Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Narayan [2023] NSWCATOD 90 Hearing dates: 1 – 3 March 2023 Date of orders: 16 June 2023 Decision date: 16 June 2023 Jurisdiction: Occupational Division Before: The Hon M Le Poer Trench ADCJ, Principal Member Dr A Reid, Senior Member Dr S Patel, Senior Member C Berglund, General Member Decision: (1) The Respondent's registration is to be suspended for a period of three months from the date hereof. (2) The Respondent's registration as a medical practitioner is to have the following conditions attached to it which are to operate upon the conclusion of the period of suspension set out in these orders: (a) To obtain Medical Council of NSW approval prior to changing the nature or place of practice. (b) To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 other registered medical practitioners, with at least one other registered medical practitioner always on site. (c) To consult or treat no more than 25 patients per day and no more than 4 patients per hour. (d) To practise no more than 40 hours per week and no more than 8 hours per day. (e) To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (f) At each supervisor meeting, which is to be weekly for the first month of the Respondent's return to practice, then fortnightly for the next two months of his practice and thereafter monthly, the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (i) Doctor/patient relationship; (ii) Workload; and (iii) The Respondent's wellbeing and compliance with these conditions. (g) To authorise the Medical Council of NSW to provide proposed and approved supervisor with a copy of this decision (the restricted publication version) and any other relevant decision or report. (h) Not to practise until a supervisor has been approved by the Medical Council of NSW. (i) To nominate a registered experienced general practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. (i) At each meeting the practitioner is to include discussion of initially the issues highlighted in this decision, personal and professional development as a medical practitioner and any personal and/or medical practice issues that may arise. (ii) To authorise the mentor to report, in an approved format, to the Council every six months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. (iii) To authorise the Medical Council of NSW to provide nominated and approved mentors with a copy of this decision and any other relevant decision or report. (j) To attend for treatment by Dr Daisy Gamayel a psychologist he has attended upon, or another psychologist of his choice and approved by Professor Kenny, within 14 days of the resumption of medical practice pursuant to the orders made herein. (i) The frequency of treatment is to be determined by his treating psychologist. (ii) To authorise his treating psychologist to inform the Medical Council of NSW of any of the following: (A) Failure to attend for treatment; (B) Termination of the treating relationship; and (C) A significant change in health status (including a significant temporary change). (iii)The practitioner must provide the Council with the professional details of the treating practitioner. (k) To advise the Medical Council of the name and address of his General Practitioner, being a GP practicing in the same geographical location as the Respondent or in the same geographical location as the Respondent's residence, and any change in GP during the currency of the operation of this condition. (l) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (m) Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. (3) The Respondent is to pay the costs of the HCCC as agreed or as assessed. (4) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the names of the patient and the colleagues set out in the Schedule to the Complaint herein is prohibited. (5) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the evidence specified in Annexure A (or any reference to that evidence) to these reasons, including extracts from the oral evidence given in the hearing and set out in the reasons, may only be published to the parties to this proceeding and to the Medical Council of New South Wales and may not be published to any other person or entity. The evidence specified in Annexure A to this order, together with any related evidence set out in this decision, will be omitted from the version of the Tribunal's reasons in this matter which will be prepared for publication beyond the parties and the Medical Council of New South Wales and replaced with [NOT FOR PUBLICATION]. Catchwords: HEALTH – professional registration and discipline –professional misconduct – unsatisfactory professional conduct – protective orders Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3-3B, 125-127, 139B, 139E, 149C, 150, 165K, Sch 5D cll 7, 13 Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 HCCC v Jane Waddell (No 2) [2013] NSWNMT 2 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Bours (No 2) [2015] NSWCATOD 80 Health Care Complaints Commission v Burton [2017] NSWCATOD 57 Health Care Complaints Commission v Choi [2017] NSWCATOD 82 Health Care Complaints Commission v Clarke [2022] NSWCATOD 55 Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120 Health Care Complaints Commission v CSM [2018] NSWSC 902 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v FTR [2023] NSWCATOD 46 Health Care Complaints Commission v Hasan [2022] NSWCATOD 52 Health Care Complaints Commission v Jamnagarwalla (No 2) [2023] NSWCATOD 1 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 297 Health Care Complaints Commission v McNab [2023] NSWCATOD 41 Health Care Complaints Commission v Mooney [2022] NSWCATOD 43 Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Segal (No 2) [2023] NSWCATOD 6 Medical Board of Australia v Liang Joo Leow [2019] VSC 532 Medical Practitioners Board of Victoria v Lal (2009) 23 VR 702; [2009] VSCA 109 NSW Bar Association v Meakes [2006] NSWCA 340 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403; [2021] NSWCA 147 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant). Dr Sharwan Narayan (Respondent) Representation: Counsel: S McCarthy (Applicant) R Rodgers (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Moray & Agnew Lawyers File Number(s): 2022/00048742 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the names of the patient and the colleagues set out in the Schedule to the Complaint herein is prohibited. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the evidence specified in Annexure A to this order may only be published to the parties to these proceedings and to the Medical Council of New South Wales and may not be published to any other person or entity. The evidence specified in Annexure A to this order will be omitted from the version of the Tribunal's reasons in this matter which will prepared for publication beyond the parties and the Medical Council of New South Wales and replaced with [NOT FOR PUBLICATION]. REASONS FOR DECISION 1. The Health Care Complaints Commission ("HCCC" or "Applicant") proceeded before the Tribunal on its Amended Complaint filed 27 July 2022 (exhibit A2). That document set out the five Complaints the HCCC made against Dr Sharwan Narayan ("the Respondent"). 2. The Respondent relied upon an Amended Reply dated 9 January 2023 to the Amended Complaint filed by the HCCC. In that Amended Reply, the Respondent admitted he was guilty of unsatisfactory professional conduct as defined by s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) ("the National Law"), stating he has engaged in improper or unethical conduct in relation to Complaint One, Complaint Two, Complaint Three and Complaint Four. In relation to Complaint Five, he admits he has engaged in more than one instance of unsatisfactory professional conduct but does not admit the Particulars in pars 1-4 of Complaint Five. 3. In the opening statements from the parties, we were told the Tribunal was to deal with this hearing on the basis of considering whether the HCCC had established its case, and then deal with the imposition of any protective orders which the Tribunal considered were required. 4. In relation to the Particulars set out by the HCCC for each of the five Complaints, the Respondent admits most, however, he does not admit a number, which we will identify hereafter. 5. In the "Background to Complaints" portion of the Amended Complaint, the HCCC sets out detail, which we have summarised as: 1. The Respondent was first registered as a medical practitioner in NSW on 4 January 2016. 2. He was employed in regional NSW as a General Practitioner (GP) and as a visiting medical officer at two District Hospitals. 3. Patient A was a 36 year old female patient with a history of anxiety and depression. She attended the GP practice in which the Respondent worked; however, the Respondent was not Patient A's regular GP. She did consult him for a skin condition at the GP practice. On 8 August 2020, she was seen by the Respondent in one of the hospitals at which he was employed. 4. Colleague A was employed from early 2019 as a medical receptionist at the General Practice in which the Respondent worked. 5. Colleague B was employed as an enrolled nurse at a District Hospital in which the Respondent worked. She was also a patient of the GP practice in which the Respondent worked. She had consulted him as a patient in relation to a stress condition. 1. Complaint One alleged unsatisfactory professional conduct as defined by National Law, s 139B(1)(l). The Particulars of Complaint One are as follows: "1. On or around 8 August 2020 the practitioner breached proper professional boundaries during a medical consultation with Patient A by making inappropriate personal and sexual remarks including[:] a. 'I had a dream about you last night ... and I had to have a cold shower'; b. asking whether Patient A was up to date with her pap smears and making jokes about probing her whilst holding a long swab; c. dimming the lights and pointing to the examination bed and saying 'get ready for me'; d. 'What time will you be free tonight'; e. 'I can do massage'; f. 'you will have the experience of a lifetime. Gee I didn't even have to do anything and I had the best orgasm of my life'; g. 'make new babies' and 'life's short' when Patient A questioned whether he was married and had just had a new baby; 2. On or around 8 August 2020 the practitioner breached proper professional boundaries when he tried to kiss Patient A at the end of the consultation. 3. On or around 9 and 14 August 2020 the practitioner breached proper professional boundaries when he contacted Patient A by telephone without a genuine clinical basis. 4. By his conduct in particulars (1) to (3) the practitioner breached the Medical Board of Australia's Guidelines — Sexual Boundaries in the doctor-patient relationship, 12 December 2018." 1. In his Amended Reply (exhibit R2), the Respondent admitted all of the Particulars of Complaint One. 2. Complaint Two alleged the Respondent was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. The Particulars of Complaint Two are as follows: "1. Between around mid 2019 and August 2020 the practitioner engaged in unprofessional and inappropriate behaviour towards Colleague A in the workplace, including by: a. commenting on Colleague A's appearance, including stating that he liked her outfits; b. telling Colleague A that she was always on his mind; c. [deleted in Amended Complaint]; d. calling Colleague A whilst she was at work and asking 'what are you wearing', 'what are you doing' and 'when are we going on a date'; e. calling Colleague A at the Medical Practice from his work at the hospital and telling her he was inside a cupboard masturbating; f. blocking Colleague A's exit from a door and commenting that a group of chairs were impractically arranged, especially if she wanted to sit on top of him and fuck him. 2. By his conduct in particular (1) the practitioner breached clause 4.2 of the Medical Board of Australia's Guidelines, Good Medical Practice: a code of conduct for doctors in Australia, March 2014." 1. In his Amended Reply (exhibit R2), the Respondent admitted Particular 1. He did not admit Particular 2 as it related to patients and he said it "appears to be pleaded in error". The Respondent admitted that his conduct towards Colleague A was in breach of clause 5.2 of the Medical Board of Australia's Guidelines, Good Medical Practice: A Code of Conduct for Doctors in Australia ("the Code of Conduct"). 2. Chapter 5 of the Code of Conduct addresses "Respectful culture". Paragraph 5.2 is as follows: "5.2 Respect for medical colleagues and other healthcare professionals Good patient care is enhanced when there is mutual respect and clear communication between all healthcare professionals involved in the care of the patient. Good medical practice involves: 5.2.1 Acknowledging and respecting the contribution of all healthcare professionals involved in the care of the patient. 5.2.2 Communicating clearly, effectively, courteously, respectfully and promptly with other doctors and healthcare professionals caring for the patient. 5.2.3 Behaving professionally and courteously to colleagues and other practitioners including when using social media." 1. Complaint Three alleged the Respondent was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. The Particulars of Complaint Three are as follows: "1. On a date between 22 March and 10 July 2019 during a medical consultation with Colleague B, the practitioner breached proper professional boundaries when he; a. asked Colleague B if she had received any sexual relief for her stress recently; b. offered to come to Colleague B's house "for some midnight stress relief." 2. On or about 5 August 2020, the practitioner engaged in unprofessional and inappropriate behaviour towards Colleague B, namely; a. when he entered the room in which she was working and said words to the effect of 'you know if we just pull the curtains across no-one else will know we are even here'; b. touching her on the shoulder; c. saying words to the effect of 'I can come over on Sunday and help you relieve the stress.'" 3. By his conduct in particular (1) the practitioner breached the Medical Board of Australia's Guidelines — Sexual Boundaries in the doctor-patient relationship, 12 December 2018. 4. By his conduct in particular (2) the practitioner breached clause 4.2 of the Medical Board of Australia's Guidelines, Good Medical Practice: a code of conduct for doctors in Australia, March 2014." 1. In his Amended Reply (exhibit R2), the Respondent admitted he is guilty of unsatisfactory professional conduct under s 139B(1)(l) in relation to Complaint Three. He admitted Particulars 1 and 2. He did not admit Particular 3 "as it relates to patients and appears to have been pleaded in error." He admitted his conduct towards Colleague B was in breach of clause 5.2 of the Code of Conduct (set out above). 2. In the hearing before us, it became clear that the Respondent was correct in saying that the provision in the Medical Board of Australia's Guidelines, Good Medical Practice: a code of conduct for doctors in Australia (March 2014) which addressed inappropriate conduct with a colleague was clause 5.2 of the Code of Conduct. The HCCC and the Tribunal accepted that clause 5.2 was the relevant clause to be referred to in the Complaint and there was a complete acceptance by the Respondent that his conduct as alleged breached that provision. 3. Particular 3 of Complaint Three cited the Medical Board of Australia's Guidelines "Sexual Boundaries in the doctor-patient relationship, 12 December 2018" (the Guideline). We have noted in that Guideline the following: "3. Breaches of sexual boundaries (spectrum of behaviours) There is a wide range of behaviours that breach sexual boundaries, from making unnecessary comments about a patient's body or clothing, to criminal behaviour such as sexual assault. Unwarranted physical examinations or inappropriate touching during a consultation and examination may constitute sexual assault. AHPRA will advise and support notifiers to report criminal behaviour to the police. 3.1 Spectrum of behaviours Breaches of sexual boundaries include: engaging or seeking to engage in a sexual relationship with a patient regardless of whether the doctor believes the patient consented to the sexual relationship. conducting a physical examination which is not clinically indicated or when the patient has not consented to it. An unwarranted physical examination may constitute sexual assault or abuse. behaviours of a sexual nature including: making sexual remarks including sexual humour or innuendo flirtatious behaviour touching patients in a sexual way engaging in sexual behaviour in front of a patient using words or acting in a way that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire asking a patient about their sexual history or preferences, when these are not relevant to their healthcare and without explaining why it is necessary to discuss these matters. sexual exploitation or abuse. sexual harassment. sexual assault. 3.2 Other behaviours that may breach sexual boundaries. Other behaviours that may breach sexual boundaries include: asking a patient to undress more than is necessary or providing inadequate privacy screening or cover for a physical examination engaging in a sexual relationship with an individual who is close to a patient under the doctor's care, such as a patient's carer, guardian, spouse, family member or the parent of a child patient engaging in a sexual relationship with a former patient." 1. In his Amended Reply, the Respondent admitted he is guilty of unsatisfactory professional conduct under s 139B(1)(l) in relation to Complaint Four in that he has engaged in improper or unethical conduct. He admitted Particulars 1, 2 and 3 of the Complaint. He referred to pars 39 and 42 of his affidavit dated 22 June 2022. 2. We note par 39 of the Respondent's affidavit is as follows: "I accept that my initial response to the HCCC on 30 August 2021 was to deny allegations. On reflection, I was embarrassed about my behaviour and wished to protect myself in the circumstances. I accept that this was wrong and that I should have been honest and upfront with the HCCC at the outset." 1. In par 42 of his affidavit, the Respondent said: "In my response to the District and HCCC, I denied making the comments in particulars 1 and 2 to [Colleague B]. I accept and acknowledge that I was dishonest in my response. This was because I was embarrassed and felt ashamed about my behaviour towards [Colleague B]." 1. Paragraphs 39 and 42 of the Respondent's affidavit are in effect, an admission to the allegations contained in Particular 3 to Complaint Four. 2. Complaint Four alleged the Respondent was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. The Particulars of Complaint Four are as follows: "1. On 25 September 2020, the practitioner provided false and/or misleading information to his employer when he stated that: a. he had not said to Colleague B words to the effect of: 'You know if we just pull the curtains across no-one else will know we are even here.' b. he had not said to Colleague B words to the effect of: 'I can come over on Sunday and help you relieve the stress.' 