Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Malak [2024] NSWCATOD 43 Hearing dates: 04 March 2024 Date of orders: 04 March 2024 Decision date: 11 April 2024 Jurisdiction: Occupational Division Before: Coleman SC ADCJ, Principal Member Dr J Aitken, Senior Member Dr C Newberry, Senior member J Houen, General Member Decision: (1) The respondent is guilty of professional misconduct. (2) Order pursuant to s149C(i)(a) or the National Law that if the respondent were still registered the Tribunal would have cancelled his registration pursuant to s149C(i)(b) and/or s149C(i)(c) of the National Law. (3) Order pursuant to s149C(4)(b) of the National Law that the respondent is disqualified from being registered in the medical profession for 5 years. (4) Order pursuant to s149C(4)(c) of the National Law that the National Board is required to record the fact that if the respondent were still registered the Tribunal would have cancelled his registration in the National Register kept by Board. (5) A prohibition order prohibiting the respondent from providing a health service as defined in s4 of the Health Care Complaints Act 1993 for a period of 5 years. (6) Order that the respondent pay the applicants costs of and incidental to these proceedings on a party by party basis as agreed or accessed. (7) The Tribunal notes that contravention of a prohibition order may constitute a criminal offence pursuant to s102(3) of the Public Health Act 2010. (8) The Tribunal will publish its reasons for these orders as expediently as it reasonably can. Catchwords: HEALTH — professional registration and discipline — where medical practitioner convicted of criminal offence — whether practitioner otherwise guilty of unsatisfactory professional conduct and/or professional misconduct — whether practitioner no longer registered should be disqualified from being registered — whether practitioner should be disqualified from providing health services during disqualification period — whether practitioner should pay Commission's costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Health Practitioner Regulation National Law 2009 (NSW) Public Health Act 2020 (NSW) Cases Cited: Attia v Health Care Complaints Commission [2017] NSWSC 1066 Chatoor v Health Care Complaints Commission [2020] NSWCA 111 Chen v Health Care Complaints Commission [2017] NSWCA 186 Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Ex parte Tziniolis; Re Medical Practitioners Act (1966) 6 SR(NSW) 448 Ghosh v Health Care Complaints Commission [2022] NSWCA 229 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Balafas (No 4) [2021] NSWCATOD 209 Health Care Complaints Commission v Bautista [2023] NSWCATOD 65 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 Health Care Complaints Commission v Grygiel (Stay Application) [2019] NSWCATOD 123 Health Care Complaints Commission v Jahoveri [2022] NSWCATOD 162 Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61 Health Care Complaints Commission v Karunatne (No 3) [2018] NSWCATOD 201 Health Care Complaints Commission v King [2013] NSWMT 9 Health Care Complaints Commission v Konigson [2021] NSWCATOD 186 Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 Health Care Complaints Commission v Liu [2016] NSWCTAOD 133 Health Care Complaints Commission v McNab [2023] NSWCATOD 41 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Muthukrishna [2023] NSWCATOD 110 Health Care Complaints Commission v Neale [2023] NSWCATOD 37 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 Health Care Complaints Commission v Oladiran [2020] NSWCATOD 56 Health Care Complaints Commission v Petros [2019] NSWCATOD 83 Health Care Complaints Commission v Reid [2018] NSWCATOD 162 Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151 Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48 Health Care Complaints Commission v Turner [2016] NSWCATOD 163 Health Care Complaints Commission v Wood [2020] NSWCATOD 60 Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 Kalil v Bray (1977) 1 NSWLR 256 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Re Dr Parajidi [2010] NSWMT 3 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Saville v Health Care Complaints Commission [2006] NSWCA 298 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Fady Raafat Lewis Malak (Respondent) (no appearance) Representation: Solicitors: E Bayley (Health Care Complaints Commission) (Applicant) HWL Ebsworth (Respondent) File Number(s): 2023/00235295 Publication restriction: Nil REASONS FOR DECISION Introduction 1. By application filed 24 July 2023 the Health Care Complaints Commission (Commission) sought findings that Dr Fady Raafat Lewis Malak (practitioner) be found guilty of unsatisfactory professional conduct and professional misconduct pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) (National Law), and consequential relief in the following terms: … 2. an order under s 149C(4)(a) of the National Law that if the Respondent was still registered the Tribunal would have cancelled his registration pursuant to s 149C(1)(b) and/or s 149C(1)(c) of the National Law; 3. an order under s 149C(4)(b) of the National Law that the Respondent is disqualified from being registered in the medical profession for 3-5 years; 4. an order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the Respondent were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board; 5. a prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993 for the same period as any disqualification period; and 6. an order that the Respondent pay the Commission's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law. 1. The proceedings were heard on 4 March 2024, at the conclusion of which, having read the material on which the Commission relied, and its written submissions, and deliberated after hearing the Commission's oral submissions, the Tribunal granted relief in substantially the terms sought by the Commission. The practitioner was disqualified from being registered in the medical profession for 5 years, and was prohibited from providing a health service for a period of 5 years. The Tribunal was comfortably satisfied that the evidence established that the practitioner was guilty of unsatisfactory professional conduct, and professional misconduct, and that each of the protective orders sought by the Commission was necessary to protect the health and safety of the public. When making its orders, the Tribunal recorded that it would publish reasons for its decision as expeditiously as possible. These are those reasons. 2. The practitioner did not appear at the hearing on 4 March 2024. Nor did the solicitors who have acted for him throughout the proceedings. That was not unexpected. 3. At a Directions Hearing on 10 November 2023 the practitioner was represented by a solicitor from the firm which has represented him throughout the proceedings. The proceedings were then set down for hearing on 4 March 2024. It was then made clear that the hearing on 4 March 2024 would determine whether the practitioner was guilty of unsatisfactory professional conduct and/or professional misconduct (Stage 1) and, if so, the Tribunal would determine the appropriate protective orders (Stage 2). 4. On 3 November 2023 the practitioner's solicitors wrote to the Tribunal and confirmed that they were instructed to act for the practitioner with respect to the Commission's application of 24 February 2023. The solicitors advised that they were "instructed to inform the Tribunal that the Respondent will not be participating in these proceedings and accordingly will not be filing any material or participating in any hearing" (Exhibit HCCC2). 5. The Commission had electronically forwarded by way of service the evidence upon which it intended to rely at the hearing to the practitioner's solicitors on 12 September 2023 (Exhibit HCCC8). The practitioner's instructions were thus given to his solicitors with full knowledge of the case being brought against him. 6. On 13 February 2024 the Commission emailed to the solicitors for the practitioner a supplementary bundle of documents and proposed chronology, and asked whether the solicitors would advise "if any of the facts in the proposed chronology are agreed, or which facts are in dispute, so that the HCCC can arrange for agreed facts to be filed before the hearing" (Exhibit HCCC3). On 23 February 2024 the solicitors for the practitioner acknowledged receipt of the Commission's earlier email, and said "We refer you to our letter to the Tribunal dated 3 November 2023 and confirm our client's position remains as was set out in this correspondence. In these circumstances there can be no agreement made to your document titled "Chronology" and we do not propose to respond any further to same." (Exhibit HCCC3). 7. On 29 February 2024 the Commission served on the practitioner's solicitors a sealed copy of submissions filed earlier that day. On 1 March 2024 the practitioner's solicitors acknowledged receipt of the submissions. 8. The Tribunal was comfortably satisfied that the practitioner was aware that the matter was to be heard on 4 March 2024. The Commission was comfortably satisfied that the practitioner was aware that the hearing on 4 March 2024 was a combined Stage 1 and Stage 2 hearing. The Tribunal is comfortably satisfied that a combined Stage 1 and Stage 2 hearing was appropriate in the circumstances of this case (Sudath v Health Care Complaints Commission [2012] NSWCA 171). Evidence before the Tribunal 1. The Commission filed documents in support of its application on 8 November 2023 in 2 volumes behind 79 tabs, together with a supplementary bundle of documents (Exhibit HCCC1). Exhibits HCCC2, HCCC3 and HCCC8 comprised the email exchanges to which we have earlier referred. Exhibit HCCC4 was the Certificate of Conviction of the practitioner issued by the Local Court of New South Wales at Gosford pursuant to s 178 of the Evidence Act 1995. Exhibit HCCC5 was the Evidentiary Certificate with respect to the practitioner's registration. Exhibit HCCC6 was a log of calls made by the practitioner which formed part of the Commission's particularised complaints, and was a business record which, had it been necessary, would have been admissible pursuant to the Evidence Act 1995 (NSW). Exhibit HCCC7 was the AHPRA document "Registration standard: criminal history" of 1 July 2015. 2. The Commission filed comprehensive written submissions in support of its case. The evidence before the Tribunal confirmed each of the factual matters alleged by the Commission in its submissions. Quite apart from the absence of any appearance by or on behalf of the practitioner disputing any such factual allegations, each of them was amply supported by the source documentation identified by the Commission. As will be readily apparent, these reasons substantially reiterate the cogent and amply supported submissions of the Commission. The Tribunal would be remiss if it did not acknowledge the effort and scholarship which must have gone into the preparation of the Commission's submissions. 3. Although the practitioner did not participate in the proceedings, challenge any evidence relied upon by the Commission, or adduce any evidence which cast doubt on the reliability of the evidence relied upon by the Commission, the Commission was obliged to, and did prove its case at Stage 1 and Stage 2 to the comfortable satisfaction of the Tribunal. 4. The proceedings were concerned with a general practitioner who was alleged to have breached professional boundaries with three vulnerable patients. The practitioner hugged a female patient who was crying during a consultation (Patient A) and told her she was "very special". He conducted an internal vaginal examination for another female patient (Patient B) then had sexual intercourse with her during consultations, sent her inappropriate messages and told her he loved her. He was also convicted of sexually touching another female patient (Patient C) during a consultation when he rubbed her buttocks, kissed her neck and told her that he had liked her for a long time. The practitioner also failed to keep adequate records of two consultations with Patient C. The practitioner was not registered as a medical practitioner at the date of hearing of the proceedings. Relevant Principles 1. The relevant principles were succinctly, and accurately, summarised by the Commission in the following terms: "a. the protection of public safety and health is paramount; [1] b. the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community; [2] c. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; [3] d. deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession; [4] e. protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession; [5] f. the Tribunal is not bound by the rules of evidence; [6] g. whilst neither the Briginshaw civil standard nor section 140 of the Evidence Act 1995 directly apply to the Tribunal's decision-making, the principles remain relevant, and the Tribunal should be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding; [7] h. the Tribunal is subject to rules of procedural fairness. [8] " 1. As the Commission also succinctly and accurately submitted the Tribunal was required, in the circumstances of this case, to enquire into four matters: "a. first, the Tribunal must consider whether Complaint 1 (conviction) and/or Complaint 2 (failing to maintain appropriate professional boundaries and poor record keeping) are proven; b. second, the Tribunal must consider whether the proven unsatisfactory professional conduct (in Complaint 2) amounts to professional misconduct (Complaint 3); c. third, once it finds the subject matter of the complaint to have been proved or admitted, [9] the Tribunal must consider the appropriate protective orders; d. fourth, the Tribunal must consider whether to make a costs order. [10] " Complaint 1 1. Complaint 1 was in reliance upon the practitioner's conviction for a criminal offence in New South Wales. [11] Pursuant to s 149C(1)(c) of the National Law, the conviction enlivens the Tribunal's power to decide that, if the practitioner were still registered the Tribunal would have cancelled his registration. 2. The practitioner was working as a General Practitioner (GP) at Reliance Health Medical Centre (the Centre). [12] 3. On 2 December 2017, Patient C first consulted the practitioner at the Centre. [13] 4. Between December 2017 and 2 October 2020, Patient C had attended several consultations with the practitioner at the Centre [14] during which the practitioner prescribed medication for anxiety and depression, [15] completed documentation (including to assist her obtain housing, [16] to allow her to access her superannuation [17] and to assist her to obtain carer assistance, [18] medical certificates detailing domestic violence, [19] PTSD [20] and anxiety [21] and a GP mental health care plan detailing PTSD, anxiety, depression, childhood sexual abuse, domestic abuse, homelessness and heart failure), [22] had received documentation (including reports regarding her cardiac condition, [23] mental health report detailing childhood sexual assault, [24] psychological report detailing significant trauma [25] and a psychiatric report recommending long term trauma therapy [26] ) and had made referrals (including for psychology services, [27] hip x-ray [28] and hip ultrasound). [29] The practitioner knew that Patient C had reported housing issues, medical issues and had experienced anxiety and depression due to violence. [30] 5. The Commission alleged, and the evidence established, that on 2 October 2020: "a. the practitioner and the practitioner's wife were both working as GPs at the Centre in West Gosford. [31] b. Patient C [32] attended a consultation with the practitioner at the Centre in West Gosford in relation to hip pain. [33] c. the practitioner said words to the effect of: "You look lovely today". [34] d. the practitioner asked Patient C to lie on her stomach and put gloves and lubricant on his hands. [35] e. the practitioner said words to the effect of: "Any time you are sore when you are here I can help with massages. Can you pull your underwear down?" [36] f. Patient C pulled her underwear down halfway on her buttocks. [37] g. the practitioner pressed both hands on Patient C's buttocks and rubbed her buttocks with both hands. [38] h. Patient C began to cry. The practitioner said words to the effect of: "Are you crying, sookie baby?" [39] i. Patient C sat up on the examination table and the practitioner stood in front of her. The practitioner leant into her and pressed his body up against hers. The practitioner stood between her legs and pressed his whole upper body into hers. The practitioner, now standing between Patient C's legs, kissed her on the neck two or three times before she pushed him away. [40] j. the practitioner said words to the effect of: "[Patient C] I have liked you for a long time"; [41] k. Patient C responded in words to the effect of: "Are you fucking kidding, you are married and you are my doctor. You are crossing the fucking line. What about your wife and kids?" [42] 1. The evidence established that on 2 October 2020 the practitioner also prepared a referral to a spinal clinic, [43] GP Management Plan and Team Care Arrangements [44] and typed a progress note for Patient C [45] which included: "reviwed pain hip nd back geting muc worse Counselled about OA nature reviwed pain hip nd back geting muc worse Counselled about OA nature In bad days --> cold packs , voltaren emugel , support , decrease walking Once pain over --> walk , hot packs , Examination: General: Height: 180cm Weight: 92.2kg BMI: 28.5 loosing weight encouarged Discused overweight [template text regarding weight loss] discussed starting plan to get some services set goals for mobility and control of pain and manage deformities conservatively happy with this idea oral consent given EPC referral done formdoen for hoousing … Actions: GPMP performed TCA performed Prescription printed: [heart medications Digoxin, Eliquis and Entresto, blood pressure medication Nebilet and antidepressant Endep]" 1. The evidence established that on 8 October 2020 Patient C made handwritten notes about the incident. [46] The evidence also established that on 14 October 2020, Patient C contacted police. [47] 2. The evidence established that, on 22 December 2020, the practitioner admitted that he had acted in the manner alleged by Patient C, and that she was owed an apology for such conduct. 