Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sbirziola [2022] NSWCATOD 118 Hearing dates: 4 October 2022 Date of orders: 14 October 2022 Decision date: 14 October 2022 Jurisdiction: Occupational Division Before: The Hon Jennifer Boland AM, Deputy President D North OAM, Senior Member T Hehir, Senior Member R Kusuma, General Member Decision: 1. Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (NSW) (the National Law) the Tribunal determined that if Luigi Sbirziola (the practitioner) was still registered it would have cancelled his registration. 2. Pursuant to s 149C(7) of the National Law the practitioner may not seek review of Order 1 for a period of 10 years from the date of these orders. 3. Pursuant to s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the practitioner was still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 4. Pursuant to s 149C(5) the practitioner is prohibited from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for a period of 10 years. 5. The practitioner is to pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: HEALTH – Professional registration and discipline – whether practitioner convicted of criminal offences suitable to hold registration – whether Prohibition Order should be made where Prohibition Order made under Child Protection (Offenders Prohibition Orders) Act 2004 Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 Civil and Administrative Tribunal Act 2013 (NSW) Commission for Children and Young People Act 1998 (NSW) (repealed) Crimes Act 1900 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Health Care Complaints Commission v David Vuong [2022] NSWCATOD 84 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Health Care Complaints Commission v Jason Vuong [2022] NSWCATOD 83 Health Care Complaints Commission v Le [2022] NSWCATOD 85 Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 Health Care Complaints Commission v Reid [2018] NSWCATOD 162 Health Care Complaints Commission v Thomas [2019] NSWCATOD 163 Health Care Complaints Commission v Wingate [2007] NSWCA 326 Health Care Complaints Commission v Yildirim (No 2) [2022] NSWCATOD 100 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Luigi Sbirziola (Respondent) Representation: Solicitors: Heath Care Complaints Commission (Applicant) Clinch Long Woodbridge (Respondent) File Number(s): 2022/00198385 Publication restriction: On 4 October 2022 an order was made pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act prohibiting the publication of the names of the persons set out in the Schedule to the Amended Complaint. REASONS FOR DECISION Introduction 1. Mr Luigi Sbirziola (the practitioner) was a registered pharmacist. On 21 September 2021 in the Sydney District Court the practitioner was found guilty of three offences namely participation as a client in an act of child prostitution with a child (Person A) under the age of 16; a similar offence in respect of another child (Person B) and an offence of sexual intercourse with a child (Person C) over the age of 14 but under the age of 16. Person C is a cognitively impaired child. 2. The practitioner was sentenced to an aggregate term of imprisonment of four years and nine months and with a non-parole period of three years and two months commencing on 16 May 2019. At the time of these proceedings the practitioner had been released on parole since July 2022. The practitioner, who was legally represented, did not participate in the hearing. 3. The Health Care Complaints Commission (HCCC) commenced disciplinary proceedings under Part 8 of the Health Practitioner Regulation National Law (NSW) (the National Law) against the practitioner on 7 July 2022 by way of Application for disciplinary findings and orders with a complaint annexed. In a Reply filed on behalf of the practitioner on 19 August 2022 the practitioner consented to all orders sought by the HCCC (cancellation of his registration, a non-review period of ten years, a prohibition order and payment of the HCCC's costs). The practitioner also admitted the background information set out in the complaint. He admitted Complaint One as set out in the complaint. He also admitted the background to Complaint Two but noted that the incorrect legislative provision was pleaded. He did not object to the HCCC amending the complaint. 4. The practitioner also admitted the background to Complaint Three but did not accept particulars 3 to 7 as pleaded noting in some instances wrong dates were set out in the Complaint. 5. On 12 September 2022 the HCCC filed and sought to rely on an Amended Complaint. The Amended Complaint addresses the inaccuracies highlighted in the practitioner's response. A copy of the Amended Complaint is annexed to these reasons and marked as Annexure "A". The effect of the Amended Complaint is that, by the date of the hearing, the practitioner has admitted all complaints and particulars thereof now pressed by the HCCC. Procedural history 1. On 5 August 2022 the matter was listed before the Presiding Member for directions. On that occasion it was noted that the practitioner admitted the Complaint and did not oppose the orders sought by the HCCC. It was noted that in these circumstances, no inquiry into the Complaint was necessary (see s 165H of the National Law). 