Karalasingham v Medical Council of New South Wales

NCAT Occupational|2021-03-29|Before: Associate Prof P

oved by the Medical Council. (f) To nominate an experienced General Practitioner to act as his professional mentor for approval by the Medical Council in accordance with the Medical Council's "Compliance Policy - Mentoring" (as varied from time to time) and as subsequently determined by the appropriate review body. (i) At each mentoring meeting the practitioner is to include discussion of the issues highlighted in the decision which imposed this condition, any ethical or medico-legal issues and any personal and/or practice issues as they arise. (ii) To authorise the mentor to report, in an approved format, to the Medical Council every three months about the fact of contact, and to inform the Medical Council if there is any concern about his professional conduct or personal wellbeing. (iii) To authorise the Medical Council to provide proposed and approved mentors with a copy of the decision which imposed this condition and any other decision or report relevant to the practitioner. (g) To treat no more than 25 patients in any one day. (h) To work no more than 5 days per week. (i) The practitioner is to submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council and: (i) The audit is to be held within six months from the date the practitioner recommences medical practice (or such date as the Medical Council is able to achieve given its current workload) and subsequently as required by the Medical Council; (ii) The auditor(s) is to assess the practitioner's compliance with good medical record keeping standards and legislative requirements; (iii) To authorise the auditor(s) to provide the Medical Council with a report on their findings; (iv) To meet all costs associated with the audit(s) and any subsequent reports. (j) To authorise and consent to any exchange of information between the Medical Council and Medicare Australia for the purpose of monitoring compliance with these conditions. Private health conditions (k) To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (i) Is to authorise the treating practitioner to inform the Medical Council of any of the following: (A) failure to attend for treatment; (B) termination of treatment; (C) a significant change in health status (including a significant temporary change). (ii) Must provide the Medical Council with the professional details of the treating practitioner. (l) To attend for assessment by a Council-appointed psychiatrist, as directed by the Medical Council and at the Medical Council's expense, and then to attend for review by a Council-appointed psychiatrist on a three-monthly basis or as otherwise directed by the Medical Council. (m) To attend a review interview conducted by the Medical Council on a three-monthly basis, or as otherwise directed by the Medical Council. (n) To authorise the Medical Council to forward copies of this decision, any subsequent Medical Council review interview or other report and any other information relevant to his health and treatment to the Council-appointed psychiatrist and to his treating practitioner(s). (2) The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). (3) Sections 125-127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. Catchwords: HEALTH - professional registration and discipline - registration - application for reinstatement Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Baez v Medical Council of NSW [2020] NSWCATOD 127 Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45 Health Care Complaints Commission v Karalasingham [2019] NSWCATOD 23 Peter Cecil Harcourt Dawson v The Law Society of New South Wales [1989] NSWCA 58 Texts Cited: Nil Category: Principal judgment Parties: Rupasenan Karalasingham (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: R Mathur (Applicant) A Horvath (Respondent)

Solicitors: HWL Ebsworth Lawyers (Applicant) Health Professional Councils Authority (Respondent) File Number(s): 2020/00270591 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting publication of the name of any person identified as a patient or former patient of the Applicant or any information which may tend to identify any such person.

Introduction

On about 14 September 2020 Rupasenan Karalasingham ( "the Applicant") filed an Application in the Registry of the Tribunal seeking the following order: "Pursuant to Section 163B(1)(c) of the Health Practitioner Regulation National Law, the Tribunal orders that the Applicant be re-instated onto the Register of Medical Practitioners, subject to conditions."
It is the above application which was heard by us on 29 March 2021.
The evidence which was tendered before us is listed as follows:

Exhibit A1 Volume 1 of the Applicant's material (tabs 1 to 17)
Exhibit A2 Applicant's supplementary Bundle (tabs 1 to 5)
Exhibit A3 Signed copy of letters originally included in exhibit A1 (tabs 13 and 14)
Exhibit R1 Folder of documents of the Medical Council of New South Wales ("the Medical Council") (tabs 1 to 31)
MFI1 Draft proposed conditions submitted by the Medical Council
MFI 2 Draft proposed conditions submitted by the Applicant