3. The Commission submitted, in reliance upon the foregoing evidence, that Complaint 1 was comfortably established by the Local Court records. [48] The Commission relied upon the practitioner's letter acknowledging that he had pleaded guilty to the charges brought against him by police and had been sentenced. [49] At no time has the practitioner disputed any detail of the Local Court proceedings. 4. The Tribunal is comfortably satisfied that this Complaint has been made out. 5. Section 144(a) of the National Law, upon which the Commission relied provides that "a complaint the practitioner has, either in this jurisdiction or elsewhere been convicted of or made the subject of a criminal finding for an offence" has been comfortably established. As submitted by the Commission, the Practitioner's criminal conduct constitutes unsatisfactory professional conduct pursuant to s 139B(1)(a) as conduct falling significantly below the standard reasonably expected of the Practitioner and/or pursuant to s 139B(1)(l), improper or unethical conduct. The conviction also enlivens the Tribunal's cancellation powers pursuant to s 149C(1) of the National Law. Complaint 2 1. Complaint 2 alleged that the Practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that he has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or under s 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 2. The Commission submitted, succinctly and correctly that the principles regarding s 139B(1)(a) of the National Law include: "a. assessing whether conduct falls significantly below the standard reasonably expected involves first ascertaining the benchmark standard which is expected of practitioners in the relevant field, and then how far below that standard, if at all, the proven conduct falls; [50] b. the standard reasonably expected of a practitioner of a particular level of training or experience, is an objective standard to be judged according to the standards of the profession generally; [51] c. the standards and obligations imposed on or expected of practitioners of a particular health profession prescribed in the applicable Codes of Conduct inform the practice of the practitioner's profession, consistent with the requirement to give an expansive meaning to such provisions when instrumentally used in protective legislation such as the National Law; [52] d. the National Law permits the Tribunal to have regard to the Codes of Conduct when considering the standard expected; [53] e. a specialist Tribunal is required to give due weight to expert evidence placed before it by the parties but the ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is the Tribunal itself; [54] f. while the Tribunal is not bound by the expert opinion before it and is entitled to take into account the professional expertise and experience of the professional members sitting on the Tribunal, it would need to state why it thought it appropriate to depart from the expert evidence if it decided to do so. [55] " 1. The Commission further, and again succinctly and correctly submitted that the relevant principles regarding s 139B(1)(l) include: "a. the words "improper" and "unethical" are not defined in the National Law so the Tribunal has considered their dictionary meanings: improper relevantly means not right or not in accordance with propriety of behaviour and unethical relevantly means contrary to moral precept, immoral or in contravention of some code of professional conduct; [56] b. the relevant ordinary meanings of improper include not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong; [57] c. in professional disciplinary proceedings, impropriety means a breach of the standards of conduct that would be expected of a person in the position of the practitioner; [58] d. it is not necessary to state an exhaustive definition of improper or unethical conduct as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession; [59] e. whether conduct is improper is an objective test; [60] f. to make a finding of improper or unethical conduct, it is not necessary for the Tribunal to be satisfied that the conduct is intentional: improper conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct; [61] g. impropriety does not depend on the practitioner's consciousness of impropriety, it consists in a breach of the standards of conduct that would be expected of a person in the position of the practitioner by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case; [62] h. codes approved by the National Board are admissible evidence of what constitutes appropriate professional conduct or practice for the profession [63] and may be relevant to whether conduct is improper or unethical." 1. The Commission relied on the provisions of the Medical Board of Australia Code of Conduct for Doctors and Guidelines: Sexual boundaries in doctor patient relationship (Exhibit HCCC1 Tabs 53, 54, 55). The Commission relied upon the provisions of the Code of Conduct recording that: "a. the community trusts the medical profession. Every doctor has a responsibility to behave ethically to justify this trust. [64] b. providing good patient care includes referring a patient to another practitioner when this is in the patient's best interests; [65] c. a good doctor–patient partnership requires high standards of professional conduct. It involves recognising that there is a power imbalance in the doctor–patient relationship, and not exploiting patients in any way, including physically, emotionally, sexually or financially. [66] d. in some circumstances, the relationship between a doctor and patient may break down or become compromised (e.g. because of a conflict of interest), and may need to end. [67] e. in professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct. [68] f. professional boundaries are integral to a good doctor–patient relationship. They promote good care for patients and protect both parties. Good medical practice involves, maintaining professional boundaries, never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. [69] " 1. The Commission also relied upon the National Board Guidelines: Sexual boundaries and the doctor/patient relationship which apply to all doctors, and provide: "a. An abuse of the doctor-patient relationship an undermines the trust and confidence of patients in their doctors and of the community in the medical profession. Exploitation of the doctor-patient relationship can cause profound psychological harm to patients and compromise their medical care; [70] b. It is never appropriate for a doctor to engage in a sexual relationship with a current patient. [71] c. The doctor-patient relationship is inherently unequal. The patient is often vulnerable and in some clinical situations may depend emotionally on the doctor. …A breach of sexual boundaries in the doctor-patient relationship exploits this power imbalance. [72] d. Breaches of sexual boundaries include engaging or seeking to engage in a sexual relationship with a patient. [73] e. Doctors are responsible for establishing and maintaining sexual boundaries with their patients. [74] f. Doctors need to be alert to warning signs that could indicate that boundaries are being, or are about to be crossed, such as doctors and patients inviting each other out socially or patients asking personal questions or being overly affectionate. [75] g. If a doctor senses any warning signs, or if a patient displays inappropriate feelings towards a doctor or exhibits sexual behaviour, the doctor should consider whether this is interfering with the patient's care and/or placing the doctor or the patient at risk then try to constructively re-establish professional boundaries and seek advice from an experienced and trusted colleague or their professional indemnity insurer. If there is a possibility that sexual boundaries could be breached, or that the doctor may not remain objective, the doctor should transfer the patient's care to another doctor. [76] " Particular 1a – 31 December 2020 – Consultation with Patient A 1. The Commission relied on the medical records of Patient A's consultations with the practitioner. 2. The patient's clinical notes revealed that, on 31 December 2019, Patient A [77] first consulted the practitioner at the Centre. [78] Throughout 2020, Patient A continued to see the practitioner on multiple occasions, both in person and also by phone. [79] During 2020, Patient A disclosed to the practitioner that she was being bullied at work by her boss and that her relationship with her partner was breaking down. [80] During 2020, the practitioner administered PRP (platelet rich plasma) injections to Patient A, [81] referred her for psychology services, [82] completed the K10 questionnaire [83] and prescribed medication including antidepressant Zoloft [84] and weight loss medication Duromine. [85] 3. The Commission submitted that the expert evidence established that the practitioner's conduct on this occasion was below the relevant standard. [86] As the Commission submitted, it was open to the Tribunal to consider this particular in combination with subsequent particulars as constituting unsatisfactory professional conduct. The Commission submitted, correctly, that "an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct". [87] 4. The tribunal was comfortably satisfied that the Commission had made out this particular. Particular 1b 1. The Commission alleged that, on 11 January 2021, later in the afternoon: "a. at 1:20PM, Patient A attended a consultation with the practitioner at the Centre in West Gosford. [88] Patient A did not cry during the consultation. b. (Complaint Two, Particular 1b) The practitioner walked Patient A to the door at the end of the consultation, held out his arms to her for a hug, and they hugged briefly. [89] c. the practitioner typed a progress note regarding Patient A: "discused again her weight durmne helping may ned to go higher dose wil review next month Discused overweight [template text regarding weight loss] Examination: General: Height: 163cm Weight: 100.5kg BMI: 37.8 discusd low back paina dn kne epain one and off [template text regarding back pain] iscused ultrasound shoulder [text copied from ultrasound report [90] ] counsled on nature explained and showed photos discused pathologys nature discussed starting plan to get some services set goals for mobility and control of pain and manage deformities conservatively happy with this idea oral consent given EPC referral done Reason for visit: shoulder bursitis Lumbar spine osteoarthritis GP Management Plan Obesity Actions: Results of Biochemistry, _Glucose, _Haematology, Coags(c), Lipids and HDL, Iron Studies, Thyroid Function, Musculoskeletal Ultrasound Right Shoulder given to patient. GPMP performed TCA performed" [91] d. The practitioner referred Patient A for physiotherapy [92] and billed Medicare for preparing a GP Management Plan and coordinating a Team Care Arrangement for Patient A. [93] " 1. On 14 January 2021: "a. at about 2:00am Patient A saw a post dated 13 January 2021 on the Facebook page 'NSW Central Coast Incident Alerts, News and Information Page' relating to the charging of an unnamed doctor at West Gosford for sexual touching of a patient. [94] b. Patient A contacted police. [95] " 1. The Commission relied upon its expert evidence, which the Tribunal accepted, it having not been challenged, and there being no reason not to, was that the practitioner's conduct fell significantly below the relevant standard [96] . 2. The Commission submitted that the Tribunal would accept Patient A's evidence for a number of reasons: "a. Patient A felt "extremely uncomfortable" after the consultation on 11 January 2021; [97] b. Patient A promptly contacted police on 14 January 2021 as soon as she saw a post mentioning an unnamed doctor because she felt really uneasy and felt that she had an obligation to speak up; [98] c. Patient A signed a detailed statement for police which sets out the evidence that she would be prepared to give in court as a witness (knowing that she is liable to prosecution if it is false); [99] d. Patient A also signed a detailed statement for the Commission which sets out the evidence that she would be prepared to give in the Tribunal (again knowing that she is liable to prosecution if it is false); [100] e. Patient A made herself available to give evidence at the hearing if needed; f. The practitioner did not participate in the hearing so did not object to Patient A's statements, did not require her for cross-examination and did not rely on any written/oral material to dispute her evidence; g. Patient A's statements are credible." 1. The Tribunal is comfortably satisfied that Patient A's evidence should be accepted. It has not been challenged, and there is no apparent reason for rejecting the evidence, or discounting its probative value in any event. The Tribunal is comfortably satisfied that the evidence of Patient A provides ample factual underpinning for the Commission's expert's opinion that the Practitioner's conduct fell significantly below the requisite standard. This particular was established. Particular 2 – Around 13 November 2019 – Consultation with Patient B 1. The Commission alleged that, on or around 13 November 2019, during a consultation at the Centre in Erina, the practitioner inserted his finger inside Patient B's vagina and twisted his finger in circumstances where an internal examination was not clinically indicated for a cyst on the outside of the vagina. [101] 2. The practitioner worked full time and supervised junior GPs working at the Centre. [102] 3. On 4 July 2019, Patient B [103] first consulted the practitioner at the Centre. [104] 4. The Commission alleged that, during a consultation at the Centre in Erina, an internal examination of Patient B was not clinically indicated for a cyst on the outside of the vagina. [105] 5. During the consultation, a nurse was present. [106] The practitioner did not tell Patient B what he was doing or seek her consent. [107] 6. The Commission submitted that the Tribunal would find this particular proven, notwithstanding some uncertainty regarding the precise date of the offending conduct. As the Commission submitted, relying on her handwritten note, Patient B recalled the conduct as having occurred on 13 November 2019. Reliance on the Practitioner's progress notes suggests that the conduct was on 18 February 2020. The particular was, appropriately, framed to accommodate some uncertainty regarding the precise date. 7. As the authorities have consistently recognised, inaccuracy of recollection is not necessarily indicative of mistruth or misremembering. Having regard to the conduct to which she was subjected, it was unsurprising that Patient B had some uncertainty as to the precise date of the conduct. The Tribunal did not find that such uncertainty rendered unreliable the substance of Patient B's complaint. It is improbable that, had he challenged Patient B's account, on that or any other basis, the practitioner would not, at some stage, have at least recorded such challenge. He did not do so. 8. The Tribunal accepted the expert opinion evidence relied upon by the Commission, [108] and was comfortably satisfied that the Practitioner's conduct fell significantly below the requisite standard. This particular was established. Particular 3 – Around 16 February 2020 – Consultation with Patient B 1. The Commission alleged that, on 16 January 2021, Patient B messaged the practitioner at 9:49PM: "... I was paying for after morning pills because you didn't respect …". [109] 2. The Commission relied upon the opinion evidence of its expert [110] that the Practitioner's conduct fell significantly below the relevant standard. The Tribunal accepted both the evidence of Patient B with respect to this particular and the opinion of the Commission's expert in reliance upon it and found the particular established to the Tribunal's comfortable satisfaction. Particular 4 – Around 22 February 2020 – Consultation with Patient B 1. The Commission alleged that, on or around 22 February 2020, Patient B attended a consultation with the practitioner (Complaint Two, Particular 4). [111] On or around 22 February 2020 at the Centre in West Gosford, the practitioner: 1. inappropriately changed Patient B's appointment with another doctor at his practice to an appointment with him without consulting Patient B; [112] 2. inappropriately locked the door to the consult room after Patient B entered; [113] 3. inappropriately questioned Patient B about trying to find another doctor; [114] 4. failed to maintain appropriate sexual boundaries with Patient B when he: 1. told her to lay on the floor and then laid on top of her; [115] 2. undid his belt and jeans and pulled down his jeans and underwear; [116] 3. had sexual intercourse with her; [117] 4. told her to turn over and face the floor and as she was turning said to her, "Can I ejaculate inside of you?"; [118] 5. told Patient B that he was in love with her when she was leaving. [119] 1. On 22 February 2020, the practitioner billed Medicare for a Level B consultation and another medical service with Patient B [120] and typed a progress note for Patient B including: "for her B12 injection known having aplastic anemia no history of gasric or ileal surgery not vegeterian oral consent given explained he needs to wait for 15 minutes to monitor any possible reaction [121] ." 