Segal v Medical Council of New South Wales

The delegates' reasons - a summary

1. The delegates' reasons follow a "template" form which was subject of extensive consideration in Steel v Medical Council of New South Wales [2020] NSWCATOD 77. In particular they pose two questions which do not reflect the language of s 150, namely: "Does the practitioner's practise accord with the public interest" and "Is it appropriate that Dr Segal's registration be suspended" "If not are there conditions that could be imposed to minimise that risk" [my emphasis].
2. After referring to the nature and places of the practitioner's practice, the delegates refer to the practitioner's health noting that, in 2017, he commenced seeing a psychologist after his wife noticed he had been communicating with Patient A on his personal mobile phone. The practitioner is recorded as having engaged in discussions about "boundary setting" with the psychologist.
3. The reasons also note that between 2013 and 2014 the practitioner consulted a psychiatrist at a time of a complaint made against him by a staff member of the clinic at which he then practised and when criminal charges were laid against him arising out of the complaint. I will refer to this woman as Person B.
4. At page 4 of their reasons, the delegates particularise the complaint made by Patient A. The reasons record Patient A's assertions that she performed oral sex on the practitioner in his rooms on 30 October 2016 and that they engaged in other sexual encounters at his home and at the Rose Bay practice. Patient A is recorded as asserting the practitioner prescribed oral contraceptives for her.
5. The delegates record that the practitioner denies a sexual relationship with Patient A but that he admits to long telephone conversations with her and referring her to his treating psychiatrist.
6. The delegates record that the practitioner's evidence is that he first saw Patient A in October 2016 at Rose Bay when he attended her child who had suffered an injury.
7. The delegates refer to their examination of the clinical records for Patient A, and note the practitioner's acknowledgement that his record keeping of consultations with Patient A was of a poor standard.
8. The delegates also note the practitioner's evidence that he had received a text message from Patient A and that he had conversations with her as he was driving to and from work. The delegates also record the practitioner's explanation that he was fascinated by Patient A's stories about her personal life and that he accepted he had allowed the doctor-patient boundary to become blurred.
9. The delegates record their questioning of the practitioner about why he had continued to see Patient A when he claimed he only saw urgent one-off cases as a general practitioner and when he had received past advice from the Council, his psychologist and psychiatrist about the importance of maintaining doctor-patient boundaries. The delegates also note they had expressed their concern to the practitioner that he had assumed a therapeutic role and his lack of qualifications for that role.
10. At page 6, the delegates canvass the practitioner's evidence about his nurse who attends all his skin cancer locations and then referred to the letter from the nurse who has worked for the practitioner since April 2016. They note the nurse advised she was "unaware of Dr Segal undertaking a sexual relationship with a patient". The delegates explain the nurse also recorded that the practitioner does not lock the doors of his consulting room. They then record the practitioner's evidence about what occurred if the nurse came in to his room during a consultation with Patient A. The delegates said that they found it "unusual" that the nurse would be "walking in and out of the room whilst these discussions were occurring. Dr Segal advised that when the nurse entered the room, [Patient A] would 'switch off'." [original emphasis]
11. Thereafter, the delegates refer to the practitioner's records of his work commitments. They explain the practitioner submitted these records to support his contention that he could not have attended Patient A's home for sex on the dates she stipulated because of his work commitments. The delegates conclude "It is noted this evidence does not account for the entirety of Dr Segal's day, however does account for his work hours on the dates named by [Patient A]".
12. The delegates then record their criticism of the practitioner for referring Patient A to his own treating psychiatrist and concluded this was "a conflict of interest". They also conclude that the practitioner had acted inappropriately in engaging in long telephone counselling sessions, outside the clinical context, with Patient A and "determined that these actions were unsatisfactory and breached doctor-patient boundaries".
13. The delegates then consider the relevance of the practitioner's prior complaints history with the Council noting that the complaints "suggest a similar pattern of behaviour over a significant period of time, particularly where the themes appear to be of a similar nature".
14. The delegates note a complaint of sexual harassment in 2011, an anonymous complaint alleging sexual harassment and inappropriate relationships with patients and staff in 2013, complaints of a 19 year old employee who made allegations of indecent assault on three occasions in 2013 (Person B) and finally a complaint by the Operations Manager at a clinic where the practitioner formerly practised, which alleged inappropriate relationships with staff and sexual harassment of staff in 2013.
15. Thereafter, the delegates consider, in some detail, the complaints made by an employee of a clinic at which the practitioner was practising in 2011 (Person C). The delegates noted that in a conduct interview before the Council the practitioner had acknowledged his errors in respect of Person C in "blurring the boundaries of their relationship".
16. The delegates noted the similar features to those in the current complaint including a lack of record keeping, the development of a "friendship" where conversations about private matters were occurring, and his subsequent consultations with a psychologist to discuss boundary crossing issues.
17. Thereafter, the delegates discuss the anonymous complaint and the complaint made by the former Operations Manager of the clinic, including a complaint that no actions had been taken by the directors of the clinic, and that used condoms and lubricants were found in the practitioner's office bin.
