Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 Hearing dates: 6, 7 and 8 May 2024 (last submissions received 24 May 2024) Date of orders: 24 July 2024 Decision date: 24 July 2024 Jurisdiction: Occupational Division Before: Seiden SC DCJ, Deputy President Dr R Boland, Senior Member Dr D Shirley, Senior Member R Wellington, General Member Decision: (1) Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if the practitioner were still registered the Tribunal would have cancelled his registration (pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW)). (2) Pursuant to s 149C(4)(b) of the Health Practitioner Regulation National Law (NSW), the practitioner is disqualified from being registered in the health profession (physiotherapy) for three and a half years from the date of this decision. (3) Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. (4) Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW), the practitioner is prohibited from providing a health service for three and a half years or until the Tribunal makes a reinstatement or other order in relation to the practitioner under s 163B of the Health Practitioner Regulation National Law (NSW). (5) Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), an application for review of orders 2 and 4 may not be made until three and a half years from the date of these orders. (6) Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW), the name of the Friend (as defined in these reasons for decision) is not to be published. (7) Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW), the nature and location of Patient A's employment as referred to in these reasons for decision is not to be published. (8) Within 14 days of this decision, the applicant is to file evidence and submissions in relation to costs including as to the quantum and nature of the costs the applicant is seeking. (9) Within 21 days of this decision, the respondent is to file and serve his submissions in relation to costs. (10) Within 28 days of this decision the applicant is to file and serve a submission in reply in relation to costs. (11) The parties are also to exchange and file within 28 days of this decision submissions in relation to whether the issue of costs may be determined on the papers, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. Catchwords: HEALTH — Professional registration and discipline — professional misconduct — unsatisfactory professional conduct — failure to maintain professional boundaries with patient — providing false and misleading information — record keeping failure Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) 2009 Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 GKN v Medical Council of New South Wales [2024] NSWCATOD 87 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Choi [2017] NSWCATOD 82 Health Care Complaints Commission v Collins [2021] NSWCATOD 132 Health Care Complaints Commission v De Lore [2020] NSWCATOD 72 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Konigson [2021] NSWCATOD 186 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 (No 2) [2019] NSWCATOD 48 Health Care Complaints Commission v Muthukrishna [2023] NSWCATOD 110 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 Health Care Complaints Commission v Petros [2019] NSWCATOD 83 Health Care Complaints Commission v Robinson Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48 [2022] NSWCA 164 Jan v Health Care Complaints Commission [2020] NSWCATOD 75 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Texts Cited: Physiotherapy Board of Australia, Code of Conduct for Registered Health Practitioners Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Reshan Muthukrishna (Respondent) Representation: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2024/00029945 Publication restriction: (1) Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW), the name of the Friend (as defined in these reasons for decision) is not to be published. (2) Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW), the nature and location of Patient A's employment as referred to in these reasons for decision is not to be published. (3) On 2 February 2024, an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the publication of names set out in the schedule to the Complaint by the Health Care Complaints Commission against Reshan Muthukrishna and dated 24 January 2024. REASONS FOR DECISION Background 1. The respondent was registered as a physiotherapist from 7 February 2012 to 3 August 2022. Between 23 December 2021 to 3 August 2022, conditions were placed on his registration by the Physiotherapy Council of NSW ('the Council'). These included that he not consult, assess and/or treat female patients and that there be audits conducted on his record keeping and file management (the Conditions). Between 3 August 2022 and 28 July 2023, his registration was suspended, pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (National Law). On 28 July 2023, the Tribunal made orders cancelling his registration and pursuant to s 149C(7) of the National Law, the respondent was not to seek to apply for review of the cancellation order for 18 months: Health Care Complaints Commission v Muthukrishna [2023] NSWCATOD 110 (the first disciplinary proceedings). 2. The circumstances of these proceedings, whilst not the same as those the subject of the first disciplinary proceedings, echo the conduct that ultimately led to his registration being cancelled in the first place. This is discussed further below. The application for disciplinary findings and orders 1. The application for disciplinary findings and orders, filed by the Health Care Complaints Commission ('the HCCC', or 'the applicant') on 24 January 2024 was amended on 30 April 2024. Extracts below relate to the amended application. 2. The HCCC alleged four Complaints of unsatisfactory professional conduct as comprehended by s 139B(1)(l) of the National Law. Complaint Five alleges that the practitioner is guilty of professional misconduct as comprehended by section 139E of the National Law (together, 'the Complaint'). 3. The particulars of the Complaint are set out below, along with the Tribunal's consideration. 4. The applicant seeks the following orders: "1. [A non-publication order] 2. An order under section 149C(4)(a) of the National Law that if the practitioner were still registered the Tribunal would have cancelled his registration. 3. An order under section 149C(4)(b) of the National Law that the practitioner is disqualified from being registered in the health profession for 5 years from the date of the decision. 4. An order under section 149C(4)(c) of the National Law that the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board 5. An order under section 149C(5) of the National Law that the practitioner is prohibited from providing a health service permanently unless and until the Tribunal makes a reinstatement or other order in relation to the respondent under section 163B of the National Law. 6. Pursuant to section 149C(7) of the National Law, an application for review of orders 3 and 5 may not be made until five years from the date of these orders. 7. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law as agreed or assessed." 1. The applicant submits that the conduct particularised is "improper or unethical conduct", as contemplated by s 139B(1)(l) of the National Law. 2. The applicant cites the following relevant principles, which the Tribunal accepts are relevant: "[9] The relevant principles [See, generally, HCCC v Liu [2016] NSWCATOD 133 at [51]-[55]; HCCC v Nguyen [2018] NSWCATOD 168 at [47]; HCCC v Shrimpton [2019] NSWCATOD 25 at [67]-[69]; HCCC v Petros [2019] NSWCATOD 83 [116]-[121]; HCCC v Konigson [2021] NSWCATOD 186 at [93]-[95]] include: a. The words "improper" and "unethical" are not defined in the National Law so the Tribunal has considered their dictionary meanings: improper relevantly means not right or not in accordance with propriety of behaviour and unethical relevantly means contrary to moral precept, immoral or in contravention of some code of professional conduct [HCCC v Liu [2016] NSWCATOD 133 at [51]-[52]]; b. the relevant ordinary meanings of improper include not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong [HCCC v Liu [2016] NSWCATOD 133 at [53]]; c. in professional disciplinary proceedings, impropriety means a breach of the standards of conduct that would be expected of a person in the position of the practitioner [HCCC v Liu [2016] NSWCATOD 133 at [54]]; d. it is not necessary to state an exhaustive definition of improper or unethical conduct as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession [HCCC v Liu [2016] NSWCATOD 133 at [55]]; e. whether conduct is improper is an objective test [HCCC v Liu [2016] NSWCATOD 133 at [54]]; f. to make a finding of improper or unethical conduct, it is not necessary for the Tribunal to be satisfied that the conduct is intentional: improper conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct [HCCC v Aref [2018] NSWCATOD 133 at [19]-[21]]; g. impropriety does not depend on the practitioner's consciousness of impropriety, it consists in a breach of the standards of conduct that would be expected of a person in the position of the practitioner by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case [HCCC v Nguyen [2018] NSWCATOD 168 [47]]; h. codes approved by the National Board are admissible evidence of what constitutes appropriate professional conduct or practice for the profession [Section 41 National Law] and may be relevant to whether conduct is improper or unethical." 