Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Rakheja [2020] NSWCATOD 156 Hearing dates: 30 November 2020; 1-3 December 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Jurisdiction: Occupational Division Before: D Cowdroy AO QC ADCJ, Principal Member Dr G Albert, Senior Member Dr S Patel, Professional Member S Lovrovich, General Member Decision: (1) The Application be adjourned for further hearing to determine any disciplinary sanction to be imposed upon the Respondent's registration as a medical practitioner; (2) Pursuant to clause 7 of Schedule 5D of the Health Practitioner Regulation National Law, publication of the identity of Patient A and of any witnesses is prohibited. (3) Costs reserved. Catchwords: PROFESSIONS AND TRADES - health and professionals – medical practitioners – disciplinary proceedings – alleged indecent assault on patient – alleged breach of practising conditions Legislation Cited: Crimes Act 1900 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 Chief Executive of the Office of Local Government v Bagnall (No 1) [2017] NSWCATOD 106 Cunliffe v Commonwealth (1994) 182 CLR 272 FTZK v Minister for Immigration and Anor [2014] HCA 26 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Healthcare Complaints Commission v Black [2014] NSWCATOD 35 Jackson (formerly Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289 Smale v R [2007] NSWCCA 328 R v Carroll (2002) 213 CLR 635; [2002] HCA 55 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Atul Rakheja (Respondent) Representation: Counsel: P Lowson (Applicant) M Ainsworth (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal Pty Ltd (Respondent) File Number(s): 2020/00105236 Publication restriction: Pursuant to clause 7 of Schedule 5D of the Health Practitioner Regulation National Law, publication of the identity of Patient A and of any witnesses is prohibited. REASONS FOR DECISION 1. By application for disability findings and orders dated 1 April 2020, the applicant seeks protective orders under section 149C of the Health Practitioner Regulation National Law ("the National Law") against the Respondent, and an order that the Respondent pay the applicant's costs pursuant to clause 13 of Schedule 5D of the National Law. 2. The Complaint contains three separate complaints. The complaints arise from allegations that the Respondent committed an assault involving an act of indecency upon a female patient ("Patient A" or "the patient"). 3. Arising from the allegations, the Respondent was charged with a criminal offence. The charge was dismissed as detailed hereunder. Background 1. In March 1997 the practitioner obtained his MBBS in India. On 29 August 2006 the practitioner first obtained registration as a medical practitioner in Australia. The practitioner is registered as follows: MED 0001198909. In June 2016 the practitioner commenced working at East Corrimal Medical Centre ("the Centre"). From June 2016 to October 2017 Patient A consulted the practitioner at the Centre on 12 occasions. With effect from 27 November 2017 the practitioner's registration was subject to conditions arising from the complaint of assault. Section 150 proceedings 1. Proceedings were heard on 23 November 2017 by the Medical Council of New South Wales under section 150 of the National Law, arising out of the accusations relating to Patient A referred to in Complaint One. Reasons for the decision were dated 19 December 2017. 2. The delegates found: Given the seriousness of the allegations, and our conclusion that we could not reasonably reject the possibility that the doctor had behaved as he was alleged to have behaved, we assessed the risk or possibility of harm to a future female patient to be significant. The possibility of harm is pertinent to the health and safety of female patients attending Dr Rakheja. We found no reason to consider that there was any risk to the health and safety of male patients. 1. The Medical Council delegates imposed relevant conditions: Practice Conditions: 1. To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place(s) of practice. 2. Must not have any contact with any female patient unless a practice monitor who is approved by the Medical Council and is acceptable to the patient is continuously present. (i) All practice must be in accordance with the Medical Council of NSW's Compliance Policy – Practice Monitor (as varied from time to time) and as subsequently determined by the appropriate review body. (ii) The practice monitor must be approved by the Council in all locations in which he practices. In the event of a medical emergency, if it is not practical to obtain a practice monitor, a practice monitor is not required. A medical emergency is an event where it is not possible or reasonable to have a patient with a life threatening or urgent condition, seen by another medical practitioner or transferred to the nearest hospital. 3. To authorise the Medical Council of NSW to provide nominated and approved practice monitors with a copy of the decision which led to the imposition of this condition. 