Health Care Complaints Commission v Ullah

RELEVANT LEGISLATION AND PRINCIPLES

1. The overarching objective and guiding principle of the National Law is that the Tribunal must ensure the protection of the health and safety of the public as its paramount consideration (s 3A(1)). The first stated objective of the national registration scheme is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)). Restrictions on the practice of a health professional are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality (s 3A(2)(c)).
2. As Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 explained: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [footnotes omitted]
3. So far as Meagher JA refers to upholding public confidence, it is primarily connected to the practitioner's malpractice or incompetence and setting standards deterring others from such conduct. But the statement also uses the expression "or otherwise not fit to practise, including those who are guilty of serious misconduct".
4. Section 144(a) of the National Law provides: The following complaints may be made about a registered health practitioner-- (a) A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
5. Section 149(C)(1)(c) of the National Law provides: (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (c) 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…

THE CONVICTION

1. The Commission seeks a finding that the practitioner has been convicted of a criminal offence pursuant to s 144(a) of the National Law.
2. Based upon the Certificate of Conviction and the transcript of the Local Court proceedings we are comfortably satisfied that on 16 September 2022, at Lithgow Local Court, after pleading guilty, the practitioner was convicted of two offences: Aggravated Sexual Touching contrary to s 61KD(1)(a) Crimes Act 1900 and Common Assault contrary to s 61 Crimes Act 1900. These offences are punishable by more than 12 months imprisonment.

THE EVIDENCE

1. In order to establish the circumstances of the offences, the Commission relies upon the statement of Person A to the police dated 7 October 2021, Senior Constable Thomason's transcribed notebook statement dated 23 September 2021 and his statement dated 14 February 2022, the relevant CCTV footage from the medical centre together with a chronology prepared by the Commission as to what it says that CCTV footage shows (Exhibit 5) and the police facts which were tendered as agreed on sentence.
2. As discussed during the hearing, there is some confusion in this evidence as to exactly what time the practitioner's interaction with Person A commenced. The statement of Person A to the police dated 7 October 2021, Senior Constable Thomason's transcribed notebook statement dated 23 September 2021 and his statement dated 14 February 2022 all time the event as starting around 6.10 pm; the police facts which were tendered as agreed on sentence give a start time of "around 6.50 pm" and the time stamp on the CCTV records the commencement of the interaction at 19: 08: 17 (7.08 pm). We are comfortably satisfied that the timestamp on the CCTV footage is one hour fast because both Person A and the police officer in the contemporaneous documents (also the police facts) say that Person A was at the police station by 8:00 pm whereas the CCTV footage times Person A as still being at the medical centre at 20:46:12 (8:46 pm). When referring to times below we adopt the times given in the contemporaneous documents and read the time stamp on the CCTV footage as being one hour fast.
3. In addition, we have statements made by the practitioner contained in a sentencing assessment report dated 13 September 2022 and in a report by Dr Jennie Jordan dated 12 May 2022.

