Weinzettel v Health Care Complaints Commission

Solicitors: Agostino & Co (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2023/00118752 Publication restriction: None

reasons for decision

1. By application dated 13 April 2023, Andrew Weinzettel ("the Applicant") applied to the Tribunal pursuant to s 163A of the Health Practitioner Regulation National Law (NSW) ("the National Law") for a review of the orders of the Tribunal on 8 September 2021 cancelling his registration as a physiotherapist and ordering pursuant to s 149C(7) of the National Law that he may not apply for review of the cancellation order for a period of 12 months.
2. The Applicant seeks a reinstatement order pursuant to s 163B(1) of the National Law to allow him to apply to be reinstated as a physiotherapist.
3. The grounds upon which the Applicant relies are as follows: 1. The Applicant is suitably trained and qualified to practise in a competent and ethical manner. 2. The Applicant poses no risk to the protection of the health and safety of the public. 3. The Applicant can be trusted to practise in a way that conforms to professional standards expected of a health practitioner.
4. The Commission opposes the reinstatement application. Should the Tribunal grant the application, the Commission seeks that the Tribunal permit such re-registration subject to conditions.

Applicant's History

1. The Applicant is a physiotherapist formerly registered under the National Law.
2. Proceedings were taken against the Applicant by the Health Care Complaints Commission ("the Commission") in the Tribunal following his conviction of various offences in the Local Court of New South Wales in October 2019.
3. Those proceedings against the Applicant were conducted in two stages. In its decision of 27 January 2021 in the first stage the Tribunal found the Applicant guilty of unsatisfactory professional conduct (see: Health Care Complaints Commission v Weinzettel [2021] NSWCATOD 10).
4. The complaint against the Applicant in the first stage proceedings consisted of four individual complaints, namely: 1. Complaint 1 - that after entering a guilty plea in the Local Court, the Applicant was convicted of seven counts of the offence of filming a person's private parts without consent for the purpose of sexual arousal or sexual gratification under s 91L(1) of the Crimes Act 1900 (NSW). 2. Complaint 2 - that the Applicant installed a covert camera in one of the bathrooms of the Clinic where he practised at the relevant time, in circumstances where he: 1. did not advise any partners of the Clinic; 2. did not obtain the consent of other partners of the Clinic; 3. had knowledge that clients undress and/or shower inside the bathroom; 4. was motivated by sexual arousal or sexual gratification. 1. Complaint 3 - that the Applicant engaged in unsatisfactory professional conduct by failing to notify the Physiotherapy Board of Australia within seven days of being charged with, and later convicted of, the offence the subject of Complaint 1. 2. Complaint 4 - that the Respondent was guilty of professional misconduct under s 139E of the National Law.
5. The Applicant in those proceedings admitted Complaints 1 and 3 but denied Complaints 2 and 4.
6. In respect of Complaint 2, the Applicant admitted all sub-particulars except subparagraph (d).
7. The Tribunal found that in installing a covert camera in the bathroom on or around 12 November 2018, the Applicant was "motivated by sexual arousal or sexual gratification" and Complaint 2 was proven.
8. The Tribunal in making that finding, found that the Applicant had not been truthful about the purposes for which he had installed the camera in the bathroom.
9. The Tribunal found the Applicant guilty of professional misconduct on the basis that installing a covert camera for the purpose of filming patients, without their consent, in circumstances where the practitioner is motivated by sexual arousal or sexual gratification, was conduct of a serious nature. The conduct particularised in Complaint 2 was of a sufficiently serious nature to justify suspension or cancellation of the Applicant's registration.
10. The conduct particularised in Complaint 3 was not sufficiently serious to justify suspension or cancellation of the Applicant's registration.
11. The second stage of those proceedings before the Tribunal heard in June 2021 resulted in the Applicant's registration being cancelled with a non-review period of 12 months (Health Care Complaints Commission v Weinzettel (No 2) [2021] NSWCATOD 140 (the "Second Decision")).
12. The Tribunal noted that prior to these complaints the Applicant had worked as a physiotherapist, apparently without incident, for about 15 years.
13. It was accepted by the Tribunal that the Applicant was keen to return to work as a physiotherapist.
14. In the Second Decision (at [12] - [15]) the Tribunal noted that in the Local Court proceedings, forensic psychologist Laura O'Neill provided an opinion about the risk of the Applicant's re-offending. Ms O'Neill's opinion was based on a "file review". She did not meet with the Applicant. The Applicant's risk she had said fell in the "average" range. In her report, Ms O'Neill noted several factors, which in her opinion were protective against re-offending.