2. The parties were directed to file an Agreed Statement of Facts and or Facts in Dispute on or before 15 September 2022, and the matter was listed for consideration of appropriate protective orders. Background 1. The practitioner obtained a Bachelor of Pharmacy degree from the University of Sydney and was first registered as a pharmacist on 18 December 1996. 2. In the period 2018 to 2019 the practitioner co-owned three pharmacies in Narellan, NSW. 3. In 2018 and while he was a proprietor pharmacist, he used cannabis. 4. In August 2018 the practitioner approached two girls at a shopping centre in Warilla, Shellharbour, NSW and offered or discussed cigarettes, as an introduction to seeking to engage the girls in sexual activity for payment. The practitioner introduced himself as "Danny" and exchanged mobile phone numbers with the girls. He subsequently sent text messages to the girls asking them to meet him. 5. Between December 2018 and May 2019, the practitioner paid Person A, who was then aged 16, money (usually $400-$600) and provided her with gifts of designer products (Gucci, Calvin Klein, and other designers) including wallets, watches, and handbags in exchange for sexual intercourse. He also provided cash to Person A using a Commonwealth Bank cardless cash function in exchange for sex. On some occasions the practitioner used a condom when he engaged in sexual intercourse with Person A. 6. The practitioner engaged in sexual activity with Person A in various locations including hotels, a beach side home and at the practitioner's own home. The practitioner was the instigator and organiser of the "sexual services" including making reservations at hotels, text messaging Person A, and payment arrangements. 7. In January 2019 Person B, also a then sixteen-year-old girl, was staying at Person A's home. After a "falling out" between Person A and Person B, Person B was anxious to return to her home on the mid-south coast of NSW but had no money or transport. The practitioner offered Person B the sum of $300 and said that he would drive her home if she had sex with him. The practitioner drove Person B for a short distance and then had penile/vaginal intercourse with her in his car. 8. On 29 March 2019 the practitioner approached Person C, a then 14-year-old girl in a south-western Sydney suburb. At that time Person C was in the care of an out of home care provider but was spending a period of unsupervised time in the street near a cinema. Person C has a cognitive impairment (in the mid-range of intellectual disability). The practitioner approached Person C, asked for a "light" to which she said "No". The practitioner then asked Person C if she used "weed" and said "lets go to [a nearby suburb]". The practitioner then drove Person C in his car to a storage facility having first stopped and purchased a Red Bull drink and phone credit for Person C. 9. The practitioner took Person C upstairs to an office above the storage facility (which held a large stock of perfumes and sex toys) and demanded she remove her clothes. The practitioner placed his mouth on Person C's breasts and then engaged in penile sexual intercourse until he ejaculated. Person C told the practitioner she was fourteen years old. The practitioner gave Person C $800 and a bottle of perfume. He then drove her to a train station. 10. Between 29 March 2019 and 15 May 2019, the practitioner contacted Person C more than 20 times either by text or phone message including a message stating, "I love you" and one "got heaps of $$ and weed". 11. On 30 March 2019 Person C was questioned by a Police Officer in the street in the south western suburb. Person C explained she had received perfume, and bong from the practitioner and that he had engaged in sexual intercourse with her. Later that day Person C attended Liverpool Hospital where she underwent a sexual assault examination and testing. A subsequent report disclosed a DNA match of semen with the practitioner's DNA. 12. On 15 April 2019 Person C recorded an interview with Police. 13. On 19 May 2019 the practitioner was arrested and charged. The practitioner participated in an electronically recorded interview but did not make any comment in respect of allegations made about his conduct. The practitioner did not inform the Australian Health Practitioner Regulation Agency (Ahpra) within 7 days of his criminal charges as required by s 130(1) of the National Law. 14. On 7 June 2019 Person B discussed the practitioner's conduct with Police in a record of interview. 15. On 13 June 2019, after a hearing under s 150 of the National Law, the Pharmacy Council of New South Wales suspended the practitioner's registration. 16. Person A participated in records of interview with the Police on 14 August 2019 and 9 March 2019. 17. On 24 September 2021 in the Sydney District Court the practitioner was convicted of: 1. Between December 2018 and May 2019 did participate as a client in an act of child prostitution with Person A, a child under the age of 18 years, namely 16 years under section 91D(1)(b) of the Crimes Act 1900 (NSW) 2. Between January 2019 and 31 January 2019 did participate as a client in an act of child prostitution with Person B, a child under the age of 18 years namely 16 years under section 91D(1)(b) of the Crimes Act 1900 (NSW) 3. On 29 March 2019 had sexual intercourse with Person C, a child of or above the age of 14 years and under the age of 16 years, namely 14 years, in circumstances of aggravation, namely that Person C had a cognitive impairment under section 66C(4) of the Crimes Act 1900 (NSW) 1. As noted above, the practitioner was sentenced to an aggregate term of imprisonment for 4 years and 9 months with a non-parole period of 3 years and 2 months commencing on 16 May 2019. Taking into account time served following his arrest, the practitioner was eligible for and was released on parole in July 2022. 