1. The extracts from cases below, are relevant here. They outline what constitutes "improper or unethical conduct", and the process of characterising conduct: 1. In Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]: "Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term 'impropriety' in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (citations omitted). The test of whether the conduct is improper is an objective one." 1. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [31]: "The Macquarie Dictionary defines 'improper' as 'not in accordance with propriety of behaviour, manners etc or abnormal or irregular' (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as 'contrary to moral precept; immoral; in contravention of some code of conduct'. As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to 'the practice or the purported practice of the practitioner's profession.'" 1. In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [26], it was stated: "In our view, the test of 'unethical conduct' has both objective and subjective elements. The word 'unethical' connotes moral opprobrium. The term 'unethical conduct' implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances." 1. In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [26], it was stated: "In disciplinary proceedings in relation to s 139B(1)(l) of the National Law, the determination of the question as to whether 'any other improper or unethical conduct relating to the practice…of the practitioner's profession' has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct." 1. The extracts from the following cases clarify what "professional misconduct" means under s 139E: 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]-[20] per Basten JA (Leeming and Payne JJA agreeing): "The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation…There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1)." 1. In Sabag v Health Care Complaints Commission [2001] NSWCA 411, Sperling J (Beazley JA agreeing) said at [82]: "The definition of 'professional misconduct' involves a degree of seriousness sufficient to warrant suspension or deregistration, a matter of degree and judgment." 1. In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, the NSW Court of Appeal (Basten and Giles JJA and Bergin J agreeing) held at [67] that the definition of 'professional misconduct' is focused on the nature of the conduct, which must have the capacity to justify an order to suspend or cancel a practitioner's registration, whether or not such an order should be made in the particular circumstances. 2. In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200 per Kirby P: "But the statutory test [for professional misconduct] is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner" 1. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638 per Gleeson CJ, Meagher and Handley JJA: "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards." 1. In Health Care Complaints Commission v Robinson [2022] NSWCA 164, Kirk JA at [35] said: "The seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred: note, analogously, EFA at [169]-[172]. For example, that conduct was undertaken for an improper purpose may be a very significant factor in determining whether suspension or cancellation is justified. Thus, to look to the facts of this case, inappropriately touching a patient is likely to be more serious if it was done for sexual gratification rather than because of a misguided understanding of clinical justification." 1. The applicant also submits that it is necessary to make a prohibition order. We accept the following principles are relevant, as submitted at [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 [HCCC v Brush [2015] NSWCATOD 120 at [96]; HCCC v Choi [2017] NSWCATOD 82 at [75]; HCCC v Menz (No 2) [2017] NSWCATOD 172 at [18]; HCCC v Collins [2021] NSWCATOD 132 at [97]]; 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 [HCCC v Menz (No 2) [2017] NSWCATOD 172 at [19]; HCCC v De Lore [2020] NSWCATOD 72 at [93]]". The National Law 1. Clause 9 of Div 3 of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that when the Tribunal is exercising a function for the purposes of the National Law (as we are here), it is under a duty to observe the objectives and principles referred to in ss 3 and 3A of the National Law. This is in addition to s 36(5) of the NCAT Act which provides that the Tribunal is not to exercise any functions conferred or imposed under enabling legislation (here, the National Law), inconsistently with the objects or principles of that legislation. 2. The main guiding principle is that the protection of the health and safety of the public must be the paramount consideration. Relevantly, restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely. The evidence 1. The applicant relied on a signed statement of Patient A, dated 18 April 2023. Additionally, Patient A had lodged a complaint with the applicant on 11 July 2022, and this document was before the Tribunal. Patient A had also reported the events the subject of these proceedings, to the police on 28 June 2022 and a police report was before the Tribunal. 2. Patient A was not cross examined and accordingly her evidence is uncontested. 3. The applicant also relied on some documents from Exhibit A: Medicare records, information and records provided by [NOT TO BE PUBLISHED], a statement by the friend of Patient A, [NOT TO BE PUBLISHED] ('the Friend'), letters from the respondent to the University of Western Sydney and Anytime Fitness, text message conversations between Patient A and her friend, and text and other forms of message conversations between Patient A and the respondent. Further, the applicant relied on some additional materials concerning the website of the respondent's clinic and message service. 4. The respondent gave oral evidence and was cross examined on the particulars of the Complaint. 5. The respondent relied on a report from a counselling psychologist, Ms Nesli Karadeniz, MA (App.Psyc), MAPs, MCCOUNP, Clinical Psychotherapist & Registered Psychologist. Ms Karadeniz is a counselling psychologist. She has a Bachelor's degree in Arts in Community Psychology and a Masters degree in Applied Psychology and Political Science. She is a "Registered Psychologist with the NSW Psychologists Registration Board" and a member of the Australian Psychological Society, as well as being a member of the APS Counselling College and an approved psychologist for the Victims of Crimes Tribunal. She has expertise in the areas of depression and anxiety in addition to addictions and relationships with adolescent and adult populations. Complaint One 1. Complaint One alleged that the practitioner "engaged in improper or unethical conduct relating to the practice or purported practice of physiotherapy". 2. The particulars of Complaint One are as follows: "1. Around July 2018 the practitioner entered into an inappropriate sexual relationship with Patient A in circumstances where: a. The practitioner was providing physiotherapy treatment to Patient A; b. [NOT TO BE PUBLISHED] 2. The practitioner continued to maintain an inappropriate sexual relationship with Patient A, which included periods where the practitioner and Patient A did not have any sexual contact, until April 2022. 3. By his conduct in particulars 1 and 2 the practitioner breached Section 8.2 of the Physiotherapy Board of Australia Code of Conduct." Patient A 1. Relevantly, Patient A's evidence as to whether the respondent treated her as a patient at a time when they were in a sexual relationship is as follows: 1. Patient A met the respondent at one of the physiotherapy clinics that he operated and practised from, in July 2017. 2. In March 2018 the respondent messaged her on WhatsApp saying "saucy profile pic". 3. Between March and July 2018 they began communicating more frequently via texts and WhatsApp; and in July 2018, she asked the respondent to provide her with physiotherapy treatment. 4. Prior to the first treatment session Patient A went to her usual GP to get an Enhanced Primary Care Plan (EPC) and completed a patient registration form. 5. The first treatment was 9 July 2018, during which the respondent treated her neck with massage. 6. After that time, there were several other treatment sessions during which the respondent treated Patient A and also during which time they continued to communicate outside treatment sessions through text and WhatsApp. 7. On 16 July 2018, the respondent treated her left knee, including by explaining that her knee was weak due to muscle differences. He showed her squat exercises. 8. On 19 July 2018 the respondent asked her to start using Viber as a private way to communicate. 9. On 21 July 2018 the respondent and Patient A kissed in the treatment room. 10. On 19 September 2018 the respondent treated Patient A for a sprained wrist, with dry needling. 11. On 12 April 2019 the respondent treated Patient A for lower back pain. 12. On 23 July 2018 Patient A and the respondent had sexual intercourse at his home. 13. The sexual relationship continued from July 2018 until June 2019, recommenced in around March 2020 until September 2020 and again briefly in around March 2022. 14. On 9 March 2020, the respondent treated Patient A for her neck pain. Treatment included a diagnosis that her neck has a C4 disc issue and massage therapy. 