Vo v Medical Council of NSW

NCAT Occupational|2017-11-17

Solicitors: Browns Legal & Consulting (Applicant) B Andersons, Medical Council of NSW (Respondent) File Number(s): 2017/00178443

REASONS FOR DECISION

A medical practitioner whose registration has been cancelled may apply to the Tribunal for review of the Tribunal's order of cancellation after expiry any bar imposed by the original order: Health Practitioner Regulation National Law (NSW) no 88a (National Law) s 163A [NSW]. The Tribunal must conduct an inquiry into any application for review of the order: s 163B [NSW].
On 25 November 2014 the Tribunal ordered that the registration of Kelvin Thus Minh Vo as a medical practitioner be cancelled, and that he not be permitted to apply for reinstatement to the register for two years: Health Care Complaints Commission v Vo [2014] NSWCATOD 127. The Tribunal found him guilty of professional misconduct in respect of two complaints, both of which involved sexual activity perpetrated on a male patient during a consultation. He has now applied for a reinstatement order.

Application for a Reinstatement Order

On 7 July 2017 he applied to the Tribunal under s 163A for a reinstatement order, proposing that he be permitted to return to practice subject to strict practice and private health conditions.
The National Law defines a 'reinstatement order' (s 163B(3) [NSW] as: an order that a person may be registered in accordance with Part 7 [Registration of Health Practitioners] if - (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person.
As part of its reinstatement order, the Tribunal is entitled to impose conditions on the person's registration (s 163B(4)).
As to the nature and scope of our inquiry, s 163C [NSW] states: 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division.
We heard the application on 16 and 17 November 2017. The Medical Council appeared as respondent to the application.
In reply to the application, the Council acknowledged that in the three years since his registration had been cancelled the applicant had made significant progress in addressing mental health and personal issues that might provide an explanation for the conduct that led to his registration being cancelled. However, the Council's submission was that it remained premature to restore him to the register, and the application should be refused.
In the event that that the Tribunal considers that reinstatement is appropriate, the Council made submissions as to the proposed conditions. The Council's differences with the terms as proposed by the applicant were narrow.

Principles relevant to the Tribunal's review function

Systems for the training, accreditation, registration and discipline of licensed occupations and professions exist to ensure that the public is protected from the harm that might occur if people were allowed to market and perform the relevant skills in an unregulated way. Occupational discipline systems usually have audit and complaint-making processes. In these ways, the regulator is assisted in identifying and dealing with conduct that might not conform to required standards of competence and skill, or be deficient for other reasons, such as lack of integrity and lack of honesty.
In an application for reinstatement, the Tribunal is, necessarily, dealing with a person who once met the standards of the occupation or profession but then failed in a serious way.
In the case of a first-time applicant the registration authority will normally only be concerned to ensure that the applicant has obtained the necessary degrees and met practical training requirements. An applicant will usually have no difficulty in satisfying good fame and character requirements. The applicant for reinstatement has a higher bar to cross. As is reflected in the general principles developed by the courts, a finer judgment is required in relation to an applicant for re-entry than the one required by a registration authority in relation to a new entrant.
As is the case here, the issue will not be so much the technical fitness of the applicant. The issue will be whether he or she can be trusted to practise in future with integrity, not to present any appreciable risk of repeating the misconduct that gave rise to cancellation, to practise in an ethical manner and not abuse the trust or safety of patients.
In Ex parte Tzionilis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461, Walsh J said, in a frequently cited passage: [461] Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. .... If a man [sic] has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.
Kirby P said in Dawson v Law Society [1989] NSWCA 58 at [3] that an applicant must establish his or her case ''on solid and substantial grounds'. His Honour also recognised that: There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proven reform, are afforded a second chance.
The principles are more fully set out in a number of Tribunal decisions: for example, Scully v Health Care Complaints Commission [2013] NSWMT 7 at [45] ff; Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49. As noted in the latter case at [29]: (a) The purpose of the jurisdiction is to protect the public. (b) The question is whether the applicant is a fit and proper person to be held out as a person worthy of their confidence to the rest of the profession, to patients and to the whole of the community. (c) The applicant is in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made. (d) The ultimate issue is whether the Tribunal can conclude on the basis of all the material that the applicant is now a fit and proper person to re-join profession. (e) It is not a question of what the applicant may have suffered in the past but rather what is his worthiness and reliability for the future, in particular whether the applicant will act in accordance with the high standards and responsibilities of the profession. (f) The Tribunal may draw inferences from what has happened in the past and in particular what led to his or her being removed from the Register.
The review is to be informed by the objectives and guiding principles of the National Law, as set out in s 3 and s 3A [NSW]. Of most relevance to the present proceedings are those found at s 3(2)(a) and 3A, i.e.: To provide for the protection of the public by ensuring that only health practitioners that are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)). In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration (s 3A).
The proceedings are necessarily infused with discretionary and public policy considerations. They are not to be assimilated to the narrow framework of conventional civil proceedings. Clearly where there are disputes within proceedings of the present kind over factual matters, the asserting party bears the usual onus and the usual standard of proof applies. But cases of the present kind often do not involve any significant contests of that kind.
The application is the applicant's to make out to the standard referred to in the authorities cited.

The Hearing

The parties filed the following documentary material. Applicant:

Three statements: dated 18 May 2017, 15 August 2017 and 19 October 2017.
Personal Testimonial from Dr Cao Hoang Nguyen, registered dental practitioner, 13 November 2017.
Advice, dated 16 November 2017, from Dr Thanh Van Mai, principal of Chullora Marketplace Medical Centre, who has known the applicant since student days, indicating that he would be willing to give serious consideration to employing the applicant and providing supervision to him in his group practice of 8 doctors, if the applicant regains registration.
Report, dated 14 November 2017, from his regular treating GP, Dr Waseem S. Giurgius, as to the applicant's present state of general health. Respondent:
Reports of the Medical Council inquiries that occurred on 3 July 2011 (suspension), 3 November 2011 (return to work under conditions) and the Tribunal decision.
Medical Council reports relating to his performance and compliance with conditions in the period after 3 November 2011-25 November 2014 (reports dated 5 April 2013, 20 September 2013 and 20 March 2014).
The Medical Council's material also included items considered to be responsive to s 163(3)(c). Three items were received at hearing without objection. The applicant objected to receipt of a fourth item. The Tribunal decided to receive it into evidence, as explained further below.

The parties relied on the following expert evidence. Applicant:

Report from the applicant's regular treating psychiatrist (since January 2015), Dr Mark Cross. Report dated 30 January 2017.
Report from a consultant psychiatrist, Jonathan Phillips AM dated 21 August 2017, following attendances on him by the applicant on 26 and 27 July 2017. Respondent:
Several reports from Dr Murray Wright, the Council appointed psychiatrist, who the applicant saw for assessment, prior to the decision to lift the suspension, and under the conditions that applied to his registration between 2011 and 2014. Dr Wright saw him again on 28 September 2017 at the request of the Council, and provided an assessment. He had been provided with Dr Phillips' two reports and the statement made by the applicant dated 18 May 2017.

