Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Wijetunga [2024] NSWCATOD 25 Hearing dates: 20 February 2024 Date of orders: 11 March 2024 Decision date: 11 March 2024 Jurisdiction: Occupational Division Before: Balla ADCJ, Principal Member Prof J Saunders, Senior Member Dr S Cowap, Senior Member D Telford, General Member Decision: 1. Dr Wijetunga's registration is cancelled with immediate effect. 2. Dr Wijetunga may not make an application for review under Division 8 of Part 8 of the National Law for a period of two years from the date of these orders. 3. Dr Wijetunga is prohibited from providing a health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) until such time as he is permitted to register as a medical practitioner. 4. Dr Wijetunga is to pay the costs of the Health Care Complaints Commission. Catchwords: OCCUPATIONS — medical practitioners — criminal charges — criminal convictions — impairment by methamphetamine use disorder — suitability — protective orders Legislation Cited: Health Care Complaints Act 1993 (NSW), s 4 Health Practitioner Regulation National Law (NSW), ss 3, 3A, 5, 55, 130, 139B, 149C, 165J, Schedule 5D Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362 Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v De Lore [2020] NSWCATOD 72 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 Health Care Complaints Commission v Geary [2018] NSWCATOD 15 Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Morris [2022] NSWCATOD 120 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Shipley [2020] NSWCATOD 128 New South Wales Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Warnakulasooriya Patabandige Ruwantha Wijetunga (Respondent) (No Appearance) Representation: Solicitors: M Rogers (Health Care Complaints Commission) (Applicant) Respondent (Self-Represented) File Number(s): 2023/00236493 Publication restriction: Nil REASONS FOR DECISION 1. By an Application filed on 25 July 2023 and an Amended Complaint filed on 16 February 2024, the Health Care Complaints Commission (the HCCC) seeks disciplinary findings and orders against Dr Wijetunga pursuant to the Health Practitioner Regulation National Law (NSW) (the National Law). Non appearance of Dr Wijetunga 1. At a directions hearing on 18 August 2023, this matter was listed for hearing for two days commencing on 20 February 2024. At the commencement of the hearing Dr Wijetunga did not appear. 2. Section 165J (3) of the National Law provides that the Tribunal can proceed in the absence of the doctor provided that the doctor has been given notice of the hearing. 3. We were satisfied that Dr Wijetunga had been given notice of the hearing based on the following findings: 1. Dr Wijetunga had been informed of the hearing date by the HCCC by letter dated 8 September 2023 which had been served on him by a process server. 2. There was correspondence and telephone discussions between Dr Wijetunga and the HCCC from 8 September 2023 to 19 February 2024 concerning the preparation of the matter for hearing, the arranging of a refresher medical examination and the service of the material on which the HCCC proposed to rely at the hearing, including its written submissions. Several of the Tribunal's emails refer to the hearing date. 3. Dr Wijetunga emailed the HCCC on 16 February 2024. He asked "Is the Tribunal hearing next Tuesday? If so, where and what time is my attendance required." 4. In its email reply on the same day the Health Care Complaints Commission confirmed that the hearing was to commence on the following Tuesday and quoted that part of the Tribunal's Notice of Listing which set out the time and place for the hearing. The HCCC informed Dr Wijetunga that his attendance was not compulsory, however if he disagreed with any of the particulars of the Complaint or disagreed with any of the Orders sought or if there was any other matter he wanted the Tribunal to consider in making its decision he should attend to make sure the Tribunal heard from him. 5. By email dated 19 February 2024 Dr Wijetunga informed the HCCC that he would not be attending the hearing and that he resigned from the Medical Council. 6. The documents in evidence disclose that Dr Wijetunga was before the Local Court on 7 February 2024 in relation to an incident which occurred on 4 September 2023. On that day the matter was adjourned to 3 April 2024, and Dr Wijetunga was granted conditional bail from 7 February 2024 to 3 April 2024. We are accordingly satisfied that Dr Wijetunga was not in custody on 20 February 2024. 1. We accordingly decided to proceed in the absence of the doctor. Outline of the Complaint 1. The Amended Complaint identifies four separate complaints made against Dr Wijetunga: 1. On 1 March 2022 at Central Local Court Dr Wijetunga was convicted of five offences (Ground One). 2. He failed to notify the Medical Board that he had been charged with various criminal offences (Ground Two). 3. He has a mental impairment, disability, condition or disorder, including a methamphetamine use disorder, that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession of medicine (Ground Three). 4. He is not a suitable person to hold registration as a medical practitioner (Ground Four). Factual Findings 1. We accept: 1. The criminal history and the facts as recorded by the police in the documents which have been produced by the New South Wales Police Force. There is no evidence to the contrary, indeed the evidence is to the effect that Dr Wijetunga pleaded guilty to most, if not all, of the offences with which he had been charged other than the charges arising out of the incident on 24 August 2020. 2. The facts contained in the various hospital and medical reports in evidence. They are contemporaneous records and there is no evidence to the contrary. 1. The history leading up to these proceedings is lengthy. We have highlighted each date an offence was committed and each date on which Dr Wijetunga was charged to make it easier to understand which matters are relied on in the Complaint. 2. Dr Wijetunga is 42 years of age. He was born in Sri Lanka and in 2006 he obtained a Bachelor of Medicine/ Bachelor of Surgery in Nepal. On 23 July 2012 he was first registered in Australia to practise as a trainee with supervision. He initially worked in various hospital settings and then from about 2018 he worked in a general practice setting. 3. The evidence establishes that Dr Wijetunga started illicit drug use in March 2019. 4. On 16 September 2019 Dr Davis, who was then his treating general practitioner, recorded that Dr Wijetunga had started using Ice fortnightly in March 2019 and it had not affected him much. After a break in May he started injecting it 3 to 4 times a week. He exhibited some paranoia but denied any hallucination or psychosis. 5. This is consistent with the history given by Dr Wijetunga on admission to St Vincent's Hospital on 18 October 2019, where it was recorded that his stimulant use had been increasing since March when he had personal issues and he separated from his wife. He had started with Ritalin obtained from a friend but by October he was using crystal methamphetamine daily, being a mixture of smoking and injecting. He was also using GHB once a fortnight. He had walked long distances across Sydney while barefoot and believed a curse had been placed on his family. The hospital suggested he approach a private addiction treatment facility. 6. On 8 November 2019 Dr Davis referred Dr Wijetunga to St Vincent's Hospital. The referral says: Ruwan has been injecting CMA 10 points over last 2 weeks. Last use one point last night. Used some valium and restavit. Had some GHB, last week unsure what it was however. No heroin but had used endone ?2 days ago for flank pains. Poor sleep. Confused thought. Paranoid that his parents are in a hotel in Potts Point - they live in Sri Lanka. He has been barricading himself in his flat. Worried that his documents are being tampered with and his identity is at risk Has lost 12kg weight. 1. On admission Dr Wijetunga was certified a mentally ill person pursuant to the Mental Health Act 2007 (NSW). The reported history was noted as "paranoid, erratic, delusions his identity is being stolen, that others are targeting him". They concluded he was "acutely psychotic, requires admission as mentally ill due to risk of harm to self or others". 