Health Ombudsman v Sudusinghe [2022] QCAT 99

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, 55

Health Care Complaints Commission v Priyamanna No 2 [2016] NSWCATOD 3

Health Ombudsman v Field [2019] QCAT 243

Health Ombudsman v Barber [2017] QCAT 431

Health Ombudsman v Brown [2019] QCAT 218

Health Ombudsman v Duggiralla [2021] QCAT 326

Health Ombudsman v Gebusion [2021] QCAT 102

Health Ombudsman v Vale [2020] QCAT 363

Health Ombudsman v Vu [2021] QCAT 240

Health Ombudsman v Mutasa [2019] QCAT 315

Medical Board of Australia v Arulanandorajah (Review and Regulation) [2021] VCAT 85

Medical Board of Australia v Cukler (2017) VCAT 109

Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822

Medical Board of Australia v Jansz (Occupational and Business Regulation) [2011] VCAT 1026

Medical Board of Australia v Lee (Review & Regulation) [2020] VCAT 568

Medical Board of Australia v Thomas (Review and Regulation) (Corrected) [2021] VCAT 229

Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161

Psychology Board of Australia v GA [2014] QCAT 409

R v Sudusinghe [2020] QCA 74

S Robb, instructed by the Office of the Health Ombudsman

• [1] There are two referrals before the Tribunal today. The first referral, OCR155 of 2020, was referred by the applicant Director to the Tribunal on 29 May 2020. It contained a single allegation that the respondent had engaged in professional misconduct by virtue of being convicted of the criminal offence of sexual assault. In his response the respondent admitted the allegation.
• [2] The second referral, OCR173 of 2021, was referred to the Tribunal by the applicant Director on 18 June 2021. It contained an allegation that the respondent had breached conditions imposed upon his registration by having contact with female patients at a practice at which he worked between 2 April 2020 and 27 September 2020. The particulars of the allegations relate to a total of six consultations, involving a total of five different patients. In his response to that referral, the respondent admitted the allegations.
• [3] By order made on 23 August 2021 Judge Allen QC, then Deputy President of the Tribunal ordered that the two proceedings were to be heard and decided together. In oral submissions the applicant contended that the power conferred on the Tribunal in s 55(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) to hear and decide proceedings together or to hear matters in a particular sequence empowers the Tribunal to make separate orders but to deliver a single set of reasons.
• [4] Whilst expressing a preference for consolidation, the respondent did not oppose the course contended for by the applicant.
• [5] In the interests of resolving the matter for the respondent today, to meet one of the objects of the QCAT Act set out in s 3, the Tribunal accepts the applicant's submission and will proceed to deliver one set of reasons but to make orders in sequence in respect of each referral at the end of the reasons.
• [6] There is a single statement of agreed facts which, whilst undated on its face, is identified by reference to the index to the hearing brief as being dated 10 September 2021. It deals with the facts for each of the referrals.
• [7] The parties are agreed that:

(a) the conduct the subject of each of the referrals constitutes professional misconduct (whilst recognising that ultimately, that determination is one for the Tribunal)[1]; and

(b) that a reprimand in each referral is appropriate[2].

• [8] The substantial difference between the parties is this. The applicant contends the Tribunal should cancel the respondent's registration and impose a disqualification period of in the order of three to five years from the date of the order. The respondent contends he should be suspended for a further 18 months to two years. That difference arises in respect of the approach to the treatment of the first referral.

• [9] The respondent worked as a general practitioner at a suburban medical practice at a shopping centre in Brisbane. The patient the subject of the first referral first saw the respondent for consultation in October 2013 and next saw him for consultation in May of 2015.
• [10] On 16 November 2015 the patient attended the medical centre for an appointment with the respondent for abdominal pain. The respondent assessed the patient in a closed consultation room. The patient was wearing underwear and a knee-length dress with buttons. The respondent asked the patient to lie down on a table for a physical examination. The patient laid down on the table and unbuttoned two buttons of her dress. The respondent was not wearing gloves. He asked the patient to undo another button on her dress so he could examine her stomach. The respondent touched the patient's abdominal area using his hand. The respondent moved his hand towards to the patient's pubic bone. The patient told the respondent there was no pain in that area. The patient took the respondent's hand and moved it towards the area where she was experiencing pain. The respondent again moved his hand and placed his fingers in the area of the patient's vagina outside her underwear.
• [11] The respondent did not tell the patient that he was going to examine her in the area of her vagina. The patient did not provide consent to the respondent to touch her in the area of her vagina.
• [12] The patient did up the buttons on her dress, obtained a referral from the respondent and left the medical centre. Later that day the patient made a complaint about the respondent to the police at the police station.
• [13] A few days later, on 20 November 2015, the patient attended the police beat in the shopping centre and obtained a recording device and then attended the medical practice for a consultation with the respondent. During the consultation of 20 November 2015, there was a conversation between the patient and the respondent in which the respondent said in respect of the earlier consultation "Yeah. I was crossing the borders, yes".
• [14] Almost two years after the consultation, the police interviewed the respondent about the patient's complaint and the respondent listened to their covert audio recording which had been taken on 20 November 2015. The respondent stated his statement of "crossing the borders" was a reference to his examination of the patient's "lower tummy" below the patient's navel. That day the police charged the respondent with one count of rape and one count of attempt to commit rape.
• [15] Ultimately the respondent faced a jury trial in early 2019 on an indictment which contained one count of sexual assault, one count of rape and one count of attempted rape. On 1 February 2019 the jury returned verdicts of not guilty on Count 1 of sexual assault and Count 3 of attempted rape. In respect of Count 2, the jury returned the verdict of not guilty of rape but guilty of an alternate charge of sexual assault.
• [16] The respondent was sentenced to imprisonment for 12 months, wholly suspended for an operational period of three years. A conviction was recorded. In sentencing the respondent, the learned sentencing judge stated:

"Your conduct involved a gross violation of the relationship between a doctor and patient. An offence of this nature can undermine public confidence in the medical profession. The offence has had a significant impact upon the complainant. She has experienced trouble sleeping, anxiety, paranoia and an inability to trust doctors.

