Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sathiyapal [2024] NSWCATOD 14 Hearing dates: 5-8 June 2023, 29-31 August 2023, written submissions provided 9 November 2023, 30 November 2023 and 6 December 2023 Date of orders: 5 February 2024 Decision date: 05 February 2024 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Dr J Aitken, Senior Member Dr M Cox, Senior Member D Telford, General Member Decision: Dr Sathiyapal is guilty of unsatisfactory professional conduct as alleged in Complaint One and professional misconduct as alleged in Complaint Two. 1. The Health Care Complaints Commission is to serve on Dr Sathiyapal all of the material upon which it intends to rely, and its written submissions in relation to the disciplinary orders to be made, on or before 23 February 2024. 2. Dr Sathiyapal is to serve upon the Health Care Complaint Commission all of the material upon which he intends to rely, and his written submissions in relation to the disciplinary orders to be made, on or before 29 March 2024. 3. The Health Care Complaints Commission is to serve upon Dr Sathiyapal any material in reply, and any written submissions in reply, on or before 12 April 2024. 4. Both parties are to file in the Tribunal five copies and four USBs containing all of their material and written submissions in relation to the disciplinary orders to be made, on or before 12 April 2024. Catchwords: OCCUPATIONS — Heath practitioners — Misconduct and discipline — Disciplinary proceedings — prescribing — boundary violation — records Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v New South Wales Bar Association (1960) 104 CLR Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Reed v Regina [2006] NSWCCA 314 Sullivan v Civil Aviation Authority (2014) 226 FCAFC 93 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Kulanayagam Sathiyapal (Respondent) Representation: Counsel: S Maybury (Applicant) R Rodger (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Moray & Agnew Lawyers (Respondent) File Number(s): 2022/00307144 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of Patient A and Person B in the Schedule to the Complaint annexed to the Application for disciplinary findings and orders in this matter is prohibited. REASONS FOR DECISION 1. The Health Care Complaints Commission ('the HCCC') filed an application for disciplinary findings and orders ('the Application') under the Health Practitioner Regulation National Law (NSW) ('the National Law') against Dr Sathiyapal, a general practitioner, on 14 October 2022. 2. The Application set out two complaints. Complaint One is a complaint of improper or unethical conduct, constituting unsatisfactory professional conduct under s 139B(1)(l) of the National Law, being a number of instances of alleged conduct by Dr Sathiyapal towards his patient, Patient A, and her partner, Person B (also a patient), from January 2019 to November 2020, together with an allegation that Dr Sathiyapal provided false and misleading information to the Commission, in correspondence, on 8 March 2021. Complaint Two alleges that the allegations in Complaint One, either individually or in combinations of two or more, constitute professional misconduct. 3. The Tribunal heard evidence in relation to the question of whether Dr Sathiyapal is guilty of the complaints alleged (Stage 1) on 5-8 June 2023 and 29-31 August 2023. Oral evidence was given in the HCCC's case by Patient A and Person B. Professor Carter and Dr Sathiyapal gave oral evidence in the respondent's case. Documentary evidence was adduced by both parties, including a report, dated 12 March 2022, of Dr Young, a general practitioner and expert in ethical standards for general practitioners. Dr Young was not required for cross-examination. We accept Dr Young's evidence. 4. Many, but not all, of the particulars of Complaint One were conceded by the respondent. 5. The objectives and guiding principles of the National Law which are set out in s 3 relate, among other things, to the maintenance of the high standards of the health professions, in both the practice of the health professions, and with respect to the ethics of practice of the health professions. Section 3A of the National Law says that, in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be a paramount consideration. The National Law, in s 4, requires an entity which has functions under the National Law to exercise those functions having regard to the objectives and guiding principles is s 3. 6. In Health Care Complaints Commission v Do [2014] NSWCA 307, at [35], Meagher JA, with whom Basten and Emmett JJA agreed, said: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. The Tribunal's function is to be exercised having regard to s 3 and s 3A. Our role is protective rather than punitive (see Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202). The Tribunal's function in this context is to make findings as to whether the subject matter of a complaint has been proved against the practitioner (s 149 of the National Law) and, if it has, to exercise its discretion in relation to the powers conferred by ss 149A, 149B or 149C of the National Law. In this decision we will deal only with the making of findings with respect to the subject matter of the complaint. 2. It is no part of our function to evaluate the conduct of the complainants or the witnesses in this matter, except in so far as an evaluation as to credit is necessary in order to discharge our function under s 149 of the National Law. Our task requires us to focus on the behaviour of the health practitioner, Dr Sathiyapal, in the context of the applicable regulatory system provided for in the National Law. Background to the Application 1. The following background was set out in the Application: The practitioner completed his medical degree in Sri Lanka in 1994. The practitioner practised medicine in Sri Lanka for approximately seven years. In June 2002, the practitioner migrated to Western Australia. The practitioner completed part one of the Australian Medical Council exam in 2004 and part two in 2008. He attained Fellowship of the Royal Australian College of General Practitioners (FRACGP) in 2014. In 2007, the practitioner obtained a Graduate Diploma of Women's Health from King Edward Memorial Hospital, Perth. Between 2007 and 2021, the practitioner worked as a General Practitioner at multiple different group practices, predominantly in Western Australia, but also in Victoria and New South Wales. Between 2016 and 2020, the practitioner was employed in five different practices in Western Australia and also at Ropes Crossing Medical Practice ('RCMP'), Ropes Crossing, New South Wales. Between March 2016 and June 2020, Patient A was a patient at RCMP. Between June 2016 and November 2019, Patient A consulted with the practitioner at RCMP. Patient A has a history of, amongst other things, chronic anxiety/depression, complex trauma, substance abuse, including benzodiazepines, cannabis and methamphetamine and anger management issues. Between February 2018 and November 2020, Patient A presented to the Emergency Department of Nepean Hospital on multiple occasions after incidents of self harm, including suspected overdoses of benzodiazepines. Between 9 May 2017 and 30 June 2018, Patient A was on the NSW Opioid Treatment Program ('OTP program'). As at 10 February 2019, Patient A was 24 years of age. Person B is the long term intimate partner of Patient A. Between October 2016 and November 2020, Person B was a patient of RCMP. Between February 2019 and November 2020, Person B consulted with the practitioner at RCMP. 1. In his Reply, in relation to the background set out in the Application, Dr Sathiyapal admits that, between June 2016 and November 2019, Patient A consulted with him at the Ropes Crossing Medical Practice ('RCMP'), and that between February 2019 and November 2020, Person B consulted with him at RCMP. In his affidavit of 3 May 2023, Dr Sathiyapal confirms the date upon which he obtained his medical degree and the date of his migration to Western Australia. 2. The applicable standard of proof is proof on the balance of probabilities (see Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41). In view of the nature of the allegations, we will apply the requirements set out in Briginshaw v Briginshaw (1938) 60 CLR 336, namely that we will find that a fact has been proven to the requisite standard only when we feel an actual persuasion of the existence of that fact because evidence of sufficient probative force has been adduced, bearing in mind the seriousness of the findings and their potential for significant impact upon a party (see Sullivan v Civil Aviation Authority (2014) 226 FCAFC 93). The particulars of Complaint One which are admitted 1. Complaint One is a complaint of unsatisfactory professional conduct under s 139(1)(l) of the Act, on the basis that it is alleged that the particularised conduct constitutes improper or unethical conduct on the part of Dr Sathiyapal. 2. Dr Sathiyapal admits the following particulars to Complaint One, but does not admit that they amount to improper or unethical conduct under s 139B(1)(l) of the National Law: 6. Between 25 February 2018 and 10 February 2019, on twelve occasions, the practitioner inappropriately prescribed alprazolam to Patient A: a. without clinical indication; b. in a manner which did not accord with therapeutic guidelines for dosages, frequency and duration of prescribing; c. failing to take into consideration Patient A's history of codeine addiction. d. without holding an authority under section 28 of the Poisons and Therapeutic Goods Act 1966 ('PTGA') to prescribe alprazolam; e. without appropriate monitoring of Patient A during this timeframe. 7. Between 27 June 2019 and 24 September 2019, on three occasions, the practitioner inappropriately prescribed alprazolam to Patient A: a. without clinical indication; b. in a manner that did not accord with therapeutic guidelines for dosages, frequency and duration of prescribing; c. failing to take into consideration Patient A's history of codeine addiction; a. in combination with tramadol. [sic] b. without holding an authority under section 28 of the PTGA to prescribe alprazolam. [sic] 8. Between June 2016 and November 2019, the practitioner failed to maintain adequate clinical records in relation to Patient A when he: a. falsely answered yes to the 'in-date authority' question on multiple occasions when prescribing alprazolam to Patient A. b. recorded physical examinations of Patient A which he did not perform on 12 occasions. 9. Between 10 February 2019 and November 2020, the practitioner failed to maintain adequate clinical records in relation to Person B when he: a. falsely answered yes to the 'in-date authority' question on multiple occasions when prescribing alprazolam to Person B; b. wrote referral letters for Person B on 27 April 2020 and 11 August 2020, and in both letters, failed to include alprazolam in the list of current patient medications and that Person B suffers from anxiety; c. wrote a referral letter for Person B on 8 September 2020 and failed to list alprazolam as a current medication of Person B. 10. Between 10 February 2019 and 15 November 2020, the practitioner inappropriately prescribed alprazolam to Person B on 60 occasions: a. without clinical indication; b. in a manner that did not accord with the relevant therapeutic guidelines for dosage, frequency and duration of prescribing; c. without conducting an appropriate assessment of Person B; d. without holding an authority under s 28 of the PTGA to prescribe alprazolam; e. failing to consider appropriate and timely referrals for specialist assistance when prescribing alprazolam to Person B. 1. In addition to being conceded by Dr Sathiyapal, the conduct alleged in particulars 6 to 10 of Complaint One is substantiated by the records provided in Exhibit A3 (see also the report of Dr Simon Young dated 12 March 2022 in Exhibit A1 at p 95). We find the conduct alleged in particulars 6 to 10 of Complaint One proven against Dr Sathiyapal. 2. In his affidavit of 3 May 2023, Dr Sathiyapal conceded that, at the time he was Patient A's General Practitioner, it was not his usual practice to calculate how many tablets Patient A should have had left from her previous prescription when Patient A presented, seeking a new prescription. Dr Sathiyapal also conceded that, at the time he was prescribing for Patient A, he was not aware of the NSW requirements in relation to the prescribing of Alprax (alprazolam) which is a restricted Schedule 8 drug. He said: I did not understand what an 'authority' was. 1. In cross-examination (transcript, 7 June 2023, p 5-6), Dr Sathiyapal agreed that Patient A told him, on 10 July 2017, that she was taking Suboxone. However, in February 2018, Dr Sathiyapal began prescribing alprazolam to Patient A (transcript p 39). Alprazolam is a benzodiazepine, which can depress the respiratory system. Suboxone is an opioid, which can also depress the respiratory system. Dr Sathiyapal agreed that, should a patient take a combination of the two drugs, alprazolam and Suboxone, it could be fatal to that patient (transcript p 7) (see also the report of Dr Young, Exhibit A1 at p 121). 