Health Care Complaints Commission v Vorillas (No 2) [2024] NSWCATOD 126
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Vorillas (No 2) [2024] NSWCATOD 126
Hearing dates: 6 June 2024
Date of orders: 16 August 2024
Decision date: 16 August 2024
Jurisdiction: Occupational Division
Before: R C Titterton OAM, Senior Member
Dr D Kostur, Senior Member
Dr A Downie, Senior Member
A Gray, General Member
Decision: (1) The registration of the respondent is suspended for a period of 6 months.
(2) the respondent is to satisfactorily complete within 6 months of the publication of these reasons education approved by the Chiropractic Council of NSW and that has the following characteristics:
(a) type of institution: tertiary, failing that, vocational;
(b) content or learning objectives: Clinical Boundaries and Ethics;
(c) course duration: not less than 25 hours.
(3) Within 2 months of publication of these reasons the respondent must provide evidence to the Chiropractic Council of NSW of enrolment in an approved course.
(4) Within 2 weeks of completing the approved course, the respondent is to provide documentary evidence of satisfactory completion to the Chiropractic Council of NSW.
(5) The respondent bears responsibility for any costs incurred in meeting these conditions.
(6) The Chiropractic Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).
(7) Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the respondent's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Chiropractic Board of Australia.
(8) Within 14 days of the publication of these reasons, the applicant is to file and serve submissions in relation to costs.
Catchwords: PROFESSIONS AND TRADES – chiropractor – unsatisfactory professional conduct - professional misconduct – protective orders
Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3A, 3B, 139B(1), 149A, 149C
Cases Cited: Clyne v NSW Bar Association [1960] HCA 40; (1980) 104 CLR 186
Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339
Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31
Health Care Complaints Commission v Gupta [2022] NSWCATOD 141
Health Care Complaints Commission v Jane Waddell (No 2) [2013] NSWNMT 2
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
Health Care Complaints Commission v Litchfield [1997] NSWSC 296; (1997) 41 NSWLR 630
Health Care Complaints Commission v Philipiah [2013] NSWCA 342
Health Care Complaints Commission v Robinson (No 3) [2023] NSWCATOD 34
Health Care Complaints Commission v Robinson [2022] NSWCA 164
Lee v Health Care Complaints Commission [2012] NSWCA 80
Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 18
Qasim v Health Care Complaints Commission [2015] NSWCA 282
Sabag v Health Care Complaints Commission [2001] NSWCA 411
Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Christos Vorillas (Respondent)
Representation: Counsel:
P Lowson (Applicant)
N Roucek (Respondent)
Solicitors:
Health Care Complaints Commission (Applicant)
Meridian Lawyers (Respondent)
File Number(s): 2022/00088322
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure to any person or entity of the names of the persons set out in the schedule to the complaint
REASONS FOR DECISION
Introduction
1. The matter was conducted as a Stage 1 hearing on 26, 27 and 28 April 2023.
2. For the reasons published on 22 December 2023 in Health Care Complaints Commission v Vorillas [2023] NSWCATOD 190 (Primary Decision), we found Complaints One, Three, Four and Five to be established.
3. A Stage 2 hearing was held on 6 June 2024.
4. For the following reasons, we have decided to suspend the practitioner's registration for a period of 6 months, and impose conditions on his registration when the period of suspension ends.
5. These reasons:
1. assume a knowledge of the Primary Decision;
2. use the same definitions set out in the Primary Decision.
Complaint One
1. Complaint One was that the practitioner was guilty of unsatisfactory professional conduct under ss 139B(1)(a) and (l) of the National Law in that the practitioner:
1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of chiropractic is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
2. engaged in improper or unethical conduct relating to the practice or purported practice of chiropractic.
1. The Particulars to Complaint One were:
1 On 17 October 2019, the practitioner failed to ensure Patient A had read, understood, completed and signed a consent form prior to commencing treatment.
2 On 13 August 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage, and rib and chest massage.
3 On 10 September 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage, and rib and chest massage.
4 On 8 October 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage and a rib and chest massage.
5 On 5 November 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage and a rib and chest massage.
6 By his conduct in particulars 1 – 5, the practitioner breached clause 3.5(c) of the Chiropractic Board of Australia Code of Conduct (March 2014).
The conduct in any of Particulars 1, 2, 3, 4, and/or 5 of Complaint One is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct.
1. The practitioner admitted the facts in Particular 1, and denied the facts in Particulars 2 to 6. As to Complaint One itself, the practitioner denied he was guilty of unsatisfactory professional conduct under ss 139B(1)(a) or (l) of the National Law.
2. For the reasons set out in the Primary Decision, we found:
1. Particular 1 established;
2. Particulars 2, 3, 4 or 5 not established;
3. Particular 6 established in relation to Particular 1 only.
1. In the circumstances, we found Complaint One established.
Complaint Three
1. Complaint Three was that the practitioner was guilty of unsatisfactory professional conduct under ss 139B(1)(a) and/or (l) of the National Law in that the practitioner:
1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of chiropractic is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
2. engaged in improper or unethical conduct relating to the practice or purported practice of chiropractic placed his open hand underneath Patient A's t-shirt.
1. The Particulars to Complaint Three are:
1. on 13 August 2020, the practitioner conducted a rib and chest massage on Patient A in an inappropriate manner, in that he:
1. placed his hand underneath Patient A's t-shirt.
1. on 10 September 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:
1. placed his hand underneath Patient A's t-shirt;
2. placed his hand underneath Patient A's bra.