Dr Cross gave oral evidence to the Tribunal by telephone from overseas. Dr Cross considered that the applicant was now fit to be reinstated under strict conditions. Dr Phillips gave oral evidence to the Tribunal in joint session with Dr Wright. Dr Phillips considered that the applicant was now fit to return to practice under strict conditions. Dr Wright supported restoring the applicant to the register under strict conditions.
The applicant gave oral evidence.
The Tribunal's membership includes a consultant psychiatrist, Dr Diamond, and an experienced general practitioner, Dr Jarrett. The lay member, Dr Leontini, has expertise in health ethics and medical sociology.
We will outline first the key features of the Tribunal's disciplinary decision. We will then refer to the applicant's history of prior transgressions of standards belonging to the period 2002-2011. We will also refer to some complaints additional to those that were considered by the disciplinary Tribunal, which were drawn to our attention by the Council, as is allowed by s 163C(3).

Disciplinary Tribunal's Decision

The first of the two charges found proven by the Tribunal charge related to events that occurred during a consultation on 3 July 2011 (Patient A) and the second charge relating to events that occurred between September 2009 and 19 August 2010 (Patient B).
In the case of Patient A, the applicant admitted the charge. The charge was as follows: Patient A: On 1 July 2011, Patient A attended the surgery with his girlfriend, Ms B, for testing relating to sexually transmitted diseases. The practitioner also treated Patient A for genital warts. On 3 July 2011, Patient A was contacted by the practitioner and asked to attend the surgery as test results had returned. Both Patient A and Ms B returned to the surgery and the practitioner advised them both of test results in his consulting room. Ms B then left the consulting room. The consultation continued and the practitioner provided treatment to Patient A for removal of genital warts. 1. During the consultation at the surgery on 3 July 2011, the practitioner asked inappropriate questions of Patient A about Patient A's sex life including details as to the frequency and timing of the girlfriend performing fellatio on him, and details as to Patient A performing cunnilingus on his girlfriend. 2. During the consultation at the surgery the practitioner performed fellatio on Patient A.
Patient A had gone to the Police soon after the consultation. He was 27 years old. The patient had surreptitiously recorded on his mobile phone a video of an act of fellatio by the applicant. The patient explained that he had been concerned at the possibility that something untoward might occur because of the events of 1 July 2011. So he secretly turned on his camera while the applicant was examining his genital region. As the Tribunal later noted in its reasons of 2014: '[T]he recording explicitly discloses the practitioner instigated the oral sex performed on Patient A': [52].
The Police also interviewed the applicant. He admitted the act of fellatio, but alleged that it was consensual. Ultimately the Police did not proceed with a criminal case of sexual assault because of doubts about consent.
The Police reported the matter to the medical authorities on 4 July 2011. The Medical Council convened a s 150 inquiry on 25 July 2011. The applicant made full admissions, and was suspended from practice. The matter was referred to the Health Care Complaints Commission for further investigation and any disciplinary action. On 3 November 2011 the Council permitted him to return to practice under strict practice and private health conditions. He remained in practice on that basis until the making of the order of cancellation.
In his evidence to the first committee, he sought to explain his conduct towards Patient A on the basis of a long history of proclivity to depression. He connected it to the circumstances of his upbringing during the Vietnam War and its aftermath for him, especially the voyage to Australia. We have referred to these matters earlier in our reasons.
He considered his conduct as impulsive and wrong, and attributable to the stresses he was under at the time in his family life and because of financial stresses. He had for example suffered significant losses in connection with an investment property he had bought on the Gold Coast for $1m. He had also just resolved a Medicare review alleging over servicing by the payment of $150,000. The s 150 committee had also questioned him in relation to a history between 2002-2011 of other infractions of standards: events in Geelong when he was training to become a cardiologist (falsification of a supervisor's report, a shoplifting offence) and two over servicing reviews after he returned to practice in Sydney, the first in 2002, the other in 2005, as well as the most recent one. We refer to these matters more fully later in these reasons.
After the s 150 hearing, he commenced seeing a psychiatrist, Dr Chee, who supported his application for restoration to the register, subject to strict conditions. In addition he was sent by the Council for assessment to a consultant psychiatrist, Dr Murray Wright. After considering his evidence, and reports from Dr Chee and Dr Wright, the committee decided to allow him to resume practice on strict conditions that included continuation of psychiatric treatment.
One of the notable features of the two committee reports is their reference to the possibility that the applicant's conduct towards Patient A may have been connected with a repressed homosexual orientation. The applicant did not acknowledge that as that a possibility. His position was that his conduct was connected with a proclivity to depression and misjudgements and impulsive behaviour deriving from that.
As originally filed the disciplinary application heard by the Tribunal in 2014 proceedings had been confined to the complaint relating to Patient A. The complaint relating to Patient B was later added as an amendment to the application, with the leave of the Tribunal.
The charge as laid was: Patient B: Between 12 August 2008 and 19 August 2010 Patient B was a patient of the practitioner and attended a total of 15 consultations. 1. During a consultation with the practitioner between 17 September 2009 and 19 August 2010 (inclusive) the practitioner performed a clinical examination on Patient B without wearing gloves, which was not clinically warranted in that the practitioner: (i) placed Patient B's testicles in the cup of his hand and "jingled" them whilst Patient B was lying on the examination table; (ii) placed his hand around the shaft of Patient B's penis and repeatedly pulled the foreskin down whilst Patient B was lying on the examination table; (iii) knelt in front of Patient B whilst Patient B was standing, naked from the waist down and placed his face centimetres from Patient B's genitalia; and (iv) whilst in this position sniffed Patient B's penis; (v) whilst in this position offered to suck Patient B's penis. 