1. On 11 December 2020, the practitioner messaged Patient B: "Do u remember when I changed your booking to be with me when I saw you booked with another dr". [122] 2. The Tribunal was comfortably satisfied that Patient B's allegations of fact should be accepted. The Tribunal was comfortably satisfied that the expert opinion evidence upon which the Commission relied [123] should be accepted, both on the basis that it found ample factual underpinning in the evidence of Patient B and because there was no reason to doubt the reliability of the expert's unchallenged opinion evidence, or, as with every other particular in respect of which the expert's opinions were relied upon, that the opinions were based upon the application of the expert's specialised knowledge and experience [124] . Particular 5 – Around 1 January 2021 – Consultation with Patient B 1. The Commission alleged that, on 1 January 2021, (New Years Day): 1. the practitioner and Patient B exchanged messages including: 2. at 11:51AM Practitioner: "Happy New year my sunshine Waiting to see you [heart emojis]. [125] 3. the practitioner also billed Medicare for a Level B consultation and another service with Patient B [126] and typed a progress note purporting to record a history of "ack pain started few dasy in between shoulder blades", a purported examination and purported medical advice. [127] 1. The evidence in support of this particular established that the practitioner: 1. inappropriately said to Patient B, words to the effect of, "I feel like your dad" in circumstances where her dad had passed away; [128] 2. failed to maintain appropriate sexual boundaries with Patient B, when he: 1. told her to lay face down on the floor; 2. laid down on top of her and pushed her head into the floor using his forearm and had sexual intercourse with her. [129] 1. On 12 March 2021, Patient B's neurosurgeon (Dr Marc Coughlan) typed a file note including "I had a discussion with [Patient B] regarding her back. [Patient B] is very concerned. She apparently had an incident with her general practitioner and has been in discussions with another patient as well as her local police and a detective regarding an issue pertaining to her general practitioner. No details were disclosed. I did suggest that she take the following steps:- …Seek counselling with a counsellor… Discuss this with her local police and pursue this… Contact [AHPRA]…" [130] 2. The Commission relied upon the opinion evidence of its expert [131] that the Practitioner's conduct fell significantly below the relevant standard. Given that, for the reasons which follow, the Tribunal accepted the evidence of Patient B upon which that opinion was based, the Tribunal was comfortably satisfied that the conduct of the Practitioner fell significantly below the relevant standard. Each of the matters referred to by the Commission provided persuasive support for the Tribunal's findings. The cumulative effect of those matters provided compelling support for the findings. 3. The Commission submitted, and the Tribunal accepted, in support of particulars 2 to 5 that Patient B's evidence would be, and was accepted because: "a. Patient B contacted police after disclosing the events to her neurosurgeon, who typed a contemporaneous file note, and encouraged her to contact police; [132] b. Patient B signed a detailed statement for police which sets out the evidence that she would be prepared to give in court as a witness (knowing that she is liable to prosecution if it is false); [133] c. Patient B also signed a detailed statement for the Commission which sets out the evidence that she would be prepared to give in the Tribunal (again knowing that she is liable to prosecution if it is false); [134] d. Patient B's police statement is difficult to follow because it is lengthy and not structured chronologically; [135] e. Patient B's Commission statement explains why her police statement was "muddled" and her medical difficulties at that time; [136] f. the fact of a sexual relationship is supported by the content and tone of the Whatsapp messages (detailed below); g. Patient B made herself available to give evidence at the hearing if needed; h. the practitioner did not participate in the hearing so did not object to Patient B's statements, did not require her for cross-examination and did not rely on any written/oral material to dispute her evidence." Particular 6 – December 2020 to March 2021 – Phone calls and WhatsApp messages with Patient B 1. The Commission alleged that, from July 2019 to December 2020, [137] the practitioner had a number of consultations with Patient B. The practitioner prepared documents for Patient B including medical certificates, [138] referral to a physiotherapist, [139] referral to a neurosurgeon (Dr Coughlan), [140] Aboriginal health assessment [141] and GP Management Plans [142] and Centrelink forms [143] and received documents including from her neurosurgeon. [144] Patient B's medical records mention that she is Aboriginal, [145] a single parent and unemployed [146] and that she reported concerns including nerve pain, [147] significant back pain, [148] B12 deficiency, [149] polycythaemia [blood cancer]. [150] At various times during that period, the practitioner recorded that Patient B had a "very incoherent history", [151] and was at times very stressed and started to cry, [152] "sever stres lots crying" [153] and had issues at home and with Centrelink, [154] anxiety/depression [155] and "lightheadness". [156] 2. The Commission alleged that, from 1 December 2020 to 1 March 2021, the practitioner failed to maintain proper professional and/or sexual boundaries when he: 1. sent 51 inappropriate WhatsApp messages to Patient B [157] ; and 2. made 22 telephone calls to Patient B. [158] 1. During the period that the practitioner messaged Patient B, he also wrote progress notes for four consultations, [159] received reporting letters from her neurosurgeon, [160] referred her to a neurosurgery clinic [161] and billed Medicare for services. [162] 2. On 5 December 2020, the practitioner and Patient B exchanged messages via WhatsApp including: 1. at 11:17AM practitioner: "Can you book next Saturday at 12:10 ??" … "I have my break after Will have good time". [163] 2. at 11:35 AM practitioner: "Can you call and book before Nyone takes it". [164] 3. at 11:57AM the practitioner messaged Patient B a screenshot of the appointment with notes "Long appt. No covid cold fly. JK paperwork JK". [165] 4. at 2:19PM practitioner: "send me a photo" … "a special one". [166] 5. at 2:45PM practitioner: "I have to keep looking at atgat" ... "That picture". [167] 6. at 10:12PM practitioner: "Did you know I cut my hair" with a photo of his head. [168] 7. at 11:15PM practitioner: "I miss your touch". [169] 8. at 10:36PM the practitioner messaged Patient B an image and "I wish you were wearing it next to me here in bed". [170] 9. at 10:38PM practitioner: "I love you". [171] 1. On 8 December 2020, the practitioner and Patient B exchanged messages including: 1. at 2:26PM practitioner: "My son had a surgery". [172] 2. at 10:32PM "I will tell you a lot on Saturday…You will be my psychologist". [173] 3. at 10:35PM practitioner: "I really love you". [174] 4. at 11:03PM practitioner: "Send me photos please I am rubbing it". [175] 5. at 11:04PM practitioner: "Show me your pussy" 6. at 11:05PM practitioner: "Go to the toilet and show me photos of your body please". [176] 7. at 11:15PM Patient B: "Can you wait please We need to speak in person". [177] 8. at 11:20PM practitioner: "[Patient B] I really want a photos of your body All naked...". [178] 9. at 11:21PM Patient B: "I need to speak with you first". [179] 10. at 11:39PM practitioner: "Put your finger in your pussy Play for me please". [180] 1. On 9 December 2020, the practitioner and Patient B exchanged messages including: 1. at 6:26PM Patient B: "...I will see you Saturday". [181] 2. at 9:49PM Patient B: "...I understand you may only need the physical. I'm happy to work with an arrangement if this is your perspective". [182] 3. at 10:20PM practitioner: "Love you". [183] 1. On 10 December 2020, the practitioner and Patient B exchanged messages including: 1. at 10:45AM practitioner: "Can you come today" ... "Last appointment is 2:40". [184] 1. On 11 December 2020, the practitioner and Patient B exchanged messages including: 1. at 11:06AM practitioner: "Can you come today??". [185] 2. at 12:42PM practitioner: "Can't wait to see you tomorrow" … "12 pm sharp" … "You may find me waiting at the clinic door [laughing emoji ]". [186] 3. at 10:32PM practitioner: "Show me you pussy I miss it". [187] 4. at 11:09PM practitioner: "Do u remember when I changed your booking to be with me when I saw you booked with another dr" … "Do you remember first time I examined you" … "My heart rate was 30000". [188] 5. at 11:09PM Patient B: "I do but still all was so confusing". [189] 6. at 11:15PM practitioner: "When you and the cyst. And the nurse was their (sic). My hand was shivering. Couldn't believe it. I wished every one will leave the room and I can just get you in my arms" ... "I never and this feeling of unprofessionalism". [190] 7. at 11:21PM Patient B: "I no you belong to another but the day I felt you inside me I honestly felt you where made for me...". [191] 8. at 11:34PM practitioner: "Do you get mad at me when I get rough a bit during sex". [192] 9. at 11:36PM practitioner: "You hate anal. Because you always refuse it". [193] 10. at 11:47 practitioner: "Love you really". [194] 1. On 12 December 2020, the practitioner and Patient B exchanged messages including: 1. at 1:46PM practitioner: "...Can chat when I am back". [195] 2. at 1:47PM practitioner: "I just don't have phone all the day being with my family in the trip" ... "Afraid any message can get seen". [196] 3. the practitioner also billed Medicare for a Level C consultation and another service with Patient B [197] and typed a progress note purporting to record a history of "sever bouts of diarrhea" and "tension headache", a purported examination and purported medical advice. [198] 1. On 20 December 2020, the practitioner texted Patient B at 4:21PM: "I am back". [199] 2. On 21 December 2020, the practitioner and Patient B exchanged messages including: 1. at 11:22AM practitioner: "Coming today??". [200] 2. at 1:04PM practitioner: "Can you come earlier At 2:20". [201] 3. at 1:36PM Patient B: "...Will try to be there at 2:20". [202] 4. the practitioner also billed Medicare for a Level C consultation and another service with Patient B [203] and typed a progress note purporting to record a history of "cervical cause headaceh", a purported examination and purported medical advice. [204] 1. On 22 December 2020, the practitioner messaged Patient B at 11:46AM: "Miss you alot". [205] 2. On 25 December 2020 (Christmas Day), the practitioner messaged Patient B at 12:12PM: "...Merry Christmas my love [heart emojis, kissing emoji, Christmas tree emojis]". [206] 3. On 26 December 2020 (Boxing Day), the practitioner and Patient B exchanged messages including: 1. at 3:44PM practitioner: "Can I see you Monday". [207] 2. at 3:48PM Patient B: "Is it booked or you want me to call". [208] 3. at 3:50PM practitioner: "Can you do it It is my last appointment But if they say it is booked then don't book any other appointment I will mange and open the booking at 2:40 when I go on Monday". [209] 4. On 28 December 2020, the practitioner and Patient B exchanged messages including: 5. at 11:43AM Patient B: "...I won't be able to make it today I'm so sick...". [210] 6. at 3:48PM practitioner: "Love you dear [heart eyes emojis]. [211] 1. On 30 December 2020, the practitioner and Patient B exchanged messages including: 1. at 12:43PM Patient B: "I will book for tomorrow if it's convenient for you xx". [212] 2. at 12:44PM practitioner: "I think it is already booked Can I call you in the morning to arrange it with you?? I will try to adjust appointments Really miss you". [213] 1. On 31 December 2020, (New Year's Eve): 1. the practitioner and Patient B exchanged messages including: 1. i. at 9:34AM practitioner: "Today is all booked [sad face emojis ] Can I see you tomorrow at 2:30". [214] 2. ii. at 10:13AM Patient B: "... I will see you tomorrow…". [215] 1. On 1 January 2021, (New Years Day): 1. the practitioner and Patient B exchanged messages including: 2. at 11:51AM practitioner: "Happy New year my sunshine Waiting to see you [heart emojis]. [216] 3. 12:35PM Patient B: "… Will see you soon...". [217] 4. the practitioner also billed Medicare for a Level B consultation and another service with Patient B [218] and typed a progress note purporting to record a history of "ack pain started few dasy in between shoulder blades", a purported examination and purported medical advice. [219] 1. On 4 January 2021, the practitioner messaged Patient B at 11:02AM: "[Patient B] ...I miss you so much...". [220] 2. On 6 January 2021, the practitioner and Patient B exchanged messages including: 1. at 12:40PM Patient B: "...When did you want to see me [kiss emojis ]". [221] 2. at 12:49 practitioner: "Monday 11/1. I will be away and that is my first day back. Can I book it under name of one of your children??...". [222] 3. at 1:34PM Patient B: "I really don't want use my kids If you want to book Can you book for follow up on paper work from Dr Coughlan As I am due to get paperwork from him then". [223] 4. at 1:36PM practitioner: "Ok I will for you on Monday". [224] 1. On 9 January 2021, the practitioner messaged Patient B at 3:18PM: "…I love your What app photo". [225] 2. In the morning on 11 January 2021, the practitioner and Patient B exchanged messages including: 1. at 10:05AM Patient B: "...It maybe not the best day to come. I have just finished my cycle today". [226] 2. at 11:03AM practitioner: "I also having a rough day today… I will tell you later Having some bad issues at work…Can we make it Thursday??...". [227] 3. at 11:14AM practitioner: "Love you dear Booked Thursday at 2:30 [kiss emojis]". [228] 1. On 13 January 2021: 1. the practitioner resigned from the Centre. [229] 2. the practitioner messaged Patient B: "…I am in a horrible situation. I won't come to work tomorrow and I may get suspended because of a patient claim…". [230] 3. the practitioner telephoned Patient B and said words to the effect that he was innocent, that a lady accused him of touching her leg, that all he did was to try to help her, and that he paid for her medication. [231] 1. The next day, on 14 January 2021, Patient B saw a Facebook post about a doctor being charged, then the practitioner and Patient B exchanged messages including: 1. at 6:55PM Patient B: "When I'm just starting to concept everything Is it true". [232] 2. at 11:34PM Practitioner: "Not at all All lies…You know me well.. I don't force someone for something.. all lies for money …Sorry you heared from outside…I know that I will prove I am innocent…". [233] 1. The next day, on 15 January 2021, the practitioner: 1. messaged Patient B at 1:07PM: "I didn't do anything...". [234] 2. telephoned Patient B and said words to the effect that the other woman was lying and he was going to counter sue her for slander. [235] 3. the practitioner notified the Australian Health Practitioner Regulation Agency (AHPRA) of his two charges. [236] 1. The next day, on 16 January 2021, Patient B messaged the practitioner at 9:49PM: "... Was it only because I have problem understanding As delusional as I am to being use I honestly was that broken to except That is why I was asking why I have been abuse my [whole] life in this matter The fact you even paid for her medication this is your justification and I was paying for after morning pills because you didn't respect Trying to help you in so many ways To prevent what already was the truth". [237] 2. The next day, on 17 January 2021, the practitioner messaged Patient B at 9:52AM: "... I never tried to hurt you...". [238] 3. On 20 January 2021, Patient B messaged the practitioner at 9:45AM: "I'm so confused". [239] 4. On 1 February 2021, the practitioner messaged Patient B at 10:21AM: "Can I call you??" [240] . 