When the complainant gave evidence over a lengthy period of time in the course of the trial, she appeared to be highly emotional. Further she was accused by your counsel, no doubt based on instructions, that she was fabricating the allegations for financial gain. You have shown no remorse.

The complainant showed considerable courage by returning for an appointment on 20 November 2015 with a recording device in her handbag. In the course of that consultation she accused you of touching her between her legs. Your response has clearly indicated that she admitted the accusation. You said you were 'crossing the borders'. Your explanation for that statement when interviewed by the police on 3 October 2017 was unconvincing, as were your denials.

You were born in Sri Lanka and educated there. You came to Australia when you were aged 42. You have an unblemished professional history. You are a married man with an adult son. You are an active member of the Sri Lankan community. Since February 2018 your registration has been subject to a restriction that you not see female patients without a chaperone. There is a sign to that effect at the medical centre. Not surprising, the number of patients you have seen since then has plummeted. You will almost certainly face disciplinary proceedings with a strong prospect of cancellation or suspension of your medical registration".

• [17] On 4 February 2019 the respondent verbally notified the Board of the conviction for sexual assault and that notification was confirmed in writing on 11 March 2019.
• [18] On 28 February 2019 the respondent lodged an appeal against the conviction for sexual assault. On 17 April 2020 the Court of Appeal dismissed the respondent's appeal in R v Sudusinghe [2020] QCA 74.

• [19] At the time of the conduct the subject of the second referral, the respondent worked as a general practitioner at a different medical practice, also in suburban Brisbane. I will refer to that in these reasons as the second medical practice.
• [20] The second medical practice is owned and operated by the respondent and his wife, who is also a medical practitioner. At all relevant times the respondent worked as a general practitioner in the second medical practice.
• [21] On 7 February 2018, (that is, whilst he was facing the criminal charges), the Health Ombudsman imposed conditions on the respondent's registration under s 58 of the Health Ombudsman Act 2013 (HO Act), to the effect that the respondent was required to have a chaperone present when treating female patients.
• [22] On 6 June 2019, (after the respondent's conviction for sexual assault), the Health Ombudsman imposed new conditions on the respondent's registration under that same provision, which prohibited the respondent from having contact with female patients.
• [23] The respondent's legal representative was served with the conditions by email on 6 June 2019 at 12.42 pm.
• [24] Between 2 April 2020 and 27 April 2020, the respondent breached conditions imposed upon his registration by the Health Ombudsman by having contact with female patients. The details of the breaches are set out in a schedule to the agreed facts. In summary, the individual occurrences are as follows:

(a) in respect of patient 1 the conduct occurred on 2 April 2020. The patient attended an appointment with the respondent's wife to have an Implanon subdermal contraceptive implant removed from her arm. The respondent's wife escorted the patient to a treating room where there was a female nurse present and injected a local anaesthetic in the patient's arm. The respondent then entered the treatment room unannounced. The respondent did not speak to the patient. The respondent's wife made an incision in the patient's arm and removed the Implanon, which was difficult due to scar tissue in the patient's arm. The respondent assisted his wife in removing the Implanon by holding the patient's arm with his hands. The respondent assisted his wife in inserting a new Implanon in the patient's arm. The respondent did not wear gloves. The respondent's wife applied medical glue to the incision site and bandaged the patient's arm;

(b) in respect of patient 2, the conduct occurred on 10 June 2020. On that occasion the patient attended with her five-year-old son for an appointment with the respondent's wife for the removal of the patient's Implanon device from her arm. The respondent's wife told the patient the respondent would be performing the procedure and took the patient and her son to a treatment room where there was a female nurse present. The respondent then entered the treatment room and injected a local anaesthetic into the patient's arm, made an incision in her arm, removed the Implanon and dressed the patient's arm in a bandage. The respondent's wife and the female nurse left the treatment room at some point during the procedure. At the end of the procedure only the patient, her son and the respondent were in the treating room;

(c) in respect of patient 3, the conduct occurred on 3 July 2020. That also involved the third patient attending an appointment with the respondent's wife for the purpose of having an Implanon removed from her arm. The respondent's wife told the patient the respondent would be assisting in the procedure as she was not confident in performing the Implanon removal herself. The respondent's wife took the patient to the treatment room. The respondent entered the treatment room and his wife introduced the respondent to the patient saying words to the effect "this is my colleague". The respondent told the patient to remain still during the procedure and that it would be best to look away. He firmly held the patient's arm whilst his wife made an incision at the removal site. Both the respondent and his wife repeatedly told the patient it would be better if she did not watch. The respondent assisted his wife in removing the Implanon. The respondent dressed the patient's arm with a bandage and told her to leave the bandage on for pressure and return to the practice if she had any concerns;

(d) the conduct the subject of the fourth and fifth allegations involved the same patient and occurred on 19 and 20 August 2020. On the first occasion the patient attended an appointment with the respondent's wife to have an Implanon device removed from her arm. When the respondent's wife examined her arm she told the patient the device was quite deep and she would not be comfortable removing it herself. The respondent's wife requested the respondent examine the patient's arm. The respondent came into the consultation room and physically touched the patient's arm where the device was located. The patient was requested to attend the following day for the procedure to remove the Implanon. The patient attended the next day for the appointment with the respondent's wife to have the device removed from her arm. The respondent's wife took her to the treatment room. The respondent entered the treatment room and arranged the equipment for the procedure. The respondent told the patient to lay down with her left arm outstretched and administered an anaesthetic needle in her arm. The respondent used a sharp medical instrument and poked the skin on the patient's arm. The respondent asked the patient if she had any feeling around the area of the Implanon and she told him she still had feeling. The respondent told the patient "surely not" and continued with the procedure. The respondent performed the Implanon removal which took about 15 to 20 minutes. The respondent's wife was present during the procedure and assisted the respondent from time to time including holding the incision site closed while the respondent used medical glue to close it. The respondent dressed the patient's arm; and

