Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sundararajah v Health Care Complaints Commission [2020] NSWCATOD 144 Hearing dates: 25, 26 and 27 November 2020 Date of orders: 09 December 2020 Decision date: 09 December 2020 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Dr G Labour, Senior Member Dr K Campbell, Senior Member M Maher, General Member Decision: (1) The application is dismissed. (2) Costs are reserved with liberty to apply which should be exercised within one month of this date. Catchwords: TRADES AND PROFESSIONS – application for review of decision to cancel registration of dental practitioner-principles on review-held applicant continues to suffer from an impairment-application dismissed-costs reserved Legislation Cited: Health Practitioner Regulation National Law (NSW) ss 5,139,163A,163B,163C Cases Cited: HCCC v Sunda [2013] NSWDT 1 HCCC v Sundarajah [2017] NSWCATOD 182 Health Care Complaints Commission v Sundarajah (No 2) [2018] NSWCATOD 86 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 Texts Cited: Nil Category: Principal judgment Parties: Raahulan Sundarajah (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: B Wright (Applicant) I Chatterjee (Respondent) Solicitors: Navado Lawyers and Solicitors (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2020/00194192 Publication restriction: Pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013: 1. The disclosure and/ or publication of the name of the person listed in Part 1 of the document entitled "Suppression Orders" and filed with the Tribunal on 30 November 2020, and who is referred to as "Patient A" in the decision in HCCC v Sunda [2013] NSWDT 1, or any material which might tend to identify that person, is prohibited. 2. The disclosure and/ or publication of the names of the persons listed in Part 2 of the document entitled "Suppression Orders" and filed with the Tribunal on 30 November 2020, and whose names were subject to a non-publication order in proceedings 1620214; 2016/378775, or any material which might tend to identify those persons, is prohibited. 3. The disclosure and/ or publication of the name of the solicitor listed in Part 3 of the document entitled "Suppression Orders" and filed with the Tribunal on 30 November 2020, being a solicitor whose relationship with the applicant was a matter relevant to the proceedings, or any material which might tend to identify that person (including but not limited to the employing law firm of the solicitor at the relevant time), is prohibited. reasons for decision Background 1. The applicant in these proceedings, Raahulan Sundarajah was first registered as a dental practitioner in December 1996. A complaint was made concerning the applicant's failure to observe proper professional boundaries with a patient by engaging in a personal and sexual relationship with her. On 2 September 2011 the Dental Council of NSW imposed conditions on his registration. On 18 February 2013 the applicant was found guilty of professional misconduct arising out of the complaint under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law") by the former Dental Tribunal of NSW, and his registration was suspended for a period of 18 months from the date of that decision, namely 18 February 2013. ("The Dental Tribunal decision"). The applicant was required to seek treatment by a psychiatrist or clinical psychologist and to attend a course on ethics in the dental profession. 2. The period of suspension ended on 18 August 2014. The following day further conditions were imposed by the Dental Council on his registration including a requirement that the applicant not practise dentistry on female patients over the age of 15 unless at all times a female adult member of the practice was present as a chaperone. On 27 February 2015 following an enquiry conducted by an Impaired Registrants Panel convened by the Dental Council, the applicant voluntarily consented to a number of conditions being imposed on his registration including the chaperone condition referred to above. 3. On 23 March 2015 the applicant commenced working spasmodically at a dental practice in Cairns, Queensland and ceased working there on 13 April 2015. 4. On 7 July 2015 the applicant's registration was suspended following a hearing under section 150 of the National Law arising out of allegations that the applicant had breached the chaperone condition which had been imposed on 27 February 2015 on 15 occasions involving 10 different female patients. Subsequently, proceedings were commenced in this Tribunal by the respondent against the applicant alleging, inter alia, that he was guilty of professional misconduct under the National Law by reference to the breaches of the chaperone condition and that he had an impairment as defined in the National Law which detrimentally affected or was likely to detrimentally affect his capacity to practice the profession of dentistry. In a decision published on 22 December 2017 this Tribunal found the applicant guilty of professional misconduct, that he had an impairment as alleged and was not competent to practise dentistry for the purpose of the National Law. In a further decision published on 4 June 2018 the Tribunal cancelled the applicant's registration and disqualified him from seeking a review of that cancellation order for a period of 12 months. For ease of reference, we shall refer to these two decisions collectively as "the decisions under review." 5. On 1 July 2020 the applicant brought an application for a review of the decision of 4 June 2018, which is the subject of the proceedings before us and these reasons for decision. In this application the applicant has sought a "reinstatement order" the effect of which would allow him to make application for registration as a dental practitioner to the National Board. During the course of the proceedings the applicant said that if he were to be re-registered, he would consent to the imposition of conditions on his registration including supervision, a chaperone condition and that he undertake continuing medical treatment. Non-publication order 1. We have made the following non-publication order in these proceedings: Pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013: 1. The disclosure and/ or publication of the name of the person listed in Part 1 of the document entitled "Suppression Orders" and filed with the Tribunal on 30 November 2020, and who is referred to as "Patient A" in the decision in HCCC v Sunda [2013] NSWDT 1, or any material which might tend to identify that person, is prohibited 2. The disclosure and/ or publication of the names of the persons listed in Part 2 of the document entitled "Suppression Orders" and filed with the Tribunal on 30 November 2020, and whose names were subject to a non-publication order in proceedings 1620214; 2016/378775, or any material which might tend to identify those persons, is prohibited 3. The disclosure and/ or publication of the name of the solicitor listed in Part 3 of the document entitled "Suppression Orders" and filed with the Tribunal on 30 November 2020, being a solicitor whose relationship with the applicant was a matter relevant to the proceedings, or any material which might tend to identify that person (including but not limited to the employing law firm of the solicitor at the relevant time), is prohibited. The statutory basis for this application 1. This application is brought pursuant to the provisions of Part 8 of Division 8 of the National Law, and we set out below relevant extracts. For the purpose of these provisions, this Tribunal is "the appropriate review body". By section 163A the applicant was entitled to request that the cancellation of the applicant's registration and that the order he be disqualified from being registered as a dental practitioner be reviewed. The powers of this Tribunal which may be exercised on the review are set out in section 163B: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order— (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 1. The provisions of section 163C are relevant for the purpose of these proceedings. We are to consider the appropriateness of the decisions under review at the time of conducting the review. Furthermore, we are not to review the actual decision to make the order and also, significantly, we are not to review "any findings made in connection with the making of that decision." For completeness, we observe that it is mandatory that we take into account any complaint of the kind described in section 163C (3). 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. Some further background factual matters 1. In order to assist in an understanding of these reasons for decision it is necessary that we refer briefly to those medical practitioners who have either treated the applicant or examined him for a forensic purpose, and to a psychologist who has treated him for some time. 2. The Dental Council of NSW requested that the applicant be assessed on two occasions in October 2011 by Dr Jonathan Phillips who provided a report dated 16 November 2011. Subsequently Dr Phillips became the applicant's treating psychiatrist for some time. Afterwards the applicant obtained psychiatric treatment from Dr Selwyn Smith. We shall refer to the expert opinions of both these practitioners later in these reasons for decision. 3. As a consequence of conditions having been imposed on the applicant's registration following section 150 proceedings, the Dental Council of NSW required the applicant to undertake an assessment by Dr Michael Giuffrida, a consultant psychiatrist who provided a report dated 3 November 2014. In the course of investigating the complaints which led to the institution of the decisions under review, the respondent referred the applicant for examination by Dr Giuffrida, who further examined the applicant on several occasions and provided a number of reports consequent upon those examinations. He also gave oral evidence before the Tribunal. We shall refer to Dr Giuffrida's evidence later in these reasons. 4. The applicant has also been treated by Ms Sheridan Mason, clinical psychologist whose reports are evidence in these proceedings and who also gave oral evidence. The Dental Tribunal decision 1. It is necessary to have regard to the subject matter of this decision and the reasoning of the Tribunal, for reasons which will become clear. The citation is HCCC v Sunda [2013] NSWDT 1. In those proceedings the applicant was named as Ray Sunda. There is no dispute that this was an alternative name used by the applicant. 2. The complaints considered by the Tribunal arose out of a sexual relationship between the applicant and a patient, known as Patient A. This patient had attended upon the applicant on a number of occasions and during the period May to July 2007 they had engaged in a personal and sexual relationship. On 17 February 2011 the patient had again attended on the applicant during the course of which the patient alleged that the applicant initiated sexual activity with her which was described in the complaints. The applicant admitted some of this activity, but not others. 3. The applicant gave evidence during the course of that hearing, as did Dr Jonathan Phillips, a consultant psychiatrist who had commenced treating the applicant on 19 March 2013. The Tribunal also received a written statement of Patient A and a statement of a mental health nurse who had been treating Patient A and to whom Patient A had provided a history on 23 February 2011 of what had occurred on 17 February 2011. 4. Having regard to all of the evidence, the Tribunal provided detailed reasons for finding that the conduct of the applicant was that as described by the patient and rejected the applicant's denials of the extent of his conduct. Primarily, the applicant asserted that the sexual activity was entirely consensual up to a point when the patient objected and he immediately desisted. The patient's version is that the applicant continued to press himself upon her notwithstanding her protestations. 5. We set out a brief extract from the reasons for decision of the Tribunal, because these matters will become relevant to our determination of these proceedings 58. The Respondent admitted that his behaviour was wrong, that it should never have happened and that it would never happen again. However the Tribunal found that his response to questions relating to his insight into the damage associated with his behaviour, and the power imbalance between a dentist and a patient led the Tribunal to believe that there is a need for the public to be protected. This should be at least until such time as the Respondent has a full understanding of the effect of his behaviour and his ethical responsibilities as a dentist. There were also instances on questioning where he denied his awareness of Patient A's emotional and financial vulnerability, a fact of which the Tribunal believes he should have been aware. 59. The Tribunal had regard to the report of Dr Phillips and in particular: "he exhibits a degree of contrition, but on his history and presentation is probably lacking full insight into the devastation he brought to Patient A (at least in January 2011)" (Tab 20, page 11, paragraph 54) and: "whilst I am not able to conclude that the Respondent has any recognisable or diagnosable personality disorder, he appears to have flaws in his personality structure which allowed him to break professional barriers understood by him. I do not think that he currently understands the full significance of this" (Tab 21, page 10, paragraph 54). 