4. To submit to a random audit/inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW. (a) The audit/inspection is to be held as required by the Council to assess his compliance with conditions imposed on his registration. The auditor(s) may: (i) Inspect medical records. (ii) access, copy or retrieve appointment diaries, patient booking details; (iii) observe the practitioner's contact with female patients. (iv) consult with all practice monitors and any female patients who has contact with the practitioner during the audit/inspection. (b) To authorise the auditor(s) to provide the Council with a report on their findings. To meet all costs associated with the audit(s) and any subsequent reports. Second section 150 Proceedings 1. A second hearing under s 150 took place on 3 December 2018 in relation to allegations that the Respondent had breached the conditions of practice imposed as a result of the first s 150 proceedings. 2. The delegates found: In relation to the first point the delegates formed the view, notwithstanding the proof of the breaches, that there were genuine and not deliberate errors. In relation to the second point the delegates concluded that Dr Rakheja was charged some 11 months previous to the s150 hearing and that his practice of medicine during that time did not undermine the public interest, therefore negating the need for suspension. 1. The delegates imposed conditions upon the registration of the Respondent, the relevant condition for present purposes being condition number 2, namely: 2. Not to consult, examine, prescribe, treat or perform any procedures on any female patient. a. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. b. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. Court Proceedings 1. On 11 January 2018 the Respondent was charged with an offence under section 61L of the Crimes Act 1900 (NSW), namely assault with act of indecency. Such charge arose from the complaint by Patient A against the Respondent. The charge was heard before Magistrate Douglass at the Local Court, Wollongong on 12 and 13th December 2018. Dr Rakheja, as the accused, testified on 25 February 2019. The charge was dismissed verbally on 25 February 2019 and in writing on 26 February 2019. Legal Principles 1. The overriding duty of the Tribunal is to ensure that the public are protected from any conduct of the respondent which could be regarded as incompetent: see s 3A of the National Law. Section 3A requires that the "protection of the health and safety of the public must be the paramount consideration when considering allegations of, inter alia, the practice of medicine which is deficient". 2. The Tribunal must be satisfied that the Applicant is a "fit and proper person" to be registered as a medical practitioner. As was stated in Health Care Complaints Commission v Brush [2015] NSWCATOD 120, the following observations are made (at [72] – [73]): We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members 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 (ss 3(1) and 3(2)(a) of the National Law). [72] While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills. [73] 1. In Cunliffe v Commonwealth (1994) 182 CLR 272 Mason CJ stated, in reference to the words "fit and proper person": In some contexts, the words "fit and proper person" are so indefinite that they have been held to confer in effect what amounted to a discretionary judgement on a licensing authority… But the context may supply sufficient precision. [43] The term "fit and proper" is to be construed in the light of the particular legislative context: see Hughes and Vale Pty Ltd v NSW (1955) 93 CLR 127 at 156, Dixon CJ, McTiernan and Webb JJ. Onus of proof 1. The Applicant bears the onus of establishing that the impairment which was found by the previous Tribunal is no longer in existence. The test has been accepted as that in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Although it has been described as a misnomer to consider the burden of proof in a Tribunal where the rules of evidence do not prevail: see Hayne J in FTZK v Minister for Immigration and Anor [2014] HCA 26 at [33]-[36], such standard is accepted as the appropriate test in this Tribunal for matters arising under the National Law: see Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14] and the observations of the Court of Appeal in Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 referred to therein. 2. The Tribunal will apply the following principle: The onus lies on the applicant for reinstatement to demonstrate that she can be relied upon to practice in accordance with 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: See Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]. See Complaint One 1. The first complaint alleges that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) in that the practitioner has engaged in improper or unethical conduct relating to the practise or purported practise of medicine. The particulars are: PARTICULARS OF COMPLAINT ONE 1. On 1 October 2017 the practitioner during a consultation inappropriately put his arms around Patient A and embraced her. 2. On 1 October 2017 the practitioner during a consultation inappropriately kissed Patient A on her right cheek. 3. On 1 October 2017 the practitioner during a consultation again inappropriately put his arms around Patient A and embraced her. 4. On 1 October 2017 the practitioner during a consultation inappropriately rubbed his hands: a. on Patient A's lower back for a few seconds; b. up and down Patient A's buttocks. 