THE CIRCUMSTANCES OF THE OFFENCES

1. The CCTV footage depicts the relative height and weight of the practitioner and Person A. The practitioner is a large man who is significantly taller and heavier than Person A who is comparatively petite.
2. In relation to the circumstances of the offences we are comfortably satisfied that the following events occurred.
3. From June 2021, Person A worked at the medical centre every Thursday night from 4:00 pm to 8:00 pm. The practitioner also often worked at the medical centre during those times. The practitioner would often exit his office and have general conversations with Person A about such things as what she would like to do after she had finished school and to where she had travelled.
4. Around the middle of August 2021, the practitioner asked Person A personal questions along the lines of "Do you have sex?" and "Do you have a boyfriend?". Apart from telling the practitioner she did have a boyfriend, she otherwise ignored the questions as she thought that, although it was overstepping the line, it was a one-off kind of thing.
5. On Thursday 23 September 2021, Person A started work at 4:00 pm. Her work colleague went home at 6:00 pm leaving her alone with the practitioner in the medical centre. There was no one else rostered on. The practitioner was to see only one further patient before he left the medical centre on that day.
6. At around 6.08 pm, Person A was sitting at the reception desk. The practitioner came out of his room and around the reception counter and said to her "You look very beautiful my princess." The practitioner stood behind Person A and appeared to place both hands on her head and started to touch the braids of her hair, commenting about how cute they looked. The practitioner then rubbed Person A's shoulder, squeezed her shoulder, massaged her head, touched her head and neck and asked Person A to show him the billing for the night. The practitioner leaned in closer, very much invading Person A's personal space. She attempted unsuccessfully to move away whilst continuing to type on her computer, but the practitioner's hand remained on her shoulder. The physical contact by the practitioner with Person A continued for 1 minute and 22 seconds. The practitioner remained in Person A's personal space seemingly looking at her computer screen while she was sitting in front of it.
7. The practitioner then again placed his hand back on Person A's shoulders and stroked, squeezed and patted her face/neck/shoulder and head. He momentarily walked away to the front of the reception desk but walked straight back again. He came in close and placed both his hands on Person A's head, neck and upper shoulder area and continued to massage her. This contact takes place over a period of 1 minute and 45 seconds.
8. The practitioner went back to his room but returned after about 90 seconds and again preceded to move in very close to Person A, whilst seemingly looking at what is on her computer screen, before moving away again.
9. At 6:17 pm a male patient comes into the reception area. His consultation with the practitioner concludes at about 6:22 pm.
10. At 6:24 pm Person A went to the pathology room to see how many patients pathology had that day. The pathology room was very narrow (about 2 metres wide and 3 metres long). The light in the pathology room was switched off but Person A used the light from the waiting area to see what she was doing. The pathology room then darkened and she heard the practitioner say to her, "When can I go home boss?". She turned and saw the practitioner standing in the doorway of the pathology room. She replied, "You can't go home now, you have to wait until later". Person A went to leave the room but the practitioner blocked the doorway. Person A twisted her body in an attempt to squeeze past him while saying "Excuse me". The practitioner then wrapped both of his arms around her neck from behind. Person A described it as like being "hugged from behind". The practitioner said something like "When can I go home?". Person A responded, "Let me go". The practitioner didn't release his arms and wrapped them tighter around her. She repeated more forcefully "Let me go!". Person A managed to break free, and she made her way back to the reception desk. This interaction took place over a period of approximately 1 minute.
11. Person A returned to the reception area with the practitioner following close behind. She sat in her chair and the practitioner placed his arms around her chair and situated himself close to her body. He then moved away but then moved back in closer, again invading her personal space. He then left the reception area at 6:26 pm.
12. At 6:33 pm when Person A was typing at the reception desk, the practitioner came out of his room, walked over and stood behind her. He then leant forward coming in close proximity to her. She pushed her chair away and lent back from him. He moved closer to her and she began typing on her computer again. He moved closer still and reached over her desk. Person A remembers he said at around this time: "Are there anymore patients?".
13. The practitioner then walked to the back of the reception area, took hand sanitiser and returned to where Person A was seated, while rubbing his hands together. The practitioner moved closer to her again and proceeded to look around the reception area while shifting his weight from foot-to-foot multiple times.
14. At 6:35 pm the practitioner placed his hands on Person A's head/neck and shoulders and proceeded to massage her. He moves his head closer to the victim's whilst continuing to manipulate her head with his hands. He then moved away for under 20 seconds but then moved back in. The practitioner placed his hands on the Person A's shoulder and then moved her towards his body. The practitioner used his right hand and grabbed the back of her neck. He said, "What are they?" She responded, "They are moles I have". The practitioner said "They look bad. You should let me check them out". She replied, "No it's all right". He said, "Let me go check them". The practitioner kept insisting that he be allowed to check out the moles on her neck. Person A felt pressured by the practitioner to let him check out her moles. The practitioner kept repeating that they looked bad. Person A then relented and agreed to let him check them out. At 6:36:22 pm the practitioner removed his hands from the victim and led her out of the reception area. Person A followed with her head bowed and her right hand feeling the moles on the back of her neck.