60. The Tribunal could have been made more comfortable in relation to the protection of the public if the Respondent had taken account of the advice of Dr Phillips and had attended a psychiatrist or a clinical psychologist. This would have indicated to the Tribunal that the Respondent had some insight into his own issues and was serious about addressing them. 61. The Tribunal accordingly is comfortably satisfied that the public requires protection at least until the Respondent has dealt with the issues arising out of the sexual activity itself, the lack of insight into the effects of his behaviour and the failure to understand the nature of his professional ethical obligations. 1. The Tribunal found the applicant guilty of professional misconduct, suspended his registration for a period of 18 months, required that he attend for treatment by a psychiatrist or clinical psychologist and that he attend a course on ethics. The principles to be considered on an application for reregistration 1. The relevant principles which will inform our consideration of these proceedings have been succinctly summarised in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166. We gratefully adopt them for the purpose of these proceedings. At [7] and following the Tribunal said: 7 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 a 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]; 8 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 than 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. 9 We adopt those statements of the principles to be applied in determining Dr Zepinic's application. As noted in Ng at [29], the standard of proof is the civil standard, on the balance of probabilities, to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Findings made in the decisions under review 1. We have previously set out the provisions of section 163C(2). We are precluded from reviewing any findings made in connection with the making of the decisions being reviewed. We shall take into account the findings made in both of the decisions because the decision to cancel the registration of the applicant made on 4 June 2018 is predicated upon and based upon the findings made in the earlier decision of 22 December 2017, that the applicant was guilty of professional misconduct and that he had an impairment as defined in section 5 of the National Law and was, as a result, not competent to practise dentistry. 2. Before setting out the findings made by the Tribunal in those decisions, it is first necessary to describe the matters under consideration and the reasons adopted by the Tribunal. 3. The first decision is reported as HCCC v Sundarajah [2017] NSWCATOD 182. The complaints being considered in that decision arose firstly out of allegations that the applicant had breached the chaperone condition imposed upon his registration under section 41P of the National Law after the applicant had been referred to an Impaired Registrants Panel. In essence, this condition provided that the applicant was not to practise dentistry "on female patients over the age of 15 years, unless there is present at all times a female adult member of the practice staff. The member (or members) of the staff must be approved by the Dental Council as satisfactory chaperones……" The second aspect of those proceedings was a complaint that the applicant suffered from an impairment as that word is defined in section 5 of the National Law. For convenience, we set out the relevant part of that definition and the provisions of section 139 of the National Law because they will have critical significance for the determination of these proceedings. 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— for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; … 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person— (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language. 1. The Tribunal found that the applicant had breached the chaperone conditions and that this constituted professional misconduct. There had been arguments raised by the applicant during the course of the hearing about the nature and extent of the breach, but essentially the Tribunal rejected these arguments. In considering the seriousness of the applicant's conduct in the context of a finding that it constituted professional misconduct, the Tribunal said (at [30] to [36]): In evaluating whether the offending conduct was "sufficiently serious" to warrant suspension or cancellation, we consider the following matters to be especially relevant. First, this was not the first occasion Dr Sundarajah was found to be in breach of a condition imposed on his registration. In 2012, the Dental Tribunal found that Dr Sundarajah had failed to comply with the Chaperone Condition that was imposed on his registration in September 2011. Second, it could not reasonably be suggested that it was impossible or impractical to comply with the Chaperone Condition. There is no evidence and nor is it suggested that the health or safety of patients would have been jeopardised had Dr Sundarajah left the room during Ms Barnes' short absences. When she was out of the room it was open to Dr Sundarajah to simply stand outside the door of the consultation room and remain in verbal communication with the patient. Third, Dr Sundarajah was squarely on notice of Ms Barnes' opinion that by not leaving the room he was contravening the Chaperone Condition. Fourth, despite his claim that it was a "settling issue", there is no evidence to suggest that Dr Sundarajah raised the issue with Dr Fourie, or attempted to put in place measures to address his concerns about abandoning the patient. In February 2015, Dr Sundarajah came before the Impaired Registrants Panel. In its reason for decision, the Panel discussed its misgivings about whether a Chaperone Condition was sufficient to protect the public given its concerns with the risk posed by Dr Sundarajah. The Panel noted that in the course of the February 2015 inquiry there had been a lengthy discussion with Dr Sundarajah about the proposed Chaperone Condition and the need for strict compliance: see Impaired Registrants Panel, Reasons for Decision, 27 February 2015, p 6. The Dental Council raised the same concerns six months earlier in its reason for deciding to impose a Chaperone Condition following the s 150 proceedings. It is in that context that Dr Sundarajah's failure to comply with the Chaperone Condition must be evaluated. While there is no suggestion that anything untoward occurred on those occasions when Dr Sundarajah was left alone in consultation room with a female patient, it does not follow that that the contravention of the Condition was not serious. Dr Sundarajah had been entrusted to continue to practise notwithstanding a history of aberrant behaviour on the provision he complied with the conditions imposed on his registration. Yet he failed to comply with the Chaperone Condition on multiple occasions. The authorities have emphasised the need for health practitioners to "scrupulously observe" any conditions imposed on their registration. In Prakash v HCCC [2006] NSWCA 153, the Court of Appeal (at [74]) approved the comments of the Medical Tribunal in Re Dr Tan Than Le (Medical Tribunal decision, 20 September 2001 at 46, [95]): Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, 'containing as it does a grave criticism of the standard of the practitioner's conduct'. We find that the instances of unsatisfactory professional conduct, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Dr Sundarajah's registration. 1. The complaint brought against him with respect to impairment was that the applicant suffered from "late onset paranoid schizophrenic illness" which does or is likely to detrimentally affect his ability to: (1) maintain appropriate standards of conduct towards professional staff and/or patients; and (2) engage with treating health practitioners and/or therapists. 1. In considering whether the applicant had an impairment the Tribunal considered two particular factual issues, namely a complaint made by a female solicitor who had represented the applicant in proceedings before the Dental Council in June 2013 and complaints made by dental staff at the Cairns practice about the conduct of the applicant. In general terms, the applicant disputed the extent of his conduct and the effect of his conduct on the solicitor and the dental staff respectively. It will be necessary for us to examine these matters in some detail later in these reasons. We shall return to the decision of the Tribunal with respect to these factual issues. For present purposes it is only necessary that we set out the findings made by the Tribunal in those proceedings, because those findings cannot be reviewed in these proceedings. 2. Firstly, the Tribunal found that the applicant had breached the chaperone condition on his registration and that that constituted professional misconduct. 3. With respect to the issue concerning whether the applicant had an impairment, the Tribunal, having considered each of the two factual issues and extensive medical evidence, which we shall also examine in some detail, made the following findings: 84 In our view, therefore, it is more likely than not that Dr Sundarajah is afflicted by a mental disorder or condition. On the evidence before us it seems more likely than not that the condition is a form of late onset paranoid schizophrenic illness. If that is too specific a finding, we remain, nevertheless, of the view that Dr Sundarajah suffers from some form of mental disorder or condition. 85 Although it is now some time since the conduct the subject of the Solicitor Complaint and the incident that triggered the first suspension of Dr Sundarajah's registration, on the evidence before us, particularly the reports and oral evidence of Dr Giuffrida, we think that it is more likely than not that the condition remains current. Of particular concern to us is the fact that while Dr Sundarajah has seemingly gone through the motions of seeking treatment from Dr Phillips, he has not been frank and open, meaning that the condition may not have been treated in any substantial way. 91 We find that Dr Sundarajah's condition detrimentally affects or is likely to detrimentally affect Dr Sundarajah's capacity to practise the profession of dentistry in the manner particularised in Complaint 3, Particular 2. 98 Dr Sundarajah's history, combined with the expert evidence of current impairment, raises concerns about his capacity to deal with female patients, staff and others, in an appropriately professional way. If dealing with patients, staff and others in an appropriate and ethical way is a core competency for a health professional, it is clear that at least for some periods in the past Dr Sundarajah lacked competence in that way The evidence before us that suggests not only that Dr Sundarajah is suffering from a late onset paranoid schizophrenic illness, that he has a very complex personality and difficulty relating appropriately to others, especially women, and that these aspects of his personality have had and continue to have a detrimental effect on his capacity to maintain appropriate standards of behaviour as a health and over practitioner. The direct consequence is that he lacks the necessary competence required of a health practitioner. 99 It may be with appropriate treatment that he will overcome his impairment, or at least manage it to a sufficient degree that he could in future be considered competent for the purposes of registration. At this time, however, our view is that he is not. 1. The second decision under review is Health Care Complaints Commission v Sundarajah (No 2) [2018] NSWCATOD 86. The Tribunal was asked to make an order under section 149C(5) of the National Law prohibiting the applicant from providing any health service unless and until he became reregistered as a health practitioner. The Tribunal noted that the power to make such an order could only be exercised if it was satisfied that the applicant posed "a substantial risk to the health of members of the public". The Tribunal's decision made on 4 June 2018 included the following finding: 20 The weight of evidence indicates that unless and until Dr Sundarajah receives appropriate treatment he is likely to pose a real and material risk to the health and safety of the public if he were to provide health services. In reaching that conclusion we note the views expressed by the experts that at this point in time he is not competent to practise as a dentist, not because of any lack of clinical skills (an issue neither they, nor the Tribunal, was asked to determine) but because of an inability to deal appropriately with staff and patients socially. This inability is unlikely to be confined to health services provided in the field of dentistry. The complaint concerning the solicitor 1. There has previously been mention of this matter, and it received attention in the first decision under review. The circumstances surrounding this complaint have, however, assumed much greater significance for the purpose of these proceedings, especially as the foundation of expert opinions of psychiatrists and a psychologist. The email chain 1. The genesis of this complaint is a letter dated 26 February 2014 forwarded to the respondent by the principal of a law firm which had previously represented the applicant on instructions from his professional indemnity insurer in a proceeding before the Dental Council of NSW. The Council conducted an enquiry on 7 June 2013. A female solicitor had attended that enquiry with the applicant in a "support" capacity. The complaint was dismissed, and the solicitor advised the applicant by email on 16 June 2013 that the file would be closed. On 18 June 2013 the applicant forwarded an email to the solicitor asking whether he could attend her office and thank her personally. She responded that there was no need for him to do so. 2. On 19 June 2013 the applicant sent another email to the solicitor saying: "Thank me personally'….you come all the way out there to help me at whimsical request, and fix it at that instantaneously. You got to be kidding. Hard as it was for you; even harder for me, because the absolute wrong signals go out inadvertently. Anyway, I did. Can look back at it and know that your kindness was never taken for granted. C'ya. The solicitor did not reply to this email. 