15. On 14 March 2020, the respondent had an appointment with Patient A, and provided physiotherapy treatment for her neck. A video of Patient A performing the exercises was recorded. 16. Whilst some of the treatment sessions were scheduled and recorded in the clinic's booking system, not all were. On one occasion, on the respondent's birthday, a treatment session was booked, but no treatment was performed although they spent time together. 17. On 22 March 2020, the respondent asked Patient A (via text) to get another EPC Plan and to see him for further treatment. 18. On 20 April 2022, the respondent provided treatment to Patient A (via video chat) for her sprained ankle. 19. On 22 April 2022, at the respondent's apartment over dinner, the respondent assessed Patient A's ankle and advised Patient A on 25 April 2022 that obtaining an X-ray report from her GP was not necessary as he could obtain it. 1. The applicant highlights that Medicare was billed for providing a service to Patient A on each of 9 and 16 July 2018, based on a Provider Servicing Report. 2. Relevant to other aspects of their relationship, Patient A also said as follows: 1. At the time they commenced their personal relationship, Patient A was 21 and the respondent was 12 years her senior. 2. She was employed [NOT TO BE PUBLISHED]. 3. At the time, Patient A had mental health concerns. She describes these as clinical depression, anxiety and severe obsessive-compulsive disorder. Further, Patient A's mother also had mental health issues, which Patient A describes as borderline personality disorder. Patient A indicated that the respondent was aware that Patient A had mental health concerns and that her mother too had mental health concerns. 4. During the pendency of their intimate relationship, she became pregnant and the pregnancy was terminated. 5. Patient A indicated that if her family discovered the relationship, she feared that her "Muslim family would disown" her. 1. The Tribunal accepts Patient A's evidence. 2. The respondent does not deny the events and does not seek to contradict what Patient A has said. He also accepts that he received payments from Medicare in relation to treatments provided for Patient A. 3. The respondent maintains that, at least during part of the time, he did not consider he was treating Patient A, as he thought he was looking after her wellbeing as part of their relationship; but he ultimately accepted that he had been treating her. The psychologist's evidence 1. Ms Karadeniz treated the respondent along with his then wife, between 2010 and 2017, within the couples therapy framework. During this period Ms Karadeniz learned of the respondent's wife's health diagnosis and noted that there was a significant emotional and physical toll on the respondent due to domestic violence against him. Ms Karadeniz described the relationship as "abusive". Ultimately, the couples therapy was discontinued due to financial reasons. The respondent continued to experience difficulties in "regulating his anxiety and stress and coping with the ongoing trauma, which can impair decision-making abilities." She identified that the respondent's abusive marriage created in him "a vulnerable state marked by emotional turmoil and high levels of distress." Further, she noted that he found "a semblance of comfort and attention in the interactions with [Patient A]. The proximity and attention provided by [Patient A] served as a temporary reprieve from the neglect and emotional turmoil experienced" in the respondent's marriage. She identified that the adverse effects of the marriage were evident in the poor decision-making process surrounding the inappropriate relationship with a patient under his care. At the time he had no ongoing clinical supervision or peer supervision; and the chronic stress and emotional turmoil compromised his judgement which led to lapses in professional boundaries. 2. Ms Karadeniz identified that the stress of his marriage made him susceptible and that Patient A was aware of his personal struggles. Ms Karadeniz said: "Proximity, combined with Mr. Muthukrishna's emotional needs, created a potent dynamic that contributed to the improper conduct in question." 3. Her view was that their proximity "facilitated a bond based on shared vulnerabilities and mutual confiding". Even though the respondent acknowledges responsibility it was "essential to recognize the role of vulnerability in the initiation of the relationship." 4. Ms Karadeniz was of the opinion that the respondent has demonstrated "a profound understanding of the factors contributing" to his improper conduct and the implications of his actions. This included the abusive marriage, his wife's health diagnosis, leading to his impaired judgement and vulnerability which in turn led to the breach of professional boundaries. Nevertheless, he expressed sincere remorse at the hurt he caused Patient A and the integrity of the physiotherapy profession. Ms Karadeniz has the view that he recognises "the gravity of crossing professional boundaries". She also holds the view that he has taken "proactive steps to address deficiencies in his professional development relating to ethics and professional conduct." This includes refraining from confiding personal issues with other staff members and patients. Since 11 January 2023 she has treated him for individual clinical supervision but has formed the view that he requires less frequent clinical supervision which in turn supports her view that he has enhanced resilience and coping mechanisms. 5. Ms Karadeniz was cross examined during the hearing. The applicant did not challenge her expertise. Cross examination revealed that whilst the respondent had been fairly forthcoming with her during their sessions, she had not been told, contemporaneously, of his sexual relationship with a patient in 2016 (the subject of the first disciplinary proceedings). Further she was not told that he had asked Patient A to send messages on the Viber app to ensure the messages would not be discovered by his colleagues. Further still, he did not tell her that he had multiple treatment sessions with Patient A while she was [NOT TO BE PUBLISHED]. She was also cross examined on what she had been told about how Patient A "manipulated him". She said that the respondent "strongly believed that [he had been manipulated]" but that they processed in sessions that "no matter whether the client manipulates or not … the onus was on him". She further opined that he had come to agree with her on that. 6. Ultimately, she opined that he did not realise "how stressed he was getting" as a result of the stress of his marriage which continued after they separated, combined with the stress of running his practices. He did not focus on self care stress relief, such as catching up with other practitioners or professional development. 7. She opined that the stress lasted a long time and "may have resulted in him not having the best judgement at the time in 2018". She also indicated that the stresses were continuing in 2020, as he had not yet done anything about it. 8. The Tribunal accepts her evidence. Conclusion in relation to Complaint One 1. Clause 8.2 of the Physiotherapy Board of Australia, Code of Conduct for Registered Health Practitioners (Code of Conduct) provides as follows: "8.2 Professional boundaries Professional boundaries allow a practitioner and a patient/client to engage safely and effectively in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner's own personal views, feelings and relationships which are not relevant to the therapeutic relationship. Professional boundaries are integral to a good practitioner–patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice involves: a) maintaining professional boundaries b) never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner's care; this includes those close to the patient or client, such as their carer, guardian, spouse or the parent of a child patient or client c) recognising that sexual and other personal relationships with people who have previously been a practitioner's patients or clients are usually inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient or client, and d) avoiding the expression of personal beliefs to patients or clients in ways that exploit their vulnerability or that are likely to cause them distress. Practitioners need to be aware of and comply with any guidelines of their National Board in relation to professional boundaries." 1. The Tribunal is satisfied that the respondent and Patient A commenced a sexual relationship no later than 21 July 2018. The sexual relationship continued from then until June 2019. The relationship recommenced in March 2020 until September 2020 and then again briefly in March 2022. 2. During the period when they were actively in a sexual relationship, the respondent treated her on, at least, 2 occasions: 19 September 2018 and 12 April 2019. However, even before the pair had sexual intercourse, there was an intimate personal relationship, as evidenced by the various texts and other communications. This commenced, in earnest, after the first treatment session. 