2. On 24 September 2021, the practitioner provided false and/or misleading information to the delegates of the Medical Council of New South Wales when he stated that: a. during the consultation with patient A on 8 August 2020 he did not dim the lights and ask Patient A to get ready for him; b. at the end of the consultation on 8 August 2020 he did not try and kiss Patient A. 3. By letter dated 30 August 2021, the practitioner gave false and/or misleading information to the Health Care Complaints Commission ('Commission') when he stated that: a. he had not said to Colleague A that she was always on his mind; b. he did not call Colleague A from the Hospital and tell her he was masturbating in a cupboard; c. he did not say anything to Colleague A of a similar nature to asking her if she wanted to sit on top of him and fuck; d. he did not make any of the sexualised comments alleged by Colleague B; e. he did not commit the conduct alleged by Colleague A and Colleague B." 1. The Respondent admitted that he engaged in more than one instance of unsatisfactory professional conduct but otherwise does not admit the Particulars in paragraphs 1 to 4 (sic) of Complaint Five. 2. Although the wording of the Respondent's Amended Reply to Complaint Five seem not to follow the Complaint Five details in exhibit A2, we have assumed the Respondent is not admitting that the admitted instances of unsatisfactory professional conduct set out in Complaints One to Four, amount to professional misconduct as described in s 139E of the National Law. 3. Complaint Five in exhibit A2 is as follows: "The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in 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 the suspension or cancellation of the practitioner's registration". 1. The Particulars of Complaint Five are: "1. The particulars of Complaints One to Four are repeated and relied upon. 2. Particulars One and Two of Complaint One, Particular One of Complaint Two, Particulars One and Two of Complaint Three and Particulars One, Two, Three and Four [sic] of Complaint Four each justifies a finding of professional misconduct. 3. In the alternative, when two or more of the particulars of Complaint One, Two, Three or Four are taken together, a finding of professional misconduct is justified." 1. Before we commenced taking evidence in this hearing, the issues of fact which need to be determined by us, as defined by the detail set out above, were as follows: 1. In Complaint Two, the Amended Complaint alleges the conduct set out in Particular 1 breached clause 4.2 of the Code of Conduct (as we have set out). The Amended Reply document makes clear the Respondent accepts his conduct towards Colleague A was instead a breach of clause 5.2 of the Code of Conduct, which relates to medical colleagues and other healthcare professionals. 2. In Complaint Three, the Respondent accepts his conduct as described in Particulars 1 and 2 breached clause 5.2 of the Code of Conduct (as we have set out). 3. In Complaint Five, the Respondent has not admitted he is guilty of professional misconduct as defined by National Law, s 139E. 1. In the opening statement from the Respondent in the hearing, we were informed that there is no longer any issue of fact to be determined by the Tribunal. That then meant the facts in subpars [24(1)], [24(2)] had been admitted. Notwithstanding that admission, there still remains the requirement for the Tribunal to be satisfied each of the Complaints of unsatisfactory professional conduct have been established. There also remains a requirement for the Tribunal to be satisfied that the HCCC has established its case of professional misconduct pursuant to s 139E of the National Law. 2. The HCCC identified the evidence it relied upon to establish its Complaint. That evidence was contained in documents which were admitted to evidence and marked as exhibits as follows: 1. The bundle of documents filed by the HCCC on 14 July 2022, containing 25 tabs with documents behind each tab (exhibit A1); 2. An amended Complaint document. (Exhibit A2) 3. Medical Board of Australia's 'Guidelines, Good Medical Practice: a code of conduct for doctors in Australia', March 2014 (exhibit A3); 4. A replacement index for the documents in exhibit A1 (exhibit A4). 1. The HCCC also provided us with a written submission which we marked for identification as MFI 2. 2. The Respondent relied upon the following documents which were admitted to evidence. 1. Reply document filed 23 June 2022, which was later amended (exhibit R1); 2. Amended Reply filed 10 January 2023 (exhibit R2); 3. Affidavit of the Respondent filed 13 June 2022 (exhibit R3); 4. Report of Professor Dianna Kenny dated 27 September 2022 (exhibit R4); 5. Supplementary Report of Professor Dianna Kenny dated 22 November 2022 (exhibit R5); 6. Affidavit of Marie Marianne (exhibit R6); 7. Application for Miscellaneous Matters (exhibit R7). 1. We also marked as MFI 1 a list of "Pre-Hearing Issues" which the Respondent raised at the commencement of the hearing. 2. Each of the parties' documents identified above and noted as an exhibit was admitted to evidence without objection. Consideration of the Evidence of the HCCC 1. In exhibit A1, we noted the following evidence as relevant to the issues we need to determine. 2. In Tab 1A, we noted the Evidentiary Certificate dated 26 July 2022 provided by the Australian Health Practitioner Regulation Agency (AHPRA). That document demonstrated the Respondent was registered as a medical practitioner, general registration. He also obtained registration as general registration, diagnostic radiographer, on 17 August 2012. He obtained his medical qualification in 2008 and was first registered on 7 January 2008. 3. On 24 September 2020, the Medical Council of NSW suspended the Respondent's registration pursuant to s 150 of the National Law. 4. Tab 3 details the complaint made by Patient A as referred to in the Amended Complaint in Complaint One. The complaint was received by the HCCC on 9 August 2020. The complaint has been formalised into a statement which is set out at Tab 7. Evidence of Patient A 1. Patient A is 37 years of age. She first consulted with the Respondent at the GP practice where he worked. She was receiving treatment for anxiety at the time. She was also suffering from perioral dermatitis. 2. The Respondent was informed by Patient A that she was in a single-sex relationship which was of recent origin. 3. Patient A also consulted with the Respondent at one of the District Hospitals in which he worked. She consulted him there on 8 August 2020. In that consultation, the Respondent said to Patient A: "I had a dream about you last night. I had a hot dream about you and I had to have a cold shower." The Respondent also asked Patient A about her "pap smear" history and while holding a long swab made jokes about "probing" Patient A "with his sticks". Patient A laughed at that. He repeated this type of "joking". 4. In that consultation, the Respondent left the consultation room to obtain a prescription pad. As he was leaving, he dimmed the lights, pointed to the consultation bed and said: "get ready for me." That raised the concern of Patient A who then recorded the balance of the consultation. In that conversation, the Respondent asked Patient A: "What time will you be free tonight? ... So what time do you want me to pay a home visit? ... I can do massage. You will have the experience of a lifetime. Gee I didn't even have to do anything and I had the best orgasm of my life …". 5. At the conclusion of the consultation and as Patient A was leaving, she said the Respondent had tried to kiss her, however, she pushed him away. 6. During the consultation, Patient A reports she was nervous, she had a racing heartbeat, she was anxious and shocked by the Respondent's language. 7. On the evening of the consultation, Patient A experienced heart palpitations. She attended the District Hospital. Whilst sitting in the waiting room, the Respondent approached her. Whilst at the hospital, the Respondent spoke to her and apologised for his language used with her earlier in the day. 8. On 9 August 2020, the Respondent telephoned Patient A from the hospital. He asked her if she was feeling better from the day before. 9. On 14 August 2020, the Respondent telephoned Patient A again. She did not speak with him once she ascertained it was the Respondent who was calling her. There was another call shortly thereafter from the same number which Patient A did not answer. 10. Patient A then attended upon a police station to report the Respondent's actions towards her. Evidence of Colleague A 1. Exhibit A1 also contains the written evidence of Colleague A. We summarise that evidence as follows. 2. Colleague A is 27 years of age. She is a receptionist employed at the medical centre in which the Respondent was also employed in 2019 and 2020. After about six months of working at the medical centre, Colleague A was made to feel uncomfortable by the Respondent's words and actions. The Respondent told her he was dreaming about her, that she was always on his mind, and that he liked her clothing. The Respondent also hugged Colleague A a few times. 3. While Colleague A worked in the medical centre, the Respondent and his family were accommodated in the same building. That circumstance in conjunction with the words and actions he had exposed Colleague A to, made her anxious when she was the only employee in the medical centre. 4. On one occasion, the Respondent showed Colleague A photographs kept on his phone which included photographs of the Respondent "half naked" (we note that meant not wearing any clothing on the top half of his torso). That made Colleague A feel very uncomfortable. 5. On a few occasions, the Respondent telephoned Colleague A to ask what time his next patient was expected. In those conversations the Respondent had also said to Colleague A: "What are you wearing?"; "What are you doing?"; When are we going on a date?". Colleague A found the words suggestive and inappropriate. 6. On one occasion, the Respondent had phoned Colleague A whilst she was at work and told her he was masturbating in a cupboard. Colleague A said she was shocked by those words. 7. On one occasion, the Respondent spoke to Colleague A whilst she was assembling a chair. He said to her, whilst she was alone, that the chairs were impractical if Colleague A wanted to sit on top of him and "fuck" him. The words made Colleague A feel "extremely uncomfortable". Evidence of Colleague B 1. Colleague B was employed in a District Hospital in which the Respondent was a visiting medical officer. 2. On or about 5 August 2020, Colleague B reported to her supervisor the following event involving the Respondent and herself. 3. Whilst working in the hospital, the Respondent spoke to Colleague B in a room where she was working. He said to her: "You know if we just pull the curtains across no-one else will know we are even here." Colleague B understood the words to be an invitation for sexual activity. 4. At some time during the same shift at the hospital, the Respondent had touched Colleague B on the shoulder. It made her feel uncomfortable. 5. At another time on the same shift, the Respondent had said to Colleague B, in the absence of any other person being able to hear, "I can come over on Sunday and help you relieve the stress". That made her feel very uncomfortable. 6. Colleague B felt so uncomfortable in the presence of the Respondent she was unsure if she could work effectively when he was present at the hospital. Evidence in support of Complaint Four, the Respondent providing false evidence 1. On 25 September 2020, the Respondent participated in an interview with Ms Seton Price. In that interview (exhibit A1, Tab 19, p 59), the Respondent denied he had said to Colleague B the words "You know if we just pull the curtains across no-one else will know we are even here." He also denied he had said to Colleague B "I can come over on Sunday and help you relieve the stress" 2. On 30 August 2021, the Respondent by his written response to the Health Care Complaints Commission denied certain allegations which had been particularised to him by letter dated 22 July 2021. He denied he had said to Colleague A that she was always on his mind. He denied he had telephoned Colleague A and told her he was masturbating in a cupboard. He denied saying to Colleague A that a chair was not of use if she wanted to sit on top of him and "fuck" him. He stated he did not say any words to that effect or make any such suggestion. He denied making any sexualised comments as alleged by Colleague B. He did not commit the conduct alleged by Colleague A and/or Colleague B. 3. The HCCC also relied upon the Medical Board of Australia's Code of Conduct dated March 2014 (exhibit A3). We will refer to certain parts of this document, as is necessary, as we consider this Complaint. Evidence relied upon by the Respondent 1. We have identified earlier the issues of fact which arose from the Amended Reply document (exhibit R1), relied upon by the Respondent. Those issues were extinguished by the opening statement from the Respondent's counsel who informed us there was no longer any issues of fact. There still remained an issue about s 139E and whether the Respondent's conduct amounted to professional misconduct. We will now set out detail of the evidence he relied upon before us. Exhibit R3: the affidavit of the Respondent dated 22 June 2022. 1. The Respondent set out detail of his qualifications, all of which were obtained in Australia. He was first registered as a medical practitioner in Australia in January 2016. He is in the process of completing his GP training with the Australian College of Rural and Remote Medicine (ACRRM). 2. The Respondent set out his employment history. He has worked in rural hospitals and medical practices commencing in February 2019. On 15 August 2020, his employment with the medical centre he had been employed with, was terminated. On 1 September 2020, he was suspended from clinical duties in the hospitals he was then working at. On 8 September 2020, the Respondent was notified by AHPRA of his suspension from clinical duties at the hospitals. 3. The Respondent then addressed the complaints made by Patient A and Colleague B. Both of those complaints as detailed in the HCCC's Amended Complaint (exhibit A2), are admitted by the Respondent. 4. The Respondent addressed his attendance before the Medical Council on 24 September 2020, for the hearing conducted to consider making orders under s 150 of the National Law. The outcome of that hearing was that his registration was suspended. He has not worked as a medical practitioner since that time. 5. In relation to the complaint of Patient A, the Respondent admits Complaint One entirely. He fully accepts his fault for the inappropriate personal and sexual comments he made to Patient A. He acknowledges his actions were a serious lapse of judgment on his part. Although he accepts he should not have telephoned Patient A, as she has stated, he said he did that for the "sole purpose" of checking on her health. 6. In relation to the complaint by Colleague A, the Respondent admits all of Complaint Two save for Particular 1(c). That Particular alleged the Respondent had shown Colleague A, on his mobile phone, a photo of himself without any upper torso clothing. The photo depicted him holding his young daughter. We note Particular 1(c) has been deleted from the Amended Complaint by the HCCC. 7. In relation to Complaint Three, the complaint by Colleague B, the Respondent admits the entirety of the allegations. In relation to the allegation the Respondent had touched Colleague B on the shoulder, the Respondent said that was a "brief tap on the shoulder to get her attention." He did not intend to make her feel uncomfortable; however, he accepts that is the way she felt resulting from his interaction with her. 8. The Respondent said that he was ashamed of his conduct towards Patient A. He is remorseful for the conduct which breached Patient A's trust. He failed to maintain appropriate boundaries. In relation to Colleague A and Colleague B, the Respondent acknowledges his actions were unprofessional and inappropriate. He accepts his comments were rude, immature, and disrespectful. 9. The Respondent set out details of his life since the suspension of his registration in September 2020. He said he was the sole provider for his wife and family. He also provides support for his elderly parents who reside outside Australia. He has not had any employment since September 2020. The Respondent has drawn on savings and the sale proceeds of his family home to support his family. He has no other assets to sell. He does not qualify for any social security benefits. He has borrowed from family and friends. 10. The Respondent set out detail of his remorse for visiting on his family and friends the consequence of his conduct and the suspension of his registration. 11. The Respondent has sought through self-examination to understand the reason for his misconduct. He appreciates that at the time he was working 70-80 hours per week at multiple sites. He had significant financial commitments. That gave rise to no work/life balance and social isolation. His work hours were extended in the 2019/2020 years because of natural disasters which occurred in the rural area where he was working. The bush fires which occurred in his area also gave rise to personal anxiety about the welfare of his wife and children. During that period, the Respondent was also studying for his GP exams. The Respondent was also confronted by the death of a number of his elderly patients under traumatic circumstances. That caused him emotional disturbance. 12. The Respondent stated he came to realise that in 2020 he was suffering from work burnout and was not coping with his workload and study. He said he was not using that circumstance as an excuse for his actions the subject of the complaints made against him. 13. During the 2019 and 2020 years, the Respondent said he and his wife were subjected to instances of racial abuse. As a result, they reduced their social activity in the rural area where they were living. 14. The Respondent set out the action taken by him since his suspension. He has taken measures to develop the skills and knowledge necessary to ensure no repeat of misconduct on his part. He has obtained psychological treatment. That included psychotherapy and cognitive behaviour therapy. He now believes he has greater skill in being able to cope with stressful situations. 15. The Respondent registered for group therapy courses titled "Respectful Men" and "Men and Relationship". The courses were conducted by Relationships Australia. 16. The Respondent has reviewed the Medical Board of Australia's "Good Medical Practice: a code of conduct for doctors in Australia". He has also reviewed the Royal Australian College of Surgeon's "Code of Conduct" document. The Respondent also completed the NSW Health courses entitled "Code of conduct", "Professional ethics", "Privacy Module 1 Know your boundaries", and "Health Professional Councils Authority Orientation". 17. The Respondent has completed a 13-week Sydney University "Clinical Ethics" course. He attended a 10-week, in-person group program, titled "Building Connections" with Interrelate. He also completed a number of online learning courses conducted by ACRRM. 18. The Respondent completed courses conducted by Advanced Learning Interactive Systems Online which addressed dealing with difficult people in life and work. 19. The Respondent has sought to improve his knowledge and understanding of how to maintain professional boundaries with patients by reading educational papers and articles. 20. The Respondent attached to his affidavit copies of certificates of completion or certificates of attendance at the courses he set out in his affidavit. The Report of Professor Dianna Kenny dated 27 September 2022 1. This report was marked as exhibit R4 when admitted to evidence. We noted the following from that evidence. Professor Kenny is a Professor of Psychology (rtd), Consultant Psychologist, Psychotherapist, Marriage and Family Therapist. She is a Nationally Accredited Mediator and a Family Dispute Resolution Practitioner. She holds a PhD, a Master of Arts, a Bar Association (Hons), a Grad Dip FDR, a MAPsS. There is no challenge to her qualification as an expert witness in this case. 2. Professor Kenny diagnosed the Respondent as suffering from untreated Post-Traumatic Stress Disorder (PTSD) and major depressive disorder. She opined he had suffered from those conditions for most of his life. She said he is experiencing severe stress and turmoil in all major life areas, including marital dysfunction. He is now in financial hardship and it reminds him of the poverty he experienced as a child. 