Health Care Complaints Commission v Sundararajah

Amended Complaint

1. At the hearing, we gave the Commission leave to amend the Complaints filed with NCAT on 5 September 2016 by: 1. deleting from Particular 1 of Complaint 1 the words "as set out below" and in substitution inserting the words "on multiple of the following occasions" (the Chaperone Condition amendment), and 2. deleting from Particular 1 of Complaint 3, the words "mixed pattern of personality disorder" and in substitution inserting the words "late onset paranoid schizophrenia illness" (the Impairment amendment).
2. The amended complaint is set out in full at Annexure A to these reasons. For convenience we will refer to the amended complaint as "the Complaint".

Issues for determination

1. In determining the Complaint, the key questions we must address are: 1. Whether Dr Sundarajah contravened the Chaperone Condition in the manner alleged by the Commission in Particular 1 of Complaint 1. 2. If so, whether that conduct constitutes "professional misconduct". 3. Whether Dr Sundarajah suffers from "late onset paranoid schizophrenia illness". 4. If so, whether that condition detrimentally affects or is likely to detrimentally affect Dr Sundarajah's capacity to practise dentistry. 5. Whether Dr Sundarajah lacks the mental capacity to practise as a dental practitioner.
2. The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration.
3. The authorities have cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1].

Complaint 1: Contravention of the Chaperone Condition

1. Particular 1 of Complaint 1 alleges that Dr Sundarajah contravened a condition to which his registration was subject, namely the Chaperone Condition, in that he "practised dentistry on female patients over the age of 15 years … without a chaperone being present at all times on multiples of the following occasions" that is, the 13 consultations listed in Particular 1 of Complaint 1 (the listed consultations).
2. The Chaperone Condition was imposed on Dr Sundarajah's registration under s 41P of the National Law following Dr Sundarajah's referral to an Impaired Registrants Panel. The condition was in the following terms: The practitioner is not to practise dentistry on female patients over the age of 15 years, unless there is present at all times a female adult member of the practice staff. The member (or members) of the staff must be approved by the Dental Council as satisfactory chaperones. …
3. A condition in similar terms had been imposed on Dr Sundarajah's registration, six months earlier by the Dental Council.
4. On 23 March 2015, Dr Sundarajah commenced work in a dental practice in Cairns, Queensland. He left the practice on 13 April 2015 after working a total of four days, spread over a few weeks. Throughout the period he was employed at the practice, dental assistant Sarah Barnes acted as Dr Sundarajah's chaperone. As required, Ms Barnes kept a log recording all consultations where Dr Sundarajah treated female patients over the age of 15, recording the patient's name and the date and time of the consultation (the chaperone log). Ms Barnes' signature appears alongside each entry in the log. The 13 listed consultations are taken from the chaperone log.
5. In an undated note in response to a request for information from the Dental Council of NSW, Ms Barnes wrote that Dr Sundarajah "did not always leave the room" when she had to step outside to develop X-rays or obtain instruments. She wrote that when she raised her concerns, Dr Sundarajah responded by saying it was OK providing he sat outside the door or a metre away from the patient. She stated that Dr Sundarajah's response made her "quite frustrated" as she was "trying to do the right thing".
6. In a statement provided to the Commission dated 13 November 2015, Ms Barnes wrote that "almost as soon as he commenced at the practice", Dr Sundarajah failed to comply with the Chaperone Condition. She wrote that initially when she left the consultation room, Dr Sundarajah stood at but not outside the door to the room, but over time he remained in the room.
7. Ms Barnes stated that when she raised her concerns, Dr Sundarajah said words to the effect "[the Chaperone Conditions] are all crap anyway". Ms Barnes claimed Dr Sundarajah said he had been told by the principal of the practice, Dr Ockert Fourie, that providing he remained at the door of the consultation room it was OK not to leave the room when she was not present. She wrote that when she reported that conversation, Dr Fourie denied making the statement attributed to him by Dr Sundarajah.
8. In a hearing conducted on 3 June 2015, the Dental Council of NSW questioned Dr Sundarajah about the alleged breach of the Chaperone Condition. When asked how often the dental assistant would leave the room when he was seeing a female patient, he replied "hardly ever". (Transcript of proceedings, s150 National Law proceedings, Dental Council of NSW, Associate Professor W Reilly; Dr S Messner, 3 June 2015, p 23).
9. In these proceedings, Dr Sundarajah said that during those consultations where the Chaperone Condition applied, Ms Barnes was with him "99% of the time". He stated Ms Barnes "rarely" left the room but conceded she did so from time to time to attend to tasks, including answering the phone (the practice did not employ a receptionist), obtaining equipment and developing X-rays. He stated that he had intended to fully comply with the condition and his failure to do so was a "settling issue". He stated that the reason he remained in the consultations rooms while Ms Barnes was absent was because he did not want the patient to feel "abandoned".

