Segal v Medical Council of New South Wales

Introduction

1. Dr Shaun Segal (the practitioner) is a medical practitioner who specialises in treatment of patients with skin cancers. Following a complaint by a female patient, proceedings were conducted by delegates of the Medical Council of New South Wales (the Council) under s 150 of the Health Practitioner Regulation National Law (the National Law) on 22 June 2020. At the conclusion of the proceedings, the Council suspended the practitioner's registration.
2. The practitioner has filed two appeals in the Tribunal under s 159 and s 159B of the National Law respectively. He also filed a Stay Application. The Stay Application was dismissed (see Segal v Medical Council of New South Wales [2020] NSWCATOD 86). These reasons are in respect of the practitioner's appeal under s 159. Separate reasons of the presiding Judge are published in respect of the s 159B appeal (the point of law appeal).
3. Before us, the Council sought orders that the suspension should be confirmed under s 159C of the National Law. The practitioner sought the lifting of the suspension with the effect that his registration would be unconditional, and if we did not agree with that position, he proposed a limited number of conditions be imposed on his registration.
4. For the reasons which follow, we find the appeal should be allowed, the suspension set aside, and conditions (as particularised at the end of these orders) should be imposed on the practitioner's registration.

Background

1. The background leading to these proceedings is set out in [4] - [9] of the Stay decision. We now repeat those paragraphs: The following facts are extracted from the delegates' reasons or material before them at the hearing convened under s 150 of the National Law and the Affidavit of the practitioner sworn 14 July 2020. The practitioner is presently aged 46 years. He obtained the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of Witwatersrand, South Africa in 1997. He thereafter, in 1999, moved to the United Kingdom where he asserts he completed his surgical rotation. In 2008 the practitioner moved to Australia and obtained his fellowship of the Royal Australian College of General Practitioners. In 2018 he completed a diploma of skin cancer and in 2020 attained Fellowship of the Australian College of Cutaneous Oncology. The practitioner carries on practice at several locations in the Sydney metropolitan area including in Rose Bay, NSW. At the Rose Bay practice the practitioner now engages exclusively in skin cancer procedures. In earlier years at this practice the practitioner saw general practice patients on an urgent basis when no other general practitioner was available. On 23 May 2020 the Health Care Complaints Commission (HCCC) received a written complaint by a woman about the practitioner. I will refer to the woman as Patient A. The complaint was referred to the Council. Patient A asserts that she engaged in a sexual relationship with the practitioner between October 2016 and April 2019. Patient A states that on Sunday 30 October 2016 the practitioner brought her into the Rose Bay practice through the back entrance having first turned off the security camera and they engaged in oral sex. Patient A says the practitioner's practice manager made appointments to fit her in between patients and that she and the practitioner engaged in sex at the practice. She says she was bulk billed for appointments. She also asserts the practitioner "spread a horrible rumour" about her after she commenced a relationship with her partner. She asserts the practitioner engaged in "predatory and grooming behaviour". The practitioner denies that he had a sexual relationship with the patient. He does not dispute that he saw Patient A as a patient, provided prescriptions for her and they engaged in regular telephone conversations.

Relevant law principles applicable to an appeal under s 159

1. This is an appeal against an order made under s 150 of the National Law, and as we shortly explain, we are hearing this matter afresh. Section 150 of the National Law provides as follows: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must - (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who - (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
2. Section 159 of the National Law provides that a practitioner may appeal to the Tribunal against a decision of the Council. Section 159(1) and (2) are in the following terms:- 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - (a1) against a reprimand by the Council for the health profession under Division 3; (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must - (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who - (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
3. The nature of the appeal is set out in s 159(3). It is our task to hear the matter afresh (an appeal de novo). The sub-section provides as follows: (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
4. The powers which may be exercised by the Tribunal on hearing and determining the appeal are as follows: 159C Tribunal's powers on appeal [NSW] (1) On an appeal against a decision of a Council, the Tribunal may by order - (a) confirm the decision; or (b) set aside the decision; or (c) set aside the decision and make a new decision (being a decision that the Council could have made). (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
5. We note that a decision made under s 150 of the National Law is interlocutory in nature, and the decision will be disposed of when one of the circumstances in s 150(2) occur.
6. In a recent decision (Steel v Medical Council of New South Wales [2020] NSWCATOD 77) the Presiding Member sitting alone when dealing with an appeal under s 159B, summarised the principles espoused in recent decisions of the Court of Appeal to be applied in s 150 proceedings and appeals from those proceedings. It is convenient we now repeat those principles which are set out at [26] - [33] of the decision: Three recent decisions of the Court of Appeal (Kirby v Dental Council of New South Wales [2020] NSWCA 91, Health Care Complaints Commission v Windsor [2020] NSWCA 110 and Ghosh v Medical Council of New South Wales [2020] NSWCA 122) have considered the provisions of Division 3 Sub-division 7 and Division 6 Sub-division 2 of Part 8 of the National Law. In Kirby v Dental Council of New South Wales Brereton JA in his reasons explained the role of s 150 at [12] and [15] as follows: Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. Although a complaint may be the means by which relevant circumstances that require consideration of action under s 150 may come to a Council's notice, s 150(4) makes clear that a complaint is not necessary to enable the Council to act; in other words, it may act of its own motion … In the context of a provision headed "Suspension or conditions of registration to protect public", and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied - regardless of how the matter comes to its attention - it must act. The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints.[7] As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public.[8] [footnotes omitted] Also relevant is the decision of Barrett AJ in Kirby v Dental Council of New South Wales [2018] NSWSC 1869 and that of Harrison AsJ in Pharmacy Council of New South Wales v Ibrahim [2020] NSWSC 708. Barrett AJ, when discussing s 150 explains at [6]: Section 150(1) assumes, clearly enough, that a Council will perform an evaluative task in relation to circumstances concerning a practitioner that come to its notice. The evaluation must focus entirely on what is required to protect the health and safety of relevant persons and on the requirements of the public interest. Considerations of punishment are foreign to the assessment. In an appeal to the Court of Appeal from Barrett AJ's decision, Payne JA described an action under s 150 at [2] as follows: As to Dr Kirby's principal complaint, as Brereton JA explains, the statutory context in the present case was that the Dental Council of New South Wales ("the Council") was bound to act if a particular state of affairs appeared to it. Section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law") imposes a positive duty on the Council to act, in one of several specified ways, if the Council is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or otherwise in the public interest. The Council's duty to act does not depend on the existence of an initiating complaint. Here, the Council was satisfied that Dr Kirby 's conduct made it appropriate to act to protect the public health and safety of citizens of New South Wales. [original emphasis] In Pharmacy Council v Ibrahim Harrison AsJ was determining an appeal against an external appeal to the Tribunal by a pharmacist whose registration was suspended by the relevant Council under s 150. Her Honour referred to the decision of Hall J in Lindsay v NSW Medical Board [2008] NSWSC 40 under the forerunner of s 150 namely s 66 of the Medical Practice Act 1992 (NSW) (repealed). Hall J in Lindsay explained that proceedings under s 150 are interlocutory in nature and do not involve making findings of fact or the determination of the merits of any complaint. Her Honour discusses the "second limb" of s 150 ("otherwise in the public interest"). At [32] her Honour referred to the second limb as follows: As such, and in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna at [18]. In Ghosh v Medical Council of New South Wales Brereton JA at [5] emphasised, by reference to the decision in Kirby v Dental Council of New South Wales, the "purely protective character of the s 150 (1) function" and that "the touchstone for the exercise of the Council's power …to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or that the action is otherwise in the public interest". At [103] his Honour explains on a hearing under s 159 (when the Tribunal is considering afresh whether it is appropriate for action to be taken under s 150 (1)) it is necessary for a Tribunal "to take the essential step of identifying what the risk was, and whether it was unacceptable". Earlier, in para [98] and in footnote 54, Brereton J clarifies, by reference to the decision in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180, that the Tribunal or Council must consider whether a practitioner's conduct involves an unacceptable risk either to the health and safety of the public and a similar, not lesser test in the case of public interest, noting that "an acceptable risk could not justify s 150 action".
7. We note there was no disagreement between the parties about the relevant principles applicable to this appeal.