15. As to the relevant risk posed by the Applicant, the Tribunal noted: "39. We accept, as stated by Dr Pusic, Messrs Kilpatrick and Camacho, that Mr Weinzettel is genuinely remorseful. In addition, we accept that Mr Weinzettel is remorseful not only for the devastating effect that his conduct has had on his family and himself, but also on Person A. 40. In addition, we find that Mr Weinzettel has followed any treatment recommendations made by his treating practitioners, and since March 2019 has genuinely engaged in therapy sessions provided by Mr Camacho. 41. Further, we accept that the weight of medical evidence indicates that at the time of the offending conduct, Mr Weinzettel was probably suffering from depression and that condition is now well managed. 42. Finally, we note the character references provided by five former patients, each of whom are apparently people of good repute. Each hold Mr Weinzettel in high regard and attest to this proficiency and dedication as a physiotherapist. They each state that they are aware of his offending conduct but, nonetheless, believe Mr Weinzettel to be a person of good character and deserving of a second chance. 43. While favourable to Mr Weinzettel, these considerations do not fully address the question of risk. In Dr Pusic's opinion, Mr Weinzettel is not an untreatable sexual deviant. In Dr Pusic's opinion, his prognosis is positive, pointing to the absence of evidence that Mr Weinzettel suffers from any major psychiatric disorder or sexual paraphilia and that he has demonstrated insight, remorse, and commitment to ongoing treatment. However, Dr Pusic does not state that, currently, Mr Weinzettel does not pose a risk of reoffending. Nor does he state that if Mr Weinzettel were to undertake treatment of the type he recommends for a period of 12 months, at the end of that period, he is unlikely to pose a risk of reoffending. Rather, the effect of Dr Pusic's opinion is that Mr Weinzettel is a good candidate for rehabilitation, but more needs to be done. 44. In his report, Mr Camacho did not particularise the type of treatment he has been providing Mr Weinzettel. As best as can be made out, it appears designed to treat depression. Given that none of the experts who have assessed Mr Weinzettel, including Mr Camacho, stated that depression was a factor which contributed to Mr Weinzettel's sexual offending, the fact that he has undertaken 20 therapy sessions with Mr Camacho is largely irrelevant to the question of risk. 45. For reasons unclear, throughout the period he has been subject to an intensive correction order, Corrective Services NSW has not offered Mr Weinzettel the opportunity to engage in sex offender treatment of the type recommended by Ms O'Neill. This is unfortunate given Mr Weinzettel's apparent willingness to engage in any form of recommended treatment. 46. It is perplexing why Mr Weinzettel, a respected member of the community with no criminal history or history of sexual deviancy, who is apparently happily married, would in his mid-50's covertly record females in various states of undress for reasons of sexual gratification. It may be that the humiliating effect of the criminal proceedings and these disciplinary proceedings, together with the development of insight and remorse, will be sufficient to guard against a repeat of this type of behaviour. However, in our opinion unless and until Mr Weinzettel successfully completes treatment of the type recommended by Dr Pusic and Ms O'Neill, it could not be said that he does not pose a real and material risk of reoffending."
16. The Tribunal decided that it is appropriate that the Applicant be disqualified from seeking review of the cancellation order for a period of 12 months rather than the four years sought by the Commission. In so doing the Tribunal noted that this period was consistent with Dr Pusic's positive prognosis. Secondly, it took into account the Applicant's willingness to engage in treatment and the factors identified by Dr Pusic, Mr Kilpatrick and Mr Camacho considered as favourable to the Applicant's rehabilitation. Thirdly, it signalled to the profession the Tribunal's view about the seriousness of the offending conduct.
17. The Tribunal also decided to make a prohibition order pursuant to s 149C(5) of the National Law preventing the Applicant from directly or indirectly providing health services (as defined in the National Law) to women and girls and being engaged by a provider of health services which directly or indirectly provides health services to women and girls unless and until his registration as a physiotherapist is reinstated (see [2021] NSWCATOD 10 at [56]).

Relevant Principles

1. These proceedings are not a re-hearing of the previous decisions of the Tribunal concerning the cancellation of the Applicant's registration. The task of the Tribunal is to determine the appropriateness, at the time of this review, of the order concerned: s 163C(1) of the National Law.
2. The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms: "12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, 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": Amieson at [24]. (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]."
3. In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated: "30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: "[A]n applicant for reinstatement … is in a more disadvantageous position that an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness." 31. In that case, the Medical Tribunal also stated at [42]: "[T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession.""
4. Accordingly, the Applicant bears the onus of now proving to the Tribunal that he is a person of good character, and is presently qualified to be a registered physiotherapist who will act in accordance with the high standards and responsibilities of the profession.
5. The position of an applicant for reinstatement is disadvantaged by reason that presumption of fitness, which might otherwise arise from an absence of contrary suggestion, does not operate for the benefit of an applicant who has been registered on the basis of unfitness (Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [18] per Brereton JA (Bell P and Emmett AJA agreeing)).
6. The critical issue is the Applicant's worthiness and reliability for the future (Zaidi v Health Care Complaints Commission [1998] NSWSC 335; [1998] 44 NSWLR 82 at [99] per Mason P, Priestly and Powell JJA agreeing).
7. In performing its task the Tribunal must have regard to the objective and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public (see Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [17]).