15. When Person A arrived at the door of the practitioner's room, she saw him standing at his desk. She stood really close to the door because she did not feel safe. She took a small step closer to where the practitioner was standing. The practitioner walked around behind her. Her back was faced towards the wall while her front was faced towards the patient bed in the room. The practitioner looked at the moles on the right side of her neck for about 30 seconds. When he finished, he said, "They look good". As he said this the practitioner put his tools down on his desk and she turned to leave the room. The practitioner came up behind her, put one arm, then the other around her neck and started blowing on her neck and asked: "Does this feel good?". She said, "No. Can you let me go?" She felt the practitioner move the hair covering her neck to the side and him kissing the back of her neck with his lips. He said: "Does that feel good?". She replied, "No". Person A managed to break free and went to leave the room through the doorway. The practitioner used his left hand to grab her right shoulder and pushed her which caused her to turn around slightly. The practitioner came around in front of her and grabbed both of her shoulders with his hands very firmly. She tried to break free but couldn't move her shoulders because he had tightened his grip on her. The practitioner then moved both of his hands from her shoulders to the sides of her head. The palms of his hands were covering her ears. Person A felt very unsafe and scared of the practitioner putting himself on her and touching her. The practitioner pulled her head towards him and started kissing her forehead with his lips. She said, "Stop". She had a mask on. The practitioner said, "Let me kiss you. Let me kiss you" She replied, "No. I don't want that. Let me go". Person A then tried to pull her head away from the practitioner but he further tightened his grip on her head to the extent that it was hurting with the pressure he was using. The practitioner leaned in and kissed Person A's right cheek (not the mask) with his lips twice. She could feel his lips on her skin. The practitioner then stopped kissing her cheek and started kissing her on the mask where her lips were. He did this on two occasions. She said, "Stop". He said, "You are beautiful". She said, "Let me go". Person A then felt the practitioner's grip on her head loosen and she managed to break free and left his room. At 6:38:40 pm she made her way back to the reception desk. Person A had been in the practitioner's room for 2 minutes and 18 seconds.
16. The practitioner follows Person A back into the reception area. He initially paces around the front of the reception desk but after about 40 seconds moves around to the back of the reception area. He appears on two occasions to use his hand to make contact with the top of Person A's head and the side of her cheek. The practitioner then leaves the reception area.
17. Person A then got up from her chair and walked into and paced around the waiting area at the front of the reception desk. She wipes away tears from both eyes with her fingers. She then returned to her desk and took a tissue from a box on the reception counter, lowered her mask and wiped tears from both her eyes. She then walks into a room behind the reception area still wiping her eyes. Shortly thereafter, the practitioner returned to the reception lobby area. Person A came out of the backroom seeing him in the reception area. She quickly turned to go back into the room but the practitioner followed her. She then walked away from him into the reception area. The practitioner walks around to the other side of her desk in the lobby area. At this point it is perfectly clear to the practitioner that Person A had been crying. He said to her, "Are you angry?". She replied, "Yes". He said, "Can I leave?". She said, "Yes". At about 6:42 pm the practitioner left the reception area.
18. Person A appeared to busy herself with her work duties before walking out of the reception area whilst grabbing more tissues from another tissue box situated in the reception area. Two minutes later she turns visibly distressed and crying before walking out of the reception area again. She returned shortly crying and wiping her nose and eyes with the tissues. She paced between the backroom and the reception area while crying and using multiple tissues.
19. At 6:53 pm the practitioner walked from his room into the reception area and around to where Person A remained seated. He touched her face on the cheek with his hand and then leaves the reception area and walks back to his room. Then at 6:54:15 pm, the practitioner returns to the lobby having taken off his clinical robe and is dressed in street clothes. He lingered for about 5 seconds in the reception area in front where Person A is sitting and then leaves the building. It is the last he is seen on the CCTV footage. Fifty seconds after he has left, Person A got up and locked the doors of the surgery. She is alone in the surgery for the next 20 minutes.
20. The remaining CCTV footage is the hardest part of it to watch. It graphically depicts the effect upon Person A of the practitioner's conduct and her emotional disintegration. Having initially kept it together while the practitioner was still at the medical centre, after he leaves Person A becomes increasingly more distressed. Person A returned to the reception area crying. She paces back and forth between the lobby and the reception. At 7:08:10 pm she is talking on her mobile phone and weeping uncontrollably. At 7:14:20 pm, Person A's mother arrives. Both are distressed. Person A continues crying and her mother covers her face with both her hands. Eventually (at 7:19 pm), Person A collapses into her mother's arms weeping freely. Her mother embraces her for about 30 seconds at which time the practice manager arrives in the reception area. Person A regains some composure for a period of time but breaks down again and at 7:38:50 pm when she is again comforted by her mother for a period of over 2 minutes. Thereafter, Person A is also consoled by the office manager and an adult male [identity unknown] who comes into the medical centre. Person A leaves the medical centre at 7:46 pm and is speaking to Senior Constable Thomason by 8:00 pm.