5. On 1 October 2017 the practitioner during a consultation inappropriately rubbed Patient A's left thigh and right thigh with his hands approximately two to three times without Patient A's consent. 6. In performing the actions in particular (5) the practitioner inappropriately touched Patient A's groin with his fingers. 7. At one consultation prior to 1 October 2017, the practitioner inappropriately told Patient A words to the effect, "You're so beautiful, you shouldn't smoke…" 8. At two consultations prior to 1 October 2017, the practitioner inappropriately said to Patient A words to the effect, "men need sex to keep them happy" when discussing Patient A's marital problems. 9. At two consultations prior to 1 October 2017 the practitioner inappropriately put his arms around Patient A and embraced her. 10. By his actions in particulars (1) to (9) inclusive the practitioner contravened the Medical Board of Australia's 'Good Medical Practice: Code of Conduct for Doctors in Australia' (17 March 2014) clauses 3.2.6. 11. By his actions in particular (2), (4), (5) and (6) the practitioner contravened the Medical Board of Australia's "Sexual Boundaries: Guidelines for doctors" (28 October 2011) clause 3. 1. Respondent's Reply: The Respondent denies the allegations. The Evidence 1. Two volumes of the Applicant's material were tendered. Such volumes include the records of the Local Court at Wollongong relating to the charge brought against the Respondent including the transcripts of the hearing and the court decision. A statement by Patient A's sister and husband were included, which referred to a visit made by each of them separately to complain to the Respondent concerning his alleged assault upon Patient A. 2. The Tribunal heard oral evidence from Patient A and from a Medical Practitioner, Dr Robert John Chester, who she consulted two days after the consultation with the Respondent when the conduct alleged against him is said to have occurred. 3. Patient A stated that during the consultation on 1 October 2017 she was sitting at the end of the desk which was L shaped. She provided a sketch of the layout of the consultation room. Patient A stated that the Respondent, after examining her throat, said to her: "how is everything else going?" She said he tilted his head to one side in a sympathetic way when he asked her this question. The patient stated that she then became immediately teary and overwhelmed. At this point he wheeled his chair from his desk and computer to her. She stated in her sworn testimony before the Local Court of Wollongong on 12 December 2018: "Once I started to get upset, he actually wheeled his chair over from his desk close to me and his legs were either side of my legs, my legs were in between his and he was comfortingly (sic) with his words, asking me if I'm getting out, am I socialising, am I doing exercise and then I really broke down because I realised I been isolating myself from everything because I wasn't coping as well as I thought with the separation." 1. The patient said that the Respondent then held his arms out in front of her. She stated to the court: "Suggesting a cuddle for – so I was sitting but partially had to stand up and I accepted the cuddle. He kissed me on my right cheek I then sat back down". 1. Patient A said that the Respondent's position remained the same. She said she sat back down or partially down, and the Respondent continued to ask questions about the separation. She told the court: "I was – at that time I was even more emotional then he put his hands out again the same way as I showed you before for another cuddle and I lent in, I partially stood up and he then, as soon as I cuddle, he put his hands up beneath my jumper onto my bare skin and rub my back and then he came down across my bottom and at that point I was frightened and I sat back down and I grab my wallet and keys to suggest that I needed to go – that I wanted to get – I wanted to go. [The Respondent] then started talking to me about increasing my antidepressants and I stood up and when I set up his legs were still either side of mine, so standing up I was in – still in between his knees and then he put his hands from – started from my knee both hands running up and down my thigh telling me, "you're getting loose, you need to exercise" and then did the same to my right". 1. Patient A stated that the Respondent's hand on her left side went above the knee up to her groin area and the same occurred on the right-hand side as he was using both hands. She stated she felt his hands touch her groin and that the contact was made by his fingers. 2. Patient A stated that she stepped around the Respondent's leg. The Respondent then asked her to come back again and Patient A said she was "a bit confused" and responded, "about the increased medication?". The patient stated that the Respondent said "yes" and come back and see him on Friday. 3. Patient A stated that she then left the room, went to the reception desk and made an appointment. She then went out to her car and realised "what had just happened". 