The statement of the complainant

1. We have briefly summarised above the complaint made by Patient A to the Health Care Complaints Commission (HCCC) on 23 May 2020. It is not in dispute that Patient A and the practitioner are members of a tight knit community in the eastern suburbs of Sydney and their children attend the same private school. As parts of Patient A's statement are denied by the practitioner, we now repeat some of the patient's contentious allegations.
2. Patient A says she experienced high libido for approximately one year after the birth of her child. She says that she spoke with her husband about seeing the practitioner and discussing her libido concerns with him. She records the following occurred at the consultation: Dr Segal asked if I had been having an affair, whether I would consider an affair and whether or not I masturbate and if so how often. At the time I complied and answered honestly assuming that perhaps these questions were relevant.
3. The patient says she continued to talk to the practitioner frequently on the phone. We pause to note that, in evidence before us, were text messages exchanged between Patient A, who instigated the messaging, and the practitioner. The text messaging commencing on the same day as the patient's initial consultation with the practitioner.
4. Patient A asserts that she continued to see the practitioner in his consulting rooms when the practitioner became more physical "touching my hand, my knee, asking invasive and personal questions and always ending our appointments with a hug".
5. Patient A says, in late October 2016, the practitioner, at the end of a consultation, said to Patient A that he could "totally [f…] things up for me". Patient A said she asked the practitioner to clarify what he meant, but the practitioner said he had to finish up as he had patients waiting, and she exited the room. Patient A says she messaged the practitioner asking him "if he was implying what I thought he was implying - he responded immediately with a yes and said he would call me the following day". Patient A relates that in a phone call the following day the practitioner suggested they could commence a sexual relationship, "that she would be safe as he is a medical practitioner and that I could trust him". Patient A records at this time the practitioner knew she was thinking of leaving her husband.
6. As noted above under background, Patient A says her first sexual encounter with the practitioner occurred on Sunday 30 October 2016 at approximately 6pm in his consulting rooms. On this occasion, Patient A says the practitioner turned off the practice security cameras before they entered the premises.
7. Patient A records having sexual intercourse with the practitioner at her home on Tuesday 8 November 2016 when she asserts the practitioner stayed for two hours, and on Thursday 10 November, when she asserts he stayed for approximately 45 minutes. Patient A records that the relationship continued "within his rooms and in my home during the day between his clinics".
8. Patient A relates being referred by the practitioner to an endocrinologist and a psychiatrist, Dr [name redacted].
9. Patient A explains that, after she left her husband in January 2017, her relationship with the practitioner became more frequent as there was more opportunity to see each other. She also reports spending hours on the phone talking to the practitioner. Patient A says her frequent sexual relationship with the practitioner continued until April 2017 when she met someone else, but as her new relationship remained sexless, she had sexual encounters with the practitioner until April 2019.
10. Patient A states that "Somewhere between May 2017 and January 2018 Dr Segal's wife [name] found out there had been a relationship of sorts going on between us".
11. Towards the end of her statement, Patient A states: 1. the practitioner would have his practice manager call her to make appointments to fit her in between patients, that she would attend and they would have sexual intercourse and he would bulk bill her, although on occasions he charged for services; 2. that she imagined the practice manager was aware of the nature of their relationship as doors were locked or on occasions when the practice manager had access, "we had to quickly stop what we were doing" 3. that at one of their first consultations the practitioner prescribed her a birth control pill "perhaps in order for him to have unprotected sex with me"; and 4. that in 2019 [name redacted] became aware of "the situation regarding Dr Segal" and at this time she requested "that he not make any reports as I was concerned for my and my sons reputation in the community in which we live. We both acknowledged that the report would have to take place at some time however agreed to wait until I was emotionally secure enough to handle any repercussions".
12. We had the benefit of four pages of photocopies of screen shots of text messages between Patient A and the practitioner. Patient A instigated the text messages on 14 October 2016 at 4.39pm (that is very shortly after her first appointment with the practitioner). Patient A texted: Thanks very much for your support Sean, very much appreciated. See you Wednesday - [Patient's first name].
13. Later the same day the practitioner texted Patient A twice. In his second text he said: If you feel you not coping or need me text and I'll call when possible
14. At 5.03pm on the 14 October 2016 the practitioner sent the following message: Its Shaun and you'll be ok, started the process by talking to me now leave all your friends out of it …else hubby will find out stuff he shouldn't.

Material produced under summons from the complainant's treating psychiatrist

1. Dr [name redacted] clinical notes for Patient A were produced pursuant to a Summons. The documents produced are photocopies and contain a large number of redactions. We were advised by senior counsel for the practitioner, and not disputed by counsel for the Council, that Patient A knew of the issue of the Summons, obtained legal representation, and agreement was reached that names of third parties not relevant to these proceedings, would be redacted. We were assured that no redacted entry was relevant to or contained the name of the practitioner.
2. We note that Dr [name redacted] records were not available to the delegates at the s 150 proceedings.
3. The practitioner referred Patient A to Dr [name redacted] in November 2016. Under the heading "reason for referral" the practitioner states "As discussed over the phone re her issues" and then notes recent hormonal checks by the endocrinologist were normal. The patient's medications, including diazepam, Duromine and Yasmin, are noted.
4. Dr [name redacted] wrote to the practitioner on 21 May 2017 where he records that he had seen the patient on four occasions at the end of 2016 and in January 2017. Dr [name redacted] noted that Patient A had been seeing a psychologist, Ms [name redacted]. Dr [name redacted] opined: My conclusion was that her mood state was in reaction to a number of personal issues in her life which she was struggling to deal with, I did not believe she was hypomanic nor did she have true manic behaviours.
5. [redacted]
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22. The clinical notes of 28 May 2018 record Patient A's first actual sexual relationship outside marriage was "with someone who represents 'authority' - went on for 6 months - conflict wife. [Patient A] still sees him. Lot of appealing features but also problems. He has been mutual in his affection".
23. [redacted]
24. [redacted]
25. [redacted]
26. Dr [name redacted] records in his consultation notes of 6 and 12 February 2020: [Patient A] harbour angst around men manipulating her and hopes [redated] behaviour is not manipulation. Spoke about doctor who took advantage of her. Originally "didn't want to wreck his family". However, concerns she may not have been a one-off victim. Unfortunately, the trauma (abuse) in her early life sits uncomfortably with her - 2 other clear abusers - "the doctor" or [redacted]…. … Seems quite stirred up about her past - SS and [redacted] - clearly abused -unequal power exercised. Issues with [redacted].
27. [redacted]. At the conclusion of the entry Dr [name redacted]' records: P.S.: requested I make a notification to AHPRA re Dr Segal's behaviour/sexual relationship with her. It is a boundary violation. Agreed to do so (signature) P.P.S.: I have sought legal advice and will make the notification (signature)
28. [redacted].