3. The Tribunal is satisfied that, in engaging in a personal and sexual relationship with Patient A and continuing to treat her, demonstrates that the respondent breached cl 8.2 of the Code of Conduct. The Tribunal is satisfied that the conduct was indeed improper and unethical relating to the respondent's practice. It was unsatisfactory professional conduct within the meaning of s139B(1)(l) of the National Law. 4. In forming this conclusion, the Tribunal has considered the respondent's position that he himself was the victim of domestic abuse and vulnerable to the advances of Patient A. We accept that, at the relevant time, the respondent was affected by his relationship with his wife as explained by his psychologist and set out above. Nevertheless, even the respondent does not suggest his conduct should be excused on this basis. The Tribunal agrees with that. Further, as the principles cited above indicate, the question of whether he breached the requisite standards has objective elements. Viewed objectively, his conduct demonstrates a stark departure from the code of conduct. 5. Further, the Tribunal has considered his contention that he had a "blurred" understanding of whether what he was doing amounted to treatment of Patient A, after they commenced their relationship. Contrary to the position advanced by the respondent, the Tribunal sees this as compounding the problem rather than ameliorating it. It demonstrates an inappropriately careless attitude to the practice of his profession. 6. In any event, the Tribunal is not satisfied that the respondent was unaware his conduct was inappropriate or otherwise justified or excused by his personal circumstances. Certainly, from the date that the Conditions were placed on his registration (23 December 2021), he was aware that he could not treat female patients. Yet he treated Patient A in April 2022. Further, the messages to Patient A contained references to the need for confidentiality to protect his career. This reflects a knowledge that his conduct breached the professional standards. 7. Consequently, even viewed subjectively, the Tribunal is satisfied that he was responsible for his conduct and the Tribunal is not satisfied that he was totally oblivious to his departure from professional standards. At best, it demonstrates reckless disregard or wilful blindness to the professional standards. The complete lack of reflection on his conduct is not excused by his personal circumstances. Ultimately, the respondent accepted his responsibility, despite his difficult personal circumstances at the time. Complaint Two 1. Complaint Two alleged that the respondent engaged in improper or unethical conduct relating to the practice or purported practice of physiotherapy. The particulars are as follows: "4. On 22 December 2021, at a hearing convened under section 150 of the National Law, the practitioner provided false and misleading information to the Physiotherapy Council in that: a. A delegate appointed by the Physiotherapy Council asked the practitioner 'so have you had a sexual relationship with other patients that you've treated?' b. The practitioner responded 'No, I have not.' c. A delegate appointed by the Physiotherapy Council asked the practitioner 'Have you had a sexual relationship with other patients that you've met while treating, and stopped treating, and then had a sexual relationship with those people?' d. The practitioner responded 'No, I have not.' e. The practitioner gave this oral evidence in circumstances where he knew he had a sexual relationship with Patient A. 5. The practitioner provided false and misleading information to the Health Care Complaints Commission in that: a. On 6 December 2022, the Health Care Complaints Commission ("the Commission") sent a letter to the practitioner under section 28 of the Health Care Complaints Act 1993 containing the words 'The complaint alleges you … Engaged in other improper or unethical conduct relating to the practice of physiotherapy, including Instructing [Patient A] not to tell anyone about your sexual relationship with her, as it would have serious ramifications for your career.' b. On 27 December 2022 the practitioner submitted a letter in response to the Commission's letter dated 6 December 2022. The letter contained the words 'I agree that I mentioned to [Patient A] to keep our affair confidential as…this information coming out would have affected my marriage and [NOT TO BE PUBLISHED]. At the time, I was not aware that the general advice and assistance that I provided to [Patient A] would be deemed as professional advice and treatment.' c. The practitioner sent the letter dated 27 December 2022 in circumstances where: i. He understood Patient A to be a patient of his; ii. He was aware that his relationship with Patient A could have serious ramifications for his career." 1. Given the Tribunal's findings in relation to Complaint One, the Tribunal finds that the answers given at the s 150 hearing on 22 December 2021 (the 2021 s 150 hearing), as extracted above as part of Particular 4, were indeed false and misleading. 2. Particular 5 fairly read, alleges that the response to the Commission's letter was false and misleading; because at least in part, he asked Patient A to keep their relationship private, as he knew having a relationship with a patient could damage his career. Accordingly, omitting this fact was false and misleading in that it suggested only personal reasons were the cause. 3. The Tribunal finds the answer to the applicant's letter was false and misleading. 4. Further, the respondent has conceded all matters the subject of the Complaint. 5. However, whilst it is clear that the respondent now accepts that the answers to the questions of the Council and the applicant were false, there remained an open question as to whether the answers he gave were deliberately false. 6. In the 2021 s 150 hearing (about a different patient that he had had a sexual relationship with, Patient X), the respondent did not disclose that he was, at that time, in a relationship with Patient A. The respondent's reply to the delegates on this question is as follows: "MR ANDARY: … so have you had a sexual relationship with other patients that you've treated? MR MUTHUKRISHNA: No, I have not. MR ANDARY: Have you had a sexual relationship with other patients that you've met while treating, and stopped treating, and then had a sexual relationship with those people? MR MUTHUKRISHNA: No, I have not. 1. In the applicant's cross-examination of the respondent, he was asked about his earlier answers to the Council. The following was said: "Q. After line 20 it says, 'So I believe that this situation was an anomaly, a one off', and you talk about what you were going through at the time. It's not true to say that the sexual relationship you had with the other patient was a one off, is it. A. No, it's not true. Q. On page 353 at the top of the page the delegates are saying, they might need to consult, they haven't reached their decision, they might impose conditions and if they do you'd need to comply with them. Did you understand that? A. Going back to the chronology, complaint 2, particular 4, is about what was said to the counsel during this same hearing. We can see these parts on page 338. So did you - page 338, line 25, do you remember the delegate asking you a question, 'So have you had a sexual relationship with other patients that you've treated' and you said 'no, I have not'. Do you remember saying that? Q. Yes. That's not true, is it. A. No, it's not true. Q. Then the delegate asked you, 'Have you had a sexual relationship with any other patients that you've met while treating and stopped treating then had a sexual relationship with those people' and you said, 'no, I have not'. A. Yes, that's not true. Q. Did you not want to tell the delegates the truth because you were worried about getting into trouble? A. At the time, considering the nature of the relationship I had with this patient, I never saw our interaction as a patient/therapist relationship hence it was incorrect for me to think at the time I was asked by the delegate this question that I answered in this way. I should have - I had a blurred understanding at the time of this question of what I thought my interaction was with this patient, so this is incorrect. … Q. When you gave that false evidence to the 150 delegates, did you do that because you didn't want to get suspended? A. No, in reflection I genuinely had a misunderstanding of how things eventuated between this patient and myself and the relationships we had so my answer was incorrect yes, I - I understand that, but that's genuinely how I thought of it at the time. … Q. On the bottom of page 239, the last paragraph, you said, 'I did not deem that patient A was a patient of mine at the time'. Did you say that to the commission to try and sort of minimise your conduct? To sort of say that she wasn't really a patient, it's not really that bad? A. No, I was being, as I've explained, I was just trying to elaborate my understanding, albeit incorrect, of what the relationship was at the time and obviously I was wrong to think that it wasn't a patient-practitioner relationship at the time, even though we were - we had some intimacy happening prior to that." 1. The respondent in his oral submissions stated: "I admit to my inappropriate and unethical conduct as well as providing false and misleading information to both the Physiotherapy Council and the Commission." 1. The Tribunal is satisfied that the information was false. Given the circumstances, he should have been aware, at the time of answering, that the answers he gave were incorrect or false, and misleading. However, this falls short of it being deliberately and dishonestly false. 2. Nevertheless, the answers demonstrate less than due regard to the significance of the Council's and the applicant's questions and a reckless disregard to provide them with honest and comprehensive answers to their questions. It evinces a blatant lack of regard for the importance of upholding the Code of Conduct. 