18. The delegates record the practitioner's response to these complaints, namely, that there had been a toxic culture with employees on a "witch hunt" and that the other directors took no action on the complaints, finding them to be baseless. The delegates record that the practitioner explained the staff requests for a pay rise had been refused and they were disgruntled.
19. The delegates then record their examination of the 2013 complaints by the 19 year old staff member, Person B, which resulted in criminal charges against the practitioner. The delegates record that the practitioner explained this woman was one of the "disgruntled staff" and that she "consequently admitted that she 'made it up in court'". After recording the submissions of the practitioner's counsel about the dismissal of the charges, the delegates explain: The delegates were unable to make any assessment of what occurred with the criminal charges, as no documentation was available for this hearing. It is however noteworthy to highlight that the Medical Council is not bound by decisions or outcomes of other jurisdictions or regulatory bodies, and the role of the delegates is to undertake a risk assessment and determine appropriate action for the health and safety of the public, or otherwise in the public interest.
20. The delegates thereafter record that they did not accept the practitioner's evidence that the complaints were all vexatious and made in an attempt at revenge by disgruntled employees.
21. The delegates explain at pages 11-12: It did not seem plausible that a number of individuals would make similar complaints relating to Dr Segal's inappropriate behaviour of a sexual nature over an extended period of time and that all these individuals were, as Dr Segal contends, lying.
22. The delegates then pose the question "Does Dr Segal pose a risk to the health and safety of the public?". The delegates then set out, in some detail, the submissions made by counsel for the practitioner, including the support for the practitioner's version from the clinical notes of his psychologist, the reference from his practice nurse, together with the letter from the principal of the Rose Bay practice which confirmed the security cameras at the premises are unable to be manually turned off and the lack of any complaints by patients.
23. The delegates, however, explain they did not find the practitioner's evidence to be persuasive. They conclude that the practitioner did have an inappropriate relationship with Patient A. The delegates go on to express concern because boundary issues and inadequate record keeping issues had been raised on several occasions in the past with the practitioner. They note the practitioner said he had learnt from the experience and would change his behaviour and practice.
24. The delegates conclude that the practitioner had not heeded advice he had been given and that they could not express "any confidence" in the practitioner's assertions he would not engage in this behaviour again. The delegates then conclude that the practitioner "does pose a risk to the health and safety of the public".
25. The delegates then pose the question "What is in the public interest?". The paragraph which follows in the reasons is identical to that of the reasons of the delegates in Steel v Medical Council of New South Wales and I repeat the comments made in that decision at [51]. The delegates then canvass the topic of whether the practitioner's practise accords with the public interest. They conclude the conduct would not be deemed acceptable of a medical practitioner by the public, that his actions were in breach of the Medical Board of Australia's Code of Conduct and also the Guidelines to Sexual Boundaries in the Doctor-Patient relationship.
26. The delegates make extensive comments about the confidence and trust the public repose in the medical profession, and that practitioners will not take advantage of the public. The delegates express concern, given the complaints over a period of time from multiple complainants, that the practitioner may lack a commitment to ethical behaviour towards patients.
27. The delegates concluded their assessment of the public interest as follows: The community trusts health practitioner because they believe that, in addition to being competent, health practitioners will not take advantage of them and will display qualities such as respect, propriety and integrity. The recurrent allegations against Dr Segal, of inappropriate behaviour over an extended period of time, from multiple complainants, raises the concern that Dr Segal may lack a commitment to ethical behaviour towards patients, and also lack of insight into his own deficiencies in this critical area. The delegates formed the view that in light of the accusations made against him over an extended period, Dr Segal's ability to make decisions in the best interests of patients is called into question. Additionally, the delegates determined a failure to act in these circumstances would erode the confidence of the public in the medical profession, particularly in light of Dr Segal's complaints history and failure to remediate despite the intervention of the Medical Council, and treatment and counselling by a psychologist and psychiatrist.
28. Based on their conclusions the delegates explain that they determined it was appropriate to take action in the public interest.
29. The delegates then posed the question "Is it appropriate that Dr Segal's registration be suspended?".
30. The delegates note it is not their role to make findings of fact but rather to undertake a risk assessment and to determine what action is appropriate in the circumstances.
31. Ultimately, the delegates explain why, although there were inconsistencies in the details of Patient A's account, "the differences do not discount the general elements of the complaint". The delegates record that they accept, on balance, Patient A's account to be plausible.
32. The delegates conclude their reasons explaining that they determined action was required in the public interest and that the practitioner posed a risk to the health and safety of the public. The delegates state: Given that the protection of the public is of paramount consideration, the delegates determined that the only action appropriate in the circumstances was to suspend Dr Segal's registration.

