Health Care Complaints Commission v Tan

The Evidence

1. The Tribunal had before it the submissions of the applicant filed 18 December 2015, the submissions of the practitioner filed 1 February 2016, and the submissions in reply by the applicant filed 12 February 2016.
2. The following evidence was before the Panel: 1. Application and Complaint 1. Amended Complaint 2. Certificate of Registration Status from AHPRA 3. Certificate of Registration Status from Medical Council of NSW 1. Complaint of patient A dated 20 June 2012 2. Complaint of patient B dated 20 December 2011 3. Complaint of patient C dated 14 December 2011 4. Complaint of patient D dated 18 November 2011 5. Certificate of Conviction of 2 July 2014 6. Statement of agreed facts of 28 June 2013 7. Transcript of Sentencing proceedings of 27 February 2014, (Evidence from Dr Michael Diamond from page 17 and Dr Jonathon Phillips from page 44) 8. Transcript of Sentencing proceedings of 28 February 2014, (Evidence of Dr Jonathon Phillips continued from page 2) 9. Judgement on Sentence by Judge Bennett of 6 March 2014 10. Summary of sentencing compiled by Judge Bennett of 6 March 2014 11. Pre-sentence report from Corrective Services of 8 October 2013 12. Expert Certificate of Dr Michael Diamond of 3 February 2014 13. Report from Psychiatrist Dr Michael Diamond of 3 February 2013 14. Report from Psychiatrist Dr Michael Diamond of 8 February 2014 15. Statement of Ms Lara Winton of 17 November 2012 16. Victim Impact Statement of patient D of 25 October 2013 17. Victim Impact Statement of patient A of 27 October 2013 18. Victim Impact Statement of patient C of 31 October 2013 19. Crown Submissions on Sentence of 27 February 2014 20. Police statement of patient A of 21 June 2012 21. Police statement of patient A of 28 July 2012 22. Police statement of Patient B of 23 January 2012 23. Police statement of Patient B of 1 March 2012 24. Police statement of Patient B of 22 November 2012, annexing her Commission statement of 29 October 2012 25. Commission statement of patient C of 30 January 2012 26. Police statement of patient C of 16 February 2012 27. Police statement of patient C of 14 March 2012 28. Police statement of patient C of 7 June 2012 29. Commission statement of Patient D of 9 December 2011 30. Police statement Patient D of 27 January 2012 31. Police statement of Patient D of 22 November 2012 32. Police statement of Patient C of 12 January 2012 33. Letter from the Commission to Dr Tan of 16 December 2011 34. Letter from John Van De Poll on behalf of Dr Tan of 27 January 2012 35. Letter from the Commission to Dr Tan of 1 March 2012 36. Letter from John Van De Poll on behalf of Dr Tan of 30 March 2012 37. Letter from the Commission to Dr Tan of 19 November 2012 38. Letter from Karen Espinner of Nyman Gibson Stewart Lawyers on behalf of Dr Tan of 4 December 2012 39. Letter from John Van de Poll on behalf of Dr Tan of 22 July 2013, attaching tab 58 40. Letter from Mr John Van de Poll to the Medical Board of Australia of 22 July 2013 41. Section 40 letter to Dr Tan of 18 March 2014 42. Email from Karen Espinner of Nyman Gibson Stewart Lawyers on behalf of Dr Tan of 23 April 2014 43. Good Medical Practice, A Code of Conduct for Doctors in Australia (Medical Board of Australia July 2010) 44. Sexual Boundaries: Guidelines for doctors (Medical Board of Australia 28 October 2011) 45. Good Medical Practice: Code of Professional Conduct (former NSW Medical Board operational until 30 June 2010) 46. Policy on Sexual Misconduct (former NSW Medical Board operational until 8 November 2011) 47. Statement by Ong-Ming Tan of 12 November 2015 48. Submissions on sentencing on behalf of Mr Tan of 26 February 2014 49. Dr Jonathan Philips' Report of 25 February 2014 50. Dr Jonathan Philips' Report of 5 November 2013 51. Professor Gordon Parker's Report undated 52. Janice Russell Testimonial of 9 September 2006 53. Dr Nicholas Cassimatis Testimonial of 21 October 2013 54. Dr Darshini Jeyaratnam Testimonial of 27 October 2013 55. Dr Gregory See Testimonial of 25 October 2013 56. Dr Mark Shillito Testimonial of 4 November 2013 57. Dr Mary Roberts Testimonial of 28 October 2013 58. Anne White Testimonial of 25 October 2013 59. Dr Judith Craig Testimonial of 29 October 2013 60. Dr Subba Singh Testimonial of 29 October 2013 61. Dr Ganapathi Murugesan Testimonial of 25 October 2013 62. Ong-Ming Tan - personal chronology