3. The Tribunal is satisfied that the conduct was indeed improper and unethical relating to the respondent's practice. It was unsatisfactory professional conduct within the meaning of s139B(1)(l) of the National Law. Complaint Three 1. Complaint Three alleged the practitioner "engaged in improper or unethical conduct relating to the practice or purported practice of physiotherapy." The particulars of Complaint Three are as follows: "6. On 16 of July 2018 the practitioner took a photo of Patient A's bare legs on his mobile phone and subsequently posted the photo to the Improve Your Move Physiotherapy page on Instagram without obtaining prior consent. 7. On 9 January 2019 during the course of a physiotherapy consultation, the practitioner took a photograph of a patient on his mobile phone and sent it to Patient A. 8. On 13 January 2019 the practitioner inappropriately disclosed a patient's personal information to Patient A in that he sent Patient A a message on Viber stating 'Let's talk about old fat ppl. Oh yeah – my 7.30 Patient B who u switched on Friday – u should see the size of his legs – he has lymphoedema.' 9. By his conduct in particulars 7 and 8 the practitioner breached Section 3.4 of the Physiotherapy Board of Australia Code of Conduct. 10. On 13 April 2019 the practitioner provided Patient A with a letter addressed to the University of Western Sydney which contained the following false and misleading information: a. Patient A attended Improve Your Move Physiotherapy on 11 April 2019, 12 April [2019], and 13 April 2019 'for treatment after presenting with an episode of acute lower back pain.' b. 'As a result of [Patient A's] symptoms, she could not travel to attend her classes on those days and this impeded her ability to perform any study' In circumstances where Patient A did not receive physiotherapy treatment from Improve Your Move Physiotherapy on the relevant dates. 11. On 13 May 2019 the practitioner provided Patient A with a letter addressed to Anytime Fitness Casula which contained the following false and misleading information: a. '[Patient A] has been seeing me for physiotherapy since she sustained a lower back injury on 10/3/2019, [Patient A] requires substantial physiotherapy management and will be unable to perform gym exercise…Hence please be kind enough to terminate her current gym membership and if and once cleared by me to re-commence gym based rehabilitation, she can sign up again.' In circumstances where Patient A was not unable to perform gym exercise due to a lower back injury and did not require substantial physiotherapy management at the relevant time. 12. By his conduct in particulars 10 and 11 the practitioner breached Section 8.8 of the Physiotherapy Board of Australia Code of Conduct." (Emphasis in original) 1. Clause 3.4 of the Code of Conduct relevantly provides: "3.4 Confidentiality and privacy Practitioners have ethical and legal obligations to protect the privacy of people requiring and receiving care. Patients or clients have a right to expect that practitioners and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations. Good practice involves: a) treating information about patients or clients as confidential and applying appropriate security to electronic and hard copy information b) seeking consent from patients or clients before disclosing information, where practicable c) being aware of the requirements of the privacy and/or health records legislation that operates in relevant states and territories and applying these requirements to information held in all formats, including electronic information d) sharing information appropriately about patients or clients for their healthcare while remaining consistent with privacy legislation and professional guidelines about confidentiality e) where relevant, being aware that there are complex issues relating to genetic information and seeking appropriate advice about disclosure of such information f) providing appropriate surroundings to enable private and confidential consultations and discussions to take place g) ensuring that all staff are aware of the need to respect the confidentiality and privacy of patients or clients and refrain from discussing patients or clients in a non-professional context h) complying with relevant legislation, policies and procedures relating to consent i) using consent processes, including formal documentation if required, for the release and exchange of health and medical information, and j) ensuring that use of social media and e-health is consistent with the practitioner's ethical and legal obligations to protect privacy." 1. Clause 8.8 of the Code of Conduct relevantly provides: "8.8 Reports, certificates and giving evidence The community places a great deal of trust in practitioners. Consequently, some practitioners have been given the authority to sign documents such as sickness or fitness for work certificates on the assumption that they will only sign statements that they know, or reasonably believe, to be true. Good practice involves: a) being honest and not misleading when writing reports and certificates and only signing documents believed to be accurate b) taking reasonable steps to verify the content before signing a report or certificate and not omitting relevant information deliberately c) if so agreed, preparing or signing documents and reports within a reasonable and justifiable timeframe, and d) making clear the limits of a practitioner's knowledge and not giving opinion beyond those limits when providing evidence." 1. Regarding Particular 6 of Complaint 3, Patient A's evidence supported the applicant's position that during the treatment session on 16 July 2018, the respondent took a photo of Patient A's legs and posted it on Instagram. Patient A maintains that she did not give permission for this. 2. Initially, the respondent disputed that he did not have her consent to do this. He submitted that, via the initial patient registration form, Patient A had consented to this conduct. The form said: "By signing below, you: … 3. Permit use of any information/ media taken to be used for marketing" 1. However, during the course of the hearing, he conceded that he had not been specific enough in seeking consent for this conduct. 2. The Tribunal is satisfied that the conduct in Particular 6 occurred and constituted a breach of cl 3.4 of the Code of Conduct. 3. As to Particulars 7 and 8, the Tribunal is satisfied that the documentary evidence supports this. The respondent does not deny this. 4. The Tribunal is satisfied that the conduct in Particulars 7 and 8 occurred and constituted a breach of cl 3.4 of the Code of Conduct. 5. As to Particulars 10 and 11, the documentary evidence includes copies of the two letters referred to in the Complaint. Patient A's evidence confirmed that the information as particularised was indeed false. The respondent does not deny this. 6. The Tribunal is satisfied that the conduct in Particulars 10 and 11 occurred and that this constituted a breach of cl 8.8 of the Code of Conduct. 7. The Tribunal is satisfied that Complaint Three is made out. The conduct demonstrates, objectively at least a stark departure from professional standards. So far as Particular 6 is concerned, even if not a wilful breach of the Code of Conduct, the conduct shows a blatant or reckless disregard of professional standards. So far as the other particulars are concerned, at best, they demonstrate a wilful blindness to professional standards; but on balance, here, they demonstrate a deliberate abuse of the privilege that comes with being a registered health practitioner. 8. The Tribunal is satisfied that the conduct was indeed improper and unethical relating to the respondent's practice. It was unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law. Complaint Four 1. Complaint Four alleged the practitioner has "engaged in improper or unethical conduct relating to the practice or purported practice of physiotherapy." The particulars of this are as follows: "1. The practitioner's overall record keeping for his care and treatment of Patient A from July 2018 to March 2020 lacked sufficient information to allow another physiotherapist to continue management of the patient's case." 1. Clause 8.4 of the Code of Conduct relevantly provides: "8.4 Health records Maintaining clear and accurate health records is essential for the continuing good care of patients or clients. Practitioners should be aware that some National Boards have specific guidelines in relation to records. Good practice involves: a) keeping accurate, up-to-date, factual, objective and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients or clients, medication and other management in a form that can be understood by other health practitioners b) ensuring that records are held securely and are not subject to unauthorised access, regardless of whether they are held electronically and/or in hard copy c) ensuring that records show respect for patients or clients and do not include demeaning or derogatory remarks d) ensuring that records are sufficient to facilitate continuity of care e) making records at the time of events or as soon as possible afterwards f) recognising the right of patients or clients to access information contained in their health records and facilitating that access, and g) promptly facilitating the transfer of health information when requested by patients or clients." 