1. On Sunday, 23 June 2013 the applicant sent a further email to the solicitor: Please excuse the bravado in my previous mail. Didn't mean to sound like a know it all. I guess I was a little dismayed from not b'able to thank you personally. Was on such a high from before; should have known better. Sorry if I gave you the wrong impression. It couldn't be further from the truth. Regards Ray PS 1. There was a specific reason. Perhaps, an opportunity will arise for me to tell you one day. 2. If you ever need support, I would be happy to do the same to you, without question. The solicitor did not reply to this email. 1. On 1 July 2014 the applicant forwarded an email to the solicitor: I don't no (sic) why I had to write this. But the main thing; is that I did Please reply honestly to me Regards Ray 1. The following letter was attached to that email: I am staring at your name wondering whether to write this from the writer to you or not. My hesitation to ask you outright if you would consider joining me for a further coffee, drink, lunch or even dinner is that I suspect you are with another. However, I am going to kick myself if I don't get this across to you, in black and white. And either put this to rest or move forward, in fathoms and leaps and bounds. Fortunately, have had an opportunity to be rested from my numerous [man-made responsibilities]; to be given an opportunity to reflect. It is such a thankful respite to take a breath, and be given a rare chance to contemplate acutely and profoundly about the events that shape person's lives. Sweetie, I know we passed and docked as ships in the night, eight years ago. You took my breath away, and broke my heart when you refused to give me your phone number. It hurt me more the following year, when I had the very rare chance of talking to you; when you called me: regarding an insignificant case. I tried to prolong the conver., but was faced with "don't worry about it". What could be done from there, than melancholy regret? [from both sides] I have deeply considered how you have siffered (sic), in the meantime. Trying against all odds to figure out what I guess you had confirmed years ago. What makes you so special, strong and unique: is that a beautiful, kind, and above all selfless darling lady like you waited and watched as things panned out to see the true outcome before you. I always wondered what gave me the courage to wage war on everything and anything in the current past. I believe you broke "the chord" or veil of a supposed reality we are all fooled into believing; [based of course on our individual circumstances] Again, I repeat: made my day and opened my mind to: 1.Alias "Susan Baker" 2.talking to me under the guise of NV. Lawyer [was so happy, after that day] 3.having the opportunity to see and meet you Face to face [As opposed to the past; which was pretty magnificent anyway] If you're happy to confirm some of what has been stated I would be happy to share further more amazing experiences, I have had of you. Would be my pleasure, and complete in either closure or beginnings. Yours Truly Raymond Sundra The solicitor did not reply to this email. The letter of complaint asserts that any references to past contact/conduct as far as they relate to the solicitor "are fictional and the writer queries whether the references are an ensnarement technique with a view to eliciting some form of response from the Solicitor if only to deny the assertions." 1. On 2 July 2013 the managing principal of the law firm sent a letter to the applicant asserting that the applicant had crossed professional boundaries, that the solicitor and the managing principal were "uncomfortable" with the approach made by him to her, and requesting that any further communication should be directed to the principal. 2. Notwithstanding this, the applicant forwarded an email to the solicitor on 14 September 2013 stating that he was sorry if he had made her feel uncomfortable, but "Just had to tell it as I saw it. Rest assured, won't hear anything more from me? Regards….". 3. On 23 September 2013 the applicant telephoned the solicitor at work. She indicated that she did not wish to speak to him. He said that he wanted to apologise, she said that he had already apologised and asked that he not contact her again. A letter was sent to the applicant by the law firm on 23 September 2013 threatening to report any further communication by him to the solicitor to NSW police, the respondent and other institutions. 4. On 1 January 2014 the applicant sent a message to the solicitor using her personal Facebook page saying that he had tried on numerous occasions to contact her and asked that she call him. The solicitor responded by asking him whether he had received the 2 letters from the law firm. Later that day the respondent, using an alias, forwarded a Facebook message to the solicitor: Dearest (name omitted), I would have been happy being in blissful ignorance! Had it not been for a turn of events. Must of got confused with a friend's sorry tale. Who met someone 26 years ago….that kept on coming into his life every 8 years thereafter. Why….. I don't know? Funny enough, he was punished for up to 2 yrs….everytime he met her. [Please note, the letter written to you was to be private and confidential; know now why u shared it.] Why did u meet me at Queen st?....why did u embrace me at 23, and feel ur spirits soar like no other. Why did u pour ur heart out under an alias to me. None of this was called for. Unless of course deep down in ur heart u felt something. Trivialising what has happened will only result in a tidal of backlash. I meet ur people every day now…..only see a sullen sadness in their eyes. Baby, I can move on as I have always done. All I want is to see u truly happy and protected every day. Something I guess every deserved woman deserves. Honey, it pains me to see u being passed around like this. I'm powerless to do anything. Was humbled by my reflections of you. That has been my only motivation to contact you. This is all I have to say. 1. Upon receipt of this email the solicitor took steps to block the applicant from having access to her personal Facebook page. Notwithstanding this, the applicant sent another Facebook message to the solicitor on 21 February 2014 using the same alias stating: I like you the best (name omitted). Sorry, can't help it! Can we meet now….. Following receipt of this message the solicitor took further steps to block the applicant's access to her Facebook page. 1. The principal's letter described the applicant's behaviour as "akin to stalking, and interference with the privacy of the solicitor and disturbing on many other levels. At no time has the solicitor invited such unwanted and disturbing contact." The letter expressed concern for the welfare of the solicitor. 2. On 28 March 2014 the applicant forwarded an email to the solicitor saying that he was trying to get in contact "despite obvious adversities" to clear up some doubts. He said that he would appreciate it if she would "mind hooking up with me merely for a short chat." On the same day he forwarded an email to the principal of the firm and another female staff member stating that he would "like to know what is going on" and that he would be coming in the following Monday. 3. On 16, 17 and 18 May 2014 the applicant, using another email address, forwarded three more emails to the solicitor. Those emails said, in date order: 16 May 2014 Look…… by now you've realised will never make a big deal of this. I can't tell you enough, how much I like you xxxoxxx All I'm asking is….yeah…or yaeh Ray 17 May 2014 My Onus to you is that: I have fallen in love with you 18 May 2014 Dear (name omitted), your family….and ur extended work-family… I acknowledge now that all of this was a comedy of errors. Didn't want to be an epicentre for peoples' lack of passion for life! If I ever get analyzed or put to stupid tests anymore….one day I will lose it and cane every male pussy-lawyer in ur firm you know my name. See below….. I meant every word 1. The principal of the law firm approached representatives of the respondent on 19 May 2014 asking that the applicant's conduct be referred to his treating medical practitioners. 2. Representatives of the respondent contacted the applicant concerning his continued endeavours to make contact with the solicitor. He explained that he wished to hear from her personally that she was no longer interested in him, and not from others representing her. He was informed that the complaint would be pursued formally and that he would be required to attend to explain his conduct. The applicant said that he would decline to do this because his "private and personal information" was not to be "shared or scrutinised." On 22 May 2014 the applicant informed representatives of the respondent that he had received contact from the solicitor confirming that she did not wish to have any further communication from him which he accepted and hoped that on this basis all investigations into the matter would be terminated. 3. On 25 May, 2014 the applicant forwarded a memorandum to the "Australian Dental Council" stating that he saw no reason why he should provide statutory declaration confirming compliance with the suspension of his registration for the period 18 February 2013 to 13 May 2014, that he understood that Dr Phillips said, after his second session with him that there was no need for him to attend for further treatment and that he had completed his ethics course in May 2013. The applicant's evidence 1. In a written statement provided for the purpose of these proceedings, the applicant acknowledged that he had communicated with the solicitor between 18 June 2013 and 21 February 2014 "in completely inappropriate ways." Significantly for our present purposes he said that: "I believed at the time that I have a personal relationship with the solicitor. I now understand that I have to act appropriately and not contact people who I have had a personal relationship with previously, if that is requested of me." The applicant went on to express regret for his conduct and its impact on the solicitor. 1. During oral evidence the applicant was taken to his assertion that he had had a prior personal relationship with the solicitor. In cross examination the applicant would only describe the relationship which dated from 2004 at first as a personal interaction, an intimate relationship. He said the relationship had occurred on the fringes of Sydney, it did not last long, there was one sexual encounter only and that he had not seen the solicitor since. When pressed for further details during cross examination the applicant at first declined to provide them. After having had an opportunity of conferring with his counsel, he said that he would provide those details and evidence but was reticent to do so. We asked him to describe the circumstances and suggested, by way of example, whether he had met the solicitor at a brothel or as part of an escort service. The applicant then said that he had met the solicitor at a brothel and had had a sexual encounter with her. He said that the encounter lasted for about half an hour, and there was little conversation. He said that that person had left no lasting impression on him and he had not fallen in love with her at that stage. It was only after he met her in circumstances where she was his solicitor that he became "quite humble" because she was a high achieving solicitor in a law firm which represented dentists. 2. The applicant confirmed that this was the first occasion on which he had told anyone that the prior personal relationship with the solicitor had been initiated as a result of a half-hour sexual encounter spent with her in a brothel, some 8 years previously. 