Prior complaints

1. The material before the Council, and before us, included material relevant to prior complaints about the practitioner. It was accepted by the parties that we must have regard to previous complaints to the extent that those complaints are relevant to the present proceedings (see s 41O of the National Law).

Patient B's complaint

1. On 12 February 2012 a woman, whom we shall refer to as Patient B, made a complaint to the Australian Health Practitioner Regulation Agency. Patient B was employed by the same company as the practitioner in a skin care practice working at Windsor, Hornsby and Ryde. Patient B, who was suffering from depression and anxiety, was also treated by the practitioner for a short period. He wrote prescriptions for the patient and provided the vaccination for an overseas trip.
2. Patient B reported that the practitioner had picked her up in his car at Windsor NSW after she had participated in a local soccer match and offered to drive her home. She asserted in her complaint that the practitioner stopped the car a few blocks from her home and spoke to her about a relationship with a former staff member. She asserted "at the same time he touched my legs, arms and held my hand". She said the practitioner asked her if she was uncomfortable, and then told her he would show her how real men kiss. She said he tried to kiss her three times, and that she did not kiss him back. The practitioner then drove Patient B home.

The practitioner's response to Patient B's complaint

1. The practitioner responded to Patient B's complaint in a letter dated 4 April 2012 addressed to the HCCC. He acknowledged that he had established a friendship with Patient B and that he communicated with her by way of text messaging. He admitted on the night he drove Patient B to her home that he stopped the car before reaching her home, and that they held hands. He denies using the words to the effect of "how a real man kisses" but says he kissed Patient B goodnight.
2. Later in his letter the practitioner acknowledged that "the boundaries were somewhat blurred in the sense that my friendship with [Patient B] and my dealings with her in a professional capacity were potentially problematic. This is particularly the case in the context of [Patient B's] treatment for depression. I recognise now that this could have made her particularly vulnerable".
3. The practitioner explained that he had taken positive steps to ensure he had gained insight by engaging the services of a psychotherapist.
4. In a response to a complaint made by Patient B to her employer company, a director of the company on 22 August 2011 stated: Dr Segal denies saying words that he would show you how a real man kisses and instead says that he kissed you twice briefly and without force and that at no stage did you pull away from him or state that he was not to kiss you.

Complaint as transcribed by the Council

1. On 7 January 2013 an unsigned complaint was addressed to the Registrar of the NSW Medical Board. The complaint is noted to have been transcribed by the Council on 30 January 2013.
2. The complaint asserted that three female staff members had left the company operating the practices at which the practitioner then worked "due to sexual harassment". The complaint asserted one of the staff who had been sexually harassed was Patient B. The complaint asserted the practitioner had made female patients feel uncomfortable "with the inappropriate manner he looks and touches them".

The practitioner's response

1. By letter dated 5 February 2013 the practitioner's solicitors responded to the anonymous complaint. The practitioner denied any other complaints about his conduct other than with Patient B. The practitioner conceded he had engaged in a sexual relationship with a colleague "in the past 20 years", but said he now realised since the incident with Patient B, the need for caution, and that he was now married with a small child.

Conduct interview of 12 February 2013

1. The practitioner attended a conduct interview conducted by Dr Margaret Higgins and Associate Professor Richard Walsh on 12 February 2013 when the complaint of Patient B and the anonymous complaint were considered.
2. In responding to the interview panel the practitioner is noted to have said "he had learnt from this episode and that previously he had found it difficult to set boundaries". The report of the panel also noted that the practitioner said he had ceased the practice of sending text messages to his staff. The practitioner reported that he used a chaperone (a practice nurse) during consultations with female patients, and that his record keeping in respect of his consultations with Patient B were inadequate.

Person C's complaint

1. On 24 July 2013 a former operations manager employed by the company operating five clinics across Sydney and regional NSW wrote to the HCCC to complain about the practitioner. We will refer to the operations manager as Person C.
2. Person C asserted the practitioner engaged in inappropriate conduct with Patient B at the Windsor clinic.
3. Person C asserted he was aware the practitioner had sought out sexual relationships with two other female staff members and had consensual sexual relationships with them. He also recorded another staff member had approached him saying that when the practitioner's room was cleaned at the end of the day a used condom and lubricants were in the bin.
4. Person C finally referred to charges brought against the practitioner after complaints from a young female staff member from the Newcastle branch of the business.

Criminal charges - Person D

1. On 6 March 2014 the practitioner was charged pursuant to the Crimes Act 1900 (NSW) with three counts of assault with act of indecency. The proceedings were heard in the Gosford Local Court. The practitioner pleaded "not guilty" to the charges. No transcript of the proceedings was available to us.
2. An email from the Department of Justice to the practitioner's solicitors discloses the matter was before Magistrate Railton on 4 September 2014 and that each charge was dismissed - No Prima Facie Case.

Allegations in the Police Facts sheet

1. A Police Fact sheet notes that Patient D was a 19 year old assistant employed by the company operating skin cancer clinics, in this case a clinic at Gosford. Person D is reported as relating that, on 18 June 2013 the practitioner asked her for her personal mobile number.
2. Person D alleged that on 25 June 2013 the practitioner, during a consultation, was standing behind her and that he "momentarily pressed the groin area of his pants up against her buttocks". The same day Person D says when handing instruments to the practitioner he took hold of her right hand and rubbed her hand for long periods of time.
3. Person D alleged an inappropriate conversation with her about a female patient, and being asked by the practitioner how many sexual partners she had. She also reported the practitioner taking out his iPhone and showing her a picture of a dark naked male with an erection, and asking embarrassing questions of her.
4. Person D is reported as saying that, on 2 July 2013, the practitioner said "How am I going to tell my wife about you gorgeous" and commenting on moles on her arms. Person D is reported as saying the practitioner then ran his hands down her forearms and rubbed her hands with his own. Later the same day the practitioner closed the door of the consulting room and said to Person D, we must do a scrum. She is reported as describing being grabbed and pulled into a bear hug. Later that day she reported the practitioner making derogatory remarks about her boyfriend and suggesting she should sleep with someone like him, being someone she could trust. Person D reported that she went to see her manager but she was busy.
5. On another occasion Person D is reported as saying the practitioner started breathing down her neck, that he later approached her from behind and cuddled her really tightly and then began kissing the right side of her neck. She finally reported being asked to carry eggs to the practitioner's car and that he made suggestive comments to her. Person D told her mother, and a report was made to police at Newcastle.

The practitioner's lawyers' response

1. The practitioner's then lawyers, James A Moustacas & Co, sent an email on 11 September 2014 to Bronwyn Veselovsky to which was attached an email from the Department of Justice. The solicitors explain that email "clearly shows all charges were dismissed".