2. On one or more separate occasions with the practitioner between 17 September 2009 and 19 August 2010 (inclusive) the practitioner asked questions of Patient B that had no clinical basis namely: (i) what the patient's sexual orientation was; (ii) whether or not Patient B watched pornography; (iii) whether Patient B masturbated his brothers; (iv) whether Patient B was interested in Asian men; (v) whether Patient B liked rough sex. 3. On one or more separate consultations with the practitioner between 17 September 2009 and 19 August 2010 (inclusive) and after Patient B had informed the practitioner that he was gay, the practitioner asked questions of Patient B that had no clinical basis and/or were inappropriate, namely: (i) whether or not Patient B "swallowed", Patient B assuming this was in reference to performing the act of fellatio; (ii) whether Patient B was a "taker" or a "giver", Patient B assuming this was in reference to his preferred sexual position when engaging in homosexual sex; (iii) how large his penis became during an erection; (iv) whether Patient B liked rough sex. 4. During a consultation with the practitioner between 17 September 2009 and 19 August 2010, where Patient B may have presented with back pain, the practitioner performed a clinical examination on Patient B without wearing gloves, which was not clinically warranted in that the practitioner: (i) placed Patient B's testicles in the cup of his hand and "jingled" them whilst Patient B was lying on the examination table; (ii) placed his hand around the shaft of Patient B's penis and pulled the foreskin down once or twice, whilst Patient B was lying on the examination table; (iii) knelt in front of Patient B whilst Patient B was standing unclothed from the waist down and placed his face centimetres from Patient B's genitalia; and (iv) whilst in this position sniffed Patient B's penis; (v) whilst in this position, informed Patient B that he wished to examine whether he could get a blood flow or an erection by moving his shaft up and down, to which Patient B said "no".
(Items 1 and 4 may appear to duplicate each other. They refer to separate events. Item 1 relates to a consultation that occurred on 24 February 2010. Item 4 relates to a consultation that occurred in May 2010. See Tribunal reasons [80] to [83].)
Patient B was19 at the time of the events under notice. He had been a patient of the applicant since he was 16. The applicant acknowledged that he had treated Patient B on the occasions referred to in the charge. He denied the charge, and asserted that he had dealt with Patient B in a professionally appropriate manner. He asserted that the questions he asked and the manual examinations he performed in respect of the patient's genital area were clinically indicated.
As is explained in the Tribunal's decision, Patient B was struggling with his sexuality. He had homosexual inclinations, but felt embarrassed and ashamed about having to reveal that to his family. He was from an ethnic background that was not accepting of homosexuality. He confided in the applicant in relation to these matters. After speaking to friends, he made a report to police on 19 and 20 August 2010. He later declined to pursue a police case, due to feelings of embarrassment and shame of the possible revelation to his family and others that he was homosexual.
The Tribunal accepted the evidence of Patient B, finding Patient B's accounts credible. In that regard it took particular account of the similarity of the allegations made by Patient A in his statements to police with those made by Patient B (neither had any awareness of the other's complaint) as to such matters as the asking of highly intrusive questions relating to the patient's sex life and sexual orientation, and the very explicit expressions for parts of the body attributed to the applicant, which was corroborated by the language heard on the I-phone recording of his interaction with Patient A on 10 August 2010. See reasons [150] ff.
The Tribunal did not itemise which of the particulars it accepted either in full or in part, or the particulars it did not accept. But, as we read the reasons, it accepted substantially the specific allegations itemised in the particulars.
In its reasons, the Tribunal criticised the applicant for his lack of remorse and contrition in relation to the complaint made by Patient B, and the stress to which he had subjected Patient B (around two days of cross-examination by experienced counsel).
At para [70] of its reasons the Tribunal referred to the evidence of Dr Chee, the applicant's treating psychiatrist between 2011 and 2014. The Tribunal said: Dr Chee noted that he had discussed the practitioner's sexual orientation, and the practitioner denied he had homosexual inclinations. He notes: He [the practitioner] cannot understand how he came to perform oral sex on the male patient [i.e. Patient A] that day, except for the contributors listed above. He now discusses it as an act he finds abhorrent, and particularly given that he had just been consulted by the patient about the possibility of sexually transmitted diseases in the man. He denies any sexual attraction towards the male patient whatsoever. In retrospect, it was a completely illogical and impulsive act.
The Tribunal said: 155 We accept the practitioner was, in the relevant time period, affected by financial problems caused, in part, by his own conduct because of inappropriate Medicare billing practices. We also accept that he was experiencing extreme marital disharmony, and did not have an appropriate work/life balance. He has a history of inappropriate behaviour when stressed as demonstrated by his shoplifting charge and falsification of his supervisor's report when a cardiology registrar. We accept he has been diagnosed as suffering depression. He is a man who is vulnerable to act in unpredictable and bizarre ways. Although he denies he is homosexual, as Dr Wright explains in his report, his conduct with Patient A (and Patient B) lacks a cogent explanation.
In its concluding remarks, the Tribunal said, 160. Here the practitioner, while apologising for his conduct in respect of Patient A, has steadfastly denied any inappropriate conduct with Patient B. We do not find the practitioner has been frank with this Tribunal or Dr Chee, and his prognosis must be guarded. His conduct in respect of Patient A and B was deliberate and serious. It breached the high standards expected of a health professional. Not only do we find that there is a risk, without proper treatment with full disclosure to his treating professionals, that the practitioner may engage in further episodes of bizarre unprofessional behaviour, but the conduct in which he engaged is so serious that cancellation of his registration is warranted to both act as a deterrent to other practitioners, and to maintain the confidence of the public in the profession. 161. In short, the principle, as explained in Della Bruna at [91], that generally cancellation of a practitioner's registration is not appropriate unless the practitioner is probably unfit to practise at the time of the hearing and likely to be so for the foreseeable future, is relevant. This is because, for the reasons earlier enunciated, we are satisfied the practitioner is presently unfit to practice, and likely to be unfit to do so for the foreseeable future. 162. Accordingly we are satisfied the only appropriate order is that the practitioner's registration should be cancelled. Period before the practitioner can apply for a review of the cancellation of his registration 163. The conduct engaged in by the practitioner showed a complete disregard of ethical standards and was in breach of the Code. We have found the practitioner to be untruthful, and can place no weight on his expressed remorse for his actions, other than his remorse for the consequences of those actions on him, his wife, and his children. 164. Dr Chee cogently expressed the view that if the practitioner had not been truthful with him then the therapy engaged in to date had not been of any benefit to the practitioner.
Most significantly for present purposes, the Tribunal concluded: 165. We are satisfied that a significant period of time should elapse before the practitioner may apply for a review of the cancellation of his registration. During that period he may seek appropriate treatment after full disclosure of his actions to any treating specialist. 166. We agree with the HCCC that a period of two years is an appropriate period before the practitioner may again apply for re-instatement. This period reflects the seriousness of the practitioner's conduct, his lack of genuine remorse and insight into his conduct at the date of the hearing, and a period of time in which he may seek appropriate treatment.