Consideration

1. It falls to the Commission to establish that on "multiple of" the listed consultations Dr Sundarajah was present in the consultation room with the subject patient, in the absence of Ms Barnes.
2. Dr Sundarajah admits that during some of consultations which enlivened the Chaperone Condition, he sometimes remained in, or at the door of the consultation room when Ms Barnes left the room to attend to various tasks. However, there is no direct evidence to assist us determine whether as alleged by the Commission, this occurred on multiple occasions. Neither Dr Sundarajah nor Ms Barnes gave an estimate of the number of times this occurred. Ms Barnes was not available to give oral evidence in these proceedings. The chaperone log provides no assistance as it simply lists the 13 consultations that were subject to the Chaperone Condition.
3. Despite the lack of direct evidence, for the following reasons we conclude that the evidence taken as a whole supports the inference being drawn that on "multiple of" the listed consultations, Dr Sundarajah was present in the consultation room with the subject patient, in the absence of Ms Barnes. First, the statements prepared by Ms Barnes reveal that the practice was not uncommon. In her initial response to the Dental Council she wrote that the contraventions started "almost as soon as [Dr Sundarajah] commenced at the practice". Further she points to a change over time, which indicates a the contravention was repeated: "[I]nitially he would stand at the door but over time he remained in the room". Second, while Dr Sundarajah was at pains to point out that Ms Barnes left the room only for a short period, often a matter of minutes (a proposition which is not contested), the effect of his evidence was that it was a routine occurrence. Third, it is not implausible that Ms Barnes would be required to leave the room for short periods to attend to various tasks, such as answering the phone and obtaining equipment.
4. Whether, as Dr Sundarajah contends, the contravention was inconsequential or was of a technical nature may be relevant to the question of whether it amounts to professional misconduct but is irrelevant to the factual question of whether the Chaperone Condition was contravened.
5. Particular 1 of Complaint 1 is established.

Complaint 2: "professional misconduct"

1. Each contravention of the Chaperone Condition (the offending conduct), amounts to "unsatisfactory professional conduct" within the meaning of s 139B(1)(c)(i) of the National Law: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- … (c) A contravention by the practitioner (whether by act or omission) of- (i) a condition to which the practitioner's registration is subject; or …
2. Therefore the issue to be determined is whether, as the Commission contends, the offending conduct also constitutes "professional misconduct" within the meaning of s 139E of the National Law: MEANING OF "PROFESSIONAL MISCONDUCT" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
3. Dr Sundarajah claims that he made all efforts to comply with the Chaperone Condition. He contends that his failure to comply was in the nature of an "administrative error" or a "settling issue" and was not of a sufficiently serious nature to warrant suspension or cancellation.

Consideration

1. In evaluating whether the offending conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the offending conduct, any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.
2. In evaluating whether the offending conduct was "sufficiently serious" to warrant suspension or cancellation, we consider the following matters to be especially relevant.
3. First, this was not the first occasion Dr Sundarajah was found to be in breach of a condition imposed on his registration. In 2012, the Dental Tribunal found that Dr Sundarajah had failed to comply with the Chaperone Condition that was imposed on his registration in September 2011.
4. Second, it could not reasonably be suggested that it was impossible or impractical to comply with the Chaperone Condition. There is no evidence and nor is it suggested that the health or safety of patients would have been jeopardised had Dr Sundarajah left the room during Ms Barnes' short absences. When she was out of the room it was open to Dr Sundarajah to simply stand outside the door of the consultation room and remain in verbal communication with the patient.
5. Third, Dr Sundarajah was squarely on notice of Ms Barnes' opinion that by not leaving the room he was contravening the Chaperone Condition. Fourth, despite his claim that it was a "settling issue", there is no evidence to suggest that Dr Sundarajah raised the issue with Dr Fourie, or attempted to put in place measures to address his concerns about abandoning the patient.
6. In February 2015, Dr Sundarajah came before the Impaired Registrants Panel. In its reason for decision, the Panel discussed its misgivings about whether a Chaperone Condition was sufficient to protect the public given its concerns with the risk posed by Dr Sundarajah. The Panel noted that in the course of the February 2015 inquiry there had been a lengthy discussion with Dr Sundarajah about the proposed Chaperone Condition and the need for strict compliance: see Impaired Registrants Panel, Reasons for Decision, 27 February 2015, p 6. The Dental Council raised the same concerns six months earlier in its reason for deciding to impose a Chaperone Condition following the s 150 proceedings.
7. It is in that context that Dr Sundarajah's failure to comply with the Chaperone Condition must be evaluated. While there is no suggestion that anything untoward occurred on those occasions when Dr Sundarajah was left alone in consultation room with a female patient, it does not follow that that the contravention of the Condition was not serious. Dr Sundarajah had been entrusted to continue to practise notwithstanding a history of aberrant behaviour on the provision he complied with the conditions imposed on his registration. Yet he failed to comply with the Chaperone Condition on multiple occasions. The authorities have emphasised the need for health practitioners to "scrupulously observe" any conditions imposed on their registration. In Prakash v HCCC [2006] NSWCA 153, the Court of Appeal (at [74]) approved the comments of the Medical Tribunal in Re Dr Tan Than Le (Medical Tribunal decision, 20 September 2001 at 46, [95]): Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, 'containing as it does a grave criticism of the standard of the practitioner's conduct'.
8. We find that the instances of unsatisfactory professional conduct, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Dr Sundarajah's registration.
9. Complaint 2 is established.