Relevant law

1. This appeal is brought under s 159B of the National Law. That section provides as follows: 159B Appeals on point of law [NSW] (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note - An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) Subsection (1) does not limit a right of appeal under section 159. (3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section. (4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.
2. The Tribunal's powers on hearing and determining the appeal are set out in s 159C 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.
3. The expression "point of law" is discussed by Basten JA in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267) as having a wider connotation than "error of law".

The grounds of appeal

1. The practitioner's grounds of appeal are set out in the submissions in support of the stay application and repeated in the combined submission for this appeal and the appeal under s 159. At the hearing senior counsel for the practitioner confirmed that the only grounds now agitated are grounds 1 to 6.

Ground 1

1. This ground is framed as follows: The Medical Council failed to properly discharge its duty in line with the Court of Appeal's directive in Kirby v Dental Council of New South Wales [2020] NSWCA 91 in that where (as here) the evidence is incomplete and further investigation is needed, the issue for the Council was not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for the protection of the public.

The appellant's submissions

1. The practitioner's counsel submit that the delegates reasons "suggest" that they had come to a conclusion that the practitioner had engaged in sexual conduct with Patient A "in spite of the inherent weakness in her account".
2. The submissions advance the argument that, although the delegates described their role as a risk assessment and not a fact finding one, that statement is "at odds with other observations in the decision". Emphasis is placed on the delegates' finding that they did not find the practitioner's "evidence at this hearing to be persuasive. The delegates did not find sufficient reasons to discount [Patient A's] complaint, and that [the practitioner] admitted to some of the elements of the allegations put by her, excluding the sexual encounters and the details relating to those alleged incidents, for example [the practitioner] turning off the cameras, and that they had sex in his consulting room and in her home".
3. Emphasis is placed in the submission on the delegates' reasoning which showed they placed weight on the earlier complaints in the current complaint proceedings, and in particular the comment by the delegates that they "were persuaded to accept the account provided by [Patient A]".
4. It is submitted that there are fundamental flaws in the account given by [Patient A] such that the delegates should have held serious doubt that [the practitioner] engaged in a sexual relationship with her at any time.

The Council's submissions

1. After referring to the practitioner's reliance on the Court of Appeal's decision in Kirby, that a risk to the public may be sufficient for it to be appropriate for the Council to take action, the submissions state "That is not to say that if certain matters are proven, admitted or the delegates are otherwise satisfied that the relevant allegations as [sic] plausible, action under s 150 cannot be taken". It is submitted that: [t]he judgment in Kirby merely restates the position under s 150 that the delegates are not required to determine if the allegations are proven (as would occur in a professional disciplinary investigation) before interim action is taken under s 150.
2. It is further submitted that, not only did the practitioner make admissions which led to the delegates' positive finding that he did have an inappropriate relationship with [Patient A], the past complaints lent weight to the current allegations, and without engaging in an exhaustive fact finding exercise, the delegates "accepted [Patient A's] evidence as plausible".
3. In conclusion, it is submitted that the delegates did not misunderstand their task, but rather evaluated the material before them in order to assess any risks to the public. It is also submitted that the delegates were required to consider the complaint history as that history was pertinent to the risk assessment task.