4. Later that day, Patient A's sister attended at the practice and spoke to the Respondent. The sister complained that the Respondent had engaged in the conduct referred to in Complaint One. Sometime thereafter, Patient A's husband also attended and spoke to the Respondent. The transcript of their evidence provided in the Local Court has been included before this Tribunal. Neither was required for cross-examination. 5. The patient's testimony in the Local Court of Wollongong was tendered before this Tribunal. Patient A did not expand upon the statement which was admitted into evidence but answered questions in cross examination. The patient maintained that the version of events which she provided to the Wollongong Local Court was correct. 6. The patient stated that two days later, namely on 3 October 2017, she saw Dr Chester for a further consultation. 7. Dr Chester gave evidence that he was consulted by the patient on 3 October 2017. He had not previously been consulted by Patient A. He recalled that she came to see him for her mental state and that he specifically recalls she requested a specific dosage of medication, namely Mirtazapine at 15 mg. 8. Patient A did not inform Dr Chester that she had seen the Respondent two days earlier. He said that she seemed to be agitated and upset and wanted a mental health plan review. She told Dr Chester that she had previously seen a psychologist and she told Dr Chester the name of that psychologist. Dr Chester did not consider that the medication would have serious consequences and in view of her state, he considered that it was appropriate to provide her with the medication she sought. He was provided a negligible medical history by the patient. 9. Dr Chester also performed a K10 assessment tool. 10. During the consultation, the patient also complained of a sore throat. He provided her antibiotics for this condition. He considered that the primary reason for her visit was in respect of her mental health. The Respondent's Evidence 1. The Respondent provided his testimony to this Tribunal. The Respondent said that the patient consulted him initially for a sore throat. He examined the patient's throat which was red, but he considered that it was not sufficient enough to cause the extent of pain of which the patient complained. He noted that on 26 June 2017 an ear, nose and throat specialist, Dr Ananda, had examined the patient on referral from another medical practitioner in the same practice as that of the Respondent. In such letter, the specialist stated that there was no sinister disease and added: "Because of her proneness to get emotionally upset easily, she could also be having crico-pharangeal muscle dysfunction causing her the discomfort in the throat." 1. The Respondent stated that he asked Patient A how things were going. The Respondent had previously been consulted by the patient on numerous occasions commencing on 7 June 2016 and was well acquainted with her difficult domestic situation. The Respondent stated to the Tribunal that she became upset when he asked her the question. 2. The Respondent stated that he gave her a box of tissues and rolled his chair sufficiently close to hand her the tissues with his right hand and immediately touched her with his left hand on the right shoulder. He then returned to review his notes. 3. The Respondent denied that he moved his chair and stayed in front of the patient; denied that he cuddled her; denied that he held his arms out and kissed her, or rubbed her back and legs as she claimed. He said such events never took place. 4. After returning to his computer, the Respondent allowed the patient sufficient time to compose herself. There was discussion concerning increasing the dosage of Cymbalta which had been already prescribed for her on a previous occasion. The Respondent did not issue a prescription at this appointment. 5. The Respondent denied the allegations by Patient A that on previous consultations he said to the patient words the effect of "you are so beautiful you shouldn't smoke" and "men need sex to keep them happy". However, the Respondent acknowledged that as the patient had come to see him for physical intimacy issues on previous occasions, there may have been discussion along the lines concerning the patient's partner's need for sex. 6. The Respondent said that the patient composed herself and that he arranged to see her on a future occasion. She walked out of the consulting room and that as he accompanied her out; he patted her on the back. The Respondent said that he had viewed the CCTV film of the patient leaving his room and making a further consultation. He stated that there are no untoward signs that the patient was distressed. The Respondent stated that he considered that the patient was composed. 7. The Tribunal has also viewed the relevant portion of the CCTV recording and agrees with the observations of the Respondent, that the footage shows that the patient was displaying no obvious signs of distress throughout the recording. 