The practitioner's statement and evidence

1. The practitioner relied on his statement dated 18 June 2020, which was before the delegates at the s 150 hearing. He also relied on his supplementary statement of 21 August 2020.
2. In his first statement the practitioner set out his qualifications and a copy of his current professional development statement. He then records that he first saw Patient A in 2014. At that time he reports that he was working a maximum of one to two three hour sessions in general practice at the Rose Bay Medical Practice (the practice) and that between 2013 and 2017 he would see general patients from time to time if the need arose.
3. At para 11 of his statement the practitioner states: My practice nurse Roslyn Bailey has been working with me on a full-time basis since April 2016. She is with me every day in my consulting rooms for all of my skin cancer patients. I am never alone with a patient. In the past if I saw general practice patients at the Rose Bay Practice, Roslyn also assisted with these consultations, such as carrying out general observations. Roslyn would freely enter and leave the consulting room during a patient consultation as I never lock the door and she does not have her own room. In fact at the Rose Bay Practice consulting room there are two doors which are never locked. Staff member [sic] and doctors are able to enter the room at any time.
4. In his supplementary statement the practitioner sought to "clarify" the evidence in para 11 of his statement. He explains that, although Ms Bailey has worked for him since 2016, that she initially only assisted him at the practice on Saturdays. In his oral evidence the practitioner told us that his Saturday work was skin cancer, not general practice work. From around February 2018 Ms Bailey commenced assisting the practitioner every day he worked at the practice. The practitioner, however, says prior to Ms Bailey assisting him, he relied on the assistance of the relevant practice nurse who was employed by the practice. He says that, as the doors of the consulting room were never locked, the practice nurse would come in and out of the consulting room to assist him during the day.
5. At para 12 of his first statement, the practitioner records that he ceased seeing general practice patients from approximately early 2018.
6. The practitioner relates that he was aware Patient A had attended the Rose Bay Practice from 2006. He relates treating Patient A's young son at some time prior to October 2016 for his lacerated chin. He also records treating Patient A in 2014 but having no recollection of that consultation. The practitioner records that he has treated Patient A's parents and their partners and her ex-husband in respect of skin cancer checks.
7. The practitioner explains, by reference to his clinical notes, that he saw Patient A on 14 October 2016 and that he recorded a "long discussion" with respect to Patient A's libido which he noted "seems high" and that he ordered blood tests.
8. At para 19 of his first statement the practitioner records: From the outset [Patient A] presented as a patient with a complicated social and personal history. I can recall that we developed an immediate rapport as I like to think that I am a good listener. I could tell that [Patient A] felt comfortable talking to me about her various personal problems
9. The practitioner explains that at a further consultation with the patient on 21 October 2020 he prescribed the oral contraceptive, which she had been taking for a number of years due to polycystic ovaries.
10. A further consultation with the patient occurred on 27 October 2019 when the practitioner says that the patient had temporarily separated from her husband. The practitioner acknowledges that, on reflection, his record keeping was poor. His stated reason for not keeping proper medical records is that the patient, who had been attending other practitioners at the practice for a long period, had disclosed sensitive personal information and that he did not wish to breach her privacy. He says he "counselled her about safe sex practices with multiple partners and having regular checks done".
11. After recording that on 14 November 2016 he referred Patient A to an endocrinologist because of asserted high libido, he then explains that the endocrinologist reported the patient had no clinical signs of elevated testosterone or androgen levels. He reports that the endocrinologist recommended that Patient A should "consider seeing a psychiatrist for assessment and management of possible mania which may have been exacerbated by using Duromine". Thereafter the practitioner records referring Patient A to Dr [name redacted].
12. The practitioner notes that, on 2 December 2016, he provided Patient A with a prescription but did not have a consultation with her. That statement is consistent with the medical records and an aide memoire of consultations provided to us by counsel for the Council.
13. The practitioner records seeing Patient A again on 9 December 2016 when he prescribed Cipramil, an antidepressant, and gave her a further oral contraceptive (OC) prescription (Yasmin). The practitioner had a further long consultation with Patient A on 13 January 2016 but he did not record any specific details of the consultation.
14. The practitioner says a consultation he had with the patient on 10 February 2017 was because Patient A had a mild urinary tract infection. The next recording in the clinical notes is of 25 February 2017 when the practitioner provided a prescription for Yasmin. He asserts he did not see the patient on this occasion, or on 7 July 2017, but only wrote a prescription. That assertion is consistent with the Medicare records and the aid memoire.
15. The practitioner saw Patient A on 3 May 2017 for an (OC) pill check. She was seen again on 31 May 2017 for a chest infection. A consultation on 16 June 2017 occurred when Patient A presented with symptoms of tonsillitis. The patient was referred to an ear, nose and throat surgeon. However, while waiting to see the specialist, the practitioner records that he again saw Patient A on 28 June 2017, when she was still suffering tonsillitis.
16. The practitioner reports that at a consultation on 16 August 2017 Patient A was still suffering tonsillitis and awaiting a tonsillectomy. She also presented with a urinary tract infection.
17. Patient A was seen by the practitioner on 13 September 2017 for an (OC) pill check. She was provided with a prescription for Yasmin.
18. On 16 October 2017 the practitioner saw Patient A and prepared a GP Mental Health Plan and a referral to the psychologist, [name redacted].
19. On 29 November 2017 the practitioner says that Patient A presented suffering symptoms of pharyngitis.
20. The practitioner asserts that the last time he saw Patient A was on 27 December 2017 when she presented with a gym related injury to her right foot.
21. The practitioner says he did not see Patient A on 9 February 2018 but provided a further referral to Dr [name redacted]. Nor, he says, did he see her on 27 April 2018. Rather, at that time, he wrote a repeat prescription for Yasmin.
22. At para 45 of his statement, the practitioner "strongly" denies the allegations made by Patient A. He says that at no time did he engage in a sexual relationship with her as alleged. He goes on in subsequent paragraphs to deny ever hugging Patient A or touching her hand or knee. He also denies the words attributed to him by Patient A at the consultation in late October 2016. He also denies that he ever attended Patient A's home.
23. At para 50 of his first statement, the practitioner expressly denies that he had his practice manager call Patient A to make appointments to fit her in between patients. The practitioner goes on to say: My nurse, Roslyn Bailey, was with me every day and had unrestricted access to the room during my consultations. There were two doors to the room that were unlocked at all times.
24. The practitioner states that during 2016 and 2017 there "were no cameras at the back entrance to the Rose Bay Practice that I would have been able to switch off as alleged by [Patient A]".
25. At para 53 the practitioner says "At some stage after my consultations with [Patient A] in October 2016", that he recalls he received a text message from Patient A.
26. At para 54 the practitioner asserts: [Patient A] asked me via text if I could call her as she needed to speak to someone about her problems. I recall I did telephone her back as I felt sorry for her and felt that I would like to provide support to her. I agree that I did speak on the phone to [Patient A] on numerous occasions in 2016 and 2017 when I drove to and from work however I deny that we spent 'hours' on the phone or that I initiated those calls.
27. The practitioner admits he found Patient A's stories about her personal life "fascinating". He goes on to state: I am ashamed that I was drawn in and intrigued by [Patient A] and I felt flattered by the attention she was paying to me. Equally I felt like I was providing support to help [Patient A] deal with her problems and she always seemed very appreciative. I accept that I allowed the doctor/patient boundary to become blurred for a period of time and with the benefit of hindsight I should have indicated to [Patient A] that I was unable to talk to her about her problems outside the confines of a consultation. However, I deny strongly that we ever engaged in any sexual contact.
28. The practitioner says that only rarely would he attend the surgery on a Sunday as he is always with his wife and children. He also explains that he obtained his day sheets from the Penrith Skin Cancer clinic for the dates of 8 and 10 November 2016 when Patient A alleges he attended her home noting that he worked long hours on those days finishing at 5.10pm and 6pm respectively.
29. At para 58, the practitioner records his wife seeing Patient A's contact details on his phone (clarified in his oral evidence as his iPad) when his son was playing with it. He records that his wife was unhappy about him communicating with Patient A outside the surgery. He says he realised he had "overstepped" boundaries and that he needed to let Patient A know she should stop calling on his mobile phone. He says he believes he had a conversation with Patient A around this time, but cannot remember precisely when it occurred. The practitioner goes on to record that he saw his general practitioner because he was concerned how to manage Patient A, and he referred him to a psychologist, David Shapiro. The practitioner says since consulting Dr Shapiro he never calls a patient on his mobile phone, and does not provide his mobile phone number to patients. He says "I also have clear boundaries with emails and social media".
30. At para 63, the practitioner relates the steps he has taken since the complaint including reading the Medical Board of Australia Good Medical Practice: a Code of Conduct for Doctors in Australia, as well as the sexual boundaries guidelines. He also reports reviewing Avant fact sheets and e-learning resources on medical records and keeping professional boundaries.
31. The practitioner explains that he has not conducted any general practice work since 2018 and that his practice is now focussed solely on skin cancer treatment. He also explains that Ms Bailey is present for all of his consultations.
32. The practitioner concludes his first statement by referring to his only contact with Patient A since December 2017. He says that he received a telephone call from Patient A "out of the blue" about three weeks earlier when Patient A accused him of spreading a rumour that she was a prostitute.

