Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Singh (No 2) [2024] NSWCATOD 46 Hearing dates: 8 April 2024 Date of orders: 15 April 2024 Decision date: 15 April 2024 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member Dr R Engel, Senior Member Dr D Kostur, Senior Member R Kusuma, General Member Decision: (1) The respondent's registration is cancelled. (2) The respondent is prohibited from providing any health service as defined in s 5 of the Health Practitioner Regulation National Law (NSW). (3) The respondent may not apply for a review of orders (1) and (2) above for two years and six months from the date of this decision. (4) The respondent is to pay 80% of the costs of the applicant of the proceedings as agreed or assessed. Catchwords: HEALTH — professional registration and discipline — chiropractor — where chiropractor is guilty of professional misconduct — what protective orders should be made Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 17 Health Practitioner Regulation National Law (NSW), ss 3, 3A, 4, 5, 139B, 139E, 149, 149A, 149B, 149C, 165L, Sch 5D, cl 13 Medical Practice Act 1992 (NSW) (repealed) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Black (No 3) [2015] NSWCATOD 72 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Health Care Complaints Commission v Hollenbach [2019] NSWCATOD 118 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Lord [2019] NSWCATOD 182 Health Care Complaints Commission v Lu [2023] NSWCATOD 51 Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28 Health Care Complaints Commission v Neale [2024] NSWCATOD 16 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Singh [2023] NSWCATOD 124 Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 32 Lee v Health Care Complaints Commission [2012] NSWCA 80 Morsingh v Health Care Complaints Commission [2022] NSWCA 106 Richter v Walton [1993] NSWCA 233 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Atil Singh (Respondent) Representation: Counsel: A Petrie (Applicant) V Hartstein (Respondent) Solicitors: L Cannon (Health Care Complaints Commission) (Applicant) Shukla & Associates Law Practice (Respondent) File Number(s): 2023/00008053 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the following persons, together with any information or material which could identify this person, whether by itself or with other information and material, is prohibited: (1) Patient A; (2) The 387 patients who attended Camden Healthcare Centre on 22 June 2021; (3) Patient A's sister-in-law. REASONS FOR DECISION Introduction 1. These reasons for decision should be read with, and use the same abbreviations as in, our decision in the stage 1 hearing of these proceedings: Health Care Complaints Commission v Singh [2023] NSWCATOD 124 (the stage 1 decision). Overview 1. On 24 August 2023, we made the stage 1 decision which included the following findings: 1. that the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law; 2. that the respondent is guilty of professional misconduct within s 139E(a) and (b) of the National Law. 1. We have decided in the stage 2 hearing of these proceedings to cancel the respondent's registration, to make a prohibition order against the respondent, to fix a non-renewal period of two years and six months, and to order the respondent to pay 80% of the applicant's costs. The hearing 1. On 8 April 2024, the stage 2 hearing took place. Ms A Petrie, a barrister, represented the applicant. Ms V Hartstein, a barrister, represented the respondent. 2. The applicant relied on the letter of the respondent dated 1 November 2023 addressed "to whom it may concern" (the 1 November 2023 Singh letter) which was admitted into evidence without objection and marked as exhibit A9. 3. The respondent relied on the following documents which were admitted into evidence without objection: 1. the letter of the Council dated 20 October 2023 to the respondent (the 20 October 2023 Council letter) which was marked as exhibit R12; 2. the reference of Tanya Dunn (Ms Dunn) dated 27 September 2023 (the Dunn reference) which was marked as exhibit R13; 3. the reference of Sonia McDermott (Ms McDermott) dated 11 October 2023 (the McDermott reference) which was marked as exhibit R14. 1. The applicant relied on its written submissions dated 9 November 2023 (the HCCC stage 2 submissions) and its counsel made oral submissions. 2. The respondent relied on his undated submissions filed on 6 November 2023 (the Singh stage 2 submissions) and his counsel made oral submissions. 3. At the conclusion of the hearing, we reserved our decision. The issues 1. The following issues arise for determination: 1. whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law; 2. the costs of the proceedings. 