Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Segal v Medical Council of NSW [2024] NSWCATOD 139 Hearing dates: 19 and 20 June 2024 Date of orders: 06 September 2024 Decision date: 06 September 2024 Jurisdiction: Occupational Division Before: Acting Judge Levy SC, Principal Member Dr S Patel, Senior Member Dr D King, Senior Member F Taylor, General Member Decision: (1) Pursuant to s 163(1)(c) of the Health Practitioner Regulation National Law (NSW) 2009, the applicant, Shaun Segal, may apply to the Medical Board of Australia for registration to reinstate him to the register of medical practitioners subject to the practice and health conditions listed in the Appendix to these reasons. (2) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) 2009. (3) Pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) 2009, the applicant is to pay the respondent's costs of these proceedings on the ordinary basis as agreed or assessed. Catchwords: OCCUPATIONS - registration of medical practitioners – application by deregistered general practitioner following findings of unsatisfactory professional conduct and professional misconduct – practitioner's behaviour was found to have crossed the professional boundary between doctor and patient - application for re-registration following expiry of preclusion period – whether former practitioner's insight into the events which led to misconduct and deregistration has been sufficiently addressed by appropriate remedial steps – whether public health and safety adequately protected if reinstated – order for reinstatement Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36, s 64 Evidence Act 1995 (NSW), s 128 Health Practitioner Regulation National Law 2009 (NSW), s 3, s 3A, s 3B, s 113, s 116, s 139B, s 139E, s 149C, s 149E, s 150, s 150A, s 150D, s 163A, s 163B and s 163C Cases Cited: Ameisen v Medical Council of NSW [2015] NSWCATOD 49 Bonitto v Fuerst Bros & Co Ltd [1944] AC 75 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Brown v Dunn (1873) 6 R 67 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Coe v Health Care Complaints Commission [2013] NSWMT 12 Danaei v Medical Council of New South Wales [2024] NSWCATOD 116 Dawson v Law Society of NSW [1989] NSWCA 58 Evatt v New South Wales Bar Association (NSW Court of Appeal unreported, 12 April 1972) Evatt v New South Wales Bar Association (NSW Court of Appeal unreported, 15 December 1981) Ex Parte Lenehan (1948) 77 CLR 403, 422; [1948] HCA 5 Haber v Health Care Complaint Commission [2018] NSWCATOD 16 Health Care Complaints Commission v Segal [2022] NSWCATOD 71 Health Care Complaints Commission v Segal (No 2) [2023] NSWCATOD 6 Jan v Health Care Complaints Commission [2021] NSWSC 350 Jones V Dunkel [1959] HCA 8; (1959) 101 CLR 298 JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd [2003] NSWCA 66 Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 Mason v Demasi [2009] NSWCA 227 Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711 Ng v Health Care Complaints Commission [2018] NSWCATOD 105 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Re Mansoor Haider Zaidi [2006] NSWMT 6 St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480 Vaccaro v MLC Limited [2016] NSWDC 85 Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Zepinic v Health Care Complaints Commission [2018] NSWCATOD 92 Texts Cited: E Brooks, M H Gendel, S R Early, D C Gundersen & J H Shore, "Physician Boundary Violations in a Physician's Health Program: A 19-Year Review" (2012) J Am Acad Psychiatry Law 40(1) Good Medial Practice: A Code of Conduct for Doctors in Australia Category: Principal judgment Parties: Shaun Segal (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: R Mathur SC (Applicant) K Hooper (Respondent) Solicitors: HWL Ebsworth (Applicant) Medical Council (NSW) (Respondent) File Number(s): 2024/00039937 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure or publication of the name of any patient referred to in the evidence, or the name of any person referred to in the evidence who has made a complaint in respect of the applicant, is prohibited. For the avoidance of doubt this order does not preclude the disclosure or publication of the name of the applicant. REASONS FOR DECISION Table of Contents Non-publication order [1] Introduction [2] – [9] Factual background [10] – [13] Issues [14 – [18] Summary of outcome [19] Jurisdiction [20] Legislative focus [21] – [23] Legal principles for considering reinstatement [24] – [25] Evidence overview [26] – [29] Procedural departure from case management orders [30] – [41] Background matters and disciplinary history [42] – [86] Professional background of the applicant [43] – [44] Present circumstances of the applicant [45] – [48] Complaints history [49] – [50] First Inquiry – Conduct interview report [51] – [53] Second Inquiry – s 150A of the National Law [54] – [55] Third Inquiry - s 150A of the National Law [56] – [59] Fourth Inquiry - s 150 of the National Law [60] – [68] First Tribunal findings – Stage One [69] – [70] - Proven unsatisfactory professional conduct [71] – [76] - Proven professional misconduct [77] – [78] - Unproven allegation of an improper sexual relationship [79] – [82] First Tribunal findings - Stage Two [83] – [86] Applicant's evidence [87] – [106] - Acknowledgments by applicant [89] – [92] - Treatment provided by Dr Diamond [93] – [95] - Treatment provided by Ms Masel [96] – [98] - Applicant's statements of shame and remorse [99] – [102] - Applicant's future professional aspirations [103] - Professional mentoring by Dr Michael Levitt AM [104] - Course: Centre for Clinical Intervention [105] - Other CPD courses [106] Evidence of treating and examining practitioners [107] – [140] - Dr Michael Diamond's evidence [108] – [112] - Ms Anne Masels' historical report [113] – [115] - Ms Masel's oral evidence [116] – [118] - Dr Anthony Samuels' report [119] – [126] - Dr Samuels' oral evidence [127] – [128] - Dr Ralf Ilchef's reports [129] – [139] - Dr Ilchef's oral evidence [140] Additional documents relied upon by applicant [141] – [150] - Dr Michael Levitt's mentoring report [142] - Dr Leon Levitt – prospective employer [143] – [146] - Mr Bredemeyer – practice manager [147] – [150] Applicant's submissions [151] – [156] Respondent's submissions [157] – [172] Applicant's submissions in reply [173] Consideration of issues calling for decision [174] - Alleged misuse of a protected title – new complaint [175] – [187] - Applicant's credit as a witness [188] – [213] - Applicant's acknowledgments and insight regarding past flaws [214] – [224] - Whether undue risk to public health and safety if reinstated [225] – [229] Disposition [230] Costs [231] Orders [232] Non-Publication Order 1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), at the outset of the hearing, the Tribunal made an order to the effect that the disclosure or publication of the name of any patient referred to in the evidence, or the name of any person referred to in the evidence who has made a complaint in respect of the applicant, is prohibited. For the avoidance of doubt this order does not preclude the disclosure or publication of the name of the applicant. Introduction 1. The delay incurred between the hearings on 19 and 29 June 2024 and the delivery of these reasons has been influenced by the untimely receipt of the transcript of the hearing on those dates, a matter that was foreshadowed to the parties at the commencement of the hearing: T1.42. 2. By application made to this Tribunal pursuant to s 163B(1)(c) of the Health Practitioner Regulation National Law 2009 (NSW) ("the National Law)", Mr Shaun Segal, a deregistered former medical practitioner, ("the applicant"), seeks an order that he is now fit to be reinstated to the Register of Medical Practitioners. 3. Following successive decisions in the Occupational Division of the New South Wales Civil and Administrative Tribunal ("the Tribunal") by two differently constituted Tribunals, on 27 July 2022 and 1 February 2023, in a two staged process, the applicant was found guilty of unsatisfactory professional conduct and professional misconduct with regard to a person de-identified as Patient A. 4. As a consequence of those findings, the applicant's medical registration was cancelled. At that time an order was made precluding him from applying for reinstatement for a period of 12 months from 1 February 2023: Health Care Complaints Commission v Segal [2022] NSWCATOD 71; Health Care Complaints Commission v Segal (No 2) [2023] NSWCATOD 6. His application for reinstatement was filed on 1 February 2024. 5. These reasons assume familiarity with the two prior Tribunal decisions identified above. Those decisions were preceded by some earlier administrative inquiries brought pursuant to s 150 and s 150A of the National Law. These reasons should be read in conjunction with the earlier decisions identified in the preceding paragraph. 6. At the outset of the hearing, Medical Council of New South Wales, the respondent to the application, indicated it opposed the application for reinstatement but reserved the question of whether that position might change after considering the evidence. 7. At the conclusion of the evidence, in final submissions, the respondent's position remained unchanged due to the unavailability of further instructions to its counsel. The respondent was therefore required to make its final submissions according to its original instructions as a delay whilst the respondent's legal representatives sought further instructions was considered to be contrary to the requirements of s 36(1) of the NCAT Act. 8. In those circumstances, the respondent was given leave to file alternative written submissions within 7 days if further instructed to do so regarding appropriate conditions of practise in the event that the Tribunal was inclined to make an order for reinstatement. Those submitted conditions, as modified to accord with the views of the Tribunal, appear in the Appendix to these reasons. Factual Background 1. The nature of these proceedings involves a review of past orders made by a differently constituted Tribunal whereby the applicant's medical registration was cancelled on account of findings of unsatisfactory professional conduct and professional misconduct based on a complaint that the applicant had, in his extensive sexualised communications with Patient A, crossed the professional boundary between doctor and patient. 