Complaint 3: Impairment

1. Complaint 3 alleges that Dr Sundarajah suffers from late onset paranoid schizophrenic illness which does or is likely to detrimentally affect his ability to: 1. maintain appropriate standards of conduct towards professional staff and/or patients; and 2. engage with treating health practitioners and/or therapists.
2. Dr Sundarajah disputes that he suffers from a late onset paranoid schizophrenic illness. In addition, he disputes that he is unable to maintain appropriate professional standards with staff and colleagues and engage with health practitioners.
3. Section 5 of the National Law defines impairment to include: [A] … mental impairment, disability, condition or disorder … that detrimentally affects or is likely to detrimentally affect … a registered health practitioner['s] … capacity to practise the profession…
4. In determining whether Dr Sundarajah has an impairment within the meaning of s 5 it is necessary to consider whether he is currently impaired: Caladine v Health Care Complaints Commission [2007] NSWCA at [11] per Beazley JA. Currency of impairment may be demonstrated by evidence of deficiency at a particular time combined with the absence of any evidence of any improvement since that time: Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 at [43]. To make a finding of impairment does not require the Tribunal to make findings as to a particular diagnosis. The question is whether the evidence demonstrates that a practitioner is afflicted by a condition that is detrimental or prejudicial to the orderly conduct of his or her mental or physical duties as a health practitioner: Grant v Health Care Complaints Commission [2003] NSWCA 73 at [12] per Meagher JA. In particular, it is unnecessary to make a diagnosis fitting a practitioner within the categories outlined in the DSM-IV/V: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [64] per Meagher JA.
5. It falls to the Commission to establish: 1. That Dr Sundarajah suffers from a current mental impairment, condition, disability or disorder, and 2. That the mental impairment, condition, disability or disorder does or is likely to detrimentally affect Dr Sundarajah's capacity to practise the profession of dentistry in the manner particularised in Particular 2 of Complaint 3.
6. Before considering these issues we briefly outline two complaints made about Dr Sundarajah, which are relevant to an understanding of the medical opinion about impairment.

Complaint by female solicitor

1. In June 2013 the Dental Council dismissed a complaint about the quality of treatment provided Dr Sundarajah to a patient. In the proceedings before the Council, Dr Sundarajah was represented by a female solicitor (the Solicitor). In February 2014, the Principal of the Solicitor's firm wrote to the Commission alleging that Dr Sundarajah had engaged in conduct that is "tantamount to stalking the Solicitor". The Principal detailed numerous attempts made by Dr Sundarajah to contact the Solicitor and to invite her to engage in a personal relationship. In correspondence with the Solicitor, Dr Sundarajah alluded to a prior personal association between himself and the Solicitor, which according to the Principal was "entirely fictional". The Principal wrote that despite two strongly worded letters sent by the directing Dr Sundarajah to stop contacting the Solicitor, he continued to attempt to contact her by various means, including via her personal Facebook page.
2. After being advised of the complaint, Dr Sundarajah sent a number of emails to the Principal, the Solicitor and another female member of the firm, these included (spelling as in the original): Ladies Like to know what is going on? R anyone of you honest enough to tell me Anyway, considering none of U have bothered to talk to me. Will be commming in on Monday anyway. Regards, Ray Sunda
3. Two months later Dr Sundarajah sent a further three emails to the Solicitor. In the final email, Dr Sundarajah wrote in closing: If I ever get analyzed or put to stupid tests anymore…… one day I will lose it and cane every male pussy-lawyer in yr firm!
4. When questioned in these proceedings about the conduct in relation to the Solicitor, Dr Sundarajah said "It was a personal matter and I'll leave it at that".