1. Before considering these issues, it is appropriate: 1. to set out the applicable provisions of the National Law; 2. to explain the applicable legal principles: 1. for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law; 2. the significance of a finding of dishonesty against a practitioner; 3. for the exercise of the power of the Tribunal to reprimand the practitioner; 4. for the exercise of the power of the Tribunal to impose conditions on the practitioner's registration; 5. for the exercise of the power of the Tribunal to cancel the registration of the practitioner and to specify a non-review period; 6. for the exercise of the power of the Tribunal to make a prohibition order; 7. for the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law; 8. for the comparison with other cases. The applicable provisions of the National Law 1. Part 1 (ss 1-10) contains provisions dealing with preliminary matters. Section 3 specifies the objectives and guiding principles of the National Law, and relevantly provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; and … (2) The objectives of the national registration and accreditation scheme are— (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and … 1. Section 3A specifies the particular objective and guiding principle of the National Law in New South Wales, and provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Section 4 specifies how functions under the National Law are to be exercised, and provides: 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A. 1. Section 5 contains definitions, and relevantly provides: 5 Definitions In this Law— … health service includes the following services, whether provided as public or private services— (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services. 1. Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and relevantly provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner … if— (a) it finds the subject-matter of a complaint against the practitioner … to have been proved; or … 1. Section 149A specifies the general powers of the Tribunal to caution, reprimand, impose conditional and take other actions, and relevantly provides: 149A 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; … 1. Section 149B specifies the powers of the Tribunal to impose a fine in certain cases, and provides: 149B Power to fine registered health practitioner in certain cases [NSW] (1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units. (2) A fine is not to be imposed unless— (a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and (b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest. (3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct. (4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession. 1. Section 149C specifies the powers of the Tribunal to suspend or cancel registration in certain cases, and relevantly provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (b) the practitioner is guilty of professional misconduct; 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; … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. Part 8 Division 10 Subdivision 4 (ss 165H-165M) contains provisions dealing with inquiries and appeals before the Tribunal. Section 165L deals with the powers of the Tribunal to make interlocutory orders, and relevantly provides: 165L Interlocutory orders [NSW] (1) The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand. … (3) The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's or student's registration if— (a) it has found the subject-matter of the complaint against the practitioner or student to have been proved; and (b) the complaint has not yet been finally disposed of; and (c) it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest. 1. Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … concerned, or … to pay costs to another person as decided by the Tribunal. … (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. The applicable legal principles The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law 1. In Lee v Health Care Complaints Commission [2012] NSWCA 80 (Lee) at [19]-[21], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], Meagher JA (with Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88]. The significance of a finding of dishonesty against a practitioner 1. In Lee at [67], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) made the following observation as to the significance of a finding of dishonesty against a practitioner: "[67] … Cases of dishonesty are very serious. Cases of recklessness are also serious. This is particularly so where the protection of the public is at stake and the default is one that leaves patients exposed to a risk against which the practitioner is required by law to provide protection." 1. In Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 32 (Wingate) at [43], Basten JA (with McColl JA at [1] and Harrison J at [81] agreeing) referred to the duty of full and frank disclosure of misconduct which applies both to members and applicants for membership of professions such as law and medicine. The exercise of the power of the Tribunal to reprimand the practitioner 1. In Health Care Complaints Commission v Lord [2019] NSWCATOD 182 at [41]-[42], the Tribunal considered the difference between a caution and a reprimand: "[41] In Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 (Dowla (No 2)), the Tribunal considered at [42] the difference between a caution and a reprimand under s 149A(1)(a) of the National Law and cited with approval the decision of the Victorian Civil and Administrative Tribunal in Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 (Coleman), in which the Tribunal explained at [14]: [T]he ordinary meaning of the words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences. In Peeke v Medical Board of Victoria (unreported, Marks J. 19 January 1994). His Honour commented on a view that had been expressed to the effect that to impose a reprimand was to trivialise a serious lapse in professional standards. His retort was succinct - I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications. [42] As noted by the Tribunal in Dowla (No 2) at [44], a reprimand, if imposed, will appear on the record of a practitioner's registration maintained by the Australian Health Practitioner Regulation Agency (AHPRA): s 225(j). In contrast, the National Law does not require AHPRA to record a caution on practitioner's record." 