3. Professor Kenny opined that the Respondent had been subjected to punishing work schedules. 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] 7. [NOT FOR PUBLICATION 8. [NOT FOR PUBLICATION] 9. [NOT FOR PUBLICATION] 10. [NOT FOR PUBLICATION] 11. [NOT FOR PUBLICATION] 12. [NOT FOR PUBLICATION] 13. After a detailed analysis of the Respondent's personality, Professor Kenny concluded her most likely diagnostic consideration of the Respondent to be post-traumatic stress disorder, major depressive disorder, and [NOT FOR PUBLICATION]. 14. Professor Kenny then addressed the question of whether the Respondent has developed insight into his behaviour and conduct which led to the complaints. She opined that the Respondent has undertaken a great deal of reflection as to why he behaved so uncharacteristically with a patient and his work colleagues. She opined that there were many factors at play in the life of the Respondent. Some were long standing and had never been really confronted by the Respondent. Others, including working under extreme stress and dealing with the complexities of his marital relationship and the birth of a new child, were contemporary. Professor Kenny listed all of the possible triggers for this apparently uncharacteristic behaviour of the Respondent and stated it is really very difficult to professionally isolate a single cause. 15. In his conversations with Professor Kenny, the Respondent acknowledged the conduct he exhibited was wrong. In the conversation, Professor Kenny recorded the following as stated by the Respondent: "I am not the same person as the one who said the things that I said. All my pain and confusion clouded my judgment. I needed a means to channel myself away from the pain. I had a lot of maladaptive ideas which I better understand now." 1. Professor Kenny stated that the Respondent had openly acknowledged his wrongdoing and expressed deep remorse, shame, and puzzlement for his conduct. He readily accepted he needed help to deal with his unprocessed trauma. 2. Professor Kenny was asked to opine on the Respondent's current mental health condition. She stated she considered the Respondents prognosis to be positive. She said: "He has the capacity for insight, he acknowledges the need for psychotherapy and trauma-focused therapy and is willing to undertake these to improve his life and wellbeing.… In short, [the Respondent] has the intelligence, motivation and capacity for insight needed to benefit from psychotherapy. He is committed to his profession and wishes to return to the practice of medicine." 1. Professor Kenny detailed the extensive study and reading the Respondent had undertaken since his suspension. 2. Professor Kenny was asked to provide her opinion as to the treatment which the Respondent ought to undertake. She stated he is in need of treatment for "(i) Post traumatic stress disorder (trauma-informed therapy) and (ii) Major depression that includes psychotherapy with the possible addition of antidepressant medication." 3. [NOT FOR PUBLICATION] 4. She also opined the Respondent would need to address his work-life balance and have supervision and mentoring in the workplace. He should endeavour to address his social isolation with building a stronger support network both within his workplace and personally. 5. [NOT FOR PUBLICATION] 6. Professor Kenny opined the Respondent is motivated to undertake treatment. He has suffered lifelong abuse in multiple forms and is likely to require between 20 and 40 sessions. The Respondent told Professor Kenny that he was prepared to do whatever was necessary to improve his mental health. 7. At the conclusion of her report, Professor Kenny was asked to provide an opinion as to the Respondent's fitness to work as a medical practitioner in terms of his psychiatric state. She opined that the Respondent "is fit to recommence his work as a GP under a program of mentorship, supervision and the provision of suitable work hours and work-life balance. … [The Respondent] evinces no underlying antisocial personality features, no generalized disinhibition outside of the complaints, no malignant narcissistic features or arrogance, and a willingness to comply with the conditions and undertakings." She said "I am of the opinion that he can undertake his therapy concurrently with returning to medical practice." Professor Kenny was optimistic the Respondent will return to ethical medical practice. 8. Professor Kenny provided a supplementary report dated 22 November 2022. She was asked to provide her opinion in relation to the possible disclosure of the report she has provided in relation to the Respondent. This is in the context of the requirement to publish the decisions of the Tribunal. She was particularly asked about the possible impact upon the psychological and/or physical health of the Respondent of such a publication. She opined: "I am of the opinion that general or public disclosure of certain elements of the report are more likely than not to cause [the Respondent] to suffer deterioration of his psychological health." Professor Kenny said she could see no useful purpose to disclose any of the Respondent's past abuse and current diagnosed condition. She opined it would risk an increase in the psychological pain for the Respondent to have such material in any public fora. 9. The Respondent relied upon an affidavit of Ms Marie Marianne, solicitor, dated 6 February 2023. Ms Marianne has been acting for the Respondent in the preparation of his case before the Tribunal. The affidavit sets out detail of the documents provided to Professor Kenny for her report and supplementary report referred to above. The affidavit also sets out the orders sought by the Respondent, which address publication of the detail of the report of Professor Kenny. The wording of the orders sought is as follows (at par 13): "a. Pursuant to clause 7 of schedule 5D of the [National Law] that a direction be given that the portions of the [reports of Professor Dianna Kenny dated 27 September 2022 and 22 November 2022] referable to the Issues not be published, being an order that is appropriate in the particular circumstances of the case; and b. Pursuant to s 165K of the [National Law] that an order be given that that part of the hearing relating to the Issues be conducted in private as it is in the public interest to do so due to the sensitive nature of the evidence to be given by [the Respondent]." 1. The Respondent, through his legal representatives, filed an Application for Miscellaneous Matters on 20 January 2023 seeking the two orders set out above addressing non-publication. A third order was sought at the conclusion of the hearing before us in the following terms: "Pursuant to clause 7 [of Schedule 5D] of the [National Law] that a direction be given that the oral evidence of Dr Narayan and Professor Kenny not be published as such an order is appropriate in the particular circumstances of the case." Oral evidence of Professor Kenny 1. Professor Kenny gave oral evidence before the Tribunal. We noted the following in particular from that evidence. 2. [NOT FOR PUBLICATION] 3. Professor Kenny was cross-examined by the counsel for the HCCC. In that cross-examination we noted the following in particular. 4. The report dated 27 September 2022 was prepared after two assessment sessions with the Respondent. Professor Kenny said she had also undertaken two welfare checks with the Respondent following the preparation of her report. 5. [NOT FOR PUBLICATION] 6. In answer to questions asked by members of the Tribunal, Professor Kenny opined that the Respondent would need intensive therapy to address the trauma which he had suffered. She thought weekly sessions would be required for some time. In relation to the role of a mentor and supervisor, which she had recommended, Professor Kenny considered the Respondent would be able to talk to each about particular patients and the patients' care. The Respondent's Oral evidence 1. The Respondent gave oral evidence. We noted the following in particular from that evidence. 2. The Respondent said he had attended upon Professor Kenny since 22 June 2022. He had read the reports of Professor Kenny and stated that the words attributed to him in the report are factually correct. The Respondent has attended upon the treatment recommended by Professor Kenny. He has been having consultation and therapy with Dr Daisy Gamayel. He had seen her for 3 weeks in November 2022 and then every week since the first week of December 2022. Each session is for one hour. He said he has provided a copy of the report from Professor Kenny to Dr Gamayel. 3. The Respondent said he had now made a disclosure to his wife of his childhood trauma [NOT FOR PUBLICATION]. 4. In relation to possible work which might be available to him in the future, the Respondent said he has an approval to work for an Aboriginal Medical Centre in rural NSW. There are six doctors employed by the centre. The centre is open from 8am to 5pm each day. At any one time, there are three doctors working in the practice. 5. In relation to the possibility of recurring inappropriate conduct on the part of the Respondent, he said that he acknowledged his behaviour to the three complainants was grossly inappropriate. He apologised for each of the conducts he engaged in. He informed us that he believes he is more aware of the "red flags" for boundary crossing in medical practice and in general. He said he had learned a great deal in the last two and a half years of his suspension. He said he had learned to regulate his emotions. He has been attending upon psychotherapy. 6. The Respondent was cross-examined. 7. The Respondent denied any suggestion he was not now fit to practise as a medical practitioner. 8. In relation to Patient A, it was put that she was not known to the Respondent outside of a doctor/patient relationship. He said he did know her through their mutual gym attendance. He agreed that his conduct with Patient A was inappropriate. He said that immediately after the consultation on 8 August 2018, he knew his conduct was wrong. 9. In relation to Colleague A, the Respondent was asked about his assertion that she had "flirted" with him. It was put that the Respondent was still trying to put some of the blame for his misconduct upon the colleagues referred to in the complaints. The Respondent denied that. He said: "No, I take full responsibility". 10. The Respondent was asked about par 25 of his affidavit where he had said his conduct towards Patient A was "a failure in that moment", yet he made a phone call to her the next day. The Respondent said: "Yes but I had a clinical purpose in that call." It was then put that the Respondent had not called Patient A for her benefit on the evening of 9 August 2018. The Respondent denied that. He said: "I did. It was a Sunday morning that the incident occurred. I saw her the next day at another hospital. I apologised to her. She said she had heart palpitations. I called her the next day to see if she had obtained the medicine she was seeking." 11. The Respondent was asked questions by the members of the Tribunal. He told us he was living in the Sydney metropolitan area now. If permitted to practise, he will move to the rural area where he has been offered employment. He will take his family with him. He currently attends upon Dr Gamayel in the Sydney Metropolitan area. If he moved to rural NSW, he can attend upon Dr Gamayel via video conferencing. 12. The Respondent told us his wife is now working part-time. 13. The Respondent told us that if he was permitted to return to medical practice now, he is confident, with the supports he has put in place with his therapist and his own GP, that he will practise in a manner which does not contravene the Good Practice guidelines and that he will not re-offend. The Submission of the HCCC 1. The HCCC provided an extensive written outline of the case for our assistance (some 18 pages). In that document, we noted the following in particular. 2. The HCCC set out an outline of the case it was bringing against the Respondent. It set out the order sought was the cancellation of the registration of the Respondent pursuant to s 149C(1)(b) and/or s 149C(1)(c) of the National Law. The non-review period the HCCC sought in its written submissions was 3 years. We note in oral submissions, the HCCC reduced that period to 1 to 2 years because the Respondent was now in treatment. The HCCC also sought the Respondent pay its costs. 3. After setting out the detail of the complaints made, the HCCC set out that the first complaint was received on 15 August 2020 by AHPRA about Patient A. Then, on 9 September 2020, the Respondent self-reported to the Medical Council that complaints had been made about him by Colleague A. On 24 September 2020, the Respondent appeared before the Medical Council where an order was made suspending the Respondent's registration. On 29 September 2020, AHPRA received a complaint against the Respondent about Colleague B. The complaint related to conduct on 5 August 2020, which Colleague B had first reported to her manager on 13 August 2020. 4. We noted that all three complaints were made in relation to conduct exhibited by the Respondent between March 2019 and August 2020 whilst the Respondent was engaged in medical practice in a rural area of NSW. 5. The HCCC provided a submission on "Legal Principles" applicable to the current proceeding. In that portion of its submission, the HCCC quoted from the Medical Board of Australia's 'Guidelines Sexual boundaries in the doctor-patient relationship, 12 December 2018', as follows: "'Sexual misconduct is an abuse of the doctor-patient relationship. It undermines the trust and confidence of patients in their doctors and of the community in the medical profession. It can cause significant and lasting harm to patients.'" 1. In relation to conduct by a doctor towards a work colleague, the HCCC referred us to the decision of the NSW Court of Appeal in Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403; [2021] NSWCA 147 at [125]. That decision addressed conduct which contained sexual innuendo as opposed to explicit sexualised conduct. The Court identified what was described as unwelcomed actions to females which may be disguised or camouflaged as a joke or as jesting, and pointed out that such conduct is just as much sexualised conduct directed towards women as is explicit sexual conduct. 2. The HCCC referred us to the decision in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [86]–[89], where the Tribunal addressed the meaning to be attributed to the words "unethical" and "improper". At [89], the Tribunal said: "It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81]." 1. The HCCC points out that although agreeing his conduct as detailed in the Complaint document amounts to unsatisfactory professional conduct, the Respondent denies such conduct is professional misconduct as defined in s 139E of the National Law. The HCCC referred us to Health Care Complaint Commission v Do [2014] NSWCA 307 ("Do"), Chen v Health Care Complaint Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 and Health Care Complaint Commission v Morsingh [2021] NSWCATOD 13. Those decisions address the need for deterrents to be part of the considerations for the imposition of protective orders. Additionally, we are reminded there is no category of unsatisfactory professional conduct which is incapable of also being professional misconduct. Each case is to be assessed by the Tribunal in its evaluative judgment as to the nature and seriousness of the conduct. 2. In relation to the role of protective orders and the different orders which are available to the Tribunal in this case, the HCCC pointed to the paramount consideration of protection of the public. We were referred to the decision of the NSW Court of Appeal in NSW Bar Association v Meakes [2006] NSWCA 340 ("Meakes") at [114]. 3. The HCCC submitted that the statements of principles in Meakes were further refined by Meagher J in Do at [35], stating: "… [T]he objective extends to protecting the public from not only the practitioner's misconduct but also similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession, 'by setting and maintaining standards and, where appropriate, 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. In relation to the determination of whether the Tribunal should impose a protective order which cancels a practitioners registration or suspends same, the HCCC submitted the following: "61. In Health Care Complaints Commission v Russ (2021) NSWCATOD 5, the Tribunal identified the following relevant principles in considering whether the circumstances of an offence rendered a practitioner unfit in the public interest: 61.1. the term 'public interest' is a broader concept that the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held (citing Pharmacy Council v Ibrahim (2020) NSWSC 708 at [35]) (at [37]); 61.2. an assessment of the practitioner's current fitness to practi[s]e is required, and is not subject to a requirement of 'probable permanent unfitness' (citing Chen v Health Care Complaints Commission [2017] NSWCA 196 at [67]-[69]) (at [38]); 61.3. the question is whether the circumstances surrounding the offence currently render the practitioner unfit to practi[s]e in the public interest. Those circumstances include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances (at [39]). 62. In determining whether misconduct by a health practitioner is such that suspension or cancellation of their registration is appropriate, relevant considerations include (See, e.g., Health Care Complaints Commission v Moulds (2010) NSWNMT 1, (47); Health Care Complaints Commission v Pierce (2010) NSWNMT 23, (62); Health Care Complaints Commission v Marsh (2016) NSWCATOD 155, (17); Health Care Complaints Commission v Jung (2018) NSWCATOD 53, (14)): 62.1. whether the misconduct could satisfactorily be explained as an error of judgment rather than a defect of character; 62.2. the intrinsic seriousness of the misconduct as it relates to fitness to practise; 62.3. whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner; 62.4. the motivation for the misconduct; 62.5. the underlying qualities of character shown by previous and other conduct; and 62.6. whether the practitioner's conduct after the proven episode of misconduct demonstrates that public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a health practitioner." 1. The HCCC submitted that: "64. Whether a practitioner is unfit in the public interest to practi[s]e must be assessed in light of a holistic inquiry into suitability which takes into account the wider context of the practitioner's conduct, including motivation, insight into the harm caused and any attempts at remediation. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards and public confidence in the health professions. 65. The Applicant says that the recent case of Health Care Complaints Commission v Segal (No 2) [2023] NSWCATOD 6 is apposite when considering if cancellation is appropriate. 66. The Applicant respectfully submits that the Respondent's behaviour is more or as serious as the conduct which arose in Segal (No 2) and that the Respondent poses a greater ongoing threat to the public." 