NO WEIGHT IS PLACED UPON STATEMENTS MADE BY THE PRACTITIONER

1. In making these findings, we place no weight upon the statements made by the practitioner in two documents he provided to the Local Court which were prepared with his participation.
2. The first document was a Sentencing Assessment Report dated 13 September 2022 that records the practitioner told the author, a community corrections officer, that he denied kissing or attempting to kiss Person A and that he disputed aspects of the police facts denying the victim had told him not to touch her. He reported that he had not realised at the time she was uncomfortable due to his behaviour. He was able to articulate that his behaviour would have made the victim uncomfortable due to her age and gender and understood that he had inappropriately crossed boundaries by the way he spoke to the victim.
3. The second document was a report that the practitioner had obtained from Dr Jenny Jordan, psychiatrist, dated 12 May 2022. Dr Jordan records that the practitioner gave her the following history: a. He stood behind the receptionist and leaned onto her chair b. He said that he was tired on that day and experiencing leg pain and for that reason he was leaning on her chair and that this was not his habit. c. He put his hand on her shoulder and patted her shoulder for 5 seconds. d. He commented that she looked beautiful in the context of a change of hairstyle. e. He noticed a skin rash on her scalp and said he could assess the lesion. f. Person A agreed to go into the consultation room so he could assess the lesion. g. He told her again she looked beautiful. h. He said the lesion was benign. i. The door was open and the room was fully lit. j. He spent 4-5minutes examining the lesion. k. Person A wore a face mask and did not appear distressed when leaving the room. l. He said there was no hidden agenda or an intent to seduce around his actions. m. He said he would have never have crossed a boundary with a patient and is perplexed as to why he had crossed this boundary with a staff member of the practice. n. He said he can be touchy with his friends and colleagues and often likes to joke with them.
4. We place no weight on these statements for the following reasons. Part of the history given by the practitioner to Dr Jordan is objectively false when considered alongside the contemporaneous CCTV footage. He did not just stand behind Person A and lean onto her chair; he did not just put his hand on her shoulder and pat her shoulder for 5 seconds and she was not in his consult room for four or five minutes but only 2 minutes 18 seconds.
5. Of equal importance is the fact that the practitioner did not file a reply; has not participated in the disciplinary process and did not participate in this hearing. He has chosen not to provide an alternate version of events or to present himself to be tested upon any alternate version. Person A provided a contemporaneous version of what happened to the police officer one hour after the events and made her formal police statement two weeks later. The practitioner pleaded guilty in the Local Court upon the Fact Sheet that is substantially similar terms to the facts as we have found them.

THE GRAVITY OF THE OFFENCES

1. It is a criminal offence for any person who without the consent of the victim and knowing that the victim does not consent, intentionally sexually touches the victim. Parliament has made it clear that this is a grave offence by setting a maximum penalty of seven years imprisonment with a standard non-parole period of five years. The jurisdiction of the Local Court limits the penalty to two years imprisonment.
2. It is also a criminal offence for any person to touch another person without their consent. Common Assault carries a maximum penalty of two years.