1. The Tribunal has held that the concept of general deterrence and the need to uphold public confidence in the standards of the profession in an appropriate case will be adequately addressed if the misconduct of the practitioner is denounced, in the sense of being openly condemned, by reprimanding him: Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [94]-[95]; Health Care Complaints Commission v Hollenbach [2019] NSWCATOD 118 at [553]; Health Care Complaints Commission v Lu [2023] NSWCATOD 51 at [60]. The exercise of the power of the Tribunal to impose conditions on the practitioner's registration 1. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 (Litchfield) the New South Wales Court of Appeal (Gleeson CJ, Meagher JA, Handley JA) allowed an appeal from the decision of the Medical Tribunal under the Medical Practice Act 1992 (NSW) that the practitioner be suspended from practising medicine for nine months, that he attend for assessment by a psychiatrist appointed by the Medical Board, who was to report to it within the period of suspension, and that for the following twelve months he should practise in a position approved by the Medical Board. The Court at 639 over-ruled Richter v Walton [1993] NSWCA 233: "Mr Joseph submitted that we should over-rule the decision in Richter v Walton where this Court by majority set aside an order of the Tribunal removing the appellant's name from the register and substituted an order imposing conditions prohibiting the appellant, except in the case of an emergency, from seeing a female patient except in the continuous presence of a female chaperone. The majority thus found that the appellant could not be trusted to observe proper professional standards in his conduct towards female patients unless a female chaperone was present throughout. With the greatest of respect the necessity for imposing such conditions on the appellant's registration demonstrated that he was unfit to practise medicine and in those circumstances the only appropriate order was one dismissing his appeal. The dissenting judgment of Priestley JA was entirely correct, and the majority decision should be over-ruled." The exercise of the power of the Tribunal to cancel the registration of the practitioner and to specify a non-review period 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [21]-[22], Basten JA (with Leeming JA at [23] agreeing) considered the operation of s 149C of the National Law: "[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. …" 1. In Chen at [88], Payne JA (with Basten JA at [1] and Leeming JA at [23] agreeing) considered the operation of s 149C(7) of the National Law: "[88] … a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order." 1. In Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28 (Morsingh OD (No 3)) the Tribunal found that the practitioner engaged in inappropriate conduct which included sexual touching towards a female patient on a single occasion. The Tribunal relevantly decided to cancel the practitioner's registration, to fix a non-renewal period of two years, and to make a prohibition order against the practitioner. 2. In Morsingh v Health Care Complaints Commission [2022] NSWCA 106 (Morsingh CA) the New South Wales Court of Appeal relevantly dismissed an appeal by the practitioner against the cancellation of his registration as decided in Morsingh OD (No 3). Mitchelmore JA at [87]-[88] (with White JA at [1] and Basten AJA at [103] agreeing) rejected the submission that cancellation of the practitioner's registration was unreasonable. Her Honour had earlier at [76]-[79] relevantly set out the findings of the Tribunal: "[76] The Tribunal ultimately concluded that Dr Morsingh had used his consultation with Patient A to "indulge his own social and sexual inclinations" and found that the circumstances were sufficiently serious to justify cancellation of registration: Stage 2 Decision [56]-[57]. … [77] The Tribunal stated that such factors "alone" made Dr Morsingh's actions "sufficiently serious to justify suspension or cancellation of his registration as a medical practitioner": Stage 2 Decision [57]. In addition, the Tribunal noted that rather than admit the conduct and address the reasons for it, Dr Morsingh had sought to discredit Patient A: Stage 2 Decision [59]-[60]. The Tribunal stated that it could not be satisfied that a practitioner who was persistently untruthful about matters that are centrally relevant to the complaints, and persistently sought to undermine the victim's truthful account of those matters, was capable of acting with integrity and observing the high ethical standards that apply to the medical profession, or that they are a suitable repository of trust and confidence. It considered that such circumstances created a greater need for specific and general deterrence (Stage 2 Decision [65]-[66]), noting that Dr Morsingh had not admitted several of the allegations including as to sexual touching: Stage 2 Decision [67]. … [79] In response to the list of cases on which Dr Morsingh relied for the purposes of comparison, the Tribunal did not consider any of them was on all fours with his case: Stage 2 Decision [72]. Although the impugned conduct related to a single consultation over the course of many years of practice, Dr Morsingh had not addressed the issues in a constructive