1. In Health Care Complaints Commission v Segal (No 2) [2023] NSWCATOD 6 ("Segal (No 2)"), the Tribunal cancelled the registration of the practitioner with a non-review period of 12 months. We have reviewed the findings made by the Tribunal in that matter at Stage 1 and conclude the facts in this case are distinguished from those in Segal (No 2). The misconduct and the repetition of it by that practitioner went far beyond that alleged and that conceded by the Respondent in this matter. 2. The HCCC addressed s 149C(5) of the National Law and stated: "68. As is clear from s 149C(5) of the National Law there are two pre-requisites to be established if a prohibition order is to be made. They are: 68.1. First, the Tribunal must have determined that the practitioner the subject of disciplinary proceedings should have her/his registration suspended or cancelled. 68.2. Secondly, the Tribunal must be satisfied that the person poses a substantial risk to the health and safety of members of the public." 1. The HCCC provided oral submission at the conclusion of the hearing before us. In addition to the matters we have noted from its written submission (as above), we have noted the following. 2. The HCCC emphasised that the subject case is not an "impairment case". The HCCC rejected the position put by the Respondent that he is ready to return to practice. It suggested the Respondent was seeking to use his mental health as a means to evade cancellation of his registration. 3. The HCCC submitted that the evidence of Professor Kenny should be viewed with caution as she presented as an advocate for the Respondent rather than a truly independent expert witness. It submitted that the action of Professor Kenny carrying out a follow-up welfare check with the Respondent blurred the boundary between an expert witness and an advocate. 4. The HCCC submitted the Tribunal would not lose sight of the harm caused to Patient A and Colleague A by the conduct of the Respondent, which he ultimately freely admits. The evidence of Colleague B also should be considered in terms of assessing the impact upon her of the Respondent's conduct exhibited to her. 5. The HCCC submitted there is still an element of the Respondent's case which suggests ongoing blame to the victims of his conduct. 6. The HCCC drew our attention to the decision in Qasim v Health Care Complaints Commission [2015] NSWCA 282 ("Qasim") at [72]-[74]. We here set out those paragraphs from the decision. "Did the Tribunal err in determining the period during which Dr Qasim would not be entitled to reapply for registration? (ground 9) 72 It is not submitted on behalf of Dr Qasim that the Tribunal did not have power to make an order that she not be permitted to reapply for registration for a period of four years from 2 May 2014. 73 Rather it is submitted that, in exercising its discretion to make such an order, the Tribunal was required to take into account the fact that Dr Qasim had been suspended from practice for a period of three and a half years from December 2010. That submission proceeds on a wrong view as to the purpose of the disciplinary powers of the Tribunal. That purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]; see also National Law, ss 3(2) and 3A. 74 The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. In addressing that question, the Tribunal noted that Dr Qasim had "limited insight into her impairment" and that she did not accept that she had a mental illness which required treatment: [176]. In circumstances where it was not suggested that at any time during the three and a half year suspension period 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. This ground also should be dismissed." The Oral Submission of the Respondent 1. The Respondent in submission said that the HCCC had not put to Professor Kenny that she was not fulfilling her obligation as an expert witness, rather she had become an advocate for the Respondent. As such, the HCCC cannot now ask the Tribunal to draw the conclusion urged by the HCCC. 2. The Respondent submitted the Tribunal was required to determine two remaining issues in the case. Firstly, the Tribunal is to determine if the HCCC has established its case that the Respondent is guilty of professional misconduct as defined in s 139E of the National Law. Next, the Tribunal is to determine what protective orders should be made. 3. The Respondent submitted that Tribunal would determine whether the Respondent is guilty of professional misconduct in light of his traumatic earlier life and the impact upon him to the date of the offending. If the Tribunal concludes that such circumstances are not relevant to the determination of professional misconduct, then it is conceded the Respondent is guilty of professional misconduct as defined by s 139E. 4. The Respondent submitted that his conduct, the subject of the proceeding, arose in the context of untreated childhood trauma. Page 10 of the report of Professor Kenny dated 27 September 2022 sets out her hypothesis for the offending. The Respondent accepted his behaviour was improper prior to seeing Professor Kenny. 5. The Respondent submitted it was important to note the improper behaviour did not arise from nefarious intent. There was no sexual offence in the stated offending. [NOT FOR PUBLICATION] 6. When asked why the Tribunal should not find the Respondent guilty of professional misconduct, counsel for the Respondent submitted that s 139E was really directed at nefarious intent. No authority was cited in support of that submission. 7. The Respondent submitted that he should be seen as quite different in his psychological state than he was at the time of the offending conduct. He submitted that the disclosing of his traumatic history to Professor Kenny should be seen as a significant breakthrough in his rehabilitation and that the ongoing therapy he is undertaking is helping him address his residual PTSD and other conditions flowing from that history. 8. The Respondent has commenced intensive therapy with Dr Gamayel, his psychotherapist, and we were informed by his counsel that he has now had 13 trauma-based sessions. He is prepared to continue with Dr Gamayel for as long as she advises he will benefit from her therapy. 9. In relation to the prospect of returning to practice whilst the subject of conditions, the Respondent informed us he is prepared to work under the conditions the Tribunal may deem necessary as protective orders. 10. In relation to the decision which may face the Tribunal when imposing a protective order, which is either a suspension of registration or cancellation of registration, the Respondent submitted the Tribunal would consider if there was evidence of the Respondent being deceitful or displaying moral turpitude. It was conceded the conduct was improper and unethical. 11. The Respondent made a submission which was, in effect, that all of the circumstances of the case need to be taken into account, assessed, and weighed in determining the protective order to be made. 12. In the event that the Tribunal finds the Respondent guilty of professional misconduct, the Respondent submitted that the Tribunal, when addressing the aspect of deterrence in the determination of the protective orders to impose, it would recognise that the Respondent needed to acknowledge and accept he was unwell before he could address the conduct which gave rise to the complaints. He has done that now. He has disclosed his history and the continuing impact of same on his adult life to Professor Kenny. He has informed his wife of that history and how that has impacted upon his ability to be a husband and conduct a healthy marital relationship. 13. The Respondent pointed out that he does have an offer of employment in a clinic serving an indigenous population cohort and that there would be a number of other medical practitioners working there. There would be at least three doctors working in the clinic at any time the Respondent would be able to work in the clinic. 14. If he was able to work in the clinic he has nominated, it would be in rural NSW and some distance from Sydney where his therapist Dr Gamayel has her rooms. He has made an arrangement to meet with Dr Gamayel by video link in order to continue his therapy. 15. It was submitted the Respondent has recognised that at the time he offended with his conduct, he was working under very high stress with lengthy work hours and meeting the challenge which natural disasters in the area where he was working impacted upon the population and on their medical needs. He was also most concerned for the safety of his wife and child. As a consequence of recognising the impact on him of that stress, he has resolved to change his work/life balance and avoid falling into that state again. 16. The Respondent submitted that if the Tribunal was to impose conditions which included supervision, then it should be supervision category "C" which is imposed. 17. The Respondent relies upon the opinion of Professor Kenny that the Respondent is now fit for practice as a medical practitioner. It is clear however, that Professor Kenny has opined the necessity of therapy for the Respondent and has not placed an end date on that. 18. When assessing the conduct and the necessity for protective orders, the Respondent submitted the Tribunal would take into consideration that there is no evidence placed before the Tribunal of any prior misconduct by the Respondent. That is said to be a significant matter given that the Respondent practised as a radiographer for many years before changing his vocation. Further, although there were three complaints, none were in relation to his medical skill or knowledge, and the offending was within a relatively small window in time. The Respondent stressed that the evidence would not lead to a finding that the Respondent was a sexual deviant. 19. [NOT FOR PUBLICATION] 20. It was submitted that the Respondent has shown both insight and remorse for his conduct. The Tribunal could be satisfied that the Respondent will not again offend and that he can practise safely and for the benefit of the public at large. 21. The Respondent was asked to address the HCCC application for costs. We were told the Respondent did not wish to make any submission against a cost order being made as sought by the HCCC. 22. The Respondent sought a non-publication order in relation to the evidence of Professor Kenny, both in relation to her report and her oral evidence. That order was sought in an Application for Miscellaneous Orders filed on 20 January 2023 and also in the Respondent's oral submissions. Consideration and Determination 1. "Punishment of a medical practitioner for professional misconduct is not authorised by the National Law. It is the protection of the public which is the focus of "protection orders". It has long been recognised that adverse consequences for a medical practitioner can and will follow, to a lesser or greater degree, from the imposition of protective orders. However, the province/responsibility for penalty imposition upon medical practitioners, arising from established misconduct, lies under a different Act and with a different tribunal": see Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40; HCCC v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 297; and HCCC v Gillett [2007] NSWNMT 7. 2. Section 149C(1)(c) of the National Law empowers the Tribunal to suspend or cancel a health practitioner's registration where the practitioner has been found to have engaged in professional misconduct. 3. Section 3 of the National Law sets out the objectives of the National Law, as those objectives apply to the national registration scheme. That section is as follows: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; and (b) the registration of students undertaking— (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (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; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and … (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners." 1. Section 3A of the National Law sets out the guiding principles of the National Law, as those principles apply to the national registration scheme. That section is as follows: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows: (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3B of the National Law sets out the objective and guiding principle to be applied by a Tribunal in New South Wales, in conducting an inquiry into a complaint and, if appropriate to do so, when making protective orders. Section 3B provides as follows: 3B 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. In Chen v Health Care Complaints Commission, Basten JA in the Court of Appeal said the following (at [18]-[22]): "18. The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. 19. 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. 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, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. 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 such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 21. Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. 22. The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided." (footnotes omitted) 1. In Health Care Complaints Commission v Bours (No 2) [2015] NSWCATOD 80, the Tribunal considered (at [22]-[25]) the cancellation of registration: "22. The jurisdiction of the Tribunal is protective rather than punitive. The nuances of the Tribunal's protective role in making orders have been considered extensively in the case law. In HCCC v Do [2014] NSWCA 307, the Court of Appeal opined: '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 included protecting the public from the similar misconduct or incompetence of other practitioner and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining the 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 operated 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.' (at [35]) 23. HCCC v Jane Waddell (No 2) [2013] NSWNMT 2 observes: '[106] The common thread throughout reasons for decisions and judgments concerning consequential orders ma[d]e in this area of law is that the purpose of such orders is centred on protection, not punishment. The primary focus of protection is the public – protection from actual harm caused by health practitioners who do not meet the standards required by law and codes of conduct, and protection from a culture of sub-standard practice or lacking in professional ethics from which harm may flow. The objective is that the public might actually be protected, and might have confidence in the prudent and competent practice and the ethical conduct of health practitioners, and in the profession generally. The secondary focus is the protection of the integrity of the relevant profession. Indeed, this may reach to the protection of other members of the profession – that they may not be tainted by lack of sanction of colleagues who have failed to meet the considered legal, practice, and ethical standards. [107] There is no place for a punitive objective in making orders consequent on findings of unsatisfactory professional conduct or professional misconduct. It is undeniable, however, that the fashion of appropriate protective consequential orders made by a disciplinary Tribunal may have the 'felt effect' of punishment. That is, the health practitioner who is the subject of orders may feel that they have been penalised, punished, or even sentenced, in the traditional sense understood in many aspects of law. In that way, an order fashioned for protection may subjectively be construed by the health practitioner as being punitive. Indeed, in Lee v HCCC [2012] NSWCA 80 the possibility of a punitive effect (rather than a punitive object) was considered as a possibility in making an order to protect the community (at [20], per Barratt JA, MacFarlane JA concurring). [108] The High Court's decision in Rich v ASIC [2004] HCA 42; [2004] 220 CLR 129 informs on this point: "Just as a law may bear several characters, a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted. That a proceeding may bear several characters does not deny that it bears 'each of these characters." (at [35]).' 24. The Tribunal has discretion as to whether a practitioner's registration should be cancelled or suspended under s.149C of the National Law. A finding of professional misconduct opens the door to the possibility of the cancellation of registration, although it must be noted that such order is not the automatic consequence of such finding. As outlined in HCCC v. Karalasingham [2007] NSWCA 267 (at [67]), in clarifying that the Tribunal is not bound to order deregistration in the face of a professional misconduct finding and in the absence of mitigating factors, "the discretion of the Tribunal is at large and will depend on the circumstances of the individual case". 25. HCCC v. Litchfield (1997) NSWSC 297; 41 NSWLR 630 at [638C] informs the Tribunal's consequential orders: 'The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.' 1. In Health Care Complaints Commission v Burton [2017] NSWCATOD 57 the Tribunal held (at [111]):- "In evaluating whether the conduct found to constitute unsatisfactory professional conduct, is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, any mitigating factors and an evaluation of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases, but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638." Has the HCCC established the case of unsatisfactory professional conduct against the Respondent? 1. In addition to there being no issue on the Respondent's part that the HCCC has established its case against him in relation to the complaint he is guilty of unsatisfactory professional conduct, we are satisfied the evidence before us establishes he is guilty of unsatisfactory professional conduct. Is the Respondent guilty of Professional Misconduct? 1. We have set out above a number of decisions which address the determination of whether the Tribunal would find a practitioner guilty of professional misconduct as defined in s.139E of the National Law. Applying those guidelines, we do find that the Respondent is guilty of professional misconduct. We make that finding based upon the misconduct of the Respondent, as admitted by him, with Patient A. We find, pursuant to s 139E(a), his unsatisfactory professional conduct with Patient A was of a sufficiently serious nature to justify suspension or cancellation of his registration. We also find that his unsatisfactory professional conduct exhibited to his work colleagues Colleague A and Colleague B, when considered individually and/or collectively, amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. 2. The misconduct of the Respondent towards Patient A occurred between the Respondent and Patient A in the circumstance of Patient A having been a patient who saw the Respondent in a medical context. As such, his misconduct is easily seen to be offensive when viewed through the lens of the National Law. However, his conduct as displayed to Colleague A and Colleague B was no less a breach of his obligations as a medical practitioner. 