2. Dr Wijetunga was discharged on 19 November 2019. The discharge summary relevantly says: Progress Mr Wijetunga was initially admitted … and later transferred to Caritas on 11/11/19. While in Caritas Mr Wijetunga was commenced on olanzapine 10 mg nocte. Mr Wijetunga was able to show insight into his psychosis and was able to understand the correlation between his paranoid delusions as well as increase CMA use. During the admission a family meeting was carried out with Mr Wijetunga parents, ex partner and friend. Mr Wijetunga agreed he would trial not using CMA following discharge. Mr Wijetunga's family were happy for him to be discharged into their care with the plan to return to Sri Lanka to be seen by a psychiatrist. Mr Wijetunga currently denies thoughts of harm to self and others. He was successfully able to have escorted leave with his family and staff. MSE on discharge: Ruwan presented as pleasant and polite, He reported his mood as "ok" which was congruent with a reactive affect. He didn't have any formal thoughts disorder and did not report any thoughts of self harm or harm to others. Ruwan didn't have any psychotic symptoms and was looking forwards to be discharged in his parents care. On final review he dint have any evidence of pervasive mood disorder nor psychosis and there was no grounds to detain him under the mental health act. Ruwan has plans to return to Sri Lanka with his family on 4/12/19. 1. On 14 November 2019 St Vincent's Hospital notified the Medical Council that Dr Wijetunga had been "admitted on 8.11.19 as an involuntary patient (mentally ill) to Caritas, St. Vincent's Hospital Darlinghurst with an acute psychosis related to methamphetamine use or dependence. He remains as an involuntary patient under the care of Dr Matthew Cullen, psychiatrist. Treatment with antipsychotics is ongoing. He is ambivalent about abstaining from methamphetamines in future and is being assisted to find supports to allow him to address his substance use problem. I have recommended that he notify the medical council that he is an impaired registrant." 2. On 28 November 2019, with the consent of Dr Wijetunga, the Medical Council imposed the following conditions on his registration: Practice Conditions: 1 Not to practise medicine. 2 To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 1. On 28 January 2020, Dr Wijetunga was arrested and charged with two counts of intentionally or recklessly destroy/damage property under s 195(1)(a) of the Crimes Act 1900 (NSW) (the Crimes Act). The maximum penalty for each offence was five years imprisonment. The charges arose out of two incidents which had occurred three days earlier on 25 January 2020. The Police Facts Sheet says: The accused currently rents an apartment … where the victim is the building manager. SEQUENCE ONE - Malicious Damage At about 8am on Saturday the 25th January 2020, the accused has attempted to enter the building via the back door entrance that leads through to the garden. The door is completely glass and opens up to the back of the front foyer. The accused stands around the back entrance for some time pacing back and forth, then goes into the backyard and takes a large metal item. The accused then hits the glass door several times causing it to shatter and create a large hole. He then leaves the area. SEQUENCE TWO - Malicious Damage At about 3pm on the same day, the accused enters into the main foyer … and loiters around the area for a few minutes. The accused walks around the foyer and begins to pull signs off the wall. He then attempts to take the elevator button cover off the wall by using an unknown tool. After a short time, the accused rips the cover off the wall and throws in on the ground with the wires being exposed. 1. On 29 January 2020, Dr Wijetunga was again arrested and charged with two counts of intentionally or recklessly destroy/damage property under s 195(1)(a) of Crimes Act. The maximum penalty was five years imprisonment. After noting that "On the 28th January 2020, the accused was granted bail in relation to his previous charge. The accused has no regard for his bail conditions or the judicial system as he has re­ offended and breached the following conditions within 24 hours of having entered them" the offences were described as follows on the Police Facts Sheet: SEQUENCE ONE - Malicious Damage About 10:40pm on Wednesday the 29th January 2020, the accused entered the council owned park … The accused had possession of a large metal pole that he has used to damage a number of coloured lights that are located within in the park. These lights are totally destroyed and will require replacement. About 10:50pm the accused then leaves the park and walks [to the building where he was living] and used the buzzer to call unit 525. The occupants inside the unit observed the accused on the camera and have not answered the call. They observed the accused to be holding the large metal pole before walking away after a short time. SEQUENCE TWO- Malicious Damage About 10:50 the same day, the accused has walked walks [to the building where he was living] and approached the car park entrance … The accused has then used the metal pole to damage the intercom used by vehicles to enter the premises and a CCTV camera located on the front of the car park. SEQUENCE THREE - Breach of Bail On Tuesday the 28 January 2020, the accused … entered the following strict bail conditions: 1. You must not do any of the following to [the victim]: … C) intentionally or recklessly destroy or damage any property that belongs to or is in [his] possession … 4. To surrender passport to the Mascot Police station on 29 January 2020 and not to apply for another passport. The accused intentionally damaged property belonging to the victim … as outlined in his bail conditions. The accused has failed to surrender his passport to Mascot Police station. The accused explained to police that the passport is "currently with a friend for safe keeping." 1. The charges which arose out of the incidents which occurred on 25 and 29 January 2020 were before the Local Court on 30 January 2021. On 31 January 2021 the Court ordered a Mental Health Assessment. Dr Wijetunga was taken by police officers to the Emergency Department at St Vincent's Hospital later that day. The hospital concluded that Dr Wijetunga did not meet the criteria for involuntary detention, he was certified psychiatrically and medically fit for custody and he was returned to the custody of Corrective Services. 2. On 31 January 2020, after displaying bizarre behaviour in custody, Dr Wijentunga was assessed by Justice Health at Surry Hills Police Centre Correctional Cells via audio visual link. They noted that he displayed features of an untreated paranoid psychosis in the context of a marked decline in functioning and behaviour with attached substance use problems. While his condition remained untreated he was at elevated risk of serious harm to himself and others and further decline in his mental state. They recommended he be referred, under s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW), to Concord Hospital. 3. Dr Wijetunga was sent to Concord Hospital and then transferred to the psychiatric unit at Royal Prince Alfred Hospital. On admission he was thought disordered, paranoid with persecutory themes about the court and had poor insight. His psychosis improved and he received ongoing review and input from the psychiatry team. They assessed him to have adequate capacity to make the decision to discharge from hospital on 19 February 2020. 4. At the end of February 2020 Dr Wijetunga went to Sri Lanka to stay with his family and returned to Australia at the end of June 2020. While in Sri Lanka he wrote to the Medical Council and expressed an interest in returning to practice. The Medical Council arranged an examination with Dr Atherton, a consultant psychiatrist, on in April 2020 by video conference. On 12 June 2020 the Medical Council informed Dr Wijetunga that "The Council has decided that once you are back in Australia that you attend an Impaired Registrants Inquiry (IRP) following the appointment with Dr Atherton, who will provide the Council with another report." 5. Dr Wijetunga attended an examination with Dr Atherton on 24 July 2020. 