Steps Taken by the Applicant Post Deregistration

1. The Applicant argues that he has discharged the burden upon him of demonstrating against the backdrop of his previous misconduct that he can now be trusted to maintain the standards required to return to practise, and pointed, in particular, to the following matters: 1. Since 8 September 2021 the Applicant has completed several Continuing Professional Development courses including Therapeutics Relationships and Professional Boundaries; Universal Care Training Therapeutic Relations and Professional Boundaries and C Q University Professional Boundaries - a Health Professional Guide. 2. The Applicant has continued to come under the care and treatment of Mr Carlos Camacho (Consultant Psychologist). 3. The Applicant has come under the care and treatment of Mr Shekar Muniswummy - MA (Social Work). 4. The Applicant has continued to regularly consult Dr Augustus E. Pusic. 5. The Applicant continues to apologise to the victims of his past crimes and thought often about these matters and the pain he may have caused them. 6. The Applicant has fully acknowledged his wrongdoing and sought to rehabilitate himself. 7. The Applicant is fully committed to becoming a professional, the father he once was, and to redeem himself. 8. The Applicant is fully committed to and passionate about working as a physiotherapist. 9. Mr Camacho believes the Applicant's risk of recidivism is low and supports his application to be reinstated with a period of supervision. 10. Mr Muniswummy is supportive of the Applicant's reinstatement and recommends further treatment for the Applicant. 11. Dr Pusic agrees with Mr Muniswummy's report and recommendations and that the Applicant's treatment plan has been successful. 12. Dr Pusic believes that if the Applicant follows Mr Muniswummy's plan the Applicant does not pose a real material risk of reoffending.

Commission's Position

1. The role of the Commission in proceedings of this kind is to act as contradictor to test the evidence, bring evidence itself where appropriate, and to assist the Tribunal with its submissions (see: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 at [56]).
2. The Commission argues that there are a number of factors that weigh against the reinstatement of the Applicant's registration, namely: 1. the gravity of the offences committed by the Applicant, of which he was convicted, and highlighted by his sentence of 30 months imprisonment to be served by way of an intensive correction order; 2. there is a transcendence between the conduct occurring in his home and in his professional place of practice; 3. given the gravity of the offences and the stated impact on the Applicant it would be appropriate for the Tribunal to think that if the Applicant was seriously committed to the reinstatement application "he would have completed the treatment highlighted by the Tribunal in its Stage 2 decision"; 4. while the Commission accepts that the evidence indicates that the Applicant is remorseful for his actions, it is argued there is no evidence that the Applicant has explored the nature of his offending and in his psychological treatment; 5. this, it is said, combined with the failure to complete the recommended sex offender treatment, demonstrates a lack of insight and bears significant weight in the circumstances.
3. Those submissions were made prior to the Applicant giving oral evidence and further details being provided of the treatment that the Applicant has obtained following his de-registration, namely, those outlined in the Applicant's submissions which we refer to above.

Applicant's Proposed Strategies

1. A written statement dated 6 April 2023 signed by the Applicant was admitted into evidence without objection.
2. The Applicant also gave oral evidence and was cross examined at the hearing.
3. In his written statement the Applicant stated that he had considered why he had acted in the way in which he had and which led to his conviction and his registration as a physiotherapist being cancelled. He stated that he now had in place strategies that would prevent this occurring and then set out six such strategies, namely: 1. not working in hydrotherapy so as to avoid being in contact with changerooms; 2. a refusal to treat any female patients under the age of 18 years, unless the patient is presenting themselves for gait analysis and is accompanied by an adult; 3. a refusal to treat any female patients with groin injuries or deep hamstring tissue disorders; 4. ensuring that he had an assistant present to treat female lumbar spine disorders; 5. further, and in the alternative to (4) above, where possible, treating female patients in open areas;
4. Further, the Applicant stated that as a result of self-analysis and medical support gained of a better understanding as to why he conducted himself in the manner that led to the cancellation of his registration he had confidence that he would not repeat the conduct again.
5. The Applicant was cross examined in relation to each of the matters set out in paragraph [34] and [35] above. In respect of the first issue, he testified that he would feel more comfortable not to work in that environment because he did not want to deal with that situation.
6. In respect of the second of the issues, he stated that most of the treatments that he engaged in, ankles and orthotics, concerned young adults playing sport. It was a question of feeling comfortable and knowing that there was no room for error and, therefore, he would exclude the treatment identified. The Applicant stated that he did not want to worry about being questioned as to why he was doing "this or that".
7. The Applicant said that this was a matter of choice so as to avoid a situation which is uncomfortable for him or the patient. He was sacrificing treating females in this situation without having to worry that someone can say something, or he could say something that they did not want to hear. He said he did not want any issue and would restrict parts of his practise to redeem himself and get back his licence to practise.
8. In respect of the third strategy, the Applicant said that type of treatment did not happen often but it may involve having to do palpitations of a female patient and he did not want to do it. He would try to avoid a situation and refer the female patient to a female physiotherapist.
9. The Applicant was also cross examined about the treatment he had received as a sex offender. He gave detailed evidence about the modules, time and sessions undertaken in that regard. At every one of the modules he and his treating practitioner spoke about what had led him to his offending conduct and how to address what he would do in the future. He also indicated that his therapist in this regard was recently deceased and he was getting advice from Dr Pusic as to who could continue with that treatment for him.
10. There was also tendered on behalf of the Applicant a number of medical reports. On 2 August 2023, some few days before the hearing, the Commission indicated to the representatives for the Applicant that the experts would be required for cross examination. It appears that because of the short notice that was not able to be arranged. We understood the position then to be that given that the experts could not be cross examined by the Commission their evidence would be the subject of submissions as to weight.