Having heard the evidence from the only witness to give oral evidence (the Applicant) the parties made their submissions orally. At that time it became clear that each party was submitting that the Tribunal deal with this matter by permitting the reinstatement of the Applicant as a registered medical practitioner with conditions attached. As it transpired at the conclusion of the hearing, there were only minor differences between the parties as to the conditions they each sought the Tribunal to impose. The legal representatives for the parties helpfully agreed to prepare a Minute of Proposed Conditions which showed where they both agreed and where there was disagreement. The Minute was provided and we set it out here: 1. Not to undertake after-hours and hospital work, including in an Emergency Department. 2. To obtain Medical Council of NSW approval prior to changing nature or place of his practice. 3. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 4. To [practise] only in a group practice approved by the Medical Council of NSW, where there are at least 2 registered medical practitioners (excluding the subject practitioner), and: a) Where there is always one other registered medical practitioner on site; b) Where the patients and patient records are shared between the medical practitioners. 5. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: • communication; • patient assessment; • clinical diagnosis and judgment; • management planning; • follow-up and safety-netting; • clinical outcomes; • workload, including discussion of working hours and stress management; • Continuing Professional Development; • Ethical questions. b) At each supervision meeting, the Council-approved supervisor is to review a random selection of at least 5 medical records from the preceding fortnight. c) In addition to fortnightly supervision meetings, the practitioner is to attend observation sessions with the Council-approved supervisor. The observation sessions are to alternate between: • The practitioner observing the supervisor conduct at least 3 consultations with patients; • The supervisor observing the practitioner conduct at least 3 consultations with patients; I. [sic] The observed consultations are to be discussed during supervision meetings and feedback and details regarding the practitioner's progress during the period of observation is to be recorded in the supervision reports. d) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition and any other decision or report relevant to the practitioner. e) Not to practise until a supervisor has been approved by the Medical Council of NSW. 6. To nominate [an] experienced General Practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. a) At each mentoring meeting the practitioner is to include discussion of the issues highlighted in the decision which imposed this condition, any ethical and medico-legal issues and any personal and/or medical practice issues as they arise. b) To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, or personal wellbeing. c) To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which imposed this condition any other decision or report relevant to the practitioner. 7. To treat no more than 20 / or 30 patients in any one day. 8. To work no more than 5 days per week. 9. The practitioner is to submit an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: a) The audit it to be held within 6 months from the date the practitioner recommences medical practice… and subsequently as required by the Council. b) The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements. c) To authorise the auditor(s) to provide the Council with a report on their findings. d) To meet all costs associated with the audit(s) and any subsequent reports. 10. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 11. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 12. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. Private health conditions 13. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) must provide the Council with the professional details of the treating practitioner. 14. To attend for assessment by a Council-appointed psychiatrist, as directed by the Council and at the Council's expense and then to attend for review by a Council-appointed psychiatrist on a 3 monthly basis or as otherwise directed by the Medical Council of NSW. 15. To attend a Medical Council of NSW's Review Interview on a 3 monthly basis, or as otherwise directed by the Council. 16. To authorise the Medical Council of NSW to forward copies of this decision and any subsequent Council Review Interview or other reports and any other information relevant to his health and treatment to the Council-appointed practitioners and to his treating practitioners.
As can be seen from the above, the only remaining area of contest between the parties is the number of patients the applicant can treat in one day.
Notwithstanding there is agreement between the parties that reinstatement ought to be ordered by the Tribunal, it is still a requirement that we find that is the appropriate order to make.
In preparation for the hearing both the Applicant and the Medical Council sought advice from experts in the field of psychiatry. The Applicant also provided evidence from his psychologist, Dr Christopher Lennings.
Before reviewing the psychiatric and psychological evidence relied upon by the parties, we propose to consider the reasons for the Applicant having been de-registered by the Tribunal. That order was made on 12 February 2019.
Commencing at [22] of the reasons for decision in Health Care Complaints Commission v Karalasingham [2019] NSWCATOD 23, the Tribunal set out its findings in relation to the Applicant. Most of the alleged conduct was the subject of an admission by the Applicant. We here set out what the Tribunal found in relation to the conduct. "The admitted particulars The clinical complaints [22] On 17 October 2014 Patient A presented to the hospital with urine retention, a urinary tract infection and severe pain. Nine particulars of Complaint One are relied on in respect of an asserted lack of appropriate clinical care. [23] The particulars include allegations that the practitioner failed to conduct an adequate assessment of the patient by reviewing the patient's fluid balance chart, and a failure to order further tests. This was against a background of the patient being a newly diagnosed diabetic with urinary sepsis. It is also asserted that the practitioner prescribed Diamicron 60mgs in circumstances where insulin therapy should have been commenced. It further asserted that the practitioner, when discharging the patient from hospital on 19 October 2014, failed to provide sufficient information to the patient about the management of his diabetes, how to manage his indwelling catheter or to provide an appropriate referral to a diabetes educator or a dietician. [24] The HCCC rely on an expert report by a very experienced general practitioner, Dr Richard Abbott. In his report dated 24 June 2016, Dr Abbott is critical of the practitioner's prescribing for Patient A and the failure to commence insulin therapy. He opines that the practitioner's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. His is also very critical of the practitioner's actions in discharging the patient on 19 October 2014. [25] We find the practitioner's concessions in respect of Patient A are properly made. We agree with and adopt the opinions expressed by Dr Abbott in respect of this patient. [26] The second clinical complaint concerns Patient B. The Further Amended Complaint notes that Patient B presented to the hospital on 17 January 2015 with a six hour history of right sided abdominal pain. Five particulars are relied on by the HCCC to support Complaint One insofar as it relates to Patient B. The particulars include a failure to consider a differential diagnosis, a failure to consider and carry out further investigations when the patient re-presented later on 17 January 2015, or to consider a longer observation period. It is also asserted that although the practitioner consulted the Emergency Consultant at Tamworth Hospital he failed to provide full and adequate information to the consultant. It is further asserted the practitioner failed to provide adequate discharge advice to the patient that he should urgently attend John Hunter Hospital for further assessment and investigations. [27] Dr Abbott opines that the practitioner's clinical assessment of this patient was significantly below the expected standard. He states that it was reasonable to permit the patient to be discharged at 15.40 hours, although follow up assessment and advice should have been given. He is not critical of the initial discharge decision of the practitioner. However, he finds the practitioner's treatment of the patient when he re-presented at 17.30 hours was below standard. He is critical of the practitioner for failing to provide adequate advice to the patient to attend John Hunter Hospital as soon as possible. We agree with and accept Dr Abbott's conclusions. The hospital record keeping complaints [28] As noted in the Agreed Statement of Facts the practitioner concedes that his record keeping for Patients A, B and C were inadequate. Dr Abbott opines that the practitioner's record keeping did not comply with the regulation. We agree and are accordingly satisfied that Complaint Two is established. The breach of practising conditions [29] Although the practitioner has conceded he breached the conditions placed on his registration by the delegates, we think it is important that we commence our consideration of his concessions by referring to well established authority on this topic. Recently, in Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [131]-[133] the Tribunal said as follows: 'As has been frequently noted in decisions of this Tribunal, and the former Medical Tribunal of NSW, the compliance with conditions imposed by a Council is critical to the health and safety of the public. Practitioners in many instances are able to retain their registration only because a council is satisfied that conditions imposed ameliorate risk to the public and/or maintain a practitioner's health and well-being.' [30] The importance of compliance with conditions is discussed in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at 74 where it is noted: '[74] When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed, as observed in Re Dr Than Le (supra).' [31] Earlier in the judgment, the Court of Appeal quoted from the findings of the then Medical Tribunal of NSW with apparent approval as follows: '[45] The Tribunal adopted the statement made by a Medical Tribunal in Re Dr Than Le (Medical Tribunal decision, 20 September 2001 at 46, para 95):' "Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, 'containing as it does a grave criticism of the standard of the practitioner's conduct'." [32] The Agreed Statement of Facts sets out in a tabular form the days and number of hours worked by the practitioner without an approved supervisor on site. The Agreed Statement of Facts also notes that the practitioner breached the condition that he consult no more than 30 patients in a 24 hour period on 48 separate occasions, and he consulted more than 150 patients in any given 7 day period on 60 occasions. [33] In his submissions counsel for the practitioner, Mr S Barnes, referred to the reasons of the delegates in the s 150 proceedings, and asserted that the manner in which the HCCC calculated a seven day period on a rolling basis was misleading and not what the delegates had intended. He also submitted that we should have regard to the fact that the practitioner on a number of occasions only exceeded the number of patients he could see by one patient. We accept that these submissions have some weight. However, we also observe that on one occasion the practitioner saw 48 patients, and on another 38 patients. He saw 32 or 33 patients in a 24 hour period on a number of occasions. [34] We found the practitioner's evidence on this topic telling. He sought to shift the responsibility for compliance with the condition not to see more than 30 patients in any one day to the receptionist or practice manager rather than taking personal responsibility for his action. His evidence appeared to ignore the concerns of the delegates about patient safety potentially being compromised by his long work hours. He agreed in answering questions posed to him in cross-examination that he had disagreed with the delegates' position that he should be permitted to see only 30 patients per day because he felt he could see 35 patients without being stretched. [35] We were unable to accept the practitioner's evidence that he relied on advice from a compliance officer at the Council that he had a six week period of grace from when the conditions were imposed to find a supervisor so that he could continue to practise without an approved supervisor being present at the practice at the same time as he was practising. He explained in his oral evidence that his actions in failing to comply with the conditions imposed were due to mistakes and that he now took full responsibility for his non-compliance. We found the practitioner's evidence on this topic inherently unreliable. The practitioner was represented by very experienced lawyers, and had the benefit of legal assistance throughout the s 150 hearing. We find he well knew the terms of the conditions. We are satisfied that he put his own financial imperatives ahead of proper compliance. We do not accept the breaches occurred because of "mistakes". The Medicare claims and clinical records [36] The Agreed Statement of Facts notes that on three dates in June 2016 the practitioner treated Patients D to P while practising at the Marrickville Medical Centre. [37] It is agreed that the practitioner made a false claim on Medicare that he had reviewed a General Practitioner Mental Health Care Plan for patients D, G, J and L, when he had not seen those patients. The practitioner also falsified these four patient's records by himself completing a Kessler Psychological Distress Scale (K 10 Form) without discussing the form with the patients. [38] The practitioner accepts that he made a false claim on Medicare for consulting Patients D, E, F, G, H, I, J, K, L, M, N, O and P when he knew he had not seen these