Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hopper v Health Care Complaints Commission [2020] NSWCATOD 104 Hearing dates: 14 May 2020 Date of orders: 14 September 2020 Decision date: 14 September 2020 Jurisdiction: Occupational Division Before: A Britton, Principal Member Dr A Lyell, Senior Member Dr R Bonello, Senior Member G Alder, General Member Decision: (1) Application for reinstatement is dismissed. (2) Applicant is to pay the Respondent's costs as agreed or assessed. Catchwords: TRADES AND PROFESSIONS – reinstatement of health practitioner under the Health Practitioner Regulation National Law COSTS- applicable principles where Tribunal is conducting an inquiry into an application for review of a cancellation order under s 163B of the Health Practitioner Regulation National Law Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Crimes Act 1900 (NSW) Cases Cited: Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 Health Care Complaints Commission v Hopper [2018] NSWCATOD 39 Re Alger Hiss 333 NE 2d 429 Scully v HCCC [2013] NSWNMT 7 Shah v Health Care Complaints Commission [2014] NSWCATOD 94 Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Zaidi v Health Care Complaints Commission (1988) 44 NSWLR 82; [1997] NSWCA 354 Texts Cited: None cited Category: Principal judgment Parties: James Hopper (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: S Barnes (Applicant) P Clayton (Respondent) Solicitors: Unsworth Legal (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2019/00401161 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure and/or publication of the name of the Patient A is prohibited. REASONS FOR DECISION 1. In March 2018, a differently constituted Tribunal made orders cancelling James Hopper's registration as a chiropractor: Health Care Complaints Commission v Hopper [2018] NSWCATOD 39. In addition, the Tribunal ordered that Mr Hopper must not apply for review of that order for 12 months. 2. Mr Hopper now exercises the right conferred by s 163A of the Health Practitioner Regulation National Law (NSW) (the "National Law") to apply for review of the cancellation order. Mr Hopper requests that the Tribunal reinstate his registration and proposes a number of conditions that could be imposed on his registration, if the Tribunal considers it appropriate. The Health Care Complaints Commission ("the Commission") opposes Mr Hopper's application for reinstatement. 3. These proceedings are not a re-hearing. In conducting this review, we cannot review the original decision, or any findings of fact made in connection with that decision: s 163(2). Rather, our task is "to determine the appropriateness, at the time of the review, of the order concerned": s 163C(1). 4. For the reasons that follow, we have decided to dismiss Mr Hopper's application for review of the order cancelling his registration. Decision to cancel Mr Hopper's registration as a chiropractor 1. The conduct the subject of the complaint referred by the Commission to the NSW Civil and Administrative Tribunal ("the Complaint"), concerned Mr Hopper's conviction for one charge of "assault with act of indecency" under s 61(L) of the Crimes Act 1900 (NSW). Mr Hopper had entered a plea of not guilty. The NSW Local Court sentenced Mr Hopper to 200 hours of community service. 2. The assault occurred during a consultation with 35-year-old, Patient A, on 7 July 2015 at Mr Hopper's consulting rooms. The sentencing magistrate found that while massaging Patient A, Mr Hopper intentionally touched Patient A's "nipples, anus, vulva and clitoral area". Prior to the assault, Patient A had consulted Mr Hopper without incident on 50 occasions for tightness in the back and a tilted pelvis. 3. In the proceedings before the Tribunal, Mr Hopper admitted most of the conduct particularised in the Complaint, namely: 1. in the course of massaging Patient A, her breast and buttocks (but not her groin) were sometimes exposed; 2. while massaging Patient A's thigh his hand touched the outside of her labia; 3. while massaging Patient A's lower back and bottom, he may have massaged Patient A's gluteal muscles; 4. unclasping Patient A's bra with her consent, but denied saying words to the effect "let's get this off" before removing Patient A's gown and bra straps; 5. massaging the side of Patient A's breasts; 6. saying at the end of the massage "I should almost offer you a happy ending". He claimed it was intended as a joke: at [63]; 7. that he should have: "better consented the patient"; asked Patient A to put her underwear back on once he had finished massaging her gluteal muscles and to put her bra back on after massaging her pectoral muscles: at [103]. 1. In the proceedings before the Tribunal, Mr Hopper denied: 1. touching or massaging Patient A's vagina; 2. touching Patient A's anus; 3. placing his fingers between Patient A's labia; 4. that the treatment or any aspect of it was motivated by any subjective intention to obtain sexual gratification: [104]. 