1. on 8 October 2020, the practitioner conducted a groin massage on Patient A in an inappropriate manner, in that he:
1. placed his hand underneath Patient A's shorts.
1. on 8 October 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:
1. placed his hand underneath Patient A's t-shirt;
2. placed his hand underneath Patient A's bra.
1. on 5 November 2020, the practitioner conducted a groin massage on Patient A in an inappropriate manner, in that he:
1. placed his hand up Patient A's shorts;
2. moved Patient A's underwear to one side and touched her labia majora;
3. repeated the conduct in particulars 5a and 5b.
1. on 5 November 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:
1. placed his open hand underneath Patient A's t-shirt;
2. touched Patient A's right breast;
3. repeated the conduct in particulars 6a and 6b.
1. by his conduct in particulars 1 – 6, the practitioner breached cl 9.2(a) of the Chiropractic Board of Australia Code of Conduct (March 2014) (Code of Conduct) in that he failed to maintain professional boundaries so that Patient A was not exploited physically or sexually.
1. In addition, the practitioner denied all the Particulars and that he was guilty of unsatisfactory processional conduct under s 139B(1)(a) or (l) of the National Law.
2. For the reasons set out in the Primary Decision, we found:
1. Particulars 1 to 4 not established;
2. Particulars 5, 6 and 7 established.
1. In the circumstances, we found Complaint Three established.
Complaint Four
1. Complaint Four was that the practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of chiropractic was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. The Particulars of Complaint Four were that:
1. the practitioner failed to make and keep adequately detailed records sufficient to facilitate the continuity of patient care in relation to Patient A, including records of:
1. the consultation on 13 August 2020, including any tests conducted and results thereof;
2. the consultation on 10 September 2020, including any tests conducted and results thereof;
3. the consultation on 8 October 2020, including any tests conducted and results thereof;
4. the consultation on 5 November 2020, including any tests conducted and results thereof;
1. by his conduct in Particular 1, the practitioner breached cll 9.4(a) and 9.4(b) of the Code of Conduct.
1. The practitioner admitted the facts set out in each Particular 1, some of the facts set out in Particular 2 and admitted that he was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law.
2. In the circumstances, we found Complaint Four established.
Complaint Five
1. Complaint Five was that the practitioner was guilty of professional misconduct under s 139E of the National Law in that the practitioner had:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration; and/or
2. 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 conduct in the particulars of Complaints One to Four was repeated and relied on by and relied on individually and cumulatively.
2. The practitioner denied that he was guilty of professional misconduct under s 139E of the National Law.
3. After setting out the conduct we found to be established under Complaints One Three and Four, we stated:
190 Clearly enough, the conduct the subject of Complaint Three found established is conduct of the most serious nature. We accept that this conduct was not for any sexual gratification of the practitioner, and was not intentional. We do not find, as submitted by the Commission, that the practitioner purposefully gradually engaged in increasingly inappropriate breaching of professional boundaries in relation to either Patient A's breast of labia.
191 Nevertheless, given that breasts are sexual in nature, we find that the touching of Patient A's breast was sexual in nature, and can be characterised as conduct falling under s 139B(1)(l), as was the touching of her labia.
192 Here we note that in Liu at [55] the Tribunal stated improper or unethical conduct encompassed 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.
193 We also consider that the conduct was careless or involved a lack of skill, it falls within s 139(1)(a).
194 In either case, we accept that the conduct the subject of Complaint Three alone is sufficiently serious to amount to a finding that professional misconduct is established.
1. In the circumstances, we found Complaint Four established.
Evidence of the Commission
1. The Commission relied on the documents tendered at the Stage 1 hearing.
Evidence of the practitioner
1. The practitioner relied on the following categories of evidence:
1. his own statements and evidence to the Chiropractic Council of New South Wales (Council);
2. character references;
3. audit inspection reports prepared by Dr Andrew Ware.
The practitioner's statements and evidence
1. The practitioner's evidence to the Council and his statement dated 26 April 2020 are summarised in the Primary Decision.
2. In a further statement prepared for the Stage 2 hearing undated but filed on 16 May 2024, the practitioner describes the "significant operational adjustments" he has made to his practice since the Complaint was filed.
3. These adjustments include enhancements to staff training, digitised note taking and file management, and new policies and procedures for both the practitioner and his staff. These include procedural refinements aimed at ensuring clarity and transparency in patient interactions.
4. The practitioner now augments his documentation with standardised and digitised notetaking procedures for each patient encompassing explicit discussion of informed consent. Additionally, comprehensive training sessions are conducted for our associate chiropractors to ensure a collective understanding and adherence to informed consent protocols.
5. The practitioner says that "collaborative efforts" with his staff have been intensified, incorporating case study discussions and role-playing exercises to reinforce proper communication and consent practices. In instances warranting extra precaution, a third party is present, with approval from the patient, during consultations to further ensure consent comprehension.
6. The practitioner says that he recognises the potential ambiguity surrounding treatments involving delicate areas and acknowledges the importance of aligning clinical decisions with patient preferences and expectations. He understands that treatment involving sensitive areas requires additional consent measures and enhanced careful communication, to ensure that the patient is fully aware of the treatment and where it will be performed and why.
7. The practitioner says that he has adapted his treatment methodologies within the confines of imposed restrictions, prioritizing patient well-being and consent.
8. The practitioner says that he has transitioned to digital records and introduced standardized procedures to consistently capture informed consent.
9. The practice has made a concerted effort in continually up-skilling its communication, particularly in the areas of note taking and informed consent.