2. On 7 March 2022 the practitioner wrote to the Australian Health Practitioner Regulation Agency (Aphra) seeking to cancel his registration. 3. On 16 March 2022 Aphra advised the practitioner's solicitor that his registration could not be cancelled because he was suspended. 4. On 9 June 2022 the Pharmacy Council of New South Wales advised the practitioner that it had lifted his suspension and imposed a condition on his registration that he must not work as a pharmacist. Subsequently, on 2 July 2022, the practitioner's registration expired. 5. Following the practitioner's release on parole, on 22 August 2022 a prohibition order was made by the Local Court, Campbelltown under s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004. Included in that order (Order 4) is an order which prohibits the practitioner from seeking or undertaking "paid or voluntary work that will bring the respondent into unsupervised contact with any person under the age of 18 years". Relevant Law 1. These proceedings are brought under s 144(e) and 139B(1)(b) of the National Law. 2. As with all matters under the National Law, the Tribunal is guided and informed by the objective and principles of the National Law in s 3 and s 3A. 3. Of particular relevance in this matter is s 3(2)(a) which provides as follows: (2) The objectives of the national registration and accreditation scheme are— (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; 1. Also relevant is s 3A. That section, a New South Wales provision, provides as follows: 3A Objective and guiding principle [NSW] 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. As noted above the Amended Complaint relies on s 139B(1)(b). That provision is as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 1. In this matter, the HCCC assert, and the practitioner accepts that he did not, as required under s 130(1) of the National Law, notify the Pharmacy Board of Australia within 7 days of his criminal charges. 2. The Amended Complaint also relies on s 144(a) and (e). Section 144 of the National Law sets out the grounds on which a complaint may be made. Section 144(a) and (e) provide as follows: Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. … (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 1. The principles that are relevant to disciplinary proceedings are well-known and uncontroversial. The onus of proof of the complaint rests with the HCCC. It is generally accepted that the particulars of the complaint must be established to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85). 2. In Clyne v New South Wales Bar Association (1960) 104 CLR 186 the High Court confirmed that the reason for the making of disciplinary orders in professional disciplinary matters if misconduct is established is to protect the public, and not to punish the practitioner. 3. Section 165H of the National Law is relevant to these reasons. It provides as follows: 165H No inquiry required if complaint admitted [NSW] No inquiry need be conducted into a complaint referred to the Tribunal under this Law if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal. Consideration Should the practitioner's registration be cancelled? 1. We have already noted that the practitioner in his Reply has admitted Complaint One. The practitioner's criminal convictions are clearly established by the Certificates of Conviction contained in the HCCC's material. We are satisfied Complaint One is established. 2. We accept the practitioner's admission that he did not report his charges and convictions as required under s130(1) and that his failure to do so constitutes unsatisfactory professional conduct. We find Complaint Two is established. 3. We also note that the practitioner concedes, in its amended form, the particulars of Complaint Three. The basis of this complaint which asserts the practitioner is not suitable person to hold registration relies, amongst other matters, on the practitioner's admitted use of cannabis in 2018 while a proprietor of pharmacies, The practitioner disclosed his use of cannabis to the psychiatrist who provided a report for the purpose of the criminal proceedings. We are satisfied this particular is established. 4. We discern that the conduct on which the HCCC principally rely to establish a lack of suitability to hold registration is the underlying conduct associated with the child prostitution offences including penile/vaginal intercourse with Person A, the performance of cunnilingus on Patient A and her performance of fellatio on him over an approximate six-month period. 5. The practitioner's conduct also involved the exploitation of Person B a 16-year-old who was without funds or means to return home by offering her money and transport in exchange for sex (as particularised in Complaint One). 6. The underlying conduct includes the practitioner's interaction with and his sexual activity with Person C a vulnerable, cognitively impaired 14-year-old teenager and his ongoing attempts to entice this child into further interaction with him by reason of his text and phone messages. 