Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Priyadarshi [2021] NSWCATOD 99 Hearing dates: 15 March 2021 Date of orders: 21 July 2021 Decision date: 21 July 2021 Jurisdiction: Occupational Division Before: Sheahan ADCJ, Principal Member Dr J Aitken, Senior Member Dr E Marel, Senior Member Ms D Telford, General Member Decision: The Tribunal makes the following orders pursuant to the Health Practitioner Regulation National Law (NSW): (1) an order under s 149C(1)(c) cancelling the practitioner's registration; (2) an order under s 149C(7) that an application for review of the order under Division 8 may not be made until two years after the date of these orders; (3) an order under s 149C(5)(a) prohibiting the practitioner from providing any health service, as defined in s 4 of the Health Care Complaints Act 1993 (NSW), until he is registered as a health practitioner; (4) an order under cl 13 of Sch 5D that the practitioner pay the Commission's costs, to be agreed or assessed. Catchwords: HEALTH — professional registration and discipline — complaints — whether circumstances of offences render practitioner unfit in the public interest to practise practitioner's profession — costs Legislation Cited: Crimes Act 1900 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Lee v Health Care Complaints Commission [2012] NSWCA 80 Health Care Complaints Commission v Russ [2021] NSWCATOD 5 Health Care Complaints Commission v Hopper [2018] NSWCATOD 39 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Harsh Priyadarshi (Respondent) Representation: Counsel: E Bailey (Applicant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal (Respondent) File Number(s): 2020/00266572 Publication restriction: On 9 and 15 October 2020 orders were made under s 64 of the Civil and Administrative Tribunal Act (2013) prohibiting the publication of the names of the patients set out in the schedule to the complaint. REASONS FOR DECISION Introduction 1. Harsh Priyadarshi (Priyadarshi or the practitioner) qualified as a doctor in India in 1991 and was registered as a medical practitioner in Australia in September 2010, but, following various incidents on 6 June 2011, complaints were made about him to New South Wales Police and to the Health Care Complaints Commission (HCCC or the Commission) in respect of two female patients (known as Patients A and B). 2. On 18 November 2011, Priyadarshi attended a performance interview (Ex A1, tab 23). He told the panel he had changed his examination technique "to decrease any opportunity for body contact" during his examinations, and the panel recommended no further action in respect of the complaints then current. 3. Between October 2012 and December 2015, Priyadarshi worked in India. On his return to Australia, he obtained limited registration, and, in December 2017, a third patient (Patient C) complained to police about an incident which occurred on 7 December 2017. 4. Details of the three complaints are before the Tribunal (Ex A1, tabs 4-9) and we note that non-publication orders were made in respect of the three patients on 9 and 15 October 2020. 5. On 13 March 2018, police charged Priyadarshi with one count of aggravated indecent assault against each of three patients A, B and C (Ex A1, tabs 30-52), and a few days later he self-notified to the Medical Board of Australia (Ex A1, tab 10). 6. On 10 April 2018, following a s 150 hearing (Ex A1, tabs 24-25), the Medical Council of New South Wales suspended his registration, and referred him to the HCCC for investigation (Ex A1, tab 15). 7. On 14 December 2018, after a four-day trial (Ex A1, tabs 54-57), at which he pleaded not guilty to all charges, Priyadarshi was convicted on all three charges at Parramatta Local Court (Ex A1, tab 53), and, on 17 December 2018, his solicitor notified the Australian Health Practitioner Regulation Agency of that conviction (Ex A1, tab 12). 8. Priyadarshi was sentenced on 18 January 2019 (Ex A1, tab 58, folio 14) to a term of imprisonment of two years and six months, with a non-parole period of one year and three months. 9. He spent 18 days on remand at Silverwater before bail was granted, pending an appeal. 10. He appealed against both the conviction and the resulting sentence, and, on 11 November 2019, following a hearing in the District Court on 5 July 2019, the conviction appeal was dismissed and the sentence appeal upheld. In the result, Priyadarshi was re-sentenced to a three-year community corrections order (Ex A1, tab 14). 11. The HCCC concluded its investigation on 5 March 2020, and gave Priyadarshi notice of its intention to prosecute a complaint against him. He declined to make any submissions (Ex A1, tabs 20-21), and, on 10 September 2020, the HCCC sought from this Tribunal orders pursuant to s 149A and/or s 149C of the Health Practitioner Regulation National Law (NSW) ("the National Law") (Ex A1, tab 1). 