1. The Tribunal stated that while it did not believe that Mr Hopper is "a sexual predator" (at [131]) it was comfortably satisfied that: "[T]he touching of Patient A in the places and in the manner in which this was done, and the removal of the clothing of Patient A when on all the evidence, was unnecessary for the type of treatment which [Mr Hopper's] was giving to Patient A, that [Mr Hopper's] behaviour on this occasion … was intentional and for reasons of sexual gratification at a minimum". [130] 1. The Tribunal recommended (at [135]) that Mr Hopper: 1. [E]ngage a psychologist to work with him on his lack of insight into his conduct and the difficulty which he has in accepting that his behaviour and conduct was unprofessional and found to have been both criminal and professional misconduct. 2. [E]ngage a senior chiropractor as a mentor to work with him on a regular basis whilst undergoing sessions with a psychologist. 3. [U]ndertake continuing professional development requirements, in particular, in the areas of: (a) trigger point therapy; (b) anatomy and terminology used in chiropractic techniques; and (c) professional communication courses. History after the cancellation of Mr Hopper's registration 1. Since the cancellation of his registration in March 2018, Mr Hopper has primarily been engaged in home duties. His wife has returned to fulltime employment and he has primary responsibility for the care of their young child. Before the onset of the COVID-19 pandemic, Mr Hopper had occasional employment in the hospitality industry. 2. Mr Hopper wishes to undertake a graduate diploma in Graduate Diploma of Animal Biomechanical Medicine at Box Hill Institute. Registration as a chiropractor is a pre-condition to enrolling in that diploma. 3. Since his registration was cancelled, Mr Hopper has consulted with psychologist Lydia Thompson, engaged in mentoring with Dr Douglas Eldred and completed a number of professional development courses. On the recommendation of Dr Eldred, in February 2019 Mr Hopper successfully completed a one-hour online course on professional boundaries. Mr Hopper's account of treatment with Ms Thompson 1. On a monthly basis between October 2018 and May 2019, and again in August 2019, Mr Hopper had face-to-face psychotherapy sessions with Ms Thompson. Before commencing those sessions, Mr Hopper provided Ms Thompson with a copy of the Tribunal's reasons for making the cancellation order. 2. According to Mr Hopper, in those sessions he discussed with Ms Thompson the hurt and damage he had caused Patient A, the profession, his family and himself. In addition, he discussed "how I could move forward and recognise the behaviours I needed to modify in order to be a better and more professional person". 3. In a written statement prepared for these proceedings, Mr Hopper stated that he now understands that "boundary violations can happen when a health professional confuses their needs with the needs of a patient in their care". 4. He conceded that by failing to ask Patient A to disrobe as he had on previous occasions, he failed to treat her with dignity and respect. In addition, he conceded that by removing her underwear and draping her inappropriately with a towel, he left Patient A exposed and vulnerable. 5. Mr Hopper stated that he recognises that misconduct is an "extreme form of boundary violation" and includes "any behaviour that is reasonably interpreted as sexual by the patient". He wrote that he now understands that touching Patient A's bottom, breast and vulva together with "making a joke with sexual innuendo" (the "happy ending" comment), amounted to a boundary violation, and, in turn, misconduct. 6. Mr Hopper stated that at the time of the subject consultation with Patient A, he did not consider his conduct to be "inappropriate". He stated that his conduct was motivated by wanting to "fix" patients, leading to more physical conduct than was "required or appropriate". He stated, "I thought I was helping the patient but I was wrong". He wrote that he believes this was why, when he was first informed of Patient A's complaint, he struggled to see what he had done wrong. At that time, he thought he had been acting in Patient A's best interests. 7. In cross-examination, Mr Hopper stated he had discussed with Ms Thompson the Tribunal's finding that his conduct in relation to Patient A was "intentional and for reasons of sexual gratification at a minimum": at [130]. He stated that, while he accepts that finding, he maintains his actions were not motivated by sexual intent. He disagreed with the proposition that he therefore lacks insight into his conduct. 8. According to Mr Hopper, the professional development courses he has undertaken since the cancellation of his registration, together with the therapy undertaken with Ms Thompson, has made him reassess the power imbalance between patients and therapists. He stated that previously he considered that the patient held power in the practitioner-patient relationship because they were paying for the practitioner's services and, at any time, could elect to terminate the relationship. He stated that he realises he was mistaken and that the patient, who is often in pain, is in a "vulnerable position" and is likely to accept any treatment recommendation made by the practitioner. He wrote that he now acknowledges that when he suggested to Patient A that she disrobe, remove her underwear and be massaged, he was in a position of power and Patient A felt obliged to say "yes". That realisation, he claims, makes "me feel sick with remorse and angry at himself", especially since Patient A had come to him for help. He stated that thinking about his wife, mother or daughter being treated in a similar way makes him feel "disgusted"' with himself. 