Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Stinson [2024] NSWCATOD 41 Hearing dates: 05 December 2023 Date of orders: 10 April 2024 Decision date: 10 April 2024 Jurisdiction: Occupational Division Before: O Shub, Senior Member Dr H Jenkins, Senior Member Dr A Downie, Senior Member J Sillince, General Member Decision: (1) The Tribunal orders the cancellation of the Respondent's registration pursuant to s 149C(1)(b) or (c) of the National Law with a non-review period of 18 months. (2) The Tribunal makes a prohibition order prohibiting the Respondent from providing a health service for the same 18 month period. (3) The Tribunal orders that the Respondent pay the costs of the Applicant as agreed or determined. Catchwords: HEALTH — chiropractor — failure to report charge — sexual abuse — driving under influence OCCUPATIONS — practitioner — misconduct and discipline — professional misconduct — criminal offence — admission of guilt — improper or unethical conduct relating to the practice or purported practice of the practitioner's profession Legislation Cited: Health Practitioner Regulation National Law (NSW), s 3B Civil and Administrative Tribunal Act 2013, s 64(1)(a) Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Paul Alexander Stinson (Respondent) Representation: Counsel: A Wilson (Respondent) Solicitors: E Bayley & M McGrath (Health Care Complaints Commission) (Applicant) Karim Criminal Defence (Respondent) File Number(s): 2023/00262280 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, publication of the name of Patient A referred to in this decision is prohibited; publication of the name of Patient A's Partner (Patient A's Partner) referred to in this decision is prohibited. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013: (a) the Tribunal orders and directs that the treatment notes of Ivanka Manoski and any evidence given to the Tribunal that refers to those treatment notes are not to be published; (b) the Tribunal further orders that the treatment notes of Ivanka Manoski are not to be disclosed to any person other than a member of the Tribunal or a legal representative of a party to this proceeding. REASONS FOR DECISION COMPLAINT 1. The reasons for the complaint brought by the Applicant appear from the Complaint lodged with the Tribunal under Case No. 2023/00262280 as amended and filed on 14 November 2023. "The Health Care Complaints Commission in its amended complaint HEREBY COMPLAINS THAT Mr Paul Alexander Stinson ("the practitioner'') of Chatswood, being a Chiropractor registered under the National Law, BACKGROUND TO ALL COMPLAINTS In 2007 the practitioner obtained a Bachelor of Chiropractic Science from Macquarie University. The practitioner was first registered as a Chiropractor in New South Wales on 14 December 2009. The practitioner owns and operates Chatswood Village Chiropractic ("CVC"), at Neridah Street, Chatswood, NSW. COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence in NSW. PARTICULARS OF COMPLAINT ONE 1. On 8 July 2020, at Manly Local Court, the practitioner was convicted of: a. Not stop at stop line at red light (not toll booth) contrary to Rule 56 of the Road Rules 2014. b. Drive with middle range prescribed concentration of alcohol (first offence) contrary to section 110(4)(a) of the Road Transport Act 2013. 2. On 25 August 2021, at Hornsby Local Court, the practitioner was convicted of: a. Sexually touch another person without consent on 11 February 2019, contrary to section 61KC(a) of the Crimes Act 1900 (NSW). b. Sexually touch another person without consent on 18 February 2019, contrary to section 61KC(a) of the Crimes Act 1900 (NSW). c. Sexually touch another person without consent on 27 February 2019, contrary to section 61KC(a) of the Crimes Act 1900 (NSW). COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened section 130(1) of the National Law. PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to notify the National Board within 7 days that he had been convicted, on 8 July 2020, with offences punishable by imprisonment being one count of drive with middle range prescribed concentration of alcohol (first offence) contrary to section 110(4)(a) of the Road Transport Act 2013. 2. The practitioner failed to notify the National Board within 7 days that he had been charged, on 24 September 2020, with offences punishable by 12 months imprisonment or more being five counts of sexually touch another person without consent, contrary to section 61KC(a) of the Crimes Act 1900 (NSW). The particulars of Complaint Two are relied upon in any combination to establish conduct amounting to unsatisfactory professional conduct. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 1398(1)(b) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of chiropractic. PARTICULARS OF COMPLAINT THREE 1. On one occasion between 11 February 2019 and 22 May 2020, in the course of a chiropractic consultation at CVC with Patient A, the practitioner inappropriately touched Patient A's breast without her consent, in circumstances where: a. the touching was not clinically indicated; b. the practitioner knew, or was reckless as to the likelihood that Patient A could consider the touching to be sexually motivated; c. the practitioner knew, or was reckless as to the likelihood that Patient A did not consent to the touching; d. the conduct was contrary to cl 9.2(a) of the Chiropractic Board of Australia Code of Conduct (2014). 2. On 23 May 2020, in the course of a chiropractic consultation at CVC with Patient A, the practitioner inappropriately placed his hand inside Patient A's shirt and touched her breast without her consent, in circumstances where: a. the touching was not clinically indicated; b. the practitioner knew, or was reckless as to the likelihood that Patient A could consider the touching to be sexually motivated; c. the practitioner knew, or was reckless as to the likelihood that Patient A did not consent to the touching; d. the conduct was contrary to cl 9.2(a) of the Chiropractic Board of Australia Code of Conduct (2014). The particulars of Complaint Three are relied upon in any combination to establish conduct amounting to unsatisfactory professional conduct. COMPLAINT FOUR The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or ii. engaged more than one instance of unsatisfactory professional conduct that. when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT FOUR 1. The particulars of Complaints Two and Three are repeated and relied upon both individually and in combination." NATURE OF THE JURISDICTION 1. The nature of the jurisdiction of the Tribunal is to protect the public and to maintain proper standards in the profession of allied health practitioner. The effect of any decision is not to punish the Respondent. 2. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 202; [1960] HCA 40 the High Court said: "Although it is sometimes referred to as "the penalty of disbarment" it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view for the protection of those who require protection and from the professional point of view in order that abuse of privilege may not lead to loss of privilege." 1. Section 3B of the Health Practitioner Regulation National Law (NSW) ("the National Law"), provides that: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. The interests of the public includes patients or potential patients of the Practitioner concerned. 1. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "… The purpose of any order consequent upon a finding that a complaint has been proved is said to be protective of the interests of the public at large but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of … practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." 1. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s 3B of the National Law. THE ISSUES 1. The Respondent has admitted the allegations made against him and has accepted that his conduct amounts to professional misconduct. In the circumstances, the only issue for the Tribunal is to determine what, if any, action is to be taken against the Respondent and what orders are to be made. AGREED FACTS 1. The parties have provided the Tribunal with a set of agreed facts which are set out below: "Background 1. In 2007, Mr Paul Alexander Stinson ("the practitioner") obtained a Bachelor of Chiropractic Science from Macquarie University. 2. In 2009, the practitioner obtained a Master of Chiropractic from Macquarie University. 3. On 14 December 2009, the practitioner was first registered as a chiropractor in NSW. 4. The practitioner owned and operated Chatswood Village Chiropractic (CVC), at Neridah Street Chatswood NSW. 2019 5. In 2018, Patient A was seeing her general practitioner when he recommended she see a chiropractor. Patient A requested to see the practitioner as her partner had recommended him. Patient A's GP wrote a referral for Patient A to see the practitioner for treatment for chronic lower back pain. 6. On 4 February 2019, Patient A attended CVC. Patient A had a 60-minute initial consultation with the practitioner where he enquired about her medical history. During this consultation, Patient A remained fully clothed and the practitioner massaged her lower back over her clothing. Patient A was satisfied with the service provided by the practitioner and booked another appointment for the next week on 11 February 2019. Massaging Patient A's vulva on 11 February 2019 (sequence 1 in criminal prosecution) 7. On (Monday) 11 February 2019, Patient A attended CVC at about 2:30PM. Patient A was 37 years old and the practitioner was 47 years old. Patient A entered the consultation room and lay face up on the chiropractic bench. The practitioner began massaging her lower back and pelvic area over her clothing. During the massage the practitioner said "Do you mind if I pull your pants down a bit. I need to get a better grip. This area of the muscles is easier to work on without pants". Patient A agreed as she thought the practitioner was a health professional and it was necessary for the treatment. Patient A moved her pants down from her waist to just above her knees. Patient A was wearing regular ladies' brief underwear that remained covering her genitals. 8. The practitioner continued to massage the right side of Patient A's pelvic area. About five minutes later, while continuing to massage Patient A, the practitioner inserted his left hand under Patient A's underwear. The practitioner slid his hand down until his fingers were on top of the Patient A's vulva. The practitioner was not wearing any gloves, and Patient A could feel the practitioner['s] fingers on her vulva. Patient A was shocked by what the practitioner was doing. Patient A was afraid of saying anything, as prior to this, the treatment from the practitioner was really helping her back condition. 9. The practitioner continued to massage Patient A's pelvic area, with his fingers on her vulva, for a period of time. The practitioner removed his hand from Patient A's underwear, and this was the end of the session. Patient A pulled her pants up and left the centre shortly after. Patient A went home and did not disclose the incident to anyone. Patient A was not sure if the practitioner touched her by accident, or if it was an essential part of the treatment. Patient A booked another session for 18 February 2019. Massaging Patient A's vulva on 18 February 2019 (sequence 2 in criminal prosecution) 10. On (Monday) 18 February 2019, Patient A arrived at CVC at about 1:30pm. Patient A entered the consultation room and lay face up on the chiropractic bench. The practitioner began massaging Patient A's lower back and pelvic area. Towards the end of the massage, the practitioner said "Is it ok if you pull your shorts down a little. I need to get a better grip". Patient A agreed. The practitioner pulled Patient A's pants down from her waist about 20 centimetres. Patient A was wearing regular ladies' brief underwear that remained covering her genitals. 11. The practitioner continued massaging the right side of Patient A's pelvis. The practitioner was standing to Patient A's right, facing towards her. The practitioner inserted his right hand under Patient A's underwear. The practitioner slid his hand up until his fingers were on top of Patient A's vulva. The practitioner was not wearing any gloves and Patient A could feel his fingers on her vulva. The practitioner continued to massage Patient A's pelvic area, with his fingers on her vulva, for a period of time. The practitioner removed his hand from Patient A's underwear, and this was the end of the session. Patient A returned home and did not disclose the incident to anyone. Patient A booked another session for 27 February 2020 as the treatments were providing her relief from back pain. 12. The practitioner billed Medicare for chiropractic service on this date. Massaging Patient A's vulva on 27 February 2019 (sequence 3 in criminal prosecution) 13. On (Wednesday) 27 February 2019, Patient A arrived at CVC at about 10:45am. Patient A entered the consultation room and lay face up on the chiropractic bench. The practitioner began massaging Patient A's lower back and pelvic area. Towards the end of the massage, the practitioner said "I need to get a better grip. Can you move your pants?". Before Patient A could respond, the practitioner pulled Patient A's pants down from her waist to above her knees. Patient A was wearing regular ladies' brief underwear that remained covering her genitals. 14. The practitioner continued massaging the right side of Patient A's pelvis. He was standing to her right, facing towards her. The practitioner inserted his right hand under Patient A's underwear. The practitioner slid his hand up until his fingers were on top of Patient A's vulva. The practitioner was not wearing any gloves and Patient A could feel the practitioner['s] fingers on her vulva. The practitioner continued to massage Patient A's pelvic area, with his fingers on her vulva, for a period of time. The practitioner removed his hand from Patient A's underwear, and this was the end of the session. Patient A left the session feeling very uncomfortable. At that time, Patient A didn't immediately book another session with the practitioner and didn't disclose the incidents to anyone. 