2. Although that complaint included particulars of a further alleged element of boundary crossing behaviour involving a claim of physical sexual relationship between the applicant and Patient A, given the conflicting evidence on that matter and given some discrepancies in the evidence of Patient A, the decision makers in the earlier Tribunal hearing were not persuaded of the truth of the allegation of an intimate physical sexual relationship. 3. In his evidence, the applicant stated that he believed Patient A was motivated by a desire to exact revenge upon him by falsely alleging the existence of a claimed physical sexual relationship because she believed he had been responsible for the circulation of rumours in her community that she was a sex worker. 4. Patient A, who had an obvious personal interest in the outcome of the proceedings, was identified as sitting as an observer at the hearing in the public gallery whilst evidence was given in the proceedings. Understandably, she was not called to give evidence either in reply to, or in rebuttal of, the applicant's evidence, as the issues arising from her evidence had already been determined in the earlier Tribunal decisions. Issues 1. This Tribunal is required to consider and determine whether, in the present circumstances as they have evolved since the deregistration order was made, the applicant has sufficiently acknowledged, addressed, and taken appropriate remedial steps in light of the previous adverse findings made against him concerning his identified flaws of insight and boundary crossing behaviour as identified in the prior Tribunal decisions. This Tribunal must be comfortably satisfied, by clear and solid proof, that if the applicant were to be reinstated, on the balance of probabilities, the health and safety of the public would be adequately protected. 2. Essentially, the emergent questions for determination are: whether whilst deregistered, the applicant has misused a professional title that was protected by statute; the applicant's credit as a witness; whether he has in any material way failed to acknowledge and accept the reasons for his deregistration; whether at this time, the applicant has satisfactorily shown that he now possesses relevant insights into past events of concern; whether on a consideration of the whole of the evidence that is now available to this Tribunal, he should be considered to be a person of fit character justifying reinstatement to medical practise. 3. The Tribunal must be comfortably satisfied on those issues according to the high bar for proof according to the civil standard on the balance of probabilities having due regard to the seriousness of the issues raised and the potential risk to the health and safety of the public. 4. The issues must be determined by the Tribunal with primary focus on the paramount consideration of the protection of the health and safety of the public. That paramount consideration must override any considerations of sympathy arising from hardship and economic disadvantage experienced by the applicant following his deregistration. Those matters of hardship are neither relevant nor determinative on the question of fitness to practice. 5. In opposing the application for reinstatement, the respondent raised issues concerning the credibility of aspects of the applicant's testimony. Those matters will be addressed and considered in the appropriate context in these reasons. Summary of Outcome 1. Following a consideration of the findings made in the earlier Tribunal hearings, and after reviewing the factual and expert evidence adduced both at those prior hearings and in the present application, having due regard to the safety and the protection of the public, this Tribunal has determined that the applicant has satisfactorily discharged the heavy onus of proof he carries to justify the making of the reinstatement order he seeks, subject to the imposition of conditions on his practice which are identified in the Appendix to these reasons. The Tribunal's reasons for those conclusions now follow. Jurisdiction 1. This Tribunal has jurisdiction to hear an application for reinstatement and it may make an order to that effect if such a course is considered appropriate in the circumstances at the time the application is determined having due regard to the overriding paramount principles identified in the legislation: s 3, s 3A, s 3B,s 163A, s 163B and s 163C of the National Law. Legislative focus 1. The objective focus and overriding principle guiding the exercise of jurisdiction in this case must be the paramount consideration of the safety and the protection of the public: s 3, s 3A, and s 3B of the National Law. 2. Given the factual acknowledgments made by the applicant in his evidence to the effect that the original order for cancellation of his registration was justified at the time that order was made in 2023, these reasons do not require the underlying factual matters to be revisited at the same level of detail as was undertaken in previous hearings, except to identify the prior findings as the relevant factual baseline to the consideration of the application for reinstatement. 