Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ariyarathna [2021] NSWCATOD 154 Hearing dates: 23 – 26 August 2021 Date of orders: 30 September 2021 Decision date: 30 September 2021 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Dr G Dore, Senior Member Dr M Cox, Senior Member R Wellington, General Member Decision: (1) Pursuant to section 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), the respondent is reprimanded; (2) The conditions on the respondent's practice imposed by the Medical Council on 9 June 2020 are revoked; and (3) Pursuant to s 149A(1)(b), (d), (e) and (f) of the Health Practitioner Regulation National Law (NSW), the respondent is to practise in accordance with the Practice and Health conditions set out below: Practice Conditions 1. To obtain Medical Council approval prior to changing the nature or place of his practice. 2. Not to undertake solo medical practice. 3. Not to be the sole supervisor of any junior practitioner. 4. To practise under category C supervision in accordance with the Medical Council's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. Clinical performance; ii. Professional staff boundaries; iii. Team work; and iv. Professional communication. (b) To authorise the Medical Council to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 5. To nominate an experienced medical physician to act as his professional mentor for approval by Medical Council in accordance with the Medical Council's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each mentoring meeting the practitioner is to include discussion of the following: i. Professional ethics; ii. Career progression; and iii. Any other topics of relevance. (b) To authorise the mentor to report, in an approved format, to the Medical Council every 6 months about the fact of contact, and to inform the Medical Council if there is any concern about his professional conduct, health or personal wellbeing. (c) To authorise the Medical Council to provide proposed and approved mentors with a copy of the decision that imposed these conditions. 6. To have completed between April 2019 to a date within 6 months of the imposition of these conditions at least 1 online course by an appropriate medical body concerning responsible communication incorporating the use of email and social media as well as at least 1 other online course to ensure that he has a proper knowledge of regulations and procedures regarding workplace behaviour and conduct: (a) Within 3 months of the imposition of these conditions the practitioner must provide evidence to the Medical Council with his enrolment in the abovementioned courses; (b) Within 1 month of completing the abovementioned courses, the practitioner is to provide documentary evidence to the Medical Council that he has satisfactorily completed the courses; and (c) The practitioner is to bear responsibility for any costs incurred in meeting this condition. 7. In the event that the above-mentioned courses are unavailable, the practitioner must propose to the Medical Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from the date of the imposition of these conditions. 8. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply should the Respondent's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. Should the respondent relocate to NSW, the Medical Council of NSW will be the relevant review body. Health Conditions 9. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating practitioner. The respondent is to: (a) authorise the treating practitioner to inform the Medical Council (or equivalent) of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) provide the Medical Council with the professional details of the treating practitioner. (4) The respondent is to pay the applicant's costs of and incidental to these proceedings pursuant to clause 13 of Schedule 5D to the Health Practitioner Regulation National Law (NSW). Catchwords: HEALTH – medical practitioners – disciplinary proceedings – practitioner infatuated with work colleague – practitioner sending numerous deceptive, insulting, belittling emails to work colleague using sham Internet details – practitioner using government emails for the purpose of sending such messages – practitioner gaining unauthorised access to private records of fellow colleague – practitioner sending abusive emails having gained access to another medical practitioner's email account to make it appear that it was the other practitioner who was forwarding the messages – practitioner obtaining a new telephone number using false details to send text messages to the mother of a work colleague under the pretext of a friend for the ulterior purpose of obtaining details of the current partner of the work colleague. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chen v Health Care Complaints Commission [2017] NSWCA 186 Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Latoudis v Casey (1990) 170 CLR 534 Lee v Health Care Complaints Commission [2012] NSWCA 80 Office of Local Government v Toma [2016] NSWCATOD 21 Parker v Comptroller-General of Customs (2009) 83 ALJR 494; [2009] HCA 7 Qasim v Health Care Complaints Commission [2015] NSWCA 282 R v Byrnes (1995) 183 CLR 501; [1995] HCA 1 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Slezak, Dr Peter [2011] NSWMPSC 10 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Texts Cited: NSW Health Policy Directive, "Use and Management of Misuse of NSW Health Communication Systems" NSW Health Policy Directive, "NSW Health Code of Conduct" Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dilshan Ariyarathna (Respondent) Representation: Counsel: I Chatterjee (Applicant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal (Respondent) File Number(s): 2021/00050759 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of any person other than the respondent, the expert witnesses, and the referees is prohibited. REASONS FOR DECISION 1. By Application filed on 22 February 2021 the applicant seeks the following orders: "1. An order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names of Patients [sic-Persons] A-D in the attached Complaint dated 31 January 2021. 2. Orders pursuant to s 149A (powers to caution, reprimand, impose conditions on registration, etc.); s149B (power to impose a fine) and/or s 149C (powers to suspend or cancel registration, make a prohibition order, etc.) of the Health Practitioner Regulation National Law (NSW) ('National Law'). 3. Costs." 1. The grounds for the application are stated as follows: "The Director of Proceedings, HCCC, has determined to prosecute a complaint against the Respondent pursuant to s 90B(1) of the Health Care Complaints Act 1993 alleging that he has been guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(I) and/or professional misconduct within the meaning of s 139E and/or not a suitable person to practice [sic-practise] medicine within the meaning of s 144(e) of the National Law." 1. The Complaint filed by the applicant alleges, in the first and second complaints, unsatisfactory professional conduct against the respondent contrary to the provisions of section 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The third complaint alleges that pursuant to section 144(e) of the National Law the respondent is otherwise not a suitable person to hold registration in the practitioner's profession. The fourth complaint alleges that the practitioner is guilty of professional misconduct under section 139E of the National Law arising from one or more instance of unsatisfactory professional conduct as detailed hereunder. 2. It is convenient to note that the respondent admits complaint one, complaint two, and complaint four but denies complaint three. All alleged particulars to each complaint are also admitted. It should also be noted that the conduct giving rise to the complaints does not result from any incompetence as a medical practitioner. Rather, it results in the fact that the respondent forwarded to a number of individuals, a large volume of electronic messages, including emails and WhatsApp messages, making insulting personal remarks concerning a fellow practitioner (Person A). In doing so the applicant used his Hunter New England Health email account for the purpose of conveying such messages, and inappropriately used his Hunter New England Health account to join dating sites. In addition, the applicant created several fictional employee email accounts to despatch messages of a personal nature relating to Person A or with intent to discover personal information about Person A. The respondent engaged in conduct of a harassing or stalking nature by sending false emails to Person A and in sending bogus text messages to the mother of Person A in an attempt to ascertain whether Person A had a current partner. Some text messages were sent on a new mobile phone which the respondent obtained using his mother's passport details to establish the necessary identity. The conduct occurred between November 2018 and mid-January 2019. 3. The Complaints are as follows: "Complaint One: The respondent is guilty of unsatisfactory professional conduct in that he has engaged in improper or unethical conduct relating to the practice or purported practice of profession. Background to Complaint One: The practitioner graduated from the University of New South Wales with an MBBS in 2011. Between 2012 - 2017, the practitioner was employed as medical officer at 5 different hospitals within New South Wales. In December 2018, the practitioner obtained Fellowship of the Royal Australasian College of Physicians. Between 5 February 2018 and 3 February 2019, the practitioner was employed with Hunter New England Local Health District (HNELHD) as a final year senior registrar (advanced trainee) at John Hunter Hospital, Newcastle. Particulars of Complaint One: 1. Between 12 April 2018 and 25 August 2018, the practitioner inappropriately used his Hunter New England Health email account, being Dilshan.Aryiarathna@hnehealth.nsw.gov.au (DA HNEH Account), to correspond with the email accounts [email addresses either to arrange sexual encounters or to engage in sexually explicit conversations, as set out in Schedule A to this Complaint. 