15. The practitioner wrote a handwritten note and billed Medicare for chiropractic service on this date. Caressing Patient A's breast in 2019 (sequence 4 in criminal prosecution) 16. On another occasion in 2019, (between 11 February 2019 and 22 May 2020) Patient A arrived at CVC. The practitioner performed a spinal alignment on Patient A. The practitioner was talking to Patient A about meditation and said "You feel it here". As he was talking, the practitioner placed his hand just below Patient A's left breast. The practitioner moved his hand up, caressing Patient A's left breast as he went. At this point the practitioner was not performing any medical treatment on Patient A. 17. (complaint 3.1) On one occasion between 11 February 2019 and 22 May 2020, in the course of a chiropractic consultation at CVC with Patient A, the practitioner inappropriately touched Patient A's breast without her consent, in circumstances where: a. the touching was not clinically indicated; b. the practitioner knew, or was reckless as to the likelihood that Patient A could consider the touching to be sexually motivated; c. the practitioner knew, or was reckless as to the likelihood that Patient A did not consent to the touching: d. the conduct was contrary to cl 9.2(a) of the Chiropractic Board of Australia Code of Conduct (2014). 18. In April 2019, Patient A disclosed the four previous incidents to her partner. Patient A's partner began accompanying Patient A to future sessions with the practitioner, where she remained in the consultation room with Patient A and the practitioner. 2020 19. On 14 April 2020, the practitioner drove his vehicle in Frenchs Forest with a mid-range concentration of alcohol and failed to stop at a red traffic light. The practitioner was arrested by police, breath tested, blood tested and his driver licence was suspended. 20. On 15 April 2020, the practitioner was charged with two offences: a. Not stop at stop line at red light (not toll booth) contrary to Rule 56 of the Road Rules 2014; and b. Drive with middle range prescribed concentration of alcohol (first offence) contrary to section 110(4)(a) of the Road Transport Act 2013. 21. A first offence of drive with middle range prescribed concentration of alcohol is punishable by imprisonment. Touching Patient A's breasts on 23 May 2020 (sequence 5 in criminal prosecution) 22. On (Saturday) 23 May 2020, Patient A attended CVC at about 12:30pm. Patient A's partner had an appointment with the practitioner immediately before Patient A. Patient A went into the consultation room, the practitioner shut the door behind her, it was the first time Patient A had been alone with the practitioner since he had touched her inappropriately. Patient A told the practitioner that she was having issues with her right shoulder. The practitioner began massaging Patient A's right shoulder area. The practitioner asked to put his hands just under Patient A's top to get a better grip. Patient A agreed. The practitioner continued to massage Patient A's shoulder and collar bone area for the session. At the conclusion of the session, the practitioner slowly moved his hand from Patient A's right upper chest, down over the top of her right breast, across to her left breast and out of her shirt. Patient A believed the motion to be unnecessary as the practitioner could have taken his hand straight out of her top without touching any part of her breasts. The slow manner in which the practitioner did the movement made Patient A feel like he was just trying to feel her breast. 23. (complaint 3.2) On 23 May 2020, in the course of a chiropractic consultation at CVC with Patient A, the practitioner inappropriately placed his hand inside Patient A's shirt and touched her breast without her consent, in circumstances where: a. the touching was not clinically indicated; b. the practitioner knew, or was reckless as to the likelihood that Patient A could consider the touching to be sexually motivated; c. the practitioner knew, or was reckless as to the likelihood that Patient A did not consent to the touching; d. the conduct was contrary to cl 9.2(a) of the Chiropractic Board of Australia Code of Conduct (2014). 24. The way in which the practitioner touched Patient A was sexual and deliberate. At no point did Patient A give the practitioner permission to touch her breast or vagina. 25. The practitioner wrote a handwritten note. 26. Patient A went home and disclosed the incident to her partner. 27. On 23 May 2020, Patient A sent a text message to the practitioner: [20.35] Hi Paul, I need to speak up for myself here. I was not comfortable with the massage you gave me today. No problem with the spot you have massaged under my right arm; the issue is when finished I felt your hand brushed through from my right chest to the left before taking your hand off me. I found it unnecessary and very uncomfortable. This is not the first time; as previously you have also put your hand underneath my underwear when you massaged my right thigh. I am very disappointed as I had placed my trust in your professionalism. I believe you are aware that for my condition I need regular ongoing chiropractic treatment. I thought your skill can help me but I am very upset with what I had to go through. Please make sure this does not happen again. Regards [Patient A]. 28. On 23 May 2020, the practitioner sent two text messages to Patient A: [20:56] Hey [Patient A] I am so sorry, I really do like you trust me and I'm so sorry I have made you uncomfortable!.....I hope you keep seeing me i will do better!!! I do thank you for telling me how you feel I hope I can still be your chiropractor I feel bad i made you uncomfortable [21:33] [Patient A] I am always learning and I feel so bad you felt uncomfortable with today or the past. I hope you forgive me and give me another chance, definitely happy to chat on phone if you like…..really sorry 29. On 24 May 2020, the practitioner sent two text messages to Patient A: [07:36] Morning [Patient A], I cant explain how sorry I am you felt uncomfortable yesterday, for you to write that your obviously upset. I always hope my clinic is a place for you to feel safe and relaxed, certainly not a place of concern. I really did not know you were uncomfortable, I was only focused on releasing a muscle, nothing else. Perhaps I get too relaxed and dont think how you are while I'm working. I really hope you still see me, and if so if I ever do or say anything that does not feel comfortable please let me know…..anything I can do to make you feel safe Id be happy to do, i sometimes use a towel as a barrier between me and the person I'm working on, lve not felt lve needed to with you but I could…..please call me if you wish [07:54] I hope to always be your chiropractor 30. On 24 May 2020, Patient A sent a text message to the practitioner: [11:33] You are always learning what?! Too relaxed?! Learning how to put your bare hand on my private part under my underwear without gloves while you massage? It was absolutely unnecessary to touch my private part at all! You did this 3 times!! Too relaxed? So relaxed that when you talk about your meditation you used your hand to brush through my left breast? Again unnecessary! And yesterday, obviously you could have just take out your hand without brushing through my chest. I didnt say I trust you but I trust you are professional. When I kept trying to give you the benefit of doubt you have totally failed. Dont you dare to try to deny what you have done. You knew exactly my health condition and the treatment I need and you took advantage of that. Shame on you! You also kept texting me unrelevant and unnecessary msgs when I clearly never reply, why? STOP trying your luck. 31. On 24 May 2020, the practitioner sent a text message to Patient A: [13:32] Ok…..I really am very sorry 32. On 24 May 2020, Patient A reported the matter to Police. Convictions for mid range PCA and red light offences - 8 July 2020 33. (complaint 1.1) On 8 July 2020, at Manly Local Court, the practitioner pied guilty and was convicted of: a. Not stop at stop line at red light (not toll booth) contrary to Rule 56 of the Road Rules 2014; and b. Drive with middle range prescribed concentration of alcohol (first offence) contrary to section 110(4)(a) of the Road Transport Act 2013. 34. (complaint 2.1) The practitioner failed to notify the National Board within 7 days that he had been convicted, on 8 July 2020, with an offence punishable by imprisonment being one count of drive with middle range prescribed concentration of alcohol (first offence) contrary to section 110(4)(a) of the Road Transport Act 2013. practitioner did not notify AHPRA at any time of this conviction. 35. About 3:15pm on 16 September 2020, Patient A made an unanswered call to the practitioner. A few minutes later the practitioner called Patient A back. The practitioner and Patient A engaged in a conversation that lasted approximately 10 minutes. This phone call was lawfully intercepted by Police. During the phone call, the practitioner: a. said "I'm sorry for being inappropriate, um, for, um, crossing lines; b. admitted touching Patient A's vagina without her consent; c. said "I don't know why I did it"; d. said "it was just a very bad phase in my life, personal stuff, which I didn't tell you, and I don't know, I seemed to have a connection with you"; e. admitted he knew his actions were inappropriate; f. failed to provide an explanation as to why he touched her vagina, only saying "I don't know [Patient A], I really don't'; g. admitted touching Patient A's vagina on three occasions; h. did not deny touching Patient A's breast, saying "I didn't mean to do that" and "I didn't intentionally do that"; i. said "I would love to have your trust again... I wish I could somehow, um, have another chance with you"; j. said "you've taught me more than you know, ... you've actually, in a way, changed my life ... when I thought I'd lost your trust, ... it actually hurt me more than I can explain ... I'm respecting my patients' trust more than I ever have. Um, it did take you confronting me to do that"; k. asked Patient A "do you think I will ever get your trust again or not? 36. On 24 September 2020, police attended CVC, arrested the practitioner, cautioned him and seized records relating to Patient A under search warrant. Police interviewed the practitioner at Chatswood Police Station and played the lawfully recorded telephone call. The practitioner agreed that he was the person involved in the call with Patient A and agreed that everything said during the call was the truth. 37. On 24 September 2020, police charged the practitioner with five counts of. sexually touch another person without consent, contrary to section 61KC(a) of the Crimes Act 1900. That offence is punishable by imprisonment. 38. (complaint 2.2) The practitioner failed to notify the National Board within 7 days that he had been charged, on 24 September 2020, with offences punishable by 12 months imprisonment or more being five counts of sexually touch another person without consent, contrary to section 61KC(a) of the Crimes Act 1900. The practitioner notified AHPRA of this charge late (25 days after he was charged, see below). 39. On 14 October, the practitioner's criminal matter was first listed for mention and the practitioner pleaded not guilty to all 5 charges. 40. On 19 October 2020, the practitioner's solicitor notified AHPRA that the practitioner had been charged with criminal matters "No determination of guilt has yet been established." 41. On around 23 October 2020, the practitioner received a letter from the Chiropractic Council of NSW (Council) requesting information. 42. On 1 November 2020, the practitioner's solicitor emailed the Council advising the practitioner had entered a plea of not guilty to all charges, that the practitioner is practicing, that the practitioner wishes to remain in practice and that the practitioner could arrange a third party to be present during consultations with female patients if necessary and attached the practitioner's completed information form and the Police Indictment (Court Attendance Notice) and Facts. 43. On 5 November 2020, the practitioner attended the Council section 150 hearing. The practitioner gave evidence that from the outset he has defended the allegations, he highlighted the alleged offence had occurred in February 2019 and it is now the end of 2020, he said he has always complied with the Code of Conduct and has a clear record. The Council suspended the practitioner's registration, effective 5 November 2020. 44. On around 19 November 2020, the practitioner received a letter from the Commission informing him that the complaint was to be investigated. 45. On around 2 December 2020, the practitioner received a letter from the Commission inviting him to provide a response and CV. 2021 46. On 3 February 2021, the practitioner's criminal matter was listed for mention and the practitioner pleaded guilty to sequences 1-3 and not guilty to sequences 4-5. 47. On 8 February 2021, the practitioner self-referred to Ivanka Manoski, psychologist. The respondent attended 23 treatment sessions with Ivanka Manoski from 22 April 2021. 48. On 21 June 2021, the practitioner signed the Form 1 admitting sequences four and five. Convictions for sexually touching Patient A - 25 August 2021 49. (complaint 1.2) On 25 August 2021, at Hornsby Local Court, the practitioner was convicted of three offences: a. Sexually touch another person without consent on 11 February 2019, contrary to section 61KC(a) of the Crimes Act 1900 (NSW) (sequence 1); b. Sexually touch another person without consent on 18 February 2019, contrary to section 61KC(a) of the Crimes Act 1900 (NSW) (sequence 2); c. Sexually touch another person without consent on 27 February 2019, contrary to section 61KC(a) of the Crimes Act 1900 (NSW) (sequence 3). 50. The Magistrate also took into account the two other admitted offences (sequence 4 and sequence 5) on the Form 1. The practitioner tendered a letter to the Magistrate, Ivanka Manoski's report, character reference and sentence assessment report. The practitioner was sentenced to 18 months intensive corrections order with a condition he continue psychological therapy. 