9. Mr Hopper wrote that he now has a "new-found appreciation" for the Code of Conduct for Chiropractors and is "acutely aware" of the consequences if the Code is disregarded. 10. In oral evidence, Mr Hopper stated that he has reflected on how he has treated patients in the past and recognises that he has made mistakes. He stated that he is very sorry for the hurt and distress he caused Patient A. 11. When asked by the Tribunal what he would now do differently in the consultation with Patient A, he stated he would have been more "mindful" and not made the grossly inappropriate "happy ending" joke; removed Patient A's underwear; left her body exposed, or touched her bottom, breast or vulva. With respect to practice management, he stated that in the future, he would not treat a patient if he was the only member of staff present at the consulting rooms. He now recognises that doing so contributed to Patient A's sense of unease. 12. In addition, he acknowledged that since commencing practice, over time he probably became lazy and cut corners, treating patients as old friends resulting in "professional boundaries" being crossed. Ms Thompson's opinion about Mr Hopper's risk of re-offending 1. For the purpose of these proceedings, Ms Thompson prepared a report dated 10 June 2019. In addition, she gave oral evidence. 2. Ms Thompson stated that since the initial consultation, Mr Hopper has been "very transparent about the criminal conviction and the behaviour that led to this". She wrote that Mr Hopper has "actively worked at trying to challenge himself and his understanding of his behaviour". In her view, Mr Hopper appeared eager to engage in therapy to gain insight and self-improvement. 3. According to Ms Thompson, while Mr Hopper, in consultations with her, has always acknowledged his behaviour, nonetheless "initially [he] lacked insight into how his professional behaviour could have resulted in the incident [with Patient A]". She wrote that during therapy Mr Hopper "actively worked at trying to challenge himself and his understanding of his behaviour". 4. In Ms Thompson's view, the professional boundary course undertaken by Mr Hopper significantly contributed to enhancing his self-awareness and, in combination with ongoing psychotherapy, resulted in "a significant change in his insight of the incident with Patient A". She stated that, while still denying sexual intent, Mr Hopper was able to reflect on his professional behaviour and acknowledge he had made critical errors. In Ms Thompson's view, Mr Hopper's expression of remorse was genuine. 5. In Ms Thompson's opinion, Mr Hopper poses a low risk of reoffending. In reaching that conclusion, Ms Thompson considered relevant Mr Hopper's dedication to the profession of chiropractic, his "newfound understanding into his previous practice", and his commitment to change and to ensure that his previous behaviour is never repeated. In Ms Thompson's opinion, Mr Hopper has learnt a "significant lesson" and is committed to ensuring that his previous behaviour is never repeated. 6. In oral evidence, Ms Thompson stated that Mr Hopper "clearly crossed professional boundaries" in the treatment of Patient A. She accepted Mr Hopper's denial that his conduct in relation to Patient A was sexually motivated. When asked by the Tribunal to assume that Mr Hopper's conduct was sexually motivated, Ms Thompson stated that she remained of the opinion that he posed a low risk of reoffending. She rejected the contention that unless and until he acknowledged that his conduct was sexually motivated, the risk of reoffending posed by Mr Hopper cannot be described as low. Mentoring relationship 1. Between October 2018 and March 2019, Mr Hopper engaged in a mentoring relationship with senior chiropractor and former employer, Dr Eldred. During that period, they met fortnightly to discuss, among other things, Mr Hopper's practice and interaction with patients. At Dr Eldred's recommendation, Mr Hopper undertook and successfully completed a one-hour course on professional boundaries offered by the University of Central Queensland. 2. In a letter dated 4 September 2019, Dr Eldred stated that during the meetings with Mr Hopper they discussed the Tribunal's decision, how Mr Hopper could improve his professional conduct, and the importance of adhering to the "doctor- patient relationship". 