2. Prescribing tramadol, an opioid, and alprazolam, a benzodiazepine, to the same patient at the same time also poses a risk to the patient, for a similar reason (see particular 7 of Complaint One). 3. Dr Sathiyapal admitted that he did not know, in February 2018, what the recommended starting dose of alprazolam was (transcript 7 June 2023 at p 40). He agreed that it was poor medical practice to prescribe alprazolam when he knew very little about it (transcript 7 June 2023 at p 7). 4. With respect to particular 10 of Complaint One, Dr Sathiyapal said that he prescribed alprazolam to Person B "under duress". He indicated that he was afraid of Person B (transcript 30 August 2023 at p 84). The particulars of Complaint One which are denied 1. In his Reply, Dr Sathiyapal denies the conduct alleged in particulars 1 to 5, inclusive, and particular 11 of Complaint One. 2. We will deal with particulars 1 to 5 together. They deal with events alleged to have occurred in January and February of 2019. Patient A consulted Dr Sathiyapal at RCMP between June 2016 and November 2019, so the allegations in particulars 1 to 5 relate to a period of time about two and a half years into the doctor/patient relationship. In February 2019, Patient A was 24 years old and Dr Sathiyapal was 55 years old. Particulars 1 to 5 are as follows: 1. In or around January 2019, during consultations with Patient A, the practitioner inappropriately said to Patient A, words to the effect of: a. "I'm going to Perth. You should leave your partner and kids and come with me." b. "I'll pay for your services". 2. On 10 February 2019, during a consultation with Patient A, the practitioner inappropriately said to Patient A, words to the effect of "Oh so you are all dressed up for me…I just want to take a picture of you". 3. On 10 February 2019, during a consultation with Patient A, the practitioner inappropriately: a. placed his hand down the front of Patient A's shirt, inside the bra: and b. grabbed the left breast of Patient A. 4. By reason of the actions set out in particulars 3(a) to 3(b) above, the practitioner: a. engaged in steps without clinical reason or appropriate explanation; and/or b. engaged in inappropriate behaviour of a sexual nature towards Patient A. 5. On 10 February 2019, after Person B entered the practitioner's consultation room and accused him of acting inappropriately towards Patient A, the practitioner: a. inappropriately said to Person B, words to the effect of "Please don't go to the police. Look at the colour of my skin. Please, I'm a black man, I can't go to gaol. If I go to gaol they'll kill me. I'll give you money."; b. at 11:06am, electronically transferred $5000 into the bank account of Patient A, in payment for an assurance that neither Patient A nor Person B would report the inappropriate conduct of the practitioner to the police. … 11. The practitioner provided false and misleading information on 8 March 2021, in correspondence to the Commission, when he denied any involvement in the electronic transfer of $5,000 from the practitioner's bank account on 10 February 2019, to Patient A. Patient A 1. Patient A was admitted to a hospital as an inpatient for detoxification from benzodiazepines in November 2020. She was interviewed by Dr Kimbell as part of her admission. In the course of that interview, in the context of disclosing her history, Patient A told Dr Kimbell that a male GP had behaved inappropriately towards her by offering her money for sex and by touching and taking photos of her breast. Dr Kimbell arranged for a social worker to speak to Patient A. The complaint to the HCCC occurred as a result of these interactions. 2. Patient A made a statement dated 20 July 2021 (Exhibit A1 page 59). In that statement, Patient A said the following in relation to particulars 1 to 5 of Complaint One: 19. My partner usually drove me to see Dr Sathiyapal, as I don't drive. He would wait outside in the car while I went in for my appointment. 20. It was probably around January 2019 that I first began to feel uncomfortable with Dr Sathiyapal. He started making weird comments to me during consultations. 21. The first time this happened, he said something like "I'm going to Perth. You should leave your partner and kids and come with me." I kind of laughed this off and just tried to get out of there as quickly as possible. But he wouldn't write my scripts unless I kept listening to him. He also showed me some photos on his iPad of him at Niagara Falls. 22. When I came out after this consultation my partner said "What took you so long?'. I can't remember how I answered that question at the time. 23. The second time it happened, Dr Sathiyapal was talking about going to the beach or the park. He said he was finishing in 20 minutes and I should come with him. He said something like "I will pay you for services". He asked if he could take a selfie with me and I said ok. The way he was speaking and the way he was looking at me felt really sexual. I remember thinking, "Oh my god my doctor just hit on me". 24. I left the medical centre crying. My partner was waiting for me in the car and I told him about it straight away. He said "If he ever does it again, ring me." 25. The third time it happened was on my 24th birthday, 10 February 2019. Dr Sathiyapal made some comment about what I was wearing. He said something like "Oh you're all dressed up for me" and "I just want to take a picture of you, you look so good." 26. He then started taking pictures of me on his phone. I was sitting in the chair next to his desk and he was sort of taking pictures around me. I remember I was wearing a denim skirt. He was holding his phone down quite low. I felt like he was trying to take pictures of my vagina area, up my skirt. 27. I started to have a panic attack because of what he was doing. It was just so full on. I said "I feel like my heart's racing". That's when he said "I'll check your chest". 28. I was still sitting in the chair. Dr Sathiyapal was in his roller chair. He came right up to me, so he was sitting directly in front of me. He said "I need to feel your chest". Then he just put his hand straight down the front of my top inside my bra and grabbed my left breast really quickly. I pulled back and he pulled his hand out. He was making grunting noises. 29. He didn't use a stethoscope and he wasn't wearing gloves. I can't remember which hand he used. 30. I have drawn a diagram showing where Dr Sathiyapal and I were positioned when he grabbed my breast. The diagram is attached to this statement and marked Annexure A. 31. I was in shock. I thought "Did my doctor just grab my boob? Is he supposed to do that?" I said "What are you doing?" 32. I rang my partner so he could hear what was happening. My phone was in my pocket. My partner was waiting outside in the car with the kids. 33. My partner arrived within a few minutes. I remember I had to unlock the door to let him into the room because Dr Sathiyapal had locked it when I first walked in. 34. My partner said something like, "Hey, what's going on here? I heard you on the phone." I left the room at that point and quickly walked to the car to look after the kids. 35. My partner stayed in the room with Dr Sathiyapal. I would say he was in there for about 10 minutes. 36. Then my partner came out to the car. He told me the doctor said he'd give us five grand if we shut up about the whole thing and he wants your bank details. I was hysterically crying. I gave him my phone with my bank details and he went back inside. 37. He came back out with my scripts about 10 minutes later. 38. The $5,000 appeared in my bank account pretty quickly, I think within a couple of hours. But it might have been just 'pending' at that point because when I later checked my bank statement the transfer actually happened the next day (11 February 2019). … 41. We were living in temporary accommodation at the time. I thought, well he's a doctor and I've got a drug history. No-one's ever going to believe me if I report him to the police. So I accepted the money. 1. Patient A gave evidence at the hearing before us and was cross-examined. 2. Patient A's evidence with respect to the allegations in particulars 1, 2 and 3 remained substantially consistent with her statement in cross-examination. 3. In cross-examination, Patient A clarified that she began a phone call with her partner, Person B, whilst she was in the waiting room on 10 February 2019, and she kept the telephone call going, with the phone in her pocket, for the duration of the consultation. She did this, she indicated, because she had been crying when she returned to the car after one of the consultations in January 2019, and she wished her partner to hear the consultation to see if he thought Dr Sathiyapal's behaviour was inappropriate. This is not inconsistent with her written statement, although it was a more detailed account. 4. Patient A said, in cross-examination, that she returned to RCMP subsequent to February 2019 for the purpose of having a contraceptive rod inserted, and, later, removed, and also to have stiches taken out of a wound in her wrist. On each of those occasions, she said, she saw a nurse and she did not see Dr Sathiyapal. Patient A also attended at RCMP on 5 May 2020 with a family friend, who she refers to as an aunt. On this occasion, there was a heated exchange, primarily between the 'aunt' and a senior female doctor in the practice, regarding Patient A's allegations against Dr Sathiyapal. Dr Sathiyapal was not present at RCMP on that occasion. 5. It was submitted on behalf of Dr Sathiyapal that Patient A's evidence on this point should not be believed, because there are practice notes and Medicare claims in relation to consultations between Dr Sathiyapal and Patient A which post-date 10 February 2019. We note that the practice notes were generated by Dr Sathiyapal and the Medicare records were based upon information provided to Medicare by Dr Sathiyapal. Patient A's evidence was that Person B attended Dr Sathiyapal to collect scripts for her subsequent to 10 February 2019. She also made the point that RCMP were in possession of her Medicare card number and her mother was on the same card. In her statement, Patient A said "I kept seeing Dr Sathiyapal after this incident because I needed to get my scripts. Also one time I cut my wrist and needed stiches and had to go in." In cross-examination, Patient A said that the statement had been prepared for her, and that she had not checked it properly. She said that she had been affected by Xanax (alprazolam) at the time that she checked the statement. 6. Patient A was unable to give evidence on the first day of the hearing on account of her health. She gave evidence on the second day, from part way through the morning and into the afternoon. Her evidence was noticeably clearer in the morning than it was after lunch. When Patient A was asked compound questions, she tended to give an answer which, it then emerged, was given on the basis of assumptions not contained in the question, or addressed only part of the question. This was not an evasive strategy, but a reflection of her train of thought. 7. We take into account Patient A's medical history, including her history of drug use. We take into account her admissions to hospital and the triggers for those admissions, in so far as those matters are recorded in the medical records before us. These matters do not cause us to conclude that Patient A is necessarily an unreliable witness with respect to the events of 10 February 2019 in Dr Sathiyapal's consulting room. Patient A has been largely consistent with respect to her account of the three consultations in question; the two consultations in January 2019 which are the subject of particular 1.a. and 1.b., and the consultation on 10 February 2019. It was our impression that Patient A was, for the most part, doing the best she could to give truthful evidence and we accept that her evidence as to the events of the consultations in January 2019 and on 10 February 2019 represented her best recollection of those events. There were discrepancies in her responses to some questions under cross-examination, some of which arose from careless or insufficiently detailed answers, some of which may have resulted from a misunderstanding of the question, and some of which suggested that Patient A's memory of some of the things she was questioned about had changed over time. It may be that Patient A lost track of the context of the questions she was being asked from time to time. It may also be that Patient A gave answers on some peripheral matters arising from a fear of being judged adversely. We have considered all of the material in the submissions on behalf of the respondent in relation to Patient A's credibility. We acknowledge that Patient A's evidence on some peripheral or incidental facts were inconsistent, and that aspects of her evidence, such as her assertion that she spoke to the police on 11 February 2019, may not have been true. This does not cause us to doubt her recollection of the events which occurred in the consulting room in January 2019 and on 10 February 2019 (see Reed v Regina [2006] NSWCCA 314 at [64] per Spigelman CJ). 