51. In February 2023, the respondent cancelled his session with Ivanka Manoski and withdrew from treatment." APPLICANT'S EVIDENCE 1. The Applicant provided a series of documents to the Tribunal marked Exhibit 1 to Exhibit 11 which were admitted and the Applicant advised the Tribunal that it would not be calling any additional evidence. RESPONDENT'S EVIDENCE 1. The Respondent called Dr Olav Nielssen, psychiatrist, who had provided reports dated 6 September 2022 and 22 December 2022. 2. The reports of Dr Nielssen were accepted and Dr Nielssen was cross‑examined by the Applicant. The Applicant addressed the fact that the report was dated 15 days after the assessment, the assessment having been the only meeting with the Respondent. It was suggested to Dr Nielssen that the risk assessment is a nonsense because how was he able to assess the probability of future conduct on one meeting and report on it 15 days later. It was put to him that it might be more difficult to assess risk after a single meeting to which he said that it depended on the circumstances. 3. Dr Nielssen was questioned on the fact that in the report Dr Nielssen had indicated that there was an absence of any other offending and when asked how he could say that when there were three instances of touching on her vulva and two instances of touching her breasts. In response, Dr Nielssen agreed but stated that they were on the same patient and therefore he did not see a significance to multiple offences with the same patient. 4. Dr Nielssen was taken to his comment that in his opinion conduct would not reoccur to the catastrophic effect of the offences on Mr Stinson's professional standing to which he responded that no reasonable person would go on offending if they considered the consequences which can be pretty significant. 5. Dr Nielssen repeated his view on the level of risk of the Respondent reoffending in his report of 22 December 2022 after a review of Ms Manoski's report, the treating psychologist of the Respondent. 6. Ms Manoski was not required for cross‑examination and her reports are exhibits in this hearing. The Tribunal was also provided with the Respondent's treatment notes, the contents of which are suppressed and will be redacted wherever reference is made to any treatment. In Ms Manoski's report, she confirms that the Respondent self-referred for psychological treatment on 8 February 2021. At that time, he had been charged with five counts of sexually touching another person without consent and that the offences allegedly occurred in the context of the Respondent providing treatment as a chiropractor. Ms Manoski said that: "… 6. Mr Stinson's treatment initially focused on identifying and strengthening his adaptive coping skills and increasing his insight. Mr Stinson presented as an intelligent person with an ability for self-reflection and effective self-change. He demonstrated this throughout the treatment process by applying learnt strategies to his life and modifying his thinking and behaviour. … [REDACTED] … 7. As noted in my previous treatment report from 2021, Mr Stinson does not have a history of previous poor mental health. … [REDACTED] … From my clinical assessment of Mr Stinson, he also would not have met criteria for any mental health disorder around the time of his alleged index offending and this was not considered a risk factor that would require management. 8. … [REDACTED] … Throughout his time in treatment, Mr Stinson worked hard to repair and strengthen the relationships, most notably his relationship with his partner. He also reached out to friends and re­ established these relationships. He reported that these friends are aware of his offences and have chosen to continue to support him. 9. The bulk of the sessions with Mr Stinson focused on offence related treatment including identifying his risk factors, understanding his pathway to offending and developing a relapse prevention plan that ensures that he has appropriate ways to manage any future risk factors, should they ever become present in his life again. 10. Mr Stinson recognised several risk factors that were present at the time of the offending, … [REDACTED] … 11. During treatment, Mr Stinson developed a relapse prevention plan, in which he identified how he wouId manage each risk factor should they ever become a difficulty again. This included the identification of skills and strategies he would use. He also worked hard to achieve a life work balance, … [REDACTED] … 12. During treatment, his work as a chiropractor was discussed. Mr Stinson took responsibility for his offending behaviour from the outset of treatment. Through his engagement in sessions, he was also able to recognise that his professional boundaries with his clients were too laxed and he would socialise with some of his clients and provide much longer consultations than are standard to some clients. Mr Stinson acknowledged the power difference in a doctor patient relationship and understood his role as such. He acknowledged that if he was able to return to his role as a chiropractor, he would amend his practice, including ensuring he has stronger professional boundaries. He expressed openness to attend seminars, training, and further treatment sessions to ensure his professional boundaries are maintained. …" 1. Ms Manoski was asked to respond to various questions which are set out below: "… 16. If our client were permitted to practice as a chiropractor, would this present a risk to the health or safety of any person or persons (above that presented by a chiropractor with an unblemished disciplinary and criminal record)? I cannot specifically comment in relation to Mr Stinson's risk level as I have not undertaken a risk assessment as part of my work with him. This would require an assessment and for me to apply a structured professional judgement tool. It is generally considered unethical for treating psychologists to complete risk assessments as there is a concern that the opinion provided will not be entirely objective because they have a pre-existing therapeutic relationship with the client. However, I would indicate that Mr Stinson has worked on the identified risk factors and has appropriately addressed them throughout his time in treatment. This would suggest a reduction in his potential to engage in any future risky behaviour should he maintain his gains. 17. If there was any risk, what steps may be taken to address that risk: Should Mr Stinson be reinstated as a chiropractor and permitted to practice clinically in this capacity, in my opinion, a number of strategies will assist him to maintain professional boundaries and reduce any potential risk, should any arise. These include: • Engagement in an ethics course and potentially refreshers of this as he continues to practice. • Engaging in ongoing maintenance sessions with myself to ensure there is a level of accountability and practicing of skills learnt. This will include ensuring that he is maintaining social connections, a work life balance, managing stress levels appropriately and reaching out for support if his stress levels become high. He also needs to monitor and engage in appropriate sexual self-regulation. • Modifying his practice to ensure that there are strategies in place to maintain boundaries, for example, the use of props such as a towel to cover a patient, a pillow or the like to have in between himself and a patient when performing procedures that require close physical contact, explaining procedures that he plans to perform and seeking the client's consent prior to doing so. The physical props can serve as a reminder of boundaries for Mr Stinson. • Maintaining professional boundaries in the consultations and not exceeding the time of a session. • Ensuring he maintains a life work balance and engages in self-care. • … [REDACTED] … • Maintaining a stable and intimate relationship with his partner. • Continuing to maintain open and close connections with his family and friends. 18. To what level would the risk be reduced if those steps were taken? Should Mr Stinson maintain practicing learnt skills and remain vigilant in relation to potential areas of risk and continue to receive assistance and maintain boundaries in his professional practice, his risk of further re-offending should be mitigated. …" 1. The Respondent was called to give evidence and was cross‑examined by the Applicant. 2. The Respondent was asked why he terminated his treatment in February 2023 to which he replied that he needed to get on with his life and that there was no point in continuing with the treatment if he was not going to be a chiropractor but he would go back to the treatment if he was allowed to practice as a chiropractor and that he liked Ms Manoski. 3. Questioning went to the issue of the Respondent's knowledge of the Code of Conduct for Chiropractors and it was clear from his responses that he had very limited knowledge of the requirements of the Code of Conduct including notification to AHPRA and in respect of boundaries required between a treating practitioner and a patient. The Respondent stated that he had not looked at the Code in respect of sexual boundaries before he was suspended. The Respondent indicated that he was always jovial and friendly with his clients and was questioned on the fact that he had told Dr Manoski that he socialised with patients. He stated that he did not socialise with multiple patients but that there was one patient with whom he did socialise. 4. In response to questioning about why he touched Patient A he responded that she was very attractive and that was why he spent so much time with her and there was a level of banter between them. His evidence in effect was suggesting that he felt it was acceptable for him to touch Patient A's vulva because he thought that she was responding to him in a particular way. 5. Cross‑examination then turned to the agreed facts and in particular the fact that he asked her to pull her pants down. He stated that he did not remember saying that but did refer to the fact that she was wearing short pants. Ultimately, he denied that he had asked her to pull her pants down on one occasion and that he had pulled her pants down on another occasion. These denials were made in conflict with the agreed set of facts which he was a party to. When challenged on the contradictions between the agreed facts and his evidence he stated that he signed the agreed facts, did not read them very carefully but stated positively that he had not said those words. APPLICANT'S SUBMISSIONS 1. The Applicant provided the Tribunal with written submissions. These submissions were originally prepared on 7 December 2023 then were updated on 11 March 2024 after receipt of the transcript of the hearing on 5 December 2023. 2. Paragraphs 1 to 5 of the Applicant's submissions are set out below: "Introduction 1. This matter is about a chiropractor who sexually touched a female patient by massaging her vulva during a consultation, massaged her vulva during the next consultation 7 days later, massaged her vulva during the next consultation 9 days later and caressed her breast during another consultation. The practitioner did not touch the patient inappropriately during other sessions when the patient's partner remained in the consultation room but then, about 14 months later, moved his hand over her breasts during a final consultation when the patient was alone. The practitioner failed to notify AHPRA within 7 days of his drink driving conviction and within 7 days of his sexual touching charges. 2. This is an inquiry into a Complaint made by the Commission to the Tribunal under sections 145C(1)(a) and 145D of the Health Practitioner Regulation National Law (NSW). After Patient A complained to police, the Council suspended the practitioner's registration 3 The relevant principles 3. The relevant principles include: a. the protection of public safety and health is paramount; 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; 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; 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; e. protecting the health and safety or 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; f. the Tribunal is not bound by the rules of evidence; 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; h. the Tribunal is subject to rules of procedural fairness. 4. There are five steps for the Tribunal in this combined inquiry: a. First. the Tribunal must consider whether Complaint 1 (convictions) is proven; b. Second, the Tribunal must consider whether Complaints 2 and 3 (unsatisfactory professional conduct) are proven; c. Third, the Tribunal must consider whether the proven unsatisfactory professional conduct amounts to professional misconduct (Complaint 4); d. Fourth, once it finds the subject matter of the complaint to have been proved or admitted, the Tribunal must consider the appropriate protective orders. The Tribunal may suspend or cancel the practitioner's registration on the basis that the practitioner is guilty of professional misconduct and/or on the basis that the practitioner has been convicted of offences and the circumstances of the offences render him unfit in the public interest to practise the practitioner's profession. The Tribunal may impose a prohibition order if it is satisfied that the practitioner poses a substantial risk to the health of members of the public. e. Fifth, the Tribunal must consider whether to make a costs order. 5. The Commission seeks a. an order under section 149C(1)(b) and/or 149C(1)(c) of the National Law cancelling the practitioner's registration; b. an order under section 149C(7) of the National Law setting a non-review period of 3 years; c. an order under section 149C(5) of the National Law prohibiting the practitioner from providing any health service as defined by section 4 of the Health Care Complaints Act 1993 for the same period as any non-review period; d. an order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed." Complaints 1. The Applicant addressed each of the Complaints and asked the Tribunal to confirm that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 2. It is unnecessary for the Tribunal to repeat all of the Applicant's submissions as these are covered in the Agreed Facts set out above. 