3. In that regard, the existence of any prior allegations which were found by previous Tribunals decisions to have been unsubstantiated or unsustained, have been taken into account as part of the general historical background to our consideration. Legal principles for considering reinstatement 1. The legal principles for considering an application for reinstatement have recently been extensively summarised in the Tribunal decision in Danaei v Medical Council of New South Wales [2024] NSWCATOD 116, at [41] – [53], as follows: "41 The applicant bears the heavy onus of proof to satisfy the Tribunal by clear, solid and substantial evidence, that he has undergone a reformation of his past character flaws which led to his deregistration thereby justifying an order for his reinstatement onto the register of medical practitioners in this jurisdiction. 42 The discharge of that onus of proof cannot be achieved by simply making unsupported assumptions based on flimsy aspirational and platitudinal evidence where the paramount consideration is the safety and protection of the public: s 3A and s 3B of the National Law. The decided cases, which authoritatively explain those requirements are uncontroversial, and are summarised below. 43 The starting point for the Tribunal's consideration of a reinstatement application by a former medical practitioner against whom adverse findings have been made in respect of ethical breaches is to recognise the well-established principle that there is no public interest in forever denying a former practitioner the chance of redemption through reformation of character, if that can be satisfactorily established. 44 On the contrary, the decided cases indicate that the public interest is better served where practitioners who have offended against the accepted standards of practice but are otherwise suitably qualified are afforded a second chance provided reformation has been affirmatively established. 45 The test to be applied in an application for reinstatement is the provision of clear and demonstrative proof of persistence in habits of integrity, uprightness and responsibility: Dawson v Law Society of NSW [1989] NSWCA 58, (at 15.10), following Evatt v New South Wales Bar Association (NSW Court of Appeal unreported, 12 April 1972), which was cited with approval in Evatt v New South Wales Bar Association (NSW Court of Appeal unreported, 15 December 1981); Coe v Health Care Complaints Commission [2013] NSWMT 12, at [23]; Ameisen v Medical Council of NSW [2015] NSWCATOD 49, at [24]. 46 The paramount consideration in an application for reinstatement must be that the privileged status of registration as a medical practitioner should only be afforded to those practitioners who are suitably trained, qualified, and who can be trusted to practice in a competent and ethical manner according to expected standards of practice that are protective of the health and safety of the public. Of relevance to this case, where prior findings of unfitness to practice have been recorded, there is a heavy onus is on the applicant to displace the earlier adverse findings of unfitness and to clearly show that he is no longer unfit: Qasim v Medical Council of New South Wales [2021] NSWCA 173, at [17]-[19]; Jan v Health Care Complaints Commission [2021] NSWSC 350, at [21]. 47 The jurisdictional power to recommend reinstatement is conferred on the Tribunal by the force of the enabling legislation within the National Law. That power does not involve the exercise of a discretion. Instead, it is a power that must "be exercised with the greatest of caution and only upon solid and substantial grounds": Jan v Health Care Complaints Commission [2021] NSWSC 350, at [67], following Ex Parte Lenehan (1948) 77 CLR 403, 422; [1948] HCA 5, as was applied in Ng v Health Care Complaints Commission [2018] NSWCATOD 105, at [27]-[29], and in many other cases. 48 Central to the exercise of that conferred power, when considering an application for reinstatement, the Tribunal must assess the potential for risk to the health and the safety of the public: s 3A and s 3B of the National Law. 49 That assessment is required because studies show that practitioners with a history of prior sexual boundary violations are more likely to commit further sexual boundary violations. Those studies acknowledge the known phenomenon that further violations by such practitioners tend to go underreported for fear of legal retribution: E Brooks, M H Gendel, S R Early, D C Gundersen & J H Shore, "Physician Boundary Violations in a Physician's Health Program: A 19-Year Review" (2012) J Am Acad Psychiatry Law 40(1), 59-66. Accordingly, in this instance, a considered risk assessment is required. 50 The Tribunal's jurisdiction for undertaking those assessments is not punitive in nature. In Re Mansoor Haider Zaidi [2006] NSWMT 6, at [42], the former Medical Tribunal of New South Wales set out a conveniently digested form, a summary of the principles to be applied in applications for reinstatements, as follows: "1. The purpose of the jurisdiction which is exercised by the Tribunal is not for punishment or further punishment of the former practitioner. Instead the Tribunal's jurisdiction is for the protection of the public which deals with medical practitioners on the basis that they are members of an honourable profession who can be expected without reservation to conduct the affairs of their patients with honour and in whom the patients can place unbounded confidence. What is in