8. We acknowledge that Patient A said the following in cross-examination concerning the period of time after 10 February 2019 (transcript p 19): Q. Did you book in to see someone else about getting alprazolam? A. No because he was giving my scripts to my partner. Q. Why? A. Because he – I needed scripts to help me out with my anxiety because I was very suicidal and I couldn't sleep without it. It got to the point where I couldn't sleep. I tried for about five to seven days straight and I couldn't sleep. Q. Why didn't you go to a different doctor to get alprazolam? A. Because I couldn't be around doctors anymore because I was so terrified. I only got to the point where I found my doctor now where I feel okay but I still make him like leave the door open because I get anxieties now seeing different doctors. Q. Are you saying that you haven't seen a GP after 10 February 2019 until you got your new GP now? A. So – yes. Q. When was that? When did you get your new GP? A. I got my new GP on 11 April 2021. 1. The Medicare records show that Patient A saw several doctors between 10 February 2019 and 11 April 2021. It is clear that Patient A's answer agreeing with the proposition that she hadn't seen a GP after 10 February 2019 until she 'got her new GP' was not true. However, it may be that Patient A misunderstood the question. She had just said that she got "anxiety now seeing different doctors". Person B 1. A statement of Person B, Patient A's partner, dated 15 November 2021, was tendered (see Exhibit A1 page 66- 72). 2. In his statement, Patient B said the following, relevant to particulars 1 to 5 of Complaint One: 12. Dr Sathiyapal was the doctor who first started prescribing alprazolam to her [Patient A] on a regular basis. We were living in Penrith at the time. 13. [Patient A] would always get her scripts from Dr Sathiyapal on the weekend, on Sunday. I would drive her to Ropes Crossing Medical Practice for her appointments. I would usually take the kids to the park or get them some lunch while [Patient A] was seeing Dr Sathiyapal, and then I would pick her up after the appointment. 14. I occasionally saw Dr Sathiyapal as a patient myself in the early days, but not on a regular basis. If I needed to see a doctor, I just saw whoever was available. 15. I didn't have any particular concerns about Dr Sathiyapal prior to 2019, and I don't recall [Patient A] expressing any concerns about him either prior to 2019. He was just another GP to us. 16. But then sometime in early 2019, [Patient A] told me that Dr Sathiyapal was saying things to her during consultations that made her feel uncomfortable. She told me about this on at least two separate occasions. 17. I can't remember exactly what [Patient A] said to me on each of these occasions, but I do remember her telling me that Dr Sathiyapal had commented on what she was wearing and asked "Did you wear that for me?" I also remember her telling me that Dr Sathiyapal had asked her to come to Western Australia with him for a holiday, and said something about paying her "for services". I also remember her telling me that Dr Sathiyapal would lock the door of his office during their consultations. 18. [Patient A] also told me about an incident that happened during one of her consultations with Dr Sathiyapal in early 2019, when she was having an anxiety attack and he asked to feel her chest and then grabbed her breast. I'm not sure when she told me about this incident, and I don't know exactly when it occurred. 19. During one of our conversations about Dr Sathiyapal in early 2019, I said to [Patient A] "Next time it happens, see if you can call me so I can hear what he's saying". 20. [Patient A's] next appointment with Dr Sathiyapal was on Sunday 10 February 2019. I remember this date specifically because it was her birthday. I drove her to Ropes Crossing Medical Practice (the practice). I parked in the practice car park, and stayed in the car with the kids while she went inside. 21. Prior to this appointment, [Patient A] and I agreed that I would go in during the consultation and confront Dr Sathiyapal about his behaviour. I said to her "Make sure you unlock the door so I can get in". 22. After waiting in the car for maybe half an hour, I called [Patient A] to see what was happening and how much longer she was going to be. When she answered the phone, she said she was still in the waiting room. We only talked on the phone very briefly. I'm not sure how the call ended, I think maybe [Patient A] got called in to see Dr Sathiyapal while we were still on the phone, but it's also possible that we terminated the call and she then phoned me back a short time later, after she was called in to Dr Sathiyapal's office. 23. I can't remember what my mobile number was at the time, but it would probably be in my medical records. I have had several different mobile numbers over the past few years, but my service provider has always been Optus. 24. As soon as I heard that [Patient A] had been called in to see Dr Sathiyapal, I got out of the car and walked straight from the car park into the medical practice. I have drawn a diagram showing the location of the car park and the layout of the practice. That diagram is attached to this statement as Annexure A. 25. I entered the practice through the front door. I remember the waiting room was fully packed. 26. I went directly to Dr Sathiyapal's office. I knew where his office was because I'd seen him in there before. I can't remember if the door was already unlocked or if [Patient A] had to unlock it to let me in. 27. [Patient A] was sitting in the chair next to the desk when I entered the room, and Dr Sathiyapal was sitting behind the desk. I have drawn a diagram to illustrate this. That diagram is attached to this statement as Annexure B. 28 [Patient A] seemed scared and panicked. 29. As I entered the room, I said "I need you to go to the car. The kids are in the car' and she left the room immediately. 30. After [Patient A] left the room, I think I closed the door. Then I just started fully screaming at Dr Sathiyapal. I was standing up and I was approximately a metre away from him. I was pretty furious, I can't remember exactly what I said, but it was something along the lines of "What the hell's going on? I know what you've been doing to my partner. It's not right. You're done, mate. You're going to gaol." 31. I lost my temper. I was all over the place. I said, "You're lucky I don't smash your face". I may also have slammed the door and pushed the patient chair, but I didn't physically touch Dr Sathiyapal at any time. I know not to cross that line. 32. Dr Sathiyapal looked very surprised and shocked to see me. At first, he was just sitting back in his chair. He seemed to be shaking a bit. Then he stood up and grabbed a coffee mug. I said, "Hey, sit down, mate" and he did. 33. At one point, the receptionist came and knocked on the door. Dr Sathiyapal asked me, "Can I please open the door for a second?" and I didn't say or do anything to stop him. He opened the door a tiny bit and spoke to the receptionist. I heard her say something like "Is everything OK? Do you want me to call the police?" I think I screamed out, "Yes, call the police!" But Dr Sathiyapal told her "Everything's OK. Go back to the desk." 34. Dr Sathiyapal kept telling me to calm down and relax, but I kept screaming at him. He said: "Please don't hurt me". I said: "I'm not going to hurt you, I'm not that stupid". He said: "Please don't go to the police. Look at the colour of my skin. Please, I'm a black man. I can't go to gaol. If I go to gaol, they'll kill me. I have money. I'll give you money." I said: "Alright then, where's the money?" and held out my hand. He said: "I don't have cash on me, but I can transfer it to your bank account". 35. He didn't mention any particular amount of money. 36. I wasn't using my bank account at the time. I think I may have lost my wallet or my card. Also I was unemployed, and our Centrelink payments were going into [Patient A's] account. I said to Dr Sathiyapal "I need to go and get my partner's bank details. Stay here. Don't go anywhere. I'll be right back." Then I stormed out of his office and headed for the front door. 37. As I passed the front desk, the receptionist said, "Is everything ok?" I said loudly, "No, nothing's OK!" and kept walking. The receptionist was an older lady, maybe in her 50s. I think she was possibly Philippino. I'd seen her at the practice a few times before, but I don't know her name. 38. I walked out the front door of the practice and straight back to the car, where [Patient A] and the kids were waiting. 39. When I got to the car [Patient A] was very upset and was crying. She said "What's going on? What's happening?" I said "He's going to put money in your bank account. I need your account details." She said "I still need my scripts". I think she may also have said, "Did you hurt him?" and I said "No". 40. [Patient A] had to log into the banking app on her phone to get her account details. This took a few minutes. Then she gave me her phone and I took it with me back to the practice. 41. I entered the practice via the front door and started walking towards Dr Sathiyapal's office, but the receptionist said, "He's not here, he's gone". I said "Gone where? He was here five minutes ago." She said "I don't know, he just left". 42. I walked back out the front door and stood on the footpath outside, looking for Dr Sathiyapal. I looked left and right. Then I saw him running from the direction of the shops. When he got to me I said "Where did you go?" and he said something like "I had a panic attack. I felt sick. I had to go and get something to eat." This made no sense to me. 43. Dr Sathiyapal and I then re-entered the practice together. He walked straight back into his office and I walked in behind him. I said here's the bank details, and I showed them to him on [Patient A's] phone. I think he couldn't remember his bank password at first. I remember he had to sit up and grab his wallet out of his back pocket to find the password. Then he logged onto his bank account using the computer on his desk. He had a few different accounts. He showed me these accounts on the screen. He said "Look, I can give you this" I said "Whatever, just hurry up." I then watched him transfer $5,000 into [Patient A's] account. I saw him put her details in, I saw her name come up on the screen. He kept on saying "Please, please don't go to the police". 44 When he finished doing the bank transfer, I said "My partner still needs her scripts." He printed out the scripts and gave them to me. I said words to the effect of "I don't think my partner 's going to want to come back to see you again after this, so I'll be coming to get her scripts from now on." Then I walked out of Dr Sathiyapal's office and left the practice. … 47. I was on the fence about accepting the $5,000 from Dr Sathiyapal. I was really disgusted with him and I wanted to report him to the police, but we were stuck in a tight situation. We had been staying in temporary accommodation for almost 30 days (which is the maximum time allowed). I was out of work, and we were just about to become homeless. If we weren't in that situation, I 100% would have gone straight to the police. 48. I think I said to [Patient A] in the car, "Should we still go to the police?". But we decided not to because we were desperate, we really needed the money. 49. That money did help us. We got accepted for a house in Kingswood the very next day and we used the money to pay the bond and buy some furniture. 50. I attended all of [Patient A's] appointments with Dr Sathiyapal after that. She might have come in with me a couple of times (though I don't remember this happening), but mostly I just went in on my own to collect her scripts. 51. I was seeing Dr Sathiyapal every fortnight to collect [Patient A's] scripts. This continued right up until [Patient A] went into detox at Nepean Hospital in November 2020. Even when we were separated for three months in 2020, I continued to collect her scripts. 52. Dr Sathiyapal would have the scripts ready when I got there. He would usually just hand me the scripts and I would leave. He wouldn't even say anything. He never asked me about [Patient A]. 53. I think the scripts were for Lyrica and alprazolam. They were all private scripts. I think Dr Sathiyapal said you could only get these medications on private scripts. 