Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Katticaran [2024] NSWCATOD 30 Hearing dates: 7 February 2024 Date of orders: 19 March 2024 Decision date: 19 March 2024 Jurisdiction: Occupational Division Before: The Hon G Watts ADCJ, Principal Member Dr G Yeo, Senior Member Dr S Cowap, Senior Member Ms D Telford, General Member Decision: 1. An order is made prohibiting the disclosure of the names of Person A and Person A's daughter under s 64 of the Civil and Administrative Tribunal Act 2013. 2. Pursuant to s 149C(4)(a) of the National Law, that if the Practitioner was still registered, the Tribunal would have cancelled his registration pursuant to s 149C(1)(b). 3. Pursuant to s 149C(4)(b) of the National Law, the Practitioner is disqualified from being registered in the health profession for a period of two (2) years from the date of this decision. 4. Pursuant to s 149C(4)(c) of the National Law, the National Board is required to record the fact that if the Practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 5. Pursuant to clause 13 of Schedule 5D of the National Law the Practitioner is to pay the Commission's costs as agreed or assessed. Catchwords: OCCUPATIONS — medical practitioners — misconduct and discipline — conduct of a sexual nature — unprofessional conduct — professional misconduct — non-publication order — costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Amal Akumar [2019] NSWCATOD 173 Health Care Complaints Commission v Blackstock [2020] NSWCATOD 110 Health Care Complaints Commission v Litchfield [1997] NSWSC 297 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Salas Katticaran (Respondent) Representation: Counsel: R Coffey (Respondent) Solicitors: E Bayley & J Lee (Health Care Complaints Commission) (Applicant) Makinson d'Apice (Respondent) File Number(s): 2022/00229417 Publication restriction: An order is made prohibiting the disclosure of the names of Person A and Person A's daughter under s 64 of the Civil and Administrative Tribunal Act 2013. REASONS FOR DECISION Introduction 1. By way of Amended Application for disciplinary findings and orders dated 19 December 2023, the Health Care Complaints Commission ("the Applicant") seeks orders under s 149C(4) of the Health Practitioner Regulation National Law (NSW) ("the National Law") that Dr Salas Antony Katticaran ("the Practitioner") be disqualified from being registered as a medical practitioner for a period of two to three years. 2. The Practitioner's lawyer appeared at the hearing. The Practitioner had filed a Reply admitting all of the complaints. The Practitioner's lawyer did not seek to be heard to oppose a finding that the Practitioner was guilty of three counts of unsatisfactory professional conduct and of one count of professional misconduct and did not seek to be heard about what protective order should be made. 3. In this matter, allegations are made against the Practitioner that he improperly and unethically involved himself in a way which crossed sexual boundaries in the doctor/patient relationship; inappropriately prescribed a Schedule 4 drug to the patient and failed to keep an adequate record in relation to the patient. Relevant legislation and principles 1. The principles outlined in the National Law at s 3A and s 3B have at their core a requirement for us to make a determination which attempts to protect public health and safety as our paramount consideration. 2. Section 139B(1)(l) of the National Law provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes …– ... (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. "Guidelines: sexual boundaries in the Doctor-Patient Relationship" (Medical Board of Australia, 12 December 2018 (Exhibit 3; tab 42) make clear that good medical practice involves never using the professional relationship to establish or pursue a sexual, exploitative or other inappropriate relationship with a person under the practitioner's care. Sexual misconduct is an abuse of the doctor/patient relationship. It undermines the trust and confidence of patients in their doctors and of the community in the medical profession. It can cause significant and lasting harm to patients. The guidelines make clear why breaching sexual boundaries is always unethical. Those reasons include the inherently unequal power imbalance in the doctor/patient relationship; the need for patients to be able to trust the relationship with their medical practitioner without fear of any motivation by the medical practitioner of an ulterior sexual nature. Members of the community should never be deterred from seeking medical care because of the fear of potential sexual exploitation. Patients who are subjected to sexual behaviour from their doctor are particularly at risk of suffering emotional harm. A doctor who sexualises a patient is likely to lose the independence and objectivity needed to provide the patient with good quality health care. It is the doctor's responsibility to maintain sexual boundaries and there is no place for sex in a doctor/patient relationship in the guise of a consensual relationship. 