(e) the sixth consultation, which involved the fifth patient, occurred on 27 September 2020. The patient had attended the second medical practice to get a splinter removed from her right thumb. She did not have an appointment. The respondent's wife saw the patient and assessed her thumb. The respondent's wife told the patient the procedure to remove the splinter would be difficult and her husband, the respondent would have to remove it. The respondent later saw the patient and used a magnifying glass to assess the thumb. He escorted her to the treatment room and the patient laid down on a treatment bed following his request. The respondent administered a local anaesthetic to the patient's thumb and surgically removed the splinter by cutting the cuticle on the patient's thumb to access the nailbed. The respondent disinfected the surgical site, applied medical glue to close the cuticle and dressed the thumb. The respondent's wife subsequently gave the patient a prescription for antibiotics.

The respondent's professional and disciplinary history

• [25] The respondent is currently 58 years of age. He obtained a Bachelor of Medicine and Bachelor of Surgery qualification in Sri Lanka in 1994.
• [26] The respondent was first registered as a medical practitioner in Australia on 29 January 2007.
• [27] He holds general specialist registration with the Medical Board of Australia (Board) as a general practitioner. His registration is currently suspended, having been suspended on 7 December 2020.
• [28] Prior to the conduct the subject of the present referrals, the respondent had not previously been the subject of disciplinary proceedings.

• [29] Dr Rasika Sudusinghe (Dr Rasika), the respondent's wife and a general practitioner, was interviewed by telephone on 19 March 2021 by the Office of the Health Ombudsman as part of the investigation into the second referral. In that interview, amongst other things, Dr Rasika confirmed she was aware from January 2019 that the respondent had a condition on his registration which was not to see female patients. She told the investigation that he did not treat any female patients but he assisted her on occasions that she wanted his help because there was no other doctor practicing at the practice. He only assisted in emergencies, which she understood would not constitute treatment.
• [30] Dr Rasika said that the respondent had not, himself, performed removals of Implanon devices. She identified an occasion where there was a deeply seated Implanon that she wanted his help with, which was akin to an emergency, she said. She thought perhaps that was two or three times. The respondent would also do wound closures when she wanted his help. She could not recall how often that had happened, maybe two or three times. When he assisted with wound closures, it was to prevent complications and in the best interests of the patient. Dr Rasika said she was the principal treating doctor for the patient and he was assisting her. This occurred only in an emergency situation and not regularly. She described the removal of Implanons as emergencies because if the procedure was difficult, bleeding could occur which would be an emergency.
• [31] Dr Rasika said she did not ever leave the respondent alone in the treating room with any of the female patients. She also said that if the respondent touched the patients, he was wearing gloves. He didn't talk to the patients otherwise than to explain what he was doing. Dr Rasika made the notes in the practices' clinical notes program and there would be no notes which would record that the respondent had assisted in the procedures, which she was qualified to perform.
• [32] Since he had been fully suspended, Dr Rasika said the respondent had not assisted in any procedures at the second practice and he had not attended the practice or had contact with patients at the practice.
• [33] Dr Rasika said she would not have done anything differently if she had her time over again because she didn't have any other option in the particular situations she was dealing with.
• [34] The respondent affirmed an affidavit on 17 September 2021 in these proceedings. In it, relevantly, he says the following things:

(a) he and Dr Rasika have been married since 1996 and she has been extremally supportive of him. They have one adult son, who is a financially dependent student;

(b) on arriving in Australia in 2007, he worked as a junior medical officer at regional hospitals for two years then commenced working at a suburban medical centre;

(c) he obtained his qualification as a general practitioner in 2013;

(d) in 2014 he commenced working at the first medical centre where he worked until January 2019. His most recent position was as a general practitioner at the second medical practice alongside his wife Dr Rasika;

(e) he was suspended from work on 7 December 2020 as a result of breaching conditions imposed on his registration. Since that date he had not worked as a doctor but has assisted his wife with administrative duties in running the second practice. Mostly that involved him working from home although he did attend the second practice once or twice a week to assist in person;

(f) he has had no complaints about his conduct or professional performance at any time apart from the matters the subject of the two disciplinary referrals presently before the Tribunal;

(g) shortly after being charged by the police, he was involved in a single vehicle car accident in which he sustained multiple fractures. He was assessed in relation to suspected self-harm which he denied. Ultimately he was assessed as not having a mental health condition and he was discharged on 7 November 2017. The injuries he suffered in the accident cause him continuing physical handicaps. One of his legs is now shorter than the other and he has difficulties standing for extended periods. He continues to experience pain in his right thigh. He is unable to run for exercise and suffers interrupted sleep by reason of leg cramps, he has difficulty carrying weights and he has required speech therapy consequent upon the throat injury. He also suffers some consequences from nerve damage. He can, however, practice medicine competently and safely despite the health conditions from which he now suffers and his plan is to obtain an independent health examination and psychological examination prior to his re-entry to practice;

(h) Dr New, a psychiatrist, prepared a report for the Health Ombudsman on 23 January 2018, and expressed the view that the respondent had an adjustment disorder as a result of being charged with the criminal offences. The Tribunal notes no report is in evidence before it but the applicant accepts this is an accurate statement of Dr New's report;

(i) the respondent deposed that his mental health has suffered as a consequence of continual stress as a result of two criminal trials (the first having been aborted), the requirements placed on him to be chaperoned, followed by not having contact with female patients which he accepts he contravened. The respondent described it as "a gruelling process for me which has lasted many, many years";