6. On 24 August 2020, Dr Wijetunga was stopped by police who asked whether he had any drugs and he provided them with two alprazolam tablets and said they had been prescribed by his psychiatrist in Sri Lanka. He said he would bring the prescription to Redfern Police Station on the next day, 25 August 2020. He did not do so. On 11 September 2020 he was charged with: a) Possess/attempt to, prescribed restricted substances under s 16(1) of the Poisons and Therapeutic Goods Act 1996. Maximum penalty 20 penalty units or 6 months imprisonment or both b) Possess prohibited drug under s 10(1) of the Drug Misuse and Trafficking Act 1985. Maximum penalty 20 penalty units or 2 years imprisonment, or both. On 23 November 2020 the charges were before the Local Court and they were withdrawn. 1. The Impaired Registrants Panel inquiry was held by video conference on 16 September 2020. The Panel noted that on the morning of the hearing Dr Wijetunga had advised that he would not be attending as he had a much more important matter to attend to, to do with "Identity Theft" and that making phone calls about this was more important to him than being able to work. 2. On 2 November 2020 Dr Wijetunga failed to renew his registration. 3. On 18 November 2020 Dr Wijetunga applied to fast track his re-registration. 4. On 29 August 2021 Dr Wijetunga drove his vehicle off the road and wedged the vehicle in a deep ditch. Dr Wijetunga told the police that he had decided to drive as he just wanted to get away. An oral fluid test returned a positive indication for methamphetamine. Dr Wijetunga admitted he had used Ice three days earlier. He was arrested for the purposes of a secondary oral fluid test which disclosed the presence of methamphetamine. On 19 September 2021 he was charged with driving a motor vehicle with illicit drug present in oral fluid, methamphetamine contrary to s 111(1)(a) of the Road Transport Act 2013 (NSW). On 3 November 2021 Dr Wijetunga was fined $300 and disqualified from driving for 3 months. 5. On 2 September 2021, Dr Wijetunga was arrested and charged with intentionally or recklessly destroy/damage property under s 195(1)(a) of the Crimes Act. The maximum penalty was five years imprisonment. The charge arose out of an incident which had occurred earlier that day in Zetland. The Police Facts Sheet says: On Thursday the 2nd September 2021 just before 7PM the accused was in the fire escape stairwell [and] … turned on the fire hose, causing water to gush down the stairs. The flowing water was seen by a witness … [and] two other residents … The witness … enquired "is everything okay" to which the accused did not answer. The witness asked "do you live here". The accused replied "yes". The witness said "can you turn off the water" however the accused did not reply. The witness asked "can I tum off the water" to which the accused replied "yes". The witness … turned off the fire hose. The accused stepped towards two safety signs that were positioned above the fire hose on the wall. He started to pick away at these signs with a key, causing bits of plastic to fall off them. This was filmed by the witness. Police were called and arrived a short time later … Inside the stairwell, there was puddles and water on the concrete stairs. Police observed a red fire hydrant stuck between the slats of the metal wall of the stairwell, in between levels eight and nine. This caused damage to the fire hydrant and also the wall. Police located the accused … who was placed in handcuffs and lead downstairs. The accused was arrested and cautioned. The accused admitted to having consumed illegal drugs prior to the incident. When asked if he turned the water on, he said "yes". When asked who forced the fire extinguisher in between the metal wall on the stairs, the accused replied "I did that". 1. On 22 September 2021, Dr Wijetunga was arrested and charged with two counts of intentionally or recklessly destroy/damage property under s 195(1)(a) of the Crimes Act. The maximum penalty for each offence was five years imprisonment. The charges arose out of incidents which had occurred between 2.30 am and 3.55 that morning in the car park of the building in Zetland in which Dr Wijetunga lived. The Police Facts Sheet says: The location has a secured parking garage only accessible to residents of the location with an access key or guests of residents who are granted access. The parking garage is secured by multiple large, reinforced roller shutter doors allowing vehicle access, egress, and movement around the parking area … About 2:30 am on Wednesday 22nd of September 2021, the accused was captured on high quality CCTV … entering the driver's seat of a dark grey Ford Territory … At the time the accused is not wearing any items of clothing and behaving in an erratic manner. The accused briefly drives around the carpark before coming to a stop at the down ramp exit between carpark levels 3 and 2. At the base of the down ramp a large, reinforced roller shutter door is lowered in the closed position. The accused exits his vehicle, still void of any clothing, and moves around his vehicle repeatedly entering and exiting between the driver's side front door and boot of the vehicle and wandering through level 3 of the carpark. The accused continued this behaviour for approximately 50 minutes. Sequence 1 At 3:21 am the accused enters the driver's seat of his vehicle and shuts the door. The accused begins driving at a slow speed towards the lowered roller shutter door. As the accused approaches the roller it automatically begins to open as per its standard operation. However, without warning the accused fails to stop his vehicle and whilst the roller door is only partially open drives straight through it, causing it rip out of its recess and bend out of shape as the accused and his vehicle travel through it. The accused continues through the carpark without assessing the damage. The victim organisation currently estimates fixing the damage to be valued at $12,500. Sequence 2 The accused approached the final, closed exit roller door for the carpark situated at the base of the last remaining down ramp. Again, the roller door begins to automatically open as per its standard operation. Without breaking or stopping the accused drove his vehicle straight through the partially opened door causing it rip out of its recess and bend out of shape. The victim organisation currently estimates fixing the damage to be valued at $12,500. The accused exited onto the … roadway and left the location without stopping or assessing any damage he caused. About 5:00am that same morning Police received a number of calls from the community of a Ford Territory … stopped in the middle of the road … the accused was reported as the sole occupant in the driver's seat of the vehicle. Police arrived a short time later and observed the vehicle in the middle of the lane on the road with the POI still seated in the drivers seat. The vehicles engine was running with the accused holding the vehicle stationary with his foot on the brake. The vehicle was still in gear with police stopping the engine, removing the keys and taking the vehicle out of gear. The vehicle began to roll forward with police required to apply the hand brake. The accused appeared confused, sluggish and unable to comprehend simple instructions. The accused was unable/unwilling to get out of the vehicle with police removing him. The accused appeared unable to submit himself to a road side breath test due to his behaviour, level of understanding and non compliance. The accused admitted to police he had been injecting ICE and was unable to articulate where he was, what he was doing or where he had come from. The accused had red and watery eyes, jerky and erratic movements and did not smell of intoxicating liquor. Police observed the accused to have slurred and erratic speech, poor balance, no awareness of his current situation and was unaware of basic details such as the day, month, year or location of which he was currently stopped by police. Police removed the accused from the driver's seat of the vehicle and again asked what he had taken tonight, the accused again informed police he had taken "ice in his orange juice." The accused was non compliant and not forth coming with further information. The accused was arrested for the purpose of obtaining a sample of blood/urine. The accused was handcuffed and cautioned. The accused balance and coordination appeared well effected as he was unable to remove his own seatbelt, and unable to walk confidently without additional assistance … Given his behaviour the POI was scheduled for a Mental Health Assessment under the Mental Health Act. 1. On 29 September 2021 Dr Wijetunga was convicted of the offences arising from the incidents on 2 September 2021 and 22 September 2021 at Zetland and he was directed to enter into a Community Correction Order for 12 months from 29 September 2021. 