10. The practitioner then sets out further details of the updated polices and procedures undertaken to reinforce:
our commitment to informed consent and patient care. I attach our current policy on Informed Consent. The policy and procedures implemented for informed consent at Kinetic Healthcare are comprehensive and patient-centred.
1. In conclusion, the practitioner states:
In summary, the past three years have underscored the pivotal importance of informed consent and meticulous documentation, as well as the importance of careful communication. I have embraced these lessons earnestly, instituting operational enhancements and substantial changes to my practice, notetaking, training, policies and procedures, and setting high standards for myself and my team to uphold best practices in patient care and professional conduct.
As a result of the initial complaint being made, restrictions were imposed on my registration including limitations on my treatment of females. In accordance with the conditions, a total of 6 audits were conducted at our practice at Narellan. All audits were conducted by Dr Andrew Ware and the results of the audits were that the practice was sound nature and I had not breached the conditions in any form.
1. The practitioner was required for cross-examination. His oral evidence will be referred to below.
Character references
1. Several character references, being those of two patients of the practitioner (Ms Gregory and Ms Rose-McDermott) and a chiropractic colleague (Mr Papastamatis) are sufficiently summarised at [77] to [79] of the Primary Decision.
2. In addition to those references, the practitioner relied on the character references of Ms Tanya Galea, Ms Anita Jedinak, Ms Nikky Quinnell and Ms Elise Adams (all patients), Ms Sam Jones (the practitioner's practice manager), and two professional colleagues, Dr El Ayoubi and Dr Sebastian Cook.
Audit inspection reports prepared by Dr Andrew Ware.
1. The practitioner also relied on inspection reports prepared by Dr Ware following 7 unannounced inspections of the practitioner's practice to monitor compliance with conditions that had been placed on the practitioner following his s 150 hearing.
2. The practitioner submits that:
Overall, over a period of nearly three years repeated unannounced audit inspections of Dr Vorillas' practice disclosed no breaches of the conditions imposed upon him in the s 150 proceedings in late 2020.
Relevant law and principles
Relevant Law
1. The relevant provisions of the National Law are as follow:
3A Guiding principles [NSW]
(1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration.
(2) The other guiding principles of the national registration and accreditation scheme are as follows—
(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
(a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that—
(i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and
(ii) contributes to the elimination of racism in the provision of health services;
Example—
Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care.
(b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;
(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Note—
This section is a substituted New South Wales provision.
3B Objective and guiding principle [NSW]
In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
Note—
This section is an additional New South Wales provision.
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—
(a) the practitioner is not competent to practise the practitioner's profession; or
(b) the practitioner is guilty of professional misconduct; or
(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or
(d) the practitioner is not a suitable person for registration in the practitioner's profession.
(2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied—
(a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or
(b) the student is otherwise not a suitable person to undertake clinical training in the health profession.
(3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition.
(4) If the person is no longer registered, the Tribunal may—
(a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and
(b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and
(c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
(4A) If the Tribunal decides under subsection (4)(a) that if the person were still registered the Tribunal would have suspended the person's registration, the person may not apply for registration in the health profession during the period for which the person would have been suspended if registered.
(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following—
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;
(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Note—
Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
(5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.
(6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order—
(a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and
(b) give the Council, National Board and Commission an opportunity to make a submission.
(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.
Principles
1. The Commission submits that the relevant principles include the following:
1. orders are not intended to punish the practitioner, but to protect the public: Clyne v NSW Bar Association [1960] HCA 40; (1980) 104 CLR 186; Health Care Complaints Commission v Litchfield [1997] NSWSC 296; (1997) 41 NSWLR 630; Health Care Complaints Commission v Jane Waddell (No 2) [2013] NSWNMT 2;
2. although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83];
3. the protection of the health and safety of the public extends to protecting the public from similar misconduct or incompetence, and in upholding the confidence of the public in the profession: Health Care Complaints Commission v Do [2014] NSWCA 307;
4. cancellation does not automatically follow from a finding of professional misconduct: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67];
5. disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession: Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31; Litchfield at 637;
6. in evaluating whether the conduct found to constitute unsatisfactory professional conduct, is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, any mitigating factors and an evaluation of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases, Litchfield at 638.
1. The practitioner accepts the objectives and guiding principles set out in ss 3A and 3B of the National Law.
2. The practitioner also accepts that the specific purpose for protective orders is not punitive with respect to the individual but may be punitive in effect.
3. The practitioner relies on the following passage from Health Care Complaints Commission v Gupta [2022] NSWCATOD 141:
171 As the Tribunal recently stated in Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 at [58], paraphrasing Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 at [101], the relevant principles in determining a protective order have been stated on many occasions and include the following:
(1) the protection of public safety and health is paramount; National Law, s 3A;
(2) public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a);
(3) the Tribunal must consider the maintenance preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91];
(4) protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91];
(5) the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340;
(6) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82];
(7) the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114];
(8) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
172 In addition, no order should be made which has "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose": Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]); Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to).
1. To this could be added [173] of Gupta where the Tribunal stated:
In Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 at [23] that the Tribunal set out the matters to which the Tribunal should have regard in determining an appropriate protective order, namely:
the gravity of the misconduct;
how long ago the misconduct occurred;
what has occurred in relation to the practitioner since the misconduct;
the practitioner's level of remorse and degree of insight, if any into his or her misconduct;
what if any steps have been taken by the practitioner by way of rehabilitation;
general encouragement of high standards; and
specific considerations of what is required to ensure that the practitioner does not pose similar risks in the future.