Complaints made by dental staff about Dr Sundarajah

1. In April 2014, Dr Fourie notified AHPRA that Dr Sundarajah's employment had been terminated following numerous complaints from female staff members about inappropriate remarks alleged to have been made by Dr Sundarajah. He wrote that staff were "ready to resign should [Dr Sundarajah] stay on".
2. Dr Sundarajah denies making inappropriate comments while employed at the Cairns practice. He claims that the reason he left the practice was because there was insufficient work to support a second dentist.
3. In an undated statement in response to a request for information made by the Dental Council, Ms Barnes wrote that Dr Sundarajah made her and other female staff members "feel uncomfortable and emotionally sick". In a subsequent statement provided to the Commission she wrote that on the days he was not working, Dr Sundarajah "hung around the practice". She wrote that often while she was mopping or vacuuming, she would notice Dr Sundarajah "just standing there looking at me", which made her feel "very uncomfortable". She claimed that on one occasion Dr Sundarajah told her he had a plane in Innisfail, where she lived, and invited her to go flying.
4. According to Ms Barnes, Dr Sundarajah could sometime be "a bit flirty with patients in his demeanour". She claimed she observed Dr Sundarajah staring at patients if they wore low-cut or revealing tops.
5. She wrote that a dental assistant at the practice said to her "Ray creeps me out". In addition, she claimed that another dental assistant said "[Dr Sundarajah] just said to me he knows which buttons to push on a woman to drive them crazy". In addition, she claims that she overheard Dr Sundarajah making sexually inappropriate comments to the female dentist working at the practice and offering to massage the dentist's neck when she complained of a headache.
6. In a statement dated 22 October 2015, the sole female dentist employed at the practice confirmed Ms Barnes' claim that on one occasion Dr Sundarajah offered her a massage when she complained of neck pain. She wrote that Dr Sundarajah "may not have a good sense of personal space" and would sometimes come quite close to her. She wrote that while his actions did not make her feel uncomfortable or threatened, after learning about the complaints made about him from the Internet, she would often leave the clinic at lunchtime to avoid him. She wrote that having learnt of the previous complaints she found it difficult to objectively evaluate his behaviour. She confirmed Ms Barnes' claim that the dental assistants employed at the clinic were unhappy to work with Dr Sundarajah.
7. In these proceedings and those before the Dental Council in June 2015, Dr Sundarajah denied offering to massage the female dentist's neck, inviting Ms Barnes to go flying or saying to a dental assistant that he knew "how to please a woman". He dismissed as "ridiculous" the allegation that it was his practice to stare at Ms Barnes and female patients.