3. In elaborating on his relationship with the solicitor, the applicant said that after the June 2013 hearing she agreed to allow him to buy her a coffee. As they were walking together to obtain the coffee the applicant said that "we were almost arm in arm – this was her way of being here to support me." He said the solicitor came up to him, "it was just a gesture for a microsecond" and that this demonstrated that she wanted to help and support him. 4. The applicant said that when he was aged in his twenties and was in a pub, a woman had walked shoulder to shoulder with him in the same way as the solicitor, and he thought it was possible that the solicitor was that same person. He had told his mother this, and he had also mentioned that to Dr Anthony Samuels, consultant psychiatrist on whom he had later attended on behalf of the respondent. 5. In cross examination the applicant said that he could not say for sure that the girl that he had met whilst in his twenties was the same person as the solicitor, but it was a possibility. However, he said he was sure that the solicitor was the same person he had met 8 years previously in the brothel, even though he had not obtained her name. He said he remembered the occasion because he had an intimate reaction "with a very attractive lady. As a male I can remember these things." 6. The applicant was taken to the letter of 1 July 2014 where he had described the solicitor as having taken "his breath away," and asked to reconcile this with his assertion that she had left no lasting impression on him in the brothel. He said she had left an impression on him after he came back from the meeting with the Dental Council and realised then that she was the prostitute. 7. The applicant then said the following year the solicitor called him, and he was defending himself with a matter and that she said that she was going to support him. This was in 2005. He did not know that she was the same person because she was "only a voice over the phone, and then in 2013 we were in contact – she had publicity about giving dental lectures with respect to law and dentistry." He said that he found her attractive and that in 2013 he realised he had met her before. 8. When taken in cross examination to the Facebook message of 1 January 2014 where the applicant had said "why did u embrace me at 23…..", the applicant said that this was a reference to meeting her in a pub when he was in his twenties. He said that maybe the use of the word "embrace" was intended as meaning a brushing of the shoulders. When referred in the same message to "Why did u pour ur heart out under an alias to me" the applicant said that that statement was incorrect, and a "throwaway line" which he had added. He said the main thrust of the message was that there had been a past interaction. Other statements by the applicant 1. In a report dated 14 February 2016 Dr Michael Giuffrida said that he had endeavoured to explore with the applicant the nature of the relationship that he had developed with the female solicitor. The applicant declined to talk about the matter because it was "personal" even though Dr Giuffrida endeavoured to point out that this was another instance of an apparent pattern of inappropriate behaviour in relation to female persons. The applicant did say however that he believed that he had met that solicitor "earlier in my life," and the Dental Council had brought them back together. The applicant then said that he could not remember when, where or how they had met in the past "but seemed quite certain that they had and that it was somehow significant that they had been brought back together in the circumstances of the Dental Council proceedings." 2. In a report dated 23 November 2016 Dr Giuffrida said that he had again endeavoured to explore with the applicant the nature of the prior personal relationship with the solicitor. At first the applicant said that this was "simply a private matter". However, after persistent questioning Dr Giuffrida said that the applicant: [S]aid that he and the lawyer in question were in fact students together at university but then as soon as he said it he withdrew it. When I persisted he said that he had met the lawyer before earlier in his life socially, but would not expand upon that. When I suggested that there was no information available from the lawyer concerned that she had previously had any previous relationship with him, he insisted that they had met socially in the past. He said that in relation to the lawyer being a "support person" at his section 150 proceedings that "I thought she was interested in me." When I pressed (the applicant) that I thought it was very unlikely that the lawyer concerned had any previous social relationship with him, he said that "I am one hundred percent convinced that I have met her before. 1. Significantly, Dr Giuffrida commented: I did wonder at this point whether this represented some form of delusional memory as part of a delusional or paranoid disorder, although when I pressed him on it he appeared to weaken in his conviction and in the end I was not satisfied that it was truly a delusional memory and may have fallen more in the realm of fantasy. In conclusion on that point I have to say that I remain inconclusive. 1. A report of members of an Impaired Registrant's Panel convened on 27 February 2015 notes that the applicant declined to discuss the nature of his prior relationship with the solicitor indicating that the details "were personal and not to be further discussed." 2. In a report dated 20 October 2020 Dr Anthony Samuels referred to the complaint concerning the solicitor. He said that the applicant had told him that he had met her in his twenties and thirties in a pub. The applicant then said "Please don't write that down…… They said it was an attempt on my part to exploit a professional relationship." 3. In the course of giving oral evidence Ms Sheridan Mason referred to what she had been told by the applicant concerning his prior relationship with the solicitor. He told her that they had known each other for a period, they liked each other and "we had something special." Ms Mason came to the understanding that they had been at university together although she could not recollect the applicant telling her that specifically. She thought that there was a single instance of a sexual relationship although they had known each other for a period. Ms Mason had never challenged the applicant concerning the fact of that relationship, only as to how serious it was. She was under the impression that there had been an emotional connection. Alleged inappropriate conduct in Cairns 1. Following his short period of employment in the Cairns surgery a number of complaints were made concerning the applicant's conduct, apart from concerns about non-compliance with the chaperone condition. On 21 April 2015 the proprietor of the surgery forwarded an email to a representative of the respondent in the following terms I have received numerous complaints from all 3 of my staff members in the … surgery, who are all females, regarding inappropriate remarks said by Dr Sundarajah. I subsequently asked Dr Sundarajah to leave my employment, as my staff members are ready to resign should he stay on. It's unfortunate, but quite frankly I don't see that rehabilitation is possible, and I won't ever be giving another dentist in this kind of situation a second chance. I'm truly disappointed. If you deem it necessary and my staff are willing I can get statements regarding these inappropriate remarks made by Dr Sundarajah. 1. In an email forwarded 11 May 2015 the proprietor elaborated on the complaints he received from his staff, which were to the following effect He offered to give my female dentist neck rubs/massages (She is married). He told my staff (all females) that he knows exactly how to please a woman, as he has had numerous girlfriends. He also invited one of my DAs to go and fly with him in his plane (I was unaware that he had a plane). He was also flirting with female patients, and was told by the DA that he has to leave the room when there is a female patient, and she is not in the room, upon which he told her that he checked with me and he is allowed to stay, this was at no stage approved by me, and never even mentioned when I spoke to him. 1. A written statement made by a dental assistant employed in the Cairns practice was to the effect that she had been designated to perform the duties of chaperone. She confirmed that the applicant had not complied with the chaperone conditions in a manner which it is not currently necessary to describe. However, in her statement she said, inter alia Sometimes (the applicant) would be a bit flirty with female patients in his demeanour. He would stare at them and often I could see him looking down their tops if they were low-cut or revealing. I recall he made a comment about a patient being beautiful on one occasion. (The applicant) would also not move aside if I needed to get past him; forcing me to brush against him. (The applicant) made comments to the other dentist who worked at the practice (name withheld). I recall on one occasion (the other dentist) was complaining of a headache and I heard (the applicant) say to her, words to the effect "let me massage your neck, I'll get rid of it for you." One time when I came back to the practice after a break, (the other dentist) said to me, words to the effect "I can't believe this guy, just said to me he knows which buttons to push on a woman to drive them crazy", referring to (the applicant). I took this comment, from the context of my conversation about it with (the other dentist) to have a sexual connotation. 1. We note that the applicant both in written statements and in his oral evidence vehemently denied these allegations. Although he denied acting inappropriately, he said that because conditions had been imposed on his registration "I have to be particularly aware of my behaviour and boundaries. I always will have to do so, as a dentist, regardless." Breach of condition of registration to continue psychiatric treatment 1. We have previously referred to a requirement imposed on his registration that the applicant continue to undertake treatment with a psychiatrist. At the time the applicant was under the care of Dr Phillips. He ceased seeing Dr Phillips on the basis that he was waiting for Dr Phillips to arrange the next appointment and thought that it was the doctor's responsibility to do so. In evidence before the Tribunal Dr Phillips said that he ceased treating the applicant because the applicant had failed to make any more appointments to see him. In evidence before us the applicant at first said that Dr Phillips was obliged to make the appointments and that Dr Phillips should have contacted him. When questioned about this he said that both he and Dr Phillips had a "shared responsibility" to make appointments. When further pressed the applicant conceded that he had breached the practice condition, but importantly for our purposes he characterised it as a "technical breach only". The evidence of Sheridan Mason psychologist 1. Ms Mason is a clinical psychologist who commenced treating the applicant in 2016. In a report dated 8 November 2016 Ms Mason said that the applicant was "showing some good progress" in dealing with his capabilities to perform as a dentist following the suspension of his registration. She noted that he was reluctant to talk of the details of the claims which have been brought against him and that he was of the view that some people were "out to get me". Ms Mason's treatment involved cognitive behaviour therapy and distress tolerance strategies. She noted also a sense of paranoia. It is evident from the report that Ms Mason was concentrating on establishing awareness of professional boundaries. 2. In a report dated 20 November 2019 Ms Mason said that as at that date the applicant had attended on her monthly on 26 occasions. She noted that Dr Phillips had diagnosed the applicant as suffering from a psychiatric disorder, namely paranoid schizophrenia. Upon becoming aware of this she referred the applicant back to his general practitioner to seek referral to another psychiatrist. It was under the circumstances that the applicant came to be treated by Dr Smith. 3. Ms Mason said that the applicant was not suffering from any diagnosable psychiatric condition. At that stage he was suffering from some stress and anxiety principally caused by his continuing involvement in proceedings with the Dental Council, which did not reflect any abnormality. She thought that he then possessed appropriate insight into the complaints brought against him and his behaviour and that he had the capacity not to engage in that type of conduct in the future. 4. Ms Mason gave oral evidence. With respect to the differential versions which had been given concerning Patient A, Ms Mason said the applicant demonstrated good insight, but this was dependent upon which of the competing versions was correct. In his evidence before us the applicant continued to maintain that his version of the events was the correct one, albeit the Tribunal had found that it preferred the version of events as related by the patient. 