way, and the Tribunal's paramount consideration had to be the protection of the health and safety of the public: Stage 2 Decision [73]. Dr Morsingh had not apologised for his behaviour, "much of which he has not acknowledged", and he had not expressed any remorse or contrition: Stage 2 Decision [76]. The Tribunal expressed its conclusion regarding Dr Morsingh's registration at [77]-[78] of the Stage 2 Decision: "We have given close consideration to the question of whether Dr Morsingh could continue to practise under supervision with a condition requiring him not to consult with or treat females over the age of 11 years old except in an emergency. We do not consider that such a course would be sufficient to denounce misconduct of the kind which is the subject of this matter, either to Dr Morsingh or to the general body of medical practitioners. In order to protect the public, denounce the crossing of professional and sexual boundaries and maintain public confidence in the medical profession, it is appropriate to cancel Dr Morsingh's registration as a medical practitioner under s 149C(1)(b) of the National Law." The exercise of the power of the Tribunal to make a prohibition order 1. The meaning of "substantial risk" in s 149C(5) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 (Menz (No 2)) at [19]: "[19] Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that 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." The exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law 1. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46], Emmett JA (with Meagher JA at [1] and Beech-Jones J at [50] agreeing) set out the principles relevant to the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law: "[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied. [43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). [44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. [45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. [46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. …" 1. In Health Care Complaints Commission v Neale [2024] NSWCATOD 16 (Neale) at [8]-[10], the Tribunal relevantly said: "[8] In its submissions with respect to costs dated 4 August 2023 the Applicant identified the relevant statutory provisions with respect to costs and a number of the principles relevant in that regard. As is not in doubt, costs are awarded to compensate a successful party, rather than punish an unsuccessful party and, as a general rule, follow the event (HCCC v Philipiah [2013] NSWCA 342). [9] The presumption that a successful party is entitled to receive its costs is generally only displaced where there has been some disentitling conduct by the successful party (Oshlack v Richmond River Council (1998) 193 CLR 72 [1998] HCA 11, Health Care Complaints Commission v CSM [2016] NSWCATOD 125, Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154). [10] A respondent bears the onus of establishing a basis for any departure from the general rule (Health Care Complaints Commission v Livermore [2021] NSWCATOD 115). If the successful party is found to have engaged in disentitling conduct the general rule may be departed from." The comparison with other cases 1. There is always a difficulty in getting help from individual cases because of the problem of drawing comparisons between one case and the next. Each must be looked at according to its own facts. Other cases might be of value as examples in indicating a range of appropriate orders but could not be seen as precedents: Lee at [28]-[30] (Barrett JA with Macfarlan JA at [1] and Tobias AJA at [80] agreeing); Morsingh CA at [88] (Mitchelmore JA with White JA at [1] and Basten AJA at [103] agreeing). Whether, and if so in what manner, the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law Introduction 1. The parties are in disagreement as to the manner in which the Tribunal should exercise its disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law. 2. In the HCCC stage 2 submissions, the applicant seeks the following protective orders: "(i) Pursuant to s.149C(1)(c) of the National Law, the Practitioner's registration is cancelled. (ii) Pursuant to s.149C(7) of the National Law, that an application for review of the order cancelling the Practitioner's registration under Division 8 may not be made for a period of 4 years from the date of these Orders. (iii) Pursuant to s149C(5) of the National Law the Respondent be prohibited from providing health services as defined in s4 of the HCC Act for the same period as the non-review period." 1. In the Singh stage 2 submissions as supplemented by his oral submissions, the respondent seeks protective orders of a reprimand coupled with a fine and the imposition of a condition on his registration with respect to the treatment of female patients as the most appropriate penalty. There is no basis for the making of a prohibition order where a substantial risk to the public is a requirement. 