The Amended Complaint

1. The amended complaint and the particulars contained in it were admitted by the practitioner.
2. They are: The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 908(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") hereby complains that Dr Ong Ming Tan ("the practitioner") of PO Box 6203 PYMBLE NSW 2073 being formerly registered as a medical practitioner under the National Law:

Complaint One Has been convicted of criminal offences in the state of New South Wales.

Background to Complaint One On 27 February 2014, at the District Court at Sydney, the practitioner pleaded guilty to four (4) offences under section 61M of the Crimes Act 1900 (NSW) of assault with an act of indecency in circumstances of aggravation. On 6 March 2014, the practitioner was convicted of each of the offences and sentenced to an aggregate term of imprisonment of three (3) years with a non-parole period of two (2) years with a condition that upon release on parole, the practitioner is to undergo psychiatric/psychological counselling as directed. At all relevant times the practitioner was a registered medical practitioner practising as a psychiatrist.

Particulars of Complaint One 1. On 6 March 2014, the practitioner was convicted of an offence under section 61M(1) of the Crimes Act 1900 (NSW) that between 26 May and 24 June 2010 at Greenwich in the state of New South Wales, the practitioner did assault Patient A and at the time of the assault did commit an act of indecency upon Patient A, in circumstances of aggravation, Patient A being a person under the authority of the practitioner by reason of the practitioner being Patient A's treating psychiatrist. 2. On 6 March 2014, the practitioner was convicted of an offence under section 61M(1) of the Crimes Act 1900 (NSW) that on 22 August 2011 at Greenwich in the state of New South Wales, the practitioner did assault Patient B and at the time of the assault did commit an act of indecency upon Patient B, in circumstances of aggravation, Patient B being a person under the authority of the practitioner by reason of the practitioner being Patient B's treating psychiatrist. 3. On 6 March 2014, the practitioner was convicted of an offence under section 61M(1) of the Crimes Act 1900 (NSW) that between 1 and 14 August 2011 at Greenwich in the state of New South Wales, the practitioner did assault Patient C and at the time of the assault did commit an act of indecency upon Patient C, in circumstances of aggravation, Patient C being a person under the authority of the practitioner by reason of the practitioner being Patient C's treating psychiatrist. 4. On 6 March 2004, the practitioner was convicted of an offence under section 611M(1) of the Crimes Act 1900 (NSW) that on 6 November 2011 at Greenwich in the state of New South Wales, the practitioner did assault Patient D and at the time of the assault did commit an act of indecency upon Patient D, in circumstances of aggravation, Patient D being a person under the authority of the practitioner by reason of the practitioner being Patient D's treating psychiatrist.

Complaint Two Is not a suitable person to hold registration as a medical practitioner

Particulars of Complaint Two 1. Between 26 May and 24 June 2010 at Greenwich in the state of New South Wales, the practitioner assaulted Patient A and at the time of the assault committed an act of indecency upon Patient A, in circumstances where the practitioner was Patient A's treating psychiatrist. 2. On 22 August 2011 at Greenwich in the state of New South Wales, the practitioner assaulted Patient B and at the time of the assault committed an act of indecency upon Patient B, in circumstances where the practitioner was Patient B's treating psychiatrist. 3. Between 1 and 14 August 2011 at Greenwich in the state of New South Wales, the practitioner assaulted Patient C and at the time of the assault committed an act of indecency upon Patient C, in circumstances where the practitioner was Patient C's treating psychiatrist. 4. On 6 November 2011 at Greenwich in the state of New South Wales, the practitioner assaulted Patient D and at the time of the assault committed an act of indecency upon Patient D, in circumstances where the practitioner was Patient D's treating psychiatrist.