2. By his conduct in particular (1), the practitioner acted contrary to Guidelines 3.1 and 3.2 of the NSW Health Policy Directive "Use and Management of Misuse of NSW Health Communication Systems" and Guideline 4.4.4 of the NSW Health Code of Conduct. 3. On 20 November 2018, the practitioner inappropriately used his DA HNEH Account to contact Tamworth & Kootingal Horse Riding Adventures, St George Riding, Ride@Hunter Valley Horse Riding, Adventures@Glenworth, and Sahara Trails to enquire about booking horse riding for 2 people and the cost. 4. From 17 December 2018, the practitioner, in breach of policies against impermissible personal use and inappropriate use, used his DA HNEH Account to receive at least 53 emails containing invitations to meet people from the dating site "Plenty of Fish," where he used the profile name Twarren1986. 5. On 13 March 2018 and 22 December 2018, the practitioner in breach of policies against impermissible personal use and inappropriate use, used his DA HNEH Account to join the dating sites OkCupid and Bumble. Complaint Two: The respondent is guilty of unsatisfactory professional conduct in that he has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Background to Complaint Two: In early August 2018, the practitioner, while still employed at John Hunter Hospital, commenced to supervise Person A, who worked within his team and was employed as a junior medical officer, Resident Medical Officer, and Basic Physician Trainee General Medicine. Particulars of Complaint Two: 1. Between 19 December 2018 and 13 January 2019, the practitioner stalked and/or harassed Person A by creating and operating the gmail account willkerr1980@gmail.com, in the name of a fictional employee with HNELHD, to send emails to Person A, a room-mate of Person A, and Person C, a Junior Medical Officer Manager with Tamworth Hospital where Person A was then working. The emails are set out in Schedule B to this Complaint. 2. Between 22 December 2018 and 28 December 2018, the practitioner harassed Person A when he used the DA HNEH email account to send Person A 6 emails, as set out in Schedule C to this Complaint, of an unwelcome and personal nature, and in circumstances where Person A had requested that the practitioner not contact her and/or advised him that she did not want to have an intimate relationship with him. 3. On 24 December 2018, the practitioner stalked and/or harassed Person A in that he affixed a note and a DVD of the movie "The Invention of Lying" to Person A's car, which was parked in the carpark of Tamworth Hospital, in circumstances where Person A had requested that the practitioner not contact her and/or advised him that she did not want to have a personal or intimate relationship with him. 4. Between 25 December 2018 and 12 January 2019, the practitioner harassed Person A in that he operated a gmail account that he created, being jane.pa1986@gmail.com, posing as, "Jane," a fictional Basic Physician Trainee with HNELHD, to send 6 emails to Person A and a roommate of Person A. The emails are set out in Schedule D to this Complaint. 5. On 8 January 2019, the practitioner stalked Person A in that he: a. used a mobile service number that he had falsely subscribed to in the name of Person A's mother, to send Person A's mother SMS messages, as set out in Schedule E to this complaint; b. posed as a fictional person named, "Alice" when sending the SMS messages; c. claimed in the SMS messages to be arranging a surprise birthday party for Person A and asked if Person A had a "plus one", who it was, and what their telephone number was so that they could be invited. 6. Between 10 January 2019 and 17 January 2019, the practitioner harassed Person A when he used the DA HNEH account to send Person A at least 2 emails containing comments of an unwelcome and personal nature, in circumstances where Person A had requested that he not contact her and/or advised him she did not want to have an intimate relationship with him. These emails are set out in Schedule F to this Complaint. 7. Between 11 January 2019 and 13 January 2019, the practitioner harassed Person A by operating an email account that he had created, which was in the name of a colleague, to send Person A 9 emails in which he commented inappropriately on her personal appearance and other personal matters. The emails are set out in Schedule G to this Complaint. 8. On 15 January 2019, the practitioner harassed Person A in that he: a. operated an email account that he created, being anette.read@hotmail.com, a fictional employee with HNELHD, to pose as a fictional person named "Anette" and correspond with Person B, who had previously been intimate with Person A. Posing as "Anette," the practitioner requested that Person B attend another area within John Hunter Hospital to collect some paperwork. Person B replied to say that he would come and left his desk soon afterwards; b. between 3.05pm and 3.11pm, the practitioner accessed Person B's HNEH email account and operated it to correspond with Person A's HNEH email account; c. the practitioner drafted 4 emails, two of which were successfully sent. In the emails the practitioner commented offensively and inappropriately upon Person A's personal appearance and other matters. The emails are set out in Schedule H to this Complaint. 9. On 16 January 2019, the practitioner stalked and/or harassed Person A in that he operated an email account that he had created, being cmaryum@gmail.com, posing as a fictional employee with HNELHD, to send Person D 3 emails with the intention of locating and/or coming in contact with Person A. The emails advertised a presentation that day, that was not scheduled, by another doctor and requested that reminders be sent to the Basic Physician Trainees, which included Person A. The emails are set out in Schedule I to this Complaint. Complaint Three: The respondent is otherwise not a suitable person to hold registration in the practitioner's profession in accordance with section 144 (e) of the National Law. Background to Complaint Three: The Background to Complaints 1 and 2 is repeated and relied upon. Particulars of Complaint Three: 1. The particulars of Complaints 1 and 2 are repeated and relied upon. Complaint Four: This complaint alleges that the practitioner is guilty of professional misconduct under section 139E of the National Law. Particulars of Complaint Four: 1. Complaints One and Two and the particulars thereof are relied upon individually and cumulatively." Section 150 and 150A hearings 1. A hearing was convened on 26 April 2019 by the Medical Council of New South Wales (Medical Council) in respect of the conduct of the respondent which is now particularised in Complaints one and two. As a result of the hearing, the respondent was found to have engaged in deceptive, dishonest, harassing, intimidating and threatening behaviour towards a junior female colleague he had supervised at the John Hunter Hospital in Newcastle, NSW. Pursuant to section 150(1)(a) of the National Law the Medical Council suspended the respondent's registration from 26 April 2019. 2. On 9 June 2020 proceedings were convened under section 150A of the National Law by the Medical Council to consider a request made on 26 April 2019 for a review of the decision to suspend Dr Ariyarathna from practice. On 26 June 2020 the Medical Council published its reasons. The Medical Council recommended that the suspension should be lifted, but that conditions should be imposed upon the practice of the respondent. The decision was made following 14 months of regular treatment undergone by the respondent, by psychiatrists Dr Michael Diamond, Dr Susan Messner and psychologist Ms Sue Robertson, including intensive psychotherapy. Further, it was noted that the respondent had completed CPD courses including Ethics, Creating a Safe Workplace, Physician Self-Care and Well-being and Practical Skills for Supervisors. Applicant's background 1. The applicant was born in Sri Lanka and arrived in Australia with his parents and twin brother when he was five years old. He excelled in his, attaining 99.9 in the Higher School Certificate. In 2011 he graduated MB BS from the University of New South Wales and in 2012 was employed as an intern at the Bankstown and Campbelltown hospitals. Between January 2013 and January 2014, he was employed as a resident medical officer at Bankstown and Campbelltown hospitals. He then became a basic physician trainee in St Vincent's Hospital in Sydney between 2014 at 2016. From January 2016 to January 2018 the respondent practised as an advanced trainee in nephrology rotating through Liverpool, Bankstown and St. Vincent's hospitals. In 2018 he moved to Newcastle to complete his final year as an advanced trainee in nephrology at John Hunter Hospital. In December 2018 he obtained Fellowship of the Royal Australian College of Physicians. Explanation for conduct 1. The respondent resided with his family until he relocated to work at John Hunter Hospital. The respondent had no personal experiences or relationships with girls at school. He had very limited social contact with females thereafter although there appears to have been at least one short term relationship. The respondent told Dr Diamond (whose reports are considered in detail hereunder) that during his final year in renal medicine at the hospital, he was not coping well on his own. 2. The target of the respondent's conduct was a junior registrar (Person A) at the hospital undertaking basic physician training supervised by the respondent, and the respondent became particularly attracted to Person A. They initially had coffee together as colleagues and the respondent greatly enjoyed her company. However she declined his offer to further the relationship. The respondent's infatuation with Person A continued. 