Cliniko's records contained that information. The records in Cliniko were deleted in February 2023 at the request of Dr Sivathasan.

We are satisfied that Dr Sivathasan's answer is incomplete and misleading and Dr Sivathasan should have disclosed that the information had been stored on Cliniko but he could no longer access it.

(2) Question 3(b) in Section 1 of the letter asked for details of the major commercial arrangements at Ignite Medispa including any practice management system. We are satisfied that Dr Sivathasan should have disclosed that Cliniko had been used.

(3) Question 1 in Section 2 sought records "from your aforementioned practice management software BP Premier Medical Software or elsewhere...for the patients listed in response to questions 1 and 5 above, including but not limited to ... Appointment booking/Administrative records."

Dr Sivathasan replied "I do not have access to BP Premier ..."

We are satisfied that Dr Sivathasan's answer is incomplete and misleading and Dr Sivathasan should have disclosed that the information had been stored on Cliniko but he could no longer access it.

1. The HCCC says the letter also contained false and/or misleading evidence when Dr Sivathasan said that Ahpra had seized his practice management software, when in fact this was not the case.

1. As we have said, on 21 September 2023 Dr Sivathasan participated in the s34A interview. He said he should be able to obtain some of the information they required from his practice management software BP Premier.
2. However in his s 34A letter dated 4 November 2023 Dr Sivathasan said he could not provide information stored on BP Premier as the local server had been in Ahpra's possession since late 2022 because it was investigating the conduct of other doctors who also used the server. Dr Sivathasan said he did not have access to that server nor that software.
3. In cross examination before us he said he became aware that the server had been seized shortly after this had allegedly occurred in November 2022.
4. The only basis for Dr Sivathasan's belief that Ahpra seized the server is a conversation he had with Dr Eranki. Dr Eranki had worked at Just.Cos at the rooms where the server was located but had retired in mid 2021.
5. Dr Eranki gave evidence. He said that in around September or October 2022 he had received a telephone call from the receptionist at Just.Cos informing him that two investigators had collected the server. Dr Eranki then called Dr Sivathasan to tell him.
6. However:

(1) In an email dated 23 April 2024 to the HCCC, Ahpra says:

"I can confirm as part of Ahpra Criminal Offences Unit's investigation we did not seize practice management software from NS Pty Ltd, Dr Sivathasan or Ignite Medispa (which is the trading name of NS Pty Ltd). I can confirm we did not seek information from BP Premier. We only obtained information from Cliniko (Red Guava) by issuing a notice to Cliniko and sought clinical notes/medical records. What we obtained I disclosed to HCCC."

This was repeated in a second email dated 3 May 2024.

(2) In an email dated 31 October 2024 to Dr Sivathasan, Ahpra says:

"I have made enquiries internally and confirm that Ahpra is not in possession of the server for Just Cos. and Ignite Medispa."

(3) Ahpra issued a Notice to Produce to Western Australia Police. They replied:

"Please note, during the investigation of ... a 'hard drive containing patient medical records' was not seized by, nor provided to, the Western Australia Police Force.

Therefore, there are no documents to produce in accordance with the Notice."

(4) An HCCC file note dated 3 May 2024 records a telephone conversation with the legal team at BP Premier to discuss the s 34A notice it had received.

"He explained that they could not find any records of Dr Sivathasan, Dr NS Pty Ltd or Ignite Medispa being a customer. They had also checked the ABN and could not find an customer. However he was able to find an account for "Just Cos Surgery" located in WA, which was linked to some of the ABNs, but he said that their account was deactivated in October 2021. He confirmed that even if there was an active customer, BP Premier does not have access to patient/client data as they do not hold any data centrally. The nominated person within the practice would need to access it through a special subpoena portal."

1. There is no probative evidence of Ahpra having seized the server. Dr Sivathasan's conversation with Dr Eranki did not provide a sufficient basis for Dr Sivathasan to unqualifiedly assert that it had been seized by Ahpra.

1. We are satisfied that the information was misleading because it was incorrect and Dr Sivathasan had an insufficient basis for the making of the assertion.
2. We find that this conduct was improper and unethical.

1. We find Dr Sivathasan guilty of unsatisfactory professional conduct.

1. The HCCC says Dr Sivathasan is guilty of professional misconduct as he has:

(1) Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and/or;

(2) 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 his registration.

1. Dr Sivathasan denies Complaint Five.
2. In Chen v Health Care Complaints Commission [2017] NSWCA186 at [20], Basten JA explained:

"There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct."