1. In light of the practitioner's admissions in this jurisdiction and also in the criminal jurisdiction, the Tribunal is satisfied that the complaints have been proved.

Unsatisfactory Professional Conduct / Professional Misconduct

1. "Unsatisfactory professional conduct" of a registered health practitioner is defined in sub-section 139B(1) of the National Law as including: "Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of the practitioner of an equivalent level of training or experience" (para 139B(1)(a)); and "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (para 139B(1) (l))."
2. Under Section 139E, for the purposes of the National Law "professional misconduct" of a registered health practitioner includes: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. 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. The Tribunal is satisfied that on each of the occasions a subject of the complaint, the conduct of the practitioner was not only unsatisfactory professional conduct, but also professional misconduct within the definition in para 139E(a).
4. In addition, the Tribunal finds that taken together, the admitted complaints satisfy the definition in paragraph 139E(b) as, when considered together, they amount to conduct of a sufficiently serious nature to justify cancellation of the practitioner's registration.

The Practitioner's Health

1. From 2009 the practitioner abused alcohol. His alcohol use was increased until by 2011 he was consuming about 2 glasses, ½ bottle of wine and several shots of liquor 5 - 7 days a week. He maintained this until his arrest in November 2011.
2. Prior to his arrest he was attempting to abstain from alcohol and had sought the assistance of his treating psychiatrist.
3. The practitioner also suffers from Bipolar 1. He was initially diagnosed with Bipolar 2 in 2011, but that diagnosis was revised in September 2013.
4. Dr Phillips, who was the practitioner's treating psychiatrist at the time of the criminal trial, provided various reports and oral evidence at the hearing.
5. Dr Phillips expressed his opinion about the offending conduct of the practitioner. To the question "what best describes Dr Tan's psychopathology?" his response was: "…I believe there will be agreement from all parties that Dr Tan transgressed boundaries in the treatment of 4 young female patients by involving himself in a sexualised touching of the patients. The actions of the accused were unethical and they breached the Code of Conduct that applies to the profession. On the information available to me, the actions of the accused were those of sexual touching, but in the absence of penile or digital penetration."
6. Dr Phillips says there was no doubt that the practitioner has "a many years history of mood instability, beginning possibly in his late childhood, and continuing thereafter, but with at least 2 periods of notable disturbance". He said the first period of such disturbance occurred when the practitioner was in the initial year of post graduate training as a psychiatrist, and the second period occurred probably after 2010 when the practitioner faced "a number of significant stressors in his life".
7. Dr Phillips formed the view that from time to time the practitioner suffered "a psychotic disturbance of his mind, this including a breach of the reality that he normally shares with other members of the community".
8. Dr Phillips diagnosed the practitioner was suffering from a Major Depressive episode. He noted a recurrent depressive episodes beginning around 25 October 2012, associated with increasingly wide mood swings, and ultimately he diagnosed Bipolar Disorder Type 2, but later revised his diagnosis to a recurrent Bipolar Disorder Type 1.
9. Although he found that the practitioner has "a somewhat unusual combination of personality traits, which incorporated a degree of self-centred narcissism combined with underlying poverty of faith in himself, and episodic, rather obsessive thinking and compulsive actions, those were unlikely to explain his unethical actions". He said there was no evidence that the practitioner had any enduring diagnosable personality disorder.
10. He concluded: "…taking all of the above into consideration, it can be stated with a high degree of certainty that Dr Tan's unethical sexualised behaviour in the course of his therapy with a number of young female patients had been the outcome of him suffering for a number of years from Bipolar 1 disorder, which lead him to experiencing periods of disordered thinking, loss of judgment and insight, and the onset of behaviour which at other times he would have condemned".
11. Dr Phillips' opinion was that the practitioner would need "regular ongoing treatment for his Bipolar 1 disorder, and this treatment would include psychotherapy support, psycho-education, crisis management, optimising of his coping mechanisms and regular medications. He also required regular monitoring of his serum lithium level "to ensure that the agent is held within the therapeutic range".
12. Dr Phillips expressed the view in his report of 25 February 2014 that "a person suffering from episodes of a Bipolar 1 Disorder (elevation of mood, lowering of mood, mixed mood state) can become so impaired that he …. can no longer judge the nature of their conduct in relation to patients and that unethical sexualised behaviour can occur in that circumstance".