2. Before considering this issue, it is appropriate to summarise the evidence and the submissions of the parties. As the HCCC stage 2 submissions followed and respond to the Singh stage 2 submissions, it is appropriate to summarise the submissions of the respondent before the submissions of the applicant. The evidence of the parties The evidence of the applicant The 1 November 2023 Singh letter 1. In the 1 November 2023 Singh letter, the respondent stated as follows: "I have always adhered to the conditions imposed by the chiropractic council, whereby even when female clients/staff receiving assessment/ consultation had signed a consent form and another female attendant was also present, even when doing workshop with female staff. (please refer to email from chiro council) We have always had two staff on site regarding treatment, since these allegations we now always have two females on site, and a female massage therapist that always treats alongside me both male and female patients. We have installed CCTV outside each consultation room, the CCTV had a hard drive of 12 months of recording which is further uploaded to a secure cloud. For my own professional development, I am looking into enrolling into an ethics course." The evidence of the respondent The 20 October 2023 Council letter 1. In the 20 October 2023 Council letter, the Council notified the respondent that it had resolved to advise him as follows: "• no attending female person is to be treated by you in any way, regardless of whether that treatment is paid or unpaid. • no attending female person Is to be involved in any future workshops or training events for any form of consultation, treatment, practice or teaching purpose. • that Danielle Mclear can continue in her role as an attending female person." The Dunn reference 1. In the Dunn reference, Ms Dunn states that she has been a patient of the respondent for the last 6.5 years. She has appreciated the professionalism displayed by him in is treatment of her. She states that she has mixed emotions as she has reflected on the findings of the Tribunal in the stage 1 decision. It is with a sense of disappointment and disbelief that she has conveyed her sentiments in response to "the serious claims of unsatisfactory professional conduct and professional misconduct against Dr Singh." She genuinely hopes for a thorough review of our findings aimed at restoring the respondent's respected reputation. The McDermott reference 1. In the McDermott reference, Ms McDermott states that she has been a patient of the respondent for the last four years. She relevantly states: " … I am astounded to hear that the Tribunal found Dr Singh guilty of unsatisfactory professional conduct and professional misconduct. I work in the Criminal Justice system and deal with offenders on a daily basis, many of whom "deny" the offences for which they have been convicted. Dr Slngh's words and actions have never made me question his innocence and despite the Tribunal's findings, I have no hesitation in continuing treatment with him." The submissions of the parties The submissions of the respondent 1. In the Singh stage 2 submissions, the respondent referred to several authorities including Health Care Complaints Commission v Brush [2015] NSWCATOD 120 (Brush) in relation to the making of a prohibition order, and made the following submissions: 1. it is not appropriate for his registration to be suspended or cancelled. If the question is asked "does the respondent pose a substantial risk to the public?", the answer is "no". He has been in practice now for five years prior to the hearing of the allegations against him and he has been in practice for approximately six months since that time. Apart from the one complainant in this matter who made a complaint concerning his conduct in 2021, there has been no other complaint of any sort; 2. both before and since the hearing of the complaint, he has made a valuable contribution to the health and welfare of many patients in the Camden area; 3. the Council as reflected in the 20 October 2023 Council letter is clearly of the view that despite the findings of the Tribunal he does not pose a risk to male patients and he does not pose a risk to female patients provided that there is an attending female person; 4. since the Tribunal has not taken steps to prevent him practising since 24 August 2023 when it made the stage 1 decision the date, then in those circumstances it cannot be said that there is a risk to the public which, many months after the findings, require him to be removed from the register; 5. both Ms Dunn and Ms McDermott are aware of the Tribunal's findings and yet have provided character evidence as well as expressed satisfaction at the treatment that they themselves have received from him; 6. since these allegations were made against him, he has installed cameras outside each room in his clinic, both for the protection of patients and practitioners; 7. despite the findings of the Tribunal that he has been guilty of professional misconduct in respect of some of the particulars alleged against him, those findings do not relate to his conduct generally and there is no evidence from which it could be extrapolated that he poses any threat to the community as a whole; 8. in these circumstances, there is no basis for suspending or cancelling his registration and there is no basis for the making of a prohibition order where a substantial risk to the public is a requirement; 9. bearing in mind that he has had these proceedings hanging over his head for a long time, that he has had conditions on his registration for a long time, that he has had the immense stress of a hearing in which he was required to give evidence on four days, and that he will be obliged to pay some at least of the legal costs of the HCCC, a reprimand coupled with a fine is the most appropriate penalty; 10. if, contrary to these submissions the Tribunal is of the view that a substantial punishment is required, then it is submitted that a period of suspension would be a more suitable punishment than de-registration. 