2. On 5 October 2021 the NSW Board of the Medical Board of Australia considered Dr Wijetunga's application for general registration. The Board noted that recent urinary and hair drug and alcohol screening had been negative and that Dr Wijetunga had attended on Dr Fisher, consultant psychiatrist. The Board decided to grant Dr Wijetunga general registration as a medical practitioner commencing from 18 November 2021 subject to conditions which included limits on the number of hours he could work, the number of patients he could see, that he work under category B supervision and he was not to use any drug of addiction. 1. On 26 October 2021, Dr Wijetunga was arrested and charged with one count of intentionally or recklessly destroy/damage property under s 195(1)(a) of the Crimes Act with a maximum penalty of five years imprisonment and one count of break and enter and destroy property under s 112(1)(a) of the Crimes Act with a maximum penalty of 14 years imprisonment. The incidents occurred at the block of units where he then lived. The Police Facts Sheet says: Offence 1 - Malicious Damage The accused has walked through blocks 2, 2B and 2C where he has proceeded to rip a total of 6 signs off the wall. The accused continued to walk to the rear access door of 2C where the accused has ripped the sensor off the door which allows access to residents. The accused buzzed the intercom of unit 740 … At the time, the accused was buzzing from the common courtyard door which only can be accessed by residents. [Two residents] … observed the accused to be holding two signs. These signs are normally attached to the walls which display the unit numbers on each floor. The accused appeared erratic and disorientated … The accused's eyes appeared bloodshot and were bulging… Offence 2 - Break and Enter [Two residents] … followed the accused into the common area where they observed the accused jump the concrete fence into the courtyard of unit 634. They were aware that the accused did not reside at the location. The accused gained access to the unit through the rear door .. The accused lit candles and started putting paper scraps of paper onto the candles. The accused opened the cupboard and pulled out a bottle of methylated spirits. The accused got a pair of blue CHUX and saw him put methylated spirits onto the cloth wiping it together ... Police gained access to the property where the rear doors were still shut. Police gained access to the unit where they observed smoke coming from the kitchen. Police located the accused sitting on the floor at the front of unit. Police immediately placed the accused [and] … went to the kitchen where they have turned the stove off which had an active flame and noticed that cards had been burnt. Police also noticed a bottle of methylated spirits next to open flame. The victim … informed police that he had never seen the accused before, … he did not leave any items on the kitchen bench before leaving the residence. The victim stated that he believed that he had locked all his doors before leaving the property. The victim noticed that four playing cards from his deck had been destroyed by fire. 1. On 22 December 2021 Dr Wijetunga was called up before the Local Court for a breach of the Community Correction Order made on 23 September 2021. He was re-sentenced to a 12-month Community Correction Order commencing on 1 March 2022. 2. On 23 December 2021, Dr Wijetunga was arrested and charged with one count of intentionally or recklessly destroy/damage property under s 195(1)(a) of the Crimes Act with a maximum penalty of five years imprisonment and one count of intentionally or recklessly damage property by fire or explosive under s 195(1)(b) of the Crimes Act with a maximum penalty of 10 years imprisonment. The Police Facts Sheet says that on 21 December 2021: The Australian post (Auspost) headquarters … is a multi story complex which has a ground level front entrance that is open to the public 24 hours a day 7 days a week … The area is small and is accessed … by 2 automatic sliding doors. Once inside this area is another set of automatic sliding doors which were locked at the time after usual business hours which lead to the main reception area. Also inside this area is a package/envelope vending machine and an automatic teller machine (ATM). The area is extensively covered by CCTV. Adjacent to this area is a parcel collection point and post office box area which is also accessible to the public. At 9:50pm on the Tuesday the 21st of December 2021, the accused is recorded on CCTV entering the public access foyer area of the Auspost … office containing the ATM, envelope vending machine and mail chute. Offence 1 - Malicious Damage The accused approaches the ATM, places some envelopes into a small garbage bin, walks away, returns to the ATM then … forces the front cover open using his hands causing damage to the barrel lock and the cover which allows access to the ATM safe dial. For the next several minutes, the accused remains in the foyer area, touches the ATM several times then walks out carrying the bin into the post office box area. … the accused returns to the public foyer area and approaches the envelope vending machine, placing the garbage bin in front of him. The accused purchases … an express post large envelope for $9.20, an express post 10 pack of large envelopes for $89.70 and a small 5 pack of small satchels for $47.75 ... The accused proceeds to take the envelopes out of the packets, rip some of them and place them into the garbage bin in front of him. … the security guard on duty … confronts the accused in the public foyer area. They have an interaction where the security guard questions the accused regarding some signs which fell down in the foyer and several minutes later the security guard leaves keeping an eye on him from a distance. During the interaction, the accused continues placing torn envelopes into the garbage bin. … when the security guard leaves, the accused stumbles around the foyer then unsuccessfully attempts to force his way into the locked main reception are by pushing and pulling at the locked glass doors. Offence 2 - Malicious damage by fire … the accused places the garbage bin containing numerous ripped envelopes into the mail chute. The accused ignites a piece of paper utilising an unknown ignition source then ignites the contents of the rubbish bin which he then forces down the chute creating a larger fire. At the same time, security guard … returns, confronts the accused and unable to stop the fire, runs back to his office to get a fire extinguisher. Whilst this is occurring, independent witness … observed the accused leaving the location … [and] observed the fire before contacting police. Security guard … extinguished the flames with the fire extinguisher. The accused then leaves the location in an unknown direction. 