Medical opinion on whether Dr Sundarajah has a mental condition or disorder

1. The evidence in relation to the question of impairment was given principally by consultant psychiatrists, Drs Michael Giuffrida and Jonathon Phillips. Dr Phillips is Dr Sundarajah's treating psychiatrist. Each prepared a series of reports about Dr Sundarajah and gave oral evidence.
2. In October 2011 Dr Phillips first assessed Dr Sundarajah at the request of the Dental Council. In a report dated 16 November 2011, Dr Phillips wrote: "There is no convincing evidence that Dr Sundarajah has any current recognisable or diagnosable psychiatric disorder." However he went on to comment, "[Dr Sundarajah] appears to have flaws in his personality structure which allowed him to break professional barriers understood by him. I do not think he currently understands the full significance of this".
3. At the time of Dr Phillips' assessment, Dr Sundarajah's marriage had failed and he had had a number of professional disappointments. He had also behaved unprofessionally towards a patient in 2011. Dr Phillips noted that "unethical behaviour tends to occur more commonly where a practitioner works in isolation" and recommended that Dr Sundarajah work in a group practice. He considered that Dr Sundarajah may have experienced "adjustment problems with a depressed mood". Dr Philips considered that Dr Sundarajah had "learnt a hard lesson and was unlikely to offend again". He recommended a number of conditions that the Dental Council might apply to Dr Sundarajah's future practice, including that Dr Sundarajah be chaperoned during consultations and be required to see a psychiatrist at regular intervals.
4. Dr Giuffrida first saw Dr Sundarajah in October 2014. Like Dr Phillips, he did so at the request of the Dental Council. In a detailed report, he noted Dr Phillips' opinion of 2011 and came to a similar conclusion: "I have difficulty in coming to any clear or firm psychiatric diagnosis." He did, however, go on to write: I am most troubled by Dr Sundarajah's apparent throw-away comments regarding being monitored by some means and that it may have something to do with the police or possibly some other body that he was not prepared to expand upon. I am concerned that we may be witnessing an emerging late -onset paranoid disorder, that is a paranoid personality disorder structure, which may go some way to explain the obvious impairments of his judgment and insight in relation to his professional and sexual misconduct … I am of the opinion that on balance Dr Sundarajah suffers from an Impairment within the meaning of Health Practitioner Regulation National Law (NSW) in that I think that there is sufficient evidence that there is some significant psychological condition which I suspect is an underlying paranoid personality structure that causes specifically impairment of his judgment and insight in relation to a range of issues that probably affect almost every aspect of his life but not least the practice of dentistry.
5. Dr Giuffrida strongly recommended that Dr Sundarajah continue to receive psychiatric treatment.
6. On 27 February 2015, the Dental Council's Impaired Registrants Panel, reviewing Dr Sundarajah's case, noted Dr Giuffrida's opinion (as well as that of Dr Phillips in 2011). It observed that Dr Sundarajah had completed an ethics course but had terminated treatment with Dr Phillips notwithstanding the order made by the Dental Tribunal in February 2013 that he undergo psychiatric treatment. The Panel formed the view that "Dr Sundarajah had not gained any insight into his character or the way that his conduct was not a 'personal matter' but rather a matter that was entirely relevant to his practice of the profession".
7. In February 2016, Dr Giuffrida again assessed Dr Sundarajah. Again, Dr Giuffrida found Dr Sundarajah difficult to assess, much less diagnose. In a report dated 14 February 2016, he noted that Dr Sundarajah "behaved strangely and appeared quite bewildered in dealing with his questions". He wrote that Dr Sundarajah did not appear to be suffering from thought disorder but seemed to have "strange ideas" that Dr Giuffrida found hard to interpret. Dr Sundarajah was also "extremely guarded and quite adamant in his attitude that he not be required to reveal anything of himself".
8. Dr Giuffrida was troubled by Dr Sundarajah's "complete lack of insight" and "a number of aspects of Dr Sundarajah's pattern of behaviour in relation to female staff, patients and other persons". He was also troubled by his "gross lack of judgment" and his apparent refusal or incapacity "to engage meaningfully and usefully in any therapeutic relationship with a psychiatrist or clinical psychologist".
9. Dr Giuffrida was not sure of the underlying basis of Dr Sundarajah's condition but stated: "I expect that at the very least we are dealing with someone who suffers from a mixed pattern of personality disorder". He also thought that Dr Sundarajah had "huge relationship problems", the consequence of which was "to affect his capacity to work safely and competently with other staff and therefore patients in the future". He emphasised to Dr Sundarajah that if he was ever going to practise again he needed clinical treatment and "after much repetition gained the impression there was a glimmer of understanding" on Dr Sundarajah's part of his need for psychiatric or psychological help. Dr Sundarajah offered to resume treatment with Dr Phillips following that exchange.
10. In November 2016, Dr Giuffrida once again assessed Dr Sundarajah. In a report dated 23 November 2016, Dr Giuffrida noted some aspects of Dr Sundarajah's behaviour that caused him concern. While he found no evidence of thought disorder, he stated that "Dr Sundarajah's personality is at least very odd and eccentric, characterised by a decidedly strange and inappropriate, at times, affect and a style of thinking, logic and reasoning that is difficult to understand and follow." He did not detect delusional thinking but thought that Dr Sundarajah was "at least mildly, if not moderately, paranoid in his attitude and possibly his personality structure". He did not, however, think that he had any particular personality disorder and was of the view that Dr Sundarajah "does not clearly fit into a formal paranoid personality disorder structure".
11. On the question of impairment, while in previous reports Dr Giuffrida had been clearly of a view that Dr Sundarajah was, for the purposes of the law, impaired, on this occasion he was less sure and said that he was "somewhat loathe to make a formal finding of impairment within the meaning of the National Law without a clearer psychiatric diagnosis". He considered that Dr Sundarajah "may simply fall within a realm of difficult and complex people who demonstrate a pattern of dysfunctional interpersonal relationships rather than having a specific psychiatric diagnosis". But ultimately Dr Giuffrida was of the opinion that Dr Sundarajah suffered an impairment that had not been defined but which detrimentally affected his judgment and insight to a significant degree and that, on balance, his professional capacity was impaired.
12. In February 2017, Dr Phillips prepared a report for Dr Sundarajah at his request. In that report, dated 15 February 2017, Dr Phillips stated that Dr Sundarajah had complied with the directions of the Dental Council to attend for assessment and treatment by him. In the report he also said, "Whilst I have brought to your attention on various occasions your tendency to relate in a manner that is not easily understood by others, I am unable to diagnose you as suffering from any DSM-5 psychiatric disorder".