Prior Transgressions of Standards

Geelong, 1999-2001. In 1999 the applicant commenced studies in cardiology with a view to qualifying as a cardiology physician accredited by the Royal Australasian College of Physicians (RACP). To that end he worked between 1999 and 2002 as cardiology registrar at the Geelong public hospital in Victoria under the supervision of A/Professor AJR Black. He lived away from his family making intermittent trips home, and also took occasional work as a locum in the Geelong region.
He failed to complete the course by the expected date, end 2001. Professor Black was not satisfied that he had reached the required standards, and considered that he needed an extra year. The applicant did not forward the report to the RACP. Instead he forwarded a falsified report declaring that he had performed satisfactorily, appending a typed form of Professor Black's signature. The regional health service, Barwon Health, reported his conduct to the Medical Board of Victoria on 31 January 2002. The applicant left the Geelong hospital on 3 February 2002. He returned to Sydney and commenced to work as a GP.
There was a hearing before the RACP in NSW on 29 April 2002 into this conduct. The applicant appeared in person before the panel. He attributed his behaviours to depression and impulsiveness over things that were going wrong in his life: his separation from his young family and difficulties, and in his relationship with his supervisor, Professor Black.
The RACP suspended the applicant from the College's training program for six months 'to allow time for reflection and treatment of Dr Vo for the depression and anxiety afflicting him'. The RACP refused him accreditation for the 2001 year. He was 'encouraged' to participate in an impaired doctor program approved by the NSW Medical Board. He was not to be permitted to resume training in the RACP program without evidence of satisfactory medical and psychological assessment, and certain types of training. The panel expressed the view that 'training [should] take place in a major centre with adequate personal, cultural and professional support'. The applicant did not seek to return to any RACP training program.
In addition, on 25 January 2002 he was found guilty of theft (shoplifting) at the Geelong Magistrates Court, after pleading guilty and was placed on a 12 months good behaviour bond, with no conviction recorded. The applicant has attributed the shoplifting offence to the acute depression he was suffering at that end, due to the dislocation in his personal life (living away from his wife and young children) and the loneliness of his life in Geelong. We acknowledge that depression is often accepted in the courts as an explanation for shoplifting offences.
Later in 2002 the Medical Board of Victoria dealt informally with a patient complaint arising from a consultation with him at the Geelong hospital in 2001. The applicant attended the hearing. In its report dated 26 September 2002, the Board found that the applicant had provided an inadequate diagnosis on that occasion, and prescribing antidepressants without providing the patient with sufficient information. He was found to have engaged in unprofessional conduct and was directed to undertake counselling.
Professional Services Reviews. In the period 2002-2011 he has reimbursed significant amounts to Medicare in connection with professional services reviews because of over-servicing. The first instance occurred in 2002, when with Primary Health. He reimbursed $50,000 under a deed of settlement of the dispute. The second instance occurred in 2005. He told us he had worked 365 days that year, and was required to repay a certain amount (unspecified) and was not permitted to bill Medicare for 28 days. He said to us that he had not been aware of Medicare requirements in 2002 and 2005, as he was new to being a GP, and was not aware of the requirements and restrictions that surrounded billing practices for chronic care item numbers.
The third instance relates to a professional services review that took place in 2006-2007 (the early years of his sole practice), giving rise to a determination that he be required to repay approximately $150,000. He did so on 24 June 2011. The amount reimbursed points to a very high level of practice income.

Other Complaints

Two of them were of a relatively minor kind and we will disregard them. They are a complaint from Ms AW dated April 2011 (alleged inadequate storage practices within his consulting room of objects such as sharps especially in the presence of children) and a complaint from a Ms H dated 19 May 2014 (alleged rudeness).
The applicant contested the appropriateness of taking into account a third complaint. This complaint was made on 29 December 2010. It is alluded to in the report of the Council committee that made the suspension order in July 2011.
Ms Dwyer, for the applicant, submitted that the complaint in issue had not been the subject of any further action and, if it were to be seen by us or admitted, might unfairly prejudice the applicant's application. We reserved our consideration of the applicant's objection until the conclusion of the evidence.
At that point, we indicated that we thought it preferable for the material to be tendered, noting that s 163C(3) in its terms did not restrict itself to complaints that had been the subject of ultimate findings. We noted that the files in the other two matters (the AW complaint, 2011, and the Ms H complaint, 2014) had been similarly inconclusive, but had not been withheld from the view of the Tribunal. We indicated that the material would be received, mindful of the concerns Ms Dwyer had expressed. The objection was not pressed.
This complaint was made to the HCCC by a psychologist who said that a client of the practice who was also a patient of the applicant, a Mr P, had reported to a staff member that at a consultation on or about 14 December 2010, the applicant had sought to engage in oral sex with him. The applicant was informed of the complaint.
The applicant gave a detailed, written reply denying the allegation (letter dated 15 April 2011 from the applicant). It included a statement from the applicant's practice manager reporting her dealings with the patient before and after the consultation that day, and her observations of his demeanour. The applicant described a consultation in which he had treated the patient for pain in various parts of his body in a usual way. The pain emanated possibly from a wound in his right hand. The practice manager described her role in treating the wound. The applicant enclosed relevant medical records.
The file contains no further record as to any action taken in the matter, or closing the complaint.
We will give some limited weight to this complaint. It points to the possibility that the applicant may have sought sexual gratification from male patients on at least one occasion around the same time as the two complaints dealt with by the Tribunal in its 2014 decision.

Applicant's Evidence in Support of the Reinstatement Application

The applicant reports a long history of depression. In his written statements and oral evidence he links his proclivity to depression to the events of the Vietnam War and its aftermath for him (to which we have referred already).
As he had in reply to the inquiry undertaken by the RACP in 2002, in his appearances before review committees since, and in his consultations with psychiatrists, he spoke to us of the pressures he felt early in his career over marital differences relating to such matters as education and upbringing of their children, and the difficulties of being away from them in Geelong. He spoke of the language difficulties he had to overcome, not being a native English speaker. (We note that issues of effective communication were among the concerns expressed by Professor Black in his assessment of 2002.) He also gave an account of a life of dedicated, hard work firmly focussed on the practice of medicine. Our assessment is that for many years he had little involvement in the domestic life of his family and devoted all his energies to work. He had no other meaningful social life, that we can discern.
Since his deregistration in 2014, his evidence is that he has spent much of his time at home, and enjoyed very much his increased involvement with his children, teen-agers over this time. He referred in his evidence to the expectations and pressures that he felt under in the past to earn money and provide for the family. He referred often in his evidence to working a 7 day week in the years he ran his own practice. He spoke positively of the support, financially, that his wife had given to the household in recent years. They lived under the same roof but not as a married couple. In the period since his deregistration, he has undertaken an active role in management of the household and caring for the children (now 19, his daughter, and 17, his son). He said the children understood the situation. They were intending to divorce, and he acknowledged that there would be a financial settlement in due course.
He is, he considers, now fit to return to profession, and there is no likelihood of any recurrence of conduct of the kind that occurred between him and the two patients.
He attributes his assurance in this regard to a number of factors.
He now admits without reservation the charge laid against him in relation to his conduct towards Patient B. He recognises that he put Patient B to considerable pain and stress by denying in its entirety his allegations of improper conduct and by making a sustained attack on his credibility. He now accepts without reservation the findings of the Tribunal.
He has, he considers, been greatly assisted by the treatment he has received from Dr Mark Cross in coming to terms with his sexual identity and fully accepts it. Dr Cross has been his treating psychiatrist since 2015. Dr Cross specialises, among other matters, in issues relating to sexual identity.
He now feels emotionally at ease with his orientation unlike the situation at and prior to the Tribunal hearing of 2014 when he sought to deny it, and insist that his orientation was heterosexual. He described himself at hearing in the terms used in several of the psychiatric reports as 'bisexual or heterosexual'.
He has frankly disclosed his orientation to his wife and his eldest child (his daughter now 19, at university and studying medicine). He has told his elderly mother (who now lives in Australia) and other members of his family, as well as close friends. He has gained confidence from the support and understanding he has received.
He has begun to develop a social life outside of the home and work. Dr Cross's reports and the applicant's evidence at hearing referred to regular attendance at a gym, and regular attendance at professional education events in the region. Dr Cross referred positively to the fact that he was now developing appropriate relationships with men around his own age with a similar sexual orientation. The applicant confirmed this in evidence.