12. The complaint to this Tribunal is based on Priyadarshi having been convicted of criminal offences within the meaning of s 144(a) of the National Law, and recites the basic particulars of each count of which he was convicted, namely "aggravated indecent assaults" committed while the respective patients were "under his authority as [a] medical practitioner". 13. Among the material contained in Exhibit A1 is a Court Attendance Notice detailing the three counts (under s 61M(1) of the Crimes Act 1900 (NSW)), the transcript of evidence at the trial, a Certificate of Convictions following their confirmation on appeal, and various admissions made by the respondent. 14. In his Reply to the Application for disciplinary findings, Priyadarshi admitted to both the background and the particulars of the HCCC's complaint. 15. At the hearing before us on 15 March 2021, the HCCC relied only upon comprehensive documentation and its written submissions, and Priyadarshi relied only on his written statements, including one dated 8 March 2021 (Ex R1, tab 2), and the short oral evidence he gave before us. 16. The HCCC is entitled to rely on Priyadarshi's convictions, but the Tribunal still has to conclude independently that he is not a fit and proper person to practise medicine. 17. The protection of public health and community safety, and the deterrence of all medical professionals, from unprofessional and unethical conduct, are paramount to the regulatory system which upholds public confidence in the profession. Our jurisdiction is primarily protective, even though our orders may be incidentally punitive: see Lee v Health Care Complaints Commission [2012] NSWCA 80, at [20] and [31]. 18. In the present matter, the HCCC seeks (submissions, par 5): 1. a finding under s 144(a) that the practitioner has been convicted of three offences, a finding under s 149 that the subject matter of the complaint is proven, and a finding under s 149C(1)(c) that the circumstances of the offences render the practitioner unfit in the public interest to practise medicine; 2. an order under s 149C(1)(c) cancelling the practitioner's registration; 3. an order under s 149C(7) that an application for review of the order under Division 8 may not be made until after four years; 4. an order under s 149C(5)(a) prohibiting the practitioner from providing any health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW) until he is registered as a health practitioner; 5. an order under cl 13 of Sch 5D that the practitioner pay the Commission's costs. The Respondent 1. Priyadarshi was born in India on 1 July 1968, and completed his primary university medical degrees in December 1991. He obtained a master's degree in orthopaedics in April 1998, and married the same year. 2. Between June 1998 and July 2010, he worked variously in India, Mauritius, France, the UK and the USA, as a researcher, surgeon, and consultant, with an increasing focus on the human spine, and, between January and June 2008, he was "an international AO Spine Fellow" at Royal Adelaide and other hospitals associated with the Spine Society of Australia and New Zealand, before returning to India in July 2008. 3. In September 2010, he obtained limited registration for post-graduate training in Sydney under supervision. He worked as an orthopaedic clinical research fellow in spinal services at St George Hospital, Sydney, from 2010 to 2012, before returning to various consultant positions in India, from 2012 to 2015. 4. He returned to Australia in around March 2016 to work at Westmead Children's Hospital, and later, Macquarie Neurosurgery. He has lectured at the University of New South Wales and the St George Clinical School, and, since 13 August 2020, he has worked full-time in a non-patient contact role as part of a research fellowship at the Australian Institute of Musculo-Skeletal Research. 5. He resides in suburban Sydney with his wife (also a doctor) and their young son, and his community corrections order has not yet concluded. His stated ambition was to obtain Australian specialist orthopaedic qualifications, and practise as a specialist orthopaedic and spine surgeon here (Ex R1, tab 2, par 30). His studies continue, with a view now to a career in research (pars 36-38). 6. He maintains (Ex R1, tab 2, pars 29, 42-43): "29. Whilst I respect and accept the decision of the Court, I maintain that at no time did I intentionally assault any of the complainants. … 42. With the benefit of hindsight, I have been able to deeply reflect upon the evidence of the three patients. That evidence has haunted me since I heard it in Court. I am embarrassed and mortified to think that I caused the distress that I clearly caused to those women. 