1. On 20 January 2022, Dr Wijetunga was arrested and charged with attempting to drive while under the influence of drugs under s 112(1)(b) of the Road Transport Act 2013 (NSW) (Road Transport Act). The maximum penalty was 30 penalty units or 18 months imprisonment or both. The charges arose out of an incident which had occurred on 22 September 2021 at Greenwich about 4 am. The Police Facts Sheet says: The accused is the registered owner of a black Ford Territory … Around 4:15am on Wednesday 22nd September 2021 police arrived … and observed the vehicle situated on a perpendicular angle with the kerb of the north bound lane. The accused occupying the drivers seat. No other person was seen in the vehicle or in the vicinity of the vehicle. Police observed the headlights of the vehicle to be illuminated and could hear the engine of the motor vehicle BM49EM (NSW) idling. The accused appeared completely unaware of police attendance and emergency lights, with the accused not acknowledging police or making any movements upon their approach. Police observed the accused to have his eyes open staring through the front windscreen in what appeared to be a dazed and confused state. Police … directed the accused multiple times to get out of the vehicle however received no response. The accused was unable to comprehend instructions given to him by police and as a result was unable to supply a roadside sample of his breath. Police were required to open the driver's side door, unlock and remove the accused's seat belt, and attempted to extract the accused from the vehicle … The accused was … observed in an extremely sluggish state with red, watery and blood shot eyes, swaying side to side and unsteady on his feet with excessive perspiration and a dishevelled appearance. The accused could not walk under his own volition was assisted by police to walk off the road and onto the footpath where the accused was now standing still with the assistance of police, swaying unsteadily … The accused appeared sedate with attending police unable to smell any intoxicating liquor on his breath. The accused displayed a sudden change in behaviour and became non-compliant. While communicating with the accused, the accused displayed signs of slurred speech, talking in an unusually slow pace, slow response to questions asked by police and confused. When questioned in relation to his actions, the accused stated he had "injected Ice". … The accused was unable to articulate where he was or where he had come from and indicated to police he did not know the date however claimed it was daylight asking where everyone else was. When informed the current time was 4:30am in the morning and still dark the accused refused to believe police claiming that he could see so it must be the middle of the day. The accused again informed police he had taken "ice in his orange juice". Due to the accused situational awareness and erratic behaviour, police had a concern for his welfare given his ingestion of an unknown substance. The accused was arrested and cautioned for driving under the influence and detained under the mental health act and a short time later was conveyed to Royal North Shore Hospital for a mental health assessment under a section 22. 1. On 1 March 2022 Dr Wijetunga was sentenced in the Local Court to a term of imprisonment of 15 months commencing on 22 December 2021 with a non-parole period of 7 months for the offences which had occurred on 22 September 2021 (at Zetland), 26 October 2021 and 21 December 2021. Dr Wijetunga appealed, but later withdrew the appeal. 2. On 13 May 2022 the Medical Council informed Dr Wijetunga that: 1. He had not nominated a Category B supervisor by 10 March 2022 as required by the condition on his registration. They did note that he may not have recommenced practice. 2. The conditions on his registration provided that prior to commencing practice, he was required to seek Council approval for his proposed place of work. 3. He was required to undergo urine drug screening three times a week and quarterly hair drug screening. However he had not nominated a collection centre and had not commenced screening. 4. The conditions on his registration required that he attend for treatment by a general practitioner and an addiction specialist psychiatrist. The Council had requested him to provide the contact details of these doctors by 3 March 2022 but he had not done so. The Medical Council asked Dr Wijetunga for a response by 18 May 2022. A reminder was sent on 27 May 2022. 1. On 9 June 2022 a s 150 inquiry under the National Law was convened. Dr Wijetunga did not attend. The delegates noted that Dr Wijetunga had not attended a Council directed health assessment and had not responded to any of the communications sent by the Medical Council since November 2021. They did not know whether he was practising medicine. If he was practising medicine then he was in breach of all of the conditions on his registration. They noted that methamphetamine use disorder is a chronic relapsing condition. While they could not assess whether he was impaired, his conduct indicated a relapse. There was a possibility of significant risks to the health and safety of the public. The delegates determined to suspend Dr Wijetunga's registration from 9 June 2022 to protect the public. 2. On 21 July 2022 Dr Wijetunga was released to parole. 3. On 23 September 2022 Dr Wijetunga called the Australian Health Practitioner Regulation Agency (Ahpra) to find out his registration status. He was advised that he was unregistered and that he could complete an application form online. 4. On 11 October 2022, Dr Wijetunga was arrested and charged with aggravated break and enter s 113(1) of the Crimes Act and break and enter dwelling-house with intent to commit serious indictable offence s113(1) of the Crimes Act. The Police Facts Sheet says: About 5:45am on Tuesday the 11th of October 2022 the accused walked into 12 Onslow Avenue, Elizabeth Bay through the 'Tradesmen's Entrance'. The accused then proceeded to go into the laundry area of Unit l. [A witness] saw the accused inside his laundry [and] asked what the accused was doing to which he responded that he was looking for a phone charger. [The witness] told the accused that he didn't have one and closed the door on the accused. The accused continued to wander through the apartment complex and up through the fire stairs. The accused walked to the top level where he opened a door which led to the foyer area on the top floor. Inside this foyer area, [a second witness] had left out 2 x bags of mulch, multiple pieces of clothing and a red paint tin. The accused picked up the two bags of mulch, clothing and the paint tin and placed them in the trolley. The accused then took the trolley with the contents into the lift and took it down to level 2 and left it in the foyer area. The accused made his way, to the top level again where he entered through a doorway to the roof area. While in the roof area, the accused looked through documents and moved around fluorescent lights which had been left in the roof. The accused then climbed up a ladder and pushed through another door into an upper part of the roof. He further entered into a small alcove in the roof via another ladder. This was captured on Closed Circuit Television (CCTV) in the roof. [The second witness], who was in the unit below the roof, heard the accused's movements and contacted police. Kings Cross Police … announced their presence to the door entrance to the roof. Police knocked on the door but there was no answer from the accused. While this was occurring, the accused moved the ladder away from the alcove where he was. Police, with the assistance of a locksmith, opened the door to the roof where a search of the roof area was conducted. Originally police could not locate the accused. However, police conducted a review of the CCTV which showed the accused enter into the small alcove and remove the ladder. Police again announced themselves and the accused came down from the alcove. 1. On 2 November 2022 Dr Wijetunga's parole was revoked and he was returned to custody. He was released at the conclusion of his sentence on 21 March 2023. 2. On 28 June 2023 Dr Wijetunga informed the HCCC that he wished to pursue re-registration as he was able to comply with the standards of practice required. 3. On 25 July 2023 this Application was filed by the HCCC in this Tribunal. 4. On 4 September 2023, Dr Wijetunga was arrested and charged with the following offences which were alleged to have occurred on 3 and 4 September 2023: 1. one count of aggravated break and enter and commit serious indictable offence under s112(2) of the Crimes Act. 2. one count of attempt to stalk/intimidate intend fear of physical or mental harm under s 13(5) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). 