13. At the hearing on 23 March 2017, Drs Giuffrida and Phillips gave concurrent evidence. By the time they came to give that evidence both doctors had been provided with additional material, including material relating to Dr Sundarajah's employment in Queensland (the subject of Complaint 1) and the Solicitor Complaint and the subsequent disciplinary proceedings. Before giving oral evidence Dr Phillips had no knowledge of the Solicitor Complaint. In Dr Giuffrida's case he had also had the benefit of reading Dr Phillips's clinical notes and, of course, both experts had had an opportunity before giving oral evidence of meeting to discuss the case. In the course of that evidence, they were asked by the Tribunal whether they were able to provide a specific diagnosis.
14. With the additional evidence that he had before him at the hearing, Dr Giuffrida concluded he was now able to offer a diagnosis: [S]adly and unfortunately, [Dr Sundarajah is] a man who has developed what I think is a persisting and unfortunately deteriorating psychotic illness and I think to best fit it into a DSM-5 category. I think probably this is a paranoid schizophrenic illness. .
15. Dr Phillips was then asked to comment on that opinion. He said: I will have to comment in a sort of series of steps. I have always thought from the beginning that Dr Sundarajah has some oddities in his personality and I choose the word fairly carefully, they're hard to define but they're unusual features in terms of personal space the way he relates. And sometimes a lack of focus on what is immediately under consideration. There were the two consultations in a much larger series of consultations where Dr Sundarajah had given me material which I thought may have been of a psychotic type but I was not drawn to make a diagnosis of psychosis in that on all other occasions there was nothing of that material that he raised or that I was able to find in the course of our interaction. So I have not made at any stage a diagnosis of a formal psychiatric disorder. On the other hand, I have always felt and continue to feel that there are personality oddities which don't fit into the usual classification of a personality disorder but the Tribunal needs to be aware of them. The situation changed I have to say at 10.45 this morning when I was asked, as was Dr Giuffrida, to look at a particular group of documents and I was quite alarmed by the material in [the Solicitor complaint] documents, in particular what appeared to be a doctor's inability to know that the woman in question, a lawyer within the …, did not have any wish for contact with him and yet he persisted to make contact with her in various ways and that some of the communications to her were quite hard to follow. There was what I would call a loosening of thought associations in the documents, not semi-formal or thought disorder but a loosening of associations and I became alarmed because of two features mainly, what appeared to be, if I read the material correctly, an inability of the doctor to understand that this particular woman wished no contact with him but also by the structure of the written material. Now, I appreciate that email is a strange method of communication and the English language falls apart often when people send emails and that may help to explain the situation but I stand by my view that this was sufficiently unusual, sufficiently odd and sufficiently hard to follow to alert me to the possibility of some loosening of thought processes. So, where do I stand at this point? I well understand Dr Giuffrida's consideration of the diagnosis of paranoid schizophrenia and indeed there is no option but to put it forward as a hypothesis. I can't prove it. I am more of the view that the doctor has an unusual and odd personality and much of his behaviour will be explained on the basis of that but certainly the issue of a longer standing categorical psychiatric illness within the schizophrenia or the paranoid spectrum has to be put forward for discussion. There would be no option but to put it forward. (Transcript of proceedings, Health Care Complaints Commission v Sundarajah, NCAT, PM Britton, T Boland, , J Ironside, C Berglund, pp12,13)
16. Dr Phillips stated that in light of the new material he would strongly urge Dr Sundarajah to commence a trial of anti-psychotic medication and continue with non-pharmaceutical treatment. Dr Giuffrida concurred with that opinion.
17. When asked about Dr Sundarajah's ability to practise safely without trialling anti-psychotic medication, Dr Phillips responded that on the information now available, principally that relating to the Solicitor complaints he had doubts. Dr Giuffrida agreed: I think that there would be major impediments to his capacity to practise safely. I'm not talking in a technical sense, I'm talking in terms of the necessary interrelational aspects of dentistry and dealing with - working with and dealing with staff and patients socially, appropriately. (Transcript of proceedings, Health Care Complaints Commission v Sundarajah, NCAT, PM Britton, T Boland, J Ironside, C Berglund, p 19)
18. Dr Phillips agreed: Yes, I think probably Dr Giuffrida and I share a similar view here, that we're - I have no reason to doubt Dr Sundarajah's skills as a dental practitioner but it's the subtle - to pick up your word "interactional aspects" of being a health practitioner which are of concern to me and heightened substantially by the [the Solicitor complaint] material.
19. In answer to a question about Dr Sundarajah's ability to practise safely if appropriate conditions were imposed, Dr Philips answered: First thing this morning, I would have said, yes, it's probable that there's conditions and quite stringent conditions, that could be the case but I reiterate that I had a change of heart in the course of the morning and I think at this point I would recommend that Dr Sundarajah undertake a course of antipsychotic medication and that this matter be addressed at a more appropriate time when he is sufficiently - he's been on medication for a sufficient period to make a judgment about whether it is working or not. (Transcript of proceedings, Health Care Complaints Commission v Sundarajah, NCAT, PM Britton, T Boland, J Ironside, C Berglund, p 22)
20. Although Dr Phillips was reluctant to state that Dr Sundarajah suffered from a recognised psychiatric condition, he conceded that he may have suffered a mental impairment (at least at the time of the conduct the subject of the Solicitor Complaint). Dr Phillips was not aware of that information until the day of the hearing and as a result of reading it he was troubled, as the extract from the transcript above indicates. In answer to a question from counsel for the Commission, Dr Phillips discussed the question of whether a condition or impairment detrimentally affects a person's capacity to practise. Dr Phillips said: Well, if a person is unable to understand, to interpret, to read the views of another person which was the case with the [female] solicitor, then that would suggest strongly that the person at that time lacked the capacity to practise safely because of an impairment and I am using the word "impairment" not particularly comfortably but it's there in the National Law. (Transcript of proceedings, Health Care Complaints Commission v Sundarajah, NCAT, PM Britton, T Boland, J Ironside, C Berglund, p 14)
21. While Dr Phillips came at the hearing to a view that at the time of the incident involving the female solicitor, Dr Sundarajah had been impaired and could not practise safely, he was not prepared to extrapolate from that incident that Dr Sundarajah currently suffered from that same impairment. He said that his last contact with Dr Sundarajah had not suggested that he did.