SENTENCING

1. Upon sentencing on 16 September 2022, Her Honour Magistrate Pearce made the following findings: a. "the common assault which is a course of conduct which is what is relied on, is not towards the lower end, it is above the midrange because it also constitutes you holding her to the extent that she had to ask you repeatedly to let her go. b. "the aggravated sexual touching is towards the lower end because sexual touching can encompass touching on all sorts of parts of a person's body including their genital areas... But this all occurred in the context of you being a man in your fifties behaving in this way to a nineteen year old receptionist [she was 18 at the time of the offence] who was in the employ of that surgery in circumstances where she was alone with you doing her job." c. "All of this occurred in the context of the two of you being alone in the doctor's surgery at night."
2. The practitioner was convicted of two offences: Aggravated Sexual Touching contrary to s 61KD(1)(a) Crimes Act and Common Assault contrary to s 61 Crimes Act [the Certificate of Conviction from the Local Court dates the convictions 15 September 2022 which is inconsistent with the transcript of the proceedings which are dated 16 September 2022]. The imposition of a sentence of imprisonment was the only available penalty due to the objective seriousness of the offences. An indicative sentence of six months imprisonment was imposed on each count with a 15% discount given that the practitioner eventually pleaded guilty; in all a total term of imprisonment of 10 months. It was to be served by way of an Intensive Correction Order in the community. The presiding magistrate noted that the practitioner was not suitable for community service otherwise the court would have imposed a lengthy period of community service as part of the sentence The practitioner was required to be supervised for the duration of the Intensive Corrections Order including abiding by any reasonable direction of Community Corrections as to sexual offender specific counselling.

CONCLUSION THAT WE MAY CANCEL THE PRACTITIONER'S REGISTRATION

1. Person A was a female aged 18 years and still at school. The practitioner was 52 years of age at the time of the offending. He was in a position of authority and power as a trusted older doctor whom Person A had known in a work capacity for four months. The age and power differential make these criminal offences more serious.
2. Whilst there is no requirement in the National Law that there be a nexus between the offence and the practitioner's profession, in this case the practitioner did commit the offence while working as a doctor. Throughout the events leading to the criminal convictions the practitioner wore his long white doctor's coat. He used his position as a doctor to pressure Person A into following him into his consult room to have her moles examined and more generally to remain stationary in her chair at her computer screen while he was fondling her.
3. The practitioner has breached paragraphs 5.1, 5.3 and 5.4 of the Code of Conduct for Good Medical Practice which set out the requirements for respectful relationships with team members. The practitioner's responsibility as a registered medical practitioner includes having to work in proximity with practice staff as well as having regular dealings with them in the day-to-day management of patient care and office administration.
4. We conclude that we may cancel the practitioner's registration because the circumstances of the offences with which the practitioner has been convicted render the practitioner unfit in the public interest to practise the practitioner's profession.

The practitioner's failure to take responsibility for his behaviour

1. We have set out above our detailed findings as to what happened on 23 September 2021 and we find the history given by the practitioner to both the community corrections officer and Dr Jordan, where it is in conflict with those findings, is also false. As at 13 September 2022, the practitioner was attempting to deny and minimise what he had done. We have nothing more recent from the practitioner that would indicate that he has since accepted and obtained insights into his criminal behaviour.

The health practitioner's behaviour since commission of the offence

1. The practitioner appears to have been compliant with court orders.
2. On 4 January 2022, the practitioner was arrested and released on bail with the following conditions: (a) Not to enter Lithgow Medical Centre (b) To reside at 5a Lauma Avenue Greenacre (c) To surrender passport and not apply for another (d) Not to go near, or contact or try to go near or contact Person A, or any prosecution witness, except through a legal representative
3. There is no evidence before the Tribunal of any breaches of bail.
4. On 15 September 2022, the practitioner was sentenced to a term of imprisonment of 10 months to be served as intensive correction in the community. There is no evidence before the Tribunal that during the period of the ICO (16 September 2022 - 15 July 2023), the practitioner failed to participate in any program, treatment, intervention or related activity specified by his Community Corrections Officer. We consequently proceed on the basis that the practitioner was released on 15 July 2023.