3. People who go to work to gain an income to support themselves and their dependants are entitled to be able to do so without having to suffer the type of abuse visited upon Colleague A and Colleague B by the Respondent. Further, in this case, there was at play a power imbalance in the relationship between the Respondent and the subjects of his abusive behaviour. He was a doctor working in a medical practice which employed Colleague A and a visiting medical officer working in the same hospital as Colleague B. 4. In Health Care Complaints Commission v Hasan [2022] NSWCATOD 52 at [149], the Tribunal said in relation to the consideration of "[t]he maintenance of public confidence in the profession": "It is in our view imperative in the function of maintaining the confidence of the public in the medical profession, that the public accept that medical practitioners employed within a hospital, where they are treating patients, … that the staff in that hospital and all other persons within the hospital from time to time, (particularly women), can expect to work or visit, without being subjected to the conduct which we have found the Respondent visited upon Person A." 1. In this case, the Tribunal is again asked to consider the conduct of a medical practitioner inflicting upon work colleagues, in particular colleagues over whom he exercises a degree of control or power, unwelcomed and worrying behaviour which adversely affects their ability to work within their chosen workplace. The conduct is entirely unbecoming of a registered medical practitioner. A registered medical practitioner is a person who the public is entitled to understand has passed all the necessary educational criteria to hold that registration. Further, that they are persons who are fit and proper for that registration, and who have established to the satisfaction of the governing body which administers the registration of medical practitioners in Australia, that they will practice medicine competently, ethically, and responsibly, and thereby be an asset in the community in which they live and practice: see s 3(2)(a) of the National Law. 2. The Respondent has argued, in this case, that the circumstances of the Respondent's PTSD [NOT FOR PUBLICATION] should be taken into consideration in the determination of whether his conduct amounts to professional misconduct. No authority for such an approach was cited. We reject such a submission and conclude that if that history is to have a place in our determination, it would fall within the considerations which the Tribunal will address when determining the protective orders to be made. What Protective Order should be imposed. 1. As set out earlier, there is a significant gulf in the difference between the protective order sought by the HCCC and that submitted as appropriate by the Respondent. The HCCC seeks a cancellation and the imposition of a restraint upon the Respondent applying for reinstatement of his registration for 1 to 2 years from the date of our order. The Respondent submits a reprimand and application of conditions upon his registration will satisfy the requirements of the National Law. 2. The function of the orders resulting from the decision is not to underscore a punitive response, but to affect a mode of continuing public protection. As was stated in Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [25]: ''… imposition of restrictions on the practice of a health professional are only to be done in pursuit of this higher objective [protection]. Such a determination of necessity and appropriateness are made considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals": Lee v HCCC [2012] NSWCA 80 at [34]." 1. As Basten JA set out in Meakes at [114]: "… it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession." 1. As Niall J said in Medical Board of Australia v Liang Joo Leow [2019] VSC 532 at [94]: "… In assessing how the public might view the facts, it is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered response, having regard to all of the competing factors." 1. The Tribunal should consider if the public confidence is either likely or unlikely to be affected by the decision in a single case. Public confidence needs to be considered in a measured way. The following was said in Medical Practitioners Board of Victoria v Lal (2009) 23 VR 702; [2009] VSCA 109 at [59]: "Like the goodwill which attaches to a business, however, public confidence in the medical profession is not turned on and off like a switch. Public confidence is won — or lost — gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high." 1. The statutory language is clear. The Tribunal must first find that restrictions are necessary to ensure health services are provided safely and are of an appropriate quality before it can move on to consider discretionary matters under s 149C of the National Law. Further, as the language of section 3A(2)(c) is in the present tense, the test of necessity must apply to the current practice of the practitioner. 2. As the Tribunal has set out in earlier decisions, it is necessary to have regard to the following matters when considering what order to make: 1. The nature and seriousness of the Respondent's professional misconduct. 2. Is there any mitigating fact, arising from the misconduct, which the Tribunal should take into account when determining the imposition of a protective order? 3. Whether the practitioner is fit for practise at the time of the hearing before the Tribunal. 4. Whether the practitioner has demonstrated real contrition for their misconduct and gained insight into the circumstances which caused the misconduct. 5. An assessment of the possibility of reoffending should the practitioner be permitted to continue practice. 6. The ability of the imposition of conditions to ensure proper and appropriate conduct and otherwise safeguard the public against the consequence of further misconduct. 7. The need to protect the public against further misconduct by a practitioner. 8. The need to provide for general deterrence. Transgressions must be denounced. 9. The need to maintain public confidence in the profession. 10. Restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality: s 3A(2)(c) of the National Law. 11. The circumstances of a particular matter may require the Tribunal to give greater weight to some of these considerations, or to consider other matters bearing on the health and safety of the public." 1. With those matters in mind, we turn to consider each of them in turn. The nature and seriousness of the Respondent's professional misconduct 1. We have set out above our condemnation of the Respondent's misconduct. We have and do denounce his conduct towards each of the three complainants. The misconduct consisted of harassment of a sexualised nature. It was offensive and confronting to the unfortunate complainants. We are satisfied his misconduct was serious and it significantly impacted upon the wellbeing of each of the complainants. Is there any mitigating fact, arising from the misconduct, which the Tribunal should take into account when determining the imposition of a protective order? 1. In Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339, the Court stated at [194]-[196]: "194. This Court does not underestimate the seriousness of the respondent's conduct, nor its implications. At its heart it is sexual harassment that has no place in any society, and certainly not in the ranks of an honourable profession. The conduct towards A was, as the Tribunal found, crass and vulgar. The conduct towards H was demeaning, humiliating and inexcusable. Intoxication afforded no excuse. The conduct called for sanction. 195. The question for this Court is what measure is called for to mark the Court's intolerance of conduct of the kind in question and to convey its intolerance to others who might be tempted similarly to engage in conduct that is demeaning to women and perpetuates unacceptable attitudes. We consider that, notwithstanding (as we have already mentioned) that the objective of disciplinary orders is protective and not punitive, some guidance may be taken from two well established principles of sentencing law: (i) proportionality and (ii) weight that may be given to extra-curial punishment. It is appropriate to note the level of extra-curial punishment (in some respects going far beyond any action the Court could take) that has already been visited on the respondent. This includes: notwithstanding the non-publication orders, a level of public notoriety and humiliation; a four year period of anxiety, while the Council's investigations proceeded; a further period of anxiety since the filing of the Council's appeal; severe impact on the respondent's mental health, detailed in the reports of Dr Bowers and Dr Nielssen; the termination of the respondent's marriage and disruption to his family; a very significant quantifiable cost resulting from the variation in the terms of the respondent's policy of professional indemnity insurance for 2022, with an unquantifiable potential penalty in forthcoming years (already, the annual cost has dwarfed the maximum fine this Court could impose); and an unquantifiable but real and significant impact on the respondent's practice. 196. Bad as the respondent's conduct was, and deserving of condemnation, so far as the evidence goes, it represents an isolated instance of departure from accepted norms of conduct. It is an instance of the "human frailty" that Kitto J recognised in Ziems and was again recognised by the High Court in A Solicitor. It needs to be seen in proportion to what the conduct has already cost the respondent in personal and emotional, as well as financial, terms." 1. We turn to consider the extra-curial punishment in the subject case. The Respondent has been suspended from practice since the s 150 hearing on 29 October 2020, a period of almost two and a half years to the date of the hearing before the Tribunal on 2 March 2023. He has had to sell his house in order to support his family. He has no entitlement to social security or governmental financial assistance. His impecunious state has meant he has been unable to continue supporting his parents who are living outside Australia. He has had to borrow from family and friends to support himself and disclose to them the reason such funds are required. 2. We conclude the Respondent has been subjected to very considerable extra-curial punishment as a result of his professional misconduct. 3. The Respondent in his submission stated that the circumstance of the Respondent's hitherto undiagnosed and undisclosed PTSD and depression, in the circumstances of this case and the action taken by the Respondent to address those conditions are matters which the Tribunal could take into account as mitigating circumstances for his serious professional misconduct. 4. We refer to the statement of the Court of Appeal in Qasim at [72]-[74], which is reproduced above at [147]. 5. In this case, the Respondent, unlike Dr Qasim, has recognised and acknowledged his misconduct towards all three complainants. He has sought to address his own psychological and psychiatric condition which contributed to the conduct which gave rise to the complaints. He has actively pursued diagnosis and therapy to address the PTSD and other identified conditions from which he has suffered following an extraordinary personal history [NOT FOR PUBLICATION]. He has undertaken to continue his therapy into the future and is, we accept, motivated to do so. 6. In this matter we can take into account, applying the principle set out in Qasim, that the Respondent has spent time since his suspension addressing his personal circumstances which, on the evidence of Professor Kenny, was a very significant cause of the conduct which gave rise to the complaints made against the Respondent and addressed in these reasons. That action has led to Professor Kenny opining that the Respondent is now fit for medical practice. 7. It is also to be noted that this is not a case where there is a complaint made about the Respondent's medical knowledge or clinical skills. Nonetheless, the Respondent has continued to undertake medical study as he has set out extensively in his affidavit evidence. It is not suggested by the HCCC that the Respondent is not fit for practice having regard to his knowledge and skill. Complaint Four: the Respondent's dishonesty admitted to and arising from his denials of the complaints made against him by Patient A, Colleague A and Colleague B 1. We turn now to consider the implications for our determination of the Respondent's concession that he is guilty of unsatisfactory professional conduct, as alleged in Complaint Four. That complaint addressed the Respondent's false and misleading statements to his employer, the delegates to the Medical Council of NSW, and to the Health Care Complaints Commission. The misleading and false statements consisted of denials of the conduct alleged against him by Patient A, Colleague A and Colleague B. 2. The provision of false and misleading information to the regulator of the medical profession in NSW, namely the Medical Council of NSW, and also to his employer and the Health Care Complaints Commission, is a serious and deliberate offence. The only positive finding which could be made, arising from that conduct, is that the Respondent has now addressed that wrongdoing by acknowledging he was untruthful and misleading and offering his apology for same. That event suggests, on its face, that the Respondent has taken responsibility for his misconduct and is endeavouring to make amends for same. 3. The consequence to the complainants of the Respondent changing his position in relation to the complaints Patient A, Colleague A and Colleague B have made against him, is that he has spared each of them the distress and inconvenience which would have accompanied the requirement for them to appear before the Tribunal to be cross-examined on their allegations. 4. The fact that the Respondent has admitted and acknowledged that he provided false and misleading information and evidence to the persons and bodies set out above, must raise concerns about his credit and the reliability the Tribunal can place on his apologies for his misconduct and his promises not to repeat any such conduct in the future if he is permitted to continue to practise. That concern the Tribunal has is tempered by our acceptance that the Respondent is genuine in his remorse for his misconduct and all aspects of it. 5. Placing the best possible light on this dishonest misconduct, it seems that the Respondent's reason for lying to those persons and bodies was to avoid losing his employment and avert the catastrophic consequences for his personal financial position and the ability to support his immediate and close family. Once he had his registration suspended by the Medical Council, all was lost and so he had to face confronting his own behaviour, his personal mental health issues, and taking all necessary action to enable him to return to practice if that was to be possible. Is the Respondent fit to practise at the time of the hearing before us? 1. The complaints which we have itemised above do not refer to any deficiency in the Respondent's knowledge and skill as a medical practitioner. The complaints address his interpersonal conduct with a patient and with two colleagues. The colleagues were subjected to the Respondents misconduct in their workplaces. As such, the complaint is really directed to matters relating to the Respondent's mental health. The HCCC submitted that the Respondent was using his mental health as a means to evade cancellation of his registration. We do not accept that submission. We have accepted the expert evidence of Professor Kenny in relation to the Respondent's mental health and that evidence is one of the matters we take into account in this determination. 2. The HCCC was critical of Professor Kenny as an expert witness. The HCCC submitted Professor Kenny had become an advocate for the Respondent. It submitted Professor Kenny had departed her expert role when she followed up the Respondent after her consultation with him for the purpose of preparing an expert's report. Professor Kenny said the follow up was in the nature of a welfare check. The Respondent had disclosed to her, the first therapist or medical practitioner/professional he had made any disclosure to about his traumatic history. Professor Kenny was clearly able to see that disclosure took a toll on the Respondent, and that coupled with his disclosed suicidal ideation gave rise to a concern which we accept any caring professional would act upon as she did. We do not accept that the weight we can give to the evidence of Professor Kenny should be reduced in any measure. 3. Since the complaints were made and the Respondents registration was suspended, he has taken significant and, we accept, personally emotional and painful steps, to address his mental health and to confront the impact upon himself and the manifestation of abhorrent conduct he has displayed to the three complainants in this matter. 4. The principal witness for the Respondent is Professor Kenny. We have addressed her evidence earlier in these reasons. We only need to consider at this point, that she concluded the Respondent is fit to practise. We accept that evidence. 5. We also rely upon our own observations and assessment of the Respondent insofar as we can, principally noting his apparently genuine remorse, the action he has taken to address the root cause, which we accept probably gave rise to his misconduct or was a significant contributor to same, and the action he is prepared to take to ensure he does not again offend through his conduct towards patients, colleagues, and other people he might have contact with. Whether the Respondent has demonstrated real contrition for his misconduct and gained insight into the circumstances which caused the misconduct? 1. We are satisfied the Respondent has demonstrated real contrition for his misconduct and that he has gained insight into the circumstances which caused his misconduct. We rely upon the evidence of Professor Kenny, which we accept together with our own observations of the manner in which the Respondent gave his oral evidence and its content. An assessment of the possibility of reoffending should the Respondent be permitted to continue practice 1. As we have concluded earlier, we are as satisfied as we can be that the Respondent will not offend again should he be permitted to return to practice. Such satisfaction would be bolstered by the imposition of conditions attached to his registration which will support the Respondent in a rehabilitation process he has commenced addressing himself and which we are confident he will continue with. Will the imposition of conditions ensure proper and appropriate conduct and safeguard the public against the consequence of further misconduct? 1. We are confident conditions can achieve the outcome of ensuring appropriate conduct by the Respondent and safeguard the public. We will address this matter again later in these reasons. The need to protect the public, maintain public confidence in the profession and provide general deterrence. 1. Given that there is no complaint addressed to the Respondent's knowledge and skill as a medical practitioner, the aspect of deterrence really addresses the need for medical practitioners to address matters of mental health which might impact upon their practice of medicine and on their own wellbeing. Where defects in knowledge and skill as a medical practitioner might be addressed and remedied in a relatively short time frame by directed educational instruction, the same cannot be achieved where the deficit is one of character and ethical practice. Those deficiencies can take considerable time to completely eradicate. 2. There is however a stage where treatment/therapy is being undertaken to address matters of conduct caused by a mental health condition, where the practitioner is fit to practise, albeit with supports which can be observed and overseen by the Medical Council of NSW. That type of circumstance can be created by a protective order which permits a return to work accompanied by conditions attached to the practitioner's registration. We consider that is the case here. 3. In this case, the Respondent whilst carrying a huge load of shame and confusion arising from his traumatic history, found himself in a situation where he was working far too many hours each week and being subjected to the events of natural disasters impacting upon the people living in the geographic area in which he worked, flooded him with work which could not be put aside. Those circumstances, coupled with his personal relationship dynamics, apparently exposed him to stresses he had never faced before and eroded the ability he had demonstrated until that time, to not let his (now diagnosed) PTSD and other mental health issues cause him to conduct himself in a manner towards the three complainants, which we have set out above. 