Consideration - Ground 1

1. I commence by addressing the criticism directed to the delegates' consideration of the practitioner's prior complaints' history. Section 41O of the National Law is imperative in its terms. It provides as follows: 41O Other matters to be taken into account [NSW] In the exercise of any of its functions under Subdivision 2 or 7 of Division 3 of Part 8 with respect to a complaint about a registered health practitioner or a student, a Council must have regard to any of the following matters, to the extent the Council reasonably considers the matter to be relevant to the complaint - (a) another complaint or notification about the practitioner or student made to the Council or the National Agency, or made to a former Board under a repealed Act, including a complaint - (i) in respect of which the Council, the Commission or a National Board has decided no further action should be taken; and (ii) that is not required to be referred, or that the Council or the Commission decides not to refer, under Division 3 of Part 8; (b) a previous finding or decision of a Council inquiry in relation to the practitioner or student; (c) a previous finding or decision of a board inquiry, professional standards committee or a tribunal established under a repealed Act in respect of the practitioner or student; (d) a written report made by an assessor following an assessment of the practitioner's professional performance; (e) a recommendation made, or written statement of decision on a performance review provided, by a Performance Review Panel in relation to the practitioner.
2. The delegates determined, as did the panel hearing the s 159 appeal, that there were similarities in the prior complaints, particularly the complaint of Person C. Those similarities required the delegates to have regard to the prior complaints. In my view, the prior complaint in respect of Person C was particularly relevant as it involved a "blurring of boundaries", a concession the practitioner made before the delegates in respect of his relationship with Patient A. I do not find any substance in the submissions which seek to support this ground on the basis that the delegates erred by having regard to past complaints or placing weight on those complaints.
3. While it is accepted that Patient A's evidence has not yet been tested, and as noted in the s 159 appeal reasons, there are discrepancies in her evidence and that of other witnesses, I do not find the delegates' conclusions were infected with error because they decided, on the evidence before them, that they were persuaded to accept "the account" provided by Patient A. A fair reading of the delegates' reasons show they recognised inconsistencies in Patient A's complaint, but found her account plausible.
4. The gravamen of the submission agitated in respect of this ground appears to be focussed on the delegates' reasoning that they found Patient A's version of events "plausible". I am satisfied that the delegates did fairly record they accepted there were inconsistencies in Patient A's statement when considered in the light of the practitioner's evidence. I note that the adjective "plausible" is defined in the Macquarie Dictionary as follows: 1. having an appearance of truth or reason; seemingly worthy of approval or acceptance: a plausible story. 2. fair-spoken and apparently worthy of confidence: a plausible adventurer.
5. I am satisfied that the delegates did not engage in a fact finding exercise to the Briginshaw standard. Rather, in engaging in the risk assessment task before them which made it appropriate for them to take action, they found Patient A's statement had the appearance of truth or reason. Even if I am wrong about that, I am satisfied given a fair overall reading of the delegates' decision, that they were conscious of undertaking the risk assessment task required by s 150 and explained in the authorities, including Kirby v Dental Council and Ghosh v Medical Council of NSW [2020] NSWCA 122. The delegates did, and were entitled to take into account the admissions, including boundary violation admissions, made by the practitioner.

Ground 2 The Medical Council failed to have proper regard to all of the objectives and guiding principles of the National Law (NSW) as set out in s 3, including s 3(3)(c) (formerly ground (a)).