1. In her oral submissions, counsel for the respondent made the following further submissions: 1. she referred to Health Care Complaints Commission v Black (No 3) [2015] NSWCATOD 72 (Black (No 3)) and submitted that the conduct of the respondent was not at the high end of the spectrum; 2. together with a reprimand and fine the Tribunal should impose a condition that the respondent should not treat female patients without a female chaperone for one year or two years pursuant to s 149A(1)(b) of the National Law; 3. if we cancelled the respondent's registration, then the making of a prohibition order was appropriate for the non-review period. The submissions of the applicant 1. In the HCCC stage 2 submissions, the applicant referred to s 3A (mistakenly referred to as s 3B) of the National Law and several authorities, and made the following submissions: 1. given the gravity of the conduct and the respondent's denial of the conduct found proven, the appropriate order for the Tribunal to make is cancellation of his registration; 2. the respondent's conduct in the present case is clearly serious and capable of attracting cancellation of his registration. He also engaged in deceitful conduct by colluding with his witnesses and not being truthful; 3. it is in the public interest for the Tribunal to impose a non-review period of four years to enable the respondent to reflect on his prior conduct and to be in a position to demonstrate fitness, reformation of character and insight in any future re-registration application; 4. as to the Singh stage 2 submissions: 1. the lack of any other significant complaint against the respondent does not in any way preclude the Tribunal from exercising its own discretion to cancel his registration as a chiropractor and impose a prohibition order; 2. the Council's decision notified in the 20 October 2023 Council letter not to pursue the respondent for breaches of his conditions should not have any bearing on the Tribunal's decision; 3. no application was brought pursuant to s 165L of the National Law. The delay since the stage 1 decision has and should have no bearing on the Tribunal's decision as the matter proceeds by way of the proper judicial process, noting that procedural fairness must be afforded to the respondent at the stage 2 hearing; 4. the respondent is mistaken that there needs to be some findings in relation to his conduct generally rather than limited to the conduct alleged to warrant the cancellation of his registration. The matter relates to a serious boundary violation with a female patient, where he abused his position whilst treating Patient A. He engaged in conduct for his own sexual gratification. This poses a significant risk of harm to the health and safety of the public; 5. the respondent is mistaken that the sole basis upon which the Tribunal can suspend or cancel his registration and make a prohibition order is on the basis that he poses a significant risk of harm to the public; 6. this is not a matter that would warrant a reprimand, and a fine. Such protective orders are simply not protective in the circumstances; 7. suspension is not appropriate and this would place the Tribunal in the impossible position of having to impose conditions at the end of his suspension period, noting that he continues to have a significant lack of insight and the Tribunal could have no confidence that he has taken steps to remedy the adverse findings made by the Tribunal against him or take rehabilitative steps. 1. In her oral submissions, counsel for the applicant made the following submissions: 1. the Tribunal should infer that the respondent discussed the stage 1 decision with each of Ms Dunn and Ms McDermott; 2. the Tribunal should find in the absence of evidence from the respondent that his position has not changed with respect to the conduct found by the Tribunal in the stage 1 decision. Consideration 1. In view of our findings in the stage 1 decision we are satisfied that we are entitled pursuant to s 149(a) of the National Law to exercise the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law against the respondent. 2. In relation to his submission that a reprimand, a fine and a condition on his registration should be imposed the respondent did not explain why we should be satisfied that there is no other combination of orders that is appropriate in the public interest as required by s 149B(2)(b) of the National Law. By reason of the operation of s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW) the maximum fine that may be imposed under s 149B(1) of the National Law is $27,500.00. 3. In determining whether, and if so in what manner, we should exercise the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law, we have had regard to the following matters: 1. the most serious aspect of Complaint One was the conduct specified Particulars 10 and 11 when read with Particulars 13 and 14 which we found that the respondent engaged in for his own sexual gratification: the stage 1 decision at [298]. This factor alone is sufficient to warrant the cancellation of the respondent's registration; 2. the serious nature of the respondent's conduct was aggravated by the vulnerability of Patient A due to her young age and naivety in not inquiring from him as to the clinical reason for the removal of her underwear during the later stages of her treatment; 3. the respondent was not a credible and reliable witness: the stage 1 decision at [246]. Further, he