7. The practitioner's convictions are ones involving three minor persons. We had the benefit of the Judge's remarks on sentencing. We note and agree with his Honour Judge Whitford SC at para 71 of his sentencing remarks. His Honour noted "that there is nothing in the practitioner's developmental background or his life circumstances which explain his lapse into this offending, with the possible exception of his particular identified psychological compromise". His Honour also notes, and we agree, that "the absence of any explanation connecting his mental health issues to pursuit of sexual activity with juveniles is troubling in the present context and it is, accordingly, difficult to be definitive about his prospects, which would otherwise be good". 8. We also agree with and adopt as appropriate to our decision making the comments of his Honour at para 80 where he explains the need to recognise the harm done to victims "and by extension to the community". His Honour states "Conduct of this character is rightly abhorred by the community". Our reading of Person C's victim impact statement powerfully demonstrates the very adverse effects the practitioner's conduct had on this 14-year-old child. 9. His abuse of Person C on the particulars admitted by the practitioner is abhorrent. His victim was a 14-year-old cognitively impaired young person. It is hard to imagine how a professional, then aged 44 years and having the training of a pharmacist entrusted to dispense medications and to provide health advice, could have engaged in such conduct. 10. We have no hesitation in finding the practitioner is, as he has conceded, not suitable to hold registration. 11. In reaching this conclusion we have had regard to a number of authorities. 12. We commence by reference to the decision the Court of Appeal in Windsor v Health Care Complaints Commission [2020] NSWCA 110. In this appeal Gleeson JA explained that the underlying conduct, which resulted in complaints of criminal conduct under s 144(a) may be the basis for findings that a practitioner is otherwise not a suitable person to hold registration under s 144(e). 13. His Honour said at [112]-[115] The starting point is to recognise that the same particulars of underlying conduct can be characterised in more than one way for the purpose of s 144 of the National Law, when the Tribunal is exercising its powers under s 149C(1). That is, the underlying conduct relied upon for a complaint is not mutually exclusive to one of the complaints that can be made under s 144(a) to (e). That is also reflected in the language of s 149C(1) where the "is otherwise" limitation in s 144(e) is not repeated in s 149C(1)(d). In Health Care Complaints Commission v Do, the same particulars of underlying conduct were characterised by the Tribunal for the purposes of a complaint under s 144(b) as supporting both a finding of "unsatisfactory professional conduct" within the meaning of s 139B(1) of the National Law and a finding of "professional misconduct" as defined in s 139E of the National Law. Similarly, underlying conduct with respect to the circumstances of a criminal offence which is of a sufficiently serious nature to render a practitioner unfit to practise (s 149C(1)(c)), may also be characterised as rendering the practitioner unsuitable for registration(s149C(1)(d)). Importantly, the meaning of "suitability" is not fixed or comprehensively defined in the National Law and includes aspects of competence (s 55(1)(d) and 55(h)(ii)), as does s 139(b)), impairment (s 55(1)(a)) and criminal conduct (s 55(1)(b)). 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19] Basten JA explained: The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] overservicing[17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[18] [our emphasis] 1. We are also conscious of the purpose of protective orders made at the conclusion of disciplinary proceedings as explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. 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. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. We accept that the comments in Chen and Health Care Complaints Commission v Do relate generally to conduct in the practise of a particular health profession by a professional. However, the remarks directed to the maintenance of standards of the profession, and unfitness to practise, have resonance in this case. 2. We have also had regard to the decisions of the Tribunal in Health Care Complaints Commission v Thomas [2019] NSWCATOD 163 at [22]-[23] and Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [60] where the Tribunal explained: … On a plain reading, the words "or otherwise" must denote something other than the types of conduct or circumstances set out in s 144(a) to (d). We agree that the admissions of the criminal offences themselves are only relevant to s 144(a), and that the admission of unsatisfactory professional conduct is only relevant to s 144(b). However, it appears to us that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions. The factual circumstances of events which ground a criminal conviction or finding may, depending on their gravity, if established to the requisite standard, constitute a separate and distinct complaint to the admitted complaints brought under s 144(a) and (b). In other words, those circumstances, of themselves, may otherwise render a practitioner unsuitable for registration. 