patients in person. [39] The practitioner falsified records on three occasions by forging patients' signatures on the Medicare bulk bill claim. He also, as noted above, falsified patient records by completing K 10 forms without discussing the questions, designed to be answered by the patient, with the patient on four occasions. [40] These actions by the practitioner occurred in 2016. He sought, in his first statement of 12 September 2018, to explain his conduct, at least in part, because of pressure he asserted was placed on him by a clinical psychologist who worked at the Centre. He also explained that he had repaid Medicare $14, 679.67 for his false claims in respect of Patients D, E, F, I, K, L, M, N and O. as well as voluntary repayments in relation to services billed for patients seen in breach of the registration condition, that is consulting in excess of 30 patients in a 24 hour period. He further explained at para 54 he had "recently submitted to Medicare voluntary acknowledgement of incorrect payments for claims I made to Medicare with respect to Patients G, H, J and P". He stated he intended to repay the monies on receipt of an invoice from Medicare. [41] The practitioner was extensively cross-examined about his false claims. He acknowledged he knew it was wrong in 2007 when he created medical certificates and falsified records. He then explained that he had then done an ethics course pursuant to orders made in the earlier disciplinary proceedings and he had learnt a lot from the Monash University course. [42] However, the practitioner conceded that he had undertaken this course in 2015. We find the character traits of dishonesty in knowingly creating false documents, including for financial gain, persisted notwithstanding so called "understandings" gained from the ethics course undertaken by the practitioner. The professional misconduct complaint [43] It is useful at this point in our reasons that we set out the definition of professional misconduct as found in the National Law: [44] Section 139E is in the following terms: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. [45] Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [22] sets out how a finding of professional misconduct may be established. His Honour also discusses the basis on which a tribunal may impose a period of time before a practitioner can seek re-instatement. Given the HCCC's position in this matter it is appropriate that at this point we include his Honour's discussion of that topic. His Honour explains: [17] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. Discussion and conclusion admitted particulars. [46] From our consideration of each of the particulars of complaints, we are satisfied that the practitioner's admissions are appropriately made. We discuss our conclusion that the complaint of professional misconduct is established below."
The Tribunal also decided "Matters in Issue" between the parties in that hearing. Having considered and reached conclusions on those matters the Tribunal concluded that had the Applicant been registered, at the time of the hearing, it would have been appropriate to cancel his registration for a period of 18 months. In reaching that determination the Tribunal had regard to the submission of the Health Care Complaints Commission (HCCC) that a period of five years should elapse before the Applicant can again apply to the Tribunal to be re-registered. In setting the 18-month period the Tribunal took into account that the Applicant had voluntarily surrendered his registration some two and a half years before the Tribunal decision.
It is clear that the conduct of the Applicant was seriously troubling and it is therefore important that we consider whether he has changed and if so, whether he should again be permitted to be registered. If he is to be registered, should there be conditions imposed? Both parties submit that if the Applicant is permitted to practise again he should have that practice supervised by the Medical Council.
The Applicant provided a list of questions which he submitted the authorities require to be considered when undertaking a study of the suitability of an Applicant for re-registration pursuant to section 163B of the Health Practitioner Regulation National Law (NSW) ("the National Law"). That list is as follows: "Proposed questions posed by the Applicant that are often considered by a Tribunal in a re-instatement application. 1. Does the Applicant demonstrate genuine remorse for previous actions? 2. Does the Applicant understand the basis for the previous findings of PM and UPC? 3. What has Applicant done to demonstrate he has learnt from the earlier findings? 4. Is he likely to breach any ethical requirements found in relevant codes of conduct? 5. Does the Applicant now fully appreciate the relevance of ethical requirements? 6. Does the Applicant acknowledge and appreciate the harm caused? 7. Is their proof that the person is a different person? 8. Are conditions on the Applicants registration required to meet the objectives of Sec 3A and if so what conditions are appropriate conditions?"
The Applicant also referred us to the following decisions: "Ex Parte Lenehan 77 CLR 403; Scully v Health Care Complaints Commission [2013] NSWNMT 2013 ("Scully"); Baez v Medical Council of NSW [2020] NSWCATOD 127 ("Baez")."
The respondent also submitted the decision in Baez v Medical Council of NSW [2020] NSWCATOD 127 ("Baez") at [37] is helpful.
In Baez the Tribunal set out the following description of the matters to be considered when an application for reinstatement is before the Tribunal: "The Legal Principles [37] We have applied the following legal principles which relate to reinstatement of health practitioners: (1) The purpose of the jurisdiction is to protect the public, not to punish Mr Baez. (2) The paramount consideration is the protection of the health and safety of the public: s 3A. (3) We must have regard to the objectives and guiding principles of the National Law: s 3. These include the protection of the public by ensuring that only practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered: s 3(2)(a). Clinical competence is not the only consideration in determining whether a person is appropriate to practise medicine. The relationship with each patient is affected by a practitioner's character being matters such as trust, confidence, confidentiality and right conduct. It is necessary for the public to be protected against those who may have the appropriate skills, but do not have the character, for the opportunities and privileges which the right to practise gives. (4) To practise as a health practitioner, a person must be a fit and proper person for general registration and be able to practise his or her profession competently and safely: s 55(1)(h). Whether we can conclude on the basis of all the evidence that Mr Baez is now a fit and proper person to be restored to the Register depends on his worthiness and reliability for the future. In making this assessment, inferences can be drawn from past conduct, particularly the conduct which led to removal from the Register. (5) The onus lies on Mr Baez to demonstrate that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, in particular in a manner that presents no risk to the safety of the public and their confidence in the profession. Clear proof is required to establish that there has been a reformation of character. An Applicant like Mr Baez is in a more disadvantageous position than an original Applicant - there is no presumption of fitness because his name was removed from the Register on the basis of unfitness. (6) Reformations of character and behaviour can occur but their occurrence is not the usual but the exceptional thing. It cannot be assumed that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a person has exhibited serious deficiencies in his or her standards of conduct and attitudes, it must require clear proof to show that some years later he or she has changed. (7) Mr Baez is not required to accept he was guilty of misconduct. Confession is not a necessary pre-condition to reinstatement. However there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness. (8) It is not a question of what Mr Baez has suffered in the past. It is a question of his worthiness and his reliability for the future. (9) There is no public interest in denying forever the chance of redemption and rehabilitation to a former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. (10) The standard of proof is the civil standard, on the balance of probabilities, to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. (Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166; Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13; Ameisen v Medical Council of NSW [2015] NSWCATOD 49; Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461; Zaidi v Health Care Complaints Commission [1998] NSWSC 335; (1998) 44 NSWLR 82; Re Mansoor Haider Zaidi [2006] NSWMT 6.)"
In Scully v Health Care Complaints Commission [2013] NSWNMT 7 ("Scully") the Tribunal set out in [40] a list of "issues required to be determined by the Tribunal". Those questions, although addressing the particular facts of that case, are, in our opinion, equally applicable to the current matter. The list is: "The following issues required determination by the Tribunal: • does the applicant demonstrate genuine and sincere remorse for her actions in respect of her relationship with Patient A; • does the applicant understand the basis on which the findings of professional misconduct and unsatisfactory professional conduct were founded; • what has the applicant done to demonstrate she has learnt from the findings of the earlier Tribunal; • is the applicant likely to breach any ethical requirements found in the relevant codes of conduct in the future, or does she now fully appreciate the purpose and relevance of the ethical requirements in the relevant codes of conduct; • does the applicant acknowledge and appreciate the harm she has, or may have, caused to Patient A, his family, her nursing colleagues and the general public; • having regard to the serious findings of the earlier Tribunal should any re-instatement order be subject to conditions; and • in the event the Tribunal determines conditions should be imposed, what conditions would be appropriate."
The Tribunal also said the following in Scully in relation to the principles to be applied in determining a reinstatement application: "Relevant legal principles and the National Law. [41] It was not a matter of controversy that the Applicant bears the onus of proving she is a fit and proper person to be engaged in the profession of nursing as an endorsed enrolled nurse. Nor was it in dispute that the standard of proof to be applied by the Tribunal is the civil standard of proof, that is on the balance of probabilities. Because of the nature of the jurisdiction, as set out in s 3 (2) (a) and s 3A of the National Law, is protective of the public, the Tribunal must be satisfied to a high level of probability that the Applicant is "fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence". (see In Re Jason Martin [2010] NSWMT 13; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) [42] It is appropriate that, at this point in our reasons, we set out the relevant provisions of the National Law. Section 163A (1) provides a person may apply to the appropriate review body (in this case the Tribunal) for the review of a "relevant order". Section 163 A (4)(b) defines a "relevant order" to be "an order that a person's registration as a registered health practitioner be cancelled". [43] The Tribunal's powers on review relevant to this application are found in s163C which provides as follows: (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; ... (c) make a reinstatement order; (3) A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if - (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. [44] The Tribunal's task in conducting the inquiry for review of the earlier order is found in s 163B. That section provides: (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. [45] The relevant legal principles in respect of an application to be re-registered are not in doubt and have been discussed in many decisions of courts, including the High Court of Australia, intermediate appellate courts, as well as tribunals. (see Re Lenehan (1948) 77 CLR 403; [1948] HCA 45 per Latham CJ, Dixon and Williams JJ at [33] Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488; Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Zaidi v HCCC [1998] NSWSC 335 per Mason P at 15) [46] We have already referred to the fact that in this application it is the applicant who bears the onus of proof. That onus is a high onus in a re-instatement application. [47] In In Re Jason Martin the Medical Tribunal of NSW explained first the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction being exercised is for the protection of the public. [48] Although decided in the context of lawyers who have been removed from the roll of practitioners, the principles enunciated in such cases are generally apposite to these proceedings. The High Court has made it plain that the power to re-instate should "be exercised with great caution and only upon solid and substantial grounds". However a court (or a tribunal) should exercise its discretion having regard to the facts of each case (see Lenehan). [49] While found in a dissenting judgment, the remarks of Kirby P (as his Honour then was) in Dawson have been adopted and applied in other decisions in this Tribunal. His Honour explained: There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance… [50] In In Re Jason Martin the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner will behaviour in the future and remarked that "the decision in the particular case is to a greater or lesser extent dependant [sic] upon the Tribunal's assessment of the applicant". The Tribunal explained "in making that assessment [the tribunal] may "draw inferences from what has happened in the past and in particular, what led to his [her] being removed from the Register". [51] As in all applications in which the Tribunal in NSW is involved under the National Law the guiding principle and object in s3A applies. That section provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration."