3. one count of peep or pry under of the s 547C Crimes Act. The victim lived in the same block of units as Dr Wijetunga and had known him for about 8 weeks. The Police Facts Sheet says: Sometime after 11pm on Sunday 3 September 2023 the victim was home … her back door was closed. … the victim has decided to have a shower. The victim has entered her bathroom closing the bathroom door behind her. The victim was in the shower for between 5 and 10 minutes, when she has looked and seen the bathroom door open and the accused standing in the bathroom with his hand on the bathroom door. The accused was wearing his black dressing gown. The victim was terrified and started screaming, due to not knowing why the accused was in her bathroom and what he was going to do to her. The accused backed out of the bathroom. The victim who was completely naked got out of the shower and slammed the door shut … The victim was screaming and calling for help. The victim held the door for between 5 to 10 minutes. The victim managed to get a towel to wrap around herself and to calm herself enough to open the door and check if the accused was there. The victim left the shower running in the hope it would fool the accused into thinking she was in the shower. The victim opened the door and could not see the accused. The victim saw the back door was slightly open. The victim turned the bedroom light on to see if the accused was in there before entering the lounge room of the unit. On entering the lounge room the victim saw a pair of black thongs on the floor of the lounge room which did not belong to her. The victim picked the thongs up taking them to the front door and threw them outside of her unit before securing the front door. The victim returned to the lounge room to get her mobile telephone and call police. The victim was still screaming for help. Upon entering the lounge room the victim saw the lounge room door open and the accused walk through the door. On seeing the victim, the accused has backed out of the lounge room and closed the door. The victim went to the door and held it closed with her right foot. The victim was able to get her mobile telephone from her bag on the nearby coffee table. The victim heard the accused say, "Calm down. Calm down, you are overreacting." The doorknob turned and the accused gently pushed against the door. The victim called 000 and placed the call on loudspeaker as she spoke with the operator. Every time the operator spoke the accused would react by either tapping on the door, pushing on the door or by exhaling loudly. The victim stayed on the call to 000 until police arrived. 1. Dr Wijetunga was in custody from 4 September 2023 and was released on conditional bail on 20 December 2023. Legal Principles 1. These proceedings are brought under Part 8 of the National Law. Section 3A provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. The HCCC bears the onus of proof. We have made findings on the basis that the particulars of the Complaint must be established to the civil standard (on the balance of probabilities) to the level of satisfaction described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The Complaints Complaint One 1. Based on the findings we have made we are satisfied that the HCCC has established that on 1 March 2022 at Central Local Court Dr Wijetunga was convicted of the following offences: 1. Intentionally or recklessly destroy/damage property on 26 October 2021 contrary to s 195(1)(a) of the Crimes Act. 2. Break and enter a dwelling-house or building to commit a serious indictable offence on 26 October 2021 contrary to s 112(1)(a) of the Crimes Act. 3. Intentionally or recklessly destroy/damage property on 21 December 2021 contrary to s 195(1)(a) of the Crimes Act. 4. Intentionally or recklessly damage property by fire/explosive on 21 December 2021 contrary to s 195(1)(b) of the Crimes Act. 5. Attempt to drive vehicle while under the influence of drugs - first offence on 22 September 2021 at Greenwich contrary to s 112(1)(b) of the Road Transport Act. Complaint Two 1. We are satisfied that Dr Wijetunga is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law as he has contravened the National Law in the following ways: 1. Pursuant to ss 130(1) and 130(3)(a) of the National Law Dr Wijetunga was required to notify the Medical Board of Australia within seven days of being charged with a criminal offence punishable by 12 months imprisonment or more. Dr Wijetunga failed to do so when: 1. on 28 January 2020 he was charged with two offences of intentionally or recklessly destroy/damage property contrary to s 195(1)(a) of the Crimes Act. 2. on 29 January 2020 he was charged with two offences of intentionally or recklessly destroy/damage property contrary to s 195(1)(a) of the Crimes Act. 3. on 11 September 2020 he was charged with one offence of possess prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 4. on 23 December 2021 he was charged with one offence of intentionally or recklessly destroy/damage property contrary to s 195(1)(a) of the Crimes Act, and one offence of intentionally or recklessly damage property by fire/explosive contrary to s 195(1)(b) of the Crimes Act. 5. on 20 January 2022 he was charged by police with one offence of attempt drive vehicle while under influence drugs - first offence contrary to s 112(1)(b) of the Road Transport Act. 1. Pursuant to ss 130(1) and 130(3)(b) of the National Law Dr Wijetunga was required to notify the National Board within seven days of any conviction for an offence punishable by imprisonment. He did not notify the National Board within seven days of 1 March 2022 that he had been convicted at Central Local Court of the following criminal offences: 1. Intentionally or recklessly destroy/damage property contrary to s 195(1)(a) of the Crimes Act. 2. Break and enter dwelling-house or building commit serious indictable offence contrary to s 112(1)(a) of the Crimes Act. 3. Intentionally or recklessly destroy/damage property contrary to s 195(1)(a) of the Crimes Act. 4. Intentionally or recklessly damage property by fire/explosive contrary to s 195(1)(b) of the Crimes Act. 5. Attempt to drive vehicle while under the influence of drugs - first offence contrary to s 112(1)(b) of the Road Transport Act. 1. Proof of a conviction may be established by a certificate stating the fact of the conviction (s 178 of the Evidence Act 1995 (NSW)). There are certificates in evidence establishing these convictions. 2. Once a practitioner becomes aware that such a charge or conviction has occurred, he must provide written notice to the National Board (Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [153]). The evidence is to the effect that Dr Wijetunga was present at the time those charges were laid and when each conviction was entered. 3. When considering an application for registration, Ahpra can require the applicant to give the Board further information or a document (s 80 of the National Law). It did ask Dr Wijetunga to provide information in relation to his criminal history. In response Dr Wijetunga provided a statutory declaration dated 29 January 2021 in which he said he had been charged with offences on 29 and 30 January 2020 (which was one year earlier) and September 2020 (which had been withdrawn). There is no other evidence that Dr Wijetunga notified the National Board. 4. We are satisfied that the HCCC has shown that Dr Wijetunga failed to notify the National Board within seven days of the convictions set out in Complaint 2 (2). 5. A finding of unsatisfactory professional conduct flows from a finding that the HCCC has established a breach or breaches of s 130 of the National Law. There is no discretion in the legislation for us to make any other finding (Health Care Complaints Commission v Shipley [2020] NSWCATOD 128 at [66] citing Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [27]). 6. The HCCC has proven Complaint Two. Complaint Three 1. The HCCC says that Dr Wijetunga is impaired as defined in s 5 of the National Law as he has: 1. a methamphetamine use disorder, severe type, currently in short term remission by self-report. 2. a methamphetamine induced psychotic disorder, currently in short term remission; and/or 3. a narcissistic personality disorder. 1. Section 5 of the National Law relevantly defines impairment as a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the person's capacity to practise as a doctor. 2. The impairment must be current (Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362 at [11]). Current impairment can be demonstrated by evidence of impairment at a particular time combined with the absence of any evidence of any later improvement (Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73). 3. Dr Atherton is the psychiatrist who most recently saw Dr Wijetunga on 31 January 2024. He had previously prepared reports dated 27 April 2020, 24 July 2020 and 6 November 2023. In his most recent report Dr Atherton diagnosed Dr Wijetunga as suffering from: 1. methamphetamine use disorder, severe type, currently in short term remission by self-report. He noted that Dr Wijetunga accepted that he had a methamphetamine use disorder. 