13. In his oral evidence Dr Phillips stood by his description of the practitioner's personality trait disturbance detailed in his first report but said that he had come to the view that the practitioner's personality problems "are probably more pervasive than I had thought at the earlier time".
14. Dr Phillips also said "it is my opinion that Dr Tan's boundary violations would best be explained on the basis of the interaction of his personality deficiencies and his untreated Bipolar 1 disorder. The patient lacked control over both his personality and his mood state".
15. Dr Phillips said that although the practitioner had attended on 52 occasions for psychotherapy "progress has been relatively slow".
16. He said that ongoing monitoring of medications would be essential, as would ongoing therapy with himself (Dr Phillips).
17. Dr Phillips referred to the additional problems confronting the practitioner including his marital separation, his estranged contact with his children and the question of what career he can now pursue.
18. Dr Phillips said "given the complexity of the patient's situation, progress cannot be sudden or dramatic".
19. He concluded his second report with a statement that "I have come to a strong view, in my extensive professional contact with the patient, that his past capacity to understand his personality trait deficiencies (which he previously had no insight or control) and his Bipolar 1 disorder (the diagnosis being unknown to him and previously to others) set him up to make repeated inappropriate decisions in his contact with female patients. I believe Mr Tan's unethical behaviour will better be understood in the context of his distorted mind, rather than him being a person pursuing wilful criminal activities".
20. Dr Diamond, another expert psychiatrist, was engaged by the police and gave evidence at the trial that "the relevant touching of patients by the practitioner would not have any therapeutic value". He said "the actions described by the witnesses do not conform with any recognised or acceptable form of therapeutic regimes or techniques so far as I can discern".
21. He also said "the body of the material that I have reviewed describes interactions with patients and conduct in relation to patients that cannot be understood as constituting an acceptable or even unconventional or non-mainstream therapeutic practice".
22. Dr Diamond concluded that the actions of the practitioner in relation to the patients could not in any way be construed as consistent with any acceptable form of psychiatric treatment.
23. In his report of 3 February 2013, Dr Diamond concluded: " Such behaviour is characterised by conduct that intrudes upon vulnerable individuals, diminishes a state of empowerment, creates dependency on the authority figure and is accompanied by steady sequential intrusive behaviour that challenges the subject and forces them to accept increasingly abhorrent behaviour by the perpetrator." And "…my opinion is that the conduct as described relates to the description of an individual who has carried out predatory sexualised and controlling behaviour in relation to vulnerable individuals that is aimed to satisfy his own personal needs and not the treatment of his patients. It bears the hallmark of predatory behaviour. It begins with identifiable grooming techniques, leading to intensification of controlling and intrusive behaviour aimed at fulfilling the personal needs of Dr Tan at the expense of his vulnerable patients".
24. In his subsequent report of 8 February 2014 in response to a series of questions raised by the Director of Public Prosecutions, Dr Diamond, referring to the opinion of Dr Philips, that there was a causal connection between the practitioner's probable diagnosable illness and the offending conduct. Dr Diamond expressed the opinion: "…it is difficult to reconcile the pattern of behaviour exhibited by Dr Tan over such a long period of being primarily due to an undiagnosed Bipolar Disorder and being responsible for his day to day demeanour, his intrusive actions, and his habitual patterns of behaviour".
25. Dr Diamond furthermore said in that report: "…such behaviour, in my opinion, is more consistent with a personality style underlying personality traits and personal psychological needs rather than arising primarily from a super-added Bipolar 1 Disorder. Dr Tan has spent 10 years in psychoanalysis. He has seen an individual therapist frequently over a very long period. The approach to addressing his psychological distress and needs in the long term is supportive, to some significant degree at least, of underlying psychological impairment, with or without the super-added difficulties of an undiagnosed Bipolar Disorder".
26. In that report Dr Diamond disagreed with Dr Phillips in the following passages of his report: "…I think that the self-centred narcissism identified by Dr Phillips, together with the low self-esteem has been in evidence to those who have dealt with Dr Tan over a number of years. I'm not certain about obsessive thinking and compulsive action, but certainly Dr Tan has exhibited an aspect to his personality to compensate for his inadequacies by placing himself in positions of empowerment and importance so as to assert himself, especially to those who are in a diminished position compared with him. Such personality features expressed in such a driven way and persistent in a dysfunctional manner for such a long time, are the basis of dysfunction, to the extent that I believe that Dr Tan, in addition to any diagnosed mood disorder, has, in all likelihood, an underlying personality disorder":