43. Whilst I have never intentionally assaulted any patient, I accept that my keenness to conduct a thorough examination and to elicit a diagnosis has caused the three patients in question to believe that they were assaulted. I believe my poor communication skills and lack of appreciation of [non-]verbal cues led to a situation where the patients believed they had been assaulted." 1. Those stated sentiments contrast with the opinions/assessments reached in the pre-sentence reports of 4 January 2019 (Ex A2, tabs 2-3), which record his "categorical denial" of his offending behaviour, his failure to express remorse (tab 2, p 2), and his denial that his actions were "medically unjustified" (tab 3, p 2). He at that stage wanted to go no further than explain himself to his victims in order to alleviate their distress (tab 3, p 3). 2. There is no evidence before us of any other criminal offending, and there are favourable character references dated April 2018 (Ex A1, tabs 18-19). 3. Priyadarshi has continued as part of the post-sentence monitoring and supervision of his behaviour (Ex A2, tab 3, p 3) to undergo psychological therapy at Real Therapy Solutions, Westmead (Ex R2), focusing on "psychosexual education around appropriate and inappropriate sexual behaviour", given his occupation of a position of authority with his patients, and the pressures of time during his work. 4. To his credit, Priyadarshi gave oral evidence before us, during which the HCCC advocate, Ms Bailey, closely cross-examined him, inter alia, about (a) many comments he had made, in earlier documents and transcripts, concerning the way he conducted his examinations of the three complaining patients, (b) details in his latest statement (Ex R1, tab 2), about his disagreement with the magistrate's findings in the case of each patient, and (c) various courses he has since undertaken to improve his technique. 5. In response to questions from the Panel members, he assured the Tribunal that he now realises that every action by an examining practitioner requires explanation and consent. He claims he developed insight into his poor communications only once he consulted his current psychologist. Liability 1. The Tribunal finds that the practitioner has been convicted of three criminal offences, and, on the basis of his admissions, that the subject matter of the complaint has been proven. 2. Accordingly, the Tribunal must consider whether these circumstances render the practitioner "unfit in the public interest to practise medicine" (submissions, par 9). 3. The material before us regarding the circumstances of each offence demonstrates their individual seriousness, and we note also that they were committed over the period of six and one-half years to December 2019, despite warnings given him in 2011 "to be careful" (submissions, par 20), whereas the respondent did not demonstrate insight, contrition and remorse until much more recently, after some remedial treatment began having a positive effect on the offender. 4. The HCCC's submissions analyse the evidence attributed to each complaining patient and accepted at trial (see submissions, pars 10-13). We respectfully accept that analysis, and the submission (pars 14-16, which we adopt, but do not repeat) that it demonstrates Priyadarshi's serious breaches of professional boundaries and the Code of Conduct in each case: "He exploited patients who were vulnerable, semi-clothed and alone", causing them harm, and he has so demonstrated that he is "unfit in the public interest to practise medicine". 5. We also agree with the HCCC (submissions, par 17) that Priyadarshi's conduct also "demonstrated disrespect for his fellow medical practitioners" (namely Drs Diwan and Eftekhar), and (par 19) that he was "not open and honest in some of his responses" to police and in the Local Court (eg, Ex A1, tab 57, pp 26-27) and to the Commission, including at his 16 November 2011 performance interview (Ex A1, tab 23). Submissions regarding orders 1. The Tribunal has to determine a "non-review period" to apply to the practitioner's current suspension, and the Commission submits (pars 21-24) that such non-review period should be "lengthy" for the following reasons: 1. he "has not yet accepted responsibility for his conduct" – he denied offending from the original police investigation, through the Court proceedings, and up to and including during his pre-sentence assessment; 2. he "has not yet developed insight" – he repeatedly denied causing harm to the three patients, insisting, even in his statement to this Tribunal dated 8 March 2021 (Ex R1, tab 2, par 43), that any perception by them that they were assaulted resulted from his keenness to be thorough and his "poor communication skills and lack of appreciation of [non-]verbal cues", and that his assaults were not intentional (Ex R1, tab 2, par 29); 3. he requires further time to "gain a deeper understanding of his professional obligations" – the Commission, on the other hand, observes that he committed his third offence after undertaking risk management training following his first two offences; and 4. the Commission submits that a lengthy period is needed to "signal to the profession and the public the seriousness of the conduct, and to enable the practitioner sufficient time to demonstrate remediation". 