3. In oral evidence, Dr Eldred stated that Mr Hopper accepted that he had "committed a crime" and he was confident Mr Hopper would not repeat that conduct. He stated that he told Mr Hopper he was "an idiot" for removing Patient A's underpants. When taken to the details of Mr Hopper's conduct set out in the Tribunal's reasons for its decision, for example touching Patient A's vulva, nipples and buttocks, Dr Eldred stated he was unaware of those details and was a "bit shocked" to learn of them when questioned in these proceedings. However, he remained of the opinion that Mr Hopper did not pose a risk to patients. Character references 1. In support of his reinstatement application, Mr Hopper tendered letters of support prepared by his wife and long-time family friend, Ms Zoey Cortese. 2. Mr Hopper's wife, a physiotherapist, stated that her husband is an "honest and trustworthy person" and that she was shocked when she learnt of the complaint involving Patient A. She stated that his actions on that one occasion did not "represent the person he is and has showed himself to be, before and after the event". In her view, Mr Hopper is not a danger to patients. 3. Ms Cortese stated that Mr Hopper is a "very trustworthy, kind and gentle person" who will always go out of his way to assist friends. On her account, since the "unfortunate event", Mr Hopper has "become a changed man". She stated Mr Hopper seems "almost lost without his career he worked so hard for so many years". While he "immeasurably enjoys" being an "at home dad" he misses being able to help people get their health on track. The principles governing review of a cancellation order 1. Where, as here, the Tribunal receives an application for review of a cancellation order and any disqualification period imposed under s 149C(7) has expired, the appropriate review body, in this case the Tribunal, must conduct an inquiry: s 163B of the National Law. In conducting that inquiry, the Tribunal cannot review the original decision to make a cancellation order or any findings of fact made by the original Tribunal in connection with that decision: s 163C(2). Rather, the Tribunal's task is "to determine the appropriateness, at the time of the review, of the order concerned": s 163C(1). 2. Having conducted an inquiry into the application for review of a cancellation order, the Tribunal may, among other things, dismiss the application; make a reinstatement order; or impose conditions on the person's registration: s 163B. 3. In the exercise of the power to conduct an inquiry under s 163B of the National Law, the protection of the health and safety of the public must be the paramount consideration: s 3A. The objectives of the National Law include providing "for 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). 1. To practise as a health practitioner, a person must be a "fit and proper person for general registration" and be able to practise his or her profession competently and safely: s 55(1)(h). 2. The principles relating to the reinstatement of deregistered health practitioners under the National Law are settled and have been considered in recent Tribunal decisions including Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116; Scully v HCCC [2013] NSWNMT 7 (Scully) and Shah v Health Care Complaints Commission [2014] NSWCATOD 94 (Shah). Those principles were succinctly stated in Shah at [34]: (1) The applicant bears the onus of proving that he or she is a fit and proper person to be engaged in the profession … (see Scully v HCCC [2013] NSWNMT 7 (Scully) [41] and the authorities there referred to); (2) the standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities, tempered by the requirements of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; (see Scully [41] and the authorities there referred to; see also In Re Jason Martin [2010] NSWMT 13); (3) the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction that is exercised is for the protection of the public (see Scully [47] and the authority there referred to); (4) the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (see Scully [48] and the authority there referred to); (5) there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance (see Scully [49] and the authority there referred to); (6) in making an assessment of the applicant's worthiness and reliability for the future, the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register. In Scully, the Tribunal referred at [50] to In Re Jason Martin [2010] NSWMT 13 where the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [or her] worthiness and his [or her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant". 1. The above statement of principles was referred to with approval in Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [47] (N Adams J). Submissions 1. Mr Hopper submits that the Tribunal can be comfortably satisfied that he is fit to practise as a chiropractor and that the offending conduct will not be repeated for the following reasons. 2. First, as found by the Tribunal, Mr Hopper is not a sexual predator and the incident involving Patient A was not part of a pattern of conduct. He points out that at the time of the incident, he had treated Patient A on 53 occasions over 18 months, without complaint. In addition, for over a decade he had treated numerous patients in several practices without incident. 