question in an application for reinstatement to the Medical Register is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence. 2. An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears the onus of proving the case. It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds and as an applicant for reinstatement to the Medical Register he is in a more disadvantageous position than an original applicant. He must in effect displace the decision for deregistration which has been made. That decision involves the judgment that the applicant is probably permanently unfit to have his name on the Register. As a consequence, presumptions of fitness which might arise otherwise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 3. The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the applicant but the Tribunal's assessment of his character, uprightness, honour and trustworthiness. In the case of some offences committed over an extended period with deliberate intent and resulting in serious distress to patients it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the Register. 4. It is not a question of what an applicant has suffered in the past. It is a question of his worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. It is difficult to decide what a man will do in the future and the decision in a particular case is to a greater or lesser extent dependant upon the Tribunal's assessment of the applicant. In making that assessment, it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the Register. An understanding of that may assist the Tribunal to determine what are his standards and his understanding of a practitioner's responsibility, and from this, what he is apt to do in the future. Where what has been done in the past has been sufficient to indicate his probably permanent unfitness the Tribunal will require solid and substantial grounds for the conclusion that his standards have changed, his character has been reformed and that he will act honourably." 51 More recently, those guiding principles have been affirmed, echoed and applied without controversy in other cases: Zepinic v Health Care Complaints Commission [2020] NSWSC 13, at [85], citing the first instance decision of Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 92, at [7]-[8], also citing Haber v Health Care Complaint Commission [2018] NSWCATOD 16, at [12]. 52 In Re Mansoor Haider Zaidi [2006] NSWMT 6, at [42], the ultimate question to be determined was identified as being whether an applicant has established worthiness and reliability for the future practice of medicine, that is, whether the Tribunal can be comfortably satisfied on the balance of probabilities that in the future the applicant will act in conformity with the high standards and privileged responsibilities expected of the medical profession when dealing with the health needs of patients. 53 The latter considerations were unquestioningly applied in reinstatement cases determined by the former Medical Tribunal of NSW. They also apply unquestionably in this Tribunal, which is the successor to that Tribunal." 1. Our consideration of this application will follow and apply the approach outlined in the above summary of those principles. Evidence overview 1. The applicant's documentary evidence comprised two folders: Exhibit "A" (primary materials Tabs 1-13, pp 1-146) and Exhibit "B" (materials in reply to the respondent's materials, Tabs 1-6, pp 1-62). The applicant also gave oral evidence and was cross-examined. 2. The respondent's primary documentary materials comprised four folders: Exhibit "1", Tabs 1- 53 (omitting Tabs 48 and 49), pp 1-1191. The respondent also filed a fifth folder of materials comprising its reply to the applicant's documents: Exhibit "2", Tabs 1 – 5, pp 1-88. In addition, there were two volumes of annexed documents relied upon by the respondent. These were marked Exhibits "3" and "4". The detail contained in those respective bundles of materials will be referred to in these reasons where it becomes relevant to do so. 3. The applicant gave oral evidence over the course of two days of hearing. Relevant aspects of that evidence will be referred to in our consideration. The respondent did not call any oral evidence on factual matters. 4. In addition to the expert evidence of Dr Michael Diamond, the applicant's former treating psychiatrist who gave evidence at the earlier Tribunal hearing, expert evidence was given at this hearing was in the form of reports and supplementary oral evidence from Dr Anthony Samuels and Dr Ralf Ilchef, consultant psychiatrists. Oral evidence was also given by Ms Anne Masel, the applicant's treating psychotherapist who took over his treatment after Dr Diamond retired from clinical practice. Procedural departure from case management orders 1. In the lead up to the hearing, in accordance with usual practice, and in the interests of procedural fairness, administrative orders for case management were made by the Deputy President of the Tribunal requiring the timely service of the respondent's evidence prior to the hearing. 2. In a significant departure from those case management orders, on 11 June 2024, barely 5 clear working days before the hearing, on short notice and without leave, the respondent supplemented its array of evidence by filing and serving an affidavit from a Principal Legal Officer employed by the Health Professionals Councils Authority: Exhibits "3" and "4". 