1. As the Tribunal noted in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 ("Russ"), at [42]: "The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances." 1. However, the "grading" of offences is a matter for the criminal courts, and, as Ms Bailey submitted in reply, this Tribunal deals with only the "inherent seriousness" of the offending behaviour before it. 2. The Commission argues (submissions, par 25) that the respondent poses a substantial risk to the health of the members of the public (s 149C(5)(a)), and so should be subject to a prohibition order. His three incidents of inappropriate conduct were similar, and each followed new registration of the practitioner, but the third could be argued to represent an escalation in offensiveness. The three patients were all vulnerable, and the offending conduct occurred when the practitioner's supervisor was nearby, demonstrating that he "was unwilling or unable to control his behaviour", and "cannot be trusted to practise to high professional standards". 3. Mr Barnes, appearing for Priyadarshi, argues that the examinations were medically appropriate, that any offences involved in them should be seen as at the "lower end of the scale", and that the offender is of good character and has done "good things" in seeking to improve his sensitivity and his consent processes. 4. He argues that a reprimand would be sufficient punishment, but that, if the Tribunal does not agree, it should move to a suspension, and not cancellation. A non-review period of four years, as sought, would mean a total of seven years, which is not commensurate in all the circumstances of this case. 5. In this submission, Mr Barnes relied upon Health Care Complaints Commission v Hopper [2018] NSWCATOD 39, where the Tribunal cancelled a chiropractor's registration, and set a non-review period of 12 months, in circumstances of a single conviction for indecent assault, which, Mr Barnes submitted, was more serious misbehaviour than in this case. 6. We respectfully disagree with that submission, and we will deal with the present respondent on the facts of his own case. 7. Likewise, we do not find Russ comparable on the facts. In Russ, the Tribunal was not satisfied that the circumstances of the respondent nurse rendered her "unfit in the public interest to practise", so "the power to suspend or cancel [her] registration [could not] be exercised: s 149(1)(c) of the National Law" (at [51]). The Tribunal reprimanded her (at [59]). Conclusions 1. We are satisfied that the respondent is generally a person of good character, but his offending behaviour was serious, and his stubborn defence of it does not serve him well. 2. The complainants were stoic, and their evidence is impressive, but the respondent sought to deflect important questions put to him, and his evidence was unconvincing. He has done little by way of remediation. 3. We are satisfied that he should be de-registered in the public interest, and precluded from re-registration for a period of two years. We accept Mr Barnes' submission that four years is excessive in all the circumstances. 4. The parties agreed that, in those circumstances, the respondent should also be ordered to pay the Commission's costs. In the absence of any agreement having been communicated on a "fixed costs" order, the usual costs order will be made. Orders 1. The Tribunal makes the following findings: 1. a finding under s 144(a) that the practitioner has been convicted of three offences; 2. a finding under s 149 that the subject matter of the complaint is proven; and 3. a finding under s 149C(1)(c) that the circumstances of the offences render the practitioner unfit in the public interest to practise medicine. 1. The Tribunal, therefore, makes the following orders pursuant to the Health Practitioner Regulation National Law (NSW): 1. an order under s 149C(1)(c) cancelling the practitioner's registration; 2. an order under s 149C(7) that an application for review of the order under Division 8 may not be made until two years after the date of these orders; 3. an order under s 149C(5)(a) prohibiting the practitioner from providing any health service, as defined in s 4 of the Health Care Complaints Act 1993 (NSW), until he is registered as a health practitioner; 4. an order under cl 13 of Sch 5D that the practitioner pay the Commission's costs, to be agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2021