(j) he has faced social judgement and stigma from friends and family consequent upon his conviction and subsequent suspension from practice. He notes his name is easily locatable through a google search;

(k) he is entirely reliant on his wife to support him and their son, which he acknowledges is completely his own fault and he has suffered financial impacts;

(l) notwithstanding the defence of the trial and the lodging of the appeal, he deposes that he fully accepts the impropriety of his conduct and that he is truly remorseful for his actions concerning the sexual assault;

(m) he accepts he should not have assisted his wife or performed the procedures that he performed;

(n) he accepts that the conditions were put in place to protect patients and promote a sense of trust to members of the public in relation to him. He deposes he sincerely regrets his actions. He has read the Board's 2018 guideline titled "Sexual boundaries in the doctor-patient relationship" and has taken time to reflect on his actions. He realises he acted in a way that took advantage of the power imbalance between himself and patients who trusted him that he was performing examinations in their best interests. He deposes to realising the harm his actions had caused the complainant as well as the female patients who he treated in respect of the breach of conditions some of whom have worried about the fact that he treated them or assisted in their treatment given his past history. He has also re-read the document titled "Good Medical Practice: A Code of Conduct for Doctors in Australia" and reflected on how his actions have not been consistent with required standards of professionalism;

(o) in the nearly six years since the offence of sexual assault occurred he has not committed any further offence or act in any manner which brings the profession into disrepute apart from a breach of his conditions on his registration. The process of being charged, going through a district court trial, being convicted and sentenced have had a significant deterrent effect on him and he would never act in such a manner again;

(p) it has taken him a long time, he deposes, to change his mindset from one where he was defending very serious claims against him to a mindset where he can now acknowledge his offending and express a general sense of remorse. He has enrolled in a sexual offenders treatment program which specifically deals with his offending. The Tribunal notes the letter provided in support of that enrolment is dated 17 September 2021 and an initial appointment was booked for Monday 11 October 2021 at 11.00 am. The letter records that the specific treatment needs and duration of treatment are required to be formulated after the initial assessment process which usually takes a couple of sessions to complete. (The Tribunal observes it has not been provided with any updated information concerning the respondent's participation in this program other than the oral submission at the bar table today that the respondent has participated in three sessions); and

(q) he would anticipate, in respect of future re-employment, to be able to return to employment in the medical practice operated by his wife or, if that was not possible, that several colleagues had indicated that he could apply for a position with them.

• [35] There is no material as to the respondent's progression with the sexual offender's program. There are no personal references and there are no medical reports.

• [36] The parties are agreed on the characterisation of the conduct in each referral as professional misconduct. It is not disputed by the parties that the purpose of disciplinary proceedings is to maintain professional standards and public confidence in the profession and to protect the public.
• [37] The parties accept that the factors relevant to the Tribunal's decision on sanction include, non exhaustively[3]:

(a) the nature and seriousness of the conduct;

(b) whether the practitioner acknowledges culpability and whether there is evidence of contrition or remorse;

(c) what needs for specific or general deterrence arise;

(d) whether there have been other disciplinary findings before or after the conduct in question;

(e) evidence of character;

(f) evidence of rehabilitation;

(g) whether there has been delay from the time the investigation started to the conclusion of the matter in the Tribunal; and

(h) any other mitigating factors.

• [38] An assessment of the ongoing risk proposed by the practitioner is essential to any determination of sanction.
• [39] As to insight, a practitioner's insight may be reflected in a variety of ways, including such as an understanding of the nature of the conduct, an acceptance that the conduct was seriously wrong, an appreciation of why the practitioner engaged in that conduct, empathy for the consequences and/or the willingness to take measures to identify risk factors and avoid similar behaviour.[4]
• [40] The applicant accepts that any suspension served by the practitioner may be a relevant feature in determining the appropriate sanction.[5]

• [41] Whilst the parties have agreed that the admitted conduct for each referral constitutes professional misconduct, it is necessary for the Tribunal to determine, pursuant to s 107 of the Act:

(a) whether, in respect of each referral the respondent's conduct constitutes 'unsatisfactory professional performance", 'unprofessional conduct' or 'professional misconduct'; and

(b) the appropriate disciplinary sanction.

• [42] Section 5 of the Health Practitioner Regulation National Law (Qld) (National Law) defines "professional misconduct" as follows:

"professional misconduct_, of a registered health practitioner, includes - _

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession."

• [43] The authorities provide that the Tribunal is not required to determine which subsection of section 5 is engaged where the respondent accepts that cancellation of registration is warranted to achieve the purpose of the disciplinary proceedings[6]. However, in their written submissions the parties were at odds as to whether this case calls for the cancellation of the respondent's registration. They agree that the important distinction between suspension and cancellation of registration is that, in the latter case, it is necessary for the respondent on seeking registration to demonstrate that he is then a fit and proper person to be registered[7]. As the oral submissions for the respondent were developed, the respondent maintained a preference for suspension, but accepted that cancellation of the respondent's registration was open to the Tribunal, in respect of the conduct the subject of the first referral.
• [44] In order to cancel the respondent's registration, the Tribunal needs to decide that the respondent is not a fit and proper person to be registered as a medical practitioner.[8] The Tribunal must make that assessment at the date of hearing.[9]
• [45] The applicant's contention is that:

(a) the conduct the subject of the first referral readily fits within the limbs of each of (a) and (c) of the definition because it involved, as found by the sentencing judge, a 'gross violation of the relationship between a doctor and patient' who noted that 'an offence of this nature can undermine public confidence in the medical profession'. Further it had a significant effect on the patient and the conduct struck at the core of the trust inherent in the doctor/patient relationship, as identified in clause 3.2 of the Good Medical Practice: A Code of Conduct for Doctors in Australia (Code of Conduct) and clause 4 of the Sexual Boundaries: Guidelines for Doctors (Guidelines). It was a grave abuse of trust of the patient, was completely inconsistent with the respondent's professional and ethical obligations as a registered medical practitioner and, further, was unprofessional conduct that was substantially below the conduct reasonably expected of a medical practitioner of equivalent level of training or experience [10];