1. The Tribunal was taken to treatment records for Patient A and the respondent was cross-examined on this. The Tribunal is satisfied that the treatment records were wholly inadequate to allow another physiotherapist to continue management of the patient's case; or even to allow the respondent to continue to adequately treat her. He would have to rely only on his memory, which is inadequate to comply with professional standards. 2. Further, the respondent was cross examined in relation to record keeping generally and he accepted that, at least prior to the 2021 s 150 hearing, he only kept adequate records in a small percentage of cases. This is consistent with his lack of keeping proper records for Patient A during the time particularised. 3. There was a breach of cl 8.4 of the Code of Conduct. The maintenance of proper health records is important for the protection and safety of patients. There was simply no justification for the absence of proper records in relation to Patient A 4. The Tribunal is satisfied that the conduct was indeed improper and unethical relating to the respondent's practice. It was unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law. Complaint Five 1. Complaint Five alleges that "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, and/or ii. engaged in 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 the suspension or cancellation of the practitioner's registration." 1. The Particulars of Complaint Five are as follows: "1. The particulars of Complaints One, Two and Three are repeated and relied upon both individually and in combination. 2. Complaint Four is repeated and relied upon in combination with Complaints One, Two and Three." 1. The Tribunal is satisfied that taken in combination, the particulars which have each been made out, justify a finding of professional misconduct. The respondent's conduct demonstrates blatant or reckless indifference to professional standards of conduct. Objectively, the seriousness is demonstrated by the number of breaches, that the breaches range from crossing professional boundaries, to providing false medical certificates, to maintaining wholly inadequate records, to answering questions of the Council and of the applicant falsely (even if not deliberately). This coupled with the longstanding disregard of professional standards supports our conclusion. 2. Further, the Tribunal would have been satisfied that the conduct warranted a conclusion of professional misconduct on the findings of Complaint One alone for the same reasons that have been set out above in relation to that complaint. It was sufficiently serious and longstanding to warrant this. 3. For the reason that we were not satisfied that the conduct the subject of Complaint Two was deliberate, we have not found that this alone would have justified a cancellation of his registration. In relation to Complaint Three, objectively, we are not satisfied that these discrete breaches would have justified cancellation; although by saying this we do not in any way condone or excuse the breaches of standards. The public is entitled to expect privacy and to be treated with dignity from their treating professionals; and that they can accept, as truthful, medical certificates provided by such professionals. 4. Overall, the conduct is sufficiently serious to warrant cancellation of his registration and warrants a finding of professional misconduct. Protective orders 1. As noted above, we are to pay due regard to the objects and principles of the National Law. The paramount guiding principle is the health and safety of the public. Another guiding principle is that restrictions on the practice of a health profession are to be imposed only if necessary to ensure health services are provided safely and are of an appropriate quality. 2. Where the Complaint has been proved, as here, the Tribunal may exercise any of the powers of Sub-div 6, Div 3 of Pt 8 of the National Law: s 149 of the National Law. Where the practitioner is guilty of professional misconduct, as here, the Tribunal may cancel the practitioner's registration. Here, the registration is already cancelled. Accordingly, it is open to the Tribunal to decide that if he were still registered, the Tribunal would have cancelled his registration and or in the alternative, decide that the practitioner is disqualified from being registered, or prohibit the person from providing health services for a period: s 149C of the National Law. Prohibition 1. As extracted above, the applicant seeks an order that the respondent be prohibited from providing any health service, permanently. The applicant submits at [49]: "c. the practitioner engaged in inappropriate conduct over a lengthy period so there is a risk he may engage in inappropriate conduct with female patients as an unregistered health practitioner in the future; d. the practitioner may be tempted to interact with female patients and staff at the Clinic where he remains the Director; e. the practitioner could seek work as a self-employed unregistered health practitioner subject to no oversight or monitoring (such as massage therapy or life coaching) f. the practitioner poses a risk of inappropriately befriending and touching female patients who he may treat as an unregistered health practitioner; g. the practitioner engaged in extremely risky conduct as a registered health practitioner (including sexual intercourse at the clinic [NOT TO BE PUBLISHED] so he may take risks as an unregistered health practitioner in future; h. 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 [HCCC v Shrimpton (No.2) [2019] NSWCATOD 48 at [25]]." 1. The Tribunal accepts that errors in the professional conduct of the respondent could have occurred in another health service as defined in s 5 of the National Law (such as services provided by a masseur) and that that there is an ongoing risk. To protect the safety of the public, a prohibition order is warranted. Long disqualification and prohibition period 1. It is submitted that a long disqualification and prohibition period is appropriate; and that it be longer than that imposed under the first disciplinary proceedings. The applicant submits a five year disqualification period is appropriate. In addition to finding the particulars of each of the individual Complaints proved, the applicant submits there are other factors that affect the ultimate outcome. 2. Further, given the objective seriousness of the matter, the applicant submits that it is important to denounce the respondent's conduct. The first disciplinary proceedings 1. The applicant submits that a longer disqualification period is justified by the fact that this is not the respondent's first breach of standards. The earlier eighteen month disqualification period was ordered where the Tribunal did not know that a relationship with a second patient occurred, or that the respondent gave false information. The applicant submitted: "b. The Tribunal imposed an 18 month disqualification period so the practitioner is currently eligible to apply for reinstatement from 23 January 2025; c. The Tribunal is now aware that the practitioner also breached professional boundaries with Patient A in 2018-2020 and provided false information in medical certificates, to the Council and to the Commission so public and professional confidence cannot now be reposed in him practising as a physiotherapist for a longer period". 1. Further, the applicant submits that the earlier s 150 proceedings are relevant as they reveal: "The practitioner lacked insight during his oral evidence during the previous Tribunal proceedings (maintaining that he was safe to work with patients and claiming that he had taken steps to self-reflect since 2016)" 1. When the applicant cross-examined the respondent about the earlier s 150 proceedings, it was said: "Q. Turning to page 350, can you see at line - between 5 and 10, you said "I reflect over it quite regularly and I believe that I've taken the necessary steps over the last five years in terms of reviewing the codes, reaching out to fellow colleagues and practitioners". Are you in that answer trying to assure the delegates that in the five years since that 2016 conduct that you'd taken some steps to improve yourself? A. Yes." 1. Yet, as Ms Karadeniz stated, he had not at that time taken appropriate or sufficient steps to improve. 2. The applicant also points to the facts (which we accept on the evidence and which were not denied by the respondent) that since the first disciplinary proceedings, the reviews on the respondent's website imply that he is still a registered physiotherapist. Further still, when attending the clinic, he wears a shirt with "Physio" written on it. In other words, he has not shown sufficient insight, despite the sanctions. When asked about this, the respondent maintained that it was not possible for a patient to book a treatment with him. Nonetheless, he has not taken all possible steps to avoid holding himself out as a physiotherapist. 3. It is submitted that the Tribunal, now, could have no confidence that the respondent could or would attain and maintain professional standards in the short to medium term; despite his assurances to the Tribunal and the evidence of his psychologist. 4. The applicant submitted that the Tribunal would have no confidence the conduct would not be repeated. Ultimately, even though the respondent gave evidence at the first disciplinary proceedings that he had been seeing a therapist and had attended courses in ethics, the Tribunal, in the first disciplinary proceedings, was not satisfied that the conduct would not be repeated, as there was no corroborative evidence (at [38]). The applicant submits that we too should not be satisfied. 