54. At first, he was putting the scripts in [Patient A's] name. But at some point he told me he would have to start putting them in my name instead. I think this might have been after [Patient A] took an overdose of alprazolam and had to go to Nepean Hospital. We were living in St Clair at the time. I think Dr Sathiyapal said he'd received a letter from the hospital. 55. [Patient A] would usually ring Ropes Crossing Medical Practice to make the appointments, but the appointments would be booked in my name. 56. All the appointments were bulk billed through Medicare. … 1. Person B gave evidence at the hearing. He agreed, in cross-examination, that he did not report the events of 10 February 2019 to the police. 2. In cross-examination, Person B indicted that he did not recall whether he was told about the allegation that Dr Sathiyapal had "grabbed" Patient A's breast on 10 February 2019, or prior to that date. He said (transcript p 15): I don't recall if it was on the same day or if it was prior. This statement was taken years after these events occurred. It was just – it was very jumbled with when stuff has happened and if it happened on the same day. I can't recall exactly. My memory is just – yeah. 1. We accept Person B's explanation. 2. It was put to Person B, in cross-examination, that he was accompanied by another man on 10 February 2019 when he entered the RCMP. Person B denied that. Various other allegations were put to him which diverged from his account, and he denied those allegations. 3. Person B said, in re-examination, that the scripts obtained from Dr Sathiyapal for alprazolam in Person B's name were intended for Patient A. 4. Allowing for the lapse of time between the events of 10 February 2019 and the making of his statement on 15 November 2021 and the giving of his evidence on 6 June 2023, we accept that Person B gave evidence which accorded with his best recollection of what occurred on 10 February 2019. Person B gave his evidence in a frank and straightforward manner. He made every effort to understand the questions asked in cross-examination, and did not attempt to answer when he did not recall something. He did not shy away from those aspects of his conduct on 10 February 2019 which reflected unfavourably on him. His account under cross-examination was substantially similar to the account in his statement, and discrepancies were explained. His account of his part in the events of 10 February 2019 was substantially similar to Patient A's, although his evidence was clearly based upon his own subjective experience and perception of the events of that day. We acknowledge that his evidence contained some apparent contradictions and a degree of vagueness on some points, which are set out in detail in the submissions of the respondent to which we have had regard. The Westpac Records 1. The documents exchanged with Westpac, Dr Sathiyapal's bank, with respect to the transfer of $5,000 from Dr Sathiyapal's bank account to Patient A's bank account on 10 February 2019 ("the transfer') were provided in Exhibit A1 from p 324 to p 399, without objection. 2. In a letter from Westpac to the HCCC dated 9 July 2021, a Risk Analyst at Westpac says that Dr Sathiyapal called the Fraud team on 19 February 2021 regarding the transfer (ie, more than two years after the transfer), which, he was claiming, was fraudulent. Eventually, on 17 July 2021, Dr Sathiyapal made a formal complaint regarding Westpac's response to his claim. Westpac conducted an investigation, which resulted in a report dated 10 August 2021 by Mr Hutchinson, Customer Manager. That report said, among other things: … This letter sets out my investigation, findings and details the reasons for the outcome of your complaint. By brief way of summary, you shared with us that you believe a transaction of $5,000 made from your account ending 299 on 10 February 2019 is fraudulent. You were seeking Westpac to reimburse you $5,000 as an outcome to your complaint. I am writing to let you know that we must regretfully decline your request. Our review and findings We have considered the information you have provided and conducted our own investigations to ensure we have a complete picture of your concerns. We have also taken your specific circumstances into account. Following receipt of your complaint I conducted an interview with you to gain a better understanding of your case. I was able to confirm the following. You advised me that in February 2019, shortly before the reported transaction, you lost your bag at the airport traveling from Sydney to Perth. You advise me that this bag contained a diary in which you had written your online banking login information, however you did not lose your mobile phone or wallet. You advised me this is how someone was able to access your online banking and perform the transaction. You advised me you did not notice the funds were missing until two years later, when performing an account review for tax purposes. Reviewing our systems data, I was also able to confirm the following: On 10 February 2019 at 11:03am, a login was made to your online banking. On 10 February 2019 at 11:06am, a new payee was created through your online banking with the nickname of "[Patient A]". On 10 February 2019 at 11:07am, a payment was made to "[Patient A]" for $5,000 from your Investment Property Loan account ending in 299. This payment was authorised with a two-factor authentication SMS to your mobile ending 682. There were no incorrect log-in attempts to your online banking meaning the person that performed the transaction knew your password. There are other transactions around 10 February 2019 performed from your online banking using the same device, location data and browser, which are genuine payments. The transaction was two-factor authenticated with an SMS to your mobile ending 682, which is still your current mobile number. Even if someone had managed to gain access to your online banking using your diary that had your login information recorded, they would have required access to your mobile to input the two-factor authentication SMS, which you advised me you did not lose. … 1. The author of this report was not required for cross-examination. In cross-examination, Dr Sathiyapal indicated that he thought the Westpac investigator may have misunderstood what Dr Sathiyapal said to him about the circumstances in which, on Dr Sathiyapal's story, a third party came to have his account details, banking password and mobile telephone, on account of his accent. We reject that explanation. The various accounts given by Dr Sathiyapal are very different from each other. We find that Dr Sathiyapal gave the explanation set out in the Westpac report to the Westpac investigator. That explanation is wholly implausible, and Dr Sathiyapal has now resiled from it. We accept that the Westpac report is an accurate account of what Dr Sathiyapal told the Westpac investigator and is also accurate in the other factual information it contains. Dr Sathiyapal 1. In his affidavit of 3 May 2023, Dr Sathiyapal said: 19. On 8 March 2021, I provided evidence in response to a notice issued by the HCCC pursuant to s 21A of the HCC Act. I denied any allegation of sexual misconduct or impropriety. I also denied giving any money to [Patient A] or her partner/s. 1. In his affidavit, Dr Sathiyapal goes through the notes of his consultations with Patient A. In January 2019, he prescribed Alprax (alprazolam) for Patient A on 24 January, 27 January and 29 January 2019. On 24 January 2019, Dr Sathiyapal also prescribed Patient A Voltaren EC tablets and Panadeine Forte tablets. On 27 and 29 January 2019, in his notes, Dr Sathiyapal recorded that Patient A had told him that she was taking six Alprax tablets per day. He said that he did not calculate, when prescribing, how many tablets she ought to have left from previous prescriptions. Dr Sathiyapal again prescribed Alprax for Patient A on 3 and 5 February 2019. In his commentary in relation to his notes of 5 February 2019, Dr Sathiyapal said, in his affidavit: 151. I recall [Patient A] presented for a repeat prescription of Alprax. She complained of having high stress as her husband was not working. She reported that due to stress, she sometimes took Alprax three times an hour and at times, 6 times an hour. She was also taking anti-depressants. I took a limited mental health assessment based on my observations of her and history provided. I recall that she did not present with any signs of overdose when I consulted her. Given her high tolerance of Alprax, I considered it was possible that she could tolerate such a high dose. I prescribed her Alprax. 1. In his affidavit, Dr Sathiyapal said the following with respect to 10 February 2019: 152. On 9 February 2019, I took the red eye flight from Perth to Sydney. The flight usually lands in Sydney at approximately 06:05 hours. However due to delays on this occasion, the flight did not land in Sydney until approximately 07:30 hours. 153. As I was rostered to start work at the Practice 09:00 hours, I did not have time to go home prior to going to the Practice. I went from the airport straight to the Practice with my small luggage bag. I arrived at the Practice at approximately 09:05 hours. I was the only doctor rostered to work that day. There was no practice nurse rostered to work that day. There was only one reception staff rostered to work that day. I was not familiar with the reception staff rostered that day, who had recently started working at the Practice. When I arrived, I recall that there were a lot of patients sitting in the waiting room to be seen. 154. At approximately 10:37 hours, I saw [Patient A]. [Patient A] complained to me about "breast pain" and "pain in the mouth, chest and shoulder". I did not conduct a physical examination of [Patient A]. Instead, I ordered an ultrasound of both breasts to rule out any breast pathology, such as cyst or solid lesion. 155. [Patient A] also complained of severe stress due to domestic violence issues at home and demanded in an aggressive and threatening manner to have more Alprazolam. She reported taking 8 tablets a day. I was concerned that she was abusing the medications and determined to refuse to prescribe to her. When I told [Patient A] I could not give her any more, she threatened to blackmail me. She was very aggressive and very abusive and said words to the effect of, "I will – I will go and tell the police that you sexually assaulted me, I will go and put you in trouble, I will go and put you in trouble". Out of fear, I wrote [Patient A] a script for Alprax and told her it was the last one I would give her. [Patient A] then left my consulting room. 156. About 10 minutes later, [Person B] (who is a large framed man) and another large, framed man came to my consulting room [sic]. Their physical appearance was intimidating to me. At the time, I had just finished seeing a patient and was about to call the next patient. [Person B] was very abusive and demanded in an aggressive and threatening manner that I prescribe Alprax and Oxycodone for back pain. [Person B] also threatened to blackmail me and asked for money. He claimed that [Patient A] accused me of sexually assaulting her and refusing to prescribe the medications she needed. He was yelling at the top of his voice that he was going to go to the police to report me if I refused to prescribe the medications and that I would lose my job. His accomplice kept glaring at me in an intimidating manner. 157. In an attempt to de-escalate the situation, I left the consulting room and went to the Practice's kitchen. I did not take any of my belongings with me when I left the consulting room, including my bag and mobile phone, which I left in the consulting room. 158. About 20 minutes later, I returned to the consulting room. At that time, the 2 men had left. 159. I documented the following in her notes: Sunday February 10 10:37:49 Dr Sathiyapal Kulanayagam Visit type: Surgery consultation History: Psych: Poor sleep. Early morning waking. Depressed mood. Low self esteem. Irrational fear. No compulsive behaviours. Panic attacks. No delusions. No hallucinations. No suicidal thoughts. No substance abuse. Examination: Respiratory: Normal air entry on Right. Normal air entry on Left. No creps. No rhonchi. Actions: Prescriptions printed: ALPRAX TABLET 2mg t.i.d.p.c Diagnostic imaging requested: ultyrasound of the both breast as she severe breast pain exclude any abnormality [sic]. Rx Questions: ALPRAX TABLET 2mg: Q1: Do you have an in-date authority? : Yes. she is aggressive and from today i am not seeing her she is asking lot of medication today she is aggressive want alprax more repeats says breast pain came inappropriate dress trying to hug abusive language told that his friend recorded some messages like asking questions i like to see you come to perth saying put hands it is becoming unbearable from today i am not seeing this patient then partner came side very abusive asking money somebody recorded the message and want to go police station he asked for alprax and oxycodone using for his back pain she left clearly told hereafter it is not good to trat seek another medical practitioner they planned tried to blackmail i did not do any breast examination she has pain in the mouth chest and shoulder pain but i did not examine she is a dangerous person and did not do any examination all these days councelling done [sic] 160. I then continued to consult patients at a time after approximately 11:30 hours. It was a busy day, but I was not aware of how many patients were waiting. I consulted patients that day until approximately 19:00 hours. 