1. The practitioner emphasises the following passage from Do:
36 In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows:
The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done.
But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted.
37 In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258):
It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest.
1. Finally, the practitioner invokes Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [31]:
The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. The conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances": Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Thus the Tribunal can make an order less severe than suspension or cancellation even though it has previously found that the conduct was sufficiently serious to justify such a remedy: Karalasingham at [67]; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [65]; note similarly [Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 ] at [163]-[164]. For example, it may be that the subjective circumstances of the practitioner militate against such an order: note [Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 ] at [171]-[172].
1. We note that in Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339, the Court of Appeal stated:
171 To justify a finding of unfitness the conduct in question must be seen in context. But, in the two-stage process by which disciplinary proceedings are ordinarily conducted in the Tribunal, much of that which properly informs a holistic assessment of the character of the lawyer concerned, and therefore his or her fitness to engage in legal practice, will not be known until Stage 2 – by which time the conduct has been characterised as unsatisfactory professional conduct or professional misconduct. It does not seem right to characterise conduct as professional misconduct merely because, objectively speaking, it would justify a finding of unfitness if, after consideration of other relevant factors, such a finding would not be justified or warranted. It is only necessary to look at the facts in Ziems and A Solicitor to see that unfitness is not measured by the objective circumstances of the conduct alone.
172 A finding that the impugned conduct would justify a finding of unfitness needs to be made in the context of all available evidence at the time of Stage 1 of the proceeding. It may be, in some cases, that the Commissioner or the relevant professional association has available to it evidence of other instances of conduct similar to, or equally discreditable as, that under consideration; clearly that would be a relevant factor in the determination of whether the conduct in question (not being isolated) was such as to justify a finding of unfitness. That is not this case: so far as the evidence (at the Stage 1 hearing) goes, this was indeed an isolated instance of appalling conduct on the part of the respondent. (At this point, the evidence given at the Stage 2 hearing that adds weight to that inference must be ignored).
The Commission's position on protective orders
1. The Commission's submits that in order to protect the public, and to uphold the standards of the profession, the applicant's position is that the appropriate protective orders are that:
1. pursuant to s 149C (1) (b) of the National Law, the practitioner's registration is cancelled;
2. pursuant to s 149C (7) of the National Law, an application for review of the order cancelling the practitioner's registration pursuant to Division 8 of the National Law may not be made for a period of 12 months from the date of these orders.
1. The Commission submits that:
1. cancellation of the practitioner's registration is the only way to protect the public, by ensuring that the practitioner accepts the findings against him and takes steps to address the failings in his therapeutic techniques that allowed inadvertent touching of Patient's A's labia and breast to occur;
2. cancellation is the proportionate response in order to reassure the public that careless practitioners who repeatedly if inadvertently touch a patient's genitalia and breast will be held to account, and to uphold the reputation of the chiropractic profession and vindicate those members who do not engage in careless conduct of the kind found to have occurred in these proceedings.
1. The Commission further submits that:
1. objectively, the seriousness of the conduct is mitigated by the Tribunal's finding that the touching was inadvertent. From the perspective of Patient A, however, irrespective of the practitioner's motivations, or lack thereof, the touching was intrusive, distressing, and damaging to Patient A's trust and confidence in health practitioners. Similarly, from the perspective of members of the public whose health and safety the Tribunal is tasked with protecting, the fact of the touching is inherently serious, irrespective of the motivation for the touching (or, indeed, the lack thereof);
2. during the Stage 1 proceedings the practitioner denied that the touching occurred at all. In his statement for Stage 2, the practitioner does not address the Tribunal findings that the touching occurred, albeit inadvertently, at all. As such, the Tribunal has no evidence from the practitioner that would or could explain conduct that appears to involve reckless disregard for the need to take care when performing therapeutic services on Patient A's chest area and in performing adductor muscle release in the inner thigh;
3. the Tribunal has no basis on which to assess what has caused the practitioner to engage in inadvertent conduct that involved violation of Patient A's intimate areas. As such, the Tribunal is also unable to assess whether the practitioner:
1. recognises and takes ownership of his carelessness;
2. has taken any steps to address his carelessness;
3. can now satisfy the Tribunal that such egregious inadvertent contact with a patient's breasts and genitalia will not occur again.
1. the practitioner was reckless as to touching Patient A's intimate areas on two different parts of her body, while performing treatments for two different complaints, tight hip flexors and headaches; the practitioner must have known that patient A was vulnerable;
2. the practitioner acted with little if any regard for Patient A's vulnerabilities when he failed to take sufficient care to avoid touching Patient A's labia and avoid massaging her right breast.
3. in relation to the practitioner's experience and training, there is no obvious explanation as to how or why a practitioner of Dr Vorillas' experience has engaged in such careless conduct involving inappropriate touching of Patient A's breast and labia. As such, there is no basis upon which the Tribunal can be satisfied that such touching may not occur again.
The practitioner's position on protective orders
Submissions of 3 June 2024
1. The practitioner's primary submissions are dated 3 June 2024.
2. The practitioner submits that cancellation is not the appropriate protective order, and is not the least serious outcome that is reasonably necessary to protect the health and safety of the public, and is an order which has mare serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose: Gupta at [171|-[172]; Meakes at [113]-[114].