The practitioner's submissions

1. The practitioner's counsel commence their submissions by setting out s 3(3)(c) of the National Law. It is useful that I also set out this sub-section as well as s 3A.
2. Sub-section 3(3)(a) is part of the provision setting out the objectives of the national registration and accreditation scheme. Sub-section 3(2) refers to the objectives of the scheme which include a provision that only health practitioners who are suitably trained and qualified to practise in an ethical and competent manner should be registered. Sub-section 3(3) deals with the guiding principles of the registration and accreditation scheme. Sub-section 3(3)(c) provides: Restriction on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
3. Section 3A of the National Law, a NSW provision is in the following terms: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
4. I pause to note that s 150 of the National Law is also a NSW provision.
5. It is submitted from discussion at the s 150 hearing, the delegates did not appear to accept that both provisions can be read together.
6. The principal thrust of the submissions on behalf of the practitioner is that although it is accepted that public interest includes the public having confidence in the medical profession, the fact of the admissions made by the practitioner is not conduct which would warrant a suspension.
7. At para 6.14 of the submissions the following is advanced: The delegates conflate the admissions and allegations and suggest that the public could not maintain confidence in the profession if Dr Segal was not suspended. That finding is not warranted.
8. The submissions go on to note at 6.15 that the presumption of innocence is a fundamental right that the public well understand.

The Council's submissions

1. The Council's submissions commence by noting the requirement in s 3A for a tribunal (or Council) to have the protection of the health and safety of the public as the paramount consideration.
2. It is submitted that s 3(3)(a) refers to general restrictions of the practice of "a health profession" and is to be construed as referring to the restrictions on practice of the profession as a whole. This is to be compared and contrasted to s 150(1)(b) which refers to the imposition of a condition on a health practitioner's registration relating to the practitioner's practising the health profession.
3. The submissions go on to advance the argument that, regardless of the construction argument, the test to be applied by the delegates is if it is appropriate for action to be taken.

Consideration - Ground 2

1. It is clear that the delegates were concerned not only by reason of the practitioner's past conduct, but his significant concessions about his conduct in engaging in "counselling", text messaging outside the practice and the absence of proper record keeping. Those matters coupled with the serious, albeit unproved, inappropriate sexual relationship about which the patient complained, made it appropriate to impose restrictions on the practitioner's practice.
2. While there is some ambiguity caused by the wording of s 3(3)(c) it appears to me that in the context of the registration scheme this sub-section does not appear to relate to the imposition of some broad condition on all health professionals. Rather, it may be read in the context of the imposition of a condition on a practitioner's registration, which is the least restrictive condition necessary to enable a practitioner to be registered and which ensures the health and safety of the public.
3. I am not satisfied that the delegates misapplied or disregarded s 3(3)(c). Rather, the delegates focussed on their concerns that, despite prior warnings and professed insight into his earlier behaviour, the practitioner had engaged, on his own admissions, in inappropriate behaviour and they lacked confidence that he "would not engage in this behaviour again". The delegates did, and were required to, have regard to the provisions of s 3A as their paramount consideration.

Ground 3 The Medical Council took into account an irrelevant consideration, that is, that Nurse Roslyn Bailey did not refer to the complainant [Patient A] in her letter (formerly ground (e)).

The practitioner's submissions

1. The practitioner's submissions note the short time period the practitioner had to prepare for the s 150 hearing. It is submitted, at para 6.17, the delegates noted Ms Bailey's letter but explain that she did not state she was present during the consultations of Patient A with the practitioner.
2. The balance of the submissions rely on matters taken into consideration by the panel hearing the s 159 appeal and it is unnecessary that I repeat them.

The Council's submissions

1. The Council's submissions are directed to the authorities on a question of an "irrelevant" consideration with particular reference to Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at [39]-[40]. The submissions note that taking into account irrelevant considerations will only amount to jurisdictional error where the decision maker is bound to, or not permitted to, take those matters into account.
2. Further, the submissions note that the practitioner placed "great weight" on Ms Bailey's capacity to freely enter and leave the consultation room.

Consideration - Ground 3.