161. I was so busy throughout the rest of the day that when I finished work and was packing up to return home, I realised that my shoulder bag was missing from the consulting room. My bag had a number of personal and financial documents, including a diary containing all my bank account numbers and passwords, $4,000 in cash I had on my (which I had withdrawn from an ATM) was to purchase a car. I did not know which patient had taken my shoulder bag. I had seen a number of patients that day but had not left any of the patients in the consulting room alone. [Person B] and his accomplice was the only patient I had left in the consulting room alone. However, I did not report this matter to the police because of the fear I had based on my previous dealings with the police when my house burnt down. I did not think there was any point reporting my lost shoulder bag as I did not think the police would help me. 1. In his affidavit, Dr Sathiyapal then goes through all of the dates upon which he says that Patient A consulted him subsequent to 10 February 2019. 2. In cross-examination, Dr Sathiyapal was asked about the consultation on 10 February 2019 (see transcript p 48 – 68). Dr Sathiyapal denied asking Patient A to see him outside of the practice. He denied taking photographs of Patient A. He agreed that Patient A had a panic attack during the consultation, and said that she had panic attacks at all of the consultations, but then said that he could not remember (transcript p 49). 3. In cross-examination, Dr Sathiyapal denied telling Patient A that he wanted to examine her chest in response to her having a panic attack. Dr Sathiyapal said that Patient A told him she had breast pain. He denied grabbing her breast. He said that Patient A became angry and abusive when he refused to give her a prescription and threatened to go to the police. 4. Dr Sathiyapal said that he saw another patient after Patient A, and, near the end of that consultation, Person B came into his office with another man, at which time the patient left (see transcript p 51). Dr Sathiyapal agreed that Person B accused him of touching Patient A. The following exchange took place: Q. …You gave to Person B on 10 February 2019 some prescriptions, didn't you. A. He came. He was very angry about to assault and he asked if I'm not giving I will kill you. Forcefully he took the scripts. Q. Right. You say, do you, that he specifically said to you, "if you don't give me these prescriptions I will kill you". A. Yeah, I do. Q. Is that what you – A. He was – he was threatening me. I see, but the …(not transcribable)…was very difficult to tell but he was so threatening I have to get out of the consultation. I ran away, I left – put everything and went. Q. Doctor, I ask you to be very careful about this – A. I'm very careful. He's very, very aggressive and I didn't do anything. He just said I'm going to police. I said go – go to the police. I'll get…(not transcribable)… you'll lose your job. You're telling all these things with other two people. Sorry, other person. I don't know who – and he introduces himself with his partner, and I don't know other person the partner or anybody. So no-one knows because only the God knows. They can tell only one person here. Q. Doctor. Do you say on your oath today in this hearing that his man said to you that if you didn't give him what he wanted he would kill you? A. Not kill you. I will go and report or I will involve the police. You know he was threatening me in such a way I have to – I got so stressed. I can't stay in that room that's what I'm telling you – 1. The following further exchange took place (transcript p 54): Q. Do you remember what prescriptions you gave to [Person B] on [10] February 2019? A. I have to see but he came and asked for the same medication I think and also OxyContin, I can't remember but, not fully because it's too long now. Q. Do you remember whether you gave him a prescription for [Patient A] on that occasion or only a prescription for him? A. Only for him, I never gave to …(not transcribable)…I gave to [Patient A) also because she was in that consult first, took the prescription, went out. He came back and you – we demanded to give this. You had to, I'm doing this, I'm doing that …(not transcribable)… in that stressful day I gave the prescription and sent him out. I … (not transcribable)… Q. I want to understand the sequence of events a bit better. So what happened, you say Doctor, is that you were seeing [Patient A] and you gave her a prescription, is that right? A. Yeah must have …(not transcribable)… I given, I given, I printed it and she took the prescription. Q. There is a prescription for alprazolam? A. Yeah, yeah. Q. So you gave that to her and--- A. Also I said clearly you know. Q. You requested some diagnostic imaging of her breasts, do you see that? A. Yeah, because …(not transcribable)…to see any because of the breast pain she complain so at least to see anything, everything is normal I gave alprazolam. Q. So up until the time that you gave her the prescription do you say that she had threatened you or blackmailed you or done something to make you give her that prescription on that date or was it afterwards that you were threatened when [Person B] came into the room? A. [Person B] came and threatened that you must give this, otherwise you are doing this, I'm going to report, he's the one who threatened. And she came and …(not transcribable)…she always come and stand in front of me, crying and this so I had to get rid of this woman. So I gave – I gave the form, go and do this investigation because I had a lot of patients staying there but I don't know they are planned to come inside because they were outside and she came something with a bag and photos, I can't remember. So they were planned and then he came inside and he started threatening. Q. I'm trying to just be very clear about the sequence of events Doctor and I'm sure the fault is with me, I do not currently understand exactly what happened, so I'm asking you some questions about it, okay. Do you say that the threatening and abusive behaviour on this date, that you say happened was only once [Person B] came into the room or was it also when [Patient A] was in the room? A. She came, all these notes from people have said not to give it and everything. I said we had already receipt. She was so – she also got angry and threatening me and I go and tell this …(not transcribable)…I can't leave, I'll take six like this. So I told Rebecca to give this and we will stop this from that date but she …(not transcribable)… the way she came and she attacked me and she – it wasn't a pleasant job that day. I don't know how to tell it. I will tell – she's also …(not transcribable)…emotionally she was abusive but I can't just, like …(not transcribable)…she didn't come, but she assaulting – asking me "I want a script". So that's a way of asking and I said "No, I had to reduce it. No. no you had to give me and I have …(not transcribable)…when this come I gave this and I gave the alprazolam and I said "Please hereafter don't come, go and see". From that date …(not transcribable)…go and see another Doctor because you have female issues and everything but unfortunately I don't know why she is coming back. … 1. In cross-examination, Dr Sathiyapal was taken to the pharmacy dispensing records in Exhibit A3 at p 101 and it was pointed out to him that the record showed that he had prescribed to Patient A alprazolam tablets with five repeats and it had been dispensed on 10 February 2019. Dr Sathiyapal denied that he had ever given five repeats. 2. Dr Sathiyapal was asked more questions about the attendance in his consulting room of Person B on 10 February 2019 (transcript p 60-61). Dr Sathiyapal said: A. He showed up as angry and he was in an angry mood, he want to get but he won't, that's when he took the script and thought I could be able to stay there I get out of the room, I can't tell how many minutes I've forgotten and because there were two people and I got very scared and - 1. Dr Sathiyapal was then taken to his own notes of a consultation with Person B on 10 February 2019 (Exhibit A3 p 162). The notes begin: Sunday February 10 2019 11:05:43 Dr Sathiyapal said (transcript p 61): The time is a record of when you opened the notes recorded… He further said, in response to being asked whether he made some of the note after Person B left or not (transcript p 61): A. Yes, after he left I went out then came and wrote it. Some…(not transcribable)…but some might came after I think. It's very difficult to tell because it is a long time, …(not transcribable)…what actually happened. 1. Dr Sathiyapal agreed that he prescribed alprazolam and oxycodone 80mg to Person B on 10 February 2019, which is stated in the notes of a consultation with Person B on that day. The following exchange took place: Q. …Why did you prescribe a prescription of alprazolam to [Patient B] on 10 February 2019? Why? A. Why? He was so angry. I saw a knife in his pocket. I thought, this is a danger for my life let this prescribe and get out of the room first. It is under duress, that's the word I'm using. I didn't prescribe for no intention nor get – I have to do it otherwise he would have – he would have assaulted me. Q. You took [Patient B's] blood pressure on 10 February 2019 during this consultation, didn't you, Doctor? A. See— Q. Doctor, answer my question. Did you take his blood pressure or not? A. I can't remember, that's it. Q. Will you please look at page 163 from the right under the prescription section? A. Yeah. Q. Can you see it says, "Blood pressure 150 over 100"? A. Yeah. Q. That's because you took his blood pressure during the consultation, isn't it? A. See, I was treating for blood pressure for a long time. He comes and takes medication. So at least on humanitarian grounds I must – because he's on Novasc and Karvea, he asked for the script also. So I checked up, I would have checked the blood pressure and I would have given it. The thing is, you are relating it in – then you are citing – if I did, I did at least something for the physical effect. … Q. Doctor, [Patient B] came into the room and accused you of assaulting his partner and I response you offered to provide him with medication for her- A. No. Q. -- and you offered to transfer a sum of money? A. No. Q. So that they would not make a complaint against you, that's what happened, isn't it? A. No. That's not the thing. I gave a formal consult. I didn't transfer any money. I don't know what happened, how it happened. It was from the loan account and I was with the COVID because six months I was in Sydney. So I was away from the room for 25 minutes. You won't believe the story because you think that I am cooking up a story and I'm doing it. But I didn't transfer. Q. Do you see – A. I didn't transfer any item but for this matter I gave his physical health, I checked it but he was demanding this medication and he took it and two people came and I was so scared I saw them that day. After something happening, all the police will come with a forensic examination…. 