3. Paragraphs 28 to 30 of the Applicant's submissions are set out below: "Protective orders 28. Once it finds the subject matter of the complaint to have been proved or admitted, the Tribunal must consider the appropriate protective orders. The relevant principles include: 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; 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; 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; 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; e. the Tribunal's jurisdiction is primarily protective, not punitive; f. it is unavoidable that protective orders may be incidentally punitive; g. asserted reformation of a practitioner's character is exceptional and requires clear proof. Cancellation 29 The Commission seeks cancellation of the practitioner's registration via section 149C(1)(b) of the National Law because he is guilty of professional misconduct (for the reasons expressed above). The relevant principles include: a. it is not necessary to make a finding that the practitioner is probably permanently unfit to practise before registration can be cancelled; b. whether the conduct is sufficiently serious to warrant cancellation is a matter of degree and judgment which requires an assessment of the gravity of the conduct found proved, and consideration of remorse and insight, if any, demonstrated by the practitioner; 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. 30. The Commission seeks cancellation of the practitioner's registration via section 149C(1)(c) of the National Law because the circumstances of the offences render him unfit in the public interest to practise. …" 1. The Applicant sets out the principles for cancellation which are well known to the Tribunal and are taken into account in the Tribunal's decision. 2. The Applicant's submissions are set out from paragraph 44 below: "44. The Commission seeks a non-review period of 3 years under section 149C(7) of the National Law. The relevant principles regarding a non-review period include: a. the Tribunal has the power to set a non-review period; b. the setting of a non-review period is not to punish the practitioner but to protect the public; 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; d. each matter turns on different facts and subjective circumstances and different Tribunals may exercise their discretions differently, so the non‑review periods imposed in previous matters do not set a benchmark for subsequent cases; e. the fixing of a period of non-review indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and it holds open to the practitioner the possibility of return[ing] to the profession at a later time; f. a non-review period firstly provides for the safety of the public ensuring only those practitioners fit to practice do so, secondly it sets a period of time during which a Tribunal attempts to predict the time in which a practitioner may reasonably take steps to rehabilitate and thirdly it sends a clear message of denouncement of the practitioner's conduct to other professionals. … 46. The [Commission states that the] practitioner opposes cancellation and submits that the practitioner's current suspension for 3 years would be sufficient to enable his rehabilitation and protect the public interest. The Commission does not accept the suggestion in the practitioner's Reply that the Tribunal must take the current suspension into account. There is a difference between a suspension Imposed by the Council and a suspension/cancellation imposed by the Tribunal. The Council delegates may suspend if they are satisfied based on the evidence available at that time that it is appropriate to do so for the protection of the health or safety of any person or persons or if satisfied the action is otherwise in the public interest. The Council's suspension relevantly continues, by operation of the National Law, until the complaint about the practitioner is disposed of by the Tribunal. The Tribunal may suspend/cancel based on the evidence now available if the Tribunal is satisfied that the subject-matter of the complaint is proven, noting that protection of public safety and health is paramount. The fact that the Council delegates exercised their power to suspend the practitioner's registration (based on the limited material before the delegates at that stage) does not constrain the Tribunal's own power to suspend/cancel after the hearing. It is open to the Tribunal, for the reasons outlined above, to cancel the practitioner's registration and reject any suggestion that any non-review period must be shortened because he has already served a suspension because that does not reflect the purpose of the disciplinary powers of the Tribunal. A practitioner is not automatically entitled to a credit for any period of suspension served: the question is whether cancelling a practitioner's registration. or a further period of suspension. is appropriate to protect the public and maintain professional standards. 47. The Commission submits that any order short of cancellation (such as a suspension or conditions) would be a wholly inadequate protective order and relies on its submissions above in support of cancellation. Prohibition order 48. The Tribunal has the power to make a prohibition order if it cancels or suspends the practitioner's registration and it is satisfied that the practitioner poses a substantial risk to the health of members of the public. 49. The Commission seeks a prohibition order because the practitioner poses a substantial risk to the health of members of the public: 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; 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; 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 took an extraordinary risk on the first occasion when he massaged Patient A's vulva, even though he knew was wrong, even though he was uncertain whether she was attracted to him ("not definitely mutual, I wasn't sure, I didn't think she was inviting me to be inappropriate. I knew it was wrong.... Part of the excitement was that it was wrong"), even though Patient A did not do or say anything to invite him ("I wanted to do inappropriate things, I wanted to get closer, I didn't get any change in conversation and she was still talking as if nothing was wrong when I touched her vagina. That was my litmus test, there were no signs to me that she was uncomfortable and even though he did not say anything to Patient A to prepare her for massaging her vulva ("I didn't want to make a scene, I wanted to be subtle"); e. the practitioner engaged in risky conduct over a lengthy period (five consultations over 15 months); f. the practitioner did not voluntarily cease his conduct (the conduct paused when Patient A's partner began accompanying Patient A into the consultation room and the conduct ceased when Patient A complained to the practitioner and did not return); g. the practitioner poses a risk of inappropriately touching another female patient in future who he may be attracted to (or who he assumes might [be] attracted to him); h. the practitioner poses a risk of concealing his conduct in future (according to Patient A and her partner, the practitioner told the patient's partner to walk around the block, he wrote a handwritten note of the final consultations without mentioning the inappropriate touching, he did not make any note about the patient's text or phone call, he invented a lie that his hand was injured because he did not want to tell family/friends the reason he is not practising); i. the practitioner poses a risk of blurring boundaries in future (he said he continued often having banter and jokes around with many of his clients as this is his personality and providing lengthy treatments because he wanted them to think well of him); j the practitioner claims that if he is allowed to practice in future, he has very good reasons not to engage in any inappropriate behaviour, such conduct could jeopardise his registration/reputation/relationship but the very same reasons were present before he started offending (the practitioner already knew, back in 2018, that breaching professional boundaries with a current patient could potentially lead to patient harm, a patient complaint, an investigation and potentially affect his registration and income) yet he still continued to offend in 2019/2020 so he poses a risk of further offending in future; k. the practitioner poses a risk of contacting female patients in inappropriate ways in future (Patient A was concerned that the practitioner kept texting her irrelevant and unnecessary messages); I. the practitioner poses a risk to female patients he may treat as a self employed unregistered health practitioner with no oversight or monitoring; m. 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. 50. Dr Nielssen claims that … the practitioner poses a minimal risk of further similar conduct but that opinion should be given limited weight in the Tribunal's assessment of risk when making protective orders because: a. Dr Nielssen's briefing material was limited (he was not briefed with Patient A's statements, Patient A's partner's statement, the practitioner's text messages, the phone call between the practitioner and Patient A, the practitioner's police interview, the practitioner's letter to the Magistrate, the practitioner's Reply or the practitioner's affidavit); b. Dr Nielssen's assessment is limited (he had a single consultation with the practitioner 15 months ago); c. Dr Nielssen's risk analysis is limited (he did not apply any structured risk assessment tools about the risk of sexual recidivism, such as the STATIC99R); d. Dr Nielssen acknowledged the difficulties inherent in attempting to predict future conduct; e. Dr Nielssen's prediction that the practitioner would present a "minimal" risk to the health and safety of any person will be given limited weight because some of his assumptions are not supported by the evidence; f. Dr Nielssen conceded that the practitioner's age is not a relevant factor in assessing his risk (the practitioner offended when he was 47 years old and is now 52 years old); g. Dr Nielssen's opinion that the practitioner does not have a psychiatric disorder or substance use disorder is not relevant to risk (the practitioner offended against Patient A in the absence of any disorder); h. Dr Nielssen's assumption that Patient A must have done some type of behaviour to indicate to the practitioner that the sexual touching was allowed to continue does not assist the Tribunal because Patient A never did or said anything to invite the practitioner to touch her vulva; i. Dr Nielssen's assumption that there was a misunderstanding/misinterpretation does not assist the Tribunal because the practitioner knew on the first occasion that his conduct was wrong, thought on the second occasion that the patient could report him to AHPRA yet still offended again on the third occasion; j. Dr Nielssen's assumption that it was only after Patient A drew her opinion to his attention in her text message that the practitioner realised it was wrong does not assist the Tribunal because part of the excitement for the practitioner was doing something he wasn't supposed to do; k. Dr Nielssen's assumption that the practitioner's risk of reoffending is reduced due to the potential consequence of the offences on his professional standing and personal circumstances does not assist the Tribunal because the practitioner started offending when he already knew that breaching professional boundaries with a current patient could potentially affect his registration and income; I. Dr Nielssen's broad generalisation ("It is the one string of offences, it doesn't make a difference that it happened more than once") does not prevent the Tribunal, as a matter of logic, finding that a practitioner who engaged in multiple occasions of inappropriate touching in five separate consultations poses an increased risk of engaging in similar conduct in future. 51. It is open to the Tribunal, having considered all the written evidence and the practitioner's oral evidence, to make a prohibition order because the practitioner poses a substantial risk to the health of members of the public for the reasons expressed above. Costs 52. The Tribunal has the power to order the practitioner to pay costs. The Commission seeks an order that the practitioner pay the Commission's costs as agreed or assessed because: a. the NSW Court of Appeal has affirmed that costs are awarded lo compensate the successful party and accepted that as a general rule, costs of proceedings before the Tribunal should follow the event; b. the presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party; c. there was no disentitling conduct by the Commission to warrant a departure from the general rule." RESPONDENT'S SUBMISSIONS 1. On 1 March 2024, the Respondent provided the Tribunal with submissions (dated 1 March 2023) which are set out below: "Background 1. These proceedings involve an application by the Health Care Complaints Commission (HCCC) under the Health Practitioner Regulation National Law (NSW) (National Law) for: a. an order cancelling the respondent's registration pursuant to s 149C(1)(b) or (c) of the National Law with a non-review period of 3 years (Proposed Cancellation Order); b. a prohibition order prohibiting the respondent from providing a health service for the same 3 year period (Proposed Prohibition Order); c. an order for costs. 2. In response the respondent: a. opposes the Proposed Cancellation Order and Proposed Prohibition Order; b. further says that [the practitioner] has been suspended from practice for a period exceeding 3 years, such time being sufficient to enable his rehabilitation and protect the public interest; c. will consent to: i. a caution or reprimand; ii. conditions on his registration; iii. an order to undergo further psychological counselling; and iv. an order that he engage in educational courses; and d. consents to an order for costs on the ordinary basis, as agreed or assessed. 