3. The practitioner submits that, in the language of s 3B of the National Law, the restrictions sought to be imposed by the Commission are not, in the circumstances of this individual case, considering the findings which have been made, and the subjective circumstances of the practitioner, necessary to ensure health services are provided safely and are of an appropriate quality. Given that such orders "are to be imposed under the scheme only if it is necessary to ensure that purpose (s 3A(2)(c)), the practitioner submits the Tribunal ought to make alternative orders which achieve those objectives, but which do not impose the most serious order of cancellation.
4. Those alternative orders are as follows:
Reprimand
1. Under section 149(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimands the respondent.
Practice conditions
2. Pursuant to s 149(1) of the Health Practitioner Regulation National Law, for periods of time as determined by the Tribunal, the following conditions are imposed on registration:
Practising
(a) Not to undertake any assessment or therapeutic intervention that involves the practitioner's hands being placed on a female patient's upper anterior thorax (between the levels of supra sternal notch and most distal point of the xiphoid process), lower pelvis and/or the upper thigh (between the levels of the anterior inferior iliac spine and mid femur).
(b) To advise the Chiropractic Council of NSW in writing at least seven days prior to changing the nature or place of his practice.
(c) To submit to unannounced audits of his practice and records, by an Authorised Person of the Chiropractic Council of NSW and
(i) The Authorised Person is to examine and assess compliance with conditions.
(ii) To authorise the Authorised Person to provide the Council with a report on their findings.
Education
(d) Within a period as determined by the Tribunal, Mr Vorillas is to commence a course relating to professional boundaries, determined by the Tribunal, or an equivalent course approved by the Council and to provide to the Council evidence of having successfully completed the course, in the period decided by the Council.
1. In support of his position, the practitioner submits:
1. his conduct was not for sexual gratification, and he made no contact intentionally, the conduct being inadvertent;
2. the conduct was of short duration, occurring over a very short period, in the context of a career spanning 15 years;
3. there are a number of significant mitigating factors including:
1. the practitioner has no history or record of any relevant complaint;
2. the practitioner is a person of prior good character who has provided an extremely beneficial and high standard of care to a large number of patients, supported by many positive referee witnesses;
3. it was not submitted, and not held by the Tribunal, that the practitioner was unreliable, not forthright or credible, or lying in his response to the complaint in these proceedings;
4. the practitioner was found to have engaged in an isolated, inadvertent, unintentional, careless incident on a single occasion in an otherwise unblemished career;
5. the audit reports, demonstrate compliance over a long period with his present conditions, and evidence the changes he has made to improve his record keeping system and informed consent process;
6. there is no prospect the practitioner will engage in the same inadvertent conduct again, given the results of his inadvertence on this occasion;
7. the practitioner has extremely positive prospects for the future and for continuing to practice safely and to the benefit of his many happy patients from whom the Tribunal has heard, or heard about, in evidence;
8. an isolated instance of inadvertent careless conduct with no motive (sexual or otherwise) on one occasion, whilst no doubt a sufficiently serious matter to give rise to a finding of professional misconduct, and in no way sought to be downplayed, to use the language of Burton at [111] does not sit high on a spectrum of conduct of this kind. Put another way, inadvertence with no sexual motivation represents a far lesser departure from proper standards than intentional conduct sexually motivated conduct.
1. Each of these factors, when considered together with ss 3A(2)(c) and 3B of the National Law, and the remarks in Gupta and Meakes, militate in favour of a protective order falling short of cancellation. It is submitted that protective orders under ss 149(1)(b)-(d) imposing conditions including that the respondent complete educational courses, undergo counselling if required, and continue to practice under the supervision regime which has ensured health services are being provided safely and are of an appropriate quality for a number of years since this incident occurred ought be imposed.
2. More restrictive conditions than those already imposed, including extending the conditions of restriction of practice pending compliance with such further orders as are sought or thought necessary represent a further alternative or additional order which would in the practitioner's submission virtually guarantee the safe provision of health services, if (contrary to the practitioner's primary submission) the Tribunal had any continuing concern about safe practice from this individual Practitioner. The Tribunal ought also order the practitioner be the subject of a public reprimand.
3. There could be no doubt that the findings of the Tribunal to date and the resultant findings made in Stage 2 given their public nature represent a conspicuously public and substantial denunciation which achieves a sufficient deterrent and declaratory effect upon the wider profession. The seriousness of the conduct ultimately found by this Tribunal (which differs in substantial respects to what was contained in the Complaint) has already been, and will be, publicly marked in important and unequivocal ways.
4. It is submitted that the practitioner poses no ongoing risk of repeated inadvertence of the kind identified in these proceedings. There is no basis advanced by the Commission as to why the most stringent orders sought by it are the only means by which the objectives of the National Law could be achieved when consideration is given to the particular circumstances of this case, the nature of the Tribunal's findings and the lack of any intent they represent, and the subjective circumstances of the Practitioner.
5. Whilst a publicly recorded reprimand together with a constellation of serious conditions and other orders as set out above would have a significant general deterrent effect, to impose cancellation over and above such orders in circumstances of inadvertence would represent a more serious consequence for the practitioner than is reasonably necessary in execution of the protective purpose; to put it simply, the practitioner has "well and truly learned his lesson from a single instance of inadvertence, has already paid a substantial price for it, accepts that he will continue to do so, and will not repeat his error". By virtue of being subject to further orders under 149A the objects of the National Law are met.
6. In conclusion, the practitioner submits that he is competent and otherwise fit to practice, and that cancellation is not the only, or even appropriate, protective order required in all the circumstances.