5. Further, as mentioned above, the circumstances of the first disciplinary proceedings echo the matters here. The Complaint there was particularised as follows at [3] (the 2021 Complaint): "The Complaint consists of three individual complaints: (1) Complaint 1 states that Mr Muthukrishna is guilty of unsatisfactory professional conduct ("improper or unethical conduct relating to the practice or purported practice of the practitioner's profession", National Law, s 139B(1)(l)), by failing to maintain professional boundaries by having a sexual and personal relationship with Patient [X]. (2) Complaint 2 states that Mr Muthukrishna is guilty of unsatisfactory professional conduct (National Law, s 139B(1)(l)), by: (a) claiming to the Council in s 150 proceedings that the electronic records he produced to the Council of consultations with Patient [X] were contemporaneous records when in fact they were made five years after those consultations; (b) destroying the handwritten records of those consultations and informing the Council that he could produce those handwritten records. (3) Complaint 3 states that Mr Muthukrishna is guilty of professional misconduct ("conduct sufficiently serious to justify the sanction of suspension or cancellation of the practitioner's registration", National Law, s 139E) because of the unsatisfactory professional conduct particularised in Complaint 1 and 2, individually and taken together." 1. The respondent, ultimately, did not contest the 2021 Complaint and the Tribunal in the first disciplinary proceedings found the conduct particularised in the first two individual complaints to have been made out and further, that the conduct was unethical and improper (at [18] and [29]). The third complaint was also established (at [32]). 2. As to the timing of the conduct the subject of the 2021 Complaint in the first disciplinary proceedings and the current Complaint: 1. The conduct the subject of the first complaint in the first disciplinary proceedings took place late 2016. 2. The conduct the subject of the second complaint in the first disciplinary proceedings took place late 2021. 3. The 2021 s 150 hearing was on 22 December 2021. 4. In December 2021, the respondent had the Conditions imposed on his registration. These included a condition not to treat female patients and that his record keeping be audited. 5. The conduct the subject of the Complaint One in these proceedings ranges from July 2018 to April 2022. 6. The Tribunal heard the first disciplinary proceedings in May 2023 and delivered its decision in July 2023. 1. By the time the first disciplinary proceedings were heard and determined the conduct the subject of these proceedings had ceased. Nevertheless, long before the first disciplinary proceedings were instituted, the respondent was aware that his conduct was the subject of investigation. It is noted that even after a condition was placed on his registration not to treat female patients, the respondent gave Patient A clinical advice via a video chat, regarding her sprained ankle. 2. As the transcript of the proceedings, the agreed facts and the findings of the Tribunal in first disciplinary proceedings indicate; from at least 2016, when the respondent ceased treating the patient the subject of those proceedings (referred to here as Patient X), he has long been aware that he should not treat patients with whom he was in a sexual relationship; and further, he was aware that it was important to keep his notes of treatment, including in case the patient, or another practitioner wanted to see them. 3. Yet, the conduct the subject of these proceedings occurred. 4. Further still, the applicant highlights that the Tribunal imposed the sanction that it did, without knowledge of the additional egregious conduct the subject of these proceedings. The implication is that had the Tribunal then known of the additional conduct, a greater sanction would have been imposed; and given the multiple breaches of conduct here, a longer sanction is warranted now. 5. These are weighty factors. Objective seriousness of the conduct and lack of candour 1. The applicant highlights that the conduct was objectively serious. Further, not only did the respondent maintain the relationship with Patient A for some time, he took steps to conceal the relationship. 2. We accept this submission. Patient A was a vulnerable person 1. The applicant also highlights that the respondent's attitude to Patient A demonstrated a lack of insight. Initially and even during parts of the hearing of these proceedings, the respondent maintained that he himself was vulnerable and Patient A took advantage of him – although, ultimately, he took responsibility. 2. We accept that Patient A was a vulnerable person and that the conduct was the responsibility of the respondent, despite any of his own vulnerabilities. The respondent's submission 1. Whilst the respondent did not contest that his conduct warranted a further period of cancellation of his registration, he submitted that five years (as suggested by the respondent) may be excessive. 2. In essence, the respondent's position was that he accepts he acted contrary to professional standards. He also accepts that "it was on him", as shown in the transcript: "I would not say - use the word forced, but definitely there's certain degree of coercion and it takes two to tango so - but at the end of the day, it's up to me. I have the position of authority to make professional decisions and I failed to do so at the time. So that's on me and that's my responsibility and my mishap. Yep." 1. The respondent relied on the submission that his erroneous conduct occurred at a time in his life when he was in emotional distress, vulnerable and with a lack of insight into the seriousness of his conduct. 2. The respondent takes responsibility for the errors that he made, however he maintains that whilst not justifying or excusing his conduct, his personal circumstances provide context, or an explanation as to how he arrived at the position he was in. To underscore that position, he said he took the deliberate step of not being represented before the Tribunal as a way of acknowledging that what he had done was wrong. 3. During the course of the hearing he said: "The reasons for - that I don't have any legal representation and that I'm self representing is because I'm here not to argue, I'm here not to challenge things. I know what I have done and I know what I have done wrong, I'm here to admit and I have done that. My only - I fully acknowledge and accept the grave mistakes that I've made in my capacity as a physiotherapist in the past. The only complaint I sought to challenge was complaint 3, particular 6 but I now understand that I was wrong there too." 1. He also submitted that the Tribunal could be satisfied from the steps he has taken to improve his coping strategies and his personal circumstances and knowledge, that he has learned his lesson. He appreciates he made very bad mistakes. The Tribunal, so it was submitted, could have comfort that he would not make the same mistakes again. When answering a question about why he returned to his psychologist in 2023, he said: "I wanted to improve my analysis and assessment of the situations that I was in and other things, and obtain assistance from her to be able to self reflect and understand where I went wrong and how I went wrong, what were the factors that were involved in that, and I wanted her guidance to pinpoint areas where I went wrong and what I could have done better in terms of my decision-making and for her to emphasise and re-emphasise the strategies that I need to learn so that I can avoid making these mistakes again." 1. Further, he does not intend to practise for the foreseeable future. Apart from being a consequence of the disciplinary proceedings, not practising will assist him to continue to improve his mental health and coping strategies. 2. Whilst he accepts that he should not be able to practise for some significant time, he submitted that five years goes beyond what is necessary. The Tribunal's decision in relation to disciplinary orders 1. Despite his own vulnerabilities and his difficult personal circumstances, the Tribunal is satisfied that the respondent wilfully or recklessly breached the professional standards. This was his responsibility. Further, despite his assurances to the Tribunal, we are satisfied that there is an ongoing risk of a repeat of the egregious conduct. We are not satisfied, despite the evidence of his psychologist, that he has a fully developed insight into the breaches of professional standards. Whilst we have his assurances that he has stress relief processes in place and now understands where he went wrong, other than the evidence of the psychologist, we have no external corroboration of his evidence. As to the psychologist, she accepted under cross-examination that he had not been entirely forthcoming with her about all the circumstances. Further, the respondent has proved, in the past, to be a poor judge of his own stress levels and the effect on his behaviour. 2. Putting the health and safety of the public first and noting that restrictions on a person's registration should only be done to the extent necessary to protect the health and safety of the public, we are satisfied that a lengthy cancellation and prohibition period is warranted. However, we are not satisfied that five years is necessary. 