27. In that report Dr Diamond acknowledged that an individual with Bipolar Disorder during periods of severe mood disturbance suffers significant impairment in reasoning and judgment so as to conduct themselves in a manner that exhibits "almost total loss of insight"
28. But he said: "…in this case, however, the conduct of Dr Tan over the prolonged period covered by the witnesses statements, demonstrates that he was not devoid of insight to the extent that he suffered "almost total loss of insight" as a result of his undiagnosed Bipolar Disorder. In fact, there are many examples of Dr Tan demonstrating clear insight into the impropriety of his actions as evidenced in his repeated 3 rules of therapy to his patients, which effectively made them dependent and isolated and unable to confide in anyone by placing them in a position where they felt at risk of losing him as a therapist. There was purpose of his conduct involving grooming behaviour with intrusive acts and sexualised content to his interactions. The persistence of this methodology and the purposeful advancement of sexualised contact with his patients cannot be seen in the context of insightless behaviour. It appears to me to be an orchestrated, purposeful, conscious pattern of behaviour aimed at self-gratification and ignoring the sensitivities and needs of a vulnerable patient group. This is consistent predatory behaviour rather than insightless behaviour".
29. Dr Diamond and Dr Phillips were both cross-examined at length in the District Court hearing. Their reports were in evidence. They adhered to their different positions as to whether the practitioner's criminal conduct towards patients was cause or contributed to by his Bipolar Disorder, or that he did not know that the conduct was wrong.
30. Dr Phillips had opined that the conduct of the practitioner did not amount to "grooming" but in cross examination he ultimately agreed that it could. He also found that based on his 52 consultations with the practitioner, he was "not entirely convinced that his boundary violations will be explained solely on the basis of his disordered mood and abnormal pattern of thinking during periods of his illness" and the practitioner had "enduring personality trait deficiencies which weakened at all times his capacity for insight and good judgment in a therapeutic situation, and a presence of his unstable mood finished the process off".
31. Dr Diamond said that he could not reconcile the pattern of behaviour of the practitioner with each patient over such a long period as being due to undiagnosed Bipolar Disorder. In oral evidence in the District Court he said, "the behaviour was long standing. It was repetitive, it was consistent. It was replicated with a number of different people. It emerged in different contexts with different individuals over time so it was difficult to see that as emanating from a bipolar diagnosis alone" and also it was "predatory"
32. In his report of 25 February 2014, Dr Phillips said that the practitioner's mood had become "progressively more stable". This had allowed him to focus on his psychotherapy. But he said that the practitioner's Bipolar 1 Disorder was "continuing to prove hard to treat and I doubt he has yet achieved permanent stability of his mood state." He said the practitioner's treatment needs were "ongoing" and he needed to see him on a fortnightly basis indefinitely.
33. In his decision Judge Bennett referred to extensive character references testifying to the good character of the practitioner. He also referred to indicators from at least 2005 of behaviour indicative of poor mental health.
34. Judge Bennett said (transcript 29 - 30) when referring to the agreed chronology submitted in evidence: "…there is reference to his spending, suggesting to be manic spending, reflecting manic behaviour, whereby he incurred enormous debt in relative terms, and a deterioration over time, beginning in 2005 when he leased 3 Mercedes motor vehicles within 10 months, incurred excessive loans for investment in the stock market, and on another occasion when he undertook an enormous financial liability for the acquisition of a home. The chronology includes reference to the misconduct upon which he was charged and difficulty coping with work throughout that period, stress within his marriage, gambling, excessive use of alcohol, and general unhappiness. There is reference to the death of family members. There is reference to a patient attempting to commit suicide by throwing herself under a train in January 2011, and his first consultation with Professor Phillips on 23 November 2011, after he was exposed in relation to 1 complainant".
35. Overall, the Tribunal prefers Dr Diamond's explanations and is satisfied that the practitioner does suffer from a Narcissistic Personality Disorder as well as Bipolar Disorder.