2. Section 139B(1)(a) of the National Law provides: (1) Unsatisfactory professional conduct of a registered health practitioner includes… – (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill and judgment possessed or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 1. In Health Care Complaints Commission v Amal Akumar [2019] NSWCATOD 173 at [25], the Tribunal said: Determining whether the "knowledge, skill or judgment" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. 1. Section 139B(1)(b) of the National Law provides: (1) Unsatisfactory professional conduct of a registered health practitioner includes… – (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 1. The Applicant seeks a finding that the Practitioner is guilty of conduct described in s 139B(1)(b) on the grounds that the Practitioner has contravened regulation 6 of the Health Practitioner Regulation (New South Wales) Regulation 2016. Regulation 6 provides that a medical practitioner must in accordance with that part of the regulation and schedule 4, make and keep a record, or ensure that a record is made and kept, for each patient of a medical practitioner. 2. Schedule 4, cl 2(a) of that regulation relevantly provides that a record must include the following – (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and any information concerning allergies or other factors that may require special consideration when treating the patient). 1. Section 139E of the National Law sets out the meaning of "professional misconduct": For the purposes of this Law, professional misconduct of a registered health practitioner means – (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct, that when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. Whether the unsatisfactory professional conduct is serious enough to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82] ("Sabag"). 2. There is no category of unsatisfactory professional conduct which is not capable, depending upon the circumstances, of giving rise to professional misconduct: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. 3. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297. 4. In Health Care Complaints Commission v Robinson [2022] NSWCA 164 ("Robinson"), Kirk JA (Leeming JA agreeing) said at [34]: The focus is on the character of what occurred which is the subject of the complaint. The categorisation exercise involved an "evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct", citing Basten JA (Leeming JA agreeing) in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. 1. The seriousness of the conduct may take colour not only from the acts or omissions in question by also in the circumstances in which they occurred: Robinson at [35]. 2. When considering those circumstances, the Court of Appeal noted at [36] that they could include: 1. the practitioner's state of mind at the time of the impugned conduct (eg whether the conduct was deliberate or inadvertent) 2. knowledge of the patient's vulnerabilities 3. risk of harm arising from the conduct 4. the practitioner's knowledge, skill and training 5. the practitioner's disciplinary history 1. Section 149C(1)(b) of the National Law provides that the Tribunal may suspend a registered health practitioner's registration for a specific period or cancel the registered health practitioner's registration if the Tribunal is satisfied that the practitioner is guilty of professional misconduct. 2. Section 149C(4) of the National Law provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] … (4) If the person is no longer registered, the Tribunal may – (a) decide that if the person was still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person disqualified from being registered in the health profession for a specific period or until specific conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. Factual Background The Practitioner and Patient A 1. In 1983, the Practitioner graduated with an MBBS in India. In 1989, the Practitioner graduated with a Diploma in Children's Health in India. 2. From approximately 1983 to 2000, the Practitioner practiced in various medical roles in India. 3. From approximately 2000 to 2004, the Practitioner worked as a medical practitioner in the Republic of Maldives. 4. In 2004, the Practitioner moved to Australia where he worked as a general practitioner ("GP"). 5. On 3 August 2004, the Practitioner was first registered as a medical practitioner in Australia. 6. In 2004 to 2011, the Practitioner worked as a GP at medical centres in Queensland. 7. In 2012, the Practitioner completed a Fellowship of the Royal Australian College of General Practitioners. 8. From 2012, the Practitioner worked as a locum GP in various medical centres in Victoria, Tasmania, New South Wales, South Australia and Queensland. 9. On 26 January 2021, the Practitioner signed an agreement to work as a locum GP at Port Macquarie Medical & Dental Centre ("the Practice"). 10. From 1 March 2021 until 25 March 2021, the Practitioner worked as a locum GP at the Practice. During this time, the Practitioner was residing in accommodation ("his residence") that had been arranged for him by the locum company. The Practitioner usually worked 8am-5pm with about 8-9 other doctors working at the same time. 11. On 10 February 2021, Patient A, a 46-year old woman, first attended the Practice. 