3. That affidavit annexed a redacted copy of a fresh complaint about the applicant. That complaint was received by the respondent on 20 May 2024. The reason why it took 39 days for that additional complaint material to be served on the applicant when the hearing was imminent remained unexplained. 4. That fresh complaint, which by reasonable inference from its content, came from Patient A, or someone acting in her interest, in effect alleged that the applicant "… [had] various websites and social media pages stating that he is a doctor, despite not being currently registered". 5. That affidavit also annexed in a de-identified and redacted form, the text of that fresh complaint along with some pages of supporting material that had been downloaded and printed from the internet purporting to support that complaint; Exhibit "2", Tab 5, pp 51-88. 6. That affidavit also annexed copies of the results of some social media research undertaken by the solicitor for the respondent with regard to the internet profile of the applicant. In that material the complainant stated she was aware of the imminent hearing of the applicant's quest for reinstatement, and she wanted the Tribunal to take into account the social media material which she had identified and put forward in her fresh complaint. 7. Although that complaint form was redacted in part, the compelling inference to be drawn from its unredacted content is that the complainant, referred to as Patient A, was the same female patient who had initiated the original complaint against the applicant that led to his deregistration. 8. Amongst other things, the most recent complaint was expressed in the following accusatory terms: "[The applicant] is currently deregistered however has applied for reinstatement, hearing dates 19/6 & 20/6. I am flagging that he has various websites and social media pages stating that he is a doctor, despite not currently being registered as one. I do not have any knowledge of whether he is working as one. … Masquerading as a doctor online via websites and social media pages despite being unregistered at present. Noting I have included some screen shots of his LinKedIn page, Instagram page as well as his Facebook page all with active posts. He also has various websites that require only a quick search of his name. … I want this information to be factored in during his reinstatement hearing." 1. That newly emergent complaint raised serious questions about whether the applicant was in criminal breach of s 113 and s 116 of the National Law by holding himself out to be a registered medical practitioner by using a professional title protected by legislation. There are many elements of proof required to sustain a complaint along those lines. At this point it is pertinent to note that they were starkly absent from the evidence in this case, a topic to which we shall return in our consideration of the issues at a later point in these reasons. 2. The applicant took a pragmatic course in response to the unfortunate timing of that newly emergent material. Whilst objecting to the inclusion of that new material, he did not want to delay the proceedings by seeking an adjournment in order to marshal evidence in response to that new material. In the circumstances where that late complaint had to be considered, he was granted the benefit of a certificate pursuant to s 128 of the Evidence Act 1995 (NSW), 3. The late emergence and purported use of this additional material by the respondent in these proceedings raised obvious questions of concern with regard to procedural fairness and whether the applicant was being placed in an untenable position where the onus of proof was being inappropriately reversed to rest on him rather than on the Medical Council as prosecutor. 4. However, as that late-served material has been raised in the proceedings, pursuant to s 163C(2)(a) of the National Law, this Tribunal is obliged to consider it and give it such weight as is due when determining the fundamental questions calling for decision. Background matters and disciplinary history 1. It is convenient at this point to set out something of the applicant's professional background, his present circumstances, his complaints history, the findings in previous administrative hearings and Tribunal hearings involving both proven unsatisfactory professional conduct and professional misconduct, and some unproven matters. Professional background of the applicant 1. The applicant obtained the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of the Witwatersrand, South Africa, in 1997. On 2 June 2008 he became registered in this State as a medical practitioner. In that year, he also obtained Fellowship of the Royal Australian College of General Practitioners in Australia. He also obtained Fellowship of the Australian College of Cutaneous Oncology. 