sought to discredit Patient A by falsely contending that she owed money to Physical Health and was committing a fraud on WorkCover by not making a claim for the injury to her right knee on 7 March 2021: the stage 1 decision at [248]-[249]. In particular, he was persistently untruthful in his evidence about the conduct in Particulars 1 and 7, and 10 and 11 when read with Particulars 13 and 14 of Complaint One, and colluded with Mr Nies, Mr Salib and Mr Wilson in the preparation of their evidence. This dishonesty was an egregious breach of his duty of full and frank disclosure of misconduct referred to Wingate at [43]. Consistent with Lee at [67], we regard this dishonesty as being very serious. We consider that this dishonesty has created a greater need for specific and general deterrence; 4. the respondent has adduced no evidence since the stage 1 decision that demonstrates any insight as to the reasons for his conduct towards Patient A or put in place measures to safeguard against a reoccurrence. As to the 1 November 2023 Singh letter, the installation of CCTV outside each consultation room will not prevent improper conduct to a patient if the door to the room is closed or even if it is open depending on its location. Further, despite the elapse of two months after the stage 1 decision he was only looking into enrolling into an ethics course. Rather than admit his conduct and address the reasons for it, the respondent has not since the stage 1 decision either apologised for his behaviour or expressed any remorse or contrition. On the contrary, he has continued not to acknowledge his conduct; 5. we are not satisfied that we should draw the inference that the respondent discussed the stage 1 decision with Ms Dunn. However, the Dunn reference is unsatisfactory as it is unclear whether Ms Dunn has read the stage 1 decision. Further, in expressing her hopes for a thorough review of our findings aimed at restoring the respondent's respected reputation, she does not appear to accept our findings; 6. we are not satisfied that we should draw the inference that the respondent discussed the stage 1 decision with Ms McDermott. However, the McDermott reference is unsatisfactory as it is unclear whether Ms McDermott has read the stage 1 decision. Further, notwithstanding our findings, she does not appear to question the respondent's innocence; 7. we do not regard as being of any relevance the failure of the Commission since the stage 1 decision to have sought an interlocutory order under s 165L of the National Law; 8. we have not found the reference to Black (No 3) to be of any assistance. The Tribunal found that the professional misconduct of which the practitioner had been found guilty was extremely serious and involved the sexual assault of vulnerable female patients including a 12 year old girl on various occasions over a long period of time and involved in each case escalating misconduct. The Tribunal declared that a cancellation order would have been made had the practitioner held registration, made an order disqualifying the practitioner from holding registration for a period of 10 years and made a prohibition order with respect to all health services. This circumstances in Black (No 3) so substantially differ from those in this case that the protective orders made offer no guidance as to how we should exercise the powers under Pt 8 Div 3 Subdiv 6 of the National Law; 1. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in [22] to [30] above, and the matters set out in [52] above, we are satisfied that it is appropriate to cancel the respondent's registration pursuant to s 149C(1)(b) of the National Law. In making this decision we have had regard to Morsingh OD (No 3) and Morsingh CA in which the nature of the sexual conduct of the appellant with the patient on a single occasion and his response to the complaint was similar to that of the respondent. Given that he engaged in the most serious conduct of Complaint One for his own sexual gratification, his dishonesty, and lack of acceptance of the stage 1 decision, we do not consider that it is appropriate to reprimand the respondent. While recognising its potential for serious adverse implications, a reprimand would not be sufficient to denounce the professional misconduct of the kind which we have found, either to the respondent himself or to the general body of chiropractors. Further, having regard to the principles in Litchfield at 639 which we consider apply equally to the exercise of the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law, we do not accept that it would be appropriate to impose conditions on the respondent's registration with respect to female patients. 2. In Brush, the Tribunal found that the respondent who was a registered osteopath had engaged in professional misconduct within s 139E of the National Law by engaging in a concurrent sexual and treating relationship with Patient A and the making of the false declaration to the Osteopathy Board of Australia. The Tribunal at [96]-[97] relevantly made the following finding as to the making of a prohibition order against the respondent: "[96] We are satisfied that if Mr Brush were to work in one of the practice areas nominated by the Commission — massage therapy, therapy involving physical contact of the body; treatment or therapy involving body movement, joints or the musculoskeletal system; any other alternative or healing or healthcare or therapies — there is a material risk the conduct of our misconduct finding might be repeated. If that were to occur, in our opinion Mr Brush would pose a substantial risk to the health of members of the public. [97] While it may be undesirable that Mr Brush undertake "health educational services" we are not reasonably satisfied that if he were to do so he would pose a substantial risk to the health of members of the public. It follows that the power to make that part of the order proposed by the Commission cannot be exercised." 1. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in Menz (No 2) at [19], and the matters set out in [52] above, we are satisfied that the respondent poses a substantial risk to the health of members of the public, and it is appropriate to make the prohibition order against the respondent sought by the applicant pursuant to s 149C(5) of the National Law. We do not consider that it is appropriate to exclude "health educational services" from the scope of the prohibition order as in Brush for the following reasons: 1. the respondent adduced no evidence that he wishes to provide "health educational services" or how any such services could be provided without practical instruction and/or physical touching; 2. as there had been evidence that the respondent's instruction of staff had in substance been treatment, such an exclusion could open the door to the treatment of patients. 1. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in Chen at [22] and [88], and the matters set out in [52] above, we are satisfied that it is appropriate to fix a non-renewal period of two years and six months pursuant to s 149C(7) of the National Law for the cancellation of the respondent's registration and the making of the prohibition order against the respondent. A non-renewal period for four years sought by the Commission would be unduly punitive. But for the respondent's dishonesty and lack of acceptance of the stage 1 decision, we would have imposed a shorter non-renewal period. The costs of the proceedings Introduction 1. The parties are in disagreement as to the costs of the proceedings. 2. In the HCCC stage 2 submissions, the applicant seeks an order that the respondent pay its costs pursuant to c 13 of Sch 5D of the National Law, as agreed or assessed. 3. In the Singh stage 2 submissions as supplemented by his oral submissions, the respondent seeks an order that he pay 70% of the Commission's costs. 4. Before considering this issue, it is appropriate to summarise the submissions of the parties. As the HCCC stage 2 submissions followed and respond to the Singh stage 2 submissions, it is appropriate to summarise the submissions of the respondent before the submissions of the applicant. The submissions of the parties The submissions of the respondent 1. In the Singh stage 2 submissions, the respondent accepts that he will need to pay some part of the applicant's costs. However, the applicant did not succeed in establishing each of the particulars of the Complaints, and considerable costs were spent on photocopying and using Tribunal sitting time to prove various allegations which were not found proven. Furthermore, the HCCC spent considerable funds proving breaches of conditions which did not form part of the complaint. In light of the findings of the Tribunal, 40% of the costs of the applicant as agreed or assessed should be paid by him. 2. In her oral submissions, counsel for the respondent submitted that 70% of the costs of the applicant as agreed or assessed should be paid by him. The submissions of the applicant 1. In the HCCC stage 2 submissions, the applicant made the following submissions: 1. the prolonging of the proceedings was caused by the respondent's conduct and the onerous task that the HCCC had in proving that not only he but also his other witnesses were untruthful. A 40% costs order is simply not appropriate and costs should follow the event in the ordinary way; 2. 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. The onus is on the practitioner to establish a basis for any departure from the general rule. There was no disentitling conduct by the Commission to warrant a departure from the general rule. 1. In her oral submissions, counsel for the applicant submitted that, if the Tribunal declined to order the respondent to pay all of its costs, then he should pay 90% of its costs. Consideration 1. Having regard to the principles in Philipiah at [42]-[46] and Neale at [8]-[10], we have decided to order the respondent to pay 80% of the applicant's costs of the proceedings pursuant to cl 13 of Sch 5D of the National Law as agreed or assessed in accordance with the applicable costs legislation. There was no disentitling conduct by the applicant. However, the applicant did fail to establish some Particulars of Complaint One. Further, the issue of whether the respondent breached the 21 September 2021 Council conditions was not relevant to his reliability and credibility in relation to the impugned conduct. An appropriate allowance for these two matters is 20%. Orders 1. We make the following orders: 1. The respondent's registration is cancelled. 2. The respondent is prohibited from providing any health service as defined in s 5 of the Health Practitioner Regulation National Law (NSW). 3. The respondent may not apply for a review of orders (1) and (2) above for two years and six months from the date of this decision. 4. The respondent is to pay 80% of the costs of the applicant of the proceedings as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 16 April 2024