8. Applicant's submissions 9. The Applicant raises numerous submissions which impugn the credit of the Respondent. The Tribunal will state, in summary form, the critical submissions and also its consideration of them: 1. the Applicant submits that the Respondent had no basis for questioning the mental health of Patient A at the consultation. The Tribunal rejects such submission. The Tribunal considers that the Respondent acted appropriately in trying to discern causes for the patients sore throat, which included the issue referred to in the specialist report of Dr Ananda, namely cricopharyngeal muscle dysfunction causing the discomfort in the throat. The patient's complaint of pain was disproportionate compared to the physical signs as observed by the Respondent; 2. it is submitted that the Respondent gave inconsistent evidence concerning his previous knowledge of Dr Ananda's letter before this Tribunal, compared to the evidence he provided before the section 150 hearing and before the Local Court at Wollongong. 1. Before the section 150 hearing, the Respondent said: There was nothing specific to be found on this physical examination [of the patient's throat]. I was aware of the letter from – aware from her recent presentations with throat pain and also aware of a letter recently in from June 2016 [sic 2017] sent by an ENT specialist, Dr Ananda, that after an extensive examination he had suggested that her throat pain was from cricopharyngeal muscle dysfunction, which was more from her anxiety and not from a physical pain." 1. Before the Local Court the Respondent stated on this issue: I was verbalising my thoughts also; that the patient has come on Sunday, presenting with a severe sore throat, I don't find any other presentations for that, and I was wondering like where, where is the throat – I was at that stage thinking aloud, where is the pain coming from. So – and that time I had a realisation of a letter from an ENT specialist which she had seen in the recent past, I think it was June 2017, Dr Ananda. So I referred back to that letter, what was the impression, what the specialists had come from. 1. The Tribunal has considered the evidence provided before this Tribunal and is unable to discern any significant difference which could justify the submission of the Applicant. 2. The Applicant's further submissions are as follows: 1. The Applicant submits that had the letter of Dr Ananda been considered at the consultation, the Respondent would have recorded such reference in his notes, and that he would have recorded examination of the throat. The Tribunal finds that because the letter was not referred to, it does not follow that the Respondent did not access the letter during the consultation with the patient. Further, the Tribunal observes that the clinical notes made by the Respondent recorded a "red throat". The Tribunal rejects the submission of the Applicant that the testimony of the Respondent is of recent invention in relation to this matter. 2. The Applicant submits the Respondent's evidence that, at the consultation, he said he would increase the dose of Cymbalta to 90 mgs is "not only recent evidence, it is prima facie the unlikely". The Tribunal does not agree. 3. The statement of the patient to the police dated 13 October 2017 records that there was discussion at the consultation concerning an increase in Cymbalta to 90 mgs. Previously the patient had been directed to increase to 90 mg but for some unknown reason, it had not been put in practice. In view of this history, which is unchallenged, the Tribunal rejects the Applicant's submission. 4. The Applicant submits that the evidence of the Respondent that he only discussed specialist letters when a patient asked about them is implausible. The Tribunal rejects this submission as such conduct is acceptable practice. 5. The Applicant submits, as the patient submits, that the Respondent was untruthful concerning his reading of Dr Ananda's report, and that it is a "necessary lie to cover up the fact that his notes of the October consultation did not refer to Dr Ananda's report at all". The Tribunal rejects such submission. It has already found that it was not necessary for the specialist report to be read to the patient, and rejects the assertion that this represents untruthful conduct by the Respondent. 6. The Applicant submits that the Respondent was "unwilling to make concessions" and refers to admissions made in the section 150 proceedings. The Tribunal finds no unwillingness as alleged. 7. The Applicant submits that the patient's testimony should be accepted over that of the Respondent. For reasons considered in this decision, the Tribunal in this instance is not able to make a finding that the evidence of the patient should necessarily be accepted where it is disputed by the Respondent. 8. The Applicant invites the Tribunal to consider that matters canvassed before the Local Court in respect of factual issues, for example whether the conduct of the Respondent in remaining in the consulting room and permitting the patient to leave: the Respondent submitted that such conduct was consistent with the Respondent having done nothing wrong. The Tribunal will assess the evidence in its decision. 