Response to Dr Phillips' revised opinion

1. As it was not until the experts gave oral evidence that Dr Sundarajah became aware of Dr Giuffrida's diagnosis of a schizophrenic illness and that Dr Phillips no longer stood by the opinion expressed in his report of 15 February 2017, we decided with the Commission's consent, to give Dr Sundarajah the opportunity to obtain further medical evidence.
2. In answer to that invitation, Dr Sundarajah provided lengthy written submissions critical of the Dr Giuffrida's opinion. He did not provide any additional medical evidence. There was a significant period between the hearing and the receipt of final submissions because of the delay in obtaining transcript of the oral evidence given by Drs Giuffrida and Phillips.

History of psychiatric treatment received by Dr Sundarajah

1. Since recommencing treatment with Dr Phillips in July 2014, Dr Sundarajah has seen Dr Phillips every few months.
2. In a letter to the Dental Council dated 8 November 2016, Dr Sundarajah's GP wrote that Dr Sundarajah has been "regular in his attendance and diligent with his health problems". He wrote that Dr Sundarajah enjoyed excellent physical health and "remains in robust psychological health despite his professional difficulties".
3. In early 2016, Dr Sundarajah was referred by his GP to psychologist, Sheridan Mason. In a report to the Commission dated 28 February 2017, Ms Mason wrote that Dr Sundarajah attended regular monthly sessions. Treatment initially focussed on cognitive behaviour therapy. She wrote that Dr Sundarajah is "socially aware and I do not see any inappropriate behaviour or offensiveness". She stated that during therapy she discussed with Dr Sundarajah how different groups and cultures had different expectations with regards to friendships/relationships and how expectations can sometimes be misunderstood. In her opinion, Dr Sundarajah shows no "signs of clinical paranoia as per DSM V".

Does Dr Sundarajah currently suffer a mental disorder or condition?

1. The Commission submits that we should find that Dr Sundarajah currently suffers an impairment within the meaning of s 5 of the National Law. Dr Sundarajah disagrees. He submits that Dr Giuffrida's opinion is nothing more than a "hypothetical diagnosis" and points out that it has changed over time. He disputes that the conduct the subject of the Solicitor Complaint has any bearing on his capacity to practise dentistry, contending it was "purely personal". He disputes the allegations made by Ms Barnes about his conduct while working at Dr Fourie's practice.
2. It is evident from the difficulty that both psychiatrists had over a number of years in coming to a diagnosis that Dr Sundarajah's condition or mental state is not readily categorised. Each has wavered between concluding that Dr Sundarajah is a person who is "quite odd" with flaws in his "personality structure", and that he suffers from some form of psychiatric condition. The evidence as to a specific diagnosis is somewhat ambiguous and ill defined. This is not because there is little or no evidence of a condition but because of the difficulty in defining or diagnosing it from the signs and symptoms. Dr Giuffrida, over time, as he gained a more detailed history and had longer time to consider Dr Sundarajah's presentation and other information, carefully considered all the complexities of the case and came, ultimately, to a view that Dr Sundarajah had a recognisable psychiatric diagnosis. Dr Phillips, who, until the date of the hearing, had an incomplete history, was also very cautious about arriving at a diagnosis but conceded that the diagnosis reached by Dr Giuffrida was "certainly open".
3. Nothing that Dr Sundarajah put to us suggests that the opinions of two very cautious and careful consultant psychiatrists are incorrect or do not have substantial basis. His own submissions are highly personalised but do not provide much assistance in analysing the psychiatric evidence. His history is troubling and suggests that without treatment and careful management his condition is likely to detrimentally affect his capacity to practise dentistry. Although, since July 2014, he has complied with the Dental Council's direction to seek treatment from Dr Phillips, the fact that Dr Phillips was taken unawares by the Solicitor Complaint suggests that he has not fully and frankly engaged in a therapeutic relationship but has sought to obscure or conceal a very significant part of his history from Dr Phillips. This in turn suggests that he lacks insight into his own condition.
4. In our view, therefore, it is more likely than not that Dr Sundarajah is afflicted by a mental disorder or condition. On the evidence before us it seems more likely than not that the condition is a form of late onset paranoid schizophrenic illness. If that is too specific a finding, we remain, nevertheless, of the view that Dr Sundarajah suffers from some form of mental disorder or condition.
5. Although it is now some time since the conduct the subject of the Solicitor Complaint and the incident that triggered the first suspension of Dr Sundarajah's registration, on the evidence before us, particularly the reports and oral evidence of Dr Giuffrida, we think that it is more likely than not that the condition remains current. Of particular concern to us is the fact that while Dr Sundarajah has seemingly gone through the motions of seeking treatment from Dr Phillips, he has not been frank and open, meaning that the condition may not have been treated in any substantial way.

Does that mental disorder or condition detrimentally affects Dr Sundarajah's capacity to practise dentistry?