5. On 9 February 2021, the practitioner messaged Patient B at 11:36AM: "Hi" … "I just want to make sure you are ok". [241] 6. On 18 February 2021, the practitioner messaged Patient B at 4:19PM: "So depressed…Just answer please". [242] 7. The next day, on 19 February 2021, the practitioner messaged Patient B at 1:40PM: "Are you ok". [243] 8. On 1 March 2021, the practitioner messaged Patient B at 12:20PM: "Hi". [244] 9. As with earlier particulars, the Tribunal was comfortably satisfied that the evidence of fact of Patient B should be accepted. Patient B's evidence provided ample factual underpinning for the opinions of the Commission's expert. [245] As the Tribunal has earlier recorded, there was no reason to doubt that the opinions expressed by the Commission's expert were not based upon the application of specialised knowledge and experience to assumed, or as it transpired, proven facts. The Tribunal was comfortably satisfied that the particular was made out. 10. The Tribunal was comfortably satisfied that the Practitioner sent the WhatsApp messages to Patient B, for the reasons asserted by the Commission, which were: "a. police copied the messages from Patient B's phone; b. Patient B read and explained the messages; c. the messages are from the practitioner's mobile number (the number listed on his CV [246] ); d. the practitioner's messages identify him (he sent a photo of his face [247] ); e. the practitioner did not participate in the hearing so did not object to the messages, did not require Patient B for cross-examination and did not rely on any written/oral material to dispute the messages." Particular 7 – Inappropriate conduct of a sexual nature towards Patient B 1. The Commission alleged that, by reason of Particulars 2 to 6 (above), individually or in any combination the practitioner: i. used medical appointments to pursue an inappropriate ongoing personal relationship with Patient B; and/or ii. used medical appointments to pursue an inappropriate ongoing sexual relationship with Patient B; and/or iii. engaged in inappropriate conduct of a sexual nature towards Patient B. 1. For Particular 7i and ii, the evidence established that the practitioner asked Patient B to make appointments at his medical centre to pursue his ongoing and sexual relationship with her, for example: 1. 5 December 2020 "Can you book next Saturday at 12:10 ??" … "I have my break after Will have good time". [248] 2. 26 December 2020: "Can I see you Monday". [249] [Patient B: Is it booked or you want me to call" [250] ] "Can you do it It is my last appointment". [251] 3. 30 December 2020: "Can I call you in the morning to arrange it with you?? I will try to adjust appointments Really miss you". [252] 4. 6 January 2021: "Practitioner: "that is my first day back. Can I book it under name of one of your children??...". [253] 5. 11 January 2021: "Love you dear Booked Thursday at 2:30 [kiss emojis]". [254] 1. With respect to Particular 7iii the Commission submitted that: "a. the Tribunal may consider the conduct in context and surrounding circumstances, [255] some conduct may be self-evidently sexualised due to the combination of the act and the circumstances [256] - the Commission is not required to prove the practitioner's subjective intention; [257] b. the practitioner twisted his finger inside Patient B's vagina (a sexual body part) with no clinical indication to do so (particular 2) which is inappropriate conduct of a sexual nature towards her particularly noting his subsequent messages describing that consultation "Do you remember first time I examined you" … "My heart rate was 30000" [258] "When you and the cyst. And the nurse was their (sic). My hand was shivering. Couldn't believe it. I wished every one will leave the room and I can just get you in my arms" ... "I never and this feeling of unprofessionalism". [259] c. the practitioner twice engaged in sexual intercourse with Patient B at the Centre and told her he was in love with her (particulars 3 and 4) which is self-evidently inappropriate conduct of a sexual nature towards Patient B, particularly in circumstances where he also asked her if she was married, [260] kissed her [261] and grabbed her breasts. [262] d. the practitioner again engaged in sexual intercourse with Patient B at the Centre (particular 5) which is also inappropriate conduct of a sexual nature towards Patient B, particularly in circumstances where he messaged "Happy New year my sunshine Waiting to see you [heart emojis]. [263] e. the practitioner sent inappropriate messages to Patient B (particular 6ii) which is also inappropriate conduct of a sexual nature towards Patient B, particularly in circumstances where the messages include expressions of love and sexually explicit requests ("I really love you"…. "Send me photos please I am rubbing it". …"Show me your pussy"). 1. The Tribunal was comfortably satisfied that each of the factual allegations upon which the Commission relied in support of this particular had been proved and that, accordingly, the particular was made out. Particular 8a – 22 December 2020 – Documenting phone call with Patient C 1. The Commission alleged that, on 22 December 2020: 1. Patient C had a telephone consultation with the practitioner. [264] 2. during the call, Patient C said "I'm a bit traumatised over what happened and I'm a bit triggered by you doing, doing that to me in the room. Trying to lock the door, and trying to kiss me", Patient C suggested talking about it on the phone, the practitioner suggested Patient C come to the practice, the practitioner said "You know how I care about you [Patient C] from the beginning and I was always trying to help you", [265] Patient C asked for an apology "I'm sorry Doctor but my mental health is Effed" and the practitioner responded "You know, you deserve it, and maybe when I explain to you, you will understand more, but you deserve an apology". [266] 3. The practitioner prepared a progress note regarding Patient C. [267] "Phone consultation as requested by patient and booked by him Started phone consultation by identifying patient and acquire oral consent including advice about the limitations of telehealth. Inquired also if this is a good time for the consult couldnt come from Newcastle Needs her fluvoxamie she says her mental stae is not too good she is not having suicdal thoughts has god plan for christams family coming encouarged no side efcst with fluvoxamine encouarged she also needs other tablets explained already has repastr will check with chemist will need to come to see me after christams, encouarged offeed support whnever needed At the need on consultation , i checked back on the patient and make sure has understood the consult. … Celestone M 0.02% Cream ceased. Prescription printed: Fluvoxamine [antidepressant] 50mg Tablet 1 Tablet In the evening As directed" 1. The Commission alleged that the practitioner failed to accurately and/or sufficiently record in his progress notes, the exchanges between him and Patient C during the telephone consultation. [268] 2. The Commission submitted that the Practitioner's progress note was insufficient because it did not record the discussion about the psychological difficulties experienced by Patient C (traumatised, triggered, struggling) as a result of their last consultation (doing that to me in the room, trying to lock the door, trying to kiss me) or her request for an apology. [269] The Practitioner's progress note was also assertedly inaccurate in that it mentioned, but he did not discuss that "she is not having suicdal thoughts" and "no side efcst with fluvoxamine". 3. The Tribunal had regard to the standard of medical records required of practitioners, and reasons for it articulated in the Code of Conduct: "good medical practice involves keeping accurate … records that report relevant details of clinical history … information given to patients, medication … and other management in a form that can be understood by other health practitioners." [270] 4. The Tribunal accepted the expert evidence relied upon by the Commission that the Practitioner's records fell significantly below the benchmark standard established by the code and the Commission's expert evidence. The particular was made out as the practitioner's conduct fell significantly below the relevant standard. [271] Particular 8b – 11 January 2021 – Documenting consultation with Patient C 1. The Commission alleged that, on 11 January 2021, in the afternoon: 1. at 12:20PM, Patient C attended a face-to-face consultation with the practitioner at the Centre in West Gosford. [272] Patient C and the practitioner exchanged conversation including: "Patient C: … You know what you did last time to me, in the room here was a bit, bit wrong Practitioner: A lot wrong Patient C: You know kissing me, trying to lock the door, rubbing my backside, massaging it. Telling me I'm a sookie baby. You know that's not good for my health. You know that. Why did you do that? Practitioner: It was a mistake I know [273] … Patient C: Majorly. You did so many things to me that day that were so wrong. Touching me. Kissing my neck. Locking the door. Telling me you have feelings for me. I do not know what is going on in your head, but you know exactly what's going on in my life and in my head. You have it on record. For you to use that against me Practitioner: I know Patient C: Or towards me, for your own feelings. Could you not have said to me in a different way how you felt. Beyond how you, what you did? You could have said, [Patient C] no more longer can you be my patient. Ethically, morally, you did...you fucked me up Practitioner: I'm sorry. I know [274] … Patient C: So, you admit that you kissed me? You admit that you locked the door…and you admit that you touched me inappropriately. Is that what you admit? Cause I need to hear you say that Practitioner: If you even go for anything that is against me, I will admit it, I will not say anything. [275] … Patient C: You admit you kissed me? You admit you touched me? You admit you tried to lock the door? Practitioner: Yes. [276] 1. the practitioner typed a progress note regarding Patient C: [277] "conulation only 21 min late notes forgot to stop the time she has ben strsed lately still in newcastle she is stil going with housingl, stressing her she also struggle with her back pain no suidal thoughts encouarged discused teh psychologist, still having reviews cant sleep well lately discussed sleeping strategies [template text re sleep] also discused mirtazipine, she is concerned on weight gain wil increase her strss counled on melatonin will try it and review efefct Reason for visit: Stress Sleep disturbance Actions: Prescription printed: Melatonin 2mg [sleep medication]" 1. The practitioner failed to accurately and/or sufficiently record in his progress notes, the exchanges between him and Patient C during the face-to-face consultation [278] , as the Practitioner's progress note was insufficient because it did not record the discussion about the Practitioner's inappropriate remarks and actions at the consultation (on 2 October 2020) and his apology which were sufficiently significant to warrant recording in the clinical notes. [279] The Practitioner's progress note was also inaccurate in that it mentioned "no suidal thoughts" and "discussed sleeping strategies" but that was not discussed. 2. The Commission relied upon expert opinion evidence in support of its claim that the Practitioner's conduct fell significantly below the relevant standard. [280] 3. The Tribunal accepted the expert opinion evidence upon which the Commission relied, and did so for the reasons which have previously been recorded. 4. The Commission submitted, and the Tribunal accepted that Patient C's evidence should be accepted for the reasons advanced by the Commission: "a. Patient C promptly made handwritten notes 6 days after the incident [281] and was emotional and upset when she contacted police 12 days after the incident; [282] b. Patient C signed a statement for police (including about the subsequent call and consultation) which sets out the evidence that she would be prepared to give in court as a witness (knowing that she is liable to prosecution if it is false); [283] c. police reviewed the transcripts of the subsequent call and consultation and signed that they are accurate; [284] d. Patient C made herself available to give evidence at the hearing if needed; e. the practitioner did not participate in the hearing so did not object to Patient C statements or the transcripts, did not require Patient C for cross-examination and did not rely on any written/oral material to dispute her evidence or the transcripts; f. Patient C's statements are credible." 1. With respect to whether the proven conduct of the Practitioner constituted unsatisfactory professional conduct, the Commission submitted: "The same conduct can amount to unsatisfactory professional conduct under section 139B(1)(a) or section 139B(1)(l) of the National Law. [285] " 1. The Commission submitted that the Tribunal would accept, and the Tribunal did accept the expert evidence to which reference has earlier been made and made findings under s 139B(1)(a) of the National Law that the Practitioner's conduct fell significantly below the requisite standard, and did so on the basis asserted by the Commission which was that: 1. the expert was well qualified and experienced; [286] 2. the expert was briefed with the relevant material; [287] 3. the expert agreed to comply with the Expert Code of Conduct; [288] 4. the expert explained his opinion in his written report; [289] 5. the practitioner did not require the expert for cross-examination; 6. the practitioner elected not to serve any opposing expert evidence. 1. The Commission further submitted that the Tribunal would, and has made findings under s 139B(1)(l) of the National Law that the practitioner's conduct was improper and unethical. The Tribunal so found on the basis asserted by the Commission which was that: 1. in general terms the Tribunal did not require expert evidence to make a finding under section 139B(1)(l) of the National Law (there are several examples of complaints against health practitioners [290] of improper and unethical conduct which were proven by reference to the relevant codes of conduct, without expert evidence); 2. the practitioner's conduct was improper because, viewed objectively, it would be regarded by reasonable persons as falling below the standards of conduct to be expected of practitioners, in that it had a tendency to bring the profession into disrepute; and 3. the practitioner's conduct was unethical because it was inconsistent with the Code of Conduct. Complaint 3 – professional misconduct 1. Complaint 3 was about professional misconduct and relied on the same evidence as Complaint 2. 2. The Commission submitted, and the Tribunal accepted that the relevant principles included: "a. professional misconduct is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation; [291] b. whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment; [292] and c. 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. [293] " 1. The Commission submitted that the conduct in Complaint 2 Particulars 2 to 7, alone or together, was of a sufficiently serious nature to justify cancellation because: "a. the objectives of the national scheme include 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; [294] b. the practitioner must have known the importance of maintaining professional boundaries (he was first registered as a medical practitioner in Australia in 2015, [295] he worked as a GP at medical centres in Victoria then NSW since 2015 [296] and had completed a Fellowship of the Royal Australian College of General Practitioners in 2016, [297] he was regarded as a senior doctor at the Centre who supervised many junior doctors and taught them how to establish patient doctor relationship [298] ); c. when the practitioner first felt a "feeling of unprofessionalism" [299] when examining Patient B, he should have stopped the consultation and sought professional guidance (he could have sought advice from the other general practitioners working at the Centre, reached out to a more experienced medical practitioner, contact the practice manager, his insurer, his professional organisation or access professional resources about how best to maintain professional boundaries and safely transfer care to another medical practitioner) - rather than start a sexual relationship; d. after engaging in sexual activity with Patient B, the practitioner faced an obvious conflict of interest so should have immediately ended the professional relationship – rather than continue to provide medical services while continuing a sexual relationship; e. the practitioner's conduct was extensive (an invasive unnecessary vaginal examination, sexual intercourse on three occasions and inappropriate messages over three months); f. breaching professional boundaries poses a risk of harm (there is an inherent imbalance of power between a medical practitioner and any current patient [300] ); g. the practitioner's conduct posed a risk of psychological harm to Patient B (who was vulnerable because she was a 38 year old Aboriginal single mother, lying on the examination table with her vagina exposed, with a history including spinal surgery [301] and nerve pain) and jeopardised the therapeutic relationship; h. the practitioner continued to send messages to Patient B until 1 March 2021 (which is well after he was arrested on 12 January 2021, after he notified AHPRA of his charges on 15 January 2021 and even after the section 150 hearing on 5 February 2021)." 