3. On 5 November 2018 Person A relocated for her training to another regional hospital located at Tamworth, approximately 400 km from the John Hunter Hospital. Thereafter the respondent commenced to send her emails as detailed in the complaints and became preoccupied with her. 4. The respondent then learnt that Person A had been in a relationship with a colleague, Person B. This fact caused the respondent to become jealous and frustrated. According to Dr Diamond, the respondent lacked the skills to deal with these emotions. He became devious, intrusive and offensive in his behaviours in an attempt to contact and to re-engage with Person A. That conduct involved dishonesty, devious conduct and was ultimately destructive for himself. The respondent impersonated hospital staff and also impersonated Person B and invented "Jules" an entirely fictitious person who the respondent portrayed as a previous partner of Person B. He contacted Person A's mother in an attempt to find out information about Person A and became increasingly jealous of Person B. The respondent learnt that an apprehended violence order was issued after the respondent drove to Tamworth Hospital and left a CD and a note on her car which she reported to the police. The respondent acknowledges that this would have been "very scary" for her. 5. During the section 150A hearing the respondent provided an explanation for his behaviour and recognised his inappropriate conduct. The respondent acknowledged that his conduct was wrong and unethical but that he "pushed that to the back of his mind and ignored the consequences of his actions". Investigation 1. An investigation was conducted at the request of the HNELHD on 11 January 2019.The investigator liaised with the local police who indicated that no further action would be taken unless Person A applied for an apprehended personal violence order and such an order was breached by the respondent. The police interviewed the respondent and informed him not to communicate with Person A. On 7 February 2019 lawyers for the respondent informed the investigator that as the matter had been referred to the police, the respondent would be making no statement. The respondent was suspended from his position with the HNELHD on 18 January 2019. 2. By letter dated 26 March 2019 the respondent was informed by the applicant that it had received a complaint concerning his conduct. By letter dated 24 April 2019 the respondent replied, expressing his remorse and regret at his conduct. Medical evidence and references 1. On 16 April 2019 the respondent consulted a psychologist, Ms Sue Robertson for treatment of depression and anxiety. The respondent engaged in counselling sessions on 16 April, 30 April, 3 September, 1 October and 19 November 2019. Due to the COVID restrictions, further consultations were suspended. 2. Ms Robertson was provided with the respondent's history of his employment and his suspension. The respondent completed a survey (Depression, Anxiety and Stress Scale: DASS) which revealed a score for depression that was in the severe range. Anxiety and stress levels were in the normal range. The respondent reported feelings of shame, remorse and despair. He underwent psycho-education for his anxiety and depression, cognitive restructuring, goal setting, problem solving, social skills training, interpersonal training and sleep hygiene. 3. Ms Robertson's report dated 6 May 2020 states that the respondent engaged well and displayed a strong desire to understand his recent behaviour, to implement strategies to manage his depression and to seek therapy from a range of psychiatric and psychological practitioners. Ms Robertson stated that the respondent showed improvement in his depression, mood, family and social interactions. As to insight, she stated: "Dr Ariyarathna showed a deep level of shame about his conduct with his colleague and with the breach of his employment conditions. This shame is beyond any regret he also expressed. He had thought about how he had reached this level of inappropriate conduct. He believed that his loneliness and isolation and increasing depression had contributed significantly. He also was aware that there were signs that he should have sought advice and assistance. He has now developed strategies to monitor and manage any sign of depression or anxiety. He has sought assistance and has increased his support network. Dr Ariyarathna has discussed cultural differences and awareness, personal relationships, gender issues, boundary issues in personal professional life and continues to develop these skills. Dr Ariyarathna has shown a willingness to continue developing in these areas. He has shown understanding and concern for his colleague and for his employers. He has expressed deep remorse for the effect he has had on them, and for betraying their trust." 1. As to any concerns for reoffending, Ms Robertson said: "Based on Dr Ariyarathna's commitment to understand and improve his actions, I do not have concerns for him re-offending." Dr Susan Messner 1. Prior to the commencement of the section 150 hearing on 26 April 2019, the respondent consulted a psychiatrist. The psychiatrist had retired from practice, but referred the respondent to another psychiatrist, Dr Susan Messner. 2. Dr Susan Messner, Consultant Psychiatrist has provided reports dated 7 April 2020 and 17 June 2021 for this hearing, and gave oral evidence. Dr Messner subsequently referred the respondent to Dr Michael Diamond for further treatment. 3. Dr Messner considered that the respondent had no psychiatric illness, rather, the untoward conduct engaged in over the period was a combination of circumstances which are stated in [27] hereunder. 4. Dr Messner's latest report (17 June 2021) confirms that she consulted with the respondent on 21 April, 30 June, 14 July and 17 September 2020, 28 January and 3 May 2021. Dr Messner states that she has continued to monitor the respondent's mental health including for symptoms of depression or anxiety. 5. Dr Messner stated: "In my opinion, Dr Ariyarathna is practising appropriately. He is practising according to the conditions on his registration. He informs me he has been open with his consultants and supervisors regarding the difficulties resulting in his suspension. He describes he is enjoying his work and his confidence has gradually increased. He states he is happy and his presentation has been consistent with this. I have not identified any concerns since his return to practice." 1. As to the respondent's insight, Dr Messner stated: "In my opinion, Dr Ariyarathna does have insight into the admitted inappropriateness of his previous conduct. He recognises his behaviour was inappropriate and in breach of the area health policies. He recognises he caused unnecessary and significant distress to his work colleague and her family and that as a consequence of his behaviour he also caused his family distress. He regrets his behaviour. He is more aware of potential power imbalances in workplace relationships. He has tried to understand factors which contributed to his behaviour, such as his isolation, depressed mood, tendency to excessive infatuation and inability to discuss his emotions and behaviour with anyone and to address these factors." 1. As to the respondent's ability to safely to continue to practise medicine, Dr Messner stated: "In my opinion, Dr Ariyarathna can continue to safely practise medicine. I would suggest that the conditions currently imposed on his registration are appropriate and provide the Council with reassurance that his work is being supervised and that he is in a mentoring relationship while he continues to progress his career." 1. In her oral testimony, Dr Messner confirmed that the applicant is not suffering from any psychiatric illness and that the conduct of the respondent resulted from two principal circumstances. Dr Messner reiterated that the conduct was caused, firstly, because he was removed from the usual support of his family and friends whilst he was living in the Newcastle area; and secondly from the fact that he was unsophisticated and immature and found it impossible to deal with his emotions. He had no person readily available with whom he could discuss his thoughts. Dr Messner stated that the respondent now had no symptoms of depression, although he was anxious concerning the current hearing. He was engaging in positive activities and was practising appropriately. She stated that, in her opinion, there was nothing untoward in his returning to practise. 2. Dr Messner was extensively cross-examined but maintained her opinion that, whilst the respondent had engineered the situation of creating fictitious people, and that his conduct was deceitful, it was carried out in the misguided hope that Person A would be undermined in her confidence so that the respondent would have a greater chance of obtaining her affection. She reiterated that the basic reason for the respondent's conduct was his immaturity and lack of emotional development. Dr Michael Diamond 1. Dr Michael Diamond, Consultant Psychiatrist, provided reports dated 14 April 2020 and 27 June 2021. Dr Diamond provided treatment for the respondent upon referral from Dr Messner. Dr Diamond concluded that the respondent is not suffering from any impairment. He considered that the respondent's conduct resulted from the fact that the respondent had very little psychosexual experience; he had undeveloped, immature and juvenile ideas in this regard and he was endeavouring (albeit inappropriately) to deal with his emotions. He relied upon his immaturity and "quirky" ideas as to how he should conduct himself. He did so in the sole attempt to gain the affection and attention of Person A with whom he had become infatuated. 