Evidence of the Applicant

The Applicant provided both written and oral evidence.
In his written evidence the Applicant provided a statement which he told us, under oath, was true and correct.
The statement of the Applicant is contained in exhibit A1 and consists of 15 pages. From our reading of that statement, we particularly noted the following:

He came to Australia in 1989 and enrolled at the University of Sydney. He graduated with a Bachelor of Medicine and a Bachelor of Surgery in 1992.
In 1997 he obtained a Fellowship of The Royal Australian College of General Practitioners (RACGP) and commenced work as a GP in sole practice at Merrylands. As he speaks a number of Sri Lankan languages, he saw many patients who consulted with him in their native tongue.
In 2007 he went before the former Medical Tribunal for falsifying medical certificates. He was reprimanded, fined $20,000 and had conditions placed upon his registration.
Following his attendance before the Medical Tribunal he acquired a practice in Warren, NSW and also held Visiting Medical Officer status at Warren Hospital in the Emergency Department. Before taking up the hospital post he was required to spend three weeks observing staff in the Emergency Department at Dubbo Hospital.
While working at Warren he was separated from his family, who were living in Sydney. In 2010 he returned to Sydney and worked as a GP at Menai.
In January 2011 he commenced weekend Emergency Department work in country hospitals in NSW. He worked every second weekend at Gunnedah Hospital Emergency Department. At that time he was working 88 hours per week.
In 2014 he moved to a practice at Marrickville. He continued his weekend work at Gunnedah until January 2015.
On 17 February 2015 the Hunter New England Local Health District made a complaint against him to the HCCC. It related to three patients who he had seen at the Gunnedah Hospital Emergency Department. The Medical Council convened a hearing and following same imposed conditions with effect from 13 July 2015.
On 24 May 2016 the HCCC received a further complaint about him which alleged he was not complying with the conditions set by the Medical Council. He made a number of admissions and then voluntarily ceased working as a medical practitioner in September 2016. He has not practised since.
On 12 February 2019 his registration was cancelled by the Tribunal.
Between about 2010 and 2013 he had to confront a growing problem his daughter was exhibiting. She showed signs of clinical depression. She would not accept any professional help. Both the Applicant and his wife were placed under extreme stress trying to help their only child who was exhibiting behavioural problems. That seemed to settle down in about 2013.
In 2019 he separated from his wife, with all their assets being sold and whatever was left going to his wife.
He explained what happened to him in 2019. He explained that he had read a book called "Changing Criminal Minds" by Sharp, which we understand to be a reference to Boyd Sharp's Changing Criminal Thinking: A Treatment Program. This was a revelation to him. He realised he had been a criminal. Reading the book led him to be able to take responsibility for his actions and not blame others for his shortcomings.
After much soul-searching and self-study he has resolved to practise only as a GP, not to do Emergency Department work and to only work five days a week and eight hours a day. He will look after his own health and that means regular gym sessions and remaining fit. He has also determined to participate more in activities he enjoys such as meditating, playing tennis and listening to contemporary music. He has also renewed friendships and has frequent contact with his group of friends.
He has read extensively during the time he has not been practising medicine, with a view to gaining insight into his previous practices and personality.
In relation to the false claims on Medicare, the Applicant said: "My behaviour was based on thinking errors, denial, greed, self-interest and short-sightedness… I had studied an ethics course and yet I didn't behave ethically. I am truly sorry. I believe at the time of completing this ethics course I was not ready to truly self-reflect and so many teachings were simply lost to me. In the last 14 months I have engaged in active learning, trying to read books and seeking answers for my past behaviour. I have learnt ethics in relation to my mistakes from several of the books… namely giving immoral reasoning."
In relation to how he is now a different person the Applicant said: "I now have an ethical model to follow in dealing with unusual requests like the psychologist's request" (this was a reference to his signing-off on mental health treatment plans for patients he had not seen at the time he signed the plan). He set out his model to follow: (i) What are the key issues in question? (ii) Who are the stakeholders? (iii) What ethical principles are involved? (iv) What are the core values involved? (v) What are the consequences of each decision? (vi) Weighing the strengths of each decision. (vii) What are the legal and professional obligations? (viii) Final decision. Law is above everything.
The Applicant expanded upon those topics and how he has thoroughly analysed his past behaviour, his motivations, his moral and ethical approaches and his core driving ambitions and needs. His analysis and consequent learning has driven a type of redemption which has arisen from that learning. He clearly sees himself as having been liberated by the revelations which have manifested through that learning.
During the time the Applicant has been de-registered he has arranged to observe other practising medical practitioners. He has been able to accompany GPs, a neurologist, an endocrinologist, a cardiologist (twice), a rheumatologist, a gastroenterologist (twice), and a paediatrician.
Since he gave up practice he has worked with mentors who he has sought out. The mentors are largely GPs, however, there are other medical practitioners who practise in different specialties who he has sought out and engaged with.
The Applicant sought out and obtained help from clinical psychologist, Dr Christopher Lennings. Through the sessions he has attended with Dr Lennings he says he has learnt a great deal about himself and has found Dr Lennings very supportive as he has worked through the parts of his personal makeup which let him down in the past.
He has attended upon the psychiatrist Dr Mary-Anne Friend and has been greatly assisted by her. He has been engaging with her since August 2019 and has had eight sessions with her.
He has had the benefit of re-engaging with friends from his past life who are also GPs. He has discussed with them the mistakes he has made and benefited from their counsel.
He has undertaken volunteer work with Red Cross and other organisations.