(b) the conduct the subject of the second referral should be characterised as professional misconduct because:

(i) it was of a serious nature involving the respondent having contact with female patients in circumstances where he was restricted from doing so due to his conviction for sexually assaulting a female patient;

(ii) based on the respondent's own admissions, the respondent put his desire to help his wife over and above his professional obligations as a health practitioner[11];

(iii) the conduct was not inadvertent, but repeated on a number of occasions with a number of patients, over a lengthy period of time. Where it not for the complaint being made, the respondent may have continued to breach his conditions;

(iv) the Tribunal has previously considered that similar conduct amounts to professional misconduct in Health Ombudsman v Vu[12]; and

(c) when considered in combination, it is the case that the respondent has engaged in more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

• [46] The respondent does not address, in his written submissions, which limbs of the definition of 'professional misconduct" are applicable. In oral submissions the respondent contended primarily that:

(a) whilst the conduct constituting the sexual assault rendered the applicant not a fit and proper person at the time it occurred, a number of factors went to demonstrating that the Tribunal could be satisfied the respondent was a fit and proper person now;

(b) those factors included:

(i) the time which had elapsed since the conduct occurred, which was now 6 and a half years;

(ii) that the respondent had not committed any further instances of like misconduct since that time (putting aside the breaches of conditions);

(iii) the respondent was remorseful as was set out in his affidavit, from at least the time that his appeal against his criminal conviction failed in April of 2020 and that should be accepted, that it was appropriate for him to otherwise contest his innocence to that point; and

(iv) there were nascent attempts at rehabilitation, although the evidence of that was limited.

• [47] Relevantly, in the authorities referred to by the parties the Tribunal has, on other occasions, characterised the misconduct:

(a) in Gebusion as coming with all three limbs of the definition[13];

(b) in Mutasa as professional misconduct, without descending into which limb was engaged[14];

(c) in Vu as, for each of the charges, coming within the definition and, when taken in combination, undoubtedly being caught by each limb[15];

(d) in Lee, on the majority of the allegations, as coming within section 5(c) of the National Law, as conduct inconsistent with him being a fit and proper person to hold registration[16];

(e) in each of Thomas[17], Arulanandarajah[18] and Duggirala[19] as conduct which came within both s 5(a) and (c) of the National Law.

• [48] The Tribunal is comfortably satisfied on the facts of this case that the respondent's conduct contained in the agreed facts in respect of the first referral constitutes professional misconduct within each of sections 5(a) and 5(c) of the National Law.
• [49] By reason of the way in which the orders will be made on the separate referrals, it is not necessary for the Tribunal to descend into which specific subsection of section 5 is engaged by the conduct contained in the second referral. The Tribunal is, however, comfortably satisfied that the respondent's conduct contained in the agreed facts in respect of the second referral constitutes professional misconduct within the meaning of that term in section 5 of the National Law.
• [50] When turning to sanction, it is important that these proceedings are protective in nature and not punitive. The Tribunal must regard the health and safety of the public as paramount[20]. The sanction in a particular case is to be considered based on the peculiar facts and be crafted as something which best achieves these purposes.
• [51] General deterrence is always an important aspect of disciplinary proceedings such as this because of the need to send a message to other professionals that to behave in this way is apt to bring the profession into disrepute and to lower public respect for and confidence in what is properly to be considered a noble and essential profession.
• [52] As the issue of cancellation of the respondent's registration is a live one, the Tribunal notes that a useful list of factors that might be considered in determining whether a practitioner is a fit and proper person to hold registration as a medical practitioner is set out at [68] of Health Ombudsman v Duggirala[21] in the following terms, relying on the judgments of the New South Wales Court of Appeal in McBride v Walton_[22]_, quoting from the Medical Tribunal below:

"To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine one must consider:

(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of the misconduct qua fitness to practise medicine;

(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character;

(d) the motivation which may have given rise to the proven episode of misconduct;

(e) the underlying qualities of character shown by previous and other conduct; and

(f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner."

• [53] The Tribunal will return to these factors presently.

The comparable authorities referred to by the parties

• [54] The Tribunal turns to the comparable cases cited by the parties, noting that generally previous decisions of this Tribunal and its interstate equivalents may serve as a useful guide in determining an appropriate sanction, but each case is to be determined on its particular facts. Each of the parties has referred the Tribunal to a large number of authorities which the Tribunal has considered.
• [55] The applicant concedes in its written submissions that the matters of Medical Board of Australia v Lee (Review and Regulation)[23] and Medical Board of Australia v Thomas (Review and Regulation) (Corrected)[24] (with sanctions of cancellation of registration and effective disqualification periods of six and five years respectively) involve conduct which was more serious than that of the respondent in this case[25]. That is an appropriately made and fair concession.
• [56] The applicant has also referred the Tribunal to Health Ombudsman v Vu[26], contending it is particularly useful as it also involved inappropriate conduct by a health practitioner against a patient and the breach of conditions designed to prevent the practitioner having conduct with patients of a certain gender. Having read the decision, the Tribunal regards the circumstances in Vu as significantly more serious than in the present case because:

(a) the boundary violations were repeated, escalating and in the form of grooming;

(b) there was deliberate falsification of the true position concerning the respondent's ongoing employment and

(c) there was a failure to comply with conditions.