2. In his latest report, (27 June 2021) Dr Diamond states that he initially consulted with the respondent on 12 September 2019. In respect of the matters discussed with the respondent, Dr Diamond said: "Dr Ariyarathna was treated by my colleague, Dr Susan Messner, who referred him to me specifically for psychotherapy aimed at assisting him to gain better understanding and deeper insight into the vulnerabilities associated with his offending conduct. While seeing me for psychotherapy, Dr Ariyarathna continued to see Dr Messner who managed the anxiety and depressive symptoms that were present from the time his offending conduct came to light. Dr Messner instituted antidepressant treatment and supervised this to its conclusion. I am aware that Dr Ariyarathna stopped taking the antidepressant medication, duloxetine, under the supervision of Dr Messner in about April 2020 when his reactive psychiatric symptoms had resolved and he no longer was diagnosed with Adjustment Disorder." 1. Dr Diamond referred to the respondent's return to work following the section 150A Hearing and said: "As Dr Ariyarathna has embraced the opportunity to return to the workplace and to engage within the clinical environment amongst his peers, work colleagues of various disciplines and with senior medical supervisors and consultants, his insights have further deepened. The matters we discuss are frequently related to experiences he has had upon resumption of his work within the hospital environment. There is frequent review of those experiences that emerge in the workplace, the manner in which he has been able to competently deal with his professional responsibilities and to acquit himself without cause for any concern. Further matters regarding the progress of his professional aspirations are discussed regularly. He has made the entry into the workplace in an impressive fashion. He works in a multidisciplinary team environment. He relates to a wide range of medical, allied health and nursing colleagues. He has worked successfully in his role as a junior consultant providing specialist medical consultation services to a number of teams involving orthopaedic surgeons, rehabilitation services and psychiatry in the environment of geriatric medicine. He is successful in his role. He has obtained an accredited training position and an extension of his initial six month contract to an additional twelve month accredited training position to pursue advanced training in the dual capacity of geriatrics and renal medicine." 1. As to his ability to practise, Dr Diamond stated: "My assessment is that Dr Ariyarathna is practising appropriately. This is borne out by his progress in the workplace where he has assumed a role as a valued member of the medical team. He has regular consultant interaction. My understanding is that his performance at work has been a source of compliments. His positive practice has resulted in him being offered a twelve month contract within the appropriate accredited training program for his speciality. He has participated in presentations, education initiatives and in teambuilding social events without difficulty or incident. On the basis of this information I have not identified any concerns since Dr Ariyarathna has returned to practice. He has, in my opinion, thrived in that environment and has used the insights and skills that he gained during the psychotherapy in a positive and productive manner." 1. As to the future and whether the respondent can safely continue to practise, Dr Diamond said: "My answer to the first part of the question is that I am comfortably satisfied that Dr Ariyarathna can safely continue to practise medicine. He has had no difficulty reengaging in the medical and hospital environment. He has thrived in his professional role. He has conducted himself with competence and safety." 1. Dr Diamond added: "From my report it is clear that I am supportive Dr Ariyarathna remaining in the workplace and pursuing his medical career. He has demonstrated to me significant maturation and a broadening of his perception of his professional roles as he has become a more senior medical practitioner progressing to specialist consultant qualification in his fields. Throughout my contact with Dr Ariyarathna he has not exhibited any sign of impairment. He does not suffer from any long term psychiatric disorder although he suffered a reactive state in response to the challenges he faced when his offending conduct was exposed. My view is that Dr Ariyarathna has embraced the opportunity to educate himself about the basis of his misconduct, to gain significant insight and to explore the effects of his aberrant conduct. He has faced his personal and developmental vulnerabilities and has demonstrate remediation in the course of psychotherapy. He has appreciated the nature and extent of the harm he caused and has approached this understanding in a sensitive and empathic manner. I find no evidence to support a diagnosis of Personality Disorder or evidence of exploitative or predatory behaviour patterns that would cause concern about Dr Ariyarathna." 1. Dr Diamond provided oral evidence. He confirmed that he had seen the respondent for regular fortnightly intensive therapy for an hour face-to-face from the 12 September 2019 until the COVID restrictions in March 2020. During those sessions the respondent's conduct was discussed in detail. Dr Diamond reiterated that the respondent was immature, hapless and a vulnerable person. He had no significant predatory background and he was not dealing with a disturbed intent. Dr Diamond repeated that the respondent's conduct resulted in the fact that he had very little psychosexual experience; he had undeveloped juvenile ideas; and was trying to deal with his emotions in an immature and "quirky" manner. Dr Diamond was of the opinion that the respondent believed he could win the interest of Person A with a series of lies to persuade her that she should like him. 2. Dr Diamond is now consulting with the respondent every 2 months. He believes the respondent has appropriate insight and remorse; that the respondent is now better equipped to deal with building personal/romantic relationships and conducting himself appropriately; and that he is embracing challenges at work and managing effectively. Dr Diamond believes that the respondent is now functioning normally; is socialising appropriately; has greater professional responsibility; and has appropriate supervisory support. He considered that the respondent is now suitable for practice. As to the risk of a repetition of the inappropriate conduct, Dr Diamond stated that he considered it "improbable". The respondent has diligently attended his therapy sessions, has been compliant with treatment recommendations, is punctual, and would accept treatment into the future. Dr Diamond considered it was very unlikely that there would ever be a return to deceptive behaviour. 3. In cross-examination Dr Diamond explained that the respondent had been very candid and had not attempted to obfuscate or omit any detail in consultations. Dr Diamond again confirmed that the conduct had resulted from juvenile and immature psychosexual development, and that the conduct was the manifestation of an immature and inexperienced person in the context of infatuation with a colleague. 4. When asked about the unauthorised access to electronic medical records, the assumption of false identities and the impersonation of a fellow worker, Dr Diamond regarded such conduct as being another manifestation of the same problem. He stated that the respondent had found himself in a senior position at the hospital; was infatuated by Person A; had no experience to draw on and no person to refer to; had an inability to have empathy with the recipients of his conduct; that his scheme was infantile; that he was isolated and away from home and was vulnerable. In growing up the respondent had no experience of the opposite sex and whilst he was mature in other respects, he had virtually no experience in dealing with the opposite sex. Dr Diamond considered that it is likely the respondent was "thrilled" at his manipulation without thinking of the consequences, and that he received gratification from the strategies he uses to try to achieve his objective. Dr Diamond said the respondent was very ashamed of his conduct and now understands the need to seek the support of his family and friends if he has emotional difficulties. 5. Dr Diamond stated that the respondent now had the support of his brother and his parents, as well as the friends he had made in his new role in a different hospital. Dr Diamond stated that he will continue to review the respondent regularly, and that he will make himself available so that the respondent can contact him for more appointments in the event he feels the need for this. Dr Mark Penny 1. Dr Mark Penny has acted as an approved mentor for the respondent (as required by Practice Condition 5, imposed by the Medical Council). Dr Penny has provided a letter dated 15 June 2021. Dr Penny has had four meetings by telephone with the respondent (who is now working in Melbourne) on 7 September 2020, 20 November 2020, 25 January 2021 and 11 May 2021. 