The likelihood of future threat to a patient of the health practitioner

1. There is no evidence that the practitioner has conducted himself in a similar manner towards patients, noting that these offences were committed against a team member.
2. We are unable to place any weight upon the assessment of the practitioner being a low-medium risk of reoffending in the Sentencing Assessment Report according to the Level of Service Inventory-Revised (LSI-R) because of the inaccurate history provided by the practitioner to the author of that report.
3. The practitioner's attitude towards the offending, specifically his minimisation of his conduct when discussing the offence with Dr Jordan does not assist his prospects of not reoffending. The Local Court Magistrate described his attitude as seemingly traversing the plea in the report. Her Honour opined the practitioner had "no insight", that he "essentially denies that he had any sexual intent and minimises what his conduct was, quite contrary to the facts and the nature of the charge to which he pleaded guilty…so what it says to me is he does not accept responsibility and has no insight".

The prior complaints

1. The practitioner has been the subject of two earlier complaints.
2. The first was made in October 2010 by a patient, who had been admitted to the emergency department in the ACT. She complains that the practitioner had given her two injections to the base of her skull without informing her of what was in those injections. There was no record made by the practitioner of him giving this patient any injections. Aphra records that in July 2011 it was determined no further action would be taken.
3. Secondly early in the morning of Sunday 6 February 2011 a patient was admitted to Canberra Hospital Emergency Department, having been picked up by ambulance in a semi-conscious state, intoxicated with alcohol. She alleged the practitioner touched and felt her genital area on three occasions, her perianal area and put his finger into her vagina. Aphra records that on 21st of March 2012 it was determined no further action be taken.
4. Given the practitioner's non-appearance before us there was no opportunity for any exploration with him of the circumstances surrounding these complaints. For the purpose of this hearing we proceed on the basis that the practitioner has an unblemished record which counts in his favour.

The practitioner's failure to engage in these proceedings

1. Practitioners have a duty of candour to the Commission and the Tribunal: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [62] (Barrett JA, Macfarlan JA and Tobias AJA agreeing); Ghosh v Health Care Complaints Commission [2022] NSWCA 229, per Adamson J (Ward P and Basten AJA agreeing) at [65].
2. The Code (clause 5.4.9) states, in the context of discrimination, bullying and sexual harassment, that practitioners must appropriately information share, within the law, to support effective resolution and remediation when possible.
3. Further, clause 10.11.2 states "Good medical practice involves disclosing to anyone entitled to ask for it, information relevant to an investigation into your own or a colleague's conduct, performance or health."
4. The practitioner chose not to respond to the s 40 letter sent by the Commission on 17 November 2022.
5. The practitioner chose not to file a reply to the Complaint filed by the Commission on 16 June 2023.
6. Whilst the practitioner is legally represented, neither he or his lawyers participated in this hearing. His legal representatives have offered no explanation as to why the practitioner has not participated. If legal fees were a problem the practitioner could appear self-represented. The criminal proceedings have now finalised.
7. The practitioner has done himself no favours by not participating and we can only infer he continues to lack insight and has done nothing to attempt to rehabilitate.

Other opinions about the practitioner's behaviour

1. Dr Jordan opined that she did not think that there was any inappropriate agenda that the practitioner was pursuing in the incident on 23 September 2021. The practitioner's wife also believed he was misunderstood. Dr Jordan's opinion as to the practitioner's motivations can be given no weight as it is based on a false history provided by the practitioner. We infer the practitioner's wife was also not provided with a correct history of the circumstances of the criminal offences.

The practitioner's registration should be cancelled

1. The practitioner's conduct is incompatible with the personal qualities essential for the practice of medicine and brings the profession into disrepute.
2. We are of the view that in all the circumstances the practitioner's registration should be cancelled.