1. The Tribunal was comfortably satisfied that each of the Complaints of the Commission with respect to unsatisfactory professional conduct was made out and that, at the very least, the cumulative effect of the proven unsatisfactory professional conduct of the Practitioner was more than sufficiently serious to justify a finding of professional misconduct. Were it necessary to do so, the Tribunal would have found that the proven unsatisfactory professional conduct of the practitioner with respect of Patients A, B or C was sufficiently serious to constitute professional misconduct. 2. Having found professional misconduct proven, the power to cancel or suspend the practitioner's registration would have been enlivened pursuant to s 149C of the National Law, had the practitioner been registered. As is not in doubt, the practitioner was not registered. In those circumstances, the power which the Commission sought to enliven was that provided by s 149C(4)(a) of the National Law. 3. The Commission submitted, and the Tribunal accepted, that the relevant principles included: "a. the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community; [302] b. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; [303] c. deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession; [304] d. protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession; [305] e. the Tribunal's jurisdiction is primarily protective, not punitive; [306] f. it is unavoidable that protective orders may be incidentally punitive; [307] g. asserted reformation of a practitioner's character is exceptional and requires clear proof." [308] 1. Section 149C(4)(a) of the National Law provides that, professional misconduct having been proved, if the practitioner was no longer registered, the Tribunal may "decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration". The scope and purpose of the provision is not in doubt. In a case of the present kind, once it is accepted that cancellation of registration is required to protect the health and safety of the public, the practitioner being unregistered, proceeding in reliance upon s 149C(4)(a) is almost inevitable. 2. The Commission submitted, and the Tribunal accepted that the relevant principles with respect to the power reposed in the Tribunal by s 149C(4)(a) included: "a. it is not necessary to make a finding that the practitioner is probably permanently unfit to practise before registration can be cancelled; [309] b. whether the conduct is sufficiently serious to warrant cancellation is a matter of degree and judgment [310] which requires an assessment of the gravity of the conduct found proved, and consideration of remorse and insight, if any, demonstrated by the practitioner; [311] c. cancellation may, in serious cases, be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession. [312] " 1. The Commission submitted that "cancellation of the practitioner's registration via s 149C(1)(c) of the National Law" was justified because the circumstances of the practitioner's criminal offence rendered him unfit in the public interest to practise. In support of that contention the Commission submitted, and the Tribunal accepted, that the relevant principles included: "a. the National Law does not contain a definition of "unfit in the public interest to practise" and this term should be interpreted in light of the objects and guiding principle in the National Law; [313] b. whether a practitioner is unfit in the public interest to practice will require consideration of the nature of the conviction and the circumstances in which the offence was perpetrated; [314] c. 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; [315] d. whether a practitioner is unfit in the public interest to practice will consider both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and where there is a close nexus between the criminal conduct and professional role and responsibilities, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continues to practise. The serious nature of the offences and the length of time over which they occurred, may cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a convicted practitioner lacking rehabilitation and insight; [316] e. whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability which takes into account the wider context of the practitioner's conduct, including motivation, insight into the harm caused and any attempts at remediation. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards and public confidence in the health professions. [317] f. for the purposes of section 149C(1)(c), there is no requirement that the offending occur in the practice of the profession, [318] the "public interest" consideration may include consideration of whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the honourable practice of an honourable profession, the word "unfit" in section 149C(1)(c) should not be constrained to exclude a criminal conviction for crimes which have the capacity to bring the profession into disrepute and it is not necessary for a nexus to be established between the criminal offence and the practice of the profession. [319] " 1. With respect to the practitioner's proven criminal conduct, the Commission submitted, and the Tribunal accepted that he was unfit in the public interest to practise as a medical practitioner. The matters upon which the Commission particularly relied asserted: "a. The nature and gravity of the offence. The practitioner sexually touched Patient C without her consent, knowing she did not consent, in circumstances of aggravation, namely being a person in authority as her GP. Parliament has indicated that aggravated sexual touching is a serious offence by setting a maximum penalty of 7 years imprisonment. [320] The practitioner's offending posed a risk of psychological harm to Patient C (who was vulnerable because she was a 49 year old woman, lying on the examination table with her buttocks exposed, crying, with history a history including PTSD, anxiety, depression, childhood sexual abuse, domestic abuse, homelessness and heart failure) and jeopardised the therapeutic relationship. The Magistrate stated that Patient C was entitled to assume that the practitioner could be trusted in touching her appropriately for the purposes of treatment. The fact that, under the guise of treatment, that trust was abused clearly goes to the heart of the offending in this matter. It clearly is what makes these types of charges so serious. Criminal interference with the bodies of persons seeking healthcare will be met with stern retribution and matters such as these exemplify the extreme vulnerability of patients and taking advantage of that situation for self-gratification attracts general and personal deterrence. It is clear that practitioner failed any observance of his fundamental ethical responsibilities and the Magistrate was satisfied that the practitioner's offending crossed the threshold for a sentence of imprisonment. [321] b. The potential relevance of the offence to health practice. Inappropriately touching a current patient during an examination at a medical centre is directly relevant to the practice of medicine. Patient C attended the consultation because she sought medical help for her hip pain. When the practitioner first felt "feelings and things inside me" when examining Patient C, he should have should have stopped the consultation and sought professional guidance. Patient C only obeyed the practitioner's directions to lay on the examination bed and pull her underwear down because of his position as her GP. The practitioner must have known that his offending was not appropriate during the medical consultation ("I came close to her and I touch her shoulder and I kissed her on the neck. And so I knew very well how this can be big problem, something we learn, we teach younger doctors, we talk about all the time, we attend courses" [322] ). The practitioner's actions during the medical consultation (pressing his whole upper body into hers, rubbing his buttock and kissing her neck) and his words ("Are you crying, sookie baby?" and "I have liked you for a long time") are incompatible with safe medical practice. The practitioner's offending is not compatible with the values required for good medical practice - practitioners must ensure their conduct justifies the trust patients and the public place in the profession. [323] c. The period of time since the offence were committed. The offence was committed on 2 October 2020 and promptly reported to police. d. The conviction and sentence imposed. On 11 June 2021, the practitioner pled guilty was convicted and sentenced to 14 months imprisonment to be served by intensive correction order (ICO), with conditions including that he participate in any program/treatment/intervention specified by Community Corrections. [324] e. The age of the practitioner. At that time of his offending, the practitioner was 38 years old, a registered medical practitioner who must have been well aware of his obligation to comply with the criminal law. f. The practitioner's behaviour after committing the offence. After committing the offence, the practitioner declined to answer police questions regarding Patient C [325] and initially pleaded not guilty to the criminal charges. [326] g. The practitioner's explanations. The practitioner explained to the section 150 delegates "on that day I had feelings and things inside me … I wasn't thinking properly and when she looked at me … after I had finished examination of the back she was on her tummy and she turned her face toward me and looked at me and I felt that it was like a message, maybe she had feelings". [327] The practitioner explained to Dr Friend (psychiatrist) [328] that during the physical examination of Patient C's hip (on 2 October 2020), she reacted in a way that made him believe momentarily that she was physically attracted to him, he felt flattered that he was the "kind of man a woman might be attracted to" [329] then he impulsively kissed Patient C on the neck. [330] The practitioner explained to Ian Kilpatrick (psychologist) that when he had applied pressure to the upper part of Patient C's buttocks (on 2 October 2020) while doing a hip, back and sacroiliac examination, Patient C made "pleasure sounds" then he kissed her neck. [331] The practitioner explained to the Community Corrections Officer that he thought at the time (on 2 October 2020) that Patient C had some feelings for him, that he "just kissed her" and "didn't think" and he was suffering stress and fatigue at the time which he attributed to the financial pressure of his autistic daughter's high needs and medical expenses. [332] The Commission submits that the practitioner's attempts to shift blame to Patient C do not justify the practitioner's conduct and the circumstances of his offence render him unfit in the public interest to practise medicine." 1. The Tribunal accepted the contention of the Commission that the circumstances of the practitioner's admitted criminal conduct rendered him unfit in the public interest to practise as a medical practitioner. 2. The findings of fact recorded earlier in these reasons provide ample evidentiary foundation for the Tribunal's comfortable satisfaction that, whether in reliance upon his proven criminal conduct, or the cumulative effect of other offending conduct, the practitioner was unfit in the public interest to continue to practise. As the Commission submitted, [333] there was no suggestion that the facts to which the practitioner pleaded guilty in the Local Court were inaccurate in any relevant way. Disqualification period 1. In its formal application, the Commission sought a "3-5 year disqualification period". In opening the Commission's case, Counsel confirmed that the Commission was seeking the upper end of the range, a 5 year disqualification period. The Tribunal enquired whether, if the Tribunal considered that a longer disqualification period was called for, it could do so without giving notice of that inclination to the practitioner, and adjourning the proceedings in order to afford the practitioner the opportunity to be heard in opposition to a disqualification period of more than 5 years' duration. Sensibly in the Tribunal's view, the Commission did not seek to pursue that course. 2. As is not in doubt, a disqualification period does no more than provide a period within which a person may not seek reregistration. It does not in any way convey an inference, to the public or to the practitioner that, after the disqualification period expires, the person should be reregistered. It is merely the opportunity to then apply for re-registration. Ultimately, having regard to the nature of the disqualification period, the Tribunal was comfortably satisfied that such a disqualification period was appropriate in all the circumstances, and having regard to the principles relevant to the determination of such period. 3. The Commission submitted, and the Tribunal accepted that the relevant principles included: "a. the Tribunal has the power to set a disqualification period; [334] b. setting a disqualification period is to protect the health and safety of the public; [335] c. the Court of Appeal has cautioned against relying on the "range" of orders made in previous disciplinary proceedings and emphasised that the predominant consideration is the protection of the public; [336] d. the fixing of a period of non-review (where a practitioner is still registered) or a disqualification period (where a practitioner is no longer registered) provides for the safety of the public by ensuring that who are suitably trained and qualified to practise in a competent and ethical manner are registered, [337] by sending a clear message of denouncement of the practitioner's conduct to other professionals, by attempting to predict the time in which a practitioner may reasonably take steps to rehabilitate, by indicating the minimum period within which the Tribunal considers the person should not be able to practise their profession, by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach and by holding open to the practitioner the possibility of return to the profession at a later time; [338] e. each matter turns on different facts and subjective circumstances and different Tribunals may exercise their discretions differently, so the non-review periods or disqualification periods imposed in previous matters do not set a benchmark for subsequent cases. [339] " 1. The Commission submitted orally that a 5 year disqualification period was appropriate for a variety of reasons. Those reasons included: "a. the practitioner engaged in multiple significant breaches of the standard of care; [340] b. his conduct continued, in total, over about 15 months; c. his conduct posed a risk of psychological harm to Patient A (who was vulnerable because she was a 51 year old woman, crying during the consultation, with a history including workplace bullying, relationship difficulties and depression) and also posed a risk of harm to Patient B and Patient C (as outlined above)." 1. The Commission frankly, and appropriately, submitted that the practitioner could not be "trusted to be open and honest about his conduct", so would need a "lengthy period" to demonstrate reformation of character. The Tribunal accepted that contention. The evidence before the Tribunal provided no basis for confidence that the practitioner could demonstrate the reformation of character which the authorities establish to be necessary. 