2. Significantly, Dr Penny said: "It has been quite clear to me from the time [Dr Ariyarathna] first contacted me asking if I could be a mentor, that he had full insight into the inappropriateness of his behaviour: that it was unprofessional, caused great harm to the work colleague who was the target of his behaviour, and also brought shame upon his family. Furthermore, I believe his insight into the circumstances that led to his behaviour suggests that it would not be repeated. My belief is that [Dr Ariyarathna] is safe to continue to practice clinical medicine. His clinical skills, nor interactions with patients or family have ever been brought into question. Furthermore, although his behaviour was completely inappropriate and unprofessional this appears to have been a one off. There has certainly been no pattern of such behaviour to suggest that he is likely to re-offend. I would have thought that ongoing limitations on clinical practice are probably unnecessary. [Dr Ariyarathna] had previously worked for me as a Registrar. I always found him to be polite, respectful, and quietly spoken with all work colleagues irrespective of their role within the workplace or their gender. I was therefore quite shocked to hear of the findings against him regarding his inappropriate behaviour. His insight and remorse regarding the inappropriateness of his behaviour and the harm that he has caused suggests that I think it is unlikely that this would be repeated. I believe that he has learnt his lesson and should now be allowed to get on with a normal professional and personal life." Professor Angela Makris 1. Professor Angela Makris has acted as an approved Category C supervisor for the respondent (as required by Practice Condition 4 imposed by the Medical Council). 2. Professor Makris has met with the respondent 11 times since July 2020 to discuss his clinical performance, teamwork, patient care, professional boundaries, personal life and psycho-social well-being. She states that the respondent has demonstrated a commitment to ongoing practice of medicine; has undertaken research projects/audits, courses and describes new skills he is developing; that he has demonstrated remorse for his behaviour. Professor Makris states that the respondent has demonstrated behaviour that is clinically safe and appropriate and is practising medicine safely. She considers that the degree of supervision could be reduced. Medical Referees 1. Dr Shweta Kumar, rheumatologist, has provided a character reference dated 3 June 2021. In such letter, Dr Kumar states that she has known the respondent for over 10 years and was shocked to hear of the events which led to his suspension. She states that the respondent was separated from his family and friends; that he has sincere regret for the events and that he has spent over 18 months reforming his mental health. She stated she has no hesitation in recommending the reinstatement of the respondent stating: "... [A]s I am confident that these events occurred solely in the event of an acute mental health disturbance as outlined. He is an extremely dedicated and excellent clinician and it would be a great loss to patients as well as the medical community if he were to not practise in the future." 1. Dr Yong Hee Kim: Rehabilitation specialist and specialist physician at the South Australian Brain Injury Rehabilitation Service. Dr Kim has provided a letter dated 5 June 2021 which refers to his close friendship with the respondent arising from medical school; that the respondent is considered to be a caring and honest person. Dr Kim states that the respondent has contributed to the medical care of many people with illness in hospital and in the community over the past decade. He states: "I believe the conduct of the subject of the complaint is not consistent with Dr Ariyarathna's character. The conduct described in the application appears to me as unreciprocated affection and obsession expressed and pursued beyond [a] culturally, morally and legal accepted way. My initial reaction to the application was disbelief and disappointment in that it was very difficult to imagine Dr Ariyarathna conducted in the way he was portraited [sic] in the application." 1. Dr Chanel Chong, Nephrologist, has provided a letter dated 9 June 2021. Such letter refers to an acquaintance with the respondent through his work at the Liverpool Hospital from 2017. Dr Chong states: "[Dr Ariyarathna's] behaviour whilst in John Hunter Hospital does not appear to be consistent with his character. He has been forthcoming with me with regards to the events outlined in the application for disciplinary findings and orders by the NCAT (Occupational Division). Importantly, he acknowledges the aforementioned misconduct and accepts responsibility for his actions." 1. Dr Benjamin Nham, consultant neurologist: Dr Nham stated he has known the respondent as a fellow student since 2007 and having professionally worked with him between 2011 – 2012. He has described the respondent's excellent work ethic and describes him as a "caring medical professional" who is very remorseful for his actions and has sought to address his inappropriate conduct and his own mental health issues. Other references 1. References have been provided by other experienced practitioners including Dr A Gillies, Senior Staff Specialist and Conjoint Associate Professor of Medicine, HNELHD who speaks of having known and trained the respondent at the Royal Australian of College of Physicians during 2018; Dr Chua Tran who studied with the respondent; Dr Pulkit Singh, general adult psychiatrist in Vancouver, Canada, who attended medical school with the respondent between 2006 and 2011 at the University of New South Wales; Dr Beta Zahorowska, nephrologist at Liverpool hospital. The references speak of the dedication and caring of the respondent and of the fact that the conduct was wholly out of keeping with the respondent's qualities. 2. Dr Marianne Wadsley, geriatrician at Monash Health, Head of Ortho-Geriatric service: this reference refers to the current employment of the respondent where he is employed as an advanced trainee in geriatric medicine. She has regularly observed the respondent and stated he has demonstrated respect for colleagues, including junior staff and medical students, and he is respectful and careful to observe professional boundaries. There have been no concerns raised by other team members. Dr Wadsley states that the respondent is a competent clinician who has demonstrated sound clinical skill and practice. She states: "I have no concerns with respect to his clinical acumen, safety or professional behaviour. With respect to Geriatric medicine, he requires further curricular and experiential knowledge development before he will be appropriate to work as a specialist in the field. He quietly attends to his work, engaging with staff with clear evidence of professional boundaries. Dr Ariyarathna has apprised me of the circumstances and events that form the basis of his initial reporting to the Australian Health Practitioner's Regulation Authority and hence this hearing. During this discussion he expressed remorse at his behaviour and insight into the inappropriateness of this behaviour. I have seen no evidence to suggest that this behaviour is likely to recur in the future." 1. Dr Nilshan Ariyaranthna, consultant cardiologist and brother of the respondent, has provided a reference, in which he refers to the respondent's strong moral values and ethics which were imputed upon him through their family and association with their regular attendance at Buddhist temples. He speaks of the fact that he and the respondent attended the same school and university and that the respondent has always excelled in academic achievement; that they had a Buddhist upbringing in Western Sydney and that the respondent always wished to pursue the profession of medicine. The reference refers to the fact that the conduct of the respondent is totally out of character and he believes must have resulted from situational depression. He notes that the respondent has seen a clinical psychologist; has put in place strategies including mindfulness practices, regular physical activity and social networking and that his mental health has improved. He has also returned to Buddhist practices. The referee states that the respondent's commitment to patient care is demonstrated by his ability to continue to work and provide a geriatric service to the Victorian community as a registrar training in geriatric medicine. He states that the respondent has completed nephrology and is completing his geriatric training to offer a geriatric nephrologist service to the Australian public which would be invaluable and unique. Submissions 1. The Tribunal heard extensive oral and written submissions from the representatives of each party. The respondent indicated that he did not object to any of the conditions on his practice that might be imposed, as submitted by the applicant. The only difference between the parties related to whether it was necessary to impose a disciplinary sanction of a three month suspension, or whether the public interest would be served equally well by a reprimand and by publication of these reasons. The Tribunal will state its findings hereunder. Findings 1. The respondent was extensively cross-examined and answered questions asked of him by the Tribunal. The Tribunal will summarise the critical considerations hereunder. 2. Person A met the respondent during her first week of her nephrology term at the John Hunter Hospital which commenced on or about 5 November 2018. Person A was employed as a Resident Medical Officer and Basic Physician Trainee (General Medicine) at that hospital. 3. The respondent was an Advanced Trainee in Nephrology, and Person A was working under the supervision of the respondent. He became infatuated with her, and then engaged in conduct between November 2018 and January 2019 which has led to these proceedings. Because of her employment, the respondent learnt of her email address and mobile telephone number. 