Character References

1. The Applicant also tendered three character references. The first, from a Mr Fernandes, spoke positively of the professional, knowledgeable and caring treatment given to him over a period of more than 10 years by the Applicant. He stated that the Applicant genuinely cares about what he does and that was "rare nowadays".
2. The second character reference was provided by a Ms Olivera who was also a patient of the Applicant together with her husband and sons. She stated that the Applicant had always treated all of them with respect and displayed great knowledge and professionalism. Ms Olivera stated that she became aware through television and other articles that the Applicant had been found guilty of unsatisfactory professional conduct. She said it was incomprehensible to her given that at all times that she saw the Applicant at his clinic she witnessed no disrespect or inappropriate behaviour towards her, her family or any other patient.
3. The third character reference was from a Mr Morizzi also speaks very positively about the Applicant's education and treatment over many years. He stated that he had always seen nothing but care given by the Applicant and he had always been an advocate for working hard to get the best results for his patients. Mr Morizzi said that he recommended family and friends to the Applicant because of the positive results that he had seen in his treatment.
4. Each of the three persons providing character references had indicated that they were aware that the Applicant had been found guilty of unsatisfactory professional conduct by the Tribunal but not all the details of his offending.
5. We are prepared to give some weight to this evidence although the Applicant's conduct leading to the cancellation of his registration detracts from its probative value.

Consideration

1. We are satisfied that the factors raised by the Commission which are said to weigh against the reinstatement of the Applicant's registration quoted at paragraph [31] above have been addressed. The first three matters were clearly considered by the Tribunal in its earlier determination of the conduct and conclusion that the Applicant's registration should be cancelled.
2. We are satisfied that the concern of the Tribunal, and that of the Commission, concerning the absence taking the recommended sex offender treatment has been addressed. The evidence satisfies us that such treatment has been undertaken in some detail and over a period of time and that the Applicant will continue to receive necessary counselling in that regard.
3. The strategies that the Applicant says he will now adopt, and which he appears to be prepared to have incorporated into conditions imposed on his registration by the Tribunal, have some troubling elements to them. As is apparent from the evidence we have outlined above, the Applicant indicated that he would be more comfortable with not being placed in the position of treating females or junior females for the particular treatments outlined. It was not suggested to the Applicant that those strategies were to prevent him from obtaining sexual gratification from treating adult or young females and therefore he had to prevent himself from engaging in such conduct. When assessing his answers as a whole we are, however, satisfied that notwithstanding the difficulties the Applicant had in articulating precisely his reasoning, the strategies appear more than likely to be to avoid any situation which could give rise to accusations against him of impropriety, even if there was no objective basis for doing so.