2. The Commission relied upon a number of matters in support of its contentions with respect to the need for a "lengthy period" of disqualification. Those contentions were amply supported by evidence before the Tribunal which was accepted and included: "a. the practitioner assured Patient B (the day after he was charged with police) that he was innocent, that a lady accused him of touching her leg, that all he did was to try to help her and he paid for her medication [341] but he later pleaded guilty to sexually touching Patient C (rubbing her buttocks and kissing her neck); b. the practitioner (in oral submissions from his counsel during the section 150 hearing) assured the Council that the practitioner's conduct with Patient C was "one isolated incident" [342] but the practitioner had an ongoing sexual relationship with Patient B and continued messaging her after the section 150 hearing; c. the practitioner assured the Community Corrections Officer that his offending behaviour (touching Patient C) was "completely out of character" [343] but he had engaged in even more serious conduct (sexual intercourse on multiple occasions with Patient B); d. the practitioner assured Dr Friend (psychiatrist) in 2021 that he would never have a sexual relationship with the patient, he would never think about having sexual intercourse in his office, [344] he had never had an extramarital affair, that this type of conduct was not in keeping with his character and he had never engaged in this type of behaviour previously [345] but he had an extramarital affair with Patient B in 2019-2021 including sexual intercourse with her in his office on three occasions; e. the practitioner (in correspondence from his solicitor) in 2021 assured the Commission that the practitioner's conduct with Patient C was a "once-off isolated incident" [346] but the practitioner had also breached professional boundaries with Patient A and Patient B." 1. The Tribunal accepted that the practitioner would need a lengthy period to engage in "meaningful reflection, complete relevant rehabilitations/treatment/therapy and genuine insight". Acceptance of the Commission's contentions was amply supported by the Commission's reliance upon the following matters: "a. the practitioner obtained a psychiatric report to assist with his criminal proceedings but was "at a loss to make sense of" his conduct towards Patient C, "thought that she would not mind", [347] his psychiatrist noted that "at some level he was well aware of what could happen if professional boundaries are transgressed" and he remained "perplexed" about why he behaved as he did; [348] b. the practitioner also obtained a psychologist report to assist with his criminal proceedings but did not know why he kissed Patient C and assured his psychologist that he never had any plans or inclination to try to establish a personal or romantic relationship with her or any other patient; [349] c. the practitioner declined to respond to the complaints regarding Patient A and Patient B, [350] elected not file any statement, reports or references and did not attend the Tribunal hearing there is no evidence of current insight." 1. The Tribunal accepted that the evidence with respect to those matters provided compelling support for the 5 year disqualification period sought by the Commission. As the Commission submitted the 5 year disqualification period was appropriate to protect the public in circumstances where: "a. although the practitioner has surrendered his registration [351] and stated he has no intention to return to practice, [352] his views may change in future; b. a disqualification period protects the public by setting a minimum period before which the practitioner will be able to seek reinstatement in future; c. a 3-5 year disqualification period will make clear to the practitioner and other practitioners the seriousness with which the Tribunal views sexual activity with current patients; d. that time is needed to censure the practitioner's conduct and send a strong message, to him and other practitioners, that such conduct cannot be condoned." Prohibition Order 1. The Commission sought, and the Tribunal granted a prohibition order because the Tribunal accepted that the practitioner posed a "substantial risk to the health of members of the public". The grounds upon which the Commission successfully sought such prohibition provided compelling reasons for the Tribunal doing so. Those reasons asserted: "a. the phrase substantial risk is not defined in the National Law and has been considered by the Tribunal as a risk that is material and real or apparent on the evidence, and not a risk that is without substance or speculative; [353] b. 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 the person were to be involved in the provision of health services; [354] c. the practitioner may seek unregistered work in areas which would bring him in regular contact with female patients (such as massage therapy or healing); d. the practitioner could work as a self-employed unregistered health practitioner (subject to no oversight or monitoring); e. the practitioner poses a risk of inappropriately touching female patients who he may treat as an unregistered health practitioner (females he is attracted to or females he assumes are attracted to him); f. the practitioner engaged in inappropriate conduct over a lengthy period (including sexual intercourse on three occasions at the Centre) so he may engage in inappropriate conduct with female patients as an unregistered health practitioner in future; g. the practitioner engaged in extremely risky conduct (including unprotected sex with Patient B) so he may take risks as an unregistered health practitioner in future; h. the practitioner took extraordinary risks on a single day (in the morning of 11 January 2021, he messaged Patient B about rescheduling her next appointment, apparently so they could have sexual intercourse after her menstrual cycle, then in the afternoon he had a consultation with Patient C and told her he was sorry for kissing and touching her and then later that same afternoon he had a consultation with Patient A and held out his arms and hugged her); i. the practitioner engaged in grooming behaviour targeting vulnerable women (including telling Patient A "You are very special to me too", [355] asking Patient B if she was married and telling her he was in love [356] and complimenting Patient C "You look lovely today" [357] and offering her additional services "Any time you are sore when you are here I can help with massages" [358] ); j. a chaperone was ineffective to reduce the risk of inappropriate conduct (when the practitioner twisted his finger in Patient B's vagina without clinical indication, a nurse was present [359] ); k. further education was ineffective to reduce risk (on 24 January 2021, the practitioner completed the Avant (online) course on Managing boundary issues for patients with mental health issues and the AMA (1 hour) course on Maintaining Clear Sexual Boundaries [360] but then the practitioner continued to message Patient B on 1 February 2021 ("Can I call you??" [361] )); l. self reflection is ineffective to reduce risk (when asked by the Council [362] "Are there areas of your practice you would like to improve?" the practitioner wrote "Alcohol & Drug dependence problems" [363] ); m. therapy is ineffective to reduce risk (when the practitioner first consulted a psychologist, [364] he did not initially mention the incident with Patient C. [365] The Tribunal cannot place any weight on the psychiatric report [366] and the psychologist report [367] which speculate about future risk because they were unaware of the practitioner's conduct toward Patient A and Patient B); n. a supportive marriage is ineffective to reduce risk (although the practitioner assured the section 150 delegates "I'm trying to put the things back on the right track for everything… I'm happy with my wife by my side [368] and assured the Community corrections officer that he has a positive and stable marriage [369] ), he engaged in sexual intercourse with Patient B after his wife started working as a GP at that medical centre [370] and he told Patient C "I have liked you for a long time" [371] on a day when his wife was working as a GP at the same medical centre. [372] o. the practitioner did not voluntarily cease his conduct (his conduct towards Patient A only ceased when she left the practice and did not return, his conduct towards Patient B only ceased because she changed her mobile number so he could not contact her anymore [373] and his conduct towards Patient C only ceased when she pushed him away [374] ); p. the practitioner cannot be trusted to provide safe care as an unregistered health practitioner; q. if the practitioner were permitted to provide health services during the period when his registration is cancelled, it would substantially undermine the protective purpose of that order. [375] " 1. The proven misconduct of the practitioner comfortably satisfied the Tribunal that, to the fullest extent possible, the public should be protected from the unacceptable risk that the practitioner providing health services of any kind would constitute. The established defects of character, and unfitness of the practitioner to do so provided compelling support for the order sought by the Commission. Notation 1. Counsel for the Commission, in a carefully articulated closing submission, raised "grounds for suspicion" that the practitioner may have provided health services at a time when his registration was suspended. Counsel referred to pages 512, 752 and 1856 of the Commission's material in support of that concern, and drew the provisions of s 102(3) of the Public Health Act 2020 (NSW) to the Tribunal's attention. That section provides that "a person must not provide a health service in contravention of a prohibition order" and provides a maximum penalty for an individual of 550 penalty units, or imprisonment for 3 years, or both". 2. The Act defines "health service" as having the same meaning as it has in the Health Care Complaints Act 1993 (NSW) (s 5). The Act defines "prohibition order" as an order under s 45 of the Act. Section 101 relevantly defines "prohibition order" as including a prohibition order made under the National Law which would encompass an order pursuant to s 150 suspending the Practitioner's registration. 3. The evidence to which the Commission referred supported its "suspicion". The Tribunal recorded a notation with respect to s 102(3) of the Public Health Act to signal to the practitioner, other providers of health services, and the public of the seriousness of the practitioner attempting to provide health services during the 5 year prohibition period which the Tribunal ordered. 4. As the Tribunal's orders of 4 March 2024 made clear, during the period of his disqualification, the practitioner is prohibited from providing any health service. On the evidence before the Tribunal, and the findings which the Tribunal has recorded in these reasons, for the practitioner to be able to provide any health service, unless he satisfies the relevant regulatory authority that it would be safe for him to do so, would constitute an unacceptable risk to the health and safety of the public. 5. For the avoidance of doubt or uncertainty by providers of health services or the public, the Tribunal was conscious that s 4 of the National Law defines "health service" to include, whether provided as public or private services: "(a) services provided by registered health practitioners; (b) hospital 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) to (g); (i) services provided by dieticians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services." 1. It is difficult to imagine a health service which does not involve contact between the health service provider and a patient. On the evidence before the Tribunal in this case, any contact between the practitioner and a member of the public in any of those circumstances would constitute an unacceptable risk to the health and safety of the public. Costs 1. The Commission sought an order that the practitioner pay its costs of the proceedings as agreed or assessed on a party and party basis. Clause 13(1) of Schedule 5D of the National Law empowers the Tribunal to make an order for costs. The principles governing costs were not in doubt and provide that: 1. costs are awarded to compensate the successful party and, as a general rule, costs of proceedings before the Tribunal should follow the event; [376] 2. the presumption that a successful party is entitled to receive its costs is generally only displaced where there has been some disentitling conduct by the successful party. [377] 1. The Commission was wholly successful in the proceedings. There has been no disentitling conduct. The Commission was amply entitled to its costs. Had the Commission sought indemnity costs, the Tribunal would have seriously considered awarding costs on the indemnity basis. Notwithstanding that the practitioner provided no resistance to the Commission's claim, and with respect to his criminal conviction, could not have done so, as the submissions of the Commission, which the Tribunal accepted without exception, made clear, not only did the Commission have to prove its case, it had to compile and adduce a considerable body of evidence, obtain expert opinion evidence, and prepare its submissions. The Tribunal was comfortably satisfied that the Commission was thoroughly entitled to its costs and so ordered. Orders 1. The respondent is guilty of professional misconduct. 2. Order pursuant to s149C(i)(a) or the National Law that if the respondent were still registered the Tribunal would have cancelled his registration pursuant to s149C(i)(b) and/or s149C(i)(c) of the National Law. 3. Order pursuant to s149C(4)(b) of the National Law that the respondent is disqualified from being registered in the medical profession for 5 years. 4. Order pursuant to s149C(4)(c) of the National Law that the National Board is required to record the fact that if the respondent were still registered the Tribunal would have cancelled his registration in the National Register kept by Board. 5. A prohibition order prohibiting the respondent from providing a health service as defined in s4 of the Health Care Complaints Act 1993 for a period of 5 years. 6. Order that the respondent pay the applicants costs of and incidental to these proceedings on a party by party basis as agreed or accessed. 7. The Tribunal notes that contravention of a prohibition order may constitute a criminal offence pursuant to s102(3) of the Public Health Act 2010. 8. The Tribunal will publish its reasons for these orders as expediently as it reasonably can. ********** Endnotes 1. Section 3B (formerly 3A) of the National Law. 2. Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. 3. Section 3(2)(a) of the National Law. 4. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. 5. Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. 6. Section 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) and clause 2 of Schedule 5D of the National Law. 7. Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]. 8. Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [75]. 9. Section 149 of the National Law. 10. See clause 13 of Schedule 5D of the National Law. 11. Section 144(a) of the National Law. 12. HCCC Materials – Tab 62 Annexure A – Practitioner's statement p 1774; HCCC Materials – Tab 62 Annexure B – CV p 1776; HCCC Materials – Tab 62 Annexure I – Practice manager letter p 1789. 13. HCCC Materials – tab 30 Patient C Medical records p 1064; HCCC Supplementary Materials – Tab 2 Patient C Medical records p 29. 14. HCCC Supplementary Materials – Tab 2 Patient C Medical records p 29-55. 15. HCCC Supplementary Materials – Tab 2 Patient C Medical records p 30 (anti-anxiety Temaze), p 32 (antidepressant Mirtazapine) and p 40 (Zoloft). 16. HCCC Materials – Tab 30 Patient C Medical records p 927 and 999; HCCC Supplementary Materials – Tab 2 Patient C Medical records p 32. 17. HCCC Materials – Tab 30 Patient C Medical records p 1013 and 1047; HCCC Supplementary Materials – Tab 2 Patient C Medical records p 41. 18. HCCC Materials – Tab 30 Patient C Medical records p 1240. 19. HCCC Materials – Tab 30 Patient C Medical records p 1064; HCCC Supplementary Materials – Tab 2 Patient C Medical records p 29. 20. HCCC Materials – Tab 30 Patient C Medical records p 1065, 1219; HCCC Supplementary Materials – Tab 2 Patient C Medical records p 44, 46. 21. HCCC Materials – Tab 30 Patient C Medical records p 1080. 22. HCCC Materials – Tab 30 Patient C Medical records p 1135. 23. HCCC Materials – Tab 30 Patient C Medical records p for example pp 967, 1150, 1165. 24. HCCC Materials – Tab 30 Patient C Medical records p 1120. 25. HCCC Materials – Tab 30 Patient C Medical records p 1126. 26. HCCC Materials – Tab 30 Patient C Medical records p 1059. 27. HCCC Supplementary Materials – Tab 2 Patient C Medical records p 39. 28. HCCC Materials – Tab 30 Patient C Medical records p 1151; HCCC Supplementary Materials – Tab 2 Patient C Medical records p 37. 29. HCCC Materials – Tab 30 Patient C Medical records p 1176 and 1239. 30. HCCC Materials – Tab 63 – S150 Transcript p 1800-1802; HCCC Materials – Tab 30 Patient C Medical records p 1214; HCCC Supplementary Materials – Tab 2 Patient C Medical records p 46. 31. HCCC Materials – Tab 63 – S150 Transcript p 1807. 32. Patient C female, DOB: xx 1971. 33. HCCC Materials – Tab 22 – Patient C statement p 823, para 4; HCCC Materials - Tab 14 Agreed Facts p 776; HCCC Materials – Tab 63 – S150 Transcript p 1803. 34. HCCC Materials – Tab 22 – Patient C statement p 823, para 4; HCCC Materials – Tab 19 Kilpatrick report p 813; HCCC Materials – Tab 24 – Patient C note p 828. 