The practitioner's wife

1. The practitioner's wife provided a statement which was before the delegates dated 18 June 2020. She reports having met Patient A as their children went to the same pre-school.
2. The practitioner's wife explains that she had a conversation with the practitioner when she discovered Patient A's name on his contact list. She says at that time the practitioner disclosed he had been communicating with Patient A outside the surgery because she had been experiencing difficulties in her personal life and had been seeking guidance.
3. After expressing her view that the practitioner is a very kind, genuine and open person, prepared to offer assistance to persons in need, particularly in their community, his wife says that she told him "in no uncertain terms that I thought it was inappropriate to be speaking on the phone outside of his surgery".
4. The practitioner's wife confirms his evidence that he agreed to see his general practitioner and was referred to Dr Shapiro. She concludes her statement explaining that the practitioner never works on Sundays and has only ever done so where "there has been a medical emergency and he has been asked to come in". She relates that she can only recall "a handful" of occasions this has occurred since he commenced working at the practice.

Dr David Shapiro

1. We had the benefit of Dr Shapiro's clinical notes as well as a report prepared by him for this appeal. Dr Shapiro was not called to give oral evidence or required for cross-examination for the purposes of this appeal. Dr Shapiro is a Clinical Psychologist.
2. In his report dated 13 August 2020 Dr Shapiro states that, in 2017, he saw the practitioner on 13 occasions over a seven month period. The practitioner also saw Dr Shapiro on six occasions over a six month period from May 2018 to October 2018. The practitioner is noted to have consulted with Dr Shapiro on 13 occasions from 9 June 2020 onwards.
3. In his report Dr Shapiro notes the primary reason for the practitioner's presentation was that professional boundaries with Patient A had become an issue. He also discussed the practitioner's previous complaint history. Consultations in 2020 were noted to be because of the practitioner's acute anxiety and depression as the result of the investigations leading to this appeal.
4. Dr Shapiro was asked to comment on the progress (if any) the practitioner has made as a result of his consultations. Dr Shapiro noted that the practitioner reports having implemented changes at work to ensure boundaries are more clearly maintained and therapeutic work "including identifying risk factors and motivations that may have led to Dr Segal's vulnerability with respect to compromising his professional boundaries".
5. Dr Shapiro was also asked by the practitioner's lawyers to express his opinion as to whether the practitioner "has insight into the conduct which is the subject of the Complaint and suspension?". He responded: Dr Segal has cognitive insight into his conduct, and is in the process of gaining clearer emotional insight through our work together.
6. Dr Shapiro was also asked to provide his opinion of whether the practitioner is in a position to return to the practice of medicine in the event that the Suspension is lifted. He opined: Yes, subject to: a. His current symptoms of anxiety and depression remitting so that they do not have the potential to interfere with his work. His symptoms have abated significantly since first consulting with me and I believe he has a good short-term and long-term prognosis. b. Dr Segal continuing to deepen his insight and understanding around professional boundaries through ongoing therapy.

Associate Professor Vincent Roche

1. Associate Professor Roche provided an expert report at the request of the practitioner's solicitors. A number of questions, some based on hypothetical scenarios, were posed by the practitioner's lawyers to Associate Professor Roche. However, it appears that Associate Professor Roche was not provided with the any of the material before the delegates or us. This detracts from the weight, if any, we can place on his report. Crucially, his opinion does not canvass "counselling" by text or telephone, and in circumstances where the "counselling" advice is not recorded.
2. Associate Professor Roche refers to it being appropriate for a GP, if they feel they have the necessary skills, to provide some counselling. With no disrespect to the opinions proffered by Associate Professor Roche, we find they are of minimal to no assistance in this case. We are conscious of requirements for an expert to have relevant facts, and the expertise to comment on those facts as explained by Heydon JA in Makita v Sprowles [2001] NSWCA 305 at [64]. Here the counselling did not for the most part take place in a clinical setting of a formal consultation, rather the "counselling" took the form of telephone conversations outside the practitioner's normal practice. No notes were recorded. Of even more significance is the fact that the telephone "counselling" continued or was contemporaneous with the patient's referral to properly qualified practitioners, Dr Jacobs and Ms Taub.

Dr Sylvia Terkasher

1. Dr Terkasher is the principal of the practice where she has worked since 1985. She reports she has known the practitioner since 2013 when he joined the practice as a skin cancer practitioner and a general practitioner. She also records that, in early 2018, the practitioner started to work mostly as a skin cancer practitioner and as an occasional general practitioner.
2. At para 3 of her statement dated 7 June 2020 Dr Terkasher states she is not aware of the practitioner engaging in a sexual relationship with Patient A or any other patient.
3. At para 4 she explains: I am not aware of Dr Segal ever locking the consulting room door during a consultation with [Patient A] or any other patient. Dr Segal has either one or two nurses working with him at all times. The consulting room from which he practices have two access doors and are very close to each other.
4. Dr Terkasher reports that, in her opinion, the practitioner's interactions with his patients is professional, and that since he commenced work in the practice she has never had a complaint about him.
5. At para 7 of her statement Dr Terkasher explains that: Since 16 June 2016, the Practice has had a Dahua CCTV system consisting of multiple Dahua dome cameras located in the waiting room and back corridor. The cameras are connected to a central network video recorded [sic]. The cameras have been set up to record once they detect motion. The system is not configured to pause recording and no one in the practice can manually operate the security cameras or turn them on and off. There is no way in which Dr Segal could have switched off the security cameras at the Practice at any time.
6. Dr Terkasher annexes to her statement a letter from the installer of the security system, Mr George Christie of The Cabling and Security Guys Pty Ltd, which corroborates her evidence about the security system.