• [57] In Health Care Complaints Commission v Priyamanna No 2[27] , a general practitioner was employed by the Home Doctor Service. In December 2013 he attended a female patient for a consultation at her home. The patient's symptoms included a sore throat and headache. The doctor sat close to her on a lounge and massaged her bare thigh twice. He massaged both her breasts whilst examining her chest. He examined her lower abdomen whilst she was standing up and, while doing so, dropped his hand and grabbed her vagina area (over her clothing). In this case there was evidence the practitioner accepted the Tribunal's decision (that he had engaged in inappropriate behaviour of a sexual nature) although he did not agree with it.[28] The inappropriate behaviour was brief in duration but had caused significant psychological distress.[29] It was opportunistic.[30]. The Tribunal cancelled the doctor's registration and ordered the Doctor may not seek a review of the order for 2 years from the date of order.
• [58] The applicant submits that the conduct here in terms of the sexual assault is similar. As the matter was determined under the New South Wales regime, the applicant submitted the order was one which related to the review of the order for cancellation; there would be another step before re registration could occur, assuming the review was successful.
• [59] The respondent submitted in oral submissions that the offending was objectively more serious as it involved conduct in the patient's home. Further, the medical practitioner had previous disciplinary proceedings for unsatisfactory professional conduct in his treatment of female patients, resulting in chaperone conditions and the sexual assault had occurred only six years later.
• [60] The Tribunal notes there was no allegation of breach of conditions on registration in this particular decision.
• [61] Whilst not referred to in the written submissions, the applicant referred the Tribunal by email two further and very recent decisions of this Tribunal: Health Ombudsman v Duggirala[31] and Health Ombudsman v Haririchian, a matter which came on before me on 9 March 2022 and in which I delivered ex tempore reasons which are yet to be formally published. The Tribunal has considered both of those authorities in reaching its decision. It observes that Duggirala was in no way factually comparable as the respondent submitted and it has been set to one side, save for the matters of principle already alluded to.
• [62] The respondent has referred the Tribunal to a number of authorities.
• [63] In relation to the matter of Health Ombudsman v Gebusion_[32]_ the respondent indicated it had been advanced in support of the position which should be taken on the duration of any suspension in the event that an order for cancellation was not being made. The Tribunal indicates it is seized of the facts of that decision and regards those as broadly comparable on some aspects. Whilst the actual sexual assault there may have been a little more protracted, there was a plea of guilty thus avoiding the need for a trial and providing some demonstration of remorse at an earlier point. Further the case did not involve working, subsequently, in breach of conditions, which makes it in that respect significantly less serious than the circumstances here. The Tribunal notes in that case the respondent's registration was cancelled and the disqualification period was two years.
• [64] Counsel for the respondent accepted that the facts in Medical Board of Australia v Arulanandarajah (Review and Regulation)[33] were so significantly different that it did not provide the Tribunal assistance. That was a well made concession. Of relevance in that case, however, is the following statement of principle:

"sexual assault by a doctor clearly flies in the faced of the fundamental tenet that the medical profession has a responsibility to care for and protect members of the community. ... in this case the victim suffered profound negative consequences. The contradiction between such conduct and the duty and reputation of the profession is so stark that some period out of practice is called for.... There are a number of strongly mitigating factors in this case which point to a lesser period of disqualification being imposed than would otherwise be the case..."[34]

• [65] Arulanandarajah was a case in which the parties agreed cancellation of registration was required. The Tribunal observed that this case was in many ways "an exemplar of rehabilitation".[35] In determining a three month suspension of registration was appropriate the Tribunal pointed to the following factors:

(a) that the conduct was sufficiently serious and harmful to the reputation of the profession as to warrant a period out of practice for general deterrence purposes;

(b) the connection of the criminal conduct with practice was only slight, the delay was long, the practitioner had insight and rehabilitation, there were no present concerns about protection of patients or colleagues, there were numerous positive references, and the practitioner had made contributions to the profession and the community[36].

• [66] In oral submissions the respondent did not seek to rely on Health Ombudsman v Mutasa[37] in respect of delay, conceding that it was factually not comparable.
• [67] The Tribunal indicates it has otherwise considered the authorities referred to in the respective submissions in coming to its decision.
• [68] The Tribunal turns now to the specific factors relevant to sanction in this case and the parties' submissions about those things.

• [69] The applicant submits that the respondent's sexual assault of the patient and subsequent breaches of conditions on his registration were serious because:

(a) the criminal conduct amounted to a serious, non-consensual physical violation of his patient. It was a most serious breach of practitioner-patient boundaries without any professional justification and an abuse of the position of trust he occupied as the patient's practitioner;

(b) there was a significant power imbalance between the respondent and the patient who he had treated sporadically over the previous two years;

(c) the patient was significantly impacted by the respondent's conduct;

(d) until quite recently, it would not appear the respondent has sought to confront the personal and professional failings underlining his misconduct or the reasons or motivations for it;

(e) in then having contact with female patients in breach of his conditions, repeatedly and over a significant time period, the respondent showed little respect for the significance and purpose of the conditions on his registration; and

(f) notwithstanding that no complaint arose from the patients who were the subject of the respondent's conduct in breach of the conditions, his conduct was inappropriate.