1. Although the material before us is limited, we are satisfied that the practitioner's participation as a client in child prostitution, and particularly his offence of sexual intercourse with Patient C are matters which render him unsuitable for registration as a pharmacist. We are satisfied that, if he was registered, we would have cancelled his registration. 2. We have been guided in our conclusions on this matter having regard to the provisions of s 55(1)(b) of the National Law. This provision is as follows: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if— (a) … or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; Should an order be made under s 149C(7) and if so for what period? 1. The HCCC submit, and the practitioner agrees, a period of 10 years should elapse before the practitioner may seek an order for re-instatement to the register. 2. The purpose of a period of time before a practitioner may again seek to be re-instated to the register is discussed by the Tribunal in Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [660] as follows: Recent authorities have emphasised that an order under s 149C (7) (made when a practitioner is still registered) has at least three aspects. First, such an order provides for the safety of the public ensuring only those practitioners fit to practice do so. Secondly, s 149C (7) sets a period of time during which a Tribunal predicts, or attempts to predict, the time in which a practitioner may reasonably take steps to rehabilitate himself or herself. This reason has particular force when a tribunal is considering a practitioner who has drug dependency or other medical issues. Thirdly, the authorities stress the deterrent aspect of the order. That is, such an order sends a clear message of denouncement of the practitioner's conduct to other professionals (see Chen per Payne JA at [88]). 1. In this case the practitioner has chosen not to provide any material to the Tribunal except his Reply or to participate in the hearing. In these circumstances, as noted above, we are left to speculate about whether he has genuine remorse for his actions, and any steps he proposes to undertake by way of rehabilitation. In these circumstances while 10 years is a very lengthy period to impose, absent any evidence to support a lesser period, we will make orders as sought by the HCCC and conceded to be appropriate by the practitioner who we note has had the benefit of advice from his lawyers. Should a prohibition order be made? 1. The HCCC also seek a prohibition order for a period of any disqualification period. The power to make a prohibition order is found in s 149C(5) and (5A) as follows: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. 1. A number of recent decisions of the Tribunal have discussed the issue of substantial risk, and the circumstances in which a prohibition order may be made and the duration of such order (see Health Care Complaints Commission v Jason Vuong [2022] NSWCATOD 83; Health Care Complaints Commission v David Vuong [2022] NSWCATOD 84; Health Care Complaints Commission v Le [2022] NSWCATOD 85; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 ; Health Care Complaints Commission v Yildirim (No 2) [2022] NSWCATOD 100. 2. Here the HCCC seek a prohibition against the practitioner providing any health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW). Section 4 defines a "Health Service" as: health service includes the following services, whether provided as public or private services— (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)–(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act. 1. We are conscious of and took into account into considering whether a prohibition order should be made the fact that the practitioner, who is now released on parole, is subject to a child protection prohibition order for 5 years and child reporting obligations for 15 years. 2. We do not underestimate the gravity of the practitioner's offences. We are hampered by a lack of evidence from the practitioner about his future plans. However, we accept that his conduct involved sexual offences against under aged girls including Person C, who was both under age and suffered cognitive disabilities. 3. We queried with the solicitor for the HCCC whether the public, particularly young girls, would be adequately protected by the child protection order (also described as a Protection Order). Ms Bayley submitted that because of the different reporting requirement if a child protection order is breached to those applying to a Prohibition Order made under the National Law, that the orders have complementary functions. We were referred to the comments of the Court of Appeal in Health Care Complaints Commission v Wingate [2007] NSWCA 326. 4. In Wingate the Court of Appeal was required to consider whether the Tribunal had fallen into appealable error not imposing an unconditional condition on a practitioner's registration prohibiting him from providing health services to patients under the age of 18 without a chaperone in circumstances where following criminal proceedings an order had been made under the Commission for Children and Young People Act 1998 (NSW) (now repealed) which precluded the practitioner engaging in child related employment. The practitioner had been convicted of child pornography offences. One issue raised in the appeal was whether the Tribunal was in error in permitting the practitioner to continue to treat minors whilst requiring a chaperone. 