The Applicant has maintained his learning in medicine and has undertaken many hours of continuing professional education which have been recorded on the RACGP website.

Oral evidence of the Applicant

The Applicant informed the Tribunal that he had been working as a COVID-19 pathology collector. He confirmed the statement he had provided was accurate.
The Applicant was cross-examined by counsel for the Medical Council.
The Applicant was asked about preparing medical certificates for patients in 2004 and 2005 which were not accurate. He agreed he had done that. He said, when asked why he did it, that he did not know it was wrong to back-date the certificates. He said his motivation was compassion for the patients and that he also lacked assertiveness. When asked how he would avoid that type of behaviour in the future, he said he had undertaken a great deal of reading and learning on how to be assertive. He knows it is important to make decisions not based on emotions. Further, he has decided he will not make urgent decisions when he may be being pressured to do something which he understands may not be appropriate or ethical. He was under a great deal of financial stress at the time he committed the errors which gave rise to the complaints to the Medical Council. He has been through a divorce. He now feels he is a different person.
The Applicant was asked how he would deal with stress if he was back in practice. He said he feels he is "in a better place" psychologically, physically and mentally. He practises mindfulness and is able to control his stress. He goes to the gym regularly and has been able to re-engage with a wide range of friends.
The Applicant admitted he had been untruthful with the Medical Board of Australia, following an investigation in 2007 by the Medical Board and the former Department of Immigration. He was asked why the Tribunal might see that he would take a different pathway now. He said he had changed. He said he had been driven by ego in the past in a manner he had not recognised. He was greedy. He was earning $400,000 per annum then and was unhappy. He now lives on $50,000 per annum and is happy. His values in life have changed.
The Applicant said that the back-dating of medical certificates was a compassionate action to help people who faced being deported. He now sees the consequences of that type of conduct.
The Applicant said that in 2007, when he was confronted about his conduct concerning the signing of the false medical certificates, he had been fearful. He had acted out of fear. After that incident he had removed himself from Merrylands where he had been practising.
The Applicant agreed that if he was able to practise again he would be very fearful of making any error which might bring him back before the Medical Council.
The Applicant said that in 2011 he moved back to the city from the country, but he continued to do weekend locum work in country hospital Emergency Departments.
It was put that, although having undertaken an ethics course in 2007, the Applicant had made false Medicare claims in 2016. He agreed that had occurred. He said he had been accommodating to the psychologist who was in the same building as the medical practice in which he worked. He agreed, however, that at the same time he was interested in the income it created for him.
When challenged about how he would avoid such problems in the future, the Applicant said he now has personal tools which he lacked in the past. He will also have supervisors and mentors to refer to when needed.
The Applicant was asked about the hearing before the Medical Council in July 2015 and the conditions which were imposed following that hearing. He agreed he was forbidden to service more than 30 patients in any 24-hour period. He agreed he had breached that condition. He said he had relied upon the receptionist to count the patients for him. He said he had made that arrangement to make sure he did not see more than 30 patients a day, but he had been let down. He acknowledged that it had been his responsibility, not the receptionist's.
It was put that on one occasion the Applicant saw 48 patients in a day. He said he did not know how that could have happened. He denied he had seen 48 in a day. He would certainly have been aware of that level of over-run. He agreed he may have seen 31 or 32 in a day. He denied he would have seen 38 or 48. He said that would not have been possible given each patient was seen for 15 minutes. He was keen to accept he did breach the condition which required him to see only 30 patients a day. He agreed he could have breached that condition on 48 occasions. He also agreed there was a condition which required that he see no more than 150 patients in a 7-day period. He agreed that he breached that condition on 60 occasions.
The Applicant agreed he had been represented in the 2015 proceeding and had been made aware of the seriousness of breaching the conditions imposed upon his registration by the Medical Council at that hearing. He said that his "ego was still there. It was particularly irresponsible behaviour. When they put 30 per day I had a house mortgage to pay. I thought how can I see 30 a day and pay my bills. I asked for 35 a day but the Medical Council said 30."
When asked how the Tribunal could be confident he would not breach any conditions the Tribunal might set, the Applicant said: "I am now a different person."
The Applicant was asked about the nine mental health treatment plans he had set for patients he had not seen. He acknowledged that had happened and was dealt with by the Tribunal in the last hearing. He said he had facilitated requests from the psychologist who worked with the practice he was working in. He said the psychologist would not be paid unless there was a mental health treatment plan and the patients were reluctant to have to see a GP again.
The Applicant admitted that at the time he had been restricted to 30 patients a day he had billed Medicare item number 23 for patients he had spoken to on the phone to advise of blood test and other investigation results. He said he had done that because he had only 6 patients attend to see him on that day. He could not meet his financial commitments by only seeing 6 patients in a day. His daughter was at university in Melbourne and he had to meet her living expenses. He said: "I accept I was a criminal but now I am reformed. I am ashamed of what I did. I was short-sighted without consequences [sic]."
The Applicant was questioned about the circumstances which gave rise to the death of a patient. He said: "I was a city GP. I tried to work in Emergency Departments. It was ignorance on my part that type 2 patients will go into ketoacidosis. I didn't consult with colleagues. I gave him a letter to see his GP the next day. There was one chart only. The fluid balance check. I didn't see it. He had a catheter so he could not tell me if he was passing lots of urine. It was a mistake. So, I now stick to my own capacity. So now no more emergency medicine."
In relation to making/keeping medical notes, in the Emergency Department he worked in, the Applicant said he found he was only able to make minimal notes as the Emergency Department was so busy. He said he ran from one emergency patient to the next over a 48-hour shift in which he was only sleeping for short periods. He said he did emergency medicine for seven years.
The Applicant was questioned about the patient he discharged from hospital. The Applicant said: "The patient was 48 years old. He had a past history of kidney stones. I wanted to refer him to Tamworth Hospital however the patient refused. He wanted to go to Newcastle Hospital because he came from that area. The Hospital would only pay for an ambulance to take patients to Tamworth Hospital so I could not arrange an ambulance to take him to Newcastle. He needed a CT scan and to see a physician. Diverticulitis was not common in a man of his age. Colleagues told me I should have had the patient sign a form acknowledging my advice. I got an X-ray which showed no sign of kidney stones. I did speak to a physician at the Tamworth Hospital."
Counsel for the Medical Council said: "The Medical Council is asking that the Tribunal set a daily patient level of 20 patients so that [the Applicant has] time to get [his] skills up to date." The Applicant said he had done a great deal of reading during the time he has not been practising, in order to enhance his knowledge and necessary skills to practise as a GP. He was asked: "How will you know when you are out of your depth with a particular medical problem which presents itself?" The Applicant said: "I have three GPs to ask in the clinic where I will work. I have 25 GP friends. I can refer the patient to a specialist."
Members of the Tribunal asked the Applicant questions. He was asked if servicing 20 patients a day was sufficient to provide him with an adequate income. The Applicant said he would occupy a share house so his accommodation costs will be low, though he would really like to have his own accommodation so as to avoid a situation where he feels he is being compromised by being asked to do favours.
The Applicant was asked: "You have not been in practice for 4.5 years. Do you think you could cope with 30 patients a day?" The Applicant said: "I am planning to start with a smaller number and work up to that level."