Risk of Reoffending

1. The conduct the subject of the Applicant's conviction in the Local Court and the Tribunal's earlier decisions to cancel his registration did not concern the physical treatment of any patient. It was of a different nature, the installation of cameras and filming of both an adult and young female.
2. The Tribunal's current task is to assess the risk of the Applicant reoffending in that or similar manner. In our view, based on the evidence provided by the medical practitioner's referred to above, and the ongoing treatment that the Applicant has received and, we are satisfied, will receive we assess the risk of his reoffending as very low. We are satisfied that the Applicant does not pose a real material risk of reoffending.
3. Given the protective nature of the Tribunal's jurisdiction the risk of the Applicant reoffending will be even further reduced by the imposition of conditions on his registration. In particular, conditions restricting certain forms of treatment and with supervision following his reinstatement to practise and compliance with recommended further treatment for the Applicant in accordance with the medical reports in evidence.
4. At the hearing of this matter the parties were invited to provide to the Tribunal appropriate conditions in the event that the Tribunal came to the view that the Applicant's registration should be reinstated and that certain conditions should be imposed on his registration.
5. A timetable was set to allow the parties to put forward such conditions as pressed by either side with a short submission as to the appropriateness or otherwise, or acceptance, of the conditions.
6. The Applicant has indicated that he consents to the following conditions to be imposed on his registration under s 163B(4) of the National Law in the event that his registration was reinstated: "Restrictions on Practice 1. Unless and until the Practitioner obtains a working with children check the Practitioner is not to provide physiotherapist services to any person under the age of 18 years. 2. The Practitioner is not to: (a) provide hydrotherapy services; (b) treat any female patient with groin injuries or deep hamstring tissue disorders; and (c) treat any female patients with lumber spine disorders unless a chaperone is present. 3. The Practitioner is to work in a group practice, alongside other registered physiotherapist practitioners. Supervision 4. To practise under category C supervision in accordance with the Physiotherapy Council of NSW's Compliance Policy-Supervision (as varied from time to time) for a period of six months following registration. Medical 5. For a period of 18 months from the date of registration, to attend for treatment by Dr Pusic (or in the event Dr Pusic becomes unavailable another psychiatrist of his choice). The frequency of treatment is to be determined by the treating practitioner. The Practitioner is to authorise the treating practitioner to inform the Physiotherapist Council of NSW of any of the following: (a) failure to attend for treatment; (b) termination of treatment; or (c) a significant change in health status (including a significant temporary change). 6. For a period of 6 months from the date of registration, to attend for treatment by a psychiatrist/psychologist of his choice (who maybe Dr Pusic), with experience in sex offender counselling, in order to attend and participate in sex offender counselling and mental health counselling. The Practitioner must provide the Physiotherapy Council of NSW with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The Practitioner is to authorise the treating practitioner to inform the Physiotherapist Council of NSW of any of the following: (a) failure to attend for treatment; (b) termination of treatment; or (c) a significant change in health status (including a significant temporary change). Miscellaneous 7. The Practitioner is to forward evidence to the Physiotherapy Council of NSW within seven days of obtaining employment that the Practitioner has provided a copy of full conditions to his physiotherapist employer/s. 8. Within seven days of a change in the place of practice, the Practitioner is to forward evidence to the Physiotherapy Council of NSW that he has provided a copy of full conditions to the physiotherapist employer/s. 9. To authorise the Physiotherapist Council of NSW to exchange information with current and future persons and organisations at places where the Practitioner works as a physiotherapist in Australia, regarding any issues arising in relation to compliance with these conditions. The Practitioner must only be employed as a physiotherapist in circumstances where the employer has agreed to notify the Council of any breach of the conditions and exchange information with the Council related to compliance with the conditions. 10. The Practitioner is responsible for the costs associated with complying with the conditions unless otherwise specified. 11. 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 Physiotherapy Board of Australia. 12. The appropriate review body for the purpose of a review under sections 163 to 163C of the Health Practitioner Regulation National Law is the Physiotherapy Council of NSW when the Practitioner has a principal place of practice in NSW."
7. The Commission, for its part, maintained its position that the reinstatement application was opposed but in the event that the Tribunal were to grant reinstatement it responded as follows.
8. In respect of Conditions 1 and 2 the Commission argued, relying on Health Care Complaints Commission v Litchfield [1997] NSWCA 264; (1997) 41 NSWLR 630 at 639 ("Litchfield") and Hanna v Medical Council of NSW [2016] NSWCATOD 108 as "the Litchfield principle", that the necessity for imposing a condition that female patients should not be treated unless a female chaperone was present throughout demonstrated that the practitioner was unfit to practise medicine, applied to these Conditions put forward by the Applicant.