Ms Zillah Ehrlich

1. In support of his appeal the practitioner relied on a statement of Ms Zillah Ehrlich dated 20 August 2020. Ms Ehrlich is the practice manager at the practice where she has worked on a full time basis since February 2014. We pause to observe that the delegates did not have the benefit of a statement from Ms Ehrlich at the s 150 hearing. Ms Ehrlich did not give evidence before us, nor was she required for cross-examination. This observation is not intended as a criticism, noting particularly the interlocutory nature of the proceedings.
2. In her statement Ms Ehrlich explains that she is familiar with Patient A who has been a patient of the practice "for some time".
3. At para 6 of her statement she explains that she is not aware of the practitioner engaging in a sexual relationship with Patient A or any other patient. At para 7 she states: I do not recall having ever made special arrangements for [Patient A] to consult with Dr Segal in between his appointments with patients. I also do not recall contacting [Patient A] at the request of Dr Segal in order to arrange a consultation with her.
4. At para 8 of her statement, Ms Ehrlich states While I do not recall any specific instances of this, I would have only ever received calls from [Patient A] wishing to arrange an appointment with Dr Segal in the same manner in which I would take bookings for any other patient wishing to see a practitioner at the Practice.
5. Ms Ehrlich concludes her statement noting that she had never received a complaint about the practitioner and that his actions with patients and colleagues have "always been professional and appropriate". She says she has always considered the practitioner to be an excellent medical practitioner.

Ms Janine Dale

1. Ms Dale is the National Operations Manager, Australian Skin Cancer Clinics. In an email dated 17 June 2020 she explains that she is aware of the complaint about the practitioner. Ms Dale has known the practitioner since he began working for Australian Skin Cancer Clinics in 2013. She opines: He treats all patients with care and respect and to date we have not received any complaints from our patients.

Ms Lyndal Young

1. The practitioner also relied on a statement of Ms Lyndal Young dated 13 August 2020 in support of his appeal. Ms Young is the Practice Manager for Australian Skin Cancer Clinics at Penrith. Again, we observe the delegates did not have the benefit of a statement from Ms Young at the s 150 hearing. Ms Young has worked at the Penrith clinic for the past 18 months. She acknowledges awareness of the complaint by Patient A against the practitioner. She explains that she has only received positive feedback from patients about the care they receive from the practitioner and Ms Bailey.
2. Ms Young concludes her statement and explains: The loss of Dr Segal to our practice has affected us greatly. Patients, staff and colleagues all rely on him quite heavily. Our patients were very distressed to find out that he was absent from our practice, as he is a valued member of our community, which he has been a part of for well over 7 years. Penrith is an area that has a very large community of low income earners on Pension and Health Care Cards, Dr Segal travels 1 hour and 30 mins either way to provide a service that these patients could not ordinary afford. We are all very grateful for this service.

Character referees

1. We have read and taken into account the highly complimentary character references provided on behalf of the practitioner, including Rabbi Dovy Rapoport; Dr Marios Nicolaou; Dr Joanne Silverton; Dr Anne Lewinsky; Mr Stephen Jankelowitz; and Ms Emma Goldschmidt. The patient referees disclose they or their family member received compassionate care from the practitioner. His professional referees hold him in high regard.

Consideration

1. We start our consideration of this appeal noting that, given the nature of our task, we are not required to make factual findings applying the Briginshaw standard to that exercise. Our task is to assess if it is appropriate to make orders under s 159C, to ensure the health and safety of the public, or because action is otherwise in the public interest. It will be appropriate for us to do so if we are satisfied there is an unacceptable risk to both health and safety of any person or persons, or that it is not in the public interest unless the practitioner is suspended or conditions are placed on his registration.
2. It is important that in commencing this assessment task we record that the practitioner concedes he blurred boundaries with Patient A, that his text and phone messaging was inappropriate, and that he failed to keep proper clinical records for this patient. These are, in our view, significant admissions particularly in light of the practitioner's earlier expressed insight into boundary violations at the Conduct interview, and his therapy with Dr Shapiro.
3. In reaching our assessment of unacceptable risk we are conscious that Patient A's statement is not the subject of cross-examination. We are, however, satisfied by relying on Dr [name and sentence redacted]' There are some discrepancies in her statement which cast doubt on its total veracity.
4. We note: 1. Patient A's reference to the security cameras being turned off by the practitioner at the practice is at odds with the evidence of Dr Terkasher. We note Dr Terkasher's evidence is corroborated by the security company. 2. Patient A's evidence is at odds with both the practitioner's evidence and that of Dr Terkasher about a nurse being present during the practitioner's consultations or at the very least, as explained by the practitioner in answers to cross-examination, practice nurses walking freely in and out of his consulting rooms and the doors to the consulting rooms not being locked. 3. Ms Ehrlich's evidence does not support Patient A's version of being telephoned by the practice manager and "fitted in" between patients. 4. Although Patient A provides specific dates and time periods she says the practitioner attended her home and engaged in sexual intercourse, she does not state at what time of the day this occurred. We accept that the practitioner's practice records for the dates nominated suggest that he could not have been in the eastern suburbs until approximately 7.30pm to 8pm in the evening. However, this fact does not rule out the possibility he may have attended her home after 8pm on the two occasions nominated. 5. Patient A's inference that the practitioner prescribed Yasmin so they could have unprotected sex appears to be an embellishment of her evidence, given that she was prescribed Yasmin for many years prior to seeing the practitioner for her condition of polycystic ovaries.
5. Senior counsel for the practitioner cautioned us about drawing inferences from the clinical records of Dr [redacted] and we accept care is required in circumstances where neither party called Dr [redacted]. We observe that there are no entries until the entry of 22 May 2020 in which the practitioner is mentioned as a sexual partner. However, that fact does not negate the possibility that earlier entries such as the entry of 26 November 2016, and 28 May 2018 may refer to the practitioner. We also observe that Dr [redacted]' notes are not independent evidence of the facts recorded, but rather his records are his recording of Patient's A's reports which may corroborate her allegations or be exaggerated or inaccurate.
6. Balanced against these factors, we found a number of aspects of the practitioner's statement and his oral evidence unsatisfactory. There is no doubt that before the delegates he relied on Ms Bailey's presence as exculpatory of any possibility he could have engaged in sexual relations during a consultation at the practice. It was only in his supplementary statement that he sought to "clarify" his evidence that Ms Bailey only commenced working on Fridays at the practice after 2018. Clearly, her presence could not have been a "protective" factor at the relevant consultations in 2016/2017.
7. Further, we were concerned that in his first statement the practitioner attempted to portray Patient A as the instigator of the telephone counselling sessions with text messaging occurring sometime after the consultation. The text messages clearly demonstrate texting commenced within hours of the first consultation and it was the practitioner who invited Patient A to contact him for support.
8. We found the practitioner was evasive in his answers to questions posed in cross-examination about the frequency of texting and or phone conversations between himself and Patient A. He declined to provide an estimate of the number of texts or phone messages.
9. We also found some similarities between the earlier complaints and Patient A's reports. Even ignoring the anonymous complaint, Patient B's account of touching by the practitioner accords with Patient D's statement of his conduct and is consistent with what Patient A says occurred at the initial consultations. We also note that in his statement the practitioner says he kissed Patient B good-night, but his employer in a letter to Patient B says the practitioner said he kissed her twice. It appears to us that the practitioner is now attempting to minimise or gloss over his conduct with Patient B.
10. We were unable to completely discount the Police Facts Sheet in respect of Patient D in circumstances where no transcript of the proceedings was before us, although we accept the proceedings were dismissed with no prima facie case established.
11. Of more significance is the fact that, notwithstanding that the practitioner's conduct with Patient B was squarely raised in the Conduct interview and the practitioner claimed to have gained insight, he subsequently engaged, on his own evidence, in similar conduct with Patient A. Each patient displayed anxiety. The practitioner's "friendship" and support was blurred with the practitioner seeing each woman as a patient and prescribing for them at the same time as texting and providing support in a non-clinical setting.