1. Dr Sathiyapal agreed that he had seen Person B in a consultation on 11 February 2019, when he had, again, measured his blood pressure. Dr Sathiyapal agreed that his version of the events of 10 February 2019 was that, on that day, Person B came into his consultation room with a knife in his pocket, with another man, and threatened him, and that, on that same day, Dr Sathiyapal's bag, containing a diary with his banking passwords in it and $4,000 in cash, was stolen from that consultation room. Dr Sathiyapal agreed that he believed that Person B and the man with him had taken the bag. He was asked what he did about the bag having been taken: A. I didn't do anything because at that time I was in Sydney, these are old loan accounts. I didn't go and take also. Q. You didn't do anything about it because you are lying about your bag being stolen? A. No, I am not lying. This is forming – as a lawyer you are forming. Without my knowledge it has been transferred, whatever you say I say I didn't transfer on my own. 1. Dr Sathiyapal was taken to the banking records which showed that $5,000 was transferred from one of his accounts into Patient A's account on 11 February 2019. He was also taken to the Westpac letter of 10 August 2021, which is set out above at [42]. Upon being taken to the text of that letter, Dr Sathiyapal said: A. I spoke again. I told them because I think they didn't hear me very well. I don't know. I didn't, I didn't lose the bag in the airport. I brought the bag, I lost it in the, in the, in the medical centre. That's the wrong thing. I read it, I called him and they they told…(not transcribable)…my mobile phone. I left it on the consultation too. That's wrong, I know. I am not satisfied with their, with their letter because they don't want to give 5,000 so they – it was too late and they have a document like this and you are going on that one. Q. Do you see that – A. I didn't lose anything in that airport. Q. Do you see that it goes on to say, Doctor, "You advise me that this bag contained a diary in which you had written your online banking login information, however you did not lose your mobile phone or wallet." Do you see that? A. No, I didn't lose the mobile phone. I told you the mobile phone I left in the Rope Crossing consultation table. I think the person – he must be from Scottish or from Ireland but my English sometimes he would not have understood. … Q. Now, Doctor, can you please go back to page 354 for me. Underneath the section I've just asked you about a moment ago it says "You advised me you did not notice the funds were missing until two years later when performing an account review for tax purposes". Do you see that? A. Yes, when you're doing that time, only I found it. Q. Then the person from Westpac goes on to say, "Reviewing our system data I was able to confirm the following: On 10 February 2019 at 11:06am a new payee was created through your online banking – A. Yeah. Q. --with the nickname [Patient A] A. Yeah, I have seen everything. Q. "On 10 February 2019 at 11.07am a payment was made to [Patient A] for $5,000 from your investment property loan account ending 299". A. Yeah. Q. This payment was authorised with a two factor authentication SMS to your mobile – A. Yes. Q. --ending in XXX A. I did authorise because the phone…(not transcribable)…there's no password, you can just rip it out and do it so they must have done it. That's…(not transcribable)…it is a type of an error coming under fraudulent and scamming. There are six types of error. I didn't transfer it. … Q. You've changed the version of events about what happened to your bag and your phone on 10 February because you now see that Westpac have confirmed that whoever made this transaction had access to your bank account and access to your mobile phone. A. Yeah. Q. So you have changed the version you've given in these proceedings compared to what you've told Westpac to try and explain that, haven't you? A. No, no, Westpac. I told the same thing, they have recorded it differently. That's all it – they didn't help me at all. 1. Dr Sathiyapal agreed that he did not change his online banking passwords immediately after 10 February 2019. He did not change them until two years later. 2. Under cross-examination, Dr Sathiyapal was, for much of the time, visibly uncomfortable about being questioned. In the face of repeated requests to answer the questions he was being asked, he sought to argue his case, express his feelings and divert the discourse away from the topic which counsel was asking about to the material he wished to emphasise. He was frequently avoidant and evasive. Several times, he contradicted his own evidence. He said that he had done various things in various consultations, and then conceded that he had no memory of doing them, but relied on his usual practice. He periodically said quite bizarre things. We take into account that witnesses commonly find being cross-examined stressful. However, Dr Sathiyapal was unusually uncooperative and evasive in cross-examination, which gave us the impression that he was not confident in his version of events. 3. Dr Sathiyapal began his evidence and cross-examination on 6 June 2023, in the afternoon. The cross-examination continued on 7 June 2023. The panel members observed that Dr Sathiyapal was repeatedly swallowing what appeared to be tablets throughout the morning. Late in the morning, Dr Sathiyapal was being asked about why he started Patient A on a 2 milligram dose of alprazolam in February 2018. The following exchange took place (transcript p 62): Q. When you started prescribing, okay, at the beginning. A. Yeah. Q. You started on 2 milligrams and you said you did that because you formed a view the patient might have high tolerance. How did you know the patient may have a high tolerance to this medication when you started prescribing it? A. I thought the smallest dose is 2 milligrams. That's what happened. Because I don't know about his chart [a reference to the MIMS entry on Kalma, a brand name for alprazolam]. Q. You'd agree with me, wouldn't you, that that's a different answer to the answer you gave only moments ago about why you started the patient on 2 milligrams, correct? A. The 2 milligrams I thought is the smallest dose I can start. Q. Doctor, my question to you is, you would agree, wouldn't you, that that is a different answer to the answer you gave only moments ago about why you started this patient on 2 milligrams? Rodger: I'm going to object to that. Witness: You're asking again, again the same question. It's [ir]relevant. Rodger: I don't know if your Honour wants the doctor to go outside. Witness: I don't want to go outside. I'm also getting heated. I get with heart trouble against the two medical practitioners. I might get heart attack if you ask same question again. I don't know that. I have said I have a lack of knowledge of this. I thought it is a small dose and also I didn't record it but I can't remember now. Maybury: I don't know if the objection is pressed. If it is, I'm happy to deal with it-- Witness: I'm going outside for some time. Maybury: --in front of the witness. I don't mind. 1. At that point, Dr Sathiyapal simply walked out of the hearing room. The luncheon adjournment was taken shortly after that, without Dr Sathiyapal returning. 2. After the luncheon adjournment on 7 June 2023, Dr Sathiyapal returned to the witness box and was again asked about the two different explanations he had given under oath for prescribing a 2 milligram dose of alprazolam to Patient A in February 2018. He said: A. I'm not understand because I am not well now. Again, again, asking the same question. I'm feeling I might go to hospital now. … A. I will try because I have a letter from the GP. If there is anything I have to go because I have ischaemic heart disease. 1. After some discussion, the matter was adjourned to 8 June 2023. Dr Sathiyapal went to St Vincent's Hospital. He was not available to resume his evidence on 8 June 2023. The matter was further adjourned to 29 August 2023. 2. On 29 August 2023, a report of Dr Carter was provided, and Dr Carter was questioned by the panel over an audio/visual link. 3. In his report (Exhibit R2), Dr Carter, who had been provided with the St Vincent's Hospital discharge summary, said that, on admission to St Vincent's Hospital, Dr Sathiyapal had been diagnosed with uncontrolled type 2 diabetes mellitus and ischaemic coronary artery disease. 4. Dr Sathiyapal had been aware, prior to his admission to St Vincent's Hospital, that he was living with ischaemic coronary artery disease, and he had sought to give evidence in this matter via AVL from Perth, Western Australia, prior to the beginning of the hearing. The medical evidence provided at that time did not show that Dr Sathiyapal's ischaemic coronary artery disease posed any impediment to him travelling to Sydney for the hearing. 5. In his report, Dr Carter said, of the results of Dr Sathiyapal's tests at St Vincent's Hospital on 7 June 2023: His blood glucose level (BGL) was high at 28.4 mmol/L (normal 3.5 to 7.5) and his HbA1c level (an indirect measure of his average BGLs over the previous three months) was extremely high at 16.6% (non-diabetic range 4% to 6%). This high HbA1c indicates that his average BGL over the previous three months had been in excess of 15-20mmol/L. Consequently, he would have had a very high BGL not only during the time of the Tribunal hearing but for at least two or three months beforehand. BGLs around 28 mmol/L are frequently associated with central nervous system effects such as cognitive impairment, poor concentration and headaches, and it is possible that any perceived confusion was also related to the uncontrolled diabetes (high BGLs). … In view of the very high HbA1c level, he would have been affected for at least the previous two to three months. 1. Dr Carter further said, in his report, that Dr Sathiyapal's condition would have affected his cognitive function and ability to concentrate and his capacity to answer repeated questions. Dr Carter also said that BGLs of the order detected in Dr Sathiyapal are frequently associated with irritability. 2. The following exchange occurred between Senior Member Cox (a general practitioner) and Dr Carter (transcript p 28): Q. …There was a question put to you about whether Dr Sathiyapal's medical condition upon admission to the hospital would have impacted on his cognitive function and/or his ability to concentrate. In answer to that, you've mentioned that blood glucose levels around 28 are frequently associated with central nervous system effects such as cognitive impairment, poor concentration and headaches. I just wanted to clarify for us how frequently these effects occur and are they – and the second part of that is are they acute or chronic effects from a high blood glucose level. A. They're more likely to occur if it's an acute effect than a chronic effect as the – if it's a slow increase in blood glucose levels after 28 it can have no central nervous system effects where it may have no significant …(break in audio)…CNS effects. … A. …I wouldn't be surprised if there were impairments in his cognition in view of the fact that he had some ketones in his urine. In addition it appeared to me that he was stressed. From the transcripts that I have been sent and I'm going to presume that one of the reasons that he was stressed related to ischaemic heart disease, coronary heart disease but that's a presumption I'm not in a position to say too much about that. A. …He also had some ketones which would have aggravated the situation but how much it would have aggravated the situation I can't quantify but if there were some problems with concentration just on the basis of the stress and the high glucose levels I would expect that there would have been a slight increase in aggravation because of the presence of the ketones as well. … A. So all I was really trying to say was that it is certainly possible that confusion that was apparent while he was answering the questions that I read in the transcripts may well have been, at least in part, caused by his high blood glucose levels. I certainly can't state that it was definitely due to that, but it is known that glucose levels that are raised to that degree have significantly detrimental effects on nervous system function. 1. Senior Member Aitken (a general practitioner), then asked Dr Carter a number of questions, including the following (transcript p 30): Q. I'm trying to get a sense then in terms of – I mean the degree of impairment in cognition that we're dealing with. Is it that subtle that it would not be detectable in normal conversation or with normal assessment of a patient or where you require specific testing to be done, neuropsychological testing to actually detect that change? A. Yes, it's a very individual matter. I would have expected all other things being equal, in other words take away concerns about coronary artery disease or other reasons why he might have been under stress in the witness box I would have expected him with a blood sugar level of 28 to at least initially be able to answer cogently and logically the questions that were put to him. However, over a period of time, particularly if there were other factors causing stress it would not surprise me that he may have become confused but certainly initially I would have expected him to be able to answer all of your questions appropriately. 