9. The Commission submitted that in the present instance, it was accepted that proposed Conditions 1 and 2 put forward by the Applicant do not seek to impose conditions that would restrict the Applicant's ability to treat all female patients unless continuously in the presence of a chaperone. Nonetheless, it is submitted that in circumstances where the Applicant's criminal convictions are all related to circumstances in which the Applicant was given a degree of trust and breached that trust, including in his place of practice, and that Conditions 1 and 2 are designed to ameliorate the risk that the Applicant "would do so again in any future professional practice by restricting his treatment of a considerable portion of the public", the Litchfield principle was engaged and the Applicant was not a fit and proper person to hold a registration as a physiotherapist.
10. There are a number of fundamental difficulties with this submission.
11. First, it is necessary to properly analyse the decision in Litchfield and what was said in relation to the earlier decision of the Court of Appeal in Richter v Walton [1993] NSWCA 15 July 1993 (unreported).
12. The Tribunal's jurisdiction is protective. Specific powers are granted to it which may be exercised in furtherance of that jurisdiction, for example, s 149A(1)(b) (impose conditions); (1)(c) (order a practitioner to seek an undergo medical or psychiatric treatment or counselling); (1)(d) (order a practitioner to complete an educational course specified by the Tribunal). The various professional Councils themselves have the power to impose conditions such as those set out in s 150(1) of the National Law.
13. Both the Tribunal and the relevant councils regularly impose conditions for the purpose of removing, reducing or minimising the risk, or potential risk, posed by practitioners to the health and safety of other persons or otherwise in the public interest.
14. Conditions may, for example, be imposed to restrict the performance of certain procedures, such as, operations of a particular kind on female patients (see Day v Medical Council of New South Wales [2021] NSWCATOD 6), or require drug and alcohol testing because of the risk of cognitive impairment, or require practitioners to only practise under supervision, or require expert counselling.
15. The imposition of conditions of that kind do not of themselves indicate that the practitioner is unfit to practise.
16. Litchfield involved an appeal to the Supreme Court from the Medical Tribunal suspending a practitioner from practice for nine months and ordering him to submit to psychological assessment to be referred to the Medical Board of New South Wales.
17. In determining the appeal, the Supreme Court, by majority, held that the paramount duty of the Tribunal and the Court in cases such as that was to protect the public, and particularly female patients, from the abuse by doctors of the power they possess over patients in the course of their practice.
18. The majority in the Court also found that the Tribunal erred in its determination such that its decision needed to be set aside leaving the Court to exercise the relevant discretion for itself.
19. An important question arose as to whether there was the likelihood of the practitioner reoffending. The majority was of the view that the evidence demonstrated a propensity on the part of the practitioner to reoffend. Their Honours were of the view that the practitioner's earlier reoffending was aggravating and not a mitigating factor as held by the Tribunal.
20. Their Honours further held that the Tribunal must have had misgivings about the doctor's future behaviour because of the conditions it imposed. Their Honours concluded that the proper order was that the practitioner's name be removed from the Register.
21. Their Honours then (at page 8-9 of the judgment) came to deal with a submission by Counsel for the Commission that the Court should override the decision of the Supreme Court in Richter v Walton [1993] NSWCA 15 July 1993 (unreported) (Kirby P, Priestley JA and O'Keefe AJA) ("Richter"), a decision, their Honours held, "where this Court by majority set aside an order of the Tribunal removing the Appellant's name from the Register and substituted an order imposing conditions prohibiting the Appellant, except in the case of an emergency, from seeing a female patient except in the continuous presence of a female chaperone."
22. Richter was a case involving an appeal by the medical practitioner against an order by the relevant Disciplinary Tribunal that his name be removed from the Register of Medical Practitioners as a result of sexual misconduct carried out on a female patient.
23. The Tribunal had identified a number of factors in favour of the practitioner but also found that there was a "small" but "nonetheless real risk" of such behaviour reoccurring.
24. The dissenting judgment of Priestly JA in Richter provides further insight into this issue. His Honour pointed out that the Tribunal had taken the view different from the expert evidence admitted before the Tribunal about the likelihood of the practitioner reoffending. His Honour came to the view that the Tribunal was entitled to come to its own conclusion that the chance of the practitioner reoffending was small, but nonetheless, real. He concluded that the Tribunal did therefore not err, as there was no basis for the Court to vary the orders made by the Tribunal.
25. In Litchfield, the majority then, having introduced the issue in the paragraph quoted at [71] above held: "The majority thus found that the Appellant could not be trusted to observe proper professional standards in his conduct towards female patients unless a female chaperone was present throughout. With the greatest of respect the necessity for imposing such conditions on the appellant's registration demonstrated that he was unfit to practice (sic) medicine and in those circumstances the only appropriate order was one dismissing his appeal. The dissenting judgment of Priestley JA was entirely correct, and the majority decision should be overruled."
26. As we understand the position, the reference to "the majority" is a reference to the judgment of Justices Kirby and O'Keefe.
27. The difficulty is that "the majority" in Richter did not find that the practitioner could not be trusted. In fact, the opposite was the case. In Richter, their Honours held: "In considering the appropriate order to be made it is right that we take into account the serious nature of the breach of ethical and professional standards proved against the Appellant and the affront to the privacy and dignity of the patient which the Appellant admits. However, it is also necessary to give weight to the following considerations: 1 that the unacceptable behaviour of the Appellant was uncharacteristic; 1 that such behaviour was engaged in on the spur of the moment; 3 that the likelihood of any recurrence is exceptionally remote; …"