2. methamphetamine induced psychotic disorder, currently in short term remission. He noted that Dr Wijetunga agreed that his use of methamphetamine had caused periods of psychosis and behavioural changes including aggression and anger. 3. narcissistic personality disorder. 1. Dr Atherton had no doubt that Dr Wijetunga met the criteria for impairment as defined in the National Law due to his diagnosis of methamphetamine use disorder and Dr Wijetunga's tendency to experience psychotic breakdowns associated with anger, aggression, and destruction of property in the context of these episodes. He said that Dr Wijetunga's impairment was highly likely to detrimentally affect his capacity to practise as a medical practitioner, as he is at high risk of relapse to methamphetamine use. When this occurs, he tends to become quite rapidly psychotic. This can lead to severe disturbance of mood, thoughts, and behaviour. This has resulted in the destruction of property and a failure to follow the normal rule of law. This break from reality, which is rapid and severe, means that his ability to make any reasonable medical decisions is severely impaired and he will immediately place his patients in danger. 2. Dr Atherton added that Dr Wijetunga's narcissistic personality traits displayed over the last few years meant that he had been somewhat limited in his capacity to follow directions and follow advice with the diligence that is required to ensure treatment and periods of remission. This was shown by his failure to comply with the conditions on his registration. As Dr Wijetunga had not yet demonstrated any capacity to follow instructions and maintain a solid recovery plan, the prognosis was poor and he has little credibility in relation to reassurance about his future actions or behaviour. 3. The only other medical evidence was from Dr Fisher in his report dated 22 July 2021. He found Dr Wijetunga was not then suffering from an impairment, but that his established methamphetamine use disorder made him vulnerable to an impairment. This report, which was prepared three years ago, was not of much assistance in determining any current impairment. 4. We accept the opinion of Dr Atherton and find that Dr Wijetunga is impaired. 5. The HCCC has not asked us to find that Dr Wijetunga is not competent to practise medicine within the meaning of s 64(1)(a) of the National Law. 6. The HCCC has established Complaint Three. Complaint Four 1. The HCCC says that Dr Wijetunga is not a suitable person to hold registration as a medical practitioner. 2. The HCCC relies on the conduct of Dr Wijetunga on 25 January 2020, 29 August 2021, 2 September 2021, 22 September 2021 at Zetland, 26 October 2021, 21 December 2021 and 11 October 2022 which resulted in the charges and convictions. 3. The National Law created a national registration and accreditation scheme for health practitioners. Section 3(2)(a) of the National Law provides that one of the objectives of scheme is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. 4. Section 144(e) of the National Law provides that one of the grounds for a complaint about a medical practitioner is that he or she is not a suitable person to hold registration. The expression "suitable person" is not defined. 5. The HCCC submitted and we accept that s 55(1) of the National Law provides some guidance as it uses the expression "not suitable" (Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 at [69]–[72]): 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if … (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession. (h) in the Board's opinion, the individual is for any other reason-- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. 1. In Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72]–[73] the Tribunal held: [I]n considering whether [the practitioner] "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills. 1. We find that Dr Wijetunga's primary diagnosis, a methamphetamine use disorder, which has been documented over five years, has three consequences. 2. The first consequence is that the history shows that when Dr Wijetunga is using methamphetamine he behaves inappropriately, his judgment is severely impaired and he exhibits behaviours which could cause injury to himself and others. We have set out above some of the observations made by police when he is in a psychotic episode. On occasions his behaviour has been aggressive with a capacity for violence. On several occasions his behaviour has been so extreme it has led to criminal convictions and, as we have already said, one sentence of imprisonment. Even when he was paroled, after having served the non-parole period, he re-offended and his parole was revoked. It is obvious that when he is in this state he is unfit to work as a doctor. 3. The second consequence is that there is an ongoing risk of Dr Wijetunga continuing to act in the same way in the foreseeable future. We accept the opinion of Dr Atherton that it is more likely than not that Dr Wijetunga will relapse again in the future, given the legacy of his behaviour over the last few years. 4. The final consequence is that this is a condition which could be extremely difficult to address. The reports of Dr Atherton show that Dr Wijetunga continues to reject advice in relation to recovery. This is exemplified by Dr Wijetunga failing to engage at all with the path to recovery offered by the Impaired Registrants Program. This may be because, as Dr Atherton says, that his narcissistic personality traits mean that he has a limited capacity to follow directions and follow advice with the diligence that is required to ensure treatment and periods of remission. 5. We are satisfied that Dr Wijetunga is not a fit and proper person for general registration in the profession nor is he able to practise the profession competently and safely. 6. We find that Dr Wijetunga is not suitable to hold registration as a medical practitioner. 7. The HCCC has established Complaint Four. Protective Orders 1. We determined that it was appropriate for us to make the Protective Orders which we consider flow from our findings rather than adjourning the proceedings for a Stage 2 hearing. 2. No previous Order has been made in relation to which issues were to be determined by us. However in circumstances where Dr Wijetunga: 1. did not file a reply, 2. did not file any evidence in reply to the evidence of the HCCC, 3. had been notified of the Protective Orders being sought by the HCCC, and 4. had been informed that he needed to attend at the hearing on 20 February 2024 if he wanted to dispute any particulars in the Complaint, disagreed with any of the Orders sought by the HCCC or if there was anything he wanted to tell us, the factual findings we have made were based on uncontested evidence, an outcome which Dr Wijetunga should have considered possible if not highly likely. In those circumstances we decided to proceed to consider the appropriate Protective Orders. 1. The HCCC sought the following orders: 1. Cancellation of Dr Wijetunga's registration under s 149C(1)(c) and/or s 149C(1)(d) of the National Law. 2. An application for review of the cancellation Order not to be made until after two years, under s 149C(7) of the National Law. 3. Dr Wijetunga be prohibited from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for the same period as any non-review period imposed, under s 149C(5)(a) of the National Law. 1. The relevant principles which apply to the determination of the appropriate protective Orders are: 1. Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (National Law, s 3(2)(a)). 2. The public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners (Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]). 3. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose (New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]). 4. The orders are not intended to punish the practitioner, but to protect the public (Clyne v New South Wales Bar Association (1960) 104 CLR 186; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630). 5. The underlying principles are discussed by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. Section 149C(1)(c) 1. Section 149C(1)(c) provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied– … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or 1. In Health Care Complaints Commission v Morris [2022] NSWCATOD 120, the Tribunal held [81]–[86]): 81 … the question we must determine is whether the circumstances of the first and second offences render the Respondent unfit in the public interest to practise the practitioner's profession. 