1. Judge Cole and Dr Carter then had the following exchange (transcript p 31): Q. Professor Carter you said in response to one of Dr Aitken's questions that at the level that he reported to in hospital, 28, you expect him to be able to answer questions cogently and logically. Of course, we're talking about a hearing room setting, at least initially. But after a period of time, especially if there are other stressors, it wouldn't surprise you if he became confused. A. Yes. Q. I take it from that there's a possibility that he would have been able to answer the questions cogently and logically all morning or all day, but there's a possibility that he became confused? A. Yes. Blood sugar 28 doesn't automatically mean he is going to be confused, and particularly if his blood sugar had been fairly stable at around 28 a fair period of time. Q. And we just don't know that do we? A. We don't know that, but the brain adapts to that. Yep. 1. Following Dr Carter's evidence, Dr Sathiyapal resumed being cross-examined. There was no application for an adjournment arising from his medical condition. On 29 August 2023, the panel asked Dr Sathiyapal's counsel if she had any application arising from the test results and Dr Carter's report, and she said "Dr Sathiyapal does not want the proceedings to be abandoned and restarted". 2. When he resumed being cross-examined on 29 August 2023, the panel observed that Dr Sathiyapal's behaviour was not discernibly different from his behaviour on 6 and 7 June 2023. He continued to be avoidant, evasive and discursive in his responses to questions. He did not answer questions in the manner of a witness who was doing their best to answer truthfully. Whilst we agree with Dr Carter that Dr Sathiyapal found being cross-examined stressful, it was not apparent to us that his capacity to answer questions or his manner of answering questions changed in any way after his diabetes was identified and treated. We do not consider that Dr Sathiyapal was impaired in relation to the task of answering questions in the hearing by his heart condition or his diabetes on 6 or 7 June 2023 or on 29 August 2023. 3. Where Dr Sathiyapal's evidence differs from the evidence of Patient A or Person B with respect to the allegations in Complaint One, we prefer the evidence of Patient A and Person B. We feel an actual persuasion that Patient A's evidence concerning the actions of Dr Sathiyapal in the consultation room on 10 February 2019 was accurate on the balance of probabilities to the Briginshaw standard. The credibility issues in relation to Patient A were not such as to render all of her evidence unreliable. We also believe Person B's evidence in relation to the facts alleged in the particulars of Complaint One. Such credibility issues as emerged with respect to Person B were not such as to render Person B's evidence wholly unreliable, and his account of the events of 10 February 2019 was cogent and persuasive. Conclusion on the facts alleged in particulars 1 to 5 and particular 11 of Complaint One 1. We believe the evidence of Patient A with respect to the allegation in particular 1 of Complaint One that Dr Sathiyapal said to Patient A, during consultations in January 2019, words to the effect of "I'm going to Perth. You should leave your partner and kids and come with me" and "I'll pay for your services". We find, on the balance of probabilities to the Briginshaw standard, that particular 1 of Complaint One has been proven. 2. We also believe Patient A with respect to particular 2 of Complaint One; that is, that Dr Sathiyapal said to her during the consultation of 10 February 2019 words to the effect of "Oh you are all dressed up for me… I just want to take a picture of you". 3. We further believe Patient A that, on 10 February 2019, during a consultation, Dr Sathiyapal placed his hand down the front of Patient A's top, inside her bra and grabbed her left breast. 4. Particular 4 of Complaint One is as follows: 4. By reason of the actions set out in particulars 3(a) to 3(b) above, the practitioner: a. engaged in steps without clinical reason or appropriate explanation; and/or b. engaged in inappropriate behaviour of a sexual nature towards Patient A. 1. We have found that Dr Sathiyapal grabbed Patient A's left breast, under her clothes. No clinical reason or appropriate explanation was given for that conduct. Dr Sathiyapal said that Patient A complained of breast pain but that he did not examine her or touch her on the breast. We reject his evidence that Patient A complained of breast pain. She denied it. We find that the grabbing of Patient A's breast by Dr Sathiyapal was behaviour of a sexual nature. The comments alleged in particulars 1 and 2, which were inappropriately personal, and, in the case of the comments in particular 1, sexually suggestive, support that finding. 2. Person B gave evidence in his affidavit that, on 10 February 2019, Dr Sathiyapal said "Please don't go to the police. Look at the colour of my skin. Please, I'm a black man, I can't go to gaol. If I go to gaol they'll kill me. I'll give you money." We accept Person B's evidence. 3. Person B also gave evidence in his affidavit that Dr Sathiyapal electronically transferred $5,000 into Person A's bank account at 11:06am on 10 February 2019 in exchange for Patient A and Person B refraining from going to the police. We accept Person B's evidence and we find that Dr Sathiyapal made this transfer from the computer in his consulting room in the presence of Person B. 4. We reject all other explanations given by Dr Sathiyapal and we reject Dr Sathiyapal's explanation that the Westpac investigator may not have understood what Dr Sathiyapal was saying when he was interviewed. 5. Dr Sathiyapal's story in his affidavit, in summary, was that he left Person B and another large man in his consulting room for 20 minutes with a bag containing $4,000 and a diary containing all of his bank account information and passwords, together with his mobile phone, which did not have a lock on the screen. He said that the bag was stolen, but the phone was not. The intended inference was that, after Dr Sathiyapal left the room, Person B or his companion found the bag, read the diary, used the consulting room computer to log onto Dr Sathiyapal's online banking profile with Westpac and transferred $5,000 from Dr Sathiyapal's account to Patient A's account, using the two factor identification code sent by Westpac to Dr Sathiyapal's mobile phone. It was Dr Sathiyapal's evidence that he did not notice that $5,000 was missing from that Westpac account for more than two years. This account is inherently highly improbable, and we do not believe it. We note that the clinical notes from 10 February 2019 record that Patient B's notes were opened at 11:05:43am, and notes were subsequently entered by Dr Sathiyapal. The Westpac report says that the bank transfer of $5,000 was authorised by two factor identification sent to Dr Sathiyapal's mobile phone and made at 11:07am on 10 February 2019. In his affidavit, Dr Sathiyapal said that he made notes in Patient A's clinical notes after Person B had left his consulting room. The notes in question say that Patient A's notes were opened at 10:37:49. The time line does not support Dr Sathiyapal's account. It is, however, consistent with Person B's account. 6. Dr Sathiyapal expressly resiled from the story set out in the Westpac letter of 10 August 2021, which was that he lost his bag in an airport whilst travelling from Sydney to Perth, that the bag contained a diary with his banking log-in details and further, that he did not lose his mobile phone or wallet. Clearly, as we have said at [43], that account is not true either. 7. Particular 11 of Complaint One alleges that: The practitioner provided false and misleading information on 8 March 2021, in correspondence to Commission, when he denied any involvement in the electronic transfer of $5,000 from the practitioner's bank account on 10 February 2019, to Patient A. 1. Dr Sathiyapal's letter of 8 March 2021 to the HCCC said, among other things (see Exhibit A1 at page 146): I deny giving any money to [Patient A] or her partners. 1. For the reasons set out above, we find that this statement was false and misleading. Dr Sathiyapal did give Patient A $5,000, by transferring it into her bank account electronically. 2. We find that the facts alleged in particulars 1, 2, 3, 4, 5 and 11 of Complaint One have been proven against Dr Sathiyapal. Unprofessional conduct 1. Complaint One is a complaint of unsatisfactory professional conduct under s 139(1)(l) of the National Law on the basis of 'improper or unethical conduct' against Dr Sathiyapal. 2. The National Law provides, in ss 39, 40 and 41: 39 Codes and guidelines A National Board may develop and approve codes and guidelines— (a) to provide guidance to the health practitioners it registers; and (b) about other matters relevant to the exercise of its functions. Examples— 1 A National Board may develop guidelines about the advertising of regulated health services by health practitioners registered by the Board or other persons for the purposes of section 133. 2 To assist a health practitioner in providing practice information under section 132, a National Board may develop guidelines about the information that must be provided to the Board. 40 Consultation about registration standards, codes and guidelines (1) If a National Board develops a registration standard or a code or guideline, it must ensure there is wide-ranging consultation about its content. (2) A contravention of subsection (1) does not invalidate a registration standard, code or guideline. (3) The following must be published on a National Board's website— (a) a registration standard developed by the Board and approved by the Ministerial Council; (b) a code or guideline approved by the National Board. (4) An approved registration standard or a code or guideline takes effect— (a) on the day it is published on the National Board's website; or (b) if a later day is stated in the registration standard, code or guideline, on that day. 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession. 1. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, the Court of Appeal said, at p 638: 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 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 in the Tribunal. 1. In each matter, the Tribunal must make an evaluative judgment as to the nature and seriousness of the conduct (Chen v Health Care Complaints Commission [2017] NSWCA 186). Dr Young's expert report assists the Tribunal in that task. 2. In his report, Dr Young said the following, in relation to the assessment of competent professional practice (Exhibit A1 p 105): 1. At the core of good General Practice is care that is comprehensive and continuous in nature, delivered in a patient-centred way that is well informed, evidence based and safe. … 3. Globally, when benchmarking the competent practice of any doctor, experts refer to Good Medical Practice: A Code of Conduct for Doctors in Australia. ['the Code'] 4. Specifically, when looking at a General Practitioner and their workplace, reference is made to the Standards for general practices document from the Royal Australian College of General Practitioner (RACGP). The Fourth Edition is applicable to the time in question (published October 2010). … 1. Dr Young said that the statement "I'll pay for your services", in context, suggested an invitation to pay for a sexual relationship (Exhibit A1 p 113). 2. Dr Young referred to Sexual Boundaries: Guidelines for doctors which says (Exhibit A1 p 113): In managing sexual boundaries a doctor should be aware that: * sexualised behaviour includes any words or actions that might reasonably be interpreted as being designed or intended to arouse or satisfy sexual desire. 1. Dr Young said (Exhibit A 1 p 113): 41. The Code outlines – - Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care (8.2.2) 42. Dr Sathiyapal's suggestion that [Patient A] dressed up for him is egotistical and improper. This suggestion, and wanting to take a picture of her, is a further example of sexualised behaviour includes any words or actions that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire. 43. A practitioner of an equivalent level has insight into boundaries and conflicts and avoids such situations. They are aware of countertransference issues and implement self-reflective strategies to manage such issues. Competent GPs always maintain both professional and sexual standards. 44. Assuming [Patient A's] version of events, it is my opinion that in relation to making the aforementioned comments to [Patient A] during the consultations in or around early 2019 Dr Sathiyapal's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct. 1. In relation to the allegation that Dr Sathiyapal grabbed Patient A's breast, Dr Young quoted the extract from the Sexual Boundaries Guidelines reproduced above at [86] and said (Exhibit A1 p 115): 52. Competent GPs always maintain both professional and sexual standards, as well as examining patients in a standard accepted professional manner. They also treat panic attacks appropriately and are able to measure a pulse rate from the wrist. 