4. The question of deterrence, which needs to be addressed in this case, is one of demonstrating to medical practitioners the consequence of not addressing all aspects of their health, including their mental health, and being able to recognise that if they do not control their work life to the extent necessary to ensure that it does not impact upon their mental health and coping mechanisms, they are very likely to make mistakes and to conduct themselves in a manner which is completely out of character. 5. We recognise that public confidence in the medical profession calls for the members of the profession to ensure they are medically well themselves and able to practice medicine with the full ability to exercise their skill unaffected by illness of mind or body. The particular circumstances of this case 1. We have addressed this matter extensively when we looked at mitigating factors which arise in the case. 2. In the submission of the HCCC, it submitted this is not a case which could be described as an impairment case. We accept that submission. However, the Respondent has been afflicted by an impairment which has been undiagnosed and untreated for many years. Had the Respondent addressed his mental health before the circumstances confronting the Respondent in his work life and home life caused the misconduct we have identified, the Medical Council may well have been able to assist the Respondent through its impaired registrants programs. 3. Earlier in these reasons, we set out an extract from the submission of the HCCC which identified considerations which it submitted should be addressed by the Tribunal in the determination of this matter (see [138] above). We have addressed a number of those considerations and we now turn to consider those which are additional to the consideration we have addressed above. Whether the misconduct could satisfactorily be explained as an error of judgment rather than a defect of character 1. In this case, we find that the circumstances of the Respondent's mental health, coupled with extraordinary working conditions, probably led to conduct which was otherwise out of character for him. He had been a practising radiographer for many years before the complaints were made in this case. There was no evidence placed before us to suggest the Respondent had come to the attention of any authority in relation to abhorrent conduct towards patients or work colleagues or members of the public at large, during that time. 2. The Respondent was also harbouring an untreated mental health condition at the time of his misconduct. Whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner 1. In this case, there were three complainants. The conduct could not in those circumstances be described as isolated in the sense of there being only one act of misconduct. The conduct was however, confined to a fairly limited period of time. The conduct ceased with a complaint being made and the Respondent being dismissed from his employment and then suspended by the Medical Council following its hearing. It is in those circumstances not possible to know the extent to which the Respondent would have continued to display the type of abhorrent conduct which he had visited upon the three complainants in this case, had events not brought to an end his opportunity to meet with patients and work colleagues. It needs to be remembered that he did not address his mental health and other identified personal issues until after he lost his employment. The motivation for the misconduct 1. The evidence from Professor Kenny satisfies us that the Respondent was not acting in order to satisfy a sexual desire, although objectively it certainly appeared that way. In any event, the evidence does not establish any actual sexual activity between the Respondent and any of the complainants. 2. We draw from the evidence, particularly that of Professor Kenny, that the Respondent was probably acting without any explicit motivation. There is some evidence to suggest the motivation may have been to dispel any concern in his work colleagues and in Patient A, that he was homosexual. In reality the Respondent was "out of control", he had lost the ability which he had possessed until that time, to contain any manifestation of his mental health issues, because of a multitude of extreme circumstances, not previously experienced by the Respondent, which conflagrated at the same time. The underlying qualities of character shown by previous and other conduct 1. The evidence suggests that the Respondent is a highly intelligent and industrious person who overcame an extremely traumatic [NOT FOR PUBLICATION], to gain qualifications as a radiographer and subsequently as a medical practitioner. He had therefore, until the offending identified in this case, led a life as a person of exemplary character who was a potential role model to those being raised in similar circumstances in the country of his origin. Whether the practitioner's conduct after the proven episode of misconduct demonstrates that public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a health practitioner." 1. We find that the Respondent's conduct, following the reporting of his misconduct by the complainants, does demonstrate a commitment to ensure that if he is permitted to practise medicine in the future, he will ensure his practice is such that the public and the profession can be confident he will uphold and observe the high standards of moral rectitude required of a health practitioner. Is it possible to protect the public health and safety without cancelling or suspending the Respondent's registration? 1. As set out in HCCC v Jane Waddell (No 2) [2013] NSWNMT 2 ("Jane Waddell") at [106]: "… The primary focus of protection is the public – protection from actual harm caused by health practitioners who do not meet the standards required by law and codes of conduct, and protection from a culture of sub-standard practice or lacking in professional ethics from which harm may flow." 1. Again, at [107] in Jane Waddell the Tribunal stated: "There is no place for a punitive objective in making orders consequent on findings of unsatisfactory professional conduct or professional misconduct. It is undeniable, however, that the fashion of appropriate protective consequential orders made by a disciplinary Tribunal may have the 'felt effect' of punishment." (original emphasis) 1. As outlined in Health Care Complaints Commission v. Karalasingham [2007] NSWCA 267 at [67], in clarifying that the Tribunal is not bound to order deregistration in the face of a professional misconduct finding and in the absence of mitigating factors, "the discretion of the Tribunal is at large and will depend on the circumstances of the individual case": see also Health Care Complaints Commission v Bours (No 2) [2015] NSWCATOD 80 at [24]. 2. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases, but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. 3. The Tribunal in Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 ("Litchfield (2022)") at [591] stated: "It is not ultimately possible for conditions to be framed which would guarantee that the Respondent would not re-offend. The power to cancel his registration having been enlivened, the issue for the Tribunal is ultimately whether it is satisfied that allowing the Respondent to practise with strict conditions would constitute an unacceptable risk to the health and safety of the public, or the public interest." 1. Further in Litchfield (2022) at [634], the Tribunal said: "Although arguably the minimum requirement by way of conditions, the conditions advanced on behalf of the Respondent, and the potential to further refine them in the light of the matters to which we have referred, would, in our view, be adequate to protect the health and safety of the public. In coming to our conclusion, we have considered the Applicant's submission that, if so many and such onerous conditions need to be imposed on the Respondent's registration to avert an unacceptable risk to the health and safety of the public, and the public interest, the Tribunal cannot be satisfied that the Respondent should be permitted to do so. We accept that there are cases where that is so, but, on balance, find, on the expert and other evidence before the Tribunal that this is not such a case. The absence of any suggestion to that effect by Professor Morris or Drs Samuels, Adams or Lennings supports so finding." 1. We are required not to make a visceral reaction to the misconduct here established, rather we are to take a measured approach as required by the National Law and the binding authorities. 2. Further, we are required to consider the Respondent's circumstances, knowledge, and probable future ability to practise medicine appropriately and competently, as he presents himself now and as the evidence accepted in the hearing demonstrates he will practise, at the date of this hearing and whether we are confident he can and will now practise his medicine in a manner which complies with the Good Practice guidelines/code. 3. We also need to consider if it is possible to frame conditions which can attach to the Respondent's registration and, which will, as far as it is possible to do so, guard against any re-offending by the Respondent in the practice of medicine. 4. We need to be satisfied that in allowing the Respondent to continue practising medicine, would not constitute an unacceptable risk to the health and safety of the public, or the public interest: Litchfield (2022). 5. The years of practice and prior record of the Respondent is also a matter which needs to be remembered in determining protective orders. The Respondent has demonstrated a lengthy period of practice as a radiographer without complaint. Although he was not a medical practitioner at that time, he nevertheless, as a radiographer worked with members of the public. Some caution is taken with that history as we have no clear evidence as to where he worked, when he worked and the circumstances in which he did work. We can only work on assumptions and as such there is limited weight which can be given to that work history. 6. In determining whether to cancel or suspend the registration of the Respondent, we firstly need to consider whether we are able to conclude that the Respondent will not offend again in the manner we have found or in any other manner which would put at risk the health and/or safety of the public. 7. We have observed the Respondent during the hearing we have conducted in this matter. We have understood the impact upon the Respondent of the suspension order made by the Medical Council in October 2020. We have seen the steps he has taken to identify and remediate his psychiatric and psychological state. We accept the Respondent understands the seriousness of this proceeding and that a possible outcome is the cancellation or suspension of his medical registration. 8. The Respondent has disclosed to his wife [NOT FOR PUBLICATION]. His wife has been present during the hearing to hear all the evidence which has been provided to this Tribunal. 9. It cannot be said that the Respondent's misconduct was isolated to one incident of misconduct. Although the misconduct occurred with three separate complainants, it did occur in a relatively short period of time. It was however, brought to a conclusion by the making of a complaint by one of the victims of his conduct. Had there not been the event of the first complaint, there is nothing in the evidence before us to suggest the Respondent was about to cease his abhorrent conduct towards patients or colleagues. 10. Assessing and weighing all the evidence we have heard in this matter and considering what we have said above, we conclude we are reasonably satisfied the Respondent will not in the future repeat the conduct which we have seen in the complaints before us. We are satisfied there is not an unacceptable risk, which we can assess, of the Respondent continuing that misconduct. 11. We conclude that it may be appropriate in this matter to impose a protective order which is not a suspension or cancellation of the Respondents registration. In order to finally determine what protective order is appropriate, we need to consider the impact upon the profession (i.e., a deterrent effect) and the publics' confidence in the medical profession and the role of the supervising authorities which consider complaints and otherwise regulate the profession to the required standard. We also need to consider if conditions can be attached to his registration which will reinforce the continued return to good and appropriate practice and conduct by the Respondent. Will a protective order, other than a cancellation or suspension of registration, in this case, serve as a proper deterrent to the profession at large and maintain the public confidence in the medical profession and the authorities which oversee and govern it? 1. This is a case which we consider is uniquely distinguishable, by its extraordinary facts, from some of the reported cases cited above. It is improbable that such a set of background facts will present themselves for consideration by the Tribunal. The Tribunal members have been moved to extend to the Respondent considerable sympathy and to commend his strength in being able to disclose [NOT FOR PUBLICATION] to Professor Kenny and subsequently to his wife. That has clearly been a very painful experience for him. Weighing against that sympathy, however, is the consciousness the Tribunal has of the impact upon all three of the complainants who have endured the consequence of the Respondent's misconduct. 2. Having acknowledged the matters set out in the previous paragraph, we do however consider the imposition of a reprimand, as submitted by the Respondent, would not meet the requirement for protective orders to act as a deterrent to the profession as a whole, nor would it meet the requirement for maintaining the publics' confidence in the medical profession and the authorities which oversee and govern the profession. 3. We consider that a period of suspension, as opposed to a cancellation of the Respondent's registration, will meet the requirement to impose appropriate protective orders. With the ordering of a period of suspension, we will be able to impose conditions upon the registration of the Respondent, such conditions having effect from the resumption of practice by the Respondent. We have been provided with extensive evidence about the Respondent in this hearing and we consider we are very well placed to determine the conditions which will ensure the safety of the public and bring the Respondent back into the medical workforce for the benefit of the public at large. We propose to suspend the Respondent's registration for a period and also impose conditions which will be supervised by the Medical Council of NSW once the Respondent commences his medical practice again. 4. We turn now to consider the period of suspension which should be imposed on the Respondent's registration. 5. The Respondent's skill and knowledge as a medical practitioner is not the subject of criticism in this case. Nonetheless, although the Respondent has continued to enhance his knowledge of medical matters and practice, it is now in excess of two and a half years since he has utilised his skills. 6. We consider that the suspension of registration for a further period of three months from the date of this order is an appropriate period to impose. As we propose to impose conditions upon the Respondent's registration, which will operate upon his resumption of practice, it will probably take some time to put in place arrangements to enable the compliance with those conditions. We consider the period of three months is appropriate to address the deterrent impact of the order and to reinforce the confidence of the public in the medical profession. What conditions should be imposed? 1. The Respondent provided no minute of conditions which he might be subjected to. He submitted that it would be appropriate for him to be the subject of conditions, however, the only condition he addressed was the imposition of a supervision condition at category "C". That was a reference to the conditions which the Medical Council could supervise. He did propose health conditions which included the continuation of therapy with his clinical psychologist. 2. Conditions which may be imposed upon the registration of a medical practitioner are well known to the Tribunal as the imposition of conditions has been the subject of many submissions made by both the HCCC and by respondents in many of the reported decisions of the Tribunal. 3. In this case, the HCCC did not provide any submission in relation to the imposition of conditions should the Tribunal not move to cancel the Respondent's registration. We make no criticism of that. The Tribunal does, however, welcome the assistance of the HCCC in the framing of conditions in the event the Tribunal does not move to cancel the Respondent's registration. 4. It is possible for the Tribunal to determine to suspend the Respondent's registration and then adjourn the proceeding further to invite detailed submission addressing the nature, scope and wording of possible conditions. In this case, we do not propose to take that course. The adjournment and requirement for further submission will incur costs on both parties, which will ultimately fall to the Respondent in this case to pay. We consider we are sufficiently cognisant of appropriate conditions to impose given the experience and composition of this Tribunal. We also have the advantage of the availability, for reference, of numerous decided cases where conditions have been imposed by the Tribunal. 5. In this matter, we consider we need to impose conditions which provide for and address the following: 1. The Medical Council of NSW is to be the appropriate review body for the purpose of Part 8 Division 8 of the National Law. 2. The requirement to practise in a group practice where there are at least two other medical practitioners with not less than one of those practitioners present (subject to (3) below which imposes Category B supervision), whenever the Respondent is at work, unless there is an emergency requiring the Respondent to administer medical assistance. 3. Supervision by a medical practitioner approved by the Medical Council of NSW. There are different levels of supervision which the Medical Council administers. We conclude level "B" is the appropriate level. We so conclude because fitness to practise medicine from a skills and knowledge basis is not contested by the HCCC in this case, however, the uncontested fact is that he has not practised medicine since his suspension two and a half years ago. Additionally, the Respondent will be continuing his therapy and will need to have ready face to face contact with his supervisor in the event that he feels he is beginning to feel he is not coping with work pressure or other circumstances which he will experience in a specialist GP practice. The Respondent will need a supervisor to meet with him regularly, once a week to commence, and then moving to fortnightly and then monthly. The supervisor will be looking principally at the presentation of the Respondent, ensuring he is not working beyond the level set by the conditions and generally ensuring he is continuing to attend upon his therapist and other medical providers. The supervisor will need to be provided with a copy of the decision which is published to the general public (the restricted publication version). We do not see the necessity for the supervisor to have access to the traumatic pre-medical qualification history of the Respondent. If the Respondent chooses to provide an unredacted version of these reasons to his supervisor, we consider that will be a matter for him. We do not wish to create a circumstance where the Respondent is impacted by a work colleague having access to personal history which has burdened the Respondent for so many years and which might continue to trouble him further knowing that the information could be disseminated in his workplace. 