3. The respondent has made full admissions in respect of the allegations against him in both the criminal proceedings before the Local Court and in this Tribunal. The admissions made are formalised in a Response to Orders Sought and a Response to the Complaint. 4. The respondent has engaged in an extended course of rehabilitation and treatment. 5. The question before the Tribunal is - what action should be taken in light of the admitted conduct, rehabilitation and treatment? Summary of Evidence 6. The following evidence has been led in these proceedings: Exhibit Document 1 HCCC Bundle 2 HCCC Supplementary Bundle 3 HCCC Additional Documents 4 Certificate of Conviction 5 AHPRA evidentiary certificate 6 Affidavit of Paul Alexander Stinson of 1 November 2023 and Exhibit PS1 7 Report of Ivanka Manoski of 10 August 2021 8 Treatment report of Ivanka Manoski of 28 September 2022 9 Report of Dr Olav Nielssen of 6 September 2022 10 Further report of Dr Nielssen of 22 December 2022 11 Agreed Facts Transcript of the Hearing (T) Effect of the Respondent's Admissions 7. The Tribunal may exercise the powers conferred by Part 8, Division 3, Subdivision 6 of the National Law because the respondent has admitted, in writing to the Tribunal, the substance of the complaint: s 149(b) National Law, Response to Orders Sought and Response to the Complaint. 8. The respondent has admitted to the whole of the Complaint. There are no factual or legal issues that require resolution for the purposes of Stage 1. 9. Substantial portions of the applicant's submissions are directed at proving those matters that are admitted (Applicant's Submission (AS) at [9], [11], [12], [13], [14], [16], [17], [18], [19], [20], [21], [22] and [24]). Those submissions are otiose and do not need to be regarded by the Tribunal. 10. The Tribunal does not need to make any finding other than: a. the respondent has made full admissions in respect of the Complaint; and b. s 149(b) of the National Law is enlivened. 11. Such an approach facilitates the just, quick and cheap resolution of the real issues in the proceedings: s 36 Civil and Administrative Tribunal Act (NCAT Act). 12. The acceptance of the admissions of the respondent as wholly addressing Stage 1 enables the Tribunal to direct its focus to Stage 2, where the parties are actually in dispute. Statement of Agreed Facts 13. The parties have tendered a Statement of Agreed Facts: Exhibit 11. 14. The Statement of Agreed Facts is consistent with the admissions made by the respondent. 15. It facilitates the just, quick and cheap resolution of the real issues in the proceedings by relieving the Tribunal from having to make findings of fact: s 36 NCAT Act; see e.g. Health Care Complaints Commission v Kolos [2022] NSWCATOD 46 at [10]. 16. Although the rules of evidence do not strictly apply, they are ordinarily adopted by the Tribunal by analogy (Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]). It is therefore useful to have regard to s 191 of the Evidence Act which states: agreed fact means a fact that the parties to a proceeding have agreed is not for the purposes of the proceeding, to be disputed. 17. S 191 applies to civil proceedings. S 184 of the Evidence Act provides a similar provision which applies to criminal proceedings. Once a fact is admitted further evidence in relation to that fact is regarded as irrelevant as the fact is no longer in issue: Odgers Uniform Evidence Law 13th Ed. 2018 at 184.20. 18. Courts and tribunals are reluctant to allow parties to depart from agreed facts. In Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152 Biscoe J said at [16]: An application to contradict or qualify agreed facts after considered negotiation and legal advice, particularly when made as late as the hearing, challenges the integrity of the agreed facts procedure and should be approached with caution. There has to be an incentive for parties to agree facts. To allow a party to back out of such an agreement easily does not encourage agreement in the first place. In a general sense, there is prejudice in denying to a party the right to rely on something that they reasonably thought was agreed. 19. Departures from agreed facts give rise to significant issues of procedural fairness and prejudice: Ristevski v The Queen [2011] VSCA 53 at [5] - [10]. 20. It is unclear from the applicant's submissions what of the Agreed Facts, if any, the applicant resiles from. The applicant, as a regulator who is obliged to act as a model litigant, should specify in their reply submissions if they seek to resile from any Agreed Facts and what those facts are. 21. At hearing the respondent denied one aspect of the Agreed Facts - that he had pulled down the pants of the patient (T 1403 - 1404). For the purpose of the disciplinary decision, the respondent does not rely on that as reducing the severity of the offending behaviour. The objective seriousness of the offences is that which is described in the Agreed Facts. Powers of the Tribunal 22. S 149A of the National Law relevantly provides: General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner– (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. … (4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's ... registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's ... registration being cancelled. (5) The order or condition concerned is then a critical compliance order or condition. 23. S 149C of the National Law relevantly provides: Tribunal may suspend or cancel registration in certain cases (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied– … (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or … (5) If the Tribunal suspends or cancels a registered health practitioner's ... registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following– (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. General Principles 24. The finding of professional misconduct (which is conceded) exposes the respondent to the possibility of his registration being suspended or cancelled, but that outcome is not automatic: Chen v Health Care Complaints Commission [2017] NSWCA 186, 95 NSWLR 334; Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD (Dobie) 153 at [4]. 25. The choice of penalty is a "matter of degree and judgment": Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; Dobie at [4]. 26. The exercise of the Tribunal's jurisdiction in a professional discipline matter is entirely protective, and not punitive: HCCC v Litchfield (1997) 41 NSWLR 630 (Litchfield) at 637-638. 27. The respondent concurs with the applicant in that the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession, and the protection of the community: AS at [28a]; Prakash v HCCC [2006] NSWCA 153 (Prakash) at [91). 28. The adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order: Prakash at [101]. 29. The respondent concurs with the applicant in that there is an element of deterrence in applying professional standards (AS at [28c]) but says that the authority in support of that proposition is Prakash at [91] and not Litchfield at 637. 30. The respondent concurs with the applicant that reformation of character cannot be assumed and requires clear proof: Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 6 SR (NSW) 448, 461 31. Litchfield at 637 is authority for the proposition that a lapse of time since the events giving rise to a complaint may be relevant in determining whether a practitioner has undergone a reformation of character and behaviour, or whether the incidents can be viewed as isolated or passing departures from proper professional standards or attributed to youth or inexperience. It is the lapse of time that provides the opportunity to demonstrate rehabilitation. 32. The respondent concurs with the applicant in that protecting the health and safety of the public is not confined to protecting potential patients, and includes protecting the general public from similar misconduct, and maintaining public confidence in the health professions: AS at [28d]; HCCC v Do [2014] NSWCA 307 at [35). Disciplinary Sanctions for Sexual Touching 33. The respondent admits to sexual touching. 34. The cases determined by the Tribunal involving sexual touching present a range of circumstances. The breaches of discipline vary in the seriousness of the offending behaviour, the degree of cooperation between the practitioner and authorities, and the steps taken by the practitioner to rehabilitate themselves. 35. Before any comparison may be made to the other cases, it is appropriate to identify the key features of this matter: a. there were 5 separate instances of sexual touching perpetrated against the one patient (these correspond with the sequences in the agreed facts in the Local Court - …; b. sequences 1, 2 and 3 involve deliberate contact with the patient's vulva; c. sequences 4 and 5 involve contact with the patient's breast; d. the respondent gained sexual gratification from the first 3 instances …; e. in relation to the fourth and fifth sequences the respondent was desensitised to the gross inappropriateness of his actions …; [That the respondent did no gain sexual gratification from the fourth and fifth offences does not lessen the objective seriousness of that conduct. The respondent's state of mind at the time of offending is relevant to the psychological treatment that he has received - as the applicant submitted to the Tribunal during the hearing.] f. the respondent admitted the inappropriateness of his conduct to the patient prior to any Police or HCCC investigation …; g. the respondent voluntarily participated in a Police interview …; h. the respondent was charged with the sexual touching offences on 24 September 2020 …; i. the respondent engaged Ms Karim as his solicitor on or about 5 October 2020 …; j. the respondent spoke with his father, a solicitor, and looked on the AHPRA website in an attempt to verify what his reporting obligations were …; k. the respondent did not inform AHPRA of the sexual touching charges within time but the delay in notification was minimal and in part was the responsibility of his solicitor - Ms Karim disclosed the sexual touching charges to AHPRA on 19 October 2020 …; I. the respondent was suspended from practice by the Chiropractic Council on 5 November 2020 …; m. the respondent has not challenged the suspension, has remained suspended from practice since 5 November 2020, and has complied with the suspension since 5 November 2020 …; n. on 8 February 2021 the respondent commenced treatment with Ivanka Manoski, psychologist …; o. on 21 June 2021 the respondent signed the Form 1 admitting sequences four and five: …; p. on 25 August 2021 the respondent plead guilty to the remaining 3 offences and reached an agreed set of facts with the Police Prosecutor: …; q. before the Local Court on sentence were …: i. a letter of contrition; ii. a report from Ms Manoski; iii. a character reference; and iv. a sentence assessment report; r. the Local Court sentenced the respondent to an Intensive Corrections Order (ICO) for 18 months on the condition that he continue therapy with Ms Manoski …; s. the respondent complied with all conditions of the ICO; t. the respondent has made significant changes to his lifestyle and has applied himself to improving his physical and mental health …; u. the respondent continued treatment with Ms Manoski up until February 2023 and only discontinued treatment because he thought that he would never be able to return to the Chiropractic profession; and v. the respondent acknowledges that he …: i. violated the patient; ii. diminished himself as a Chiropractor; and iii. undermined the Chiropractic profession as a whole. 36. The Tribunal will also consider the evidence that goes to rehabilitation. 37. The Sentence Assessment report tendered in the Local Court … relevantly states: he did not attempt to minimise or justify his behaviour, acknowledging that his actions had a negative impact on the victim … Multiple third party enquires revealed that Mr Stinson had become withdrawn from his involvement in sport and associated social networks in the lead up to the offending, instead focussing solely on his work obligations. … Multiple potential dynamic risk factors have been identified that may have contributed to Mr Stinson's offending behaviour including victim access/psychological coercion, problems with stress and coping/social isolation, sex as a coping mechanism and general self regulation. … Mr Stinson expressed remorse for his offending and the effect of his actions on the victim, combined with feelings of guilt over breaking the trust of a client/patient relationship. Third party enquiries revealed that Mr Stinson has continually expressed shame over his actions, with the interviewed parties revealing their shock over the "out of character'' actions of Mr Stinson. … Contact with Mr Stinson's psychologist revealed his motivation to address the underlying catalysts for his offending behaviour, and a developing understanding of his actions and the subsequent harm caused. Supplementary discussions with Mr Stinson revealed a positive response to intervention, indicating an increased awareness of the factors surrounding his offending and long term strategies he can implement to mitigate future offending. … Mr Stinson has ... engaged well with the current sentencing assessment process, making himself available at all times and procuring documents on request. … Mr Stinson has been assessed at a low risk of reoffending according to the Level of Service Inventory- Revised (LSI-R). 38. Ms Manoski has provided two reports: a. the report tendered in the Local Court …; and b. the report prepared for these proceedings … 39. Ms Manoski was not required for cross-examination and her opinions were admitted without objection. Her reports paint a picture of the respondent as a person who has effectively engaged in therapy. Ms Manoski is candid in identifying the distorted thought patterns of the respondent prior to treatment …. That is unsurprising - the crime of sexual touching can only occur where thought patterns are distorted. No right thinking person would engage in such conduct. 