12. Patient A was provided clinical care by the Practitioner on three occasions, being: 1. 3 March 2021 2. 5 March 2021 3. 24 March 2021 3 March 2021 1. During the workday on Wednesday 3 March 2021: 1. The Practitioner worked as a locum GP at the Practice; 2. The Practitioner had access to the Practice medical records, including the progress note on 10 February 2021 and the records received on 11 February 2021; 3. The Practitioner had a consultation with Patient A's adult daughter who was accompanied at that time by Patient A 1. During the consultation, Patient A requested a repeat prescription and the Practitioner obliged. 2. Patient A's daughter went out of the room to the receptionist. 3. While Patient A's daughter was out of the room, Patient A was friendly with the Practitioner and asked about his whereabouts. 4. Before Patient A's daughter re-entered the room, Patient A took a piece of paper and pencil from the Practitioner's desk and wrote him a note ("the note") and left it in front of his computer. The note said words to the effect that Patient A was feeling "wet at the bottom", requested that the Practitioner call her after work and included her mobile phone number. The note said words to the effect that she wanted to meet the Practitioner and requested he call her mobile after he finished work. 5. After Patient A's daughter re-entered the room, Patient A requested Duromine 6. During the consultation, the Practitioner measured Patient A's blood pressure (recorded as 142/110) and found her to be hypertensive (high blood pressure). 7. During the consultation, the Practitioner measured Patient A's height (incorrectly recorded as 105cm due to clerical error) and weight (recorded as 149kg), calculated her BMI (recorded as 135.1) and found her to have 'morbid obesity'. 8. Patient A informed the Practitioner that the high blood pressure was from taking Duromine. 9. The Practitioner prescribed Phentermine (Duromine) to Patient A being a drug contained within Schedule 4 of the Poisons Standard ("Schedule 4 drug"). 1. The Practitioner prescribed 30x 40mg capsules indicated to be taken once daily, and provided her with advice regarding diet and exercise. 2. Between about 3:01pm – 4:50pm, the Practitioner typed a progress note stating: History: For Duromine Examination: General: GP (sitting): 142/110 Weight: 149kg Height: 105cm BMI: 135. Smoker – 10/day Reason for contact: Obesity 1. The Practitioner billed Medicare item 23 (Level B) for the consultation with Patient A on 3 March 2021. 2. During or soon after the consultation, the Practitioner read the note. 3. The Practitioner did not discuss the note with his colleagues, practice manager or insurer. 4. The Practitioner did not record his receipt of the note in the patient's records. 5. At about 5pm, when leaving the Practice, the Practitioner took the note to his residence. 6. During the evening on Wednesday 3 March 2021: 1. Between approximately 5:00pm and 8:40pm, 1. the Practitioner inappropriately sent an SMS message to Patient A on her mobile telephone ("SMS A"); The Practitioner texted Patient A words to the effect of asking is it "OK to call" and/or "Can I call you back?" 2. the Practitioner disclosed his personal mobile telephone number to Patient A. 3. the Practitioner and Patient A exchanged a number of text messages and phone calls in which they made arrangements for the Practitioner to purchase alcohol for Patient A and for Patient A to attend his residence and consume alcohol with him. 4. at approximately 5:36pm, the Practitioner called Patient A on her mobile telephone and engaged in a phone call with Patient A ("telephone call A"): 1. The Practitioner discussed with Patient A plans to purchase and consume alcohol. Patient A asked the Practitioner what he was going to do that evening and said she is good at making cocktails. Patient A asked for the Practitioner's company for a cocktail drink. Patient A asked the Practitioner to buy some vodka, lemonade, moscato and margarita mix and said she would make him a cocktail at his place. 2. The Practitioner agreed to meet Patient A to consume alcohol together. 3. The Practitioner sent an SMS message to Patient A on her mobile telephone ("SMS N") providing Patient A with the address of his residence 1. at approximately 8:32pm, the Practitioner called Patient A on her mobile telephone and engaged in a telephone call with Patient A ("telephone call B") 2. sometime after contacting Patient A, the Practitioner destroyed/"chucked" the note. 3. between approximately 5:42pm and 9pm, the Practitioner: 1. Agreed to a request by Patient A to purchase alcohol for her. 2. Purchased alcohol for the purpose of supplying it to Patient A. 1. At about 8:30pm, 8:48pm and 9:07pm, the Practitioner received phone calls from Patient A. 2. Between approximately 9pm on 3 March 2021 and approximately 6:40am on 4 March 2021, the Practitioner: 1. allowed Patient A to enter his residence. 2. supplied Patient A with alcohol. The Practitioner showed Patient A the drinks which she had asked him to buy and told Patient A to help herself. 