5. We have previously set out the evidence which Ms Mason gave concerning what she had been told by the applicant about his prior relationship with the solicitor. She had never thought that the relationship was fictional. In cross examination Ms Mason said that if that relationship was fictional in the sense that it was markedly different from that which was described and therefore arguably delusional it was possible that the applicant might have an impairment. She was unable to state this conclusively because on the information made available to her this was a one-off situation. When taken to the email chain Ms Mason said that their content gave her cause for concern and suggested that the applicant was delusional and saw an intense connection with the solicitor which did not exist, and which he had pursued for almost 12 months. Ms Mason noted that the applicant persisted in pursuing the solicitor because he wished to hear directly from her rather than from her employer. 6. Ms Mason was referred to an indication in her report that the applicant had been expressing concerns of paranoia. He had expressed a belief to her that he was being monitored by people, that he was seen not to be good enough and that he thought people were disregarding him and looking down on him. Ms Mason was not sure if this was a genuine paranoia in the sense that he was paranoid. Ms Mason was taken to notations by Dr Phillips of conversations with the applicant. On 30 May 2013 Dr Phillips noted: He appears to have a complex paranoid system involving his ex-wife. He holds that she had many affairs with persons known to him, including dental colleagues. He believes also that he has been under surveillance for years with this orchestrated by his ex-wife. And on 26 June 2013 Dr Phillips had noted: A strange man. Has an apparent complex delusional symptom where he believes his ex-wife has caused other people to treat him and his children in an abnormal manner. He notes that women of all ages give him wide eyed and knowing looks, and that men make sexual movements directed at his children and touch the children. In truth he has no contact with his children currently. They live in Melbourne with their mother. He is not working and spends much of the day watching TV. He is not unhappy about the situation. 1. Ms Mason was also taken to reasons for decision of an Impaired Registrant's Panel dated 27 February 2015. The Panel had said, in part: He recounted that while he was being investigated by the health fund HCF, his practice was visited in 2009 by a man who identified himself as a police inspector, and who asked him about the surveillance camera he had put outside his practice. He told the officer it was an "anti-graffiti device" and was not operational. He also recounted an incident where 2 men in suits pulled up beside him while he was outside his residence, in their car and were looking at him. He also said that a barrister had advised him that the police were following him. Eventually he described the experience was unsettling and stressful especially as he couldn't understand why this was happening and he stated he felt "stalked". 1. Ms Mason said that the applicant had never raised matters of this kind with her and they reflected on the applicant as being of a paranoid type. She said that statements of this kind would have been relevant and that those matters would indicate that the applicant had delusions and some form of psychiatric condition. 2. When asked about the applicant's self-control, awareness of his behaviour and his greater insight Ms Mason said that the applicant gives her "the right answers. Academically he knows about these matters." However, she said she had concerns that he had unprofessional thoughts. She did not think that he was a harm to the public, but he may have inappropriate thoughts when in close contact with a patient in a dental chair. She said that she would be hopeful that the applicant would not be a threat to the public but was unable to say 100% that he was not. 3. In re-examination Ms Mason said that a practising condition requiring the use of a chaperone and supervision would make her comfortable that the applicant did not pose a threat to the public. Furthermore, upon noting that some of this paranoid behaviour occurred 7 years ago this would indicate that the applicant does not have a paranoid disorder. She thought it not unusual for a person to have paranoid thoughts when under stress. The evidence of Drs Phillips and Giuffrida 1. We have available to us numerous reports from both the specialists. Neither was called to give evidence in these proceedings. Both gave evidence concurrently before the Tribunal in connection with the decisions under review. That evidence is relevant to our consideration of these proceedings, and we set out a portion of their oral evidence given before the Tribunal as extracted from the first decision: 67 At the hearing on 23 March 2017, Drs Giuffrida and Phillips gave concurrent evidence. By the time they came to give that evidence both doctors had been provided with additional material, including material relating to Dr Sundarajah 's employment in Queensland (the subject of Complaint 1) and the Solicitor Complaint and the subsequent disciplinary proceedings. Before giving oral evidence Dr Phillips had no knowledge of the Solicitor Complaint. In Dr Giuffrida's case he had also had the benefit of reading Dr Phillips's clinical notes and, of course, both experts had had an opportunity before giving oral evidence of meeting to discuss the case. In the course of that evidence, they were asked by the Tribunal whether they were able to provide a specific diagnosis. 68 With the additional evidence that he had before him at the hearing, Dr Giuffrida concluded he was now able to offer a diagnosis: [S]adly and unfortunately, [Dr Sundarajah is] a man who has developed what I think is a persisting and unfortunately deteriorating psychotic illness and I think to best fit it into a DSM-5 category. I think probably this is a paranoid schizophrenic illness. 69 Dr Phillips was then asked to comment on that opinion. He said: I will have to comment in a sort of series of steps. I have always thought from the beginning that Dr Sundarajah has some oddities in his personality and I choose the word fairly carefully, they're hard to define but they're unusual features in terms of personal space the way he relates. And sometimes a lack of focus on what is immediately under consideration. There were the two consultations in a much larger series of consultations where Dr Sundarajah had given me material which I thought may have been of a psychotic type but I was not drawn to make a diagnosis of psychosis in that on all other occasions there was nothing of that material that he raised or that I was able to find in the course of our interaction. So I have not made at any stage a diagnosis of a formal psychiatric disorder. On the other hand, I have always felt and continue to feel that there are personality oddities which don't fit into the usual classification of a personality disorder but the Tribunal needs to be aware of them. The situation changed I have to say at 10.45 this morning when I was asked, as was Dr Giuffrida, to look at a particular group of documents and I was quite alarmed by the material in [the Solicitor complaint] documents, in particular what appeared to be a doctor's inability to know that the woman in question, a lawyer within the ..., did not have any wish for contact with him and yet he persisted to make contact with her in various ways and that some of the communications to her were quite hard to follow. There was what I would call a loosening of thought associations in the documents, not semi-formal or thought disorder but a loosening of associations and I became alarmed because of two features mainly, what appeared to be, if I read the material correctly, an inability of the doctor to understand that this particular woman wished no contact with him but also by the structure of the written material. Now, I appreciate that email is a strange method of communication and the English language falls apart often when people send emails and that may help to explain the situation but I stand by my view that this was sufficiently unusual, sufficiently odd and sufficiently hard to follow to alert me to the possibility of some loosening of thought processes. So, where do I stand at this point? I well understand Dr Giuffrida's consideration of the diagnosis of paranoid schizophrenia and indeed there is no option but to put it forward as a hypothesis. I can't prove it. I am more of the view that the doctor has an unusual and odd personality and much of his behaviour will be explained on the basis of that but certainly the issue of a longer standing categorical psychiatric illness within the schizophrenia or the paranoid spectrum has to be put forward for discussion. There would be no option but to put it forward. (Transcript of proceedings, Health Care Complaints Commission v Sundarajah , NCAT, PM Britton, T Boland, , J Ironside, C Berglund, pp12,13) 70 Dr Phillips stated that in light of the new material he would strongly urge Dr Sundarajah to commence a trial of anti-psychotic medication and continue with non-pharmaceutical treatment. Dr Giuffrida concurred with that opinion. 71 When asked about Dr Sundarajah 's ability to practise safely without trialling anti-psychotic medication, Dr Phillips responded that on the information now available, principally that relating to the Solicitor complaints he had doubts. Dr Giuffrida agreed: I think that there would be major impediments to his capacity to practise safely. I'm not talking in a technical sense, I'm talking in terms of the necessary interrelational aspects of dentistry and dealing with - working with and dealing with staff and patients socially, appropriately. (Transcript of proceedings, Health Care Complaints Commission v Sundarajah , NCAT, PM Britton, T Boland, J Ironside, C Berglund, p 19) 72 Dr Phillips agreed: Yes, I think probably Dr Giuffrida and I share a similar view here, that we're – I have no reason to doubt Dr Sundarajah 's skills as a dental practitioner but it's the subtle – to pick up your word "interactional aspects" of being a health practitioner which are of concern to me and heightened substantially by the [the Solicitor complaint] material. 73 In answer to a question about Dr Sundarajah 's ability to practise safely if appropriate conditions were imposed, Dr Philips answered: First thing this morning, I would have said, yes, it's probable that there's conditions and quite stringent conditions, that could be the case but I reiterate that I had a change of heart in the course of the morning and I think at this point I would recommend that Dr Sundarajah undertake a course of antipsychotic medication and that this matter be addressed at a more appropriate time when he is sufficiently – he's been on medication for a sufficient period to make a judgment about whether it is working or not. (Transcript of proceedings, Health Care Complaints Commission v Sundarajah , NCAT, PM Britton, T Boland, J Ironside, C Berglund, p 22) 74 Although Dr Phillips was reluctant to state that Dr Sundarajah suffered from a recognised psychiatric condition, he conceded that he may have suffered a mental impairment (at least at the time of the conduct the subject of the Solicitor Complaint). Dr Phillips was not aware of that information until the day of the hearing and as a result of reading it he was troubled, as the extract from the transcript above indicates. In answer to a question from counsel for the Commission, Dr Phillips discussed the question of whether a condition or impairment detrimentally affects a person's capacity to practise. Dr Phillips said: Well, if a person is unable to understand, to interpret, to read the views of another person which was the case with the [female] solicitor, then that would suggest strongly that the person at that time lacked the capacity to practise safely because of an impairment and I am using the word "impairment" not particularly comfortably but it's there in the National Law. (Transcript of proceedings, Health Care Complaints Commission v Sundarajah , NCAT, PM Britton, T Boland, J Ironside, C Berglund, p 14) 75 While Dr Phillips came at the hearing to a view that at the time of the incident involving the female solicitor, Dr Sundarajah had been impaired and could not practise safely, he was not prepared to extrapolate from that incident that Dr Sundarajah currently suffered from that same impairment. He said that his last contact with Dr Sundarajah had not suggested that he did. Response to Dr Phillips' revised opinion 76 As it was not until the experts gave oral evidence that Dr Sundarajah became aware of Dr Giuffrida's diagnosis of a schizophrenic illness and that Dr Phillips no longer stood by the opinion expressed in his report of 15 February 2017, we decided with the Commission's consent, to give Dr Sundarajah the opportunity to obtain further medical evidence. 77 In answer to that invitation, Dr Sundarajah provided lengthy written submissions critical of the Dr Giuffrida's opinion. He did not provide any additional medical evidence. There was a significant period between the hearing and the receipt of final submissions because of the delay in obtaining transcript of the oral evidence given by Drs Giuffrida and Phillips. The evidence of Dr Selwyn Smith psychiatrist 1. The applicant was first referred to Dr Smith a practising psychiatrist by his general practitioner on 4 June 2018. Dr Smith provided a report to the applicant solicitor dated 15 August 2018, by which time the applicant had had 3 consultations with him. Dr Smith also had available to him the two Tribunal decisions under review and "a detailed dossier related to the documentation provided to the expert reviewer." 