5. The Court of Appeal noted that not all forms of employment which may involve children were covered by the definition of "child related employment" in the legislation then in force, although many forms of work were covered. 6. Basten JA explained at [73] Although the Tribunal was not required to determine whether the statutory scheme prohibited the practitioner from supplying health services to patients under 18 years of age, it should have treated the legislative scheme as part of the legal background against which the exercise of its discretion in making orders was to be considered. It should have considered whether it was satisfied that provision of services to young patients "posed no risk" to them and, if not so satisfied, there should have been a reasoned justification for not imposing a condition which had the same effect as the statutory prohibition, if it operated. 1. Later his Honour explained at [77] why making the chaperone condition when the statutory prohibition was in force was appropriate. His Honour said: The "chaperone condition" did not reinforce the statutory prohibition: rather it assumed that the statutory prohibition did not operate. Nor would the prohibition have been redundant: as the Commission pointed out, the statutory prohibition could be lifted by the Commission or a tribunal, without any requirement that the Commission or the Board be informed of the application. 1. Here the Tribunal is not being asked to impose a condition on the practitioner's registration directing how he must practise, rather the order sought is a very broad ranging one prohibiting participation in any "health service" as defined in the Health Care Complaints Act. However, the principles referred to by Basten JA and his Honour's comments make it plain that the child protection order is one to be taken into account by the Tribunal, but its existence does not necessarily render a Prohibition Order unnecessary. A further factor to be taken into account by a Tribunal is the differing regime for the cancellation or variation of breach of a child protection order and a Prohibition Order made under the National Law. We note that a Prohibition Order may be reviewed under s 163A(1)(a) of the National Law and that a Prohibition Order under the Child Protection (Offenders Prohibition Orders) Act provides that the Police may, without notice, enter the prohibited person's residence, and/or arrest the prohibited person for breach of the obligations under the order. 2. On its face the Prohibition Order made under the Child Protection (Offenders Prohibition Orders) Act is wide ranging, registrable in other Australian jurisdictions, and carries stringent penalties and enforcement provisions. 3. The Prohibition Order sought by the HCCC is also wide ranging, and not limited to engaging in services to minors. We accept that the practitioner could apply to vary the order under s 163A(1)(a) of the National Law if appropriate to do so. We also accept, on the evidence adduced before us, there is no legislative requirement for the Police to notify the HCCC or Aphra of any breach of the Prohibition Order made by the Local Court. These matters support the making of the order sought by the HCCC. 4. As noted above, the practitioner has chosen not to adduce any evidence before us about his future plans, particularly when his period of parole supervision ends. Although we have some concerns about the "blanket" restriction sought by the HCCC precluding all health services, we have determined, given the seriousness of the practitioner's offending, his decision not to participate in this hearing, to express any remorse or insight into his conduct, or to adduce evidence of his future plans, a substantial risk to the health of members of the public exists. Accordingly, we will make the Prohibition Order as sought and to which the practitioner consents. Costs 1. We note that the practitioner concedes that he should pay the Health Care Complaints Commission's costs. 2. There is no doubt that the Tribunal has the power to order payment of costs. Cl 13 of Schedule 5D of the National Law provides as follows: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 1. In this case these proceedings were necessitated by the practitioner's unlawful conduct. The HCCC have been wholly successful. We are independently satisfied that the practitioner's concession on costs is an appropriate one. Accordingly, we will order that he pay the HCCC's costs as agreed, or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ORDERS 1. Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (NSW) (the National Law) the Tribunal determined that if Luigi Sbirziola (the practitioner) was still registered it would have cancelled his registration. 2. Pursuant to s 149C(7) of the National Law the practitioner may not seek review of Order 1 for a period of 10 years from the date of these orders. 3. Pursuant to s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the practitioner was still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 4. Pursuant to s 149C(5) the practitioner is prohibited from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for a period of 10 years. 5. The practitioner is to pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Annexure A (1086633, pdf) ********** 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 14 October 2022 - Typographical error in coversheet and orders 14 October 2022 - Further typographical errors in coversheet and orders fixed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2022