3. consumed alcohol while Patient A was at his residence and also consuming alcohol. Patient A drank about 3-4 glasses of scotch and lemonade and the Practitioner drank about 2 beers with her. 4. allowed Patient A to remain at the Practitioner's residence overnight. 5. allowed Patient A to use a bed that was adjacent and joined to the bed that was being used by the Practitioner: 6. engaged in sexual activity with Patient A, including: 1. Allowing Patient A to kiss him on the lips; 2. Allowing Patient A to masturbate in the immediate presence of the Practitioner. Patient A showed "violent sexual activity" in front of the Practitioner. Patient A sexually stimulated herself in front of the Practitioner. 3. Allowing Patient A to take off her clothes in the immediate presence of the Practitioner. 4. Allowing Patient A to take off the Practitioner's clothes 1. engaged in oral sex with Patient A: the Practitioner allowed Patient A to perform oral sex on him. 4 March 2021 1. On Thursday 4 March 2021: 1. the Practitioner worked as a locum GP at the Practice; 2. the Practitioner received "offensive"/"nude"/"semi-naked" photos from Patient A; 3. at about 10:48am on 4 March 2021, the Practitioner received an SMS text message from Patient A. Patient A said she could not find her prescription for Phentermine (Duromine), asked the Practitioner to bring another prescription when he finished work, invited him for dinner that evening and asked him to call her when he finished work; 4. at about 12:12pm, the Practitioner telephoned Patient A; 5. at about 7:51pm, the Practitioner received a phone call from Patient A; 6. the Practitioner did not discuss his contact with Patient A with his colleagues practice manager or insurer. 5 March 2021 1. On about 5 March 2021, the Practitioner received "vulgar photographs" from Patient A. Patient A said words to the effect that she was unwell and asked the Practitioner to have dinner with her on Monday. 2. On Friday 5 March 2021: 1. the Practitioner had a consultation with Patient A's daughter and Patient A. 2. the Practitioner prescribed Phentermine (Duromine) to Patient A. (30x40pm capsules indicated to be taken once daily). 3. between about 12:07-12:10pm, the Practitioner typed a progress note stating: History: States she has lost her Duromine script and is requesting for same. Reason for contact: For scripts Prescriptions issued: DUROMINE CR CAPSULE 40mg 1 Doily Couenselling [sic] on meds 1. the Practitioner billed Medicare item 23 (Level B) for a consultation with Patient A on 5 March 2021 6 March 2021 1. At about 1:54pm on Saturday 6 March 2021, the Practitioner telephoned Patient A. 8 March 2021 1. On about 8 March 2021, Patient A asked the Practitioner for an appointment and said she would just like to be friends with him, then the Practitioner told her to call the receptionist to arrange an appointment. 24 March 2021 1. On Wednesday 24 March 2021: 1. the Practitioner had a consultation with Patient A and she requested prescriptions for Efexor, Lyrica and Lamotrigine. 2. during the consultation, at 2:05pm, the Practitioner called the Prescription Shopping Information program hotline and was informed Patient A was a doctor/prescription shopper. 3. the Practitioner declined to prescribe Patient A with the prescriptions sought. 4. the Practitioner informed Patient A that she should see her regular GP going forward. 5. between about 1:56-3:58pm, the Practitioner typed a progress note stating: "History: Requesting for her ongoing scripts. States she moved from Bowral recently. Need script for Efexor, Lyrico & Lomotrigine. Phoned prescription shopper and she is identified as a shopper. Reason for contact: Prescription request – declined advised that she needs to see her regular GP for continuity of cared. 6. the Practitioner billed Medicare item 23 (Level B) for the consultation on 24 March 2021. 7. at 3:45pm, Patient A telephoned the Practice and made a complaint regarding the Practitioner's refusal to write a prescription for her on 24 March 2021. 1. At 3:48pm, Patient A's daughter telephoned the Practice to complain about the Practitioner refusing to prescribe and stated he had been "very sexual" towards Patient A, said "your very sexy", invited her for "drinks", "promising if went to dinner he would give her the drugs", gave his number to Patient A and sent "inappropriate texts" 2. Before leaving the Practice at about 5pm, and at the practice manager's request, the Practitioner provided a handwritten version of events with respect to his dealings with Patient A. 1. Between 3 and 24 March 2021, the Practitioner failed to keep adequate records of his consultations with Patient A, including failing to retain a copy of the handwritten note provided to him by Patient A during the consultation on 3 March 2021. 25 March 2021 1. On Thursday 25 March 2021: 1. at the practice manager's request, the Practitioner provided a typewritten version of events with respect to his dealings with Patient A. 2. the Practitioner ceased working as a locum GP at the Practice by order of the Chief Medical Officer. 3. the Practitioner took a copy of the Practice medical records for Patient A and Patient A's daughter 1. On 1 April 2021, the Regional Clinical Director for the Practice lodged a notification to AHPRA. 