Our assessment of the Applicant as a witness

We have formed the opinion that the Applicant gave his evidence candidly and in a manner to assist the Tribunal. We did not consider he was, in either his oral evidence or his written evidence, seeking to excuse himself for some of the conduct which was the subject of findings by the Tribunal in February 2019 or by the Medical Council at earlier times.
The Applicant presented as a contrite man, embarrassed by his past behaviour and a person whose ego had been torn down by self-reflection on his past behaviour.

Evidence of the expert witnesses

The Medical Council relied upon the evidence of Dr Antonella Ventura, Consultant Forensic and Adult Psychiatrist. Her report was dated 18 January 2021. She was not required for questioning by the Applicant nor was any further oral evidence sought to be led from her.
The report provided by Dr Ventura contains a number of questions asked of her by the Medical Council. On page 118 of exhibit R1 (tab 5), question 9 is set out as follows: "Do you consider that Dr Karalasingham has in fact developed insight into appropriate strategies to manage the concerns previously expressed by NCAT, such that NCAT could be confident that there would not be further risks to patient health and safety, if Dr Karalasingham is restored to the Register?"
Dr Ventura answered as follows: "I consider that Dr Karalasingham has developed insight into appropriate strategies to manage the concern previously expressed by NCAT. In my opinion, as long as Dr Karalasingham continues to avail himself of psychological or psychiatric treatment and that certain conditions are placed on his registration, there would be no significant risk to patient health and safety should Dr Karalasingham be restored to the Register."
Dr Ventura further said: "In my opinion Dr Karalasingham should not work more than five days a week. There should be a defined limit to the number of patients he could see in a day or a week…It should be a condition of registration that Dr Karalasingham continues to avail himself of psychotherapy in order to improve coping strategies to deal with the personality vulnerabilities which have resulted in the behaviour that has led to his removal from the Register."
In other parts of her report Dr Ventura said: "At this stage, he only has intellectual insight of his behaviour. He is likely to require longer term psychotherapy to address the psychological/emotional drives which give rise to his behaviour. In my opinion, Dr Karalasingham is truly remorseful for his actions and he has a great sense of shame about being seen as a thief or criminal, particularly by his colleagues and his daughter. Although the understanding of his behaviour is purely intellectual, I am of the opinion that with the appropriate supervision, conditions on registration and ongoing psychotherapy, Dr Karalasingham is [likely] to be safe to be allowed to practise medicine… In my opinion, Dr Karalasingham does not require specific treatment for an anxiety disorder as, in my view, he does not suffer from a psychiatric disorder… In my opinion, Dr Karalasingham does not lack insight into certain aspects of the conduct which resulted in his removal from the Register of Medical Practitioners. He does lack insight into the psychological drivers of the conduct which resulted in his removal from the Register of Medical Practitioners… I do not consider Dr Karalasingham to be impaired at the present time." Dr Ventura also said that she agreed with the diagnosis that Dr Friend opined in relation to the Applicant.
After examination of Dr Karalasingham, albeit by Skype, Dr Ventura opined that she "found no evidence of a mental illness that contributed to his unsatisfactory professional practice."
The Applicant relied upon a report by Dr Christopher Lennings, Clinical Psychologist. Dr Karalasingham began seeing Dr Lennings on 14 August 2019 and was last seen by him on 24 May 2020. Their sessions were initially conducted on a weekly or fortnightly basis depending on Dr Lennings' availability. There were a total of 14 sessions and treatment ended on Dr Lennings' advice. They had developed strategies to help Dr Karalasingham.
Dr Lennings was asked by the Applicant's solicitor to provide a report which addressed specific questions. In answering those questions Dr Lennings opined that the Applicant did not appear to have either a major psychological disorder or a personality disorder. He opined that the Applicant had developed some insight into his behaviour and has developed a broader understanding of his ethical and professional responsibilities. Dr Lennings was of the view that the Applicant had made substantial progress in both his understanding of his professional role, his awareness of where he failed in the past, and his ability to engage positively with his professional role in the future.
In answer to a question as to whether he thought the Applicant was fit to return to practice Dr Lennings opined as follows: "To the extent that as a psychologist I can comment on fitness for the practice of medicine, I believe that Dr Karalasingham has recognised and learnt from his mistakes. I believe he has done as much as can possibly be done to make up for his errors of judgement and has understood what he needs to do differently in the future to be a principled professional. To that end I support his application."
Under the heading "Any other comments" Dr Lennings said "As noted the only other issue is the likelihood that Dr Karalasingham will benefit from treatment for anxiety once his situation has stabilised. Such a referral could be either to a treating psychiatrist or to a clinical psychologist, although it would need to be someone other than myself."
The Applicant relied upon a report of Dr Mary-Anne Friend, Consultant Psychiatrist, dated 3 August 2020. The report responds to a request from the Applicant's solicitor, who posed a series of questions.
Dr Friend is the Applicant's treating psychiatrist. At the date of the report she had seen him on 12 occasions, commencing on 4 September 2019. She described the mental health examination of Dr Karalasingham as showing: "There is no thought disorder and the content of the discussion is realistic and relevant. Many of his responses are drawn from information that he has read in books rather than his own reflections or experience. There has been no evidence of psychosis, intoxication or cognitive impairment." Dr Friend also opined that "Dr Karalasingham does not meet diagnostic criteria for a mental disorder at the present time… Dr Karalasingham does have personality vulnerabilities… I do not believe that he meets diagnostic criteria for a personality disorder… He has an external locus of control and a rather concrete thinking style, and struggles to prioritise competing demands."
Dr Friend described the therapy she was conducting with the Applicant. She said: "Although we are in the early stages of this process, Dr Karalasingham has demonstrated a number of changes in his thinking and behaviour."
In relation to his acceptance of the inappropriateness of his conduct, Dr Friend said: "In my opinion his willingness to read books about criminal behaviour and ethics demonstrates that he accepts that he engaged in misconduct. That he has read 26 books, in addition to reflecting his tendency for obsessive behaviour, suggests that he has not only accepted his wrong-doing, but has found the process of reading on these topics helpful, and that he is motivated to develop insight and to change." Dr Friend opined that Dr Karalasingham "has begun to develop insight into his role in the situation that resulted in the section 150 proceedings and the second Medical Tribunal."
In relation to Dr Karalasingham's ability to be assertive when that was appropriate and required, Dr Friend said: "It became apparent that Dr Karalasingham had been unable to set appropriate limits with his wife and daughter, work colleagues and patients, and that he has been unassertive in his interactions with others… We are working on him developing a deeper understanding of the psychodynamics of his unassertiveness."
Dr Friend concluded her report as follows: "Overall, I am pleased with Dr Karalasingham's progress. He adheres to any advice and homework between sessions. I would support his return to clinical practice subject to appropriate registration conditions, such as those which limit his work hours, and ensure adequate clinical supervision and mentoring. I would recommend that he continue to attend for psychotherapy with either a psychiatrist or clinical psychologist."
The Applicant provided a number of personal references. Clearly he is regarded highly by those who provided their letters and statements.
In exhibit A2 the Applicant provided further documents including a letter dated 19 February 2021 by Dr Tian Zhuang, Principal GP and practice owner of Lake Macquarie Medical Centre. He has offered to be a supervisor for the Applicant should the Tribunal make conditions requiring supervision. The practice operates from 9am to 5pm Monday to Friday. Dr Zhuang works full-time and has two other part-time GPs working in the practice.
Also included in exhibit A2 is a letter from Associate Prof Terry Diamond, who has treated the Applicant in relation to his diabetes. He advised that in his opinion "there are no medical illnesses or an abnormal psychiatric behaviour that should prevent [the Applicant's] return to work as a medical practitioner. He requires regular compliance with therapy for his metabolic syndrome."