3. Second, as attested by Ms Thompson, Mr Hopper has genuinely engaged in therapy to gain insight into his conduct and to ensure it is not repeated. 4. Third, as acknowledged by Ms Thompson, Mr Hopper is genuinely remorseful and acknowledges the effect his conduct has had on Patient A. 5. Fourth, as a consequence of undertaking further professional development, engaging in therapy and personal reflection, he has a profound understanding of the inherent power imbalance in the patient-practitioner relationship and an understanding of the damaging effects on patients of violating professional boundaries. This is evidenced by his acknowledgement of the inappropriateness of his actions with respect to Patient A and, in addition, his admission that over time he has slipped into sloppy habits by treating patients as old friends, resulting in professional boundaries being crossed. 6. Fifth, Ms Thompson's opinion that he posed a low risk of reoffending. Ms Thompson had the opportunity to assess Mr Hopper over an extended period and gave evidence in a fair and objective manner. Notably, she remained of that opinion even if it was assumed that Mr Hopper's conduct during the subject consultations with Patient A was sexually motivated. Ms Thompson's opinion was not challenged by other expert evidence. 7. Sixth, pointing to Ms Thompson's statement that, ultimately, only Mr Hopper can know what his intention was in treating Patient A in the manner he did, Mr Hopper submits that it would be an error to assume that an admission that his conduct was sexually motivated is a pre-condition to reinstatement, citing in support Zaidi v Health Care Complaints Commission (1988) 44 NSWLR 82; [1997] NSWCA 354 (Zaidi). In Zaidi, Mason P (with whom Priestley and Powell JA agreed) rejected the proposition that the appellant practitioner's refusal to admit guilt was a pre-condition to the favourable determination of his reinstatement application. Mason P referred to the following passage from the judgment of the Supreme Judicial Court of Massachusetts in Re Alger Hiss 333 NE 2d 429 (Hiss) at 437: "Simple fairness and fundamental justice demand that the person who believes he is innocent though convicted should not be required to confess guilt to a criminal act he honestly believes he did not commit. For him, a rule requiring admission of guilt and repentance creates a cruel quandary: he may stand mute and lose his opportunity; or he may cast aside his hard-maintained scruples and, paradoxically, commit what he regards as perjury to prove his worthiness to practise law. Men who are honest would prefer to relinquish the opportunity conditioned by this rule: `Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt ... may be rejected, - preferring to be the victim of the law rather than its acknowledged transgressor - preferring death even to such certain infamy'. Honest men would suffer permanent disbarment under such a rule. Others, less sure of their moral positions, would be tempted to believe to commit perjury by admitting to a non-existent offence (or to an offence they believe to be non-existent) to secure reinstatement." 1. Mason P stated, at [100], that while he agreed with the principle stated in the above passage "the proposition which it states is a narrow one: confession is not a necessary precondition to reinstatement". Mason P went on to state: "I do not understand this Court ever to have asserted such a categorical proposition: see Dawson v Law Society of New South Wales (Court of Appeal, unreported, 21 December 1989 per Kirby P (at p17) and Mahoney JA (at pp6-7). This said, there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness on one or other of the grounds indicated in the sentence underlined." 1. Mr Hopper concedes that he is not assisted by Dr Eldred's opinion that he does not pose a risk of reoffending given, as was evident from the oral evidence, he was not familiar with the details of his conduct involving Patient A. 2. The Commission accepts that Mr Hopper has made genuine attempts to implement the recommendations made by the Tribunal (see [10] above). While conceding that several factors favour Mr Hopper, the Commission argues that the Tribunal could not be satisfied that he does not pose a risk to patients, given his lack of insight into the motivation of his conduct. Is cancellation now the appropriate order? 1. It is against the principles set out above that Mr Hopper bears the onus of proving, on the balance of probabilities, that he is a fit and proper person to hold registration and is able to practise the profession of chiropractic in an ethical manner. As stated above in conducting this review, our task is not to review the decision to cancel Mr Hopper's registration but to determine whether the cancellation order, is now the appropriate order. Central to that task, is the question of whether there is an unacceptable risk, not a mere theoretical or possible risk, that Mr Hopper will repeat conduct of the type that resulted in him being convicted of the offence of "indecent assault" and later deregistered under the National Law. 2. As Mr Hopper properly concedes, he is not assisted by the opinion of Dr Eldred. The oral evidence given by Dr Eldred revealed that at best he had a superficial understanding of the nature and seriousness of the conduct which resulted in the cancellation of Mr Hopper's registration. The Commission does not suggest and nor in our view could the inference properly be drawn, that Mr Hopper was responsible in some for Dr Eldred's lack of knowledge. In short, Mr Hopper's application for reinstatement is neither assisted nor undermined by Dr Eldred's evidence. 