Psychiatric Evidence

Dr Wright's Reports 2011-2014: Dr Wright has had the longest involvement with the applicant's case. From the outset in his reports, he has highlighted his opinion that the applicant has an issue with confusion regarding his sexual orientation. In his first report, for the November 2011 review hearing, and dealing then only with the Patient A complaint, Dr Wright observed: The potential role of Dr Vo's sexual orientation or identity in relation to this matter remains unclear at this time, although there is an unacknowledged confusion regarding sexual orientation, the translation of such confusion into this inappropriate act was no doubt assisted by a depressed mood, financial and work stresses, and a perception that the marital relationship had broken down.
By the time of the Tribunal hearing in November 2014, Dr Wright had seen the applicant for assessment on a further seven occasions, in his capacity as the Council-appointed psychiatrist under the conditions imposed in November 2011.
Between 2011 and 2014 the applicant continued to deny in his sessions with Dr Wright that he may have an issue with his sexual orientation that had contributed to the conduct he engaged in with Patient A.
Dr Cross: Dr Cross replaced Dr Chee as the applicant's treating psychiatrist in 2015. In his written report for the hearing (30 January 2017) he explained that one of his areas of specialisation was sexuality and identity issues in mental health.
Dr Cross has seen the applicant regularly at 3 to 4 week intervals. In oral evidence at hearing, he explained his method of therapy is underpinned by a psychodynamic psychotherapy framework, and that he had been somewhat reluctant to involve himself in a hearing of the present kind, because of its possible adverse implications for the future conduct of therapy. He traced the steady progress that the applicant made in therapy over 2015 in exploring the issues of his sexuality and in beginning actively to identify himself as bisexual. He said that he had come to terms over this period with the deep sense of shame he showed in the early sessions, and he had begun to understand the need to communicate openly in relation to his sexuality with those closest to him, especially his wife. As we understand Dr Cross and the applicant's evidence, he had done this by the end of 2015.
Dr Cross saw the risk of repetition of misconduct as low, because the applicant had engaged very well in therapy and has moved on. Further, he considered that the applicant knew very well that any further transgression would lead to the complete ending of his career. He saw the risk of him lapsing again into any serious depression as quite low, partly due to his addressing of his sexuality. He spoke positively of the steps the applicant had taken to develop a wider social life, interests outside work and alter his previously very poor work/life balance.
Ms Bennett for the respondent questioned him on the other instances of misconduct in the applicant's background, most importantly the falsification of his supervisor's report in 2002. Dr Cross said that while that had not been a focus of his therapy, he was aware of it, and he noted that the applicant had attributed the behaviour to depression.
We add that the applicant in his evidence at hearing and in the written statements he prepared before the hearing referred to his time at Geelong hospital in some detail. He spoke of being depressed by reason principally of two factors - his separation from his wife and then very young children, and the difficulty he had in developing an effective working relationship with his supervisor. He often described his behaviour at that time as impulsive and affected by anger.
He did not refer in that material to any role played by issues relating to his sexuality. However Dr Cross noted that in therapy the applicant had acknowledged conflictual sexuality boundary issues from earlier stages of life, and considered that he had always had difficulty confronting sexuality issues.
In answer to questions from the Tribunal, he stated that he thought he was now much better able to handle anger, and that was assisted greatly by his ability to more open about his sexuality. Dr Cross considered that the applicant's proclivity to depression would be alleviated significantly by the steps that he had now taken to acknowledge his sexuality. To the extent that he remained at risk of causing harm to patients, that risk could be adequately managed by regular therapy and appropriate medications.
The consultant psychiatrists, Dr Phillips (who saw the applicant at the request of the applicant's solicitor) and Dr Wright (in his continuing capacity as the Council appointed psychiatrist) gave evidence in joint session.
Dr Phillips: Dr Phillips' report (21 August 2017) is extensive and detailed. He gave a comprehensive account of the applicant's interview. At [68] he said: Despite two consultations with the applicant, I am left with a feeling that there is considerable information that he should have made available to me. Whilst I cannot prove the point, I am concerned that the applicant's history may have been skewed in a self-serving manner at times.
At the end of his report, paras [85]-[93], Dr Phillips gave positive conclusions in relation to each of the factors he considered relevant to the question of whether the applicant could be rehabilitated successfully back to medical practice.
He was guarded in his written report in committing to the view that he was fit to return to practice subject to conditions. But at hearing he was less qualified in his response.
In his report he replied as follows to the question asked by the applicant's solicitor as to whether there were any circumstances in play at the time of the misconduct with which the 2014 decision dealt that might explain the applicant's misconduct. As stated, I am not particularly interested in the matter of mitigation, given the seriousness of the breaches perpetrated by Mr Vo. I accept, however, that the applicant's various stressors during his formative years, and later, caused him to become unusual [sic] stoic in disposition and to shut down emotionally, particularly with respect to his sexuality. The system could not be sustained in the long term, and the applicant began to decompensate psychologically in the earlier years of his medical training and career. Hitherto homosexual drives ultimately broke through, with the applicant losing control of his sexual urges in opportunistic situations within his professional life.
Dr Wright's Report 2017: Dr Wright saw the applicant again in 2017, at the request of the Council in preparation for this hearing.
In his evidence to the 2014 hearing, he had said that in his professional judgement the complaints made against the applicant and the nature of the conduct in which the applicant had engaged with Patients A and B suggested that he had a homosexual orientation. The Tribunal endorsed that view, and, as previously noted, saw it as one of the issues that the applicant needed to address.
In his report (dated 5 September 2017), Dr Wright said (and confirmed in evidence): Opinion In my opinion, Dr Vo is a man who has only relatively recently, in the context of psychotherapy, resolved the issue of his sexual identity, and his previously unresolved and unacknowledged conflicts regarding sexuality contributed to gross boundary violations of a sexual nature whilst working as a GP. The factors contributing to Dr Vo's difficulties resolving his sexual identity and orientation included a sense of shame arising from cultural sanctions, and habitual suppression of strong emotion (including anger and sexual urges), interspersed with impulsive and damaging acts (dishonesty and sexual misconduct), isolation arising from overwork and a temperamental predisposition to isolation within the family, financial and relationship stresses and a grossly disrupted early development resulting from a childhood in a war torn country, the break up and dispossession of his family, and a very traumatic escape from Vietnam to Thailand. ... In my opinion Dr Vo was remorseful, shamed and contrite in relation to his offences when I saw him until October 2014, but struggled to acknowledge a significant root cause was his bisexuality. In my option the change in his levels of insight and the subsequent change to his lifestyle, living arrangements and life goals leads me to the view that, if Do Vo were to return to clinical practice, the likelihood of him reoffending is very low. I also believe that a continuing engagement in psychotherapy is a necessary part of monitoring his progress.
Dr Wright addressed, as he had been requested by the Council to do, the specific question of whether the applicant had an impairment within the meaning of the National Law. 'Impairment' is defined, relevantly, as (s 5): impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; …
He answered as follows: In my opinion Dr Vo does meet the definition of impairment in that he had a clear past history of major depression which responded to treatment with Lexapro, and that in the course of past episodes of depression has at times engaged in conduct (impulsive and reckless) which has impacted on his clinical practice and reputation. His past struggles with his sexuality also clearly impacted on his clinical performance and sexual boundary transgressions, but these struggles have been largely resolved through psychotherapy and I think it unlikely that Dr Vo's sexuality and his past struggles will impact significantly on his ability to practise medicine in the future.
In an addendum to this response (email 29 September 2017), Dr Wright said that he had formed the view that Dr Vo's misconduct (i.e., the matters before the 2014 Tribunal) occurred at a time when he was depressed and was also struggling with his sexuality.
He continued: This contributed to reckless behaviour and very poor judgement which was a significant departure from appropriate clinical care.
He was satisfied that: [H]e was affected by a mental health condition at the time of the misconduct, that the mental health condition requires ongoing treatment and monitoring, that the condition could possibly recur, and any such recurrence would impact adversely on patient care.
All of the psychiatrists agreed that the applicant had an underlying condition of trauma in the nature of post-traumatic stress linked to his experiences as a child and young man, and that the episodes of acute depression that had sometimes occurred during his career were connected to that trauma.