Submissions of 13 June 2024
1. In the practitioner's primary submissions he submitted that he posed no ongoing risk of repeated inadvertence of the kind identified by the Tribunal in these proceedings, and that there is no prospect he will engage in the same inadvertent conduct again. The proposed condition 2(a)-(c) was offered in response to the Commission's written submissions of 13 May 2024 to address the submission made that the isolated unintended non-sexually motivated inadvertence as found by the Tribunal would likely reoccur in the future.
2. At the Stage 2 hearing, the practitioner gave evidence that in light of what had occurred in this case and the disciplinary proceeding which has followed in the years since November 2020, he intended in effect to practice in accordance with his current conditions, in order to reduce risk in a manner in which he is comfortable, whilst still offering care to patients by referring to other chiropractors including at his own practice who could conduct such treatments if necessary, so that every patient was informed and given a choice. The practitioner rejected the "unfounded suggestion" that such an approach represents what was characterised by the Commission as "illegal gender-based discrimination", or that such an approach was because his patients "couldn't be trusted", which was not his evidence.
3. For the avoidance of doubt, the practitioner submits that it is his position that even if, contrary to his primary submission, the Tribunal found further unintentional inadvertence was likely in the future, there are alternatives to the most serious order of cancellation. These could include for example the continuation of the current status quo conditions coupled with a requirement to complete educational course(s) directed to the area of concern raised by the applicant, or any other condition thought appropriate under s 149A. It is not submitted by the practitioner however there is a necessity for the Tribunal to continue the present restrictions to achieve the protective purpose on the facts of this case, because there is no risk of further inadvertence of the kind found.
4. Accordingly, whilst it is ultimately open to the Tribunal to impose such a condition under s 149A(1)(b) if the Tribunal believed further unintentional inadvertence with no motive was likely to arise at a future time, additional to the isolated instance of such inadvertence which has been identified by the Tribunal in its reasons in this proceeding, the practitioner does not propose such a condition.
5. The practitioner now proposes the following protective orders:
1. pursuant to s 149A(1)(a) of the National Law, the practitioner is reprimanded.
2. pursuant to s 149A(1)(d) of the National Law, the following conditions are imposed on the practitioner registration:
1. Within six months of this decision, the practitioner must undertake and successfully complete a program of education, approved by the Council, relating to professional boundaries and compliance with the Code of Conduct.
2. The practitioner must complete the education within three months of the notice of the Council's approval of the education.
3. Within 28 days of the completion of the education, the practitioner is to provide the Council with evidence of successful completion of the education.
Further submissions of the Commission
1. The Commission responded to the practitioner's supplementary submissions as follows.
2. In relation to the substantive issue, the Commission maintains its position that the only appropriate protective order is cancellation.
3. However, the Commission provided comments regarding the proposed conditions for the assistance of the Tribunal.
4. Following receipt of the practitioner's updated proposed conditions on 13 June 2024, the Commission consulted with the Council in relation to the conditions' formulation, to ensure workability and enforceability.
5. The Council has confirmed that there are a number of relevant ethics courses available, which range from short courses (30 minutes to 50 hours) to university courses (13-26 weeks). What would be of most assistance to the Council would be for the order to detail the number of hours required by the condition, and the hours can then be made up of courses that are available at the relevant time. The conditions should also list the subject area/s (such as the suggested "Clinical Boundaries and Ethics").
6. If the Tribunal contemplates a longer, perhaps tertiary course, be undertaken, the Council suggests that the timing for completion should be extended to 12 months to account for enrolment and other related timeframes.
7. The Council then provides the following template for the education condition:
1. the practitioner satisfactorily complete within [e.g. 6 or 12 months] of [insert date of decision] education approved by the Chiropractic Council of NSW and that has the following characteristics:
1. type of institution: [tertiary / vocational],
2. content or learning objectives: [specify],
3. the final assessment is authentic/fit for purpose. In this context the assessment/s should:
1. assess topic knowledge beyond simple recall of course content;
2. assess scenario-based problem solving relevant to chiropractic practice;
3. contain a reflective component ;
1. course duration: The course is to be not less than [specify hours];
1. within [insert timeframe] of [insert date of decision] the practitioner must provide evidence to the Council of enrolment in the approved course;
2. within [insert timeframe] of completing the approved course, the practitioner is to provide documentary evidence of satisfactory completion to the Council;
3. the practitioner bears responsibility for any costs incurred in meeting this condition/order;
4. the Council is the appropriate review body for the purposes of Part 8, Division 8 of the National Law;
5. Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Chiropractic Board of Australia.
1. The Commission reiterates that these submissions are for the assistance of the Tribunal, and does not derogate from its primary position that cancellation is the appropriate protective order.
Consideration
1. In the Primary Decision we found:
189 The conduct we have found established is as follows:
(1) under Complaint One:
(a) on 17 October 2019, the practitioner failed to ensure Patient A had read, understood, completed and signed a consent form prior to commencing treatment;
(b) by this conduct, the practitioner breached cl 3.5(c) of the Code of Conduct;
(2) under Complaint Three:
(a) on 5 November 2020, the practitioner conducted a groin massage on Patient A in an inappropriate manner, in that he:
(i) placed his hand up Patient A's shorts;
(ii) moved Patient A's underwear to one side and touched her labia majora;
(iii) repeated that conduct;
(b) on 5 November 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:
(i) placed his open hand underneath Patient A's T-shirt;
(ii) touched Patient A's right breast;
(iii) repeated that conduct;
(c) by the conduct set out in (a) and (b), breached cl 9.2(a) of the Code of Conduct in that he failed to maintain professional boundaries so that Patient A was not exploited physically or sexually;
(3) under Complaint Four;
(a) failed to make and keep adequately detailed records sufficient to facilitate the continuity of patient care in relation to Patient A, including records of:
(i) the consultation on 13 August 2020, including any tests conducted and results thereof;
(ii) the consultation on 10 September 2020, including any tests conducted and results thereof;
(iii) the consultation on 8 October 2020, including any tests conducted and results thereof;
(iv) the consultation on 5 November 2020, including any tests conducted and results thereof.