2. On 26 April 2021, the Commission notified the Practitioner that the complaint was to be investigated. 3. On 29 April 2021, the Practitioner provided information to the Council. 4. On 30 April 2021, the Practitioner was required to attend a hearing convened by the Medical Council of NSW ("the Council") under s 150 of the National Law ("s 150 hearing") and gave evidence. As a result of the s 150 hearing, the Council suspended the Practitioner's registration with effect from 5:00pm 30 April 2021. 5. On 1 June 2021, the Commission requested documents from the Practitioner. 6. On 22 June 2021, the Practitioner emailed the Commission. 7. On 28 September 2021, the Practitioner emailed the Commission. 8. On 8 August 2022, the Practitioner signed a statutory declaration in which he declared that he would voluntarily surrender his medical registration and in which he also undertook not to seek re-registration in Australia. This statutory declaration was sent to AHPRA and the Commission on 9 August 2022. 9. On 13 December 2022, the Council lifted the Practitioner's suspension with a condition that he not practise, to allow him to surrender his registration. 10. From 17 January 2023 the Practitioner was no longer registered as a medical practitioner in Australia. Complaints Complaint 2 1. It goes without saying that after the consultation on 3, the nature and content of the communications by the Practitioner with Patient A on 3 and 4 March 2021 did not serve a valid clinical purpose. The Practitioner disclosed his personal telephone number to Patient A and entered into communications with her to develop a plan to procure and consume alcohol together at the residence of the Practitioner, the location of which the Practitioner disclosed to Patient A. Between 9:00pm on 3 March 2021 and 6:40am on 4 March 2021, the Practitioner failed to maintain appropriate professional boundaries by allowing Patient A to enter his residence, to drink alcohol with him and to remain overnight. The Practitioner engaged in inappropriate conduct of a sexual nature towards Patient A. 2. By doing so, the Practitioner seriously failed to comply with the published guidelines concerning sexual boundaries in the doctor-patient relationship ("Guidelines: Sexual Boundaries in the Doctor-Patient Relationship" (Medical Board of Australia, 12 December 2018) referred to above. 3. We find that the Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the Practitioner has engaged in improper or unethical conduct as a result of his personal interaction with Patient A on 3 and 4 March 2021. Complaint 1 1. The drug Phentermine (Duromine) is a prescription only medicine, within the meaning of the Poisons and Therapeutic Goods Act 1966 ("PTGA"), being a drug contained within Schedule 4 of the Poisons Standard ("Schedule 4 drug"). 2. On both 3 and 5 March 2021, the Practitioner prescribed Duromine to Patient A in circumstances where he had failed to obtain sufficient clinical history to ensure that that drug was indicated and in circumstances where it was contraindicated because Patient A's blood pressure reading indicated that she was moderately hypertensive. 3. In addition, on 5 March 2021, after Patient A had informed the Practitioner that she had lost her prescription for this stimulant drug, the Practitioner failed to contact the Prescription Shopping Information program to check whether Patient A was a doctor/prescription shopper. Not contacting PSIS on this first occasion of a "lost" Duromine script is below but not "significantly below" standard. The Practitioner's subsequent inquiry on 24 March 2021, when Patient A again requested that he write various prescriptions for her, confirmed that she was in fact a doctor/prescription shopper. 4. When looked at overall, prescribing a stimulant drug where it is contraindicated and not checking on whether Patient A was a prescription shopper, when taken together is unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that the Practitioner has engaged in conduct that demonstrates the knowledge, skill and judgment processed or care exercised, by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Complaint 3 1. The Practitioner failed to retain a copy of the handwritten note provided to him by Patient A during the consultation on 3 March 2021, that note constituted an amorous sexual advance by Patient A to the Practitioner. 2. The fact that Patient A had written that note had the potential of being an importance piece of information for any other practitioner at the medical centre who might be called upon to attend upon Patient A. It is clearly a document that may have been relevant to the future management of any other doctor/patient relationship involving Patient A. It might indicate a modus-operandi by Patient A of serious prescription drug shopping. It might indicate Patient A has a mental health issue. It is not a document that should have been taken away from the Practice and discarded without any attempt to record its existence. 