Health and Safety of the public - is there an unacceptable risk?

1. Dr Shapiro opines that the practitioner is gaining insight. The practitioner's own evidence is that he has cognitive insight and is gaining emotional insight. We perceive the practitioner still has some lack of insight into the effect of his conduct because of his expressed desire to be liked and appreciated. That is, we are not satisfied that he is able to prioritise his patients' needs above those of his own.
2. We are simply unable, nor are we required to, on the present state of the evidence, to unequivocally accept Patient A's evidence in preference to that of the practitioner, or conversely the practitioner's evidence in preference to that of Patient A. That decision is for another time and forum when a Tribunal may have the benefit of telephone/text records, all relevant clinical records including those of [redacted], as well as the benefit of seeing relevant witnesses, including professional witnesses, and observing their cross-examination.
3. We accept that the practice managers at the practice, and at Penrith, and Ms Bailey, with whom the practitioner was until recently practising, hold him in high regard. However, given the past complaints history, and Patient A's statement, together with the practitioner's failure to comply with boundary issues despite warnings and his lack of complete emotional insight, we conclude that there is an unacceptable risk to the health and safety of the public if the practitioner is permitted to practise unrestricted. In reaching the conclusion that it is appropriate to take action, we have given significant weight to the fact that, notwithstanding the clear warnings given to him by the Conduct interviewers, and his consultations with Dr Shapiro, the practitioner still has a degree of lack of insight into his conduct. This was evident in his answers given in cross-examination where he did not answer questions posed on a number of occasions but rather sought to provide self-justifying answers.
4. Of more significance is our conclusion that there is an unacceptable risk that the public interest will be disregarded if the practitioner is permitted to practise unconditionally. What is encompassed by the public interest must be considered in the context of the relevant statute. In Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 the presiding Member set out the relevant principles as follows: Authorities considering public interest In Hogan v Hinch [2011] HCA 4 the High Court discussed the words "public interest" in the context of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) in circumstances where it was asserted a journalist had breached a suppression order made by a trial Judge. French CJ explained: Section 42 requires that the court, before making an order under that section, be satisfied that "it is in the public interest to do so". The term "public interest" and its analogues have long informed judicial discretions and evaluative judgments at common law. Examples include the enforceability of covenants in restraint of trade[67], claims for the exclusion of evidence on grounds of public interest immunity[68], governmental claims for confidentiality at equity[69], the release from the implied obligation relating to the use of documents obtained in the course of proceedings[70], and in the application of the law of contempt[71]. When used in a statute, the term derives its content from "the subject matter and the scope and purpose" of the enactment in which it appears[72]. The court is not free to apply idiosyncratic notions of public interest. In exercising its powers under s 42, the court must assess public interest by reference to the place of the section in the statutory scheme, the purpose of the Act as a whole and the purposes of extended supervision orders. In determining whether to make a suppression order with respect to identification of an offender, the court must consider the extent, if any, to which the order would enhance the protection of the community. It must also consider its effect upon the offender's prospects of rehabilitation. Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest. A court considering such an order must also look to the larger constitutional and legal context which informs the interpretation of the statute, having regard to the effect of the order upon the open justice principle, on common law freedom of speech, and on the human rights guaranteed by the Charter. The application of a public interest criterion may require a balancing of competing interests and "be very much a question of fact and degree."[73] [footnotes omitted] In the earlier case of O'Sullivan v Farrer (1989) 168 CLR 210 the High Court explained, when dealing with the words in the context of the granting of a liquor licencing statute, as follows: Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... legislature could have had in view": Water Conservation and Irrigation Commission, per Dixon J. at p 505. In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at [55] the High Court observed: It may readily be accepted that most questions about what is in "the public interest" will require consideration of a number of competing arguments about, or features or "facets" of, the public interest. As was pointed out in O'Sullivan v Farrer: "[T]he expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'." [footnotes omitted] These principles were relied on in Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [226]. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Basten JA explained: The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. Also relevant to this matter is the decision of the Tribunal in Hill v Medical Council of NSW [2019] NSWCATOD 97. In this matter the Tribunal heard appeals under s 159 and s 159B of the National Law (against a decision of the Medical Council of NSW (the Council) suspending a doctor's registration). The Tribunal adopted the submissions made by the Council about the words "public interest" in the context of s 150. The Council's submissions on the topic of public interest were recorded by the Tribunal as follows: The Council argued that consideration of the public interest must involve consideration of matters which impact upon the honour and integrity of the medical profession generally. No actual harm needs to be demonstrated. The following passage from Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at paragraph 56 was cited: A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits. It was submitted that the scope and purpose of the legislation was the only confining factor in the interpretation of 'the public interest'. Our attention was drawn to Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, where Wilcox CJ and Keely J said, at p 681: The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation. In Director of Public Prosecutions v Smith (1991) 1 VR 63, the Court said: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. I note that the adoption by the Tribunal in Hill v Medical Council of NSW of the authorities relied by the Council on the topic of public interest was in the context of proceedings under s 150 of the National Law. Although it may be argued that public interest connotations have a different focus given the nature of proceedings under s 150 to the instant proceedings, nevertheless I find those authorities emphasise a number of matters relevant to the scope and purpose of the legislation by which I must determine this application. Those factors include the high moral and ethical obligations on practitioners, the need to comply with regulations, and the confidence of the public in those who treat them. I find the remarks of Basten JA in Prakash v Health Care Complaints Commission very relevant to this application. I accept that the scope and purpose of the legislation require that I consider s 3 (where relevant), s 3A and relevant provisions of Part 8 of the National Law. Inextricably intertwined with Part 8 are s 90B and s 90C of the Health Care Complaints Act.
5. In this case we consider the concept of the public interest must, as discussed by Harrison Ass J in Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708, include the standing and reputation of the profession. We consider in the context of s 150 that the public interest must also include a recognition that the regulatory scheme provided in the National Law for ensuring only those practitioners fit to practise do so, is given due weight and upheld, as well as taking into account the need for appropriately skilled practitioners to be available to meet the health needs of the public.
6. In light of our conclusion that it is appropriate to take action, we turn to consider first whether conditions would provide adequate protection for the health and safety of persons if the practitioner is permitted to continue to practice.
7. This leads us to consider first if there are appropriate conditions which will ameliorate the unacceptable risk the practitioner's continuing practice is likely to cause. In their submissions the Council oppose the imposition of a so called "chaperone" condition.
8. At para 77(d) of her submissions, counsel for the Council explains: Fourth, chaperone conditions would not address the issue of maintaining public confidence in the profession. Moreover, this Tribunal has recognised the manner in which chaperone conditions have fallen out of favour, particularly since the report prepared by Ron Paterson in 2017, Independent Review of the Use of Chaperones to Protect Patients in Australia. More particularly, however, the [Patient A] complaint, the Admitted Conduct and Dr Segal's past complaint history each raise concerns about Dr Segal's context outside the clinical setting. A chaperone condition could not address these concerns.
9. The submissions refer to this Tribunal's decision in Health Care Complaints Commission v Pilkington [2020] NSWCATOD 21 at [5] and the footnote thereto.
10. We note that the initial report of Professor Paterson was commissioned by the Medical Board of Australia and published in 2017. We also accept, as advanced by Senior Council for the practitioner, there was no evidence before us that the report recommendations have been adopted as a policy by the Council nor do they have the impact of law. But we are of the view the report's recommendations advising against chaperone or practice monitor conditions, except in limited circumstances, require careful consideration.
11. Since the decision in Health Care Complaints Commission v Pilkington, Professor Paterson was commissioned by the Australian Health Practitioner Regulation Agency and the Medical Board of Australia and has published a further report "Three years on: Changes in regulatory practice since Independent review of the use of chaperones to protect patients in Australia". We note that in other jurisdictions in Australia, in limited circumstances a practice monitor condition (replacement chaperone condition) may be imposed, but the recommendations in the latest report strongly advocate if conditions are imposed in an "immediate action" matter (in NSW proceedings under s 150) that the condition should be gender-based or gender specific.
12. We consider that a gender based restriction on the practitioner's practice will provide adequate protection for the health and safety of the public on an interim basis. We are conscious of counsel for the Council's submission that such a condition will not, or may not, protect persons who are not patients of the practitioner. We must be guided in our decision making by the factual context of the allegations against the practitioner. In each case, other than Person D, the female involved was a patient. We accept that the practitioner now does not supply his mobile phone number to patients, reducing the likelihood of a patient instigating contact outside the clinical setting. Ms Bailey, and the practice manager at the practice and at Penrith, are aware of the complaint. In these circumstances, and particularly where the complaint is presently subject of investigation by the HCCC, we consider that it is highly unlikely the practitioner would engage in inappropriate conduct with a staff member or patient.
13. We have given careful consideration to the public interest. We have been informed on this topic by two decisions which are referred to in Professor Paterson's latest report. In Medical Board of Australia v Liang Joo Leow [2019] VSC 532 Niall JA, in the context of determining by way of judicial review a decision of a Tribunal to lift a suspension where criminal charges of rape had not been determined, at [81], said: In circumstances where the allegations, if substantiated, may reflect on the practitioner's fitness to hold registration and may ultimately justify suspension or cancellation, it may be necessary, in the public interest, to take immediate action rather than await the outcome of the charges. In some cases, immediate action will be required because of a risk to patient safety or well-being. It may be possible for the Board to conclude that there is a serious risk to persons based on the material it has, even though criminal charges remain outstanding. In other cases, it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole.
14. Later at [98] his Honour explained: Where no issues of patient or public safety are involved, and in circumstances where it is necessary to impute to the public an understanding that the allegations are untested and unproven, the Tribunal may, in a given case, consider that there is no significant impact on public confidence. No general rule can be applied.
15. In College of Physicians and Surgeons of Ontario v Peirovy [2018] ONCA 420 Benotto JA, albeit in dissenting reasons on the question of whether a Divisional Court's review of a Discipline Committee should be upheld, discussed societal attitudinal change to sexual abuse and the courts response to such abuse. His Honour notes at [149] "society has evolved in respect of the gravity of the breach of trust and damage caused by the sexual abuse of patients by their doctors".