(b) By that conduct, breached cl 9.4(a) of the Code of Conduct.
190 Clearly enough, the conduct the subject of Complaint Three found established is conduct of the most serious nature. We accept that this conduct was not for any sexual gratification of the practitioner, and was not intentional. We do not find, as submitted by the Commission, that the practitioner purposefully gradually engaged in increasingly inappropriate breaching of professional boundaries in relation to either Patient A's breast of labia.
191 Nevertheless, given that breasts are sexual in nature, we find that the touching of Patient A's breast was sexual in nature, and can be characterised as conduct falling under s 139B(1)(l), as was the touching of her labia.
192 Here we note that in Liu at [55] the Tribunal stated improper or unethical conduct encompassed 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.
193 We also consider that [as] the conduct was careless or involved a lack of skill, it falls within s 139(1)(a).
194 In either case, we accept that the conduct the subject of Complaint Three alone is sufficiently serious to amount to a finding that professional misconduct is established.
1. In our view, not only was the (established) conduct the subject of Complaint Three alone sufficiently serious to amount to a finding that professional misconduct is established, we consider it to be sufficiently serious to warrant suspension or cancellation of the practitioner's registration.
2. We were particularly concerned that that conduct, which we identified as being in the Primary Decision as being "conduct of the most serious nature", was not referred to at all in the statement the practitioner prepared for these Stage 2 proceedings.
3. That concern grew when, during the course of his cross-examination, it became plain that the practitioner, although he said that he accepted the Tribunal's findings of the labia and right breast touching, continued to deny that the conduct took place.
4. He also admitted in cross-examination that he told some of his character referees that he continued to deny that the conduct took place.
5. These matters lead to the Commission's submission, which we accept, that the practitioner shows no insight, and recognizes no need for remedial clinical professional development in this area. As he denies the allegations, no remorse has been expressed in respect of Patient A.
6. The Commission, rightly in our view, was also critical of the character references, in that the letter of instructions prepared by the practitioner's solicitors for the purpose of each referee providing a reference, provided a poor statement of the facts found by the Tribunal, and that, in relation to some of the character referees, the practitioner told them that he denied the established conduct.
7. We understand why the Commission presses for an order of cancellation of the practitioner's registration. But we are mindful of the principle summarised above the protective order should be the least serious outcome that is reasonably necessary to protect the health and safety of the public through specific and general deterrence, denunciation and promoting public confidence in the profession.
8. We found the decision of Health Care Complaints Commission v Robinson (No 3) [2023] NSWCATOD 34 to be of considerable assistance. Similar to this matter, the Commission sought cancellation of the practitioner's registration, while the practitioner submitted that the public would not be at risk were he reprimanded and conditions placed on his registration.
9. In Robinson, the practitioner was an ophthalmologist. A 19 year old patient had consulted him for assessment and management of right eye pressure. During the consultation the practitioner:
1. auscultated Patient A's chest underneath her clothing which was inappropriate in that:
1. no ocular abnormalities had been found;
2. there were no signs of orbital disease;
3. there was no clinical indication for the examination;
4. a chaperone was not present;
5. the practitioner failed to obtain adequate informed consent.
1. the practitioner inappropriately conducted a breast examination on Patient A in that he:
1. requested Patient A remove her top;
2. requested Patient A remove her bra;
3. palpated all four quadrants of Patient A's breasts behind the areola with flat fingers for approximately one minute whilst Patient A was leaning back in a reclining chair and her strapless top was pulled down beneath her breasts;
4. rubbed Patient A's nipples whilst she was leaning back in a reclining chair and her strapless top was pulled down beneath her breasts which is not an approved breast examination technique;
5. palpated Patient A's breasts a second time between two hands whilst Patient A was leaning forwards in a chair and her strapless top was pulled down beneath her breasts which is not an approved breast examination technique.
1. that conduct was inappropriate in that:
1. no ocular abnormalities had been found;
2. there were no signs of orbital disease;
3. there was no clinical indication for the examination;
4. a chaperone was not present;
5. no ocular signs suggested metastatic breast carcinoma;
6. the practitioner failed to obtain adequate informed consent.
1. In determining an appropriate protective order, the Tribunal stated:
Is it necessary to cancel the Respondent's registration to protect the public, provide a deterrent to other practitioners and retain the public confidence in the medical profession? Will an order such as suspension of registration or a reprimand be sufficient in the particular circumstances of this case?