3. Given that we found that the note was relevant to Patient A's future medical diagnosis or treatment, we are satisfied that the Practitioner has contravened regulation 6 of the Health Practitioner Regulation (NSW) Regulations 2016 and in particular, regulation 4(a) of that Regulation. Accordingly, the Practitioner is guilty of unsatisfactory professional conduct because of a contravention of that regulation, pursuant to s 139B(1)(b) of the National Law. Complaint 4 1. We have found complaints 2, 1 and 3 established. 2. The finding in Complaint 2 alone warrants a finding of professional misconduct because that conduct is of a sufficiently serious nature to justify the suspension or cancellation of the Practitioner's registration. Alternately, when the three complaints of unsatisfactory professional conduct are considered together, they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration. 3. Accordingly, we find that the Practitioner is guilty of professional misconduct. Protective orders 1. The Practitioner has not sought to raise any argument that might mitigate the serious nature of his conduct, particularly on 3 and 4 March 2021. In those circumstances, we are unable to reach any conclusion as to the Practitioner's state of mind at the time of the impugned conduct. We do not have any evidence that would shed a light upon Patient A's vulnerabilities as at March 2021. We have set out above the Practitioner's history of practice as a medical practitioner over a significant period of time and we infer from that history that the Practitioner should be expected to have a level of knowledge, skill and training that would have made him well aware of his obligations under the guidelines in respect of sexual boundaries. So far as we are aware the Practitioner is assisted by an unblemished disciplinary history. 2. Our focus is on the character of what occurred. What the Practitioner did was a very serious crossing of the guidelines in respect of patient/practitioner sexual boundaries. 3. Before we move to consider whether a cancellation order pursuant to s 149C(1)(b) should be made, we need to address whether there is some other protective order that could be made to cater for the degree of seriousness of the conduct which we have found. We need to be satisfied there is no other appropriate alternative to cancellation of the registration (Sabag at [82]). Given the seriousness of the breach, we find there is not. 4. As already indicated, the Practitioner declared via statutory declaration on 8 August 2023 that he would voluntarily surrender his medical registration and further he undertook not to seek re registration in Australia. This statement of intention by the Practitioner, however, is not of any weight. What is relevant is that our orders reflect the seriousness with which we regard the Practitioner's conduct and that the orders ensure that the public is protected from the Practitioner or other practitioners engaging in similar conduct: Health Care Complaints Commission v Blackstock [2020] NSWCATOD 110 at [323]. 5. We have decided that if the Practitioner was still registered, we would have cancelled his registration. Further, we have decided that the Practitioner is to be disqualified from being registered in the health profession for a period of two years and we require the National Board to record the fact we would have cancelled the Practitioner's registration in the National Register kept by the Board. 6. Although an order has previously been made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), it is expedient that we include an order prohibiting the disclosure of the names of Person A and Person A's daughter in the final orders. Costs 1. Clause 13(1) of Schedule 5D of the National Law allows the Tribunal to make an order for costs. The Applicant seeks an order for costs as agreed or assessed. 2. It is generally accepted that the costs of proceedings before the Tribunal should follow the event (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]–[46]). 3. The Applicant was successful in establishing that the Practitioner was guilty of professional misconduct. There is no disentitling conduct by the Applicant to warrant a departure from the general rule that would reward the Applicant for establishing the foundations for the complaints that were found against the Practitioner. In those circumstances, we find that the Applicant is entitled to receive an order that the Practitioner pay its costs as agreed or assessed. Orders 1. An order is made prohibiting the disclosure of the names of Person A and Person A's daughter under s 64 of the Civil and Administrative Tribunal Act 2013. 2. Pursuant to s 149C(4)(a) of the National Law, that if the Practitioner was still registered, the Tribunal would have cancelled his registration pursuant to s 149C(1)(b). 3. Pursuant to s 149C(4)(b) of the National Law, the Practitioner is disqualified from being registered in the health profession for a period of two (2) years from the date of this decision. 4. Pursuant to s 149C(4)(c) of the National Law, the National Board is required to record the fact that if the Practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 5. Pursuant to clause 13 of Schedule 5D of the National Law the Practitioner is to pay the Commission's costs as agreed or assessed. ********** 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: 19 March 2024