Applicant's Submissions

Ms Dwyer for the applicant highlighted the following significant changes in the applicant's level of recognition and insight into his past misconduct, and the steps he has taken to rehabilitate himself. She said that the came to the Tribunal with a deep insight about his past misconduct and his need for ongoing treatment. She submitted that this change is reflected in: 1. His change of treating psychiatrist to Dr Mark Cross, to whom the applicant has admitted his past conduct and demonstrated significant insight 2. An acceptance of his bisexuality and therapy focused on that issue 3. A separation from his wife and honesty with his family about his sexuality 4. Recognition of the need for long term, intensive therapy 5. Plans for the future to practise in a group practice with supervision and support 6. Work life balance 7. Frank disclosure and insight represented by his dealings with Dr Wright.
She referred later in her submissions to the following matters: 1. his openness with family and friends 2. his understanding of the depressive condition now in remission 3. his genuine remorse 4. his strong desire to practise medicine, to help patients, rather than any financial motivation 5. his thoughtfulness about maintaining a work life balance.
She also drew on the positive testimonials he had received from his health practitioner friends and colleagues, Dr Nguyen, Dr Van Mai and Dr Guirguis.
She highlighted passages from each of the psychiatrists' reports in relation to his level of insight into his sexuality, the difficulties that clouded his approach to the disciplinary charges he faced in 2014 connected with his failure to reveal to his family the circumstances that had given rise to his original suspension from practice, his earlier reluctance to review conscientiously earlier reports from Dr Wright and Mr Judge where his possible sexual orientation was raised as a contributing factor, and the acknowledgement he is now giving to improving his work/life balance.

Council's submissions

As previously noted, Ms Bennett for the Council indicated that the Council did not dispute the progress that the applicant has made in addressing the issue of his sexual orientation, and in acknowledging the wrong he did to Patient A and Patient B, especially the trauma to which he exposed Patient B in challenging his testimony.
However it submitted that the Tribunal did not have clear proof and solid and substantial grounds on which to be satisfied that the basis of the decision to deregister has been removed. The Council referred to the following considerations: 1. the totality of the inappropriate conduct, referring in that regard to the earlier events in his history (shoplifting, falsification, Medicare) , and his failure to give a cogent account of why those events occurred; 2. the inappropriateness of the sexual misconduct itself, submitting that while he now showed some insight he still not fully acknowledge or appreciate the extent or gravity of the conduct; 3. the finding that the applicant was untruthful, made by the Tribunal in the 2014 decision, submitting that, though there is evidence that is coming to terms with his sexuality, there is an absence of clear proof that the circumstances leading to the applicant's longstanding dishonesty and misconduct have been ameliorated by, what was described by the Council as 'the narrowly focussed therapy' he has undertaken to date; 4. the applicant had denied the majority of the Patient B complaint, referring to what the Council saw as the applicant's depiction in the Council's view had in his evidence in these proceedings continued to minimise the power imbalance that existed between him and Patient B and had - continuing difficulty in acknowledging unreservedly and sincerely the wrongness of positively accusing Patient B of giving false evidence to the Tribunal, and cross-examining Patient B over two days until he was visibly distressed. 5. the lack of full disclosure by the applicant to Dr Cross of deeper issues that may underlying his behaviour, submitting in essence that the focus in recent times on the issue of sexual identity had meant that treating professionals had not been introduced openly and frankly to underlying emotional stresses and deep-seated concerns (the traumas previously mentioned in these reasons, for example, the history of depression) 6. the need for treatment that goes well beyond treatment for sexual identity issues, as recognised in the s 150 report of 25 July 2011, and in Dr Wright's most recent assessment.
The Council submitted that the evidence currently before the Tribunal discloses that full acknowledgement of these circumstances has not been achieved, and, in this, the Tribunal can infer that insight and remorse remains limited, perhaps to the issue of his sexuality.

Applicant's Submissions in Reply

The applicant accepted that there were wider issues than sexual identity that he needed to address. Ms Dwyer pointed to the following matters, referring to relevant passages in the various professional reports: Dr Cross considered that there was no evidence of acute mental illness, he was now living an open and honest personal life; Dr Phillips found no psychiatric disorder; Dr Wright considered that he had an impairment within the meaning of the National Law, but it was one that could be managed satisfactorily within the framework of conditional registration.