• [70] The respondent submits, in respect of the conviction for sexual assault that the fact that he was charged with one count of rape, one count of attempted rape and one count of sexual assault needs to be more fully addressed in terms of any suggestion of lack of remorse. The jury was not satisfied any of the conduct as initially charged had occurred, as he was acquitted of those three charges and it was proper for him to maintain his innocence. The jury convicted the respondent of the offence of sexual assault comprised as set out earlier on these reasons. That conduct can be categorised as brief, opportunistic and spontaneous.
• [71] In respect of the second referral being a breach of conditions, the respondent accepts he breached the conditions and concedes his conduct in treating female patients or assisting in procedures on them has caused them to feel uncomfortable or betrayed. The respondent submits his conduct in breaching his conditions was not to reoffend nor take advantage of his position of trust, there was no deceit or fraudulent behaviour by him. Rather, he simply assisted his wife or performed procedures when asked to do so on a handful of occasions. The respondent submits the conduct was isolated in the sense that it was not frequent or regular, as it occurred on six occasions over five months.
• [72] Whilst the Tribunal accepts that the sexual assault of which the respondent was convicted was not, objectively, in the most serious category of conduct for such an offence, it was, objectively speaking extremely serious conduct. The Tribunal accepts the applicant's submissions as to the seriousness of the respondent's conduct in respect of the sexual assault.
• [73] As to the conduct the subject of the second referral, whilst it was not as frequent as that in Vu, it was not isolated. There is, further, no suggestion the respondent would have desisted in the conduct had a complaint not been made about it to the regulator. The respondent had signed an acknowledgement on 10 June 2019 that he understood he must cease all contact with female patients and that he had received, read and understood the conditions imposed on his registration[38]. In engaging in this conduct, the Tribunal finds the respondent has demonstrated a concerning lack of understanding as to the purpose of the conditions.

• [74] The applicant accepts there is some limited insight shown by the respondent having recently appearing to accept responsibility for the conduct (as set out in his affidavit).
• [75] The applicant also accepts, that the respondent has demonstrated some insight and remorse in seeking to engage in psychological treatment in relation to his conduct, but that this was at a late stage.
• [76] The applicant submits the respondent's explanation for breaching the conditions on his registration is unpersuasive, by reference to submissions made on his behalf in response to the notice from the Health Ombudsman of 20 November 2020.[39]
• [77] The applicant submits that the respondent seems to have, quite appropriately, resiled from the narrative that he was 'assisting' in 'emergency' situations only, by reference to the matters at paragraphs 30 and 31 of his affidavit but contends the respondent has failed to fulsomely take responsibility for his actions in breaching the conditions. The practitioner's language that he 'never had to worry about this happening' and that he 'fell into a trap',[40] suggests he is distancing himself from his own decisions to breach conditions of his registration. The goals of public protection and public confidence, which the conditions were directed to, were undermined by the respondent's conduct. It is difficult to have confidence that the respondent would abide by conditions in the future.
• [78] The respondent's submissions as to insight are that:

(a) he concedes that he was not successful in his appeal, and he has since resiled from his position of innocence and accepted responsibility of his actions, as supported by his affidavit. He specifically acknowledges the impropriety of his offending and expresses general remorse for his actions[41]; and

(b) whilst it might be late, and somewhat limited, the respondent has taken steps to address his offending by enrolling in a psychological treatment program[42] and by taking time to consider and reflect on relevant medical board publications which shows an acceptance that the conduct was wrong, evinces a clear intention to gain a better understanding as to why he engaged in that conduct, as well as being indicative of a willingness to do what is necessary to prevent further transgressions[43].

• [79] The respondent points to having felt the immediate consequences of his breach of conditions through suspension of his ability to practice medicine, and the associated financial, emotional and social consequences of being suspended. The respondent has deposed that his suspension has deterred him and implicitly states he would never place himself in that position again. As such the respondent therefore submits the Tribunal can readily accept the deterrent effect of that suspension has been felt by the respondent and it is highly unlikely he would breach conditions into the future. The respondent accepts this conduct is serious and undermines public confidence in the registration system, but these matters are relevant in determining the objective seriousness of his conduct as well as his levels of insight and remorse.
• [80] In weighing the matters relevant to the issues of insight, remorse and future risk the Tribunal finds:

(a) there is some evidence of remorse for the sexual assault offending, but it is late, and scant in all the circumstances, particularly given the 6.5 years which have passed since the conduct occurred. The Tribunal has not been afforded any evidence as to the respondent's ongoing participation in or progress with the sexual offending program;

(b) unlike the practitioner in Arulanandarajah, there is no significant evidence that the respondent has used the time since his initial offence to work on deep or long-lasting rehabilitation. That assumes significance in the consideration of issues of public protection; and

(c) the manner in which the respondent has addressed his failures to comply with the conditions on his registration not to consult female patients does not do him credit. It is plain that he was not involved only in assisting Dr Rasika in emergencies and difficult situations as he initially advanced to the regulator.

• [81] The Tribunal accepts there is some nascent remorse demonstrated by the respondent and some limited insight.
• [82] It further accepts that there has, undoubtedly, been a significant measure of specific deterrence experienced by the respondent as a consequence of the criminal and disciplinary processes, the impacts on his ability to practice, and the consequent financial impacts and social stigma and media attention that he has deposed to.
• [83] The Tribunal notes that there have been no disciplinary notifications in the period since the sexual assault occurred other than in respect of the second referral. It records, however, that the opportunities have been somewhat limited in that regard given, firstly the chaperone conditions and, thereafter, the gender conditions, which were not complied with.
• [84] The Tribunal is guarded, on the material before it, about future risk.

• [85] The respondent submits that delay is an important feature for the Tribunal to consider, relying primarily on the fact that the sexual assault occurred 6 and a half years ago and, since that time, there has been no sexual offending.
• [86] The applicant's submission is that this is not a significant mitigating factor: whilst the proceedings may have been hanging over the respondent, a lengthy delay can afford a chance to show rehabilitation, but there is no significant evidence of that in this case.
• [87] The Tribunal accepts that there have been no further convictions for sexual assault, however the breaches of the conditions and the failure to demonstrate rehabilitation in this period render this a mitigating factor of little weight.