Non-review period

1. The Commission is seeking a non-reviewable period of 1 to 2 years (s 149C(7) of the National Law).
2. The setting of a non-review period or a disqualification period is not to punish the practitioner but to protect the public (see generally, s 3A(1) of the National Law).
3. As the Tribunal said in Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [31]: The setting of a non-review period can signal to the profession and the public the seriousness with which professional misconduct or criminal conduct is judged, but also gives guidance to the practitioner on the period of time which the Tribunal believes will be necessary for them to demonstrate rehabilitation and/or remediation in order to base a possible application for review to return to practise.
4. During final submissions the Commission referred to two cases as possibly providing comparable guidance when considering a non-review period.
5. The first case was Health Care Complaints Commission v Whittle [2022] NSWCATOD 163 and Health Care Complaints Commission v Whittle (No 2) [2022] NSWCATOD 181. Like the current case, the practitioner failed to assist the Commission in its inquiry and failed to participate in the hearing. The practitioner was found to have been involved in an array of unsatisfactory professional conduct including sexually harassing and objectifying female staff and patients, and bullying and intimidating staff. The most serious conduct involved small, light pinching touches on the bottom of a female colleague and later on the next day roughly grabbing that colleague's bottom with one hand and pushing his finger into her "bottom crack". By virtue of his extensive conduct the practitioner had also breached conditions that had been previously placed upon his registration. The Tribunal ordered a non-review period of 2 ½ years.
6. The second case was Health Care Complaints Commission v Hanna [2018] NSWCATOD 113. The practitioner had been convicted of aggravated indecent assault on a junior casual receptionist, aged 17, in the premises of the practice. During the assault the practitioner closed and locked the door to his room; kissed the victim's face around the mouth; kissed her nose; forcibly grasped her buttocks with both hands and rubbed one hand over her groin area. The practitioner participated in the hearing. Evidence was led in relation to the practitioner's long term mental condition. The practitioner had shown a lack of enthusiasm to address his condition by psychotherapy. The Tribunal found that any therapy would take one year before any appreciable improvement would occur and imposed a one-year non-review period having taken that into account.
7. The use of comparable cases must be approached with care. This is primarily because a full understanding of why outcomes were selected in previous cases may not be easily discernible. Each matter turns on different facts and subjective circumstances. Also, different Tribunals may, without error, exercise their discretions differently. The predominant consideration is the protection of the public and it is the job of this specialist Tribunal to make protective orders based on the facts of this case.
8. In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34] the Court of Appeal said it proceeded on the basis that comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern; such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct"; the range or pattern is, at best, a reflection of the accumulated experience and wisdom of the decision-makers; and the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle.
9. We obtained little assistance from the two cases that have been relied upon by the Commission. They do not show a discernible range or pattern, nor any unifying principle.
10. We have concluded that a non-review period of two years is warranted in the circumstances of this case. A period of that duration will deter other practitioners from engaging in such conduct and will maintain public confidence in the profession. Additionally, it will provide further opportunity for the practitioner to reflect and rehabilitate.

NON-DISCLOSURE ORDER

1. Pursuant to clause 7 of Schedule 5D of the National Law, the Commission sought an order that the name and address of Person A not be disclosed and it is appropriate that an order be made in those terms.

COSTS

1. The Commission seeks an order for costs. The practitioner has failed to engage in these proceedings. As a general rule, costs of proceedings before the Tribunal should follow the event. There was no disentitling conduct by the Commission to warrant a departure from the general rule.

ORDERS

1. We make the following orders: 1. Pursuant to s 149C(1)(c) of the National Law the practitioner's registration is cancelled with a non-review period of two (2) years. 2. Pursuant to clause 13 of schedule 5D of the National Law, the practitioner is to pay the Commission's costs as agreed or assessed. 3. Pursuant to clause 7 of Schedule 5D of the National Law, the name and address of Person A not be disclosed.

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: 19 September 2023