3. Several factors favour Mr Hopper's claim that there is no material risk that the conduct involving Patient A will be repeated. First, we accept that Mr Hopper is genuinely remorseful for his conduct and acknowledges its devastating impact on Patient A. Second, we find that Mr Hopper now has a better understanding of the nature of the practitioner-patient relationship and the need to maintain proper boundaries. Third, we accept his claim that by engaging in self-reflection and therapy with Ms Thompson, he has gained a degree of insight into his conduct and has a better understanding of the vulnerabilities of patients in the practitioner-patient relationship. Fourth, there is no evidence to contradict Mr Hopper's self-report that the incident involving Patient A was a one-off incident. Fifth, the humiliating experience of being convicted and losing his registration as a chiropractor, a profession to which Mr Hopper is dedicated, is likely to act as a deterrent against future offending. 4. Sixth, the opinion held by Ms Thompson that Mr Hopper poses a low risk of reoffending. Ms Thompson undoubtedly has sufficient knowledge and experience to assist us to make an assessment of the risk, if any, posed by Mr Hopper. Her opinion was carefully considered, reasoned and not contradicted by other expert opinion. Notably, Ms Thompson had the benefit of observing and interacting with Mr Hopper over a considerable period. Significantly, her assessment of risk remained unaltered when asked to accept the assumption that Mr Hopper's conduct was sexually motivated. 5. In any practitioner-patient relationship, there is a risk the practitioner will transgress the proper boundaries of that relationship. The question posed is not whether Mr Hopper poses any risk but rather whether the risk posed is unacceptable. 6. The conduct that led to Mr Hopper's deregistration was, on any measure, very serious. That is so whether it was "out of character", unusual or otherwise. Given that Mr Hopper has acted in this way once is enough to raise serious doubts about his capacity to maintain proper ethical standards in future, no matter what his current intentions may be. We have been offered no plausible explanation for Mr Hopper's misconduct. He insists that it was not consciously or otherwise sexually motivated. Given the circumstances surrounding the conduct this seems as found by the Tribunal and the Local Court, to be implausible. If Mr Hopper does not understand his own behaviour, how can he guard against repetition of it? Secondly, while we do not cavil with the principle discussed in Zaidi, it does not assist Mr Hopper. Zaidi is authority for the proposition that lack of insight and/or admission of guilt is not a necessary precondition to reinstatement. It is not authority for the proposition that lack of insight is irrelevant to the determination of whether a practitioner is fit to practice, or poses a risk of repeating the conduct which led to their deregistration. Mr Hopper's determined refusal to concede that his conduct may have been sexually motivated is his prerogative but, given the obvious strength of the evidence contradicting his denial, his resistance suggests a lack not so much of insight as of wilfulness. This concerns us greatly and suggests that, despite the factors favouring him, there remains an unresolved issue which in turn suggests an unacceptable risk of future misconduct. 7. While the fact that he does not admit that his conduct may have been sexually motivated is not determinative of the key issue, it leaves us with a sense of unease that Mr Hopper may in the future find himself in a position where he consciously or otherwise is sexually motivated and acts inappropriately towards a patient. Despite the positive steps taken by Mr Hopper to guard against reoffending we respectfully disagree with Ms Thompson's assessment that Mr Hopper poses a low risk of reoffending. Nor are we persuaded that the conditions proposed by Mr Hopper would mitigate that risk. 8. Not being satisfied that Mr Hopper does not pose an unacceptable risk of reoffending, his application for reinstatement must be dismissed. Costs 1. The Commission seeks an order that Mr Hopper pay its costs in these proceedings. Mr Hopper foreshadowed that, if his application for reinstatement were unsuccessful, he would not oppose a costs order. 2. We order that Mr Hopper pay the costs of the Commission as agreed or assessed. Orders 1. Application for reinstatement is dismissed. 2. Applicant is to pay the Respondent's costs as agreed or assessed. ********** 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: 14 September 2020