35. HCCC Materials – Tab 22 – Patient C statement p 823, para 4; HCCC Materials - Tab 14 Agreed Facts p 776-777; HCCC Materials – Tab 24 – Patient C note p 828. 36. HCCC Materials – Tab 22 – Patient C statement p 824, para 4; HCCC Materials - Tab 14 Agreed Facts p 777; HCCC Materials – Tab 24 – Patient C note p 828. 37. HCCC Materials – Tab 22 – Patient C statement p 824, para 4; HCCC Materials - Tab 14 Agreed Facts p 777. 38. HCCC Materials – Tab 22 – Patient C statement p 824, para 4; HCCC Materials - Tab 14 Agreed Facts p 777; HCCC Materials – Tab 19 Kilpatrick report p 814; HCCC Materials – Tab 24 – Patient C note p 828-829 ("pressing very hard on both sides very close to the crack of my bum"). 39. HCCC Materials – Tab 22 – Patient C statement p 824, para 4; HCCC Materials – Tab 24 – Patient C note p 829. 40. HCCC Materials – Tab 22 – Patient C statement p 824, para 5; HCCC Materials - Tab 14 Agreed Facts p 777; HCCC Materials – Tab 19 Kilpatrick report p 813; HCCC Materials – Tab 24 – Patient C note p 829 ("Dr leaned in and hugged me very close and very creepy like, Dr kissing my neck and not letting go"); HCCC Materials – Tab 63 – S150 Transcript p 1803 ("I came close to her and I touch her shoulder and I kissed her on the neck"). 41. HCCC Materials – Tab 22 – Patient C statement p 824, para 5; HCCC Materials - Tab 14 Agreed Facts p 777; HCCC Materials – Tab 24 – Patient C note p 829. 42. HCCC Materials – Tab 22 – Patient C statement p 824, para 5; HCCC Materials - Tab 14 Agreed Facts p 777; HCCC Materials – Tab 24 – Patient C note p 829; HCCC Materials – Tab 63 – S150 Transcript p 1806 ("she said to me, "You have to think first about your wife and daughters"). 43. HCCC Materials – Tab 30 Patient C Medical records p 1244. 44. HCCC Materials – Tab 30 Patient C Medical records p 1293. 45. HCCC Supplementary Materials – Tab 2 Patient C Medical records p 55-56. 46. HCCC Materials – Tab 23 – Patient C statement p 826; HCCC Materials – Tab 24 – Patient C note p 828. 47. HCCC Materials – Tab 7– COPS Event p 33, para 3; HCCC Materials – Tab 29 – Police Statement p 854, para 3; HCCC Materials - Tab 14 Agreed Facts p 777. 48. Certificate of Conviction dated 14 November 2023; HCCC Materials – Tab 15 Transcript p 789; HCCC Materials – Tab 20 – ICO p 818-819 – Certificate of Conviction Exhibit HCCC4. 49. HCCC Materials – Tab 71 – practitioner's letter p 1851. 50. Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [25]. See also Health Care Complaints Commission v Grygiel [2021] NSWCATOD 28 at [120]: to reach the threshold of conduct that is significantly below the standard reasonably expected, the conduct must be of an important kind or departure from accepted standards or conduct that has consequences. It must be not conduct that is merely somewhat less than the ideal or the norm. 51. Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82]. 52. Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [149]-[151]. 53. Section 41 of the National Law. 54. Kalil v Bray [1977] 1 NSWLR 256 at 262. See also Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [41] and Ghosh v Health Care Complaints [2022] NSWCA 229 at [10]. 55. Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 at [51]. 56. Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[52]. 57. Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53]. 58. Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]. 59. Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [55]. 60. Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]. 61. Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [19]-[21]. 62. Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 [47]. 63. Section 41 of the National Law. 64. HCCC Materials – Tab 53 Code of Conduct p 1591. 65. HCCC Materials – Tab 53 Code of Conduct p 1592. 66. HCCC Materials – Tab 53 Code of Conduct p 1594. 67. HCCC Materials – Tab 53 Code of Conduct p 1599. 68. HCCC Materials – Tab 53 Code of Conduct p 1606. 69. HCCC Materials – Tab 53 Code of Conduct p 1606. 70. HCCC Materials – Tab 55 Sexual Boundaries Guidelines p 1640. 71. HCCC Materials – Tab 55 Sexual Boundaries Guidelines p 1640. 72. HCCC Materials – Tab 55 Sexual Boundaries Guidelines p 1641. 73. HCCC Materials – Tab 55 Sexual Boundaries Guidelines p 1641. 74. HCCC Materials – Tab 55 Sexual Boundaries Guidelines p 1642. 75. HCCC Materials – Tab 55 Sexual Boundaries Guidelines p 1642. 76. HCCC Materials – Tab 55 Sexual Boundaries Guidelines p 1642. 77. Patient A (female, DOB: xx 1969). 78. HCCC Materials - Tab 9 - Patient A statement, p 46; HCCC Materials – Tab 52 Medicare p 1579; HCCC Materials – Tab 10 Patient A Medical records p 54; HCCC Supplementary Materials – Tab 3 Patient A Medical records p 59. 79. HCCC Materials - Tab 9 - Patient A statement p 47; HCCC Materials – Tab 52 Medicare p 1580-1585 (green rows show multiple consultations with Patient A during 2020); HCCC Materials – Tab 10 Patient A Medical records p 55-79; HCCC Supplementary Materials – Tab 3 Patient A Medical records p 59-72. 80. HCCC Materials - Tab 9 - Patient A statement p 47; HCCC Materials – Tab 10 Patient A Medical records p 68, 73; HCCC Supplementary Materials – Tab 3 Patient A Medical records p 63, 66, 67, 68. 81. HCCC Supplementary Materials – Tab 3 Patient A Medical records p 62-65. 82. HCCC Supplementary Materials – Tab 3 Patient A Medical records p 67. 83. HCCC Supplementary Materials – Tab 3 Patient A Medical records p 67. 84. HCCC Supplementary Materials – Tab 3 Patient A Medical records p 67. 85. HCCC Supplementary Materials – Tab 3 Patient A Medical records p 71. 86. HCCC Materials – Tab 57 Expert report p 1650-1652 (the expert describes the hug and remarks on 31 December 2020 as the second incident). 87. Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102]. 88. HCCC Materials - Tab 9 - Patient A statement p 48 para 18. 89. HCCC Materials - Tab 9 - Patient A statement p 48. 90. HCCC Materials – Tab 10 Patient A Medical records p 90. 91. HCCC Supplementary Materials – Tab 3 Patient A Medical records p 57-58. 92. HCCC Materials – Tab 10 Patient A Medical records p 82. 93. HCCC Materials – Tab 52 Medicare p 1586 (green rows show items 721 and 723 for Patient A). 94. HCCC Materials - Tab 8 - Patient A statement p 43. 95. HCCC Materials - Tab 8 - Patient A statement p 43. 96. HCCC Materials – Tab 57 p 1652-1653 (the expert occurs to this consultation as the third incident). 97. HCCC Materials - Tab 9 - Patient A statement p 48. 98. HCCC Materials - Tab 8 - Patient A statement p 44. 99. HCCC Materials - Tab 9 - Patient A statement p 46. 100. HCCC Materials - Tab 8 - Patient A statement p 43. 101. HCCC Materials - Tab 11 Patient B statement p 125 para 7 and p 127 para 21; HCCC Materials - Tab 11 Patient B email p 145; HCCC Materials - Tab 11, Annexure B – Patient B statement p 158, 167-168; HCCC Materials - Tab 11 Diary p 296-297; HCCC Materials - Tab 11, Annexure N – Patient B email p 356; HCCC Materials – Tab 57 Expert report p 1654. 102. HCCC Materials – Tab 58 Information Form p 1758-59; HCCC Materials – Tab 63 – S150 Transcript p 1798. 103. Patient B (female, DOB: xx 1981). 104. HCCC Materials – Tab 52 Medicare p 1579; HCCC Supplementary Materials – Tab 1 Patient B Medical records p 2. 105. HCCC Materials - Tab 11 Patient B statement p 125 para 7 and p 127 para 21; HCCC Materials - Tab 11 Patient B email p 145; HCCC Materials - Tab 11, Annexure B – Patient B statement p 158, 167-168; HCCC Materials - Tab 11 Diary p 296-297; HCCC Materials - Tab 11, Annexure N – Patient B email p 356; HCCC Materials – Tab 57 Expert report p 1654. 106. HCCC Materials - Tab 11 Patient B statement p 127; HCCC Materials - Tab 11 Annexure A Patient B email p 145; HCCC Materials - Tab 11, Annexure B - Patient B statement p 168; HCCC Materials - Tab 11, Annexure C - WhatsApp p 263. 107. HCCC Materials - Tab 11, Annexure B – Patient B statement p 158. 108. HCCC Materials – Tab 57 p 1653-1655. 109. HCCC Materials – Tab 11 – Patient B statement p 138-139; and HCCC Materials – Tab 11 Annexure C WhatsApp p 290-291. 110. HCCC1 Tab 57, page 1655-1656. 111. HCCC Materials – Tab 11 – Patient B statement p 128 para 27. 112. HCCC Materials - Tab 11 Patient B statement p 126 para 9; HCCC Materials - Tab 11, Annexure B - Patient B statement p 161, para 29 and p 180 para 148-149; HCCC Materials - Tab 11 Patient B email p 150; HCCC Materials - Tab 11 Diary p 304; HCCC Materials - Tab 11 Annexure N Patient B email p 359. 113. HCCC Materials - Tab 11, Annexure B - Patient B statement p 161, para 30-32. 114. HCCC Materials - Tab 11, Annexure B - Patient B statement p 161, para 32. 115. HCCC Materials - Tab 11, Annexure B - Patient B statement p 162, para 35 and p 176 para 123. 116. HCCC Materials - Tab 11, Annexure B - Patient B statement p 176, para 123. 117. HCCC Materials - Tab 11, Annexure B - Patient B statement p 176, para 123. 118. HCCC Materials - Tab 11, Annexure B - Patient B statement p 176, para 124; HCCC Materials - Tab 11 Patient B email p 148; HCCC Materials - Tab 11 Annexure N Patient B email p 358. 119. HCCC Materials - Tab 11, Annexure B - Patient B statement p 177, para 125. 120. HCCC Materials – Tab 52 Medicare p 1581 (yellow rows shows items 5020 and 10990 for Patient B). 121. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 7-8. 122. HCCC Materials – Tab 11 – Patient B statement p 133; and HCCC Materials – Tab 11 Annexure C WhatsApp p 262. 123. HCCC Materials – Tab 57 p 1656-1658 124. Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21. 125. HCCC Materials – Tab 11 – Patient B statement p 137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 282. 126. HCCC Materials – Tab 52 Medicare p 1585-1586 (white rows show items 23 and 10990 for Patient B). 127. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 27-28. 128. HCCC Materials - Tab 11 Patient B email p 152; HCCC Materials – Tab 11 – Annexure B Patient B statement p 184 para 169 and p 185 para 174; HCCC Materials - Tab 11 Annexure N Patient B email p 361. 129. HCCC Materials – Tab 11 – Annexure B Patient B statement p 184 para 171 and p 185 para 174. 130. HCCC Materials – Tab 12 Patient B Medical records p 751. 131. HCCC Materials – Tab 57 p 1658-1660. 132. HCCC Materials – Tab 12 Patient B Medical records p 751. 133. HCCC Materials – Tab 9 - Patient A statement p 46. 134. HCCC Materials – Tab 8 - Patient A statement p 43. 135. HCCC Materials – Tab 11B - Patient B statement p 157. 136. HCCC Materials – Tab 11 - Patient B statement p 124, 127. 137. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 2-23. 138. HCCC Materials – Tab 12 Patient B Medical records p 473, 527, 533. 139. HCCC Materials – Tab 12 Patient B Medical records p 508. 140. HCCC Materials – Tab 12 Patient B Medical records p 479, 510, 531. 141. HCCC Materials – Tab 12 Patient B Medical records p 483, 704. 142. HCCC Materials – Tab 12 Patient B Medical records p 541, 546, 551. 143. HCCC Materials – Tab 12 Patient B Medical records p 702. 144. HCCC Materials – Tab 12 Patient B Medical records p 509. 145. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 3, 23; HCCC Materials – Tab 12 Patient B Medical records p 483. 146. HCCC Materials – Tab 12 Patient B Medical records p 477. 147. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 2, HCCC Materials – Tab 12 Patient B Medical records p 479, 481. 148. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 3, HCCC Materials – Tab 12 Patient B Medical records p 507, 509, 531, 527. 149. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 7, 12; HCCC Materials – Tab 12 Patient B Medical records p 524. 150. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 12; HCCC Materials – Tab 12 Patient B Medical records p 524. 151. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 2. 152. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 15. 153. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 17. 154. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 22. 155. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 23. 156. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 23. 157. HCCC Materials – Tab 11 Annexure C WhatsApp messages pp 189-294. 158. Call charge records (filed 27 February 2024). The Optus call charge records show that the practitioner made 22 calls to Patient B's mobile from 1 December 2020 to 1 February 2021 (highlighted in yellow). 159. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 23-28. 160. HCCC Materials – Tab 12 Patient B Medical records p 507 and 509. 161. HCCC Materials – Tab 12 Patient B Medical records p 512. 162. HCCC Materials – Tab 52 Medicare p 1585-1586 (white row show services billed for Patient B on 4 dates during this period). 163. HCCC Materials – Tab 11 – Patient B statement p 129; and HCCC Materials – Tab 11 Annexure C WhatsApp p 190. 164. HCCC Materials – Tab 11 – Patient B statement p 129; and HCCC Materials – Tab 11 Annexure C WhatsApp p 190. 165. HCCC Materials – Tab 11 – Patient B statement p 129; and HCCC Materials – Tab 11 Annexure C WhatsApp p 191; and HCCC Materials – Tab 11 – Statement of Patient B Annexure L, Screenshot pages 349 and 350. 166. HCCC Materials – Tab 11 – Patient B statement p 129; and HCCC Materials – Tab 11 Annexure C WhatsApp p 191. 167. HCCC Materials – Tab 11 – Patient B statement p 129; and HCCC Materials – Tab 11 Annexure C WhatsApp p 192. 168. HCCC Materials – Tab 11 – Patient B statement p 129; and HCCC Materials – Tab 11 Annexure C WhatsApp p 195; and HCCC Materials – Tab 11 – Statement of Patient B Annexure M, Photo p 351-352. 169. HCCC Materials – Tab 11 – Patient B statement p 130; and HCCC Materials – Tab 11 Annexure C WhatsApp p 196. 170. HCCC Materials – Tab 11 – Patient B statement p 130; and HCCC Materials – Tab 11 Annexure C WhatsApp p 201. 171. HCCC Materials – Tab 11 – Patient B statement p 130; and HCCC Materials – Tab 11 Annexure C WhatsApp p 202. 172. HCCC Materials – Tab 11 – Patient B statement p 130; and HCCC Materials – Tab 11 Annexure C WhatsApp p 205. 173. HCCC Materials – Tab 11 – Patient B statement p 131; and HCCC Materials – Tab 11 Annexure C WhatsApp p 211. 174. HCCC Materials – Tab 11 – Patient B statement p 131; and HCCC Materials – Tab 11 Annexure C WhatsApp p 212. 175. HCCC Materials – Tab 11 – Patient B statement p 131; and HCCC Materials – Tab 11 Annexure C WhatsApp p 217. 176. HCCC Materials – Tab 11 – Patient B statement p 131; and HCCC Materials – Tab 11 Annexure C WhatsApp p 218. 177. HCCC Materials – Tab 11 – Patient B statement p 131; and HCCC Materials – Tab 11 Annexure C WhatsApp p 220. 178. HCCC Materials – Tab 11 – Patient B statement p 131; and HCCC Materials – Tab 11 Annexure C WhatsApp p 221. 179. HCCC Materials – Tab 11 – Patient B statement p 131; and HCCC Materials – Tab 11 Annexure C WhatsApp p 222. 180. HCCC Materials – Tab 11 – Patient B statement p 131; and HCCC Materials – Tab 11 Annexure C WhatsApp p 225. 181. HCCC Materials – Tab 11 – Patient B statement p 132; and HCCC Materials – Tab 11 Annexure C WhatsApp p 229. 182. HCCC Materials – Tab 11 – Patient B statement p 132; and HCCC Materials – Tab 11 Annexure C WhatsApp p 230. 183. HCCC Materials – Tab 11 – Patient B statement p 132; and HCCC Materials – Tab 11 Annexure C WhatsApp p 235. 184. HCCC Materials – Tab 11 – Patient B statement p 132; and HCCC Materials – Tab 11 Annexure C WhatsApp p 241. 185. HCCC Materials – Tab 11 – Patient B statement p 133; and HCCC Materials – Tab 11 Annexure C WhatsApp p 246. 186. HCCC Materials – Tab 11 – Patient B statement p 133; and HCCC Materials – Tab 11 Annexure C WhatsApp p 249. 187. HCCC Materials – Tab 11 – Patient B statement p 133; and HCCC Materials – Tab 11 Annexure C WhatsApp p 256. 188. HCCC Materials – Tab 11 – Patient B statement p 133; and HCCC Materials – Tab 11 Annexure C WhatsApp p 262. 189. HCCC Materials – Tab 11 – Patient B statement p 133; and HCCC Materials – Tab 11 Annexure C WhatsApp p 262. 190. HCCC Materials – Tab 11 – Patient B statement p 133-134; and HCCC Materials – Tab 11 Annexure C WhatsApp p 263. 191. HCCC Materials – Tab 11 – Patient B statement p 134; and HCCC Materials – Tab 11 Annexure C WhatsApp p 264. 192. HCCC Materials – Tab 11 – Patient B statement p 134; and HCCC Materials – Tab 11 Annexure C WhatsApp p 265. 193. HCCC Materials – Tab 11 – Patient B statement p 134; and HCCC Materials – Tab 11 Annexure C WhatsApp p 266. 194. HCCC Materials – Tab 11 – Patient B statement p 134; and HCCC Materials – Tab 11 Annexure C WhatsApp p 270. 195. HCCC Materials – Tab 11 – Patient B statement p 134; and HCCC Materials – Tab 11 Annexure C WhatsApp p 271. 196. HCCC Materials – Tab 11 – Patient B statement p 134-135; and HCCC Materials – Tab 11 Annexure C WhatsApp p 271. 197. HCCC Materials – Tab 52 Medicare p 1585 (white rows show items 36 and 10990 for Patient B) 198. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 25-26 199. HCCC Materials – Tab 11 – Patient B statement p 135; and HCCC Materials – Tab 11 Annexure C WhatsApp p 272. 200. HCCC Materials – Tab 11 – Patient B statement p 135; and HCCC Materials – Tab 11 Annexure C WhatsApp p 274. 201. HCCC Materials – Tab 11 – Patient B statement p 135; and HCCC Materials – Tab 11 Annexure C WhatsApp p 274. 202. HCCC Materials – Tab 11 – Patient B statement p 135; and HCCC Materials – Tab 11 Annexure C WhatsApp p 274. 