40. The two key features of Ms Manoski's reports are …: a. the psychological interventions in relation to the distorted thought patterns; and b. the health and lifestyle factors that contributed to the offending behaviour. 41. As to the psychological interventions, Ms Manoski states: a. when challenged around his cognitive distortions related to his alleged offending, Mr Stinson was able to reframe his thinking …; b. Mr Stinson ... very quickly acknowledged that as the chiropractor he was in a position of power within the therapeutic relationship with his client and that it had been up to him to uphold boundaries …; c. as he progressed, he took increasing responsibility for his behaviour …; d. he was also able to recognise that his professional boundaries with his clients were too laxed (sic) …; e. He acknowledged that if he was able to return to his role as a chiropractor, he would amend his practice, including ensuring he has stronger professional boundaries …; f. He expressed openness to attend seminars, training, and further treatment sessions to ensure his professional boundaries are maintained … 42. As to health and lifestyle factors Ms Manoski states: a. Mr Stinson reported some anxious and depressive symptomatology at the beginning of treatment ... (but) does not meet criteria for any mental health disorder …; b. Mr Stinson recognised several risk factors that were present at the time of the offending, including low self-esteem, unbalanced lifestyle ..., not engaging in any self-care ..., lack of intimacy in his intimate relationship, sexual pre­occupation and accessing pornography frequently, lack of open communication with his partner, and not utilizing his social support network …; and c. During treatment, Mr Stinson developed a relapse prevention plan, in which he identified how he would manage each risk factor should they ever become a difficulty again … 43. Ms Manoski declined to make an actuarial assessment of risk for ethical reasons … 44. Dr Nielssen has provided two reports …. He states that Mr Stinson does not meet the accepted criteria for the diagnosis of any psychiatric disorder … He then provided the further opinions: a. sexual offenders as a group have a low rate of re-offending. Mr Stinson's probability of further similar conduct would be particularly low, based on his clinical presentations and actuarial factors, which include his age, relationship and the absence of other offences …; b. the main factor in predicting that the conduct would not occur again is the catastrophic effect of the offences on Mr Stinson's professional standing, personal circumstances and on his emotional state …; and c. Mr Stinson being permitted to return to practice as a chiropractor would present a minimal risk to the health and safety of any person …. 45. Dr Nielssen is critical of what he terms the risk assessment industry … Those criticisms are made in the following context: a. as a psychiatrist Dr Nielssen looks for signs of mental disorder …; b. you can identify problematic mental states that can be intervened with to reduce risk …; and c. the base rate of serious harms is so low, and the known risk factors are so common … 46. The whole of the independent evidence of risk establishes that: a. the respondent has taken significant steps to address his offending behaviour; and b. there is a low risk of any re-offending. 47. The applicant seeks that the registration of the respondent be cancelled with a 3 year non-review period. In other words, the applicant is seeking that the period of time that the respondent is unable to engage in Chiropractic practice should exceed 6 years. That approach is inconsistent with the approach of the Tribunal under the National Law. 48. The applicant relies on HCCC v Hachem [2022] NSWCATOD 169 (Hachem) at [103] - [109] to support the proposition that the failure to notify, together with the other conduct, is of a sufficiently serious nature to justify cancellation of registration: AS at [27e]. 49. In Hachem the practitioner was charged on 24 July 2019 with 51 counts of Intentionally record intimate image without consent and 2 counts of sexual touching. He failed to inform AHPRA within 7 days. On 27 November 2019 his registration [was] renewed and he failed to disclose the charges. On 20 June 2020 he was convicted of 2 counts of sexual touching and 8 counts of intentionally record intimate image without consent. On 4 November 2020 he was convicted of two counts of failing to comply with his reporting obligations as a sex offender. The practitioner again renewed his registration on 5 December 2020 and again failed to disclose the convictions. On 22 January 2021 AHPRA was made aware of another compliant and in the subsequent investigation, became aware of the charges and convictions. 50. In Hachem the offending conduct was significantly more serious than this case and practitioner was subject to a cancelation of registration with a 12 month non-review period. 51. In Health Care Complaints Commission v Blair [2020] NSWCATOD 54 a nurse who engaged in sexual touching, displayed a lack of insight and failed to attend the hearing was subject to a cancelation of registration with a 2 year non-review period. 52. In Health Care Complaints Commission v Tran [2022] NSWCATOD 129 the practitioner engaged in sexual touching of female patients but failed to make full admissions (and denied some matters). He was subject to a cancelation of registration with a 12 month non-review period. 53. In Health Care Complaints Commission v Safi (No. 4) [2017] NSWCATOD 102 the practitioner had engaged in sexual touching of the patient's clitoris and vagina' as well as kissing and hugging the patient. The conduct was not admitted resulting in contested hearings. The disciplinary sanction was a cancelation of registration with an 18 month non-review period. Safi (No. 4) involved objectively more serious behaviour than the present case in that: a. the offences were not admitted; and b. the physical violations were worse. 54. In Health Care Complaints Commission v Weinzettel (No 2) [2021] NSWCATOD 140 the practitioner had installed convert CCTV cameras in a bathroom of his home and in the bathroom of his physiotherapy practice. He was subject to a cancelation of registration with a 12 month non-review period. 55. The objective and subjective circumstances for the respondent in this case are far more favourable than those concerning the practitioners in the abovementioned cases. Failure to Notify 56. Contrary to the applicant's submissions at [12] and [14], the respondent concedes that he breached s 130(1) of the National Law in: a. failing to notify AHPRA of the mid-range drink driving conviction; and b. failing to notify AHPRA within 7 days of the sexual touching charges. 57. The respondent has also admitted that such conduct was unsatisfactory professional conduct. 58. Those admissions are clear in the Reply filed by the respondent (and attached to these submissions). 59. The point is illustrated Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 (Amalakumar), an authority that is cited by the applicant in other respects (AS at [9a], [9c] and [14]). 60. In Amalakumar, the practitioner was charged with and later convicted of assault (in the context of domestic violence). He was represented by solicitors on whose advice he relied and who did not advise him to inform AHPRA. The delay in notifying the charges was 10 months and the delay in notifying the conviction was 5 months. The Tribunal cautioned the practitioner and did not proceed to cancel his registration. 61. The circumstances of this case, as they relate to the failure to disclose, are closely analogous to Amalakumar. The delay in notification of the sexual touching charges was relatively minor (and less than the delay in Amalakumar}. Delay 62. There has been substantial delay in the applicant bringing these proceedings to the Tribunal. 63. The respondent was suspended from practice by the Chiropractic Council of NSW on 5 November 2020: … 64. The applicant informed the respondent that he was to be investigated on 19 November 2020: … 65. The respondent signed the Form 1 admitting sequences four and five of the Court Attendance Notice on 21 June 2021: ... 66. The respondent plead guilty to the remaining 3 offences on 25 August 2021: ... 67. Agreed facts were tendered in the Local Court: ... 68. It then took a further 2 years for the applicant to commence these proceedings. The application was filed on 17 August 2023. 69. It is difficult to understand why it took the applicant so long to bring proceedings when the respondent's admissions were a matter of public record. 70. The respondent has remained suspended for the entire time that it took the applicant to bring these proceedings. 71. The issue of delay is relevant to the question of disciplinary orders. The suspension of the respondent by the Chiropractic Council has had the same practical effects as though he was suspended from practice by the Tribunal, or had his registration cancelled for the same period. Those effects include: a. the public has been protected in that the respondent has been prohibited from practicing as a Chiropractor; b. the respondent has suffered significant financial losses …; and c. the suspension has encouraged the respondent to obtain psychological treatment. Use of Clinical Notes 72. The applicant seeks that the Tribunal draw factual conclusions from therapeutic notes of Ivanka Manoski ... 73. Two reports made by Ms Manoski are in evidence: ... 74. Ms Manoski was not required by the applicant to attend for cross-examination. 75. The issue of what those notes mean, as evidence of anything done by the respondent, was raised at the hearing ... The Tribunal did not rule on the objection. 76. The respondent objects to the use of those notes as evidence on the following bases: a. relevance b. the effect of the misuse of clinical records on the willingness of clients to be candid with their psychologists; and c. the rule in Browne v Dunn as it concerns procedural fairness. 77. The relevance of the clinical notes is unclear where: a. the respondent has made full admissions to the HCCC's complaint; and b. the parties have agreed to a statement of facts ... 78. The HCCC does not need to prove the complaint. Further, the seriousness of the complaint is not in issue. The respondent does not, in these proceedings, seek to minimise or justify any offending behaviour. The sexual touching was completely incompatible with the respondent's obligations as a chiropractor. 79. The clinical notes are relevant insofar as they informed the process [by] which Ms Manoski reached the conclusions she expresses in her reports. However, those opinions were admitted with[out] objection or question. 80. It was also appropriate to determine if the content of those notes impacted on the opinions of Dr Nielssen: ... 81. However, it is wholly inappropriate to use evidence of an candid conversation between a psychologist and their client as evidence of risk of further offending, particularly when there is no direct evidence from the psychologist as to the process of making the notes. As Dr Nielssen said …: .. the other thing is it's a little bit unfair to expect people to be frank in counselling if their answers are going to be examined in this way, actually. Because you want people to gain insight, and you want people to fully understand their thoughts and behaviour. 82. The approach of the applicant jeopardises the clinical relationship between psychologist and patient. It should not be approved by the Tribunal. 83. The approach of the applicant infringes the rule in Browne v Dunn. In Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303 at [69] Brereton JA (Simpson AJA agreeing) said: The rule in Browne v Dunn has two aspects. The first is a rule of procedural fairness, that unless notice has already clearly been given of a party's intention to rely upon such matters, it is necessary first to put to an opponent's witnesses in cross­ examination the nature of the case upon which it is proposed to rely in contradiction of their evidence, and, absent such cross- examination, the party which ought to have cross-examined is precluded from contradicting their evidence... 84. In Qasim v Health Care Complaints Commission [2015] NSWCA 282 Meagher JA (McCall JA and Ward JA, as the President then was, agreeing) at [53] said: ... the rule in Browne v Dunn (1893) 6 R 67 ordinarily requires, where the evidence of a witness is to be challenged on a basis that may be capable of being explained or otherwise addressed by the witness or the party calling the witness, that such a challenge be made clear. That is usually done by way of cross-examination: Allied Pastoral Holdings Pty Ltd v FCT [1983) 1 NSWLR 1 at 22-23 (per Hunt J). It may also be accepted, for the same reasons of fairness which inform the rule, that there would be a denial of procedural fairness if a judge or tribunal rejected a witness's evidence on a ground which was not, but should have been raised with the witness by the other party or the court or tribunal. 85. The applicant did not put the respondent on notice that it intended to use the notes of Ms Manoski for any specific purpose. 86. It is manifestly unfair for the Tribunal to rely upon them other than to evidence the fact that the respondent engaged in treatment with Ms Manoski. 87. Without any direct evidence from Ms Manoski we do not know: a. when notes were written i.e. were they written on the date shown on the left hand column or is that the date of a treatment session with the notes being prepared at a later date; b. whether the notes recall verbatim what was said or if they recall a summary; c. what steps were taken by Ms Manoski to ensure the accuracy of her notes; and d. where the notes refer to thoughts, beliefs or behaviours of the respondent, when exactly were those thoughts beliefs and behaviours present. 88. Without hearing from Ms Manoski in relation to such matters, it is difficult for the Tribunal to draw inferences as to matters of fact from the notes. Further, is procedurally unfair to do so: Health Care Complaints Commission v Fraser [2014] NSWCATOD 29 at [234]­[237]. Sanction 89. The question of rehabilitation is the focus of considerations regarding sanction. 