Assessment

We agree with the professional assessments that the applicant has an underlying condition of trauma in the nature of post-traumatic stress disorder. In our view, that should be the primary focus of ongoing therapy.
As to the type of conduct the subject of the disciplinary charges dealt with in 2014, we think it is extremely unlikely that he will reoffend by abusing his authority as a doctor to seek to engage in homosexual activity with male patients.
We are reasonably satisfied from the professional evidence that the applicant has resolved significantly the issues of sexual identity that have affected him over many years. He would appear to have come to an understanding with his wider family that has left him more confident in himself, and at ease with those closest to him.
We accept that the applicant felt the burden of the great expectations that had been placed in him by his family when he agreed to make the perilous journey to Australia at the age of 19. He clearly worked and studied hard after he arrived in Australia. To graduate in medicine only a few years after arriving in Australia is a testament to the effort he put in. He told us that he worked to earn income in his free time at university, and had little by way of any wider social life. This pattern continued into his married life after graduation.
He has, we feel, lived in a relatively narrow orbit, dominated by long hours of work, driven by the needs of his family and his children. As from 2005 when he took up solo practice, it appears that he worked every day of the week. He attracted attention for over servicing. We had no material before us as to the exact basis of the Medicare interventions.
In the period 2011-2014 his work circumstances altered, consequent on the conditional registration he worked under. He moved to a group practice. There is no evidence of any breaches of practice conditions or the private health conditions.
He has only now begun to develop a wider social circle or wider interests. He spoke positively at hearing of the personal benefits he had experienced over the three years that have passed since cancellation of his registration in November 2014. He referred to his enjoyment of such things as being an at-home father, having more involvement in the lives of his teenage children, and being active away from home in fitness clubs and meeting and getting to know men with the same sexual orientation. We had, however, no real corroboration of any of this.
The evidence relating to his conduct in training at the Geelong hospital in the period 1999-2002 concerned us. It pointed to an individual who had weak mechanisms for addressing frustrations and difficulties in his immediate relationships. He spoke at hearing of not being able to get on well with his then supervisor, and his anger subsequently, when as he had by then anticipated, he received a disfavourable report from the supervisor. Through all this time he was living away most of the time from his young family, who remained in Sydney. His daughter was two, and a new son had just been born. He responded to the disfavourable report by not submitting it to the governing council and instead putting in a falsified report expressed favourably.
On its face this was a grave act of dishonesty. In his evidence at that time to the RACP, and again at our hearing, he denied that the conduct was attributable to a dishonest intent on his part, but was the consequence of a poorly managed mental health condition. He said he was deeply distressed. He missed his children and wife, and he could only fly home to see them intermittently. He said he was angry, and acted impulsively and dishonestly.
He said that after he returned to Sydney he did see a psychiatrist, Dr Haig, of Campbelltown. He said he saw him for 6 months and took anti-depressants.
His conduct in the 2009-11 period giving rise to the offences that led to his cancellation have, we think, a similar context. As we see it, they were not only attributable to a struggle with his sexual identity, but also derived from a troubling failure to address his proclivity to depression.
His need to address issues such as depression and trauma had been identified at an early stage in his interactions with disciplinary processes. It is recognised in the report of the RACP disciplinary committee in April 2002 and in the Medical Board of Victoria report later that year. While he did see Dr Haig for a period, that treatment appears not to have continued. He returned to a world of intense work.
He showed a great lack of insight into his personal attributes that might lead him to repeat the kind of conduct that first came to notice in the falsification case. He failed to act in a mature way to seek to develop methods to address inner torments. He continued to repress his feeling.
In our view, a strong focus of future therapy should be anger management. We agree with the emphasis that Ms Bennett for the Medical Council put on this matter in her questioning of the applicant, and in her closing submissions.
He is plainly affected by a traumatic background. While he does not have a diagnosable personality disorder, he does have a disorder that might best be described as a trauma related disorder. He is prone to depressive illness, and there is a recognised association between anger and depression ('anger turned back on self', a saying attributed to Freud quoted by Dr Phillips).
We are satisfied that the applicant is now genuinely remorseful and contrite for the conduct he engaged in towards Patient A and Patient B. We are satisfied that he had engaged in a considerable therapy program in a positive way. Critically he has secured support for a return to the profession from not only his treating psychiatrists but the two eminent consulting psychiatrists who have assessed him for the purposes of these proceedings.
We must be confident that that the applicant is now a fit and proper person to re-join profession. We must be confident that it he will behave in future in accordance with the highest standards and responsibilities of the profession.
While it is plain that the applicant has an ongoing need for treatment, and is impaired within the meaning of the National Law in the way described by Dr Wright, we are confident that he is now a fit and proper person to re-join the profession. We are satisfied that he is likely to behave in future in an ethical and responsible way.
We accept the force of many of the submissions made by the Council. The applicant did abuse the power that a doctor possesses over patients in the way he dealt with Patient A and Patient B. His conduct towards Patient B was of a very serious kind. On its face, he engaged in a calculated strategy starting with questioning that over time become increasingly inappropriate and intrusive (see items 2 and 3 of the charge) before proceeding to his acts of sexual gratification. He was fortunate to escape prosecution.
These events occurred around 2010. He practised (albeit under restrictions) without any significant complaint in the period 2011-2014. In the last three years, he has made great progress in addressing the factor that has been accepted as lying at the heart of the offences he committed against Patient A and Patient B - his repressed sexuality. He is dealing with it in a mature and insightful way. He is receiving support from those around him. He is frankly, and we think sincerely, acknowledging the need to lead a more balanced life, He is finding appropriate friendships outside the home. He is, we think, genuinely committed to pursuing a continuing program of appropriate professional assistance.
We are satisfied that he is fit to resume practice under strict conditions. He has, we consider, responded well to the concerns expressed by the Tribunal at paras [164] and [165] of its reasons, set out above. He is fully accepting of the misconduct he engaged in, and its wrongness, and the harm it did. His insight is good, though, we acknowledge, his therapy needs to continue to explore with him issues relating to impulsiveness and responses to anger, and the wrongness of exploiting for personal ends the inherently dependent relationship of patients to doctors. We reiterate in this respect agree with the submissions put by Ms Bennett for the Council, that his future psychiatric treatment should address more closely the issue of post traumatic stress disorder and anger management and the contribution of those factors to the misconduct that the applicant has engaged in when placed under stress in the past. We do not see the resolution of his sexual identity and sexual repression issues as providing a complete answer.
The paramount consideration in this jurisdiction is the protection of the health and safety of the public. We are satisfied that continuation of the order of cancellation is no longer required, and that its lifting will not present any appreciable risk to the protection and safety of the public. We are satisfied that the applicant can now be permitted to return to practice under strict conditions. In our view, he needs to be closely supervised in the early period at least, must work in an approved group practice, and his contact hours must be strictly regulated.

Proposed Conditions

The parties presented us with a series of proposed conditions divided as follows: Practice Conditions; Health Conditions.
The parties agreed that the applicant only being allowed to work in a group practice approved by the Medical Council of NSW.
There was a minor difference between the parties as to number of hours to be worked and number of patients. The applicant proposed maximums set at 35 hours a week/35 patients in one day. The Council proposed 32 hours a week/32 patients in one day. We are at ease with the applicant's option. The main point, as we see it, is to have a weekly maximum that can be left to be managed in a way that enables the applicant to take significant breaks from week to week. We would be concerned if he spread the contact hours out in a way that meant he was at work more than five days a week.
The parties were agreed that he should be required to practise under Category B supervision. A supervisor will be appointed, with obligations as outlined in the Council draft as to the nature of those meetings and their frequency. Supervision should include supervision of clinical knowledge currency and clinical proficiency. We expect that the supervision sessions would also cover professionalism, boundaries, ethics and so on. The applicant's commitment would work out at one hour a week on an ongoing basis.
The Council draft went on to address the need for the applicant to undertake observation sessions in the early period of his return practice. We agree with the need for a relatively intensive observation program. The Council proposal is for 20 sessions of at least four hours, made up of 10 in which the applicant observes the supervisor, and 10 where the supervisor observes the applicant. We support the Council's proposal.
In our view, the applicant has manifested throughout his career a difficulty with the breadth of the demands and responsibilities with which a doctor must deal, especially a doctor in private practice. He has immersed himself in practice, perhaps as a way of dealing with the traumas he has experienced. HIs level of work activity led three times in a period of a few years in the 2000s to over servicing investigations that were only resolved by his making of substantial reimbursements to Medicare. In the past he has, we think, allowed himself to be driven by narrow personal goals. He lost sight of the value for him as an individual and for those with whom he is called on to deal of an enriching and balanced personal life, and to that end the avoidance of long hours of work. Had he had a more fulfilling wider life, he might have avoided the distortions of thinking that led to many of the errors of judgment he has made in his career, culminating in the very grave misconduct that led to his cancellation.
The Council draft included a mentor condition of a usual kind. It was accepted by the applicant. We have reservations about the need for a mentor condition in a case of the present kind.
The applicant will be working in a group practice environment surrounded by professional colleagues. He will also be continuing with therapy under the private health conditions and interacting regularly with his supervisor, his GP, his treating psychiatrist and the Council-appointed psychiatrist. We tend to the view that the inclusion of a mentor in the scheme of oversight in circumstances such as these is unnecessary.
There was no disagreement between the parties in relation to the private health conditions. They require regular attendance on a treating psychiatrist and treating GP of choice, requirements to report regularly to the Medical Council, continuation of taking of any prescribed medications, attendance for review by the Council-appointed psychiatrist on a regular basis, and attendance for Council review interviews on a regular basis.
The conditions also included the usual pro forma orders in conditions of this type. In that regard, the conditions should provide for Council Review Interview reports to be distributed to his treating practitioners. This will ensure that those who treat him are aware of progress and/or concerns that arise from the review process.
We will invite the parties to table a final set of conditions for approval by the Tribunal, and transmission to the relevant bodies. We have in mind that the final conditions will be determined on the papers as allowed by s 50(2) of the Civil and Administrative Tribunal Act 2013 subject to consideration of any submissions in that regard from the parties made under s 50(3).