4. The respondent asked Person A out on outings. For example by email sent on 27 November 2018 he asked if she would like to go horse riding and stated that he had reserved a place for two on a horse riding expedition in the Hunter Valley. The respondent did not respond immediately, but sometime later responded, stating that she could not attend because she was working double shifts at the weekend. The respondent replied: "apologies if i am annoyed you… I didn't mean to. You don't need to say sorry to me ever [name of Person A], because it's me who does the stupid things. All the best" 1. Subsequently other emails passed between the parties. However, by email dated 3 December 2018, Person A made it plain that she was not interested in pursuing a relationship, stating: "I'm starting to feel a bit uncomfortable about things. Let's just leave things as they are". 1. The respondent acknowledged her wishes, but he continued to send emails expressing his admiration for her beauty. Person A asked the respondent to cease. He responded: "Sorry I never meant for you to get uncomfortable… I'm fortunate to have met someone like you, [name of Person A]. All the best." 1. Thereafter the respondent engaged in a campaign to secretly pursue Person A, and to ascertain whether she had another relationship. He commenced to engage in the conduct referred to hereunder. His explanation to the Tribunal was that he felt rejected; he wished to ingratiate himself upon her; and he was bitterly resentful of anyone else who may be securing her attention. 2. Person A transferred to Tamworth Hospital in late November 2018 to continue her physician's training. Shortly after arriving at the new hospital she received several messages on her mobile telephone from an unknown sender, purportedly from a fictitious person identified as "Jules". One such message alleged that Person A was dating her husband/boyfriend. Person A deleted the initial message thinking that the sender had wrongly addressed the recipient. Thereafter she continued to receive multiple persistent messages. One message made reference to a name Person A recognised as being the name of Person B, her current male friend. The messages Person A received were abusive and offensive. 3. The Tribunal was particularly concerned at, not only the content of the electronic messages which were sent to Person A (including messages not included in the Complaints) but also the very devious means by which the respondent was able to send such messages. Dimensions of conduct 1. The respondent's conduct has several dimensions. Some details were not included in the Complaints, but they have emerged during the hearing and are relevant for the purpose of assessing the issue of disciplinary sanctions. In addition to sending false emails or false What's-App messages, the respondent engaged in the following conduct: 1. The first dimension is as follows: 1. The respondent created gmail accounts in the names of other persons (as set out in particular 1, 4, 5, 9 of Complaint 2) such as "Will Kerr", "Jane P", "Anette Read", "Maryum" (said to be persons working or training at the hospital) for the purpose of carrying out his scheme of attempting to elicit information from Person A in relation to the question of whether she had a partner or was dating. Such emails were sent to other persons, namely a roommate of Person A, Person B and a junior medical officer manager. 2. The messages sent were couched in such language to create a totally false impression of the sender and the circumstances: for example, using the fictional name "Jane P" he sent a sham email on 8 January 2019 stating: "… My partner and I are moving up there (new location of Person A) on the thu/fri end of term. We and few of the new registrars we going to book dinner somewhere with the leaving regs; would be nice to meet you. If you have a +1 you're welcome to bring them as well or bring yourself if you're happily single…" Using the name of "Will Kerr", the respondent sent an email on 10 January 2019 to Person A advising her that an end of term dinner would be held at a restaurant in the near future. The message stated: "We are keen to invite partners as well so if you could let me know if you are planning to bring a partner (and their name) or are you happily single so I can get an idea of numbers and which weekend to hold so everyone can come". Such event was a sham and a ruse: the whole purpose was to elicit information from the recipient. 1. In order to establish a sexual profile for himself, the respondent sent a message in the name of "Amanda Evans" to himself entitled "Newcastle family". The email purported to be an advertisement introducing the sender who was a sexual advisor and organiser with another person ("Binh- we") of sexual fantasy nights. The invitation gave a summary of the explicit activities which would be engaged in of a wholly salacious and sexual nature. It invited the recipient to attend concluding "Remember life's too short not to have sex regularly, buddy sex and any type of sex". Sending this and other messages related to the fictitious person Amanda Evans was in breach of the Hunter New England Health guidelines in relation to the use of the hospital-based electronic messaging service. 2. Many other emails were sent by the respondent under assumed names using sham email addresses. 3. To carry out his practice using fictional emails, the applicant used the Hunter New England Health email account without permission. To do so he impersonated the names of others. 4. The respondent used such email account, contrary to the policies and permissible uses, to receive 53 emails containing invitations to meet people from the dating site "Plenty of Fish, (where he used the profile name of "T warren 1986"), as set out in particular 4 of Complaint 1. 5. Between 13 March 2018 and 22 December 2018 the practitioner used such account to join dating sites, namely OkCupid and Bumble as set out in particular 5 of Complaint 1. 1. The second dimension is the extent to which the respondent was prepared to perpetrate his deception. He believed that Person A was seeing another person (Person B) who worked at the hospital. The respondent decided to try to send a sham message from the office of Person B to Person A (as set out in particular 8 of Complaint 2). To carry out such purpose the respondent: 1. on the 15th of January 2019, sent a fake sms message to person B informing him that his car lights were left on. Person B knew that this was incorrect as he had ridden his bicycle to work. He assumed the message was sent to him in error. 2. because this first ruse was unsuccessful, the respondent then sent person B an email dated 15th of January 2019 from "Anette Read" informing Person B that some urgent forms were left for him by the Head of Medicine and were available for collection and requesting that he "spare 5 min" to collect them at 3:30 PM Tuesday, from the Department of Medicine. 3. knowing that Person B would be attending to collect the forms at that date and time, and that the computer of Person B would be unattended, the respondent gained access to Person B's computer. 4. the respondent then sent a message (dated 15 of January 2019) from Person B's computer to Person A purportedly from Person B. 5. the message was sent, using the hospital's email service, in the most derogatory terms regarding Person A. It made insulting personal remarks concerning her appearance and it was written in a way to belittle and demean Person A. The email stated (in part): "that's the real reason I asked you out, for sex, you aren't special. You remind me of her [a fictional new girlfriend] … except the unsightly skin lesions, pronounced chin and wide shoulders… but the cheaper option. there is a farewell bar party for the leaving regs/fellows, I might take my new GF to it, will you be there… You might meet her!!. You may then see what attractive looks like. So there, that's last thing [sic) I wanted to get off my chest. You won't hear from me again and don't contact me!" 1. the above email was preceded by others in a similar vein where the respondent used a fake gmail account in the name of Person B to send other abusive and derogatory emails to Person A. The respondent stated that he had the earnest hope that if Person A believed that Person B was no longer interested in her, and that she was seen as physically unattractive, that he (the respondent), would have a chance of securing Person A's attention and affection. This was the motive of this bizarre conduct. In one email the respondent falsely alleged that Person B had a child by another person ("Jules"). 2. the respondent also sent sham emails in a false name to Person A on three occasions, as set out in particular 9 of Complaint 2 ,advising of events that did not exist, in the hope that he might be able to meet Person A. 1. The third dimension displays another level of deviousness. The respondent, (as set out in particular 5 of Complaint 2) decided to contact Person A's mother to find out if she knew about her daughter's relationship status. To do this he did the following: 1. he purchased a new mobile phone and account to use such phone. 2. to open the mobile phone account, he used his mother's details and passport number so that his own details were not recorded in the hope that it could not be traced back to him. 3. he then accessed the private employee records relating to Person A held by the John Hunter Hospital so he could ascertain the contact details for the next of kin of Person A. He accessed the record when a work-based computer was logged in under another staff member's name. 4. having obtained such details of Person A's mother, he sent her a text message purportedly from "Alice". 