The Practitioner's Case

1. The evidence in the practitioner's case in relation to the issues remaining for determination by the Tribunal is limited.
2. In 2003 the practitioner worked for a short period of time at Northside Clinic as a Registrar in Psychiatry. He obtained his Fellowship in 2004 and was accredited as a Visiting Medical Officer at the clinic for a period of 3 years. He was reappointed in 2007 and again in 2010.
3. From 2004 until 2011 he also maintained his own practice as a psychiatrist at Pymble. His evidence is that since he commenced his term of imprisonment in March 2014, he had continued to receive regular treatment for Bipolar Disorder. But there is no other evidence as to that treatment.
4. In this statement before the Tribunal, he expresses the belief that at the time of committing the acts which are the subject of the complaint, he was suffering from Bipolar Disorder 1 which was not controlled by any medication.
5. He said: "…I have reflected deeply on my past behaviour. I am very ashamed and remorseful about my conduct. I accept wholeheartedly that my actions have had a negative impact on the patients involved, and that their trust in the medical profession has been affected".
6. His statement was made on 12 November 2015 and he says "I currently have no intentions of returning to practice medicine".
7. The practitioner relies upon 10 character references. 8 of them are from medical practitioners, mostly psychiatrists, and some of them have known the practitioner since he was a boy.
8. One of the references is dated September 2006, prior to the complaints by the patients.
9. Two of the references did not acknowledge any criminal charges against the practitioner and others refer to the criminal proceedings as being for a single offence of aggravated indecent assault.
10. Generally, the references are of little assistance in relation to the issues remaining for determination by the Tribunal.

Other relevant law

1. This is a hearing under Subdivision 6 of Division 3 of Part 8 of the National Law. Section 3A provides that in exercising its functions the Tribunal must treat "the protection of the health and safety of the public" as the paramount consideration. The focus of these proceedings is not punishment of the respondent. (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637).
2. Disciplinary proceedings against members of a profession are intended to maintain proper and ethical professional standards, primarily for the protection of the public, but also for the protection of the profession (Health Care Complaints Commission -v- Litchfield [1997] 41 NSWLR 630 at [637]).
3. The public interest served by protective orders includes the standing of the profession and maintenance of public confidence in the profession (Prakash -v- Health Care Complaints Commission [2006] NSWCA 153 at [91]).
4. The specific purpose for which the Tribunal makes orders is protective of the public interest rather than punitive with respect to the practitioner. But protective orders can also be punitive in their effects on the practitioner (Lee -v- Health Care Complaints Commission [2012] NSWCA 80 at [20]). An example would be where a condition is imposed requiring supervision and the practitioner has to pay the cost of the supervision.
5. Numerous decisions have recognised other considerations beyond direct protection of the public (e.g. Skinner v Beaumont (1974) 2 NSWLR 106 f109; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471B; Seville v HCCC [2006] NSWCA 298 at [45]; Lee v HCCC [2012] NSWCA 80, at [20] - [21]; Re Dr Parajuli [2010] NSWMT 3 [32]; HCCC v Dr Graeme Harris [2008] NSWMT 6 at [175]; HCCC v King [2013] NSWMT 9 at [27]).
6. Subdivision 6 of Division 1 of Part 8 of the National Law describes the powers that may be exercised by the Tribunal where a practitioner has been found to have engaged in professional misconduct. They include under s.149A: 1. caution or reprimand the practitioner; 2. impose the conditions it considers appropriate on the practitioner's registration; 3. order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); 4. order the practitioner to complete an educational course specified by the Tribunal; 5. order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; 6. order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
7. Under ss.149B there is also a power to impose a fine on a registered health practitioner of not more than 250 penalty units where the Tribunal has found the registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct and the Tribunal is satisfied there is no other order or combination of orders that is appropriate in the public interest.
8. Section 149C gives the Tribunal power to suspend or cancel the registration of the practitioner where: 1. the practitioner is not competent to practise the practitioner's profession; or 2. the practitioner is guilty of professional misconduct; or 3. the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or 4. the practitioner is not a suitable person for registration in the practitioner's profession.
9. Before a medical practitioner is deregistered, the Tribunal needs to find that the practitioner is probably permanently unfit to practice (Ex parte Lenehan (1948) 77CLR 403 at 424-425 (per Latham CJ, Dixon and Williams JJ - Rich and Starke JJ dissenting).