9. The Applicant invites the Tribunal to carefully consider the reasons for the judgment in the Local Court. Again, the Tribunal will decide this complaint on the material before it. 10. The Applicant submits that the respondent was obliged to cross-examine the sister and brother of Patient A. The Tribunal does not consider that such course was necessary bearing in mind that they did not witness the alleged assault. When confronted by them, the Respondent consistently denied the allegations. Complaint One: Findings Particulars 1 to 6 inclusive 1. There are irreconcilable inconsistencies between the versions of Patient A and the Respondent. There is no objective evidence which would tend to support the version of events as stated by either the patient or the Respondent. 2. The Tribunal notes that certain events occurred from which it infers that the testimony of the patient may not be entirely reliable. Those events are: 1. Patient A stated that she attempted to commit suicide. On 24 October 2017 she applied to attend a holistic retreat in Queensland. She did so on 6 November 2017, and remained for about four weeks at that facility. Patient A then attended the South Coast Private Hospital but no records have been provided concerning the reason for that admission or any medical records relating to such admission. When, five weeks after 3 October 2017, namely the date of the consultation with Dr Chester, the patient's mother told her that she should inform the police that she had consulted Dr Chester on 3 October 2017, Patient A had no recollection then of having done so. 2. Patient A has had a long history of anxiety and distress for which she has received medical treatment. A mental health plan had been prepared for her in the past. The Tribunal considers that there is the possibility of other undiagnosed mental illness. 3. Patient A told the Tribunal that the main reason for her visit to Dr Chester was for a sore throat. Dr Chester stated that he recalled that the principal reason for the attendance by the patient was for her mental anxiety, although the throat issue was also considered later in such consultation. At no time during the consultation did Patient A inform Dr Chester of the alleged assault by the Respondent. Dr Chester understood that the patient was upset because of some event that had occurred "over the previous weekend". 1. Whilst both witnesses, namely the patient and the Respondent, appeared credible before this Tribunal, the Tribunal notes that Patient A has had instances of memory failures and also inconsistencies. The principal reason for the consultation with Dr Chester was for the patient's anxiety condition as evidenced by his clinical notes. Yet Patient A nominated both the drug she required and the dosage. Dr Chester asked her about her allergy and she failed to mention to him that she was allergic to Mirtazapine. Patient A requested, according to Dr Chester, a referral to a psychologist. Patient A had no recollection of making such a request. Further, before the Local Court at Wollongong, there was no mention by Patient A that she had attended the South Coast Private Hospital, nor did Patient A recall consultation with the ear nose and throat specialist on about 26 June 2017 in Strathfield. 2. The Tribunal is mindful of the onus of proof which guides the Tribunal in its decision-making. That is, the onus will depend largely upon the gravity of the offence. The allegation against the Respondent is of the most serious kind, requiring this Tribunal to be well satisfied that the conduct alleged by the patient occurred. 3. The Tribunal is also guided by the principle referred to in Smale v R [2007] NSWCCA 328 at [71] per Howie J: "[W]hat should be clear from the application of the onus and standard of proof: if the Crown case relies upon a single witness then the jury must be satisfied that the witness is reliable beyond reasonable doubt." 1. Whilst both Patient A and the Respondent have provided testimony and been cross-examined extensively, the Tribunal is not satisfied that the onus of proof, namely to a very high standard, has been discharged by the Applicant with respect to particulars 1 to 6 inclusive. Particulars 7 to 11 inclusive 1. These particulars relate to events which are alleged to have occurred on unspecified consultations prior to 1 October 2017. Particular 7 1. This particular alleges that on one occasion the Respondent said to Patient A: "You're so beautiful, you shouldn't smoke". 1. Before the Local Court proceedings, the same question was put to the Respondent. He stated: I don't recollect that conversation, and it's more about representing a person as a beautiful person, not the beauty by the look but the beauty from inside we are talking about here. And this is what a GP, when they talk about a person who represents them as, not their physical beauty. 1. The Respondent conceded that he might have said words to the effect "you're a beautiful person" on a previous occasion in the context of his above statement. 2. The Tribunal notes that English is not the first language of the Respondent which may have been a contributing factor in the discussions during the consultation between Patient A and the Respondent. The Tribunal also accepts that the context in which such words may have been used are to be considered. In the circumstances of his explanation, the Tribunal does not find this complaint proved. Particular 8 1. This particular alleges that on two occasions prior to 1 October 2017 the practitioner inappropriately said to Patient A words to the effect of "men need sex to keep them happy" when discussing the patient's marital problems. 