Submissions of the Applicant

The Applicant's counsel submitted that the statement provided by the Applicant is compelling in its lengthy description of what the Applicant has done to reform himself and in its revealing of a truly remorseful practitioner who has developed real insight into the conduct which led to the circumstances he found himself in when the Tribunal cancelled his registration. At that time, he was not practising, after voluntarily ceasing to practise medicine some 18 months before the Tribunal made its determination.
It was submitted that the Tribunal would be impressed with the way the Applicant has taken himself for treatment to both his psychiatrist and his psychologist. Those practitioners have spoken highly of the effort the Applicant has made to develop insight into how the circumstances of his life unravelled so spectacularly in the lead up to the Tribunal determination on 12 February 2019. It is submitted that the reports speak of the dedication and striving of the Applicant to reform himself and develop skills to ensure no repetition of the past conduct, should he be permitted to return to practice.
The Applicant's counsel submits that the Applicant has shown exceptional circumstances in terms of his ability to rehabilitate himself. He has done what he has been able to do in order to reform himself.
It is submitted that the Applicant has shown he "owns his wrongdoing". He has engaged in extensive professional therapy. In relation to the requirement of the Tribunal to "protect the public", it is submitted that the Applicant has met the high hurdle of preparing himself for the application he now brings.
In submission, counsel for the Applicant referred to the eight questions which need to be addressed and which arise from decisions such as Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45 and Scully and Baez. Those questions, which we have set out earlier, were addressed by the Applicant.

Determination

We propose to address the questions which were set out in Scully (slightly adjusted to suit the facts in this case) and which we adopt here to assist in determining if it is appropriate to re-instate the Applicant's registration and, if so, whether conditions need to be imposed to fulfil the Tribunal's statutory obligations under the National Law.

Does the Applicant demonstrate genuine and sincere remorse for his conduct identified by the Tribunal in its decision of 12 February 2019?

We have read the evidence contained in the reports of Dr Ventura, Dr Lennings and Dr Friend, all of which speak of the remorse which they have noted in the presentation and words of the Applicant. That remorse has been seen as genuine.
We have also had the opportunity to read the statement tendered before us by the Applicant (exhibit A1) and we have seen him give oral evidence. We are satisfied the Applicant has demonstrated genuine and sincere remorse for his conduct which was identified in the Tribunal decision.

Does the Applicant understand the basis on which the findings of professional misconduct and unsatisfactory professional conduct were founded?

We are satisfied that the Applicant understands the shortcomings in his conduct which led to the findings made against him. We are also satisfied that he has worked hard to gain insight into his personal psychological makeup and identified aspects of his personality which have made him vulnerable to breaching civil and criminal law. He has identified that his inability to be appropriately assertive, when that is required, has led to some of his unsatisfactory conduct. He has also acknowledged that he was at times motivated by greed. He was living a life which called for greater income than he could reasonably earn. He was also met with financial obligations to support his daughter, which at times were onerous.

What has the Applicant done to demonstrate he has learnt from the findings of the earlier Tribunal?

The Applicant has demonstrated remarkable energy and commitment to having himself reinstated as a medical practitioner. That has meant he has had to intensively study the areas of his personal fabric which let him down and allowed him to conduct himself in the manner demonstrated in the reasons of the Tribunal of 12 February 2019.
The expert witnesses, whose evidence we have referred to earlier in these reasons, all consider that the Applicant is ready to practise medicine again, subject to conditions which will both support him in his return to medicine, after five years of non-practice, and also ensure the safety of the public, should there be a relapse in the resolve which the Applicant is clearly now demonstrating.

Is the Applicant likely to breach any ethical requirements found in the relevant codes of conduct in the future, or does he now fully appreciate the purpose and relevance of the ethical requirements in the relevant codes of conduct?

We conclude, based upon the evidence provided by the Applicant and the expert witnesses, that it is unlikely that the Applicant will again breach any ethical requirements. He has undertaken a large amount of personal research into his personality and what motivated him to conduct himself in an unethical manner. The Applicant has labelled himself as a criminal for his conduct in making false claims upon Medicare. We are satisfied he does now have a clear understanding of his ethical obligations and has developed a strategy to ensure he does not find himself in circumstances where he might again breach the codes of conduct which establish how he needs to practise medicine.

Does the Applicant acknowledge and appreciate the harm he caused to the patient he attended to in the Emergency Department of the hospital in which he was working?

The Applicant carries a great deal of sorrow for the circumstance which befell the patient he had treated, or attempted to treat, in the Emergency Department at a country hospital. His errors in diagnosis and failure to review all the charts available at the time he saw the patient have clearly troubled him greatly. He concluded that this error had occurred because he was "out of his depth" in terms of his medical knowledge at that time. The problem was compounded by the patient refusing to go by ambulance to Tamworth Hospital, rather saying he wanted to attend Newcastle Hospital. Ambulance travel to that hospital, from the country hospital where the Applicant had seen the patient, was not within funding guidelines of the country hospital. Consequently, although the Applicant had intended the patient be admitted to a hospital where his condition could be treated, that did not occur for some time.

Does the Applicant appreciate the harm he caused to the medical profession in the eyes of the public and the confidence the public needs to have in the medical profession as a whole?

The Applicant has demonstrated a great sense of shame. That seems to be about himself rather than particularly focused upon the medical profession at large. In one sense the personal shame he does profess will also serve the greater requirement not to bring the medical profession into disrepute in the eyes of the public.
The Applicant has clearly studied the decision of the Tribunal of 12 February 2019. He has been able to identify and attend to the criticisms of his conduct set out in that judgment. We are satisfied he has learnt, through his own personal extensive study and his therapy undertaken with Dr Lennings and Dr Friend, the broader requirement not to allow, by his conduct, the medical profession to be brought into disrepute.