2. Dr Smith said that the focus of those consultations: [H]as surrounded my need to explore the basis for the psychiatric diagnoses that have been made by Dr Giuffrida, consultant psychiatrist, and Dr Jonathan Phillips. In addition, I have been exploring with Dr Sundarajah his responses to the complaints made against him and, from a psychological point of view, his capacity to practice as a dentist. We note that Dr Smith said that he had not instituted any formal psychiatric treatment with the applicant. He said that he had "provided him with a forum in which the relevant issues before the Civil and Administrative Tribunal have been explored." We observe also that in a later report dated 20 February 2020 Dr Smith said that he had not undertaken any psychological testing to determine if the diagnosis of late onset paranoid schizophrenic illness which had been adverted to by Dr Giuffrida was correct. It follows that Dr Smith has not explored by way of "psychological testing" whether the applicant suffers from late onset paranoid schizophrenic illness. Presumably, because he could not detect any basis for making such a diagnosis this was the reason he did not engage in any formal psychiatric treatment. The consultations, on this basis, appear to have been confined to conversations with the applicant concerning the matters referred to above. However, because of the manner in which Dr Smith's opinion evolved while giving oral evidence, it is not necessary that we pursue this particular matter further. 1. Dr Smith proceeded in this initial report to deny that the applicant has demonstrated any diagnostic criteria for any formal psychiatric disorder. Dr Smith said that any "symptomatology is of a psychological kind" which the applicant was experiencing were "but normal variants in response to his current circumstances and his frustrations in not being able to reengage in his work as a dentist." He thought that the applicant had "good insight into his current situation" although he noted the applicant particularly disagreed with the opinions of Drs Giuffrida and Phillips, and as a result declined to engage in any psychiatric treatment including a trial on antipsychotic medication. 2. Dr Smith proceeded to describe the symptoms that would usually accompany a diagnosis of late onset paranoid schizophrenic illness which did, or was likely to detrimentally affect the applicant's ability to maintain appropriate standards of conduct towards professional staff and/or patients and engage with treating health practitioners and/or therapists. Significantly, for our purposes, Dr Smith listed the following diagnostic criteria to establish such a condition which we have extracted verbatim from his report: 1. the patient is demonstrating predominantly positive symptoms of schizophrenia including delusions or false beliefs and hallucinations. Such debilitating symptoms result in a patient experiencing a blurring of what is real and what is not, making it difficult for the person to lead a typical life. Usual early onset symptoms include an inability to socialise or socialise less often with friends. 2. A suspiciousness and a general fear of others' intentions and persistent, unusual thoughts or beliefs are found. The patient also demonstrates difficulty thinking clearly. He withdraws from family or friends….. 3. ……..delusions that is to say firmly held beliefs that persist despite evidence to the contrary and hallucinations that is to say the individual scenes or is things that others do not 4. ……odd or atypical behaviour that results from delusions and hallucinations. For example, an individual with schizophrenia may be convinced that the government is surveilling them in an attempt to harm them in some way. 1. Dr Smith said that the usual treatment for schizophrenia once diagnosed is to administer antipsychotic medication. 2. Dr Smith said that he had no notation from his "examination" of the applicant of any of the symptoms that are required to diagnose schizophrenia of any kind. Dr Smith did refer to interactions between the applicant and "females in his practice". He said that the applicant was "quite frank" with respect to these matters and would consent to the imposition of a chaperone condition if he were permitted to practise dentistry again. 3. Overall, Dr Smith could detect no clinical evidence of a psychiatric disorder which would intrude into the applicant's competency to practise dentistry and that he could do so "either unrestricted or with conditions that may be imposed….." 4. Dr Smith provided a second report on 29 October 2019 in response to a request from the applicant solicitors. As at that date the applicant continued to see him monthly, and he had received a number of reports from Ms Mason. Dr Smith was asked to make specific comment concerning a number of matters which had been dealt with in the Tribunal decisions under review. In summary, Dr Smith said that the applicant had developed "significant insight into issues related to boundaries and professional relationships, together with an excellent understanding of the importance of establishing and maintaining those boundaries code of ethics which applied to dentistry. He thought that the applicant had developed good insight into the importance of "reality checks" when determining whether professional boundaries might become blurred or overstepped and the necessity to avoid any work situations that may lead to boundary violations. He thought that the applicant had expressed "true remorse" with respect to his behaviour. 5. Dr Smith maintained the opinions previously expressed in his most recent report of 20 February 2020. 6. In his oral evidence Dr Smith said that he had been provided with a copy of the report of Dr Samuels dated 20 October 2020. He disagreed with the opinion of Dr Samuels because in his opinion there was no clinical evidence to justify a diagnosis of a formal psychiatric disorder or personality disorder. He noted that the applicant had not appeared to have encountered any difficulties in his current employment which was outside that of dentistry and there was no evidence of any relevant aberrant behaviour. 7. In cross examination Dr Smith was taken to the different versions of events between those given by Patient A and the applicant. He was asked whether the fact that the applicant continued to maintain that his version of what occurred was correct was significant in terms of his insight into his behaviour. Dr Smith said that he had not explored this with the applicant because the applicant had accepted that he had behaved badly. He said that he thought that the applicant had insight but not necessarily about everything that he had done. He acknowledged that there was a qualitative difference between consensual and non-consensual sexual acts, but there was a possibility that the applicant's recollection may be faulty in that he was not deliberately lying. 8. Dr Smith was taken in cross examination to the evidence concerning the applicant's prior relationship with the solicitor. Dr Smith said that he disbelieved the delusional reference which Dr Giuffrida had made about this relationship. Dr Smith was asked to assume that the prior relationship was fictional. At first Dr Smith expressed disbelief that the applicant had been in error when stating that he had had a prior relationship with the solicitor and suggested that the female solicitor should be asked to give evidence about this. However, when pressed to assume that the prior relationship was fictional, Dr Smith said that on this basis this would affect his opinion about the applicant's condition and he would need to reconsider it. He said that this would fundamentally change the basis of his opinion and he would then need to consider whether the applicant was delusional. He had assumed that this prior relationship was consensual, that it had occurred outside the applicant's dental practice, and at that stage the female person involved was acting as the applicant's solicitor. 9. When taken to the email chain initiated by the applicant, Dr Smith said that this would also cause him to modify his opinion about the applicant. He said that he would like the opportunity to question the applicant about this, and, on this basis, we understand Dr Smith to have expressed in his evidence a reservation concerning the opinions which he had previously expressed, dependent significantly on whether the applicant's understanding of his prior relationship with the solicitor had been delusional. 10. In further evidence Dr Smith said that he was unable to predict with any certainty that the applicant would not again engaged in undue aberrant behaviour, but thought it unlikely given the time which has elapsed since that behaviour occurred, there being no evidence of any further relationships between the applicant and his current work colleagues. In this regard he noted that the applicant was "terrified" of engaging in any further sexual relationships and that he preferred returning to dentistry than so doing. The evidence of Dr Anthony Samuels a consultant psychiatrist 1. Dr Samuels examined the applicant on 15 October 2020 at the request of the respondent. He had been provided with reports from doctors Giuffrida and Phillips, Ms Mason and Dr Smith as well as the decisions under review and the decision of the Dental Tribunal dated 18 February 2013. Dr Samuels' detailed report is dated 20 October 2020. 2. After reviewing all of the above material Dr Samuels set out in some detail the information that was given to him by the applicant during the course of the consultation. We shall refer to so much of that information as is relevant to our determination of these proceedings. 3. With respect to the prior relationship with the solicitor, the applicant informed Dr Samuels that when dealing with her in relation to a complaint he recognised her face and wanted to pursue this with her but was dissuaded by a male colleague. He told Dr Samuels that after he had recognised her face …..after an innocent reminiscence I was advised by her male counterpart not to. I continued to try to invigorate a social connection but they didn't like it and put in a complaint to the Dental Council…….. I argued that it was a personal issue, they argued I was advised to observe professional boundaries, it was not a social experience and I displayed poor judgement and unethical behaviour. 1. In further elaboration the applicant told Dr Samuels that he had met the solicitor in his twenties and thirties in a pub. He then said to Dr Samuels "Please don't write that down….. They said it was an attempt on my part to exploit a professional relationship". 2. Dr Samuels asked the applicant what led him to keep "harassing" the solicitor. In his report Dr Samuels said: He took offence at this and said "that's a harsh word." I pointed out to Mr Sundarajah that unwanted contact was by definition "harassment." His explanation was that they blocked him from having contact with her, implied that it was not her choice, and he said, "that motivated me to keep doing it". I asked if she, the solicitor, acknowledged she knew him. Mr Sundarajah said, "The law firm said it was fictional but it never came to a debate". He said, "I'm not the sort of person I would try to reach out if I had known her from before." He said, "there was no kind verification of what she was feeling at the time but I am really sorry. The Dental Council looked at it as exploiting a social relationship". 1. When Dr Samuels again explored with the applicant why he felt it was important to make contact with the solicitor the applicant said: To be honest I was just blown away that I met her before. That's why I reached out to her at the time, she was being blocked from me. 1. When asked whether he wanted a relationship with the solicitor the applicant responded: I just wanted to make contact, I was blocked and I felt it wasn't she blocking me, it was someone else. 1. When discussing the breach of the chaperone condition whilst practising in Cairns, the applicant told Dr Samuels that he did not breach the condition and he strongly denied inappropriate behaviour with staff in the practice. He informed Dr Samuels that all of the issues were "thrown out" by the Ombudsman (a reference to the Queensland Ombudsman). 2. When discussing the applicant's mental status during the course of the examination Dr Samuels noted that he appeared to be grimacing and screwing up his eyes. He said: I did think at times Mr Sundarajah was quite thought disordered and some of his comments were quite difficult to follow, as evidenced by some of the material I have quoted in the body of this report. At times his language was quite stilted. 1. Dr Samuels referred the applicant to his comment to Dr Giuffrida that he was being monitored. The applicant responded that that was an "off-the-cuff" remark, and that his feelings were normal because he had had a lot of investigations. 