2. The Respondent does not dispute that he may have used words to the effect as alleged. However, the Respondent states that such words would have been used in the context of the patient seeking advice in relation to her marital relationship for which Patient A had consulted the Respondent. 3. The Tribunal does not find that the use of such words, in such context, constitutes unsatisfactory professional conduct. Particular 9 1. This particular alleges that prior to October 2017 on two unspecified consultations the practitioner inappropriately put his arms around Patient A and embraced her. The particular is denied by the Respondent. 2. The evidence, and its vagueness, does not satisfy the Tribunal that such conduct occurred. Particulars 10 and 11 1. These particulars are dependent upon positive findings made with respect to particulars 2, 4, 5, 6. In view of the findings made above, the allegation of unsatisfactory professional conduct is rejected. 2. It follows that there is insufficient evidence to establish Complaint One. Complaint One is dismissed. Complaint Two 1. This Complaint alleges that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the National Law in that he has contravened conditions of his registration. The particulars are as follows: PARTICULARS OF COMPLAINT TWO 1. The practitioner breached condition (1) set out at Annexure A in that he failed to advise the Council in writing at least seven days before working at Anglicare Eileen Armstrong House Woonona ("Woonona") on 18 July 2018. 2. From 4 December 2017 to 13 September 2018 the practitioner breached condition (2) set out at Annexure A in that the practitioner issued 88 prescriptions to the female patients in Annexure B without a practice monitor being approved by the Council. 3. The practitioner breached condition (2) set out at Annexure A by failing to comply with the Council's practice monitor policy sections (1) to (16) while prescribing to female patients at Woonona from 18 July 2018 – 8 November 2018. 1. Respondent's reply: The Respondent admits the particulars. Complaint Two: Applicant's Evidence 1. The conditions imposed upon the practice of the Respondent following the second s 150 hearing prohibited the Respondent from having "any contact with any female patient" unless a practice monitor was continuously present. The term "Contact" as included in the Compliance Policy – Practice Monitor states: Contact – includes any consultation, examination, treatment, procedure, interview, assessment, prescribing for, advising, or otherwise seeing a patient, whether or not the patient is physically in the presence of the practitioner. 1. The Respondent does not dispute that he wrote prescriptions on behalf of his fellow general practitioners for patients who were in nursing homes. The Respondent was not aware that he was prohibited from writing prescriptions, but only that he was prohibited from consulting with female patients as a result of the imposition of the conditions. 2. A Practice Monitor Approval Position Statement dated 17 June 2017 has been provided in respect of the work undertaken by the Respondent. Further, Public Conditions dated 11 December 2017 have been provided relating to the conditions under which the Respondent was permitted to continue to practise. Such conditions were applicable to the Respondent's engagement at Kiama Medical Practice; East Corrimal Medical Practice; Villa Maria Aged Care Centre, Unanderra; Blue Haven Care Home, Kiama; IRT Woonona; Durham Green, Menangle. Each of these places of work were nominated and identified by the Respondent in an email dated 7 December 2017 to the Medical Council. Complaint Two: Respondent's evidence 1. A letter from Dr Puja Mehrotra dated 12 November 2018 establishes that the East Corrimal Medical Centre overlooked the fact that the Respondent was not to prescribe for female patients, even in a situation where the Respondent did not have any contact with the female patient. Certain scripts were provided during the absence in the practice of Dr Mehrotra, and scripts were issued by the Respondent on her behalf. Dr Mehrotra was aware that the restrictions on practice prevented the Respondent from consulting a female patient without the presence of a practice monitor, but did not realise that the prohibition extended to writing scripts. 2. A statement from the Wollongong City Pharmacy dated 28 November 2018 indicates that prescriptions were dispensed incorrectly by a Wollongong chemist. This has occurred on numerous occasions. 3. A letter from Blooms the Chemist dated 26 November 2018 also records an apology for wrongly dispensing a prescription using the Respondent's prescriber code in error. 