1. We find that Dr Sivathasan's conduct was of a very serious nature and demonstrated a significant departure from accepted standards. It is sufficiently serious to justify suspension or cancellation of his registration. In arriving at this finding we take into account the following matters as indicators of the serious nature of that conduct.
2. In respect of Complaints One and Two, we take into account the large number of patients seen by Dr Sivathasan over that two month period.
3. In addition, we are satisfied that many of the patients who saw Dr Sivathasan during his period of non-practising registration would have believed Dr Sivathasan was fully registered to practise.
4. They would have been given this impression by Dr Sivathasan's and Ignite Medispa's websites. All of patients A, B, C, D and E looked at his website before booking their appointments.
5. Dr Sivathasan described himself as "One of Australia's leading cosmetic surgeons" and"Dr Niro Sivathasan Medical Director BSc (Hons). MB BS (Lond), DRCOG, AesthMed Board Certificate (AAAM), GradDipAesthMed (UK), PGCert BA, MRCS (Eng), AFAC, DU (Paris), FCPCA, FFMACCS, FACCS, FACBS, FAACS". Ignite Medispa was described as a "premium service led by doctors (cosmetic medicine and cosmetic surgery) and dentists ... and supported paramedical staff (wellness and beauty)". During the period on non-practising registration Dr Sivathasan was the only doctor at Ignite Medispa.
6. Telling patients that he was not registered to practice was contrary to Dr Sivathasan's marketing strategy. He agreed that his marketing emphasised his credentials, was designed to distinguish between doctors and others providing the same service, emphasised his knowledge and experience and agreed that he did this because he understood that even if a procedure could be done by someone else, some patients prefer a doctor.
7. Dr Sivathasan could not remember changing the information on the website before he received the Notice which caused him to close Ignite Medispa.
8. In addition, Dr Sivathasan admits he only told a handful of patients that he was not registered to practice. He did not instruct the reception staff to tell patients.
9. Of course medical practice is more than the categorising of the type of procedure performed. It includes taking a history, prescribing and examining a patient (even though Dr Sivathasan would not agree that looking at the abdomen of a patient to decide whether she needed liposuction or a tummy tuck was an examination). It includes performing services which could be done by someone without medical registration, if the patient had come to that person because they had held out that they were a highly experienced and qualified doctor applying their knowledge to the situation. This last issue is exemplified by Patient E who said:

"I firmly believed at the time, considering the extent of Dr Niro's surgical experience and procedures he offered, that he was a plastic surgeon. He talked a lot about plastic surgery and plastic surgeons and referring to himself as one. There is a testimonial on his site which refers to him specifically in his capacity as a 'plastic surgeon'. I later had cause to question this while getting a second opinion on the next step to rectify the substantial asymmetry following my left brow BCC excision...

In all our appointments and communications, he never once mentioned that he was on a non-practising registration. Had I known, I would not have continued with him, especially considering that some of the procedures he was to perform were on my face. My previous BCC surgeries (three) on my face were all performed by plastic surgeons by my specific choice."

1. This means that Dr Sivathasan not only practised as a doctor when he held non-practising registration, but patients were denied the opportunity to make an informed choice as to whether to go to a different doctor.
2. Next, we take into account that Dr Sivathasan was aware that, in at least some of the cases, he knew he was engaged in medical practice when holding non-practising registration. He admitted in cross examination that he knew, at the time, that at least some of the services he provided to the around 151 patients in that two month period were medical practice, including prescribing and taking a detailed history. When he admitted that he knew at the time that the removal of the BCCs and the suturing was the practise of medicine, he said it seemed technical to him and he thought he would get full registration soon.
3. Next, we are concerned about the evidence Dr Sivathasan gave in relation to the prescriptions he gave to patients during his period of non-practising registration. They were all written between the day after Dr Sivathasan was told when his non-practising registration would start and ended on the day before that non-practising registration started.
4. Dr Sivathasan described his prescribing practice, which he said was common and which we have already outlined. He said he printed a stack of them when he was winding down the business. He said he printed out prescriptions on 20 July 2022 (when his non-practising registration started on 23 July 2022) because he expected to use them over the next three days. He then said he printed out more prescriptions on 22 July 2022 because he expected to use them during the course of the day, being the last day of his general registration. He could not explain why there were no bookings shown for that day in Cliniko.
5. Ultimately, Dr Sivathasan said that as the business had not been sold, he had to keep working. He also said that he believed he could prescribe because of the conversation he had with Ahpra on 16 June 2022. His version of their conversation is in evidence. The person he spoke to did not say he could prescribe while holding non-practising registration.
6. Prescribing is also contrary to the definition of "practice" set out in the Medical Board of Australia's 'Non-Practising Registration FAQ' dated 29 July 2013 which we have set out above.
7. We consider Dr Sivathasan's explanation to be contradictory and implausible and are satisfied that Dr Sivathasan deliberately printed template prescriptions because he believed it was very likely he would use them after his general registration had ended.
8. Next, we accept the submission made by counsel for the HCCC that Dr Sivathasan only closed the business because he received the cease and desist notice. This means he might otherwise have stayed in practice without full registration for much longer than he did.
9. We also bear in mind that the scheme for the registration of practitioners depends on practitioners being candid and co-operative when they are being investigated. Dr Sivathasan was not candid or co-operative in several respects. We have made findings about the deficiencies in his statements at the interview on 21 September 2023 and his letter dated 4 November 2023. In addition we do not accept the evidence of Dr Sivathasan when he said he did not know, in February 2023, that he was being investigated when he directed that the Cliniko records be deleted. We have set out above how the Notice sent to him on 23 September 2022 clearly informed him he was being investigated. While we do not find that he deliberately destroyed the records to impede the investigation, his conduct is not consistent with a practitioner engaging with an investigation.