90. The key evidence from the respondent himself as to rehabilitation came in his evidence in reply (T 2796 - 2955). Then Tribunal will recall the respondent breaking down when he was asked to detail his state of mind at the time of each offence, and his present state of mind in relation to each offence. That was the evidence of someone who has been on a journey of rehabilitation. 91. The respondent submits that he should be reprimanded. 92. Ms Manoski recommends, and the respondent submits, that the Tribunal make an order compelling the respondent to undergo therapy sessions with Ms Manoski every 3 months. 93. If readmitted to practice, the respondent submits to conditions on his registration, and orders in respect of educational courses, as the Tribunal sees fit." APPLICANT'S SUBMISSIONS IN REPLY 1. On 13 March 2024, the Applicant provided the Tribunal with submissions in reply dated 11 March 2024 which are set out below: Introduction 1. These submissions are prepared in response to the practitioner's submissions (dated 1 March 2023). The Commission otherwise maintains its written submissions (dated 7 December 2023). Admissions 2. In response to paragraphs 7-12 of the practitioner's submissions, the Commission submits that: a. the Tribunal conducted a combined hearing so it is required to consider all the evidence and admissions and make findings on both Stage 1 and Stage 2; b. when conducting an inquiry, the Tribunal will consider all the Commission's evidence, the practitioner's material, the agreed facts, the oral evidence from Dr Nielssen and the practitioner and all the written submissions; c. the burden of proof remains on the Commission; [Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [128]] d. the Tribunal will first consider the evidence and admissions regarding Complaint 1 and determine whether the particulars of Complaint 1 are proven (and make a finding pursuant to section 144(a) of the National Law that the practitioner has been convicted of a criminal offence in NSW); e. the Tribunal will then consider the evidence and admissions regarding Complaint 2 and determine whether the particulars of Complaint 2 are proven (and make a finding that the practitioner is guilty of unsatisfactory professional conduct under section 1398(1)(b) of the National Law in that he has contravened section 130(1) of the National Law), then consider the evidence and admissions regarding Complaint 3 and determine whether the particulars of Complaint 3 are proven (and make a finding that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he has engaged in improper or unethical conduct relating to the practice or purported practice of chiropractic); f. the Tribunal will determine whether any proven unsatisfactory professional conduct is sufficiently serious to amount to professional misconduct in Complaint 4 (and make a finding that the practitioner is guilty of professional misconduct under section 139E of the National Law); g. after making a decision on any inquiry under the National Law, the Tribunal is obliged to give a written statement of the decision which must set out any findings on material questions of fact, refer to any evidence or other material on which the findings were based and give the reasons for the decision; h. that obligation still applies to a decision on an inquiry that is conducted into a complaint where the subject-matter of the complaint is admitted in writing to the Tribunal. Agreed Facts 3. In response to paragraphs 13-21 of the practitioner's submissions, the Commission submits that: a. the agreed facts were agreed by the parties, tendered by the Commission with the practitioner's consent and marked as Exhibit 11 so the Tribunal will consider the agreed facts when making its decision. b. the Tribunal may choose to extract the Agreed Facts in its reasons and may also refer to the practitioner's own oral evidence during which he appeared to depart from parts of the Agreed Facts. Risk of reoffending 4. In response to paragraph 46 of the practitioner's submissions (asserting that there is a low risk of any reoffending), the Commission maintains that the practitioner poses a substantial risk to the health of members of the public for the reasons expressed in paragraph 49 of the Commission's written submissions. Non-review period 5. In response to paragraphs 47-54 of the practitioner's submissions, the Commission submits that: a. attempting to compare the non-review periods in different matters is of limited assistance; b. for example, the practitioner's sexual touching (massaging Patient A's vulva during 3 consultations and touching her breasts during 2 consultations) is objectively more serious than the sexual touching by Blair [Health Care Complaints Commission v Blair [2020] NSWCATOD 54] (a nurse who hugged/kissed a patient on a daytrip) and dissimilar from the conduct by Weinzettel [Health Care Complaints Commission v Weinzettel (No 2) [2021] NSWCATOD 140] (which did not involve any sexual touching); 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; [Lee v HCCC [2012] NSWCA 80 [23]-[34]] d. the Tribunal will consider the appropriate non-review period in each matter; e. the Commission maintains that a 3 year non-review period is appropriate for the reasons expressed in paragraph 45 of the Commission's written submissions. Current suspension 6. In response to paragraphs 62-71 of the practitioner's submissions, the Commission submits that: a. the criminal proceedings understandably took some time (the practitioner initially pleaded not guilty to all 5 charges at the first mention in October 2020, then he pleaded guilty to charges 1-3 in February 2021, then he signed the Form 1 regarding sequences 4-5 in June 2021 and then he was sentenced in August 2021; b. the Commission investigation understandably took some time (obtaining evidence from police, the Local Court, Medicare, AHPRA, inviting the practitioner to provide his response and obtaining statements from Patient A and her partner); c. the section 150 delegates appropriately suspended the practitioner's registration based on the evidence available at that time; d. the Council's suspension relevantly continues, by operation of the National Law, until the complaint about the practitioner is disposed of by the Tribunal; e. the practitioner elected not to challenge his suspension; f. the fact that the Council delegates exercised their power to suspend the practitioner's registration does not constrain the Tribunal's own power to suspend/cancel after the hearing; g. the Commission maintains that it is open to the Tribunal, for the reasons outlined in paragraph 46 of the Commission's written submissions, to cancel the practitioner's registration and reject any suggestion that any non-review period must be shortened because he has already served a suspension because that does not reflect the purpose of the disciplinary powers of the Tribunal. [See HCCC v Khan (No. 2) [2019] NSWCATOD 37 at [49] (emphasis added): "The Tribunal considers that, unlike sentences for crimes where sentences may be backdated to reduce the penalty, the Tribunal's functions are entirely different. They are directed to protecting the public and the Tribunal considers that aspect prospectively, not retrospectively. Accordingly the Tribunal finds that it should not countenance the period of suspension which has already elapsed."] A practitioner is not automatically entitled to a credit for any period of suspension served: the question is whether cancelling a practitioner's registration, or a further period of suspension, is appropriate to protect the public and maintain professional standards. [See Qasim v HCCC [2015] NSWCA 282 at [73], HCCC v Le [2021] NSWCATOD 104 at [90]; HCCC v Saab (No 2) [2021] NSWCATOD 137 at [71].] h. a 3 year non-review period is appropriate for the reasons expressed in paragraph 45 of the Commission's written submissions. Ms Manoski's notes 7. In response to paragraphs 72-88 of the practitioner's submissions, the Commission submits that: a. there was no unfairness in the Commission obtaining Ms Manoski's notes. Within his material for the criminal proceedings, the practitioner relied on Ms Manoski's report describing her sessions. Within his material for the Tribunal hearing, the practitioner relied on both Ms Manoski's report and her updated report describing her sessions. Before the hearing, the practitioner served his affidavit describing her sessions. Accordingly, before the hearing, the Commission invited the practitioner's solicitor to provide Ms Manoski's notes which the practitioner's solicitor voluntarily provided. Before the hearing, the Commission served Ms Manoski's notes on the practitioner within its material to be relied on at the Tribunal hearing. b. there was no unfairness in relying on Ms Manoski's notes. The notes were tendered by the Commission and marked as an exhibit. Ms Manoski's reports were tendered by the practitioner and also marked as exhibits. The notes describe the sessions mentioned in the reports. The practitioner's counsel acknowledged that the Tribunal could have regard to the notes in considering this matter. The practitioner's counsel had the opportunity to ask the practitioner questions about the notes in examination in chief. The practitioner had the opportunity to answer questions during cross-examination about whether he said the comments mentioned in the notes, [… ("Q: Can you see page 24, the 21st session, 8 June, 2022? A: Yep. Q: Did you say something to Ms Manoski like your offending was not as bad as other types of offending, "I didn't rape anyone"? A: Yes, I said that."), …] what he meant by his comments mentioned in the notes and whether he felt the feelings mentioned in the notes. [… ("Q: I'll take you to the Manoski notes at page 23. In the 19th consultation on the 27th of April 2022 … It's described as a third treatment session, but in context appears to be the second time you touched her vulva. During the second time you touched her vulva. did you think to yourself, she thinks that what I did last week was okay? This is new, exciting fun. A: Yes. Q: And you felt aroused? A: Yes."), …] The practitioner's counsel had the opportunity to ask the practitioner questions in re-examination about the sessions. Notwithstanding that Ms Manoski was not required for cross‑examination, the Tribunal is entitled to have regard to her reports, her notes and the practitioner's evidence about the sessions; c. the Commission maintains its submission that the practitioner lacked insight when he started sessions with Ms Manoski, and even after 20 sessions with Ms Manoski, for the reasons expressed in paragraph 45h-j of the Commission's written submissions. Caution or Reprimand 8. In response to paragraphs 2c(i) and 91 of the practitioner's submissions, the Commission submits that a caution or reprimand would be a wholly inadequate response to the practitioner's serious conduct and maintains that the appropriate orders to protect the public are cancellation and a prohibition order for the reasons expressed in paragraphs 29-51 of the Commission's written submissions. Conditions 9. In response to paragraphs 2c(ii)-(iv) and 92-93 of the practitioner's submissions, the Commission submits that conditions requiring merely three monthly therapy sessions with Ms Manoski and (unspecified) further education would be inadequate to protect the public and so seeks cancellation and a prohibition order for the reasons outlined in paragraphs 29-51 of the Commission's written submissions. Transcript 10. The transcript mentioned in the practitioner's submissions was obtained after the Commission's written submissions were prepared. [The Commission's written submissions … noted that they were prepared without reference to the audio or transcript of the hearing on 5 December 2023 and noted that all references to oral evidence were based on the Commission's notes which are necessarily incomplete so any quotes were not intended to be verbatim.] The Commission has updated its written submissions to insert references to the transcript ... The Commission has no objection to the Tribunal having regard to the transcript as an aide memoire." decision and reasons 1. The Tribunal having read the evidence contained in all of the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and the evidence given by the Respondent, having reviewed the various additional documents which were tendered and having considered the submissions made by the Applicant and the Respondent, the Tribunal is satisfied that the complaint made by the Applicant against the Respondent as set out in the Complaint is proven and that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 2. The basis on which the Tribunal has come to that conclusion is the following. 3. The Complaint having been proven the decision for the Tribunal is what appropriate orders should be made and it was necessary for the Tribunal to consider which of cancellation, suspension, caution, or reprimand is the appropriate order. In that regard, it was necessary for the Tribunal to consider the evidence of the Respondent, the reports of Ms Manoski and of Dr Nielssen. In that regard the Tribunal heard the evidence of the Respondent when he stated that he was deeply sorry for what had occurred and that it would not occur again. The Respondent sought to rely on the fact that he had admitted guilt, that he was completely remorseful, and it would never happen again. The Tribunal had some difficulty with relying on those statements because the Respondent had initially denied all the allegations made against him and only much later did he admit guilt. A further factor which concerned the Tribunal was that the Respondent agreed to a set of facts yet in his evidence he sought to resile from the allegations in respect of certain Complaints. He was questioned on that issue and remained committed to a denial in respect of certain aspects of the agreed facts. The Respondent sought to call on the Applicant to specify on the basis on which it wished to resile from the agreed facts. This was confusing since it was not the Applicant that was seeking to resile from the agreed facts but the Respondent. 