82 In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14] the Tribunal stated: The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A. 83 The following principles emerge from the Tribunal's decision in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]: 1. The term "public interest" is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]; 2. S 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of "the practitioner's current fitness to practise": Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]-[69]; 3. In construing s 149C(1)(c) the Tribunal needs to take into account the objectives of the National Law which relevantly include "the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner "unfit in the public interest to practise the practitioner's profession"; 4. The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances. 84 Whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]. 85 "Public interest" also may be taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]. However, we are cognisant of the remarks of Harrison J in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 … of the concept of public interest being linked to the health and safety of the public. 86 Whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability. As the Tribunal stated in Limboro at [22]: This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and since any investigation or sanction. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. 1. Dr Wijetunga's convictions do not directly bear on his fitness to work as a doctor. However, taking into account the wider context we have no hesitation in finding that Dr Wijetunga's behaviour, on the occasions which led to a criminal conviction, are inconsistent with the qualities and characteristics desired of a medical practitioner. 2. We find the circumstances of the offending render Dr Wijetunga unfit in the public interest to practise as a doctor. 3. This means we may decide to suspend or cancel Dr Wijetunga's registration. Section 149C(1)(d) 1. Section 149C(1)(d) provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (d) the practitioner is not a suitable person for registration in the practitioner's profession. 1. In Health Care Complaints Commission v Geary [2018] NSWCATOD 15 at [115], the Tribunal held that: It is inherent in a finding that a person is not a 'suitable person to hold registration' that he or she must be removed from the profession. What we think is contemplated by this provision is an inquiry into the person's fitness in the sense of an inquiry going to the person's character and integrity. It would, we think, be necessary to demonstrate a fundamental deficiency of character so serious as to warrant in its own right exclusion from the profession. 1. We have already found Dr Wijetunga unfit in the public interest to practise as a doctor based on his conduct on the occasions leading to a criminal conviction. Section 149C(1)(d) allows us to take into account additional factual findings we have made such as the opinion of Dr Atherton, Dr Wijetunga's lack of engagement with regulatory authorities and the histories recorded in medical and hospital records. 2. We are satisfied that these matters mean that Dr Wijetunga is not a suitable person for registration as a medical practitioner. 3. This means we may suspend or cancel Dr Wijetunga's registration. Finding 1. Taking these considerations into account, we find that the only Order which will protect the health and safety of the public while also condemning Dr Wijetunga's conduct, deterring him and other doctors from this type of conduct, upholding the standards of the profession and preserving public confidence in the profession is an Order to cancel Dr Wijetunga's registration. Period of non-review 1. Section 149C(7) provides that, if an Order for suspension or cancellation of a practitioner's registration is made then: 149C Tribunal may suspend or cancel registration in certain cases [NSW] … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. The NSW Court of Appeal has held in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [12]: The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided. 1. Dr Atherton has said that, to address his methamphetamine use disorder, Dr Wijetunga would need drug and alcohol treatment over six to 12 months in a residential rehabilitation facility which would ensure a long period of sobriety combined with a period of reflection and communal living which would ensure he had the opportunity to fully embrace recovery and establish a solid recovery plan and network to support him on discharge. In addition Dr Wijetunga needs the guidance of an addiction psychiatrist and a psychologist. 2. At present there is no evidence of Dr Wijetunga intending to take any steps to address his methamphetamine use disorder. 3. In these circumstances we are of the view that the Order sought by the HCCC, that any application for review of the cancellation Order may not be made until after two years, is appropriate. Prohibition Order 1. Section 149C(5) provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] … (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order") do any one or more of the following-- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. 1. Section 4 of the Health Care Complaints Act 1993 (NSW) defines "health service" to include the following services, whether provided as public or private services- (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act. 1. The question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if that person were to be involved in the provision of health services (Health Care Complaints Commission v De Lore [2020] NSWCATOD 72 at [93]. 2. If there is a material risk that the conduct could be repeated, then the practitioner would pose a substantial risk to the public (Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [139]). 3. We are satisfied that, if Dr Wijetunga were to be involved in the provision of health services, there would be a substantial risk to the health of the public for the same reasons that we do not consider him a suitable person to be registered as a doctor. 4. We have accepted the opinion of Dr Atherton who is of the opinion that Dr Wijetunga is at high risk of relapse to methamphetamine use. We find that there is a material risk that the conduct could be repeated. 5. We also take into account the most recent email from Dr Wijetunga to the HCCC which relevantly says: I resign from the medical council and do not require to be registered by your body of governance. I will be persuing (sic) occupations that do not require need or want under your perview (sic). My integrity of conduct has been upheld and will continue to be so within the norms of care to all civil & civic undertakings I as well as you & all others are bound to and expectedly upholding. This does suggest that Dr Wijetunga may be planning to work in an allied health field. 1. We are satisfied that it is appropriate to make a prohibition Order in the terms sought by the HCCC. Costs 1. The Tribunal has the power to order the practitioner to pay costs under Clause 13(1) of Schedule 5D of the National Law. The HCCC seeks an Order that Dr Wijetunga pay its costs as agreed or assessed. 2. As a general rule, costs of proceedings before the Tribunal should follow the event (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]). 3. We accept the submission that there was no disentitling conduct by the HCCC to warrant a departure from the general rule. 4. We will Order Dr Wijetunga to pay the costs of the HCCC. Orders 1. Dr Wijetunga's registration is cancelled with immediate effect. 2. Dr Wijetunga may not make an application for review under Division 8 of Part 8 of the National Law for a period of two years from the date of these orders. 3. Dr Wijetunga is prohibited from providing a health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) until such time as he is permitted to register as a medical practitioner. 4. Dr Wijetunga is to pay the costs of the Health Care Complaints Commission. ********* 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: 11 March 2024