1. The solicitor for Dr Sivathasan submitted that:

(1) These proceedings are unlawful. The protective orders sought by the HCCC would be a penalty disproportionate to the guiding principles in s 3A of the National Law, namely that the health and safety of the public must be the paramount consideration. The alleged breaches are technical in nature.

We do not accept the submission. This is Stage 1 of the hearing, we are not making protective orders. In any event, we have borne in mind the guiding principles in making our determinations. Lastly, we do not accept that the issues raised in the Complaint are technical in nature.

(2) As there has not been any threat to the health and safety of the public, the HCCC is legally impotent to seek any penalty that impacts on Dr Sivathasan's registration because s 3A(2)(c) of the National Law mandatorily requires, as a precondition, that interference with the provision of health services may only be imposed if it is necessary to ensure their safe provision.

However the protection of the health and safety of the public is not limited to physical injury to a patient:

"The objective of protecting the health and safety of the public is not confined to protecting 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 ... 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.": Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].

(3) It was also submitted that it is reasonable to assume that the majority of the public would be far more concerned with the competence and qualifications of a practitioner than whether their registration was correctly recorded.

The issue in the proceedings is not whether Dr Sivathasan's registration was correctly recorded but whether he complied with his non-practising registration.

(4) Dr Sivathasan held non-practising registration from 23 July 2022 to 25 September 2022. It was submitted that Ahpra's actions and inactions caused an elongated non-practising period of 13 months which was grossly excessive noting the statutory period of three months after which a failure to make a decision to register is a deemed to be a refusal to register. Accordingly, it was submitted, the Applicant was relying on its own delay and inaction in these proceedings.

Firstly, the Applicant is the HCCC and not Ahpra. This was pointed out to Dr Sivathasan's legal representatives on 19 September 2023.

Secondly, the submission is factually incorrect. There is evidence explaining the delay which we do not propose to recount in full. It included the Regulators investigating complaints made by patients and Dr Sivathasan refusing to work under conditions on his registration proposed by Ahpra and the Medical Board of Australia.

Thirdly, we decline to find that this issue, even if established, could have any bearing on any of the decisions to be made by us as we do not understand there to be any legal basis for the making of the submission.

(5) Various submissions were made suggesting that subsequent decisions enabling Dr Sivathasan's general registration is binding on us in some way. In written submissions there is a reference to equitable estoppel.

"The belated application before this Tribunal compounded with the subsequent grant of General Registration with Conditions imposed on 14 October 2025 has put into place sufficient precautions in the interests of public health and any identifiable risk out of necessity or desirability against the National Law. In the circumstances, the Complaints before this Tribunal have been superseded by the Applicant's Grant of Registration with Conditions."

This submission includes reliance on a decision of the State Administrative Tribunal in Western Australia which was reviewing a decision made by the Medical Board of Australia on 25 September 2023 to grant Dr Sivathasan general registration with conditions.

On any view this could have no relevance because the submission misstates what occurred in the Tribunal:

"The Board submitted that the circumstances warranting the imposition of conditions were that:

.... (e) there was evidence that in September 2022 the Practitioner had practised medicine whilst holding non-practising registration.

With respect to this last matter, s 75(1) of the National Law provides that a health practitioner who holds non-practising registration must not practise the profession. Section 75(2) provides that contravention of s 75(1) does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. The Board did not invite the Tribunal to make a finding on the balance of probabilities that the Practitioner had breached s 75(1) by practising the medical profession within the meaning of the National Law. However, the Board submitted that AHPRA had told the Practitioner what fell within the meaning of the practice of medicine when he was granted non-practising registration. The Board invited us to find that, despite that information, the Practitioner had engaged in conduct that fell outside what he had been told he could not do. The Board submitted this conduct added to the evidence that the conditions the Board sought to impose were necessary or desirable." Sivathasan v Medical Board of Australia [2024] WASAT 67 at [42-43] (emphasis added).

1. In our view, a decision as to the terms on which the Medical Board of Australia should permit registration is a separate process to the making of orders after a hearing, where findings of fact about the practitioner's conduct must be made before action may be taken.
2. We propose to proceed in the usual way, which is to hear evidence, make findings and then make orders consistent with the National Law.

(1) Dr Sivathasan is guilty of unsatisfactory professional conduct (Complaints One to Four).

(2) Dr Sivathasan is guilty of professional misconduct (Complaint Five).

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.