80 We conclude that the protective order which is required in this case is a suspension of the Respondent's registration for a period of three months. That is to be accompanied by conditions attached to his registration upon his return to practice at the conclusion of that period. We have so concluded because, although we accept the Respondent can practise safely now, with the imposition of conditions, we do accept that the Respondent's conduct demonstrated such significant failing, in a practitioner of his seniority, experience, and learning, that a reprimand will be insufficient to fulfil the obligation cast upon this Tribunal by the National Law and the decisions which are binding upon us. We conclude that maintaining public confidence in the medical profession itself, and in its proper and appropriate regulation, requires that practitioners who are found guilty of professional misconduct at the level illustrated in this case need to have imposed on them protective orders which clearly show the profession and the public that such misconduct will have serious consequences, and that safeguards in the form of supervised conditions will be put in place and operate until the practitioner is determined to be able to practise safely. …
81 We reach that conclusion in the face of the HCCC requiring the Tribunal to cancel the registration of the Respondent. We conclude that cancellation, in this case, goes beyond the requirement of the National Law to ensure that, in the application of the provisions of the National Law, restrictions on the practice of health professionals are applied only if it is necessary to ensure health services are provided safely. We have also concluded that the protective orders we propose to make do place the health and safety of the public as the paramount consideration. We conclude that the protective orders we will make will promote the maintenance of proper ethical and professional standards of medical practitioners, for the protection of the public and the profession. The orders will also act as a deterrent to medical practitioners.
82 We conclude the provisions of the National Law will be satisfied by the protective orders we will make.
(emphasis added)
1. We adopt that reasoning. The established conduct of the practitioner in Complaint Three alone, and certainly all the established conduct when considered together, demonstrates such significant failing, in a practitioner of his seniority, experience, and learning, that a reprimand will be insufficient to fulfil the obligation cast upon this Tribunal by the National Law and the decisions which are binding upon us.
2. However, as with Robinson, we conclude that cancellation, in this case, goes beyond the requirement of the National Law to ensure that, in the application of the provisions of the National Law, restrictions on the practice of health professionals are applied only if it is necessary to ensure health services are provided safely.
3. Consistent with Ly and Meakes, the protective order should be the least serious outcome that is reasonably necessary to protect the health and safety of the public through specific and general deterrence, denunciation and promoting public confidence in the profession.
4. Adopting that approach, we consider that the appropriate protective order is that the practitioner's registration be suspended for a period of 6 months, and that conditions be imposed on his registration.
Costs
The Commission's submissions
1. The Commission seeks its costs on the basis it has been successful and this is a costs jurisdiction, and that absent some disentitling conduct, the Commission is entitled to its costs.
The practitioner's submissions
1. The practitioner seeks an order that he pay 50% of the Commissioner's costs for the following reasons:
62. While generally costs should follow the event (Health Care Complaints Commission v Philipiah (2013] NSWCA 342 at (42)), factors including that militate against the Commission's recovery of all its costs, including that the Commission was only partly successful (Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-(52]). It can be said that discrete and substantial elements of the conduct complained of were not established, which took up a substantial part of the hearing of the matter, and in those circumstances, it is appropriate to reduce costs to be recovered by the Commission: Lucire at [50).
63. Complaint 1 (Particulars 2 to 5), Complaint 2 (in its entirety), and Complaint 3 (Particulars 1 to 4 - representing three out of four consultations at which something inappropriate was alleged to have occurred) were not established. The Respondent did not put in issue Complaint 1 Particular 1 or Complaint 4, and so those Complaint's took up virtually no hearing time. Complaint 5 was a finding based on the determination of each of Complaints 1 to 4.
64. The contested matters in the proceeding therefore were largely Complaint 2 Complaint 3, and in the event Complaint 2 was not established in any respect and three out of four dates relating to Complaint 3 were not established. The suggestion that the Practitioner had engaged in a course of conduct over a four-month period in respect of Complaint 3 was not established, a substantial contention that took up a very large part of the hearing. The conduct on the final of those dates (5 November 2020) whilst it was established was held to be inadvertent, unintentional, and not for sexual gratification. The Commission chose not to put to the Practitioner that he intentionally made contact with Patient A's labia or breast or breasts (J [172]) and "curiously... did not submit that the practitioner was unreliable, or not forthright or credible, or lying" (J [131]), yet urged the Tribunal in closing to make a series of findings reflecting contentions not put, which required the Respondent to meet those contentions.
65. In those circumstances it is submitted that the Commission failed to establish all of the particulars of professional misconduct alleged and prosecuted the proceedings in such a way as to give rise to unnecessary expense in preparing for the hearing: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. In those circumstances it is submitted a reduced costs order should be made.
The Commission in reply
1. We will direct the Commission to file submissions in reply, and publish our decision on costs in due course.
2. We propose to deal with costs on the papers and without a hearing. If either party opposes that course, they are to notify each other and the Registry within 14 days.
Orders
1. The Tribunal orders:
1. The registration of the respondent is suspended for a period of 6 months.
2. the respondent is to satisfactorily complete within 6 months of the publication of these reasons education approved by the Chiropractic Council of NSW and that has the following characteristics:
1. type of institution: tertiary, failing that, vocational;
2. content or learning objectives: Clinical Boundaries and Ethics;
3. course duration: not less than 25 hours.
1. Within 2 months of publication of these reasons the respondent must provide evidence to the Chiropractic Council of NSW of enrolment in an approved course.
2. Within 2 weeks of completing the approved course, the respondent is to provide documentary evidence of satisfactory completion to the Chiropractic Council of NSW.
3. The respondent bears responsibility for any costs incurred in meeting these conditions.
4. The Chiropractic Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).
5. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the respondent's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Chiropractic Board of Australia.
6. Within 14 days of the publication of these reasons, the applicant is to file and serve submissions in relation to costs.
**********
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
29 August 2024 - Paragraphs 4, 66, 84, 86 and 92 - Minor word substitutions and typographical errors amended.
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: 29 August 2024
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