4. A requirement for a mentor approved by the Medical Council. 5. That he practise a limited number of days each week and have daily consultations with a limited number of patients and that he work a limited number of hours per day. 6. That he engage in employment or practice which provides for him to have allocated annual leave, appropriate to his employment. 7. A requirement for the Respondent to continue with therapy with Dr Gamayel or any other clinical psychologist recommended, or approved, by Professor Kenny. 8. That the Respondent does not change his place of practice without approval of the Medical Council of NSW. Conclusion on protective orders 1. We conclude that a suspension of the Respondent's registration for three months, together with the following conditions to be operative upon his resumed practice at the conclusion of the period of suspension, will be appropriate protective orders to comply with the requirements of the National Law and will be in keeping with the decided cases and authorities referred to by us in these reasons. 2. The Respondent's registration is to be subject to the following conditions: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 other registered medical practitioners, with at least one other registered medical practitioner always on site (This condition to be read in conjunction with condition (e) below). 3. To consult or treat no more than 25 patients per day and no more than 4 patients per hour. 4. To practise no more than 40 hours per week and no more than 8 hours per day. 5. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 6. At each supervisor meeting, which is to be weekly for the first month of the Respondent's return to practice, then fortnightly for the next two months of his practice and thereafter monthly, the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. Doctor/patient relationship; 2. Workload; and 3. The Respondent's wellbeing and compliance with these conditions. 1. To authorise the Medical Council of NSW to provide proposed and approved supervisor with a copy of this decision (the restricted publication version) and any other relevant decision or report. 2. Not to practise until a supervisor has been approved by the Medical Council of NSW. 3. To nominate a registered experienced general practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each meeting the practitioner is to include discussion of initially the issues highlighted in this decision, personal and professional development as a medical practitioner and any personal and/or medical practice issues that may arise. 2. To authorise the mentor to report, in an approved format, to the Council every six months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. 3. To authorise the Medical Council of NSW to provide nominated and approved mentors with a copy of this decision and any other relevant decision or report. 1. To attend for treatment by Dr Daisy Gamayel a psychologist he has attended upon, or another psychologist of his choice and approved by Professor Dianna Kenny, within 14 days of the resumption of medical practice pursuant to the orders made herein. 1. The frequency of treatment is to be determined by his treating psychologist. 2. To authorise his treating psychologist to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of the treating relationship; and 3. A significant change in health status (including a significant temporary change). 1. The practitioner must provide the Council with the professional details of the treating practitioner. 1. To advise the Medical Council of the name and address of his General Practitioner, being a GP practicing in the same geographical location as the Respondent or in the same geographical location as the Respondent's residence, and any change in GP during the currency of the operation of this condition. 2. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 3. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. Determination of the Respondent's Application for Miscellaneous Matters filed by the Respondent on 20 January 2023 1. At the conclusion of the hearing in this matter, the Respondent sought that identified text and evidence in this matter be made the subject of a non-publication order. The Respondent submitted a draft of the order he proposed. We asked that the parties endeavour to reach an agreement in relation to the order sought and the breadth of its' effect. We had anticipated an agreement would be reached, however, on 19 May 2023, the Respondent advised the Registry office that there was a dispute and sought the Tribunal make directions for the filing of submissions addressing the disputed application of the Respondent. 2. Directions were made for each party to file and serve submissions and for the Respondent to provide a minute of the order sought. 3. On 30 May 2023, the Respondent provided three documents to the Tribunal. The documents were identified as a Minute of Order Sought; submission in support; and annexure to submission. 4. The order sought by the Respondent is as follows: "1. Orders pursuant to clause 7 of Schedule 5D of the Health Practitioner Regulation National Law 2009 ('National Law'): i) that the name of the registered health practitioner not be published; and ii) that the place of birth of the registered health practitioner not be published; and iii) that the Respondent be referred to by a pseudonym. OR IN THE ALTERNATIVE 2. Orders pursuant to clause 7 of [S]chedule 5D of the National Law: i) that the portions of the reports of Professor Dianna Kenny dated 27 September 2022 and 22 November 2022 specified in annexure 1 and marked on annexures 2 and 3 not be published; and ii) that the oral evidence of the Respondent and Professor Kenny which goes to the same topics specified in the annexures 1, 2 and 3 not be published; and iii) that the decision of the Tribunal be redacted to exclude reference to the same topics specified in the annexures 1, 2 and 3." The Respondent's submission 1. In the submission, the Respondent primarily sought that the name of the Respondent be anonymised in the published version of the decision. Further, he sought that his place of birth is not published. 2. In support of that order, the Respondent submitted that there were special circumstances in this case which justified the making of the order. 3. The submission addressed the evidence provided by the Respondent and Professor Kenny relating to the childhood of the Respondent which was, we accept, traumatic. The Respondent relied on the evidence of Professor Kenny that the disclosure of the childhood and developmental history of the Respondent, and a portion of her diagnosis of him, "are likely to cause psychological distress leading to a deterioration in the Respondent's psychological health and negatively affect his current relationships". 4. The Respondent referred us to the National Law, clause 7 of Schedule 5D, which provides as follows: 7 Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complaint, the registered health practitioner or student concerned or any other person) – (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published — (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to — (a) a person who requested the direction; and (b) the complainant or the registered health practitioner or student concerned, as appropriate; and (c) another person the person presiding thinks fit. (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (5) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty -- (a) in the case of a corporation, 150 penalty units; or (b) in any other case, 20 penalty units. 1. The Respondent referred us to the decision in Health Care Complaints Commission v CSM [2018] NSWSC 902. In relation to that decision, the Respondent submitted Lonergan J found no error in the reasoning of the Tribunal, the subject of an application for leave to appeal. The Respondent included in his submission the following extract from the Tribunal decision (Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [84]-[87]): "Statutory framework 84. The combined effect of s 49(1) of the Civil and Administrative Tribunal Act 2013 (the Tribunal Act) and s 165K of the National Law is that proceedings before NCAT brought under the National Law are open to the public unless otherwise ordered. The power to order that a hearing be held in private can only be exercised if the Tribunal is satified that it is "desirable to do so in the public interest for reasons connected with the subject matter of the proceedings or the nature of the evidence to be given": s 165K of the National Law. 85. Clause 7(1)(b)(iii) of Schedule 5D to the National Law provides that the person presiding in proceedings before the Tribunal may, if they think it is appropriate "in the particular circumstances of the case", direct that the name of nominated persons involved in the proceedings, including a registered health practitioner, not be published. The power to make an order under this provision vests in the presiding member of the Tribunal. Accordingly, the decision to make a non-publication order in this case was made by the presiding member, Principal Member Britton. In the interests of consistency, in these reasons the maker of the decision will be referred to in the plural. 86. In exercising the power to make an order under cl 7(1)(b)(iii) of Schedule 5D to the National Law, the presiding member must have regard to the norm of open justice established by ss 49(1) of the Tribunal Act and 165K of the National Law, together with the objects of the Tribunal Act, which include ensuring that the Tribunal is accountable and has processes that are open and transparent: s 3(f). The authorities have consistently emphasised that the power to depart from that norm must be exercised sparingly. 87. As noted by the Tribunal (Acting Judge K P O'Connor) in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [16], it is an "unavoidable incident" that a health practitioner the subject of proceedings brought under the National Law will often suffer a deep sense of shame and embarrassment and will be concerned about the impact of the proceedings on other members of their family. His Honour explained at [25] the rationale for disclosing the health practitioner's identity: 'Disciplinary proceedings and disciplinary orders have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence. Decisions also provide a marker of what is unacceptable to other members of the profession.'" 1. The Respondent pointed out that the decision to anonymise the name of the practitioner in the CSM case was based on the acceptance of evidence from the practitioner "that his mental health is likely to be put at risk if his identity was disclosed". The Tribunal in that case accepted independent medical evidence to support the practitioner's claim of significant symptomology and his prediction that his symptoms would likely escalate if his identity was revealed. The Tribunal further stated: "We had regard to the fact that it is notoriously difficult to predict how an individual suffering from symptoms of depression and anxiety will react to external stressors". 2. The Respondent also included in his submission the following extract from the Tribunal decision in the CSM case (at 90]): "90. Even though publicity generally disadvantages the subject health practitioners and their families, non-publication orders are seldom made in this jurisdiction. This is because of the overriding importance of justice being administered openly and in public and the recognition that disclosing the identity of health practitioners in this class of matters has a deterrent effect amongst their peers. We accept that a cautious approach should be taken in this jurisdiction to the making of a non-publication order in respect of health practitioners. Nonetheless, we have decided that, in the circumstances of this case, the risk of disclosing Patient A's identity, and the risk of a further deterioration in CSM's mental health, represent special circumstances that warrants the making of a non-publication order in respect of CSM." 1. The Respondent submitted that the sensitive nature of the evidence contained in the reports and oral evidence, coupled with the diagnosis of Professor Kenny in relation to the Respondent's mental health, does fit within the small category of cases where the Tribunal will anonymise the name of the Respondent and other detail which might readily identify him. The Respondent submits that the evidence would satisfy the Tribunal that the anticipated shame and embarrassment which is experienced by practitioners whose names are reported in the decisions of the Tribunal is exacerbated in this case because the evidence which gives rise to the concern of Professor Kenny, is not the evidence which was the subject of the complaints made against the Respondent. The evidence is provided to help explain why the Respondent was said to have acted "out of character". 2. The Respondent submits that anonymisation of the Respondent's name would allow for the public and the medical profession at large to have the full reasons of the Tribunal available and thereby allow an understanding of the protective orders imposed. 3. If the Tribunal is to reject the application for anonymisation of the Respondent's name, then the submission is that the portions of the evidence identified in the annexure to the submission, should be redacted and the subject of a non-publication order. It was submitted that even if there was the "redaction and non-publication" pathway taken, there is the prospect that the necessary redaction would interfere with the reasons and mean the full effect of publication may be lost. The HCCC's submission 1. The HCCC provided its' submission as directed by 5 June 2023. It opposes the Respondent's application for the name of the Respondent to be suppressed and referred to by a pseudonym. In principle, the HCCC consents to the approach set out by the Respondent as "the alternative", however, suggests (at par 3) a variation as follows: "... b. redact from the publicly available decision, references to the content covered by the non-publication order referred to in terms of Order 2i) to 2iii) and replace with the words '[NOT FOR PUBLICATION] pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013; and c. provide the parties' legal representatives, and the Medical Council of NSW with a complete copy of the decision as required by section 165M of the Health Practitioner Regulation National Law (NSW)." 1. The HCCC opposed the suppression of the Respondent's name for the following reasons, which we have summarised as follows: 1. The principle of open justice is only displaced in special or exceptional circumstances. Those special or exceptional circumstances are not present in the facts of this case. Sensitive material can be dealt with by the proposal for redaction from publicly available copies of the decision. 2. The health and safety of the public requires that the Respondent's name be available to any potential patient who wishes to enquire if the Respondent has ever been the subject of disciplinary proceedings. 3. The Tribunal has an obligation to publish its' decisions. 4. Public confidence is enhanced by the public being able to observe how the profession is controlled and governed by the authorities charged with that task. 5. The decision needs to serve as a deterrent to other medical practitioners. The failure to publish the identity of the practitioner detracts from that deterrence. 6. Professor Kenny's evidence only supports a conclusion that it would be desirable (by reference to the Respondent's mental health), to not publish the sensitive material relating to an aspect of his diagnosis and also his childhood trauma. 1. There is precedent for the Tribunal redacting portions of a judgment to protect information and persons who may be harmed by the publication of same. The HCCC referred us to the decisions in Health Care Complaints Commission v Mooney [2022] NSWCATOD 43; Health Care Complaints Commission v Clarke [2022] NSWCATOD 55 at [60]; Health Care Complaints Commission v McNab [2023] NSWCATOD 41 at [127]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [39]. Discussion and Determination 1. The fact and diagnosis to which the parties have referred in this application and supporting submission, is largely in the nature of historical personal history provided by the Respondent to Professor Kenny, an expert witness in this case, and her diagnosis of the Respondent's mental health. 2. That personal history was disclosed by the Respondent for the first time, to a treating medical practitioner, when he met with Professor Kenny. He had not disclosed it to his wife at the time of their marriage nor had he done so until after he met with Professor Kenny. 3. We observed the Respondent as he spoke of this history in the hearing before us. He was visibly distressed as he addressed that history. It is the untreated psychological and psychiatric consequences of that historic trauma which gave rise to the diagnosis provided by Professor Kenny in her evidence and the treatment and therapy he is now undertaking. 4. We have accepted the evidence provided by the Respondent through his disclosures to Professor Kenny and in his evidence provided directly to the Tribunal in this hearing. Those disclosures describe [NOT FOR PUBLICATION]. 5. In Health Care Complaints Commission v FTR [2023] NSWCATOD 46, the Tribunal determined an application for non-publication. In that decision, the Tribunal set out the following (at [66]-[75]): "Application for non-publication 66. On 16 January 2023, the Practitioner made an application that 'Non-publication or non-disclosure orders re Respondent's name – [FTR]'. The ground in the application stated the Practitioner's mother was very unwell, physically and mentally, and that the disclosure of the Practitioner's name could be detrimental for her health and/or fatal. The Practitioner's 76 year old mother is a retired school teacher and he is her only child. She lives with her frail husband. 67. The Applicant opposes this application. Relevant principles 68. As this Application seeks an ancillary decision, the Tribunal is constituted by the presiding member: see National Law, ss 165(b), 165B(5A); definition of "ancillary decision" in CAT Act, s 4. Clause 7(1)(b)(iv) of Schedule 5D of the National Law provides that the Tribunal may, if the person presiding thinks it is appropriate in the particular circumstances of the case, direct that any specific evidence not be published. Section 64(1)(c) of the CAT Act provides a similar power with a slightly different test, namely '[i]f the Tribunal is satisfied that it is desirable to do so'. 69. In Walton v Momot [1997] NSWCA 334, Handley JA (with whom Priestly JA and Grove AJA agreed) said at p 3: 'The general principal provided for in s 46(3) is that the Tribunal will sit in public [now see s 65K of the National Law and s 49(2) of the CAT Act]. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exception, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. … This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts. … (authorities omitted; emphasis added)' 70. Whether the facts of a particular case constitute something special, exception, or out of the ordinary which displaces the general principle is a discretionary decision. 71. Cases in which something special, exceptional, or out of the ordinary has been found to exist include cases where there has been a finding of a real risk that publication could lead to the practitioner's suicide: Health Care Complaints Commission v XC [2015] NSWCATOD 9; Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120; Health Care Complaints Commission v FTE [2023] NSWCATOD 30. In other cases, risk of mental harm to, or the fragile mental health of, a practitioner has been a factor weighed in favour of making a non-publication order: Health Care Complaints Commission v CSM [2016] NSWCATOD 125; Health Care Complaints Commission v ZXY [2021] NSWCATOD 136. 72. In contrast, general anxiety, depression, embarrassment or even a complex bereavement disorder was insufficient: Cakan v Health Care Complaints Commission [2020] NSWCATOD 116; Health Care Complaints Commission v Rickard [2017] NSWCATOD 120. In HCCC v Dr Gow (Suppression order) [2008] NSWMT 3, the practitioner, who had been found guilty of professional misconduct, developed a terminal illness. Expert opinion said that any disruption to his immune response that might flow as a consequence of the psychological stress resulting from publication may lead to severe and potentially fatal infection. The Tribunal found that was insufficient when balanced against the protective function of publication and refused to make a non-publication order. 73. Less common are cases where the alleged risk is not to the Practitioner but to a third party, usually a close relative(s). A case analogous to the present is Health Care Complaints Commission v Dr A [2012] NSWMT 10, where the Tribunal found, at [28], 'the prospect of a renewal of the trauma associated with repeat publicity, which trauma led to a most serious life threatening circumstance for one child and psychological damage to the doctor's other children, is such as to demonstrate the 'serious and exceptional circumstances' that justify a temporary extension of the current interim order to be in the form of a non-publication order to continue until the youngest children attain 18 years of age.' In contrast, in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 there was insufficient evidence to establish any psychological effect publication would have upon the practitioner's children who were completing their Higher School Examinations, and in Health Care Complaints Commission v FDE [2021] NSWCATOD 215 there was insufficient evidence to support a contention that the practitioner's children would be psychologically affected by publication, although a limited non-publication order was made because of the serious risks publication posed to the practitioner whilst he was incarcerated. 74. It may be difficult to set a time limit on a non-publication order but it should not be assumed to be permanent and such an order is irregular: Walton v Momot; Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [37]-[39]. 75. A non-publication order may be unnecessary where the matter over which it is sought is already public: Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 at [42]; Health Care Complaints Commission v Quan [2019] NSWCATOD 160 at [19]." 1. In Health Care Complaints Commission v Jamnagarwalla (No 2) [2023] NSWCATOD 1, the Tribunal determined an application for non-disclosure of the practitioner's name. The Tribunal set out the following (at [81]-[91]): "Application for non-publication order Basis for the application 81. Dr Jamnagarwalla applied for an order that disclosure of his name is prohibited except to the parties, their legal representatives and to any other person where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings. After applying for this order at the beginning of the Stage 2 hearing, Dr Jamnagarwalla amended the application so that it also applied to the Stage 1 proceedings. A decision in those proceedings was published, without restriction, on 15 June 2022. The Commission opposed the application both in its original and in its amended form. 82. Dr Jamnagarwalla set out the reason for the application in his statement of 23 November 2022. Those reasons relate to the effect of the publication of the Stage 1 decision on members of Dr Jamnagarwalla's immediate family, especially his wife and his youngest child. Dr Jamnagarwalla noticed the demeanour of his wife and children changing around the time of the Stage 1 decision. His wife told him she felt ashamed and embarrassed by the case. His youngest child heard about the case from friends at school and when she accessed the internet, she saw reports of the case. She was reluctant to attend social gatherings or see her friends for several weeks after publication of the Stage 1 decision. Dr Jamnagarwalla is concerned that publication of the Stage 2 decision will cause further shame, embarrassment and upset. It may even mean that they need to move from the area in which they are currently living. The legal test 83. The Tribunal is generally obliged to publish decisions about complaints which have been proved or admitted in whole or in part. That is done via the NSW Caselaw website: National Law, s 165M(4) and Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 at [71]. However, the Tribunal does have power under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order prohibiting the disclosure of Dr Jamnagarwalla's name. There is a similar provision in cl 7 Schedule 5D of the Health Practitioner Regulation National Law (the National Law). The test under that provision is whether it is 'appropriate in the particular circumstances of the case'. 84. Dr Jamnagarwalla accepts that the principles of 'open justice apply to proceedings under the NCAT Act and the National Law': Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 at [9]. Consistent with that principle, the name of a person who is the subject of disciplinary proceedings is expected to be disclosed unless there is good reason for making a non-publication order. 85. When considering whether to make a non-publication order, the health and safety of the public must be the paramount consideration: National Law, s 3A; Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 at [91]. The public has a right to know whether a practitioner has been charged with a disciplinary offence and the outcome of the proceedings: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [25]. It is inherent in the protection of the public that information is available to a potential patient who wishes to enquire whether a health practitioner has been the subject of disciplinary proceedings: HCCC v Simring (Suppression Order) [2010] NSWMT 6 at [8]. Conclusion 86. I have decided not to make a non-publication order for three reasons. Firstly, Dr Jamnagarwalla's name was disclosed in an adjournment decision published on 10 September 2021 and in the Stage 1 decision on 15 June 2022: Health Care Complaints Commission v Jamnagarwalla [2021] NSWCATOD 149; Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61. The Stage 1 decision has been available on several websites including the Commission's website: Health Care Complaints Act 1993 (NSW), s 94B. Even if Dr Jamnagarwalla's name is anonymised now his identity is already publicly known and could easily be detected by anyone sufficiently interested in the case: Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 at [54]. 87. The risk that publication will have further negative impacts on Dr Jamnagarwalla's family members is unfortunate and concerning. But it is unavoidable that disciplinary proceedings may cause practitioners shame and embarrassment and impact on their family relationships: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [16]. Publication of the practitioner's name may also cause embarrassment and upset to their immediate family. We accept that that has happened in this case and that Dr Jamnagarwalla wishes to protect his family, as best he can, from further distress. 88. As the Tribunal held in a similar legislative context in Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [45]: 'The risk of reasonably foreseeable negative impacts upon the Respondent's family from disclosure, such as embarrassment, and negative social impacts, would not, by themselves, be sufficient reason to make a non-disclosure order. They are factors to be weighed in consideration of the issue, but they do not weigh heavily.' 89. Expert evidence of much more serious effects on mental health, including risk of suicide for the practitioner or a family member, have been held to justify a non-publication order: Health Care Complaints Commission v Dr A [2012] NSWMT 10 at [28] and Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120 at [104]. 90. As to Dr Jamnagarwalla's evidence that the family may move to another area, that evidence falls short of any serious risk to physical or mental health which might justify a non-publication order. 91. Thirdly, but less significantly, there was no evidence that Dr Jamnagarwalla had told his children about these proceedings or offered them any assistance such as professional counselling. Those kinds of steps may have helped lessen the embarrassment and upset they have undoubtedly felt. (See Health Care Complaints Commission v Vo [2014] NSWCATOD 127 at [186])." 1. In Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120, the Tribunal having considered the applicable law, determined to anonmyise the medical practitioner's name for the following reason (at [104]): "Discussion and conclusions 104. The expert retained by the Medical Council, Dr Fisher, has highlighted the risk of suicide in a patient such as the practitioner who suffers from Bipolar Disorder if depressed. Dr Florida's [sic] brief statement is explicit. It must be read in context of her other reports and the evidence before us including the practitioner's previous serious suicide attempts when depressed. We are satisfied exceptional circumstances exist in this case and that we should make the non-publication orders sought." 1. [NOT FOR PUBLICATION]. The non-publication of that history does not detract from the deterrence impact of the balance of the decision. The redaction of that history does not impact upon the necessary message which will flow to the public at large, that the medical profession is being properly and appropriately supervised and controlled by the authorities delegated by government with that task. 2. It cannot be the role of the Tribunal to inflict upon a medical practitioner facing disciplinary proceedings under the National Law unnecessary trauma and hardship which arises as a collateral consequence of the Tribunal otherwise fulfilling its obligations under the National Law and the Civil and Administrative Tribunal Act 2013 (NSW) (the Tribunal Act). 3. We are satisfied that in the extraordinary circumstance of this case, there are present the special circumstances, which have been referred to in the decisions set out above, which require the Tribunal to take action. That action is not the non-publication of the Respondent's name and identifying information, rather, it is the redaction of that information which is the personal history of the Respondent which predated his becoming a medical practitioner. It includes the evidence of Professor Kenny and her discussion of the consequences of that history on the psychiatric and psychological health of the Respondent. It will include his oral evidence which addresses that history and the consequences of same. 4. We are satisfied that we can retain the integrity of the decision set out herein, even if we redact and insert the words "[NOT FOR PUBLICATION]" in lieu of the Respondent's sensitive personal history, referred to by Professor Kenny and the Respondent in his evidence, and any evidence directly relating to that history. 5. We are satisfied that the method of dealing with this extraordinary situation, as exposed in this case, which has been proposed by the HCCC, is the appropriate approach which both excludes that sensitive personal history yet maintains the integrity of the decision so that it serves as a deterrent and serves to maintain the confidence of the public in the medical profession. In this case, it also serves to support those who work as supports in the health care industry and workplaces. 6. The order we will make is: (4) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the names of the patient and the colleagues set out in the Schedule to the Complaint herein is prohibited. (5) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the evidence specified in Annexure A to this order may only be published to the parties to these proceedings and to the Medical Council of New South Wales and may not be published to any other person or entity. The evidence specified in Annexure A (or any reference to that evidence) to these reasons, including extracts from the oral evidence given in the hearing and set out in the reasons, will be omitted from the version of the Tribunal's reasons in this matter which will prepared for publication beyond the parties and the Medical Council of New South Wales and replaced with [NOT FOR PUBLICATION]. Costs 1. The HCCC seeks an order that the Respondent pay its costs of the proceeding. 2. Clause 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 … at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. 1. In the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46], the Court set out the following: "42. As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied. 43. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). 44. It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. 45. The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. 46. The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all of the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside." 1. The Court of Appeal decisions in Qasim v Health Care Complaints Commission at [85]; Health Care Complaints Commission v Do at [51] also address the awarding of costs in proceedings under the National Law. In Health Care Complaints Commission v Do at [50], Meagher JA (with whom Basten and Emmett JJA agreed observed that s 175 is a provision having national operation and should not be subject to local rules. His Honour said: "It should, therefore, be treated as conferring an unfettered discretion on the Tribunal." 2. The Respondent has not made a submission on costs, however, even where such an order is consented to, the Tribunal has an obligation to ensure such an order is appropriate. 3. Neither party has been wholly successful in having the Tribunal make the protective order which each sought or recommended. However, the proceeding was appropriately brought before the Tribunal by the HCCC. The Respondent resisted a finding of professional misconduct as defined by s 139E of the National Law. The HCCC pressed its case for such a finding, which we have made. 4. There was nothing about the conduct of the proceeding by the HCCC which would warrant interfering with an order that the Respondent should pay the costs of the HCCC, and we will so order. The orders to be made 1. We make the following orders: 1. The Respondent's registration is to be suspended for a period of three months from the date hereof. 2. The Respondent's registration as a medical practitioner is to have the following conditions attached to it which are to operate upon the conclusion of the period of suspension set out in these orders: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 other registered medical practitioners, with at least one other registered medical practitioner always on site. 3. To consult or treat no more than 25 patients per day and no more than 4 patients per hour. 4. To practise no more than 40 hours per week and no more than 8 hours per day. 5. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 6. At each supervisor meeting, which is to be weekly for the first month of the Respondent's return to practice, then fortnightly for the next two months of his practice and thereafter monthly, the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. Doctor/patient relationship; 2. Workload; and 3. The Respondent's wellbeing and compliance with these conditions. 1. To authorise the Medical Council of NSW to provide proposed and approved supervisor with a copy of this decision (the restricted publication version) and any other relevant decision or report. 2. Not to practise until a supervisor has been approved by the Medical Council of NSW. 3. To nominate a registered experienced general practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each meeting the practitioner is to include discussion of initially the issues highlighted in this decision, personal and professional development as a medical practitioner and any personal and/or medical practice issues that may arise. 2. To authorise the mentor to report, in an approved format, to the Council every six months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. 3. To authorise the Medical Council of NSW to provide nominated and approved mentors with a copy of this decision and any other relevant decision or report. 1. To attend for treatment by Dr Daisy Gamayel a psychologist he has attended upon, or another psychologist of his choice and approved by Professor Dianna Kenny, within 14 days of the resumption of medical practice pursuant to the orders made herein. 1. The frequency of treatment is to be determined by his treating psychologist. 2. To authorise his treating psychologist to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of the treating relationship; and 3. A significant change in health status (including a significant temporary change). 1. The practitioner must provide the Council with the professional details of the treating practitioner. 1. To advise the Medical Council of the name and address of his General Practitioner, being a GP practicing in the same geographical location as the Respondent or in the same geographical location as the Respondent's residence, and any change in GP during the currency of the operation of this condition. 2. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 3. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. 1. The Respondent is to pay the costs of the HCCC as agreed or as assessed. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the names of the patient and the colleagues set out in the Schedule to the Complaint herein is prohibited. 3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the evidence specified in Annexure A (or any reference to that evidence) to these reasons, including extracts from the oral evidence given in the hearing and set out in the reasons, may only be published to the parties to this proceeding and to the Medical Council of New South Wales and may not be published to any other person or entity. The evidence specified in Annexure A to this order, together with any related evidence set out in this decision, will be omitted from the version of the Tribunal's reasons in this matter which will be prepared for publication beyond the parties and the Medical Council of New South Wales and replaced with [NOT FOR PUBLICATION]. ********** ANNEXURE A [NOT FOR PUBLICATION] 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 03 October 2023 - from 3 to the number 2 in the following locations Coversheet – Decision: (2) (b) Paragraph 257 - (2) Paragraph 259 - (b) 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: 03 October 2023