1. I am not satisfied that the delegates did in fact take into account an irrelevant consideration. As they noted, Ms Bailey was aware of the complaint but did not specifically state in her letter that she was present during consultations between the practitioner and Patient A.
2. Even if I am wrong about my conclusion that the omission from Ms Bailey's statement was relevant, I am not satisfied the delegates placed significant weight on an irrelevant matter. The delegates' discussion on this topic also focussed on the practitioner's evidence that when he was seeing GP patients his nurse was around or in and out of the consulting room. I am satisfied the delegates were permitted to discuss and consider the omission from Ms Bailey's evidence in the context in which it appeared in their reasons.
3. It is telling that the practitioner's submissions acknowledge that "with the benefit of further time" the practitioner ascertained that Ms Bailey only commenced assisting him at the Rose Bay practice on an everyday basis when he was at the practice from February 2018. Ms Bailey was only present from April 2016 on those occasions the practitioner saw skin cancer patients at his Saturday skin cancer clinic.
4. In conclusion, I am satisfied this ground has no merit.

Ground 4 The Medical Council denied Dr Segal procedural fairness in that it did not invite him to provide further evidence from Roslyn Bailey about the complainant, if it suspected she had important evidence to give (formerly ground (f)).

1. This ground can be disposed of shortly. The practitioner was at all times before the delegates represented by his experienced counsel and solicitor. No application for an adjournment to adduce further evidence was made.

Ground 5 The Medical Council took into account an irrelevant consideration, namely the complaint made by [Person B] which had been dismissed at the level of no prima facie case (formerly ground (d)).

The practitioner's submissions

1. The practitioner's submissions refer to the "most serious of the past complaints" about the practitioner, being those of a 19 year old employee of the practice at which he was working at Gosford. The submissions very fairly recite that the delegates acknowledged the matter went to court but did not proceed. The delegates also recorded that the practitioner's counsel appearing at the s 150 hearing stated that the matter was dismissed on the basis no prima facie case was established.
2. The submissions also quote from the delegates' reasons, where they noted that they were unable to make any assessment of what occurred with the criminal charges as no documentation was available for the hearing.
3. The submissions at 6.27 note: it appears the Delegates did not appreciate the significance of this matter being dismissed by a Magistrate at the no prima facie case stage. Contrary to the finding that the matter went to court but did not proceed …the matter did proceed and was dismissed with a finding of "no prima facie case".
4. The submissions advance the argument that, by stating that the Council was not bound by the outcomes in other jurisdictions, "the Delegates seem to imply that there is some significance to the fact that the standard in criminal matters in [sic] beyond reasonable doubt, whereas the standard in the Council is something less". The submission goes on to advance the argument: That finding does not grapple with the uncontested submission that the complaint was so lacking in credibility that it was dismissed without Dr Segal being called on to answer it. That fact is of significance and should be given weight.
5. The submissions then refer to the fact that before the panel at the s 159 hearing an email was provided by way of further evidence from the practitioner's then solicitor confirming the proceedings had been dismissed - "No prima facie case".

The Council's submissions

1. In her submissions, counsel for the Council submits that the delegates' consideration of Person B's complaint was part of the delegates' global overall assessment and that no particular factual finding was made in relation to the incident involving Person B and no particular weight was placed upon it. Rather, attention is drawn to the fact that the delegates found they did not accept that all the employee complaints were vexatious in an attempt at revenge by disgruntled employees.

Consideration - Ground 5

1. First, I observe that before the delegates, when the practitioner explained Person B's complaint had been thrown out of court, his counsel very appropriately explained her submissions were made on the basis that she had spoken to counsel who represented the practitioner in the criminal proceedings. Counsel acknowledged she was relying on hearsay evidence about what occurred at the Local Court, and that taking Person B's evidence at its highest, "there was nothing to answer". Counsel was challenged by Professor Karpin who said "okay, but that's a bit different to her changing her mind and saying she made it all up". Counsel for the practitioner conceded she did not have a transcript "so I don't know" [transcript 22.6.2020 page 48]. Thus, there was scant evidence before the delegates about the outcome at the Local Court. The panel were in a slightly better position with the evidence adduced at the s 159 appeal.
2. Secondly, I am satisfied that the delegates did not err in referring to Person B's complaint as particularised in the Police Fact Sheet. Nor do I find error in their recording that the matter "did not proceed". It is to be remembered that the delegates were not engaged in writing a judicial decision and the comments of the Full Court of the Federal Court in QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55 about the scrutiny of administrative decisions is relevant.
3. I accept the submissions of the Council in respect of this ground. I am satisfied there is no merit in the ground.