3. On the one hand, the respondent departed in many ways from appropriate ethical and professional standards. Further, he has shown a continuing lack of insight, at least until these proceedings. The most egregious departure from professional and ethical conduct was his continuing to treat Patient A, once their personal relationship started. This was in circumstances where, from at least 2016 in relation to Patient X, by his own admission, he was aware that it was inappropriate to treat a person he was in a personal or intimate relationship with. Here, he relies on what he describes as blurred lines about whether Patient A continued to be his patient after their relationship started. However, that shows a serious lack of insight. He took steps to conceal the relationship and provided false answers to the Council and the applicant about it and he knowingly provided false medical certificates, which exacerbates the seriousness of the conduct. His almost complete lack of keeping accurate records shows a blatant disregard for his professional duties and the basic tenets of ongoing patient care. 4. On the other hand, despite her vulnerabilities, it could not be said that the sexual relationship between Patient A and the respondent was non-consensual. Further, his evidence is to the effect that as a result of recent further work with his psychologist, he has a deeper insight into the gravity of his mistakes; and his responsibility for them. Further still, he has taken steps to ensure that he has coping mechanisms in place for stress, that he is proactive about reducing stress, that he is continuing with professional and personal development and he has shown remorse and contrition. 5. The Tribunal accepts that his personal circumstances are now much less stressful than they were, he has had some time away from his practice and he has had the benefit of the reasons of the first disciplinary proceedings. Each of these things has given him the space and time and motivation to reflect on his conduct. We accept he has shown remorse and contrition. 6. This Tribunal considers that having regard to the objective seriousness, the initial lack of insight and that this conduct went on for many years with some elements of concealment, including to the applicant, and that we are not satisfied the respondent has yet achieved full insight and needs the time to reflect and to learn to cope with stress, that it is appropriate he be prohibited from being registered or providing health services for three and a half years from the date of this decision. This is more than double the amount of time he was prohibited from being registered, under the first disciplinary proceedings. This prohibition will expire in early 2028; more than five years from the initial suspension. 7. As submitted by the applicant, it is important to demonstrate to the respondent and other practitioners the seriousness with which the Tribunal views sexual activity with a patient. The Tribunal is satisfied that this measure imparts that message of censure and provides the necessary time for rehabilitation and reflection. 8. It is notable that in the event that he indeed seeks a reinstatement order, he will need to convince the Tribunal that he is, at that time, a fit a proper person. At that time, it will be relevant to have regard to what steps he has taken in the interim to satisfy them of this. Reinstatement is by no means automatic: see, for example, Jan v Health Care Complaints Commission [2020] NSWCATOD 75 at [64]-[68], and Zepinic v Health Care Complaints Commission [2020] NSWCA 146. Reinstatement requires asserted reformation of a practitioner's character that is exceptional and requires clear proof, as said in Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448, at 461: "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man." Publication and disclosure 1. The applicant seeks a non-publication order over the name of the Friend who is referred to in the various documents, such as, her statement (at Exhibit A, pp 219-220). This is because she has an unusual name and could therefore easily be linked to Patient A. This in turn, could lead to the identity of Patient A being revealed. 2. A question was raised in the proceedings as to whether it was appropriate to make a confidentiality order under cl 7 of Sch 5D to the National Law; or alternatively, whether it should be made under s 64 of the NCAT Act. As the source of the Tribunal's power is an important issue, the Tribunal sought submissions. The Tribunal was assisted by comprehensive submissions from the applicant, who contended that the Tribunal could rely on either provision and that there was no inconsistency or repugnancy as between the two provisions. 3. It was recently determined in GKN v Medical Council of New South Wales [2024] NSWCATOD 87, that when proceedings under the National Law are on foot, it is appropriate that this type of application be considered under cl 7 of Sch 5D to the National Law. That path will be followed here. 4. Clause 7 of Sch 5D to the National Law provides: 7 Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. 1. It is relevant that the Friend is not a witness. It is, therefore, not open under cl 7 of Sch 5D to the National Law, to make a non-disclosure order in relation to her name. The person presiding may, however, if "appropriate in the particular circumstances of the case" direct that any specified evidence is not to be published: cl 7(1)(b)(iv), Sch 5D. The name of the Friend is such specified evidence. 2. As a suppression and non-publication order has already been made over the name of Patient A and her name could be revealed by the publication of her Friend's name, it is appropriate that the Tribunal direct that the name of the Friend is not to be published. 3. In addition, though not the subject of submissions, it is appropriate to make a direction that the nature and location of Patient A's employment is not to be published. The Tribunal considered this might be an avenue, otherwise, to identify Patient A. 4. For completeness, it is noted that a person who contravenes such a direction is guilty of an offence: cl 7(5) of Sch 5D to the National Law. Costs 1. The applicant has sought costs. 2. Pursuant to cl 13(1) of Sch 5D to the National Law, the Tribunal may award costs. The National Law ousts s 60 of the NCAT Act (regarding costs) and there is no requirement for the party seeking costs to demonstrate special or exceptional circumstances. 3. The applicant has been successful; albeit the cancellation period suggested has not been adopted by the Tribunal. The respondent does not suggest there was any disentitling conduct by the applicant; but he asks what the costs would be. At the close of the hearing, the Tribunal indicated that it would hear from the parties before making any costs order. 4. The Tribunal will hear the parties on costs, including the likely quantum and nature of those costs sought and whether the question of costs may be determined on the papers. 5. It is noted that an order regarding costs is an ancillary order (s 4(1)(b) of the NCAT Act), and accordingly, any decision about costs is to be determined by the Tribunal as constituted by a single member. Orders 1. The Tribunal orders: 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if the practitioner were still registered the Tribunal would have cancelled his registration (pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW)). 2. Pursuant to s 149C(4)(b) of the Health Practitioner Regulation National Law (NSW), the practitioner is disqualified from being registered in the health profession (physiotherapy) for three and a half years from the date of this decision. 3. Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 4. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW), the practitioner is prohibited from providing a health service for three and a half years or until the Tribunal makes a reinstatement or other order in relation to the practitioner under s 163B of the Health Practitioner Regulation National Law (NSW). 5. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), an application for review of orders 2 and 4 may not be made until three and a half years from the date of these orders. 6. Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW), the name of the Friend (as defined in these reasons for decision) is not to be published. 7. Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW), the nature and location of Patient A's employment as referred to in these reasons for decision is not to be published. 8. Within 14 days of this decision, the applicant is to file evidence and submissions in relation to costs including as to the quantum and nature of the costs the applicant is seeking. 9. Within 21 days of this decision, the respondent is to file and serve his submissions in relation to costs. 10. Within 28 days of this decision the applicant is to file and serve a submission in reply in relation to costs. 11. The parties are also to exchange and file within 28 days of this decision submissions in relation to whether the issue of costs may be determined on the papers, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. ********** 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 Amendments 01 August 2024 - paragraph 43 - text redacted paragraph 82 - text redacted 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: 01 August 2024