203. HCCC Materials – Tab 52 Medicare p 1585 (white rows show items 36 and 10990 for Patient B). 204. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 26-27. 205. HCCC Materials – Tab 11 – Patient B statement p 135; and HCCC Materials – Tab 11 Annexure C WhatsApp p 276. 206. HCCC Materials – Tab 11 – Patient B statement p 135; and HCCC Materials – Tab 11 Annexure C WhatsApp p 276. 207. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 277. 208. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 277. 209. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 277. 210. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 278. 211. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 279. 212. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 280. 213. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 280. 214. HCCC Materials – Tab 11 – Patient B statement p 136-137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 281. 215. HCCC Materials – Tab 11 – Patient B statement p 137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 282. 216. HCCC Materials – Tab 11 – Patient B statement p 137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 282. 217. HCCC Materials – Tab 11 – Patient B statement p 137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 283. 218. HCCC Materials – Tab 52 Medicare p 1585-1586 (white rows show items 23 and 10990 for Patient B). 219. HCCC Supplementary Materials – Tab 1 Patient B Medical records p 27-28. 220. HCCC Materials – Tab 11 – Patient B statement p 137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 284. 221. HCCC Materials – Tab 11 – Patient B statement p 137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 285. 222. HCCC Materials – Tab 11 – Patient B statement p 137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 285. 223. HCCC Materials – Tab 11 – Patient B statement p 137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 285. 224. HCCC Materials – Tab 11 – Patient B statement p 138; and HCCC Materials – Tab 11 Annexure C WhatsApp p 285. 225. HCCC Materials – Tab 11 – Patient B statement p 138; and HCCC Materials – Tab 11 Annexure C WhatsApp p 287. 226. HCCC Materials – Tab 11 – Patient B statement p 138; and HCCC Materials – Tab 11 Annexure C WhatsApp p 288. 227. HCCC Materials – Tab 11 – Patient B statement p 138; and HCCC Materials – Tab 11 Annexure C WhatsApp p 288. 228. HCCC Materials – Tab 11 – Patient B statement p 138; and HCCC Materials – Tab 11 Annexure C WhatsApp p 288. 229. HCCC Materials – Tab 64 – S150 Decision p 1882; HCCC Materials – Tab 62 Annexure A – practitioner's statement p 1774. 230. HCCC Materials – Tab 11 – Patient B statement p 138; and HCCC Materials – Tab 11 Annexure C WhatsApp p 289. 231. HCCC Materials – Tab 11 – Patient B statement p 138; HCCC Materials - Tab 11 Patient B email p 154. 232. HCCC Materials – Tab 11 – Patient B statement p 138; and HCCC Materials – Tab 11 Annexure C WhatsApp p 289. 233. HCCC Materials – Tab 11 – Patient B statement p 138; and HCCC Materials – Tab 11 Annexure C WhatsApp p 289. 234. HCCC Materials – Tab 11 – Patient B statement p 138; and HCCC Materials – Tab 11 Annexure C WhatsApp p 290. 235. HCCC Materials – Tab 11 – Patient B statement p 139; HCCC Materials - Tab 11 Patient B email p 154; HCCC Materials – Tab 11 – Annexure B Patient B statement p 188 para 181. 236. HCCC Materials – Tab 5 – Self Notification p 22. 237. HCCC Materials – Tab 11 – Patient B statement p 138-139; and HCCC Materials – Tab 11 Annexure C WhatsApp p 290-291. 238. HCCC Materials – Tab 11 – Patient B statement p 139; and HCCC Materials – Tab 11 Annexure C WhatsApp p 291. 239. HCCC Materials – Tab 11 – Patient B statement p 139; and HCCC Materials – Tab 11 Annexure C WhatsApp p 292. 240. HCCC Materials – Tab 11 – Patient B statement p 139; and HCCC Materials – Tab 11 Annexure C WhatsApp p 292. 241. HCCC Materials – Tab 11 Annexure C WhatsApp p 293. 242. HCCC Materials – Tab 11 Annexure C WhatsApp p 293. 243. HCCC Materials – Tab 11 Annexure C WhatsApp p 294. 244. HCCC Materials – Tab 11 – Patient B statement p 139; and HCCC Materials – Tab 11 Annexure C WhatsApp p 294. 245. HCCC Materials – Tab 57 Expert report p 1661-1664. 246. HCCC Materials – Tab 49 practitioner's CV p 1546. 247. HCCC Materials – Tab 11 Annexure M WhatsApp p 351. 248. HCCC Materials – Tab 11 – Patient B statement p 129; and HCCC Materials – Tab 11 Annexure C WhatsApp p 190. 249. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 277. 250. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 277. 251. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 277. 252. HCCC Materials – Tab 11 – Patient B statement p 136; and HCCC Materials – Tab 11 Annexure C WhatsApp p 280. 253. HCCC Materials – Tab 11 – Patient B statement p 137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 285. 254. HCCC Materials – Tab 11 – Patient B statement p 138; and HCCC Materials – Tab 11 Annexure C WhatsApp p 288. 255. Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151 at 148 (per majority). 256. Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 at [176]. 257. Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 at [176]; Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61 at [110] (see also Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 at [620]; Health Care Complaints Commission v Neale [2023] NSWCATOD 37 at [134]-[136]; Health Care Complaints Commission v McNab [2023] NSWCATOD 41 at [108]-[109]). 258. HCCC Materials – Tab 11 – Patient B statement p 133; and HCCC Materials – Tab 11 Annexure C WhatsApp p 262. 259. HCCC Materials – Tab 11 – Patient B statement p 133-134; and HCCC Materials – Tab 11 Annexure C WhatsApp p 263. 260. HCCC Materials - Tab 11, Annexure B - Patient B statement p 171; HCCC Materials - Tab 11 Patient B email p 147; HCCC Materials - Tab 11 Annexure N Patient B email p 357. 261. HCCC Materials - Tab 11, Annexure B - Patient B statement p 172, para 101. 262. HCCC Materials - Tab 11, Annexure B - Patient B statement p 173, para 108. 263. HCCC Materials – Tab 11 – Patient B statement p 137; and HCCC Materials – Tab 11 Annexure C WhatsApp p 282. 264. HCCC Materials – Tab 23 – Patient C statement p 826, para 6; HCCC Materials – Tab 26 – Phone call p 833 to 837; HCCC Materials - Tab 14 Agreed Facts p 778; HCCC Materials – Tab 63 – S150 Transcript p 1804. 265. HCCC Materials – Tab 26 – Phone call p 835. 266. HCCC Materials – Tab 26 – Phone call p 836. 267. HCCC Supplementary Materials – Tab 2 Patient C Medical records p 56-57. 268. HCCC Supplementary Materials – Tab 2 Patient C Medical records p 56-57. 269. HCCC Materials – Tab 57 Expert report p 1668-1669. 270. HCCC Materials – Tab 53 Code of Conduct p 1607. 271. HCCC Materials – Tab 57 Expert report p 1668-1669. 272. HCCC Materials – Tab 27 – Recorded consult p 842; HCCC Materials - Tab 14 Agreed Facts p 778; HCCC Materials – Tab 23 – Patient C statement p 826; HCCC Materials – Tab 63 – S150 Transcript p 1804. 273. HCCC Materials – Tab 27 – Recorded consult p 842. 274. HCCC Materials – Tab 27 – Recorded consult p 843. 275. HCCC Materials – Tab 27 – Recorded consult p 846. 276. HCCC Materials – Tab 27 – Recorded consult p 846. 277. HCCC Supplementary Materials – Tab 2 Patient C Medical records p 57-58. 278. HCCC Supplementary Materials – Tab 2 Patient C Medical records p 57-58. 279. HCCC Materials – Tab 57 Expert report p 1669-1670. 280. HCCC Materials – Tab 57 Expert report p 1669-1670. 281. HCCC Materials – Tab 23 – Patient C statement p 826; HCCC Materials – Tab 24 – Patient C note p 828. 282. HCCC Materials – Tab 7– COPS Event p 33, para 3; HCCC Materials – Tab 29 – Police Statement p 854, para 3; HCCC Materials - Tab 14 Agreed Facts p 777. 283. HCCC Materials - Tab 23 - Patient C statement p 825. 284. HCCC Materials - Tab 26 and Tab 27 – Transcripts p 833 and 838. 285. Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [41]-[66] where Boland ADCJ, Deputy President, discusses why, on the construction of s 139B, the facts which may establish any of the 11 unsatisfactory professional conduct grounds preceding section 139(1)(l) may of themselves, if proven, constitute unsatisfactory conduct, and additionally may also constitute "any other improper or unethical conduct". This approach was subsequently accepted by the Tribunal, including in Health Care Complaints Commission v Carr [2020] NSWCATOD 131 at [99], Health Care Complaints Commission v Balafas (No 4) [2021] NSWCATOD 209 at [29] and Health Care Complaints Commission v Javaheri [2022] NSWCATOD 162. 286. HCCC Materials – Tab 57E Expert CV p 1753. 287. HCCC Materials – Tab 36 Expert briefing material p 1530-1531. 288. HCCC Materials – Tab 57 Expert report p 1648. 289. HCCC Materials – Tab 57 Expert report p 1648. 290. For example, see Health Care Complaints Commission v Oladiran [2020] NSWCATOD 56 at [17], the Tribunal, without expert evidence, referred to the relevant Code of Conduct and Sexual Boundaries Guidelines and found that a medical practitioner's breach of professional boundaries constituted improper and unethical conduct. See also see Health Care Complaints Commission v Muthukrishna [2023] NSWCATOD 110 at [15]-[18], the Tribunal, without expert evidence, referred to the relevant Code of Conduct and found that a chiropractor's breach of professional boundaries constituted improper and unethical conduct. 291. Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]. 292. Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. 293. Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638. 294. Section 3(2) of the National Law. 295. AHPRA evidentiary certificate. 296. HCCC Materials – Tab 62 Annexure A – practitioner's statement p 1774; HCCC Materials – Tab 62 Annexure B – CV p 1776. 297. HCCC Materials – Tab 62 Annexure A – practitioner's statement p 1774; HCCC Materials – Tab 62 Annexure B – CV p 1776 See also AHPRA evidentiary certificate (which records the Fellowship in 2017). 298. HCCC Materials – Tab 62G Reference p 1786; HCCC Materials – Tab 62I Reference p 1789; HCCC Materials – Tab 63 – S150 Transcript p 1798 (I was accepted also as a supervisor which I was doing in the clinic). 299. HCCC Materials – Tab 11 – Patient B statement p 133-134; and HCCC Materials – Tab 11 Annexure C WhatsApp p 263. 300. HCCC Materials – Tab 55 Sexual Boundaries Guidelines p 1641. 301. HCCC supplementary materials – Tab 1 – Patient B progress notes p 2 (laminectomy and decompression 2016). 302. Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. 303. Section 3(2)(a) of the National Law. 304. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. 305. Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. 306. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. 307. Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31]. 308. Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 6 SR (NSW) 448, 461. 309. Chen v Health Care Complaints Commission [2017] NSWCA per Basten JA at [14] and [20] and per Payne JA at [67]-[69]. 310. Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 311. Health Care Complaints Commission v King [2013] NSWMT 9. 312. Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [64] (Santow JA) and [101] (Basten JA). 313. Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14]. 314. Health Care Complaints Commission v Turner [2016] NSWCATOD 163 at [67]. 315. Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]. 316. Health Care Complaints Commission v Wood [2020] NSWCATOD 60 [17]-[23]. 317. Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [22]. 318. Health Care Complaints Commission v Bautista [2023] NSWCATOD 65 at [54]. 319. Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [93]. 320. Section 61KD(1)(A) of the Crimes Act 1900 (NSW) as at 2 October 2020. 321. HCCC Materials – Tab 15 Transcript p 788. 322. HCCC Materials – Tab 63 – S150 Transcript p 1803. 323. HCCC Materials – Tab 64 – S150 Decision p 1823. 324. HCCC Materials – Tab 20 – ICO p 818-819; HCCC Materials – Tab 15 Transcript p 789; HCCC Materials – Tab 7B Criminal history p 42. 325. HCCC Materials – Tab 28 –practitioner interview p 852; HCCC Materials - Tab 14 Agreed Facts p 780. 326. HCCC Materials – Tab 13 – Amended CAN p 774; HCCC Materials – Tab 62 practitioner's solicitor's letter p 1772; HCCC Materials – Tab 63 – S150 Transcript p 1799 and 1808; HCCC Materials – Tab 64 – S150 Decision p 1815. 327. HCCC Materials – Tab 63 – S150 Transcript p 1806. 328. HCCC Materials – Tab 18 Friend report p 797. 329. HCCC Materials – Tab 18 Friend report p 801. 330. HCCC Materials – Tab 18 Friend report p 801. 331. HCCC Materials – Tab 19 Kilpatrick report p 814. 332. HCCC Materials – Tab 16 Sentencing Assessment Report p 791 and 794. 333. HCCC Materials – Tab 71 – practitioner's letter p 1851. 334. 149C(4)(b) of the National Law. 335. See section 3A(1) of the National Law. 336. Lee v Health Care Complaints Commission [2012] NSWCA 80 [23]-[34]. 337. See section 3(2)(a) of the National Law. 338. See generally Chen v Health Care Complaints Commission [2017] NSWCA 186 at [88] regarding a non-review period; Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [660] regarding a disqualification period. 339. See generally Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 at [47]. 340. HCCC Materials – Tab 57 – Expert report p 1673. 341. HCCC Materials – Tab 11 – Patient B statement p 138; HCCC Materials - Tab 11 Patient B email p 154. 342. HCCC Materials – Tab 63 – S150 Transcript p 1811. 343. HCCC Materials – Tab 16 Sentencing Assessment Report p 791 and 794. 344. HCCC Materials – Tab 18 Friend report p 801. 345. HCCC Materials – Tab 18 Friend report p 801. 346. HCCC Materials – Tab 71 – Practitioner's solicitor's submissions p 1853 (see also p 1856 "once off transgression"… "one off incident"). 347. HCCC Materials – Tab 18 Friend report p 801. 348. HCCC Materials – Tab 18 Friend report p 805. 349. HCCC Materials – Tab 19 Kilpatrick report p 814. 350. HCCC Materials – Tab 75 practitioner's response p 1875. 351. AHPRA evidentiary certificate. 352. HCCC Materials – Tab 66 – Surrender p 1838-1839. 353. Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75]; Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [18]; Health Care Complaints Commission v Collins [2021] NSWCATOD 132 at [97]. 354. Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [19]; Health Care Complaints Commission v De Lore [2020] NSWCATOD 72 at [93]. 355. HCCC Materials - Tab 9 - Patient A statement p 48, para 15. 356. HCCC Materials - Tab 11, Annexure B - Patient B statement p 171; HCCC Materials - Tab 11 Patient B email p 147; HCCC Materials - Tab 11 Annexure N Patient B email p 357. 357. HCCC Materials – Tab 22 – Patient C statement p 823, para 4; HCCC Materials – Tab 19 Kilpatrick report p 813; HCCC Materials – Tab 24 – Patient C note p 828. 358. HCCC Materials – Tab 22 – Patient C statement p 824, para 4; HCCC Materials - Tab 14 Agreed Facts p 777; HCCC Materials – Tab 24 – Patient C note p 828. 359. HCCC Materials - Tab 11 Patient B statement p 127; HCCC Materials - Tab 11 Annexure A Patient B email p 145; HCCC Materials - Tab 11, Annexure B - Patient B statement p 168; HCCC Materials - Tab 11, Annexure C - WhatsApp p 263. 360. HCCC Materials – Tab 19 Kilpatrick report p 814; HCCC Materials – Tab 62 Annexure A – Practitioner's statement p 1774; HCCC Materials – Tab 62 Annexures C&D – certificates p 1782-1783 361. HCCC Materials – Tab 11 – Patient B statement p 139; and HCCC Materials – Tab 11 Annexure C WhatsApp p 292. 362. HCCC Materials – Tab 58 Information form p 1757-1761. 363. HCCC Materials – Tab 58 Information form p 1763. 364. HCCC Materials – Tab 19 Kilpatrick report p 808. 365. HCCC Materials – Tab 19 Kilpatrick report p 814. 366. HCCC Materials – Tab 71B Friend report p 1863. 367. HCCC Materials – Tab 71D Kilpatrick report p 1866. 368. HCCC Materials – Tab 63 – S150 Transcript p 1810. 369. HCCC Materials – Tab 16 Sentencing Assessment Report p 790. 370. HCCC Materials – Tab 63 – S150 Transcript p 1797. 371. HCCC Materials – Tab 22 – Patient C statement p 824, para 5; HCCC Materials - Tab 14 Agreed Facts p 777; HCCC Materials – Tab 24 – Patient C note p 829. 372. HCCC Materials – Tab 63 – S150 Transcript p 1807. 373. HCCC Materials – Tab 11 – Patient B statement p 140. 374. HCCC Materials – Tab 22 – Patient C statement p 824, para 5; HCCC Materials - Tab 14 Agreed Facts p 777; HCCC Materials – Tab 19 Kilpatrick report p 813; HCCC Materials – Tab 24 – Patient C note p 829 ("Dr leaned in and hugged me very close and very creepy like, Dr kissing my neck and not letting go"); HCCC Materials – Tab 63 – S150 Transcript p 1803 ("I came close to her and I touch her shoulder and I kissed her on the neck"). 375. Health Care Complaints Commission v Shrimpton (No.2) [2019] NSWCATOD 48 at [25]. 376. Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46]. 377. Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40]; applied by the Tribunal in several decisions including Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [98] and Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 at [9]. 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 April 2024