2. Significantly, Dr Samuels expressed concern that the applicant still believed that he had had a prior relationship with the female solicitor and that "this certainly suggests that he has, at the very least, overvalued ideas if not delusional ideas in this regard…." 3. Overall, Dr Samuels said that he reached the same conclusion as Drs Phillips and Giuffrida that it was "really difficult" to be diagnostically clear in regard to the applicant's psychiatric perspective. He said He certainly is an unusual man who appears to have some difficulties in relation to social interactions and social boundaries…. I did think at times Mr Sundarajah was quite thought disordered and some of his comments were quite difficult to follow. Facial grimacing is a well described feature of schizophrenia. Given that Mr Sundarajah still has a firmly held view that he had some previous relationship with the solicitor and his explanations for wanting to make contact with her, and the fact that he persisted in making contact with her because he felt other people were "blocking" this contact, the emails written at the time and the fact that he is mildly thought disordered, leads me to concur with Dr Giuffrida that there is a possibility that Mr Sundarajah has some atypical form of psychotic illness with paranoid features" 1. Dr Samuels had been asked to comment about whether he thought the applicant was impaired and whether the impairment was likely to detrimentally affect his physical/mental capacity to practise dentistry. He responded in the affirmative having regard to the applicant's "effect, thinking, manner, communication and boundary issues" which deficits he said were likely to impact upon his relationships with peers, colleagues and patients. Dr Samuels expanded on this by saying of the applicant that: If he were to communicate with colleagues and patients in the way in which he communicated at time with me today, it is likely that they would be quite confused and find him hard to follow. His mannerisms certainly are slightly odd. I am left with the sense that Mr Sundarajah does not totally appreciate and understand social norms and boundaries. The fact that he still has overvalued ideas in regard to the female solicitor suggests that he has the capacity for developing unusual thoughts or beliefs about patients or the colleagues he works with. Mr Sundarajah seems to have at least an intellectual understanding of the inappropriateness of his sexual encounters with the patient and I would be hopeful that he would not repeat this. He also seems to have made a decision to generally stay away from relationships because he does not feel ready for them. However given Mr Sundarajah's personality style and possible underlying psychotic illness, I think there is ongoing potential for problematic interactions with peers, colleagues, employees and most importantly patients. If he did return to dental practice without very close support, supervision, mentoring and oversight, I think there would be a high likelihood of further complaints or concerns being raised to professional bodies 1. In the course of oral evidence Dr Samuels was taken to the differential versions given by Patient A and the applicant as to what occurred on that occasion. When informed that the applicant continued to maintain that his version of what occurred was correct in the face of the Tribunal findings to the contrary, Dr Samuels said that this was indicative that the applicant had not accepted what had occurred. On this basis he thought that the risk of recidivism was higher than set out in his report. This was particularly so as the coercive version given by the patient was much more serious than the consensual version given by the applicant. 2. Dr Samuels was next taken to the differing statements given by the applicant concerning the nature of his prior relationship with the solicitor. He was informed that the applicant had given evidence that he had met her in a brothel or escort service once only, and never since, that Ms Mason understood that he had met her at university and they had known each other for a number of months, and that Dr Smith had assumed that the applicant had known her previously because she had represented him and they had had a sexual relationship. Dr Samuels said that the applicant was suggestible, and struggled to give the right answer to any question. He thought that this had a manic type delusional basis, which was often associated with relationships without any clear reason. Indeed, Dr Samuels said that if we had proffered to the applicant a possible version that he had met the solicitor as part of MI6, he would have agreed with this. He thought that if the applicant had delusional feelings this would increase the risk of aberrant behaviour in the future. 3. In cross examination Dr Samuels clarified his opinion by saying that he thought that there was a low risk of the applicant having another sexual encounter with a patient. However, when asked about the applicant's feelings towards the former solicitor Dr Samuels said that the applicant still feels a need to justify the relationship and that this indicated a delusional belief. 4. Dr Samuels disagreed with the opinion of Dr Smith albeit that he was the current treating specialist. He said that Dr Smith had made no comment with respect to the applicant's personality structure. As a forensic psychiatrist Dr Samuels thought that he had had more experience with identifying subtle psychiatric symptoms than Dr Smith. In addition, he thought that Dr Smith's sessions with the applicant were more structured and the applicant would be more relaxed in a therapeutic and less stressful environment. This was to be contrasted with the unstructured environment used by Dr Samuels where the applicant was more likely to exhibit paranoid tendencies because he was under stress. This stress replicated the circumstances which the applicant was likely to encounter in practice. 5. When asked whether a chaperone condition would alleviate Dr Samuel's concerns he responded that this would be confined to sexual boundaries. It would not prevent colleagues finding the applicant difficult to work with particularly if he suffered from delusions and disordered thought processes which could impact on his practice. He thought the applicant could have difficulty with communications and in interpreting and responding to patients. 6. Dr Samuels thought that the applicant had gained intellectual insight, "but in a long-winded manner." He said the applicant has a stereotyped intellectual insight and says the right thing, but one cannot be sure how he will act in a given situation. The more general evidence of the applicant 1. The applicant relied on an affidavit filed in the proceedings and in addition gave oral evidence, including evidence by way of cross examination. We have previously referred to the evidence of the applicant in terms of the discrete issues concerning the complaint relating to the solicitor and what occurred whilst he was working in the Cairns practice. For present purposes we set out a summary of the remainder of the applicant's evidence which is relevant to the determination of these proceedings. 2. The applicant referred to the sexual relationship with Patient A. He said that he was "deeply ashamed and remorseful" for what happened and was "truly very sorry and I wish I had not acted in the way I did." He said that he had an understanding of the professional boundaries which applied and recognised that there was a power imbalance and question of trust when a patient dealt with a dental practitioner. He also acknowledged that she was vulnerable and expressed regret for the impact of his conduct on the patient. 3. The applicant acknowledged the breach of the chaperone conditions. Although he considered the breach is to be "technical in circumstances where I did not want to leave the clients alone" he said that he now recognised that it was most important to comply with the conditions. 4. The applicant referred to the details of his current stable employment outside the practice of dentistry and said that he was: "in a better place personally now, I also have the skills and knowledge that, should I go through difficult and compromise circumstances again, I can stop these from impacting my professional practice and uphold my ethical standards." 1. The applicant said that he had completed ethics courses and workshops in 2012 and 2013, and continues to acquire ethical knowledge. 2. The applicant has provided us with a list of CPD and self-study courses undertaken by him between the period June 2015 to February 2017. Other complaints 1. Section 163C(3) of the National Law compels us to take into account all other complaints made against the applicant of the kind described in that subsection. There is evidence of complaints having been made with respect to the applicant concerning alleged faulty crowns in 2004 and a faulty bridge in 2010. The parties submitted that these complaints were not relevant to our determination of these proceedings, and we agree. Conclusion with respect to the applicant's relationship with the solicitor 1. Our summary of the expert evidence available to us in these proceedings dictates that much will hinge on our conclusions with respect to a number of matters. The most significant of those relate to the applicant's prior relationship with the female solicitor, and his subsequent communications with her and her employer. We shall deal with each of these matters in turn. 2. There is clear evidence that the applicant has given a number of different versions about the nature and extent of his relationship with this solicitor. He had informed both Ms Mason and Dr Giuffrida that there was a relationship extending over a period, probably of a short duration which involved, seemingly, a sexual encounter. He informed Dr Samuels that he had met her when he was in his twenties and again in his thirties in a pub. 3. We have already set out the circumstances under which the applicant gave oral evidence before us concerning this relationship. He was most reluctant to answer questions in cross examination about it. It was only when he was pressed by the presiding member to describe how the relationship was initiated and a suggestion was made by way of example as to whether it emanated from an encounter in a brothel or by way of an escort service that the applicant volunteered that it occurred once only in a brothel the location of which he could only describe as being on the fringes of Sydney. The encounter had lasted for about half an hour, there had been little conversation and the prostitute had not left any lasting impression upon him. He denied that he had any personal feelings for her. 4. Whatever the circumstances the applicant informed us that he recognised the female solicitor who was assisting him some 8 years later as being the prostitute that he had encountered in the brothel. Furthermore, the applicant then gave evidence that he had met the same female person earlier when she had called him unsolicited in her capacity as a solicitor to assist in a matter in which he was then involved. He said that he had recognised her from her voice. The applicant proffered no explanation as to how this person would have known to make telephone contact with him coincidentally at a time when he was encountering some difficulties concerning his professional conduct. 5. All of this has to be contrasted with versions that the applicant has given of having met this person in his twenties and thirties in a pub, a version which he also repeated in evidence before us, without any relevant detail. And then there is the version of having recognised the female solicitor because of the way in which their shoulders had rubbed together when getting coffee, which reminded him of an earlier encounter with another female with whom he had rubbed shoulders in the same manner. 6. The state of this evidence and the recall of the applicant leaves us in considerable doubt whether the applicant did indeed have some form of prior encounter with the female solicitor who represented him in 2013. We are not satisfied that the applicant has demonstrated that there was such a relationship that could form the basis of the assertions made by him in the course of his email and other communications with the solicitor and her employer which we now come to consider. The communications between the applicant, the solicitor and her employer 1. We have previously set out these communications in detail. The email of 19 June 2013 contains most unusual language. The email seems to assert that it was difficult for the applicant to have the solicitor representing him, referring to inadvertent "absolute wrong signals." There is simply no corroborating evidence which would indicate that in any way there was any prior communication between the applicant and the solicitor when she represented him in June 2013 concerning any prior encounter, whether in a pub or a brothel or otherwise. The email communication itself makes no such reference, and the applicant did not give any evidence about any concurrent conversation about any prior encounter. Another example of the obscure language used is the reference to "your kindness" and whether this was intended to refer to her representation of him or something else. 2. The references in the 23 June 2013 email to having been on "such a high from before; should have known better" are equally obscure. Perhaps the reference to "before" is a reference to the sexual encounter. In the same vein, the references to "a specific reason" and "if you ever need support" are also obscure, again not accompanied by any evidence of any concurrent communication. 