1. Evidence was given in the hearing to the effect that if Dr Sundarajah's condition is a late onset paranoid schizophrenic illness and is well-advanced as Dr Giuffrida thinks, and as Dr Phillips concedes may be the case, it appears that Dr Sundarajah therapeutic regime should probably include a trial of anti-psychotic medication.
2. Drs Giuffrida and Phillips were each of the opinion that unless and until such trial is conducted it is unlikely that Dr Sundarajah will be able to "practise safely". Neither held concerns about Dr Sundarajah's technical competence but considered that his condition was likely to affect his ability to communicate and to engage with and relate to patients and staff appropriately and effectively.
3. There is reliable evidence that Dr Sundarajah acted inappropriately towards a female patient (in 2011) and towards the Solicitor (June 2013 to May 2014). While troubling, without testing the complaints made by members of Dr Fourie's practice we are reluctant to place too much reliance on them, especially given that we do not know whether, and if so, to what extent, the poor opinion held by the dental assistants about Dr Sundarajah was influenced consciously or otherwise by the knowledge that he had been accused of sexually assaulting a patient. The evidence reveals that was common knowledge within the practice.
4. The 2011 incident and the Solicitor Complaint suggests that Dr Sundarajah lacks an understanding of appropriate personal boundaries and appropriate interaction with female patients and colleagues. In reaching that conclusion we note Ms Mason's opinion that Dr Sundarajah is "socially aware" and that she saw "no evidence of any inappropriate behaviour or offensiveness".
5. While the evidence indicates that in the 18 months before the hearing, Dr Sundarajah has regularly attended his treating psychologist and psychiatrist, the failure to disclose the Solicitor complaint to Dr Phillips and possibly Ms Mason, suggests any treatment received was sub-optimal.
6. We find that Dr Sundarajah's condition detrimentally affects or is likely to detrimentally affect Dr Sundarajah's capacity to practise the profession of dentistry in the manner particularised in Complaint 3, Particular 2.

Complaint 4: Competence

1. In Complaint 4 the Commission alleges that Dr Sundarajah is not competent to practise the profession of dentistry within the meaning of s 139(a) of the National Law: 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; and …
2. The two issues of impairment and competence overlap to a considerable degree.
3. As we have seen, s 5 of the National Law deals not only with impairment but also with the consequences of it. An impairment is relevant for current purposes only if it has as detrimental effect or potentially detrimental effect on a person's capacity to practise. Inevitably, if a finding of impairment that has such an effect is made, it raises the issue of the practitioner's competence to practise.
4. A finding of impairment, however, does not necessarily lead to a finding that a practitioner lacks competence to practise. In Lindsay v Health Care Complaints Commission [2010] NSWCA 19 (Lindsay), (at [168]-[170]), Sackville AJA drew a careful distinction between the two concepts: 168 …There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act… 170 The absence of further reasons supporting the finding of lack of competence perhaps suggests that the Tribunal assumed that the existence of an impairment, at least of the kind attributed to the appellant, necessarily meant that he lacked the mental capacity or communication skills to practise medicine. Such an assumption would be incorrect. Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances.
5. Nevertheless, sometimes, as Giles JA noted in Lindsay (at [2]), the evidence of impairment and its detrimental effects will so closely overlap that a finding of impairment will inevitably lead to a simultaneous finding of lack of competence.
6. Competence as a health practitioner is not measured solely by technical competence. It is but one aspect of a practitioner's skill set. To practise as a dental practitioner requires not mere knowledge and dexterity with the instruments or tools of the profession but a much wider range of skills and competencies including dealing with patients, staff and others in an ethical way. Ethical conduct requires insight into the standards required of a practitioner and the capacity to meet those standards.
7. Dr Sundarajah's history, combined with the expert evidence of current impairment, raises concerns about his capacity to deal with female patients, staff and others, in an appropriately professional way. If dealing with patients, staff and others in an appropriate and ethical way is a core competency for a health professional, it is clear that at least for some periods in the past Dr Sundarajah lacked competence in that way The evidence before us that suggests not only that Dr Sundarajah is suffering from a late onset paranoid schizophrenic illness, that he has a very complex personality and difficulty relating appropriately to others, especially women, and that these aspects of his personality have had and continue to have a detrimental effect on his capacity to maintain appropriate standards of behaviour as a health practitioner. The direct consequence is that he lacks the necessary competence required of a health practitioner.
8. It may be with appropriate treatment that he will overcome his impairment, or at least manage it to a sufficient degree that he could in future be considered competent for the purposes of registration. At this time, however, our view is that he is not.
9. Complaint 4 is established.

Protective orders

1. The Commission seeks the following: 1. The cancellation of Dr Sundarajah's registration and an order that he not seek review of the cancellation order for three years. 2. An order under s 149C(5) of the National Law prohibiting Dr Sundarajah from providing "health services" unless and until he is registered as a health practitioner. 3. An order for costs.
2. Dr Sundarajah did not address in his final submissions the issue of what if any protective orders should be made. Given that he is self-represented, in fairness dictates that he be given a further opportunity to do so. The matter is listed for a directions hearing on 24 January 2018 at 9:15 am to determine the most appropriate way to determine this final issue.

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

Amendments 07 December 2023 - Case title updated: from Sundarajah to Sundararajah 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: 07 December 2023