5. the message stated: "hi [Person A's mother]. I'm one of (Person A) friends from John Hunter. Hope you are well. I'm looking to have a secret surprise dinner for [Person A] in… month and was wondering if you'd be in Newcastle Alice Also plz don't tell her me, and several friends are planning a surprise lol!!" 1. the mother of Person A believed the messages genuine and that her daughter's friends were planning a celebratory dinner for Person A. A text message exchange followed. In the following texts the respondent sought to find out more details of those who might attend the "dinner" and enquired who might be interested in attending. One text concluded: "Great. And is she seeing someone at the moment? I would like to formally invite him as well" 1. Person A's mother obviously believed she was corresponding with one of her daughter's friends and provided some information to "Alice". The deception only became apparent when Person A's mother mentioned to her daughter that her friend "Alice" had been in contact with her. Person A was puzzled stating that she did not know of any person by that name. 1. The respondent learnt that Person A had accessed a dating service, Bumble. Accordingly he sent false messages allegedly from the dating service for Person A, requesting that she provide answers to a survey. The message was cast in such terms as to make Person A believe that the message was entirely genuine. 2. After Person A relocated to Tamworth Hospital from John Hunter Hospital, the respondent attempted to maintain contact with her. Person A's new location was approximately 400 km from Newcastle. 1. After work in December 2018, the respondent drove to the new location and searched out Person A's car in the hospital car park. He placed a DVD entitled "The Invention of Lying" and a note on the car, and upon adjacent cars. The DVD was a romantic comedy, but it related to a person who had been unlucky in relationships who utilised lying to try to secure a relationship with a woman he was interested in. The respondent apparently was trying to convey an analogy between the circumstances in the DVD and Person A's circumstances. The respondent later sent a message attempting to blame Person B for leaving the DVD on her car. 2. Even though Person A had relocated, the respondent visited the hospital and left macadamia slices for her in the common room refrigerator, as he knew that she was partial to macadamia slices. Principles 1. One of the overriding objectives of the National Law is stated in section 3A, namely: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Section 139 of the National Law relevantly requires that a person be competent to practise a health and safety profession only if the person: 1. has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and 2. has sufficient communication skills for the practice of the profession, including an adequate command of the English language. 1. Section 139B of the National Law defines "unsatisfactory professional conduct" relevantly as follows: (1) (l) any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 144 of the National Law authorises a complaint to be made in certain circumstances including as provided in subparagraph (e): A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. Unsatisfactory professional conduct 1. The Tribunal must be confident that a practitioner is a fit and proper person to practise medicine. The conduct of the respondent has been inappropriate, as discussed above. Conduct which may result in the imposition of a disciplinary sanction can constitute unsatisfactory professional conduct as defined. If the conduct of a practitioner is not in conformity with the standards of professional conduct and practice, it may be regarded as "improper": see R v Byrnes (1995) 183 CLR 501 at 514-515; [1995] HCA 1; Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [40]-[41]. The conduct may be described as improper if it is "unethical "conduct. In Slezak, Dr Peter [2011] NSWMPSC 10 at [80], [83] and [87], the Tribunal observed that improper or unethical conduct is determined by reference to the views of reasonable members of the profession. Conduct which has a tendency to bring into disrepute, or does bring a professional calling into disrepute, is conduct which, by reasonable standards is seen as falling below the standard of conduct expected by that class of persons: see Office of Local Government v Toma [2016] NSWCATOD 21. In Parker v Comptroller-General of Customs (2009) 83 ALJR 494; [2009] HCA 7, French CJ said at [29]: "… [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule, abnormal, irregular; incorrect, inaccurate, erroneous, wrong". 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said at [20]: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify an order, a characterisation which must depend upon an evaluative judgement made by the Tribunal. 1. The New South Wales Court of Appeal has stated the rationale for the making of protective orders in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. That paragraph states as the object of protecting the health and safety of the public and upholding public confidence in the standards the profession, relevantly as follows: "That objective is achieved by setting and maintaining those standards and, where appropriate by cancelling the registration of practitioners who are not competent or otherwise not fit to practise including those who have been guilty of serious misconduct." Professional misconduct 1. The Complaint alleges not only unsatisfactory professional conduct but also professional misconduct defined in section 139E to include: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Standard of Proof 1. The Tribunal must be satisfied to a high degree that the conduct complained of is established to its satisfaction. The usual test is that applied in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. See also the test described in Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]. Findings: Respondent's conduct 1. The respondent has engaged in conduct which is unsatisfactory professional conduct. The Tribunal finds that the conduct complained of is of such a serious nature as to constitute professional misconduct. The conduct was directed at a fellow medical professional; it was conducted from the privileged position which the respondent had as the supervisor of a more junior professional; it was calculated in a most devious way to bring an ulterior result; it was calculated and carried out deliberately. Such conduct, when using the carriage service of the HNELHD was in breach of Guidelines 3.1 and 3.2 of the NSW Health Policy Directive "Use and Management of Misuse of NSW Health Communication Systems" and Guideline 4.4.4 of the NSW Health Code of Conduct. 2. The Tribunal accepts: 1. the conclusions of the psychiatrists, Dr Messner and Dr Diamond which provide an insight into the conduct of the respondent, and the conclusion of Ms Robertson, psychologist to the same effect; 2. that any recurrence of such conduct, whilst the possibility cannot be wholly excluded, is most unlikely; 3. that the respondent is not impaired; 4. that the conduct of the respondent has arisen solely out of the particular circumstances which were foreign to him, namely being relocated to a place where he was away from his family and friends (and experiencing social isolation and limited emotional support), combined with the fact that he was immature and lacking experience in the development of romantic relationships, having become infatuated with a more junior female colleague; and 5. that the conduct has arisen from the fact that the respondent was in need of psychiatric help which he has now received and continues to receive. Disciplinary sanction Applicant's Proposals 1. The applicant proposes, and the respondent accepts, that conditions are required for his future practice. The Tribunal has considered the proposed conditions, and accepts that they are appropriate. 2. The Tribunal notes that whereas the original conduct warranted a suspension from practice by the Medical Council, on review the suspension was lifted and conditions imposed. 3. The applicant also seeks an order that the respondent be suspended from practice for a period of three months. The applicant submits that such an order is necessary in serving two purposes, namely to denounce the applicant's conduct; and to deter other practitioners from engaging in such conduct. It is also submitted that such an order is required to ensure that the public confidence is maintained in the standards of the medical profession. Respondent's Proposal 1. The respondent does not agree that a suspension is required. The respondent points out that: 1. the respondent has already been suspended: firstly, by the HNELHD on 18 January 2019; secondly as a result of the orders made by the Medical Council on 26 April 2019 following its determination after the section 150 hearing. The respondent remained suspended until the review conducted under section 150A on 9 June 2020. Accordingly, the respondent has already suffered a suspension of almost 18 months; 2. the respondent has expressed remorse and contrition and the reasons for his conduct have been fully explained; and 3. the respondent has been shamed by these proceedings, and continues to be shamed, by the reasons of this Tribunal which will be publicly known. 1. The following factors are also raised as reasons why a suspension should not be imposed: 1. the respondent is currently engaged in highly significant and unique medical training for the benefit of the community. He is undertaking further studies to become dually trained as a Geriatrician and Renal Physician. He is now 1 ½ months into the current six-month term of a Geriatric training program which (with further training) will qualify him to be a specialist in this field. A suspension would have the consequence of interrupting this training. 2. the respondent is undertaking highly valued work in his current appointment at a hospital in Victoria. Dr Wadsley, the Consultant Physician in Geriatric and General Medicine and Head of Service (reference already referred to in these reasons) has spoken highly of the respondent's skills and interactions. 