28. The majority in Richter then went on to review the evidence of expert witnesses adduced on appeal as to the likelihood of repetition of behaviour of the kind in question. Their Honours accepted the expert evidence that the behaviour would not occur, or the likelihood of reoffending was "virtually nil".
29. The majority also referred to earlier cases where it had been concluded that the risk was minimal but conditions had been imposed.
30. The Tribunal obviously has to proceed with caution in attempting to interpret, or even re-write, what the Court of Appeal has held. However, if one were to read the first sentence set out at [71] above as intended to refer to what the Tribunal had found (as opposed to "the majority") the passage is more understandable.
31. It was the Tribunal that had concluded that the practitioner could not be trusted - there was a small but nonetheless real risk of such behaviour recurring.
32. Their Honours in majority in Litchfield also referred to the judgment of Justice Priestly in Richter as being "entirely correct". As pointed out above, his Honour emphasised and accepted the conclusion of the Tribunal that there was a real risk of reoffending, a conclusion which he held should not be disturbed.
33. The above analysis leads us to the view that Richter did not stand for the proposition that a condition that female patients could only be treated in the presence of a female chaperone could not be imposed. The key issue was whether there was, or was not, a real risk of the practitioner reoffending.
34. In addition, Litchfield did not hold that a condition to that effect could not be imposed.
35. The caution which needs to be adopted in considering what the Commission raises as "the Litchfield principle" is reinforced by what was held in Health Care Complaints Commission v Wingate [2007] NSWCA 326; (2007) 70 NSWLR 323 per McColl and Basten JJA; Harrison J. In that case his Honour Justice Basten (with whom McColl JA and Harrison J agreed) held as follows: "59. The claim of procedural unfairness may also be tested by inquiring what submission the Commission would have made had it been offered the opportunity. The submission would have been that, despite the apparent inconsistency with the concession in relation to an unqualified prohibition, the chaperone condition made the order inconsistent with Health Care Complaints Commission v Litchfield. Additionally, it seems that there might also have been some further consideration of the operation of the statutory prohibitions on employment, as there was in this Court. 60. The strength or otherwise of the Commission's position in relation to Order (1) must turn on the appropriateness of the order, rather than the absence of discussion of these matters before the Tribunal. The concern which the Tribunal expressed to the parties was that a prohibition on seeing young patients might be inconsistent with the principles identified in Health Care Complaints Commission v Litchfield (by Gleeson CJ, Meagher JA and Handley JA). Health Care Complaints Commission v Litchfield involved inappropriate sexual contact with female patients; as the Court noted (at 638D): "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise." 61. In those circumstances, the Court considered that a general condition requiring the practitioner to have a chaperone present whenever seeing a female patient indicated a conclusion that he could not be trusted in relation to a fundamental aspect of proper professional conduct. It concluded that the Tribunal should properly have removed his name from the register, a course which the Court itself then took in exercise of powers conferred by s 91 of the Medical Practice Act. In reaching that conclusion, it rejected a submission for the practitioner that the Tribunal, in imposing the condition, should have been understood as finding that the doctor was not likely to reoffend. 62. In relation to Health Care Complaints Commission v Litchfield, care must be taken, as the Commission recognised in its written submissions, in deriving a principle of over-general application from the circumstances of a particular case. It might be argued from Health Care Complaints Commission v Litchfield that a condition should only be imposed to provide necessary protection to the patients of a practitioner, but that if such a condition is reasonably necessary, the practitioner must lack a precondition to entitlement to continued practice and accordingly the need to impose the condition demonstrates unfitness to practise. Clearly that reasoning is, when stated at that level of generality, fallacious. Conditions may be imposed in varying circumstances and for various purposes. The circumstances and purposes will always be important, in part because of the need for the Tribunal to be satisfied that the condition will be effective. In the present case, the practitioner had committed no misconduct of a "hands-on" kind; there had been no inappropriate conduct of a sexual kind with any patient or indeed with any non-patient. … 66. The purpose of imposing a condition in circumstances such as these, requires analysis. Thus, the lower the risk of inappropriate conduct in a professional setting, the grater the likelihood that a condition is being imposed for purposes other than actually preventing misconduct. One legitimate purpose is maintenance of confidence of the public, both in the particular doctor and in the profession generally. …"
36. On the authorities referred to above, we proceed on the basis that a condition requiring a chaperone when treating female patients should not be imposed if there is a real risk of reoffending because in such circumstances the practitioner is unfit to practise and a condition is not appropriate.
37. We do not accept the submission by the Commission that Conditions 1 and 2 set out above engage "the principle in Litchfield" precluding the imposition of such a condition.