Ground 6 The Decision is so unreasonable and plainly unjust that it is wrong in law.

1. This ground was referred to by me when considering the Stay Application. In particular I referred to the principles espoused by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Eden [2016] FCACA 28.

The practitioner's submissions

1. The practitioner's counsel submits that the delegates erred by imposing "the most draconian of all options" "namely suspension when there were conditions which could be put in place to mitigate risk".
2. It is also asserted the delegates "failed to clearly articulate what the risk to the public was, in a way that could have allowed for the issue to be clearly ventilated."
3. It is then asserted the delegates, in criticising the practitioner's counselling role with Patient A, overlooked the fact that all GP's have some counselling skills. Reference is made to further evidence adduced at the s 159 appeal on this topic. For the purposes of this appeal on a point of law, disregard that further evidence.
4. It is asserted that there was no proper basis for the practitioner referring Patient A to [the psychiatrist] when he himself had been a patient of [redacted].
5. In his oral submissions, senior counsel for the practitioner referred to the fact that the delegates had not explained why they dismissed counsel's submissions that a chaperone condition could be imposed, or that the practitioner only practice in the area of skin cancer treatments. However, senior counsel readily conceded that there was no ground asserting inadequacy of reasons.

The Council's submissions

1. The thrust of submissions advanced on this ground on behalf of the Council is that the practitioner cannot impermissibly seek to use this ground as a review to attack the merits of the decision in the s 159B appeal.
2. The submissions refer to the principles from recent authorities and submit that there was a clear basis for the decision to suspend the practitioner's registration and legal unreasonableness has not been demonstrated.

Consideration - Ground 6

1. I commence my discussion of this ground noting that, at page 2 of their reasons, the delegates explain that if they find the practitioner does pose a risk to the safety or health of the public or that the public interest warrants action being taken, then "we must consider the following questions". The delegates then pose the questions as follows: vii Is it appropriate that Dr Segal's registration be suspended? viii If not, are there conditions that could be imposed to minimise that risk?
2. As discussed in Steel v Medical Council of New South Wales [2020] NSWCATOD 77, those questions misstate the provisions of s 150 and on their face could have led the delegates into error by failing to consider whether there were conditions which could be imposed rather than suspension.
3. However, my task on this appeal is to determine whether considering the reasons as a whole, and on the evidence that was before the delegates, the decision to suspend him was legally unreasonable.
4. Here I must first consider whether there has been a lawful exercise of power. My task is not to undertake a merits review. I must consider whether the decision is legally reasonable in terms of the construction of the National Law. In undertaking that task and bearing in mind the area of "genuinely free discretion" available to the delegates, I must assess whether the decision was plainly unjust, arbitrary, irrational and/or obviously disproportionate.
5. In determining this ground, it was of considerable concern to me that the questions posed to themselves by the delegates had the real potential to lead them into error, and hence the result, namely suspension, could be considered disproportionate to that required by the statute.
6. There is no doubt that the delegates were acting within power in suspending the practitioner. Such a course was open to them or they could have crafted conditions to be imposed on the practitioner's registration.
7. The delegates gave reasons why they found that suspension was "the only action" that, on the evidence before them, was appropriate. The delegates, for the reasons they expressed, found the prior complaints "lent weight" to Patient A's complaint. They concluded, based on the practitioner's own admissions, that he undertook significant boundary transgressions in his inappropriate relationship with Patient A. They also found the practitioner had failed to keep appropriate records and placed weight on the fact of his previous advice and counselling received from the Council, his psychiatrist and psychologist. This led to the conclusion that "the delegates could not be confident that Dr Segal would not commit the same errors in the future, given his previous undertaking had not held true".
8. In these circumstances I find merit in the submissions of the Council. I am not satisfied that the practitioner has established the suspension was so unreasonable and plainly unjust that it is wrong in law.

orders 1. The appeal under s 159B of the Health Practitioner Regulation National Law is dismissed. 2. The parties may make any application for costs together with submissions in support in writing 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 14 October 2020 - Identifying information has been redacted at para [95]. 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: 14 October 2020