4. In addition, while the Respondent expressed remorse and stated that it would never happen again and while the expert witnesses stated that he was unlikely to re‑offend, the Tribunal was seriously troubled by the fact that there are multiple offences even though perpetrated against the same victim. In addition, it is clear that over the lengthy period when these took place the Respondent was definitely aware of his wrongdoing and refrained from acting in this way when Partner A was present and then on a much later occasion when Patient A happened to be alone he again committed the similar offence. 5. The Tribunal heard submissions of the Applicant and the Respondent dealing with the evidence given by Dr Nielssen and his assessment of risk which need not be repeated, but the Tribunal agrees with the Applicant's submissions in that regard. 6. The Tribunal had difficulty with Dr Nielssen's position on risk of re‑offending for the reason that he had only limited contact with the Respondent, the report was written a considerable time after the interview with the Respondent and yet proposed that there was a very low risk of re‑offending by the Respondent. 7. In particular, the Tribunal sets out below paragraphs 17, 27 and 45 of the Applicant's submissions: "17. The Code of Conduct includes: a. Health practitioners have a duty to make the care of patients their first concern and to practise safely and effectively. Health practitioners must be ethical and trustworthy. b. Providing good care includes identifying 'red flags' and investigating managing, co-managing or referring as appropriate:" c. A good partnership between a chiropractor and the person they are caring for requires high standards of personal conduct. This involves the chiropractor being courteous, respectful, compassionate and honest... and... recognising that there is a power imbalance in the chiropractor-patient relationship. It is important to ensure that all decisions are directly relevant to clinical experience; unaffected by non-clinical motivations; and capable of being regarded so by reasonable observers in the circumstances. d. In professional life, chiropractors must display a standard of behaviour that warrants the trust and respect of the community. Good practice involves observing and practising the principles of ethical conduct, and ... practitioners conducting themselves appropriately in public while representing themselves as a registered chiropractor. e. Professional boundaries allow o practitioner and a patient to engage safely in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between a chiropractor's professional conduct that is aimed at meeting the health needs of patients, and a chiropractor's own personal views, feelings and relationships that are not relevant to the therapeutic relationship. Professional boundaries are integral to a good chiropractor-patient relationship. They promote good care for patients and protect both parties. Good practice involves... maintaining professional boundaries so that patients are not exploited financially, physically, emotionally or sexually ... never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a chiropractor's care." "27. The conduct in Complaint 2.1 and Complaint 2.2 (failure to notify is conduct that, together with other conduct, is of a sufficiently serious nature to justify cancellation because: a. practitioner declared a previous mid range PCA when he was first registered and gave oral evidence that he was aware of the notification requirement; b. the practical outcome of never notifying AHPRA of his drink driving conviction was that the Council had no information to assess any potential risk and take any necessary steps to protect the public (the Council remained unaware of the conviction so did not take any steps to identify whether the practitioner's alcohol use was potentially impacting his practice, such as requesting information or arranging a health assessment); c. the practical outcome of failing to notify AHPRA of his sexual touching charges within 7 days was that the practitioner deprived the regulators of necessary information to assess immediate risk and promptly take any necessary steps to protect the public (the Council remained unaware of the charges for 25 days before it could then take urgent action by issuing a notice for information under section 164G of the National Law, arranging the first available hearing under section 150 of the National Law then suspending his registration with immediate effect); d. The practitioner continued to work as a chiropractor with patients, as a sole practitioner in his own practice, without supervision or oversight by the regulator, until he was suspended. Had the Council been made aware of the sexual touching charges when it should have been, it could have taken immediate action to protect the public sooner. e. Failing to notify the regulator as required by the National Law about 5 serious charges for sexual touching of a current patient over a period of time is conduct incompatible with public expectations as to the integrity and character of a registered chiropractor and sufficient to amount to professional misconduct." "45. … a. The practitioner's conduct is intrinsically serious. The practitioner's conduct (breaching trust by sexually touching a current patient without consent) points compellingly to an underlying defect of character such that there would be no confidence that public and professional confidence could be reposed in him practising as a chiropractor for a significant period of time; b. The Code of Conduct provides that professionalism includes self-awareness and self-reflection. Health practitioners are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients ... and on their own health and wellbeing. As a chiropractor, it is important to maintain health and wellbeing. This includes seeking an appropriate work-life balance. The practitioner demonstrated a concerning lack of insight when he continued to touch Patient A during several consultations (rather than reflect, cease and refer) and he later attributed his conduct to being a "workaholic"; c. The practitioner lacked insight when he continued to text Patient A (messages which suggest a level of downplaying, minimising, excusing, explaining and justifying his conduct), when he thought he had a good rapport with Patient A and still wanted her to keep seeing him as a patient: i. in the late evening after Patient A complained to the practitioner, he sent two messages, apparently trying to continue contact "I hope I can still be your chiropractor" and "I hope you forgive me and give me another chance, definitely happy to chat on phone if you like" ii. the next morning, the practitioner sent two further messages, apparently trying to continue contact "I always hope my clinic is a place for you to feel safe and relaxed... I really did not know you were uncomfortable, I was only focused on releasing a muscle, nothing else... I really hope you still see me...please call me if you wish" and "I hope to always be your chiropractor"; iii. when Patient A telephoned him 3 months later, the practitioner made further comments apparently still trying to continue contact "I would love to have your trust again... I wish I could somehow, um, have another chance with you"..."do you think I will ever get your trust again or not?" d. The practitioner did not initially accept responsibility for his conduct (he initially pleaded not guilty to all 5 charges); e. The Code of Conduct requires that, when a complaint is made, good practice involves... providing a prompt, open and constructive response and provides that professional conduct involves cooperating with any legitimate inquiry. f. The practitioner lacked insight when he asserted to the section 150 delegates that he has always complied with the Code of Conduct; g. The practitioner lacked insight when he did not seek counselling until 8 February 2021 (well after his conduct, soon after he pleaded guilty to sequences 1-3, when the criminal proceedings were well underway); h. The practitioner lacked insight when he started therapy ("Lacks insights into his offending at present and engages in a lot of minimisation and justification"... "Paul appears to be a person who needs to learn about professional boundaries") i. After 13 sessions of therapy, the practitioner still lacked insight, minimised his conduct and attempted to blame AHPRA ("Noted feels betrayed by the organisation as there are no mechanisms in place to assist someone when they get in trouble. Felt that the organisation should make chiros do workshops on boundaries."); j. Even after 20 sessions of therapy, the practitioner still lacked insight because his attitude about his offending was back where he had been right at the beginning of treatment: "He expressed that there should be different levels of criminality as his offending was not as bad as other types of offending, "I didn't rape anyone" ... He feels that he should be allowed to return to practicing as a chiropractor now." k. Although the practitioner's psychologist recommended 3 monthly maintenance therapy, the practitioner cancelled his scheduled counselling session in February 2023 and withdrew from treatment; I. A 3 year non-review period will make clear to the practitioner and other practitioners the seriousness with which the Tribunal views repeated inappropriate sexual touching of a current patient without consent; m. The practitioner displayed an exceedingly poor understanding of consent so will need a lengthy period of further reflection/education/therapy to gain genuine insight (he regarded her wearing short shorts on the first occasion as an invitation to touch her, he regarded her not responding as "approval" he regarded her wearing short shorts on the second occasion as indication that she was "okay with it" ["This is the second trea – yeah, I did. I figured, well she wore the short shorts last time and I was able to do it with the short shorts. She didn't wear anything to cover up. So in my mind, that was a suggestion that she was okay with it. She could have worn leggings or something, but she didn't."] and claimed in oral evidence "I certainly didn't think I was doing her any harm. … if I even thought there was a chance I was doing her harm I wouldn't have done it. I stupidly thought … it was a consensual thing. Or maybe not consensual … but that she wasn't against it."); n. 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." 1. The Tribunal considered the reports of Ms Manoski, parts of which have been redacted, where the reports deal with any form of treatment for any medical conditions and deals extensively with the behaviour of the Respondent and improvements in his attitude and behaviour. On balance she concludes that the Respondent could be allowed to continue working as a chiropractor subject to some conditions. 2. In respect of the reports of Ms Manoski, the Tribunal has difficulty understanding the suggestion by the Respondent that the Applicant did not put the Respondent on notice that it intended to use the notes of Ms Manoski for any specific purpose. The Tribunal rejects the suggestion. The reports of Ms Manoski were tendered and accepted in evidence and all that the Respondent sought was an order that the treatment notes could not be made public. Such an order was made and references in the reports of Ms Manoski to treatment have been redacted. The Tribunal believes that it is fully entitled to rely on the reports of Ms Manoski. In respect of an assessment Ms Manoski indicated that she was not qualified to make such an assessment. 3. Having considered all of the above factors the Tribunal has determined that it is appropriate for the Tribunal to cancel the registration of the Respondent. It remains for the Tribunal to consider an appropriate period in which the Respondent may not apply for reinstatement of his registration. 4. In its submissions the Commission seeks an order under ss 149C(1)(b) and/or 149C(1)(c) of the National Law cancelling the Respondent's registration with a non‑review period of three (3) years. 5. In contrast, in its submission, the Respondent admits that the Respondent should be reprimanded. The Respondent points out that the Tribunal has the power to caution, reprimand and/or cancel the Respondent's registration and its power to make an order or conditions that are critical compliance orders or conditions. 6. As the Tribunal does not believe that a caution, reprimand or counselling is adequate or critical conditions are helpful, these submissions do not change the Tribunal's view. 7. Accordingly, the Tribunal is comfortably satisfied that an order of cancellation of the Respondent's registration is appropriate. 8. It remains for the Tribunal to consider an appropriate non‑review period in respect of that cancellation. 9. The Tribunal notes the view that the non‑review period should be a period of three (3) years and notes the view of the Respondent that in the event of cancellation a one (1) year non‑review period would be appropriate. 10. The Tribunal believes that neither submission is acceptable and is of the view that the Respondent will require a minimum of eighteen (18) months before being entitled to review the cancellation order. The Tribunal believes that the Respondent while he may well have improved his approach and understanding by virtue of the counselling that he has obtained, he still requires a period of time to continue his counselling, which he cancelled, and to gain a full understanding of the extent to which he is obliged to comply with the Code of Conduct and to resist temptation which may come in a working environment in the future. 11. In the circumstances, the Tribunal makes the following orders. ORDERS 1. The Tribunal orders the cancellation of the Respondent's registration pursuant to s 149C(1)(b) or (c) of the National Law with a non‑review period of 18 months. 2. The Tribunal makes a prohibition order prohibiting the Respondent from providing a health service for the same 18 month period. 3. The Tribunal orders that the Respondent pay the costs of the Applicant as agreed or determined. ********** 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: 10 April 2024