Proposed Conditions

1. Condition 1 is predicated on the operation of the provisions of the Child Protection (Working with Children) Act 2012 (NSW). That legislation forms part of the background to be considered by the Tribunal when considering protective orders (Health Care Complaints Commission v Wingate at [73]).
2. Although we are of the view and are satisfied that the provision of services to young patients poses is very low and not a real or material risk to them, we nonetheless consider it necessary to impose Condition 1 on the Applicant's registration. We regard the Condition as directed at maintaining public confidence in the profession and reflecting appropriate professional standards in respect of young patients of the Applicant and the profession generally.
3. Further, we accept the Commission's proposed addition to Condition 1, namely, that in the event that Condition 1 ceases to apply for any reason, the Applicant is not to provide any physiotherapy services to females under the age of 18 years without an adult chaperone present at all times. We do so for the same reasons adopted in respect of Condition 1.
4. We propose to impose Condition 2(a) and 2(b) for the same reasons.
5. In respect of Condition 2(c) the Tribunal raised with Counsel for the Applicant a concern about the practicality of a condition of this kind - how it is to be implemented and monitored. Counsel assured us that the Applicant was confident that compliance with the condition can be achieved. We will impose this condition.
6. For the reasons set out above we are satisfied that Conditions 1 and 2 are not precluded by reason of the decision in Litchfield. They are conditions which, in our view, will enhance public confidence in the standard of practice which re-registration will require of the Applicant.
7. We think that there is merit in the Applicant working only in a group practice alongside other registered physiotherapist practitioners and accordingly will impose Condition 2(A) proposed by the Commission to the effect that the Applicant is to work in a group practice, alongside other registered physiotherapist practitioners.
8. We are of the view that all the other conditions namely Conditions 3, 4, 5, 6, 7, 8, 9, 10 and 11 with the amendments proposed by the Commission should be adopted and orders will be made to that effect.
9. These conditions are imposed notwithstanding our view that the risk of reoffending by the Applicant is very low. The conditions do, however, provide additional confidence to the public or patients and will assist in the rehabilitation long-term of the Applicant.

Conclusion

1. We have decided to make an order that the Applicant may be registered in accordance with Part 7 of the National Law subject to conditions.

Orders 1. A reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) is made in respect of Andrew Weinzettel (the practitioner) permitting him to be registered as a physiotherapist in accordance with Part 7 if the conditions in s 163B(3) are satisfied. 2. Pursuant to s 163B(4) of the Health Practitioner Regulation National Law (NSW), the following conditions are imposed on the practitioner's registration in the event that he is registered as a physiotherapist: Restrictions on Practice 1. Unless and until the Practitioner obtains a working with children check the Practitioner is not to provide physiotherapist services to any person under the age of 18 years. 2. In the event that Condition 1 ceases to apply for any reason, the Practitioner is not to provide any physiotherapist services to females under the age of 18 years without an adult chaperone present at all times. 3. The Practitioner is not to: (a) provide hydrotherapy services; (b) treat any female patient with groin injuries or deep hamstring tissue disorders; and (c) treat any female patients with lumber spine disorders unless a chaperone is present. 4. The Practitioner is to work in a group practice, alongside other registered physiotherapist practitioners. Supervision 5. To practise under category C supervision in accordance with the Physiotherapy Council of NSW's Compliance Policy-Supervision (as varied from time to time) for a period of six months following registration. Medical 6. For a period of 18 months from the date of registration, to attend for treatment by Dr Pusic (or in the event Dr Pusic becomes unavailable another psychiatrist of his choice). The frequency of treatment is to be determined by the treating practitioner. The Practitioner is to authorise the treating practitioner to inform the Physiotherapist Council of NSW of any of the following: (a) failure to attend for treatment; (b) termination of treatment; or (c) a significant change in health status (including a significant temporary change). 7. For a period of 6 months from the date of registration, to attend for treatment by a psychiatrist/psychologist of his choice (who maybe Dr Pusic), with experience in sex offender counselling, in order to attend and participate in sex offender counselling and mental health counselling. The Practitioner must provide the Physiotherapy Council of NSW with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The Practitioner is to authorise the treating practitioner to inform the Physiotherapist Council of NSW of any of the following: (a) failure to attend for treatment; (b) termination of treatment; or (c) a significant change in health status (including a significant temporary change). Miscellaneous 8. The Practitioner is to forward evidence to the Physiotherapy Council of NSW within seven days of obtaining employment that the Practitioner has provided a copy of full conditions to his physiotherapist employer/s. 9. Within seven days of a change in the place of practice, the Practitioner is to forward evidence to the Physiotherapy Council of NSW that he has provided a copy of full conditions to the physiotherapist employer/s. 10. To authorise the Physiotherapist Council of NSW to exchange information with current and future persons and organisations at places where the Practitioner works as a physiotherapist in Australia, regarding any issues arising in relation to compliance with these conditions. The Practitioner must only be employed as a physiotherapist in circumstances where the employer has agreed to notify the Council of any breach of the conditions and exchange information with the Council related to compliance with the conditions. 11. The Practitioner is responsible for the costs associated with complying with the conditions unless otherwise specified. 12. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the Practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Physiotherapy Board of Australia. 13. The appropriate review body for the purpose of a review under sections 163 to 163C of the Health Practitioner Regulation National Law is the Physiotherapy Council of NSW when the Practitioner has a principal place of practice in NSW. 1. The Applicant is to pay the costs of the Commission as assessed or agreed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2023