3. The letter attached to the email of 1 July 2013 is long, rambling and contains language replete with vague references to indeterminate incidents. Presumably, a reference to what occurred 8 years previously is a reference to a sexual encounter. A reference to the solicitor having taken his breath away and broken his heart is not consistent with what the applicant told us occurred during the half-hour engagement at the brothel. If the applicant is referring to some other encounter, then there is no concurrent evidence about what it was. The reference to the solicitor having broken "the chord" or veil is obscure, as is the letter in its totality. We agree with the summations of Drs Giuffrida and Samuels that this communication, as with all of these communications in the aggregate is indicative of a disordered thought process and seems to refer to some surreal situation. We can well understand that all of the psychiatrists and Ms Mason would have seen an element of delusion and unreality in these communications, typified by this letter. 4. Notwithstanding receipt of the letter from the managing partner on 2 July 2013 and an indication that the solicitor was uncomfortable with the applicant's continued communications, the applicant persisted in forwarding an email to her on 14 September, 2013 and telephoning her on 23 September, 2013. 5. If the applicant was in any doubt that his continued attempts to contact the solicitor were resented, the letter from the principal of the law firm on 23 September 2013 would have clarified the situation for him. Notwithstanding this the applicant persisted with two Facebook messages. The content of the lengthy message that day, which we have set out above, contains language which can only be described as bizarre. All of this was compounded by the further communications from the applicant which seems indicative of an obsessive need on his part. 6. Of particular concern is the applicant's email of 18 May 2014 which contained what can only be seen as a threat "……one day I will lose it and cane every male pussy-lawyer in ur firm. You know my name. See below….. I meant every word." 7. We agree with the observations of Dr Giuffrida concerning this area of the applicant's conduct. Dr Giuffrida thought that the applicant either had some form of delusional memory as part of a delusional or paranoid disorder or had been engaged in some form of fantasy. 8. We also agree with the observations of Dr Samuels that this conduct of the applicant demonstrates that he "was quite thought disordered and some of his comments were quite difficult to follow…..At times his language was quite stilted." Conclusions with respect to the applicant's alleged former relationship with the solicitor, his later communications with her and her employer and his behaviour in Cairns 1. We note that based on the evidence of the applicant that he persisted during the course of the hearing in affirming the validity of his recollections about these matters and the contents of the emails, other than the qualifications given in his evidence which we have previously noted. 2. We accept that while working in Cairns the applicant exhibited inappropriate behaviour of a sexual nature towards female employees in the practice, and even though he professed overtly to understand that this was inappropriate his evidence before us tended to minimise the effect of his behaviour. 3. We accept on the basis of the evidence, including the expert evidence and our own observations that: 1. it is most unlikely that the applicant had previously met the solicitor in a brothel in the circumstances described by him; 2. it is most unlikely that the applicant had previously met the solicitor in a pub in his twenties and in his thirties; 3. it is most unlikely that the solicitor had rubbed shoulders with him to indicate support and friendship; 4. all of these matters indicate that the contemporary recollections of the applicant were either delusional or that he was acting out some fantasy; 5. the communications between the applicant and the solicitor and her employer indicate that he was either delusional about or fantasising about events which had not occurred and feelings for the solicitor which had no basis and were inappropriate. They breached social norms and boundaries, especially in the manner in which he continued to pursue her by persisting in making unwanted approaches to her; 6. all of these matters, including those relating to the Cairns practice occurred in the context of the applicant's interaction with females; 7. all of these matters in the aggregate indicate that at the present time the applicant has the capacity for developing unusual thoughts or beliefs about persons, whether they be patients or other persons with whom he comes into contact should he again practice as a dentist/ Overall conclusions concerning the applicant's current condition 1. We were impressed with the thoroughness with which Dr Samuels approached his consideration of the applicant's circumstances. He had available to him a great deal of historical information, and the benefit of observations and opinions expressed by medical practitioners who had either treated or examined the applicant. Dr Samuels had an opportunity of examining the applicant's thoughts in appropriate detail and an appropriate opportunity of coming to a considered opinion. We are likewise impressed that Dr Samuels was not prepared to adopt a dogmatic view unless he thought that this was warranted and had given reasons therefor. 2. We accept the conclusions of Dr Samuels that the applicant suffers from an impairment as that word is defined in the National Law, having regard to his "effect, thinking, manner, communication and boundary issues" which deficits he said were likely to impact upon his relationships with peers, colleagues and patients. The evidence of the applicant before us was indicative that the applicant had not accepted that the version of events narrated by Patient A is what had occurred, and we note that he continued to maintain that his breaches of the chaperone conditions and his behaviour towards the female employees in Cairns were predominantly "technical." This reinforces the opinion of Dr Samuels that with respect to the applicant, there is a risk of recidivism. In addition, Dr Samuels thought that the applicant's delusional feelings would increase the risk of aberrant behaviour in the future. 3. The only other contemporary expert evidence available to us is that of Ms Mason, the treating psychologist and Dr Smith the treating psychiatrist. Neither of these practitioners had been given access prior to giving evidence to the email chain between the applicant, the solicitor and her employer, and could not have been aware that the applicant would give the evidence that he did before us concerning the circumstances of his prior involvement with the female solicitor. Both practitioners conceded that they would need to re-evaluate their opinions concerning the applicant's condition and prognosis. Both expressed concern that the applicant might be suffering from a psychiatric condition, but obviously were unable to state their position in any concluded manner. 4. In stating this conclusion we are mindful that Ms Mason expressed particular concern that although the applicant had professed to have an understanding of professional boundaries and to have acquired mechanisms to preclude him from straying over those boundaries, there was always the prospect that those mechanisms may not work in the circumstances of the applicant being in a close proximity to a female patient. We observe, also, that all of the transgressions committed by the applicant which we have recited at some length have been directed to females, including the inappropriate comments made to the staff at the Cairns practice. 5. The preponderance of the evidence before us is to the effect that the applicant suffers from an impairment as described by Dr Samuels and that this is likely to affect his practice of dentistry. Furthermore, the imposition of a condition on his registration requiring the presence of the chaperone would be confined to interaction between the applicant and female patients only but would not be protective in extending to work colleagues, and others with whom the applicant might come into contact. Conclusions as the disposition of these proceedings 1. We have previously set out at [19] the principles which have been established in this Tribunal when considering proceedings of this kind. We shall apply them as a matter of comity with one qualification. There is reference in paragraph [3] to an onus lying on an applicant for reinstatement "to demonstrate that he or she can be trusted to practice 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." These proceedings are in the nature of an inquiry, our task being to ascertain whether it is appropriate to review the decision to cancel the applicant's registration with a view to determining whether it is appropriate to make an order the effect of which will enable him to apply for registration as a dental practitioner. In making our determination we are required to consider all of the material which has been put before us by the applicant and the respondent. We do not regard the determination of these proceedings as being conditioned upon whether or not the applicant has fulfilled an onus incumbent upon him to establish that he should be entitled to seek registration. Rather, the applicant has a burden of adducing such evidentiary material as will enable us to make a determination in his favour. The determination will be made objectively having regard to its context, including most importantly the paramount consideration of the health and safety of the public. Seen in this way, it is not necessary to demonstrate that any onus of establishing that the application should be granted lies on the applicant; rather his task is to discharge the burden which lies upon him of establishing those circumstances which will enable us to grant his application. 2. We commenced our consideration with the findings made in the decisions under review which we have previously set out. In the first decision the Tribunal found that it was more likely than not that the applicant suffered from a mental disorder or condition in the form of late onset paranoid schizophrenic illness which was current certainly at 22 December, 2017. The Tribunal also found that condition affected or was likely to detrimentally affect the applicant's ability to practice the profession of dentistry. Furthermore, there was sufficient concern that the applicant lacked capacity to deal with female patients, staff and others in an appropriately professional way with a consequence that he lacked the necessary competence required of a health practitioner. 3. As we have observed, the preponderance of the evidence available to us is that the applicant continues to suffer from a mental disorder or condition which affects or is likely to detrimentally affect his ability to practice the profession of dentistry with attendant concerns that he lacks the capacity to deal with female patients, staff and others in an appropriately professional way. On this basis the application for review must be dismissed. 4. The only other matter outstanding is whether the applicant should be permitted to apply for registration subject to conditions. Based on the opinion of Dr Samuels, we do not believe that it is appropriate to allow the applicant to seek registration as a dental practitioner subject to conditions as suggested on behalf of the applicant during the course of the hearing. These conditions were that he practise under supervision, that a chaperone always be present when treating a female aged 15 and over, and that he continue regular treatment under the care of a psychiatrist or psychologist. A requirement that the applicant could only practise if such conditions were imposed is incompatible with a current capacity to practise having regard especially to the health and safety of the public. In any event, as Dr Samuels pointed out such conditions would provide little or no comfort in terms of concerns that the applicant would have difficulty in communicating with and relating to peers and other work colleagues. 5. For all these reasons we conclude that the application should be dismissed. Costs 1. This is a costs jurisdiction. The applicant asked that we reserve the question of costs, and we shall do so granting liberty to apply. Orders 1. We make the following orders: 1. The application is dismissed. 2. Costs are reserved with liberty to apply which should be exercised within one month of this date. ********** 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 07 December 2023 - Case title updated: from Sundarajah to Sundararajah 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: 07 December 2023