Costs

The Council applied for an order for costs to be made, as provided by cl 13 of Sch 5D of the National Law. The applicant's submissions were silent in relation to the matter.
The Council properly appeared as respondent to the application. Its appearance came as a consequence of the disciplinary offences of the applicant that led to his deregistration, and the need for him to demonstrate persuasively that he should now be reinstated. It is plainly in the public interest that there be a participant in the proceedings of the kind that the Council is, a peak regulatory body who can bring a detached, knowledgeable perspective to an application of this kind.
While the power to order costs is discretionary, there is nothing about this case that might suggest that the Council should not receive an order for its costs of responding to the application.
We will not repeat the statements of principle to the above effect made in a number of recent cases. The Council's submissions highlighted the observations of the Tribunal in Fryar v HCCC [2015] NSWCATOD 177 at [103]-[106], Ameisen at [90]-[92] and Ristevski v Medical Council of NSW [2016] NSWCATOD 18 at [67]-[89].

Order 1. Application for a reinstatement order is granted, subject to conditions to be determined by the Tribunal. Parties to file, not later than 28 February 2018, a set of revised conditions that take account of the Tribunal's comments in these reasons on the draft conditions presented at hearing. 2. The applicant is to pay the respondent's costs of these proceedings. 3. Further to Order 1 of the Tribunal's decision published 16 February 2018 the Tribunal approves the Agreed Conditions submitted by the parties on 27 February 2018 and imposes those conditions on the applicant's registration, pursuant to s163B(4)[NSW] of the National Law.

    Practice Conditions and Health Conditions
    Practice Conditions
    1. To practise only in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the subject practitioner):
            a. Where the patients and patient records are shared between the medical practitioners,
            b. Where there is always one other registered medical practitioner on site.
    2. To practise no more than 35 hours a week and on no more than 5 days per week.
    3. To treat no more than 35 patients in any one day.
    4. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy- Supervision (as varied from time to time) and as subsequently determined by the appropriate review body:
            a. The terms of the Council's Compliance Policy - Supervision are varied so that the frequency of the practitioner's review meetings with his supervisor is to be weekly for a minimum period of one hour.
            b. At each supervision meeting the supervisor is to:
                i. review and discuss his practice with the supervisor with a particular focus on: professionalism and professional ethics including the maintaining of appropriate professional boundaries with patients; recent developments in clinical practice, workload management; clinical performance; medical records reviews; and clinical outcomes
                ii. randomly select and review a minimum of 5 patient records from the practitioner's patient list for the preceding week. When discussing these cases, the supervisor is to consider such matters as: history taking, diagnosis, clinical management including prescribing, medical records; and recent developments in clinical practice.
            c. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of any relevant Tribunal or Council decision or report.
            d. Not to practise until a supervisor has been approved by the Medical Council of NSW.
    5. Within 6 months of being approved by the Medical Council of NSW to commence employment, the practitioner is to spend a total of 20 observation sessions with his approved supervisor. A session is a period of at least 4 hours.
            a. Initially, the practitioner is to spend a total of 10 sessions directly observing the supervisor conduct consultations with his/her patients. When observing these consultations, the practitioner is to consider such matters as: maintaining appropriate professional boundaries with patients, recent developments in clinical practice, workload management, clinical performance; medical record reviews and clinical outcomes.
            b. The supervisor is then to spend a total of 10 sessions directly observing the practitioner conduct consultations with his patients. When observing these consultations, the supervisor is to consider such matters as: maintaining appropriate professional boundaries with patients, recent developments in clinical practice, workload management, clinical performance; medical record reviews and clinical outcomes.
            c. Within 4 weeks of the completion of the observation sessions the practitioner is to provide a report to the Medical Council of NSW detailing the dates of attendance, what he learnt and how this will impact on his practice. In the report he should make reference to, but not restrict himself to the issues in the Decision which led to the imposition of this condition.
            d. Once the practitioner's report is written and before it is returned to the Medical Council of NSW he is to ensure that the supervisor reviews the practitioner's report and that the supervisor provides his or her own report to the Medical Council in which he or she comments on the content and authenticity of the practitioner's report, confirming the dates of attendance and setting out any concerns or other observations. The supervisor's report is to be provided to the Medical Council of NSW within 4 weeks of the completion of the observation period.
            e. The practitioner is responsible for any costs incurred in relation to the period of observation and any subsequent reports.
    6. To forward a signed copy of the public conditions on his registration to the Medical Council of NSW within seven days of recommencing practice. The conditions must be signed by each of the following: the Principal of the practice and the practitioner's supervisor.
    7. To forward a signed copy of the public conditions on his registration to the Medical Council of NSW within seven days of a change in the nature or place of his practice. The conditions must be signed by each of the following: the Principal of the practice and the practitioner's supervisor.
    8. 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.
    9. To authorise and consent to any exchange of information between the Medical Council of NSW and future relevant persons or organisations at locations where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions.
    Health Conditions
    10. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner:
            a. Is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:
                i. Failure to attend for treatment
                ii. Termination of treatment; or
                iii. A significant change in health status (including a significant temporary change).
            b. Must provide the Council with the professional details of the treating practitioner.
    11. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner:
            a. Is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:
                i. Failure to attend for treatment
                ii. Termination of treatment; or
                iii. A significant change in health status (including a significant temporary change).
            b. Must provide the Council with the professional details of the treating practitioner.
    12. To continue taking any medication prescribed by his treating practitioners.
    13. That the extent of his professional medical duties is to be guided by his health status and the advice of his treating & Council-appointed practitioners.
    14. To attend for review by a Council-appointed psychiatrist, on a three (3) monthly basis, or as otherwise directed by the Medical Council of NSW.
    15. To attend a Medical Council Review Interview, on a three (3) monthly basis, or as otherwise directed by the Medical Council of NSW.
    16. To authorise the Medical Council of NSW to forward copies of the Tribunal Decision and any subsequent Council Review Interview or other reports and any other information relevant to his health and treatment, to the Council-appointed practitioner and his treating practitioners.
    Additional Orders
    1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).
    2. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board Australia.

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

Amendments 20 March 2018 - - Paragraph 104 - typographical error corrected

Order 3 and Annexure Titled Practice conditions added. 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: 20 March 2018

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Cases Cited (5)

Cited By (9)