4. A letter dated 28 November 2018 from Andrews Pharmacy Corrimal also records that prescriptions had been incorrectly allocated to the Respondent by the pharmacy. A letter to the same effect has been provided by the Hospital Hill Pharmacy Management. Another letter provided by the Camden Pharmacy records that on 3 July 2018 a prescription was wrongly dispensed under the name of the Respondent. The Kiama Health Destination Pharmacy also records that on 23 March 2018 there was an error by the pharmacy in recording that a prescription had been issued at the request of the Respondent. A letter has also been provided from the Health Destination recording that on 11 December 2017 a prescription was wrongly recorded. Finding: Complaint Two 1. This Complaint alleges a breach by the Respondent of conditions applicable to practice. Such conditions were imposed by the Medical Council of NSW as a result of its findings in the section 150 proceedings held on 23 November 2017. Allegations of such breaches were heard by the Medical Council on 3 December 2018. Particular one 1. This particular alleges that the Respondent failed to advise the Medical Council in writing that he was a visiting medical practitioner to the Anglicare Eileen Armstrong House, Woonona on 18 July 2018. 2. The Respondent acknowledges that, contrary to condition (1), he did not notify the Medical Council that he was visiting such facility to treat an existing single male patient. The Respondent acknowledges that he failed to give notification that he was working at the new site. A letter from Anglicare Woonona dated 9 November 2018, confirms that the Respondent had been visiting a patient since admission on 18 July 2018. Particular 2 1. This particular alleges that from 4 December 2017 to 13 September 2018, the Respondent issued 88 prescriptions to female patients without a practice monitor being approved by the Council, contrary to condition (2). 2. The Respondent acknowledges the particular and stated that it was his misunderstanding of the terms and requirements of the conditions in that he believed he could issue prescriptions without infringing the condition. The Respondent did not understand that a prohibition on consulting female patients included the issuing of prescriptions to female patients in the nursing home. Particular three 1. Particular three alleges that the Respondent breached condition (2) by failing to comply with the practice monitor policy sections (1) to (16) while prescribing to female patients at Woonona from 18 July 2018 – 8 November 2018. 2. As is already referred to, the Respondent acknowledges such particular. 3. The Tribunal notes the observations of the Medical Council when it came to consider each of the three breaches referred to above in the second section 150 hearing held on 3 December 2018. The conclusion of the Medical Council was as follows: In relation to the first point the delegates formed the view, notwithstanding the proof of the breaches, that they were genuine and not deliberate errors. 1. No evidence has been laid before this Tribunal to suggest or establish that the breaches of conditions referred to above were otherwise than as found by the Medical Council. 2. Accordingly the Tribunal finds that the particulars as alleged are proven. The Tribunal finds that the conduct constitutes unsatisfactory professional conduct. Complaint Three 1. This Complaint alleges that the practitioner is guilty of professional misconduct under section 139E of the National Law. The particulars are: PARTICULARS OF COMPLAINT THREE 1. The particulars of Complaint One are repeated and relied upon individually and cumulatively. 2. The particulars of Complaint Two are repeated and relied upon individually and cumulatively. 3. The particulars of Complaint One and Complaint Two are repeated and relied upon cumulatively. 1. Respondent's reply: The Respondent disputes that he is guilty of professional misconduct. Finding: Complaint Three 1. By virtue of the findings made with respect to Complaint One and Complaint Two, the Tribunal does not find that the Respondent is guilty of professional misconduct. Subsidiary issue 1. The Tribunal was concerned at the outset whether the principle of double jeopardy discussed in R v Carroll [2002] HCA 55; (2002) 213 CLR 635 could apply to the present application in view of the fact that the Respondent has already been charged, and acquitted, of a criminal offence namely assault with act of indecency under section 61L of the Crimes Act 1900. 2. The Applicant has drawn attention to several authorities which satisfy the Tribunal that the issues raised in Complaint One do not constitute an abuse of process and may be brought before this Tribunal. The principal authorities on this subject are Jackson (formerly Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289 at [34]; Healthcare Complaints Commission v Black [2014] NSWCATOD 35 and Chief Executive of the Office of Local Government v Bagnall (No 1) [2017] NSWCATOD 106. Orders 1. As a consequence of the Tribunal finding that Complaint Two is upheld, the proceedings will be adjourned for consideration of the appropriate disciplinary sanction. 2. Accordingly the orders are as follows: 1. The Application be adjourned for further hearing to determine any disciplinary sanction to be imposed upon the Respondent's registration as a medical practitioner; 2. Pursuant to clause 7 of Schedule 5D of the Health Practitioner Regulation National Law, publication of the identity of Patient A and of any witnesses is prohibited. 3. Costs reserved. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2020