Having regard to the serious findings of the earlier Tribunal, should any reinstatement order be subject to conditions?

Both the Medical Council and the Applicant have submitted that if the Applicant is to be re-registered as a medical practitioner, then he should be supported and controlled, in his return to practice, with conditions. We support that view.

In the event the Tribunal determines conditions should be imposed, what conditions would be appropriate?

Both the Medical Council and the Applicant provided minutes of the conditions which they submitted could be imposed upon the registration of the Applicant. The conditions each submitted were remarkably similar with only minor variations. We asked the legal representatives for the parties to provide a Minute of Proposed Conditions which is a jointly prepared document showing where there was agreement and disagreement. That document has been provided and we have set it out earlier in our reasons at [4].

Conclusion

We have reached the conclusion that the Applicant is now a person worthy of registration as a medical practitioner. We are satisfied that despite his prior conduct, as found by the Tribunal in February 2019, the Applicant can now be relied upon to practise as a medical practitioner in an ethical and proper manner conforming with professional standards expected of a health practitioner.
We have accepted the evidence of Dr Ventura, Dr Lennings and Dr Friend as to the reformation of the Applicant's character and we conclude we have been provided with clear proof of that reformation. We accept that reformation of character and behaviour can occur, however we are cognisant of the fact that it is an exceptional occurrence.
In this case we have been very impressed with the steps the Applicant has taken on his own initiative and with the help of health experts. We have concluded that the Applicant has made an exceptional effort to reform himself and we are satisfied that he has effectively or substantially done so. His continued dedication to following the path he has set for himself needs to be safeguarded for his and the public's benefit and we consider we can impose conditions upon his registration to achieve that.
We are conscious of the words set out in the authorities we have quoted, namely, "there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners" (see Peter Cecil Harcourt Dawson v The Law Society of New South Wales [1989] NSWCA 58 at 7).
We propose to order that the registration of the Applicant as a medical practitioner be reinstated forthwith. We propose to make conditions to attach to that registration and we propose that the reviewing body is to be the Medical Council of New South Wales.
Following the conclusion of the hearing the parties have produced a set of conditions they would both support, with the only remaining issue being the number of patients the Applicant can treat on each day of practice. The Applicant seeks a limit of 30, while the Medical Council says 20 should be the limit.
We have considered the arguments supporting each of those numbers. The matters we have considered, in determining that the maximum number of patients the Applicant can treat each day of practice is to be 25, are as follows:

The Applicant ought not to be subjecting himself to a heavier workload than he can comfortably handle in the initial stages of his return to practice.
The Applicant should be permitted to treat a sufficient number of patients which will allow him to meet his basic financial needs, yet not place him under pressure.
The maximum number of patients the Applicant can treat daily can be reviewed by the Medical Council, which will be the reviewing authority for the conditions we set. The Medical Council will determine when that will be appropriate.
Judging from our own assessment of the Applicant and drawing on the qualifications and experience of the Senior Members of the Tribunal, we consider 25 patients a day ought to be manageable for the Applicant.

The conditions to be imposed

As set out earlier, the parties have provided a composite set of conditions which are largely agreed. We have considered those conditions and we agree they are appropriate conditions to make. We consider the conditions will ensure the safe return to medical practice for the Applicant and the public.
We propose to make the following orders: 1. A reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) is made in respect of Rupasenan Karalasingham (the practitioner) subject to the following conditions being imposed on his registration: General conditions 1. Not to undertake after-hours and hospital work, including in an Emergency Department. 2. To obtain Medical Council of New South Wales' (the Medical Council) approval prior to changing the nature or place of his practice. 3. To authorise the Medical Council to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 4. To practise only in a group practice approved by the Medical Council, where there are at least two registered medical practitioners (excluding the subject practitioner), and: 1. Where there is always one other registered medical practitioner on site; and 2. Where the patients and patient records are shared between the medical practitioners. 1. To practise under category B supervision in accordance with the Medical Council's "Compliance Policy - Supervision" (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. communication; 2. patient assessment; 3. clinical diagnosis and judgment; 4. management planning; 5. follow-up and safety-netting; 6. clinical outcomes; 7. workload, including discussion of working hours and stress management; 8. continuing professional development; 9. ethical questions. 1. At each supervision meeting, the Council-approved supervisor is to review a random selection of at least five medical records from the preceding fortnight. 2. In addition to fortnightly supervision meetings, the practitioner is to attend observation sessions with the Council-approved supervisor. The observation sessions are to alternate between: 1. the practitioner observing the supervisor conduct at least three consultations with patients; and 2. the supervisor observing the practitioner conduct at least three consultations with patients. 1. The observed consultations are to be discussed during supervision meetings and feedback and details regarding the practitioner's progress during the period of observation are to be recorded in the supervision reports. 2. To authorise the Medical Council to provide proposed and approved supervisors with a copy of the decision which imposed this condition and any other decision or report relevant to the practitioner. 3. Not to practise until a supervisor has been approved by the Medical Council. 1. To nominate an experienced General Practitioner to act as his professional mentor for approval by the Medical Council in accordance with the Medical Council's "Compliance Policy - Mentoring" (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each mentoring meeting the practitioner is to include discussion of the issues highlighted in the decision which imposed this condition, any ethical or medico-legal issues and any personal and/or practice issues as they arise. 2. To authorise the mentor to report, in an approved format, to the Medical Council every three months about the fact of contact, and to inform the Medical Council if there is any concern about his professional conduct or personal wellbeing. 3. To authorise the Medical Council to provide proposed and approved mentors with a copy of the decision which imposed this condition and any other decision or report relevant to the practitioner. 1. To treat no more than 25 patients in any one day. 2. To work no more than 5 days per week. 3. The practitioner is to submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council and: 1. The audit is to be held within six months from the date the practitioner recommences medical practice (or such date as the Medical Council is able to achieve given its current workload) and subsequently as required by the Medical Council; 2. The auditor(s) is to assess the practitioner's compliance with good medical record keeping standards and legislative requirements; 3. To authorise the auditor(s) to provide the Medical Council with a report on their findings; 4. To meet all costs associated with the audit(s) and any subsequent reports. 1. To authorise and consent to any exchange of information between the Medical Council and Medicare Australia for the purpose of monitoring compliance with these conditions. Private health conditions 1. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. Is to authorise the treating practitioner to inform the Medical Council of any of the following: 1. failure to attend for treatment; 2. termination of treatment; 3. a significant change in health status (including a significant temporary change). 1. Must provide the Medical Council with the professional details of the treating practitioner. 1. To attend for assessment by a Council-appointed psychiatrist, as directed by the Medical Council and at the Medical Council's expense, and then to attend for review by a Council-appointed psychiatrist on a three-monthly basis or as otherwise directed by the Medical Council. 2. To attend a review interview conducted by the Medical Council on a three-monthly basis, or as otherwise directed by the Medical Council. 3. To authorise the Medical Council to forward copies of this decision, any subsequent Medical Council review interview or other report and any other information relevant to his health and treatment to the Council-appointed psychiatrist and to his treating practitioner(s). 1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. Sections 125-127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia.

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: 22 April 2021

At a glance

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Judgment (20 paragraphs)

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Cases Cited (15)