• [88] The respondent submits and the applicant accepts that his health has been directly impacted by being charged, convicted and punished for his offending.
• [89] Properly, the respondent acknowledges the principles in the authorities to the effect that personal matters such as shame, personal ordeal and financial difficulty likely to be caused by a cancellation or suspension are of little relevance save insofar as they contribute to the specific deterrence of the practitioner[44].
• [90] The Tribunal acknowledges the respondent's submissions. It accepts these features of the matter have some relevance to sanction, particularly in circumstances where, at the time the respondent suffered the accident, he had been charged with serious offences which the jury ultimately acquitted him of.
• [91] The applicant acknowledges the respondent has been suspended for a total of 465 days which totals 1 year, three months and 11 days as at today.
• [92] As to whether the respondent is presently a fit and proper person to hold registration the Tribunal makes the following findings:

(a) the respondent has never explained his conduct in committing the sexual assault, which he denied for a long time. The Tribunal accepts that it was an isolated incident (in that there has been no further offending). However, the subsequent breaches of the conditions on his registration, and his initially less than fulsome explanations for them bespeak, at least, a lack of understanding of the point and purpose of such conditions which is concerning. They make it difficult for the Tribunal to be satisfied that the original assault (although of a different order of magnitude) was an error of judgment, rather than a defect in character of the respondent;

(b) the sexual assault was intrinsically serious misconduct, a qua fitness to practise medicine;

(c) the original conduct, taken with the subsequent breaches, tends to suggest that the practitioner lacks understanding of what is required of a medical practitioner behaving professionally and properly towards members of the public and there is, at best for the practitioner, an inability to grapple with how to improve his practices;

(d) in the absence of explanation as to motivation, the sexual assault can only have been for personal gratification; and

(e) the post sexual offending conduct is marred by the breach of conditions as already addressed. Overall, the Tribunal does not accept that the practitioner's conduct post the proven episodes of misconduct demonstrates that public and professional confidence may be reposed in him to uphold the high standards of moral rectitude required of a medical practitioner.

• [93] The Tribunal determines that the respondent is not presently a fit and proper person to be registered as a medical practitioner and that an order for cancellation of his registration is appropriate.
• [94] The Tribunal has derived assistance from the assessors on questions of fact and thanks the assessors for their thoughtful engagement and assistance.

• [95] Balancing all of these features, the Tribunal determines in respect of the first referral:

(a) there is a finding of professional misconduct in the terms of section 5(a) and (c) of the National Law;

(b) there will be a reprimand (which has been agreed as appropriate by the parties and which the Tribunal endorses is appropriate);

(c) there will be an order for cancellation of the respondent's registration;

(d) there will be a period of further disqualification of 2 years from the date of this order before the respondent may apply for reregistration. In fixing such a period the Tribunal has had reference to:

(i) the conduct the subject of the first referral and, in terms of post offending conduct, the conduct in the second referral;

(ii) the evidence of the respondent's remorse and insight;

(iii) the time the respondent has already spent suspended wholly from medical practice;

(iv) the personal factors to the respondent, in terms the injuries he suffered in the accident, the overall delay since the original sexual assault occurred and the issues of specific deterrence; and

(v) the need to ensure the Tribunal acts to protect the public, but that any sanction is not punitive;

(e) Each party will pay their own costs.

• [96] The Tribunal determines in respect of the second referral:

(a) there is a finding of professional misconduct in breach of section 5 of the National Law;

(b) there will be a reprimand (which has been agreed as appropriate by the parties and which the Tribunal endorses is appropriate);

(c) each party will pay their own costs.

• [97] In accordance with s 62(2)(a)(ii) of the HO Act, the Tribunal sets aside the immediate regulation action which was taken by the regulator on 7 December 2020.

[1] Applicant's submissions at 61 - 62; Respondent's submissions at 3.

[2] Applicant's submissions at 2b; Respondent's submissions at 3.

[3] Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822 at [43].

[5] Psychology Board of Australia v GA [2014] QCAT 409 at [39]; Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 at [21].

[6] Health Ombudsman v Barber [2017] QCAT 431 at 7, [26] per Sheridan DCJ Deputy President; Health Ombudsman v Brown [2019] QCAT 218 at 6, [21] per Allen QC DCJ, Deputy President; Health Ombudsman v Vale [2020] QCAT 363 at 5, [15] per Judicial Member McGill QC.

[7] Applicant's submissions at 88; respondent's submissions at 38.

[9] Medical Board of Australia v Cukler (2017) VCAT 109; Health Ombudsman v Field [2019] QCAT 243 at [36].

[10] Applicant's submissions at [51] - [56].

[11] Affidavit of the respondent dated 17 September 2021, paragraph 32.

[12] [2021] QCAT 240.

[13] Health Ombudsman v Gebusion [2021] QCAT 102 at [37].

[14] Health Ombudsman v Mutasa [2019] QCAT 315 at [10].

[16] ` Medical Board of Australia v Lee (Review & Regulation) [2020] VCAT 568 at [6].

[17] Medical Board of Australia v Thomas (Review and Regulation) (Corrected) [2021] VCAT 229 at [9]: the respondent admitted this to be so.

[18] Medical Board of Australia v Arulanandorajah (Review and Regulation) [2021] VCAT 85 at [1].

[19] Health Ombudsman v Duggiralla [2021] QCAT 326 at [41].

[20] Section 4(2)(c) Health Ombudsman Act 2013.

[21] [2021] QCAT 326.

[23] [2020] VCAT 568.

[24] [2021] VCAT 229.

[25] Applicant's submissions at [80].

[26] [2021] ACAT 240.

[27] [2016] NSWCATOD 3.

[31] [2021] QCAT 326.

[32] [2021] QCAT 102.

[33] [2021] VCAT 85.

[37] [2019] QCAT 315.

[39] Agreed Bundle, document 24, submissions from practitioner dated 20 November 2020.

[40] Affidavit of the respondent, dated 17 September 2021, paragraph 32.

[43] See for example the remarks in Medical Board of Australia v Jansz (Occupational and Business Regulation) [2011] VCAT 1026 at [370], per Jenkins J.

[44] Medical Board of Australia v Lee (Review and Regulation) [2020] VCAT 568 at 26(e), referring to Medical Board of Australia v Jansz (Occupational and Business Regulation) [2011] VCAT 1026 at [369].