Can conditions be crafted to properly reflect the public interest?

1. There can be no doubt that imposing a suspension on the practitioner's registration would ensure that the reputation of the profession is upheld. However, such an action has been described as draconian (see Karimi v Medical Council of New South Wales [2017] NSWCATOD 180). In this case suspension, if imposed, will cause significant reputational and financial damage to this practitioner. It would also mean that skin cancer patients in Penrith may have to wait longer for treatment than if the practitioner were available to treat them.
2. We are conscious that the allegations of Patient A and the practitioner's denials are, at this point in time, untested. That is a circumstance which a reasonably informed public can comprehend. We accept, however, that the public could rightly, in the present societal context, consider some action should be taken at a regulatory or tribunal level on an interim basis to reflect the serious nature of the allegations and the consequences if they are ultimately proved. Thus, we did not agree with the primary or first proposal made on behalf of the practitioner that the imposition of conditions is unnecessary. Nor did we find the practitioner's proposal that he should be precluded from practising at the Rose Bay practice would have any practical utility or be, or be seen to be, in the public interest.
3. We are conscious that the practitioner ultimately agreed that he would not oppose the imposition of a condition limiting him to performing skin cancer treatment on males, or on females over the age of 60. We observe that all the allegations of boundary violations have been made by young women. We are satisfied that such a condition will adequately protect the health and safety of the public and be in the public interest. Further, to ensure full compliance with this condition, we will impose, at the practitioner's expense, an audit requirement on the practitioner's practice. That audit must also review the practitioner's record keeping.
4. Because of Dr Shapiro's opinion and the practitioner's concession that he is still in the process of gaining emotional insight, we will impose conditions that he continue to attend on a psychologist of his choice and notified to the Council at such frequency as nominated by the approved psychologist.

Costs

1. The parties requested that we provide in our orders for submissions in respect of any application for costs. We have included such a provision in our orders.

ORDERS 1. The decision of the Medical Council of New South Wales of 22 June 2020 is set aside and the following orders substituted in lieu. 2. The following conditions are imposed on the registration of Dr Shaun Segal (the practitioner): 1. To practise only in the area of skin cancer medicine. 2. Not to consult with, counsel, examine, treat or perform any procedures on any female person under the age of 60. 3. The practitioner may only provide emergency medical services to persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. 4. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 5. To submit to an audit of his medical practice, by a person or persons nominated by the Medical Council of NSW and: 1. the audit is to be held within 3 months of 2 October 2020 and subsequently as required by the Council 2. the auditor(s) is to examine and assess the following aspects of his practice compliance with his practice condition 3. compliance with Part 4 and Sch 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010; NSW Health Standard - Health Care Records - Documentation and Management 2012 4. compliance with orders 2(a) and (b) of these orders. 1. To authorise the auditor(s) to provide the Council with a report on their findings. 2. To meet all costs associated with the audit and any subsequent audits and reports. 3. 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. 4. To advise the Medical Council of NSW in writing at least seven days prior to changing his place of practice. 5. To forward evidence to the Medical Council of NSW within 14 days of 2 October 2020, that he has provided a copy of his practice conditions to the Medical Director, Practice Principal, or the responsible senior officer in any place that he practices. 6. Within 14 days of a change in the place of his practice, to forward evidence to the Medical Council of NSW that he has provided a copy of his practice conditions to the Medical Director, Practice Principal, or the responsible senior officer in that place of practice. 7. 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. 8. To attend for treatment by a psychologist of his choice, at a frequency to be determined by the treating practitioner. The practitioner is to: 1. Provide the Council with the professional details of the treating practitioner; 2. Authorise the treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 1. To submit to the Medical Council of NSW within seven days of the date of this decision the name of the psychologist proposed for the purposes of order 2(m) of these orders. 1. The practitioner and the Medical Council may file and serve any application and submission in respect of costs within 21 days of the date of this decision.

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

Amendments 25 January 2021 - Information redacted to protect patient confidentiality. 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: 25 January 2021