Conclusions

1. The evidence establishes that the practitioner suffers from Bipolar 1 Disorder and that this can be largely managed by medication and ongoing psychotherapy. But according to Dr Phillips the management of his disorder, including mood stabilisation, has been difficult and the results less than optimal, despite 52 consultations from November 2011 until March 2014. In addition, it is now 16 years since the Practitioner first sought psychiatric help for his mental health problems.
2. The evidence establishes that the practitioner suffers from a Narcissistic Personality Disorder, and that the prospects of changing or overcoming that disorder are far less than the prospects of effectively managing his Bipolar Disorder.
3. It is now more than 4 years and 5 months since the practitioner commenced treatment with Dr Phillips. There is no evidence as to the nature, extent and results of the treatment the practitioner has received during his 2 years of imprisonment from March 2014 to March 2016 or since release on parole.
4. The most recent Psychiatric evidence is from Dr Phillips and Dr Diamond in February 2014.
5. Given the practitioner's Bipolar Disorder and his Narcissistic Personality Disorder, and the challenges of managing those comorbid conditions, particularly the personality disorder, the Tribunal finds that there is no prospect of those conditions being successfully managed in anything but the long term. At this stage the evidence indicates that for the foreseeable future the practitioner is unfit to practice medicine.
6. The Tribunal concluded that the protection of the public and the reputation of the profession require that the practitioner's registration as a medical practitioner be cancelled.
7. The Tribunal also concluded that there should be an order that the practitioner not be able to apply for restoration of his registration for at least 5 years.

Costs

1. The Applicant seeks an order that the respondent pay its costs of the proceedings. The respondent seeks there be no order as to costs.
2. Clause 13 of Schedule 5D of the National Law applies, rather than section 60 of the Civil and Administrative Tribunal Act 2013 (see subclause 13 (4)). The power to award costs in Clause 13 is a general power and that requires that generally costs follow the event (HCCC v Dinnaker [209] NSWMT 8; Ohn v Walton (1995) 36 NSWLR 77).
3. The Applicant has succeeded on both complaints and in having a cancellation imposed. Unless there are other circumstances that justify departure from the general rule, the respondent should pay the applicant's costs.
4. The practitioner has admitted the complaints and thereby saved the Applicant the costs of a defended hearing. But that circumstance does not justify there being no order for the practitioner to pay the applicant's costs of the proceedings, which were necessitated because of professional misconduct of the practitioner. There are no circumstances that displace the general rule.

ORDERS

1. Accordingly the orders of the Tribunal were: (1) The Respondent's registration as a medical practitioner is cancelled; (2) The Respondent must not apply to restore his registration within 5 years; (3) The Respondent must pay the costs of the applicant of or incidental to these proceedings as agreed, or otherwise as determined by the Tribunal; and (4) Each party has leave to relist the proceedings for further orders for determination of the costs under order 3 if there is no agreement as to the amount of the costs payable within one month

Patient Privacy

1. As requested by the Applicant there should be an order prohibiting publication or broadcast of the name or other identifying information of any patient. Accordingly the order is: (5) Publication or broadcast of the name or other identifying information of any patient referred to in these reasons without leave of the Tribunal is prohibited. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2016