3. the applicant has engaged in Ethics and other relevant courses following his suspension. Consideration: Suspension 1. The issue of a suspension is one which the Tribunal debated extensively. The inappropriate conduct of the respondent was of an extremely serious nature and inconsistent with the standards expected of a medical practitioner. Such conduct rendered him unfit for practice. However, the counterbalancing factor is that the reasons underlying such conduct have been explained to the Tribunal, have been addressed through professional treatment and continue to be addressed through such treatment. Medical professionals providing mentoring and supervision of the respondent have identified no further issues of concern and have noted a high level of professional behaviour within the workplace. 2. The Tribunal is mindful that the purpose of disciplinary sanctions is not punishment: rather it is solely protective. There is the need to not only protect the public interest, but also to maintain proper professional standards: see Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]. Barrett JA in Lee at [20] referred to the observations of Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83] where his Honour made inter alia the following points: 1. The specific purpose which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The protective effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 1. On the expert evidence available, the prospect of a recurrence of the conduct is most unlikely. The need for a suspension in order to protect the public is therefore not apparent. The primary purpose it would serve would be to show denunciation of the conduct and to act as a deterrent. 2. The unique circumstances under which the respondent's behaviour was inappropriate for the relatively short period between November 2018 and January 2019 have been explained. In addition, the respondent had a sustained period of suspension from his medical duties once his aberrant behaviours came to light in a work environment. The utility of the suspension to deter other practitioners from such conduct would therefore appear to be negligible. 3. In Qasim v Health Care Complaints Commission [2015] NSWCA 282 it was claimed that the Tribunal had erred when imposing sanctions to refuse the practitioner reregistration for a period of four years, by failing to take into consideration the fact that the practitioner had been suspended for a considerable period: see [72]-[73]. The Court of Appeal rejected such contention at [74] noting: "In circumstances where it was not suggested that at any time during the three and a half year suspension from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. Accordingly there was no failure of the Tribunal to take into account a mandatory relevant consideration and it did not err in law in not doing so." 1. The facts may be contrasted with those of the present respondent. The respondent recognised that he needed assistance and promptly consulted a psychologist and a psychiatrist even before the section 150 hearing. The respondent has engaged in intensive therapy since that time and is continuing to do so. The respondent recognised that he had a problem which has now been treated successfully. In addition, he undertook numerous courses to improve his ethical approach and his ability to cope with future demands. 2. The Tribunal notes the genuine remorse and contrition expressed by the respondent; the fact that the conduct took place over a short period of time; and that patients were not harmed. Further, the Tribunal notes the period of significant suspension which has already occurred, and the extensive remediation undertaken by the respondent during this time (including undertaking numerous relevant courses) and since his return to work. The Tribunal also considers that it is in the public interest for the respondent to continue in practice, as he continues to provide an important contribution to the health of the public. The respondent has been fully compliant with the conditions on his registration, has fully co-operated with all proceedings, and has indicated his willingness to continue to engage with any conditions imposed and with ongoing psychological therapy. The respondent recognises the hurt he caused to Patient A. 3. In these circumstances, the Tribunal in its discretion, and exercising its judgement, as it is entitled to do (see Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]) takes into consideration the suspension which has already taken place. In these circumstances, it sees little merit in requiring a further suspension and believes that a further suspension would be akin to a punishment or penalty. For these reasons, the Tribunal will not impose any further suspension. 4. In lieu of a suspension, the Tribunal considers that it is appropriate to publicly express its condemnation of the respondent's conduct by issuing a reprimand in accordance with the provisions of section 149A of the National Law. Further, the respondent is to practise in accordance with the conditions proposed by the applicant and considered appropriate by the Tribunal, as set out in Schedule A to this decision. Costs 1. The applicant seeks its costs of these proceedings and the submissions of the respondent do not oppose such application. 2. The Tribunal may award costs specifically under the provisions of the National Law: see clause 13 of Schedule 5D. The usual rule is that the unsuccessful party pays the costs of the successful party. As the applicant has been successful in obtaining findings and orders in its favour, in accordance with the principles followed in Qasim v Health Care Complaints Commission at [84]-[85]; Windsor v Health Care Complaints Commission [2020] NSWCA 110; Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337; and Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[44], the Tribunal will order the respondent to pay the applicant's costs. It should be noted that such costs are solely compensatory and not punitive in nature: see Latoudis v Casey (1990) 170 CLR 534 especially at 543 (per Mason CJ). Orders 1. The Tribunal orders: 1. Pursuant to section 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), the respondent is reprimanded; 2. The conditions on the respondent's practice imposed by the Medical Council on 9 June 2020 are revoked; and 3. Pursuant to s 149A(1)(b), (d), (e) and (f) of the Health Practitioner Regulation National Law (NSW), the respondent is to practise in accordance with the Practice and Health conditions set out below: Practice Conditions 1. To obtain Medical Council approval prior to changing the nature or place of his practice. 2. Not to undertake solo medical practice. 3. Not to be the sole supervisor of any junior practitioner. 4. To practise under category C supervision in accordance with the Medical Council's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. Clinical performance; ii. Professional staff boundaries; iii. Team work; and iv. Professional communication. (b) To authorise the Medical Council to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 5. To nominate an experienced medical physician to act as his professional mentor for approval by Medical Council in accordance with the Medical Council's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each mentoring meeting the practitioner is to include discussion of the following: i. Professional ethics; ii. Career progression; and iii. Any other topics of relevance. (b) To authorise the mentor to report, in an approved format, to the Medical Council every 6 months about the fact of contact, and to inform the Medical Council if there is any concern about his professional conduct, health or personal wellbeing. (c) To authorise the Medical Council to provide proposed and approved mentors with a copy of the decision that imposed these conditions. 6. To have completed between April 2019 to a date within 6 months of the imposition of these conditions at least 1 online course by an appropriate medical body concerning responsible communication incorporating the use of email and social media as well as at least 1 other online course to ensure that he has a proper knowledge of regulations and procedures regarding workplace behaviour and conduct: (a) Within 3 months of the imposition of these conditions the practitioner must provide evidence to the Medical Council with his enrolment in the abovementioned courses; (b) Within 1 month of completing the abovementioned courses, the practitioner is to provide documentary evidence to the Medical Council that he has satisfactorily completed the courses; and (c) The practitioner is to bear responsibility for any costs incurred in meeting this condition. 7. In the event that the above-mentioned courses are unavailable, the practitioner must propose to the Medical Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from the date of the imposition of these conditions. 8. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply should the Respondent's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. Should the respondent relocate to NSW, the Medical Council of NSW will be the relevant review body. Health Conditions 9. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating practitioner. The respondent is to: (a) authorise the treating practitioner to inform the Medical Council (or equivalent) of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) provide the Medical Council with the professional details of the treating practitioner. 1. The respondent is to pay the applicant's costs of and incidental to these proceedings pursuant to clause 13 of Schedule 5D to the Health Practitioner Regulation National Law (NSW). ********** 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 October 2021 - 7 October 2021 – Publication Restriction corrected to permit publication of the names of the referees 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 October 2021