53. Assuming [Patient A's] version of events, it is my opinion that in relation to Dr Sathiyapal's conduct on 10 February 2019, in taking photos of her on his mobile phone, putting his hand down the front of her top, inside her bra, and grabbing her left breast, in response to her telling him that her heart was racing (due to a panic attack) and "Checking her chest" without using a stethoscope and without wearing gloves, fell significantly below the standard expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct. 1. With respect to the attendance of Person B in Dr Sathiyapal's consulting room on 10 February 2019 and the transfer to Patient A of the sum of $5,000, Dr Young said, among other things (Exhibit A1 page 117): 68. A competent GP deals with patient threats by assertively putting in place a response as outlined above, most importantly setting immediate boundaries for the patient through de-escalating strategies and keeping the staff and themselves safe. A GP in such circumstances would have got a staff member to call in the police immediately. 69. Bribing a patient is an obvious breach of professional conduct and displays non-assertive, thoughtless, naïve, panic behaviour as well as poor patient centred skills in dealing with a difficult patient…and [poor] ability [to] deal with conflict in a drug seeking patient. 70. So, it is my opinion that assuming [Person B's] version of events and the evidence from Westpac Banking Corporation, that Dr Sathiyapal's conduct in depositing $5,000 into [Patient A's] bank account, fell significantly below the standard expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct. 1. With respect to whether Dr Sathiyapal conducted an adequate and appropriate assessment of Patient A prior to prescribing alprazolam to Patient A for the first time on 25 February 2018, Dr Young said that Dr Sathiyapal did not conduct an appropriate assessment (Exhibit A1 p 120). 2. Dr Young said that there was no formal assessment nor evidence of clinical reasoning in Dr Sathiyapal's progress notes for Patient A to explain why he chose alprazolam (Exhibit A 1 p 120). 3. Dr Young also noted that Dr Sathiyapal failed to monitor Patient A's use of alprazolam, seemingly issuing scripts on demand. Dr Young described Dr Sathiyapal's prescription on 10 February 2019 with five repeats as incredible (Exhibit A 1 p 121). 4. As to Dr Sathiyapal's prescription of alprazolam in combination with tramadol on 22 June 2018, 26 August 2018 and 4 September 2018. Dr Young said (Exhibit A 1 p 121): 96. It is well known that the combination benzodiazepines and opioids can lead to fatal outcomes, yet Dr Sathiyapal prescribing appears blasé in his regard to this risk, especially given [Patient A's] known addiction issues and overdose history. Competent GPs prescribe safely, in a patient-centred manner, and avoid risk. 1. Dr Young referred to the National clinical guidelines and procedures for the use of buprenorphine in the treatment of opioid dependence and the product information sheet for Suboxone (which contains buprenorphine). 2. Dr Young set out some of the information available on the NPS MedicineWise website about alprazolam (Exhibit A 1 p 110): 33. Most importantly, it points out that:- * Alprazolam has an Authority required PBS listing for the treatment of panic disorder when other treatments have failed or are inappropriate. * Alprazolam can also be used for anxiety, although it is not PBS listed for this indication, with the starting and maximum dose lower than for panic disorder. * Benzodiazepines such as alprazolam should be reserved for short-term use. From 1 February 2014 alprazolam was rescheduled from Schedule 4 to Schedule 8 in Australia in response to increasing illicit use and evidence of alprazolam dependence. * Alprazolam is more toxic than other benzodiazepines in overdose. * The initial recommended dose for panic disorder is 0.5 – 1.0mg at night, increasing by 0.25-1mg every 3 days until symptoms are controlled. Some evidence suggests no need to use doses > 4mg daily; however, the recommended maximum daily dose is 10mg daily. * Misuse of alprazolam is common in association with opioids. As part of Choosing Wisely Australia, the Royal Australian College of General Practitioner (RACGP) recommends avoiding prescribing benzodiazepines to patients with a history of substance abuse. * Prescribers must seek a permit or authority from their relevant State or Territory health department before prescribing alprazolam to persons who are drug dependent. 1. The product information sheet for Suboxone says, among other things, under the heading Interactions with other medicines (Exhibit A1 p 122): Benzodiazepines: This combination may result in death due to respiratory depression of central origin; therefore, patients must be closely monitored when prescribed this combination, and this combination should be avoided where there is a risk of misuse. 1. Dr Young said (Exhibit A 1 p 122): 105. I believe it was inappropriate for Dr Sathiyapal to prescribe Alprazolam to [Patient A] concurrent with her Opioid Substitution Treatment (Suboxone) not only because of the risk of fatality just outlined, but because it showed a lack of respect towards a GP with more training in Addiction Medicine than himself. 106. Essentially, prescribing alprazolam to [Patient A], while she was enrolled in the NSW Opioid Treatment Program sabotaged this treatment, and showed disdain for other professionals. It is hard to see as anything other than arrogance verging on grandiosity. 1. Dr Young said that Dr Sathiyapal enabled Patient A's addiction, and put her life at risk. 2. Dr Young was critical of Dr Sathiyapal prescribing alprazolam without holding an authority under s 28 of the Poisons and Therapeutic Goods Act 1966 (NSW), noting that the software used by Dr Sathiyapal prompted him to consider the issue, and all he needed to do was ask a colleague what that meant or search the internet if he was unsure. Instead, he gave a false answer to the practice software's prescribing prompt many times (Exhibit A 1 p 123). 3. As to Dr Sathiyapal's prescribing of alprazolam to Person B, Dr Young said that, if he was prescribing it for use by Patient A, then that was illegal and unprofessional. If he was prescribing it for use by Person B, then he failed to perform an appropriate assessment. Dr Sathiyapal did not have a justification for prescribing alprazolam for Person B's use. It is not appropriate to prescribe in response to threats (Exhibit A 1 p 126-127). 4. Dr Young noted that Person B attended on Dr Sathiyapal for more than 100 consultations between February 2019 and November 2020, with a frequency of up to 13 consultations per month, and that Dr Sathiyapal prescribed alprazolam on the majority of those occasions. Dr Young described the prescribing as "excessive and incautious and placing the patient at risk. Dr Sathiyapal appears to be enabling prescription drug abuse". (Exhibit A1 p 126). 5. Dr Young said that, if it is assumed that Dr Sathiyapal prescribed alprazolam for Person B's own use, then an early referral to a Drug and Alcohol facility would have been appropriate. None took place. This was below the applicable standard (Exhibit A 1 p 127). 6. Dr Young said that Dr Sathiyapal's prescribing of alprazolam to Person B without an authority under s 28 of the Poisons and Therapeutic Goods Act 1966 was inappropriate and significantly below the applicable standard (Exhibit A 1 p 127). 7. Dr Young referred to the Code, which says, in relation to medical records: Maintaining clear and accurate medical records is essential for the continuing good care of patients 1. The Code says that this includes: Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management. 1. With respect to Dr Sathiyapal's clinical records, Dr Young noted that they are not of a good standard, and said that they were not clear, as required by the Code. Dr Young said that Dr Sathiyapal's use of autofill was an inadequate substitute for detailed notes. Dr Young said: 168 Having said this, being computer generated Dr Sathiyapal's [notes] are legible and up to date, and in the most part report details of clinical history, clinical findings, investigation, though information given to the patient and planned management is usually lacking. … 173. So, it is my opinion that Dr Sathiyapal's overall clinical records for [Patient A] and [Person B] are not adequate and at times inappropriate. In this regard Dr Sathiyapal's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct. 1. We accept Dr Young's evidence. 2. Dr Young gives his opinions regarding Dr Sathiyapal's conduct in terms of a series of failures to meet the applicable professional standard for a general practitioner. 3. Complaint One is a complaint of improper or unethical conduct. 4. In Health Care Complaints Commission v Liu [2016] NSWCATOD 133, the Tribunal said: 54. Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term "impropriety" in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. 1. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190, the Tribunal said: 31. The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession". 1. We adopt these descriptions of 'improper' and 'unethical'. We determine that the conduct alleged in each particular of Complaint One constitutes improper conduct. If follows that all of the particulars together are also improper conduct. 2. We also consider that the conduct alleged in particulars 1, 2 and 3 constituted conduct which was unethical. It was conduct contrary to the Code, and the Sexual Boundaries guidelines. It was conduct which sought to exploit Patient A, who was a vulnerable patient on account of her drug addiction and mental health issues, for the sexual gratification of the practitioner. 3. We further consider that the prescribing of alprazolam to both Patient A and Person B in the very large quantities proven in all of the circumstances was unethical. Dr Sathiyapal variously suggested that he did this out of frustration, out of the need to get Patient A out of his consulting room on busy days, out of a desire to help Patient A and out of fear of Person B. At one point, Dr Sathiyapal indicated that he thought that the drugs were being sold rather than taken by Patient A or Person B. We determine that the prescribing of a benzodiazepine for any of these reasons is unethical. It contravenes the Code and promotes drug addiction or improper use of prescription drugs. At worst, Dr Sathiyapal put lives at risk. 4. We find that Dr Sathiyapal is guilty of the allegations in Complaint One. Complaint Two 1. Complaint Two is as follows: Complaint Two 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. Particulars of Complaint Two 1. Complaint One, Particulars 1-11 are relied upon individually or in combination with other particulars, as other improper conduct for the purposes of section 139B(1)(l). 2. In the alternative, when two or more of the particulars of Complaint One are taken together, a finding of professional misconduct is justified. 1. In his Reply, the respondent said: 3. As to Complaint Two, the Respondent: (a) admits that he is guilty of professional misconduct in that he engaged in more than one instance of unsatisfactory professional conduct (namely particulars 6 to 10 of Complaint One) such that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation; (b) denies particular 1 of Complaint Two that he engaged in improper and/or unethical conduct; and (c) admits particular 2 of Complaint Two that a finding of professional misconduct is justified when particulars six to ten of Complaint One are taken together. 1. Dr Sathiyapal admits that he is guilty of professional misconduct, on the basis set out in his Reply. 2. We have found that all of the allegations in Complaint One have been proven. In addition to the basis upon which Dr Sathiyapal admits professional misconduct, we also find him guilty of professional misconduct on the basis of each of the particulars taken individually except Particular 4, which is not an allegation of fact, but a characterisation of the allegations in Particular 3. Orders 1. We will make the following directions: Dr Sathiyapal is guilty of unsatisfactory professional conduct as alleged in Complaint One and professional misconduct as alleged in Complaint Two. 1. The Health Care Complaints Commission is to serve on Dr Sathiyapal all of the material upon which it intends to rely, and its written submissions in relation to the disciplinary orders to be made, on or before 23 February 2024. 2. Dr Sathiyapal is to serve upon the Health Care Complaint Commission all of the material upon which he intends to rely, and his written submissions in relation to the disciplinary orders to be made, on or before 29 March 2024. 3. The Health Care Complaints Commission is to serve upon Dr Sathiyapal any material in reply, and any written submissions in reply, on or before 12 April 2024. 4. Both parties are to file in the Tribunal five copies and four USBs containing all of their material and written submissions in relation to the disciplinary orders to be made, on or before 12 April 2024. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 February 2024