2. The applicant's medical registration continued from 2008 until 22 June 2020, when it was temporarily suspended until 2 October 2020, during which time he was re-registered. His medical registration then continued from 2 October 2022 until it was cancelled from 1 February 2023 as a result of the Tribunal decisions referred to in paragraph [5] above. He has practised predominantly in the area of skin cancer, including related skin cancer surgery. Present circumstances of the applicant 1. The applicant is presently aged 50 years. As a consequence of his deregistration, he no longer resides in this State. He lives in Western Australia with his wife and children who are supportive of him. 2. Since the applicant's deregistration he has experienced difficulty obtaining remunerative employment. His deregistration has had a significantly disruptive impact on his economic, social, and living circumstances, and that of his family. 3. As the applicant has been unable to work as a medical practitioner since his deregistration, he has been living off the capital proceeds from the sale of his house in Sydney. He has pursued non-medical unpaid voluntary work in an aged care facility in Perth, where his efforts have been positively appreciated. 4. During the applicant's period of deregistration, he has had the benefit of ongoing psychotherapy and professional mentoring aimed at remedially addressing the professional shortcomings which have led to his deregistration. Complaints History 1. Prior to the applicant's deregistration on 1 February 2023, a number of historical professional complaints had been made about him to the regulator. Ultimately, not all of those complaints were sustained or the subject of adverse findings, as explained in the following chronological sequence: 1. On 14 February 2012, a patient who was also an employee of the practice where the applicant worked and with whom the applicant also had a social connection (de-identified as Patient Y), alleged the applicant had touched and kissed her whilst bidding her farewell after giving her a lift from a football match they had attended. There was a dispute as to the motive for that kiss and as to whether there had been a kiss on the cheek, or on the lips. That complaint was resolved at a conciliation meeting without the need for further action or findings: Exhibit 1, Volume 4, Tab 49, p 1053; 2. On 14 January 2013, the regulator received an anonymous complaint which alleged the applicant had numerous inappropriate relationships with both patients and staff at his practice. That complaint, which on its face, raised matters of utmost seriousness, was resolved at a conciliation meeting without the need for further action or findings: Exhibit 1, Volume 4, Tab 49, p 1052; 3. On 1 August 2013, a former operations manager at the applicant's practice claimed to have witnessed the applicant behaving inappropriately towards female employees of the practice. After a thorough process of investigation and assessment, action on that complaint was discontinued without findings: Exhibit 1, Volume 4, Tab 49, p 1052; 4. On 24 April 2014, and on 23 May 2014, the regulator received a notification that the applicant had been charged with "assault with an act of indecency": Exhibit 1, Volume 4, Tab 49, p1052. This led to a referral for an urgent hearing convened pursuant to s 150 of the National Law: Exhibit 1, Volume 4, Tab 49, p 1052; 5. On 20 November 2014, the regulator received a complaint from the Medical Council of NSW in relation to three counts of alleged indecent assault by the applicant. The regulator decided to imposed conditions on the applicant's practise pursuant to s 150D of the National Law pending the investigation of these matters. The investigation was ultimately discontinued by the HCCC without adverse findings after it had carried out an assessment: Exhibit 1, Volume 4, Tab 49, p 1052; 6. On 5 May 2020, a complaint was made which alleged the applicant had violated the professional boundary between doctor and patient in relation to Patient A. That complaint was based on numerous sexualised conversations between the applicant and Patient A, which the applicant admitted. Another element of that complaint alleged the existence of a physical sexual relationship between the applicant and Patient A. That relationship was said to have existed for an extended period between October 2016 to April 2019. The applicant admitted the sexualised conversations, but he disputed that there had been a physical sexual relationship between himself and Patent A. That complaint ultimately led to the earlier identified Stage One and Stage Two Tribunal hearings, and to the applicant's current deregistration from 1 February 2023; Exhibit "1", Volume 4, Tab 49, p 1052. 1. Against that background, the various administrative inquiries and Tribunal hearings referred to above may be conveniently summarised in the following sequence. First Inquiry – Conduct Interview Report 1. On 18 August 2011, a complaint about the applicant was made to AHPRA concerning his alleged sexual harassment of a female employee who was also his friend and a patient of his practice. 2. The complaint arose from a social occasion where the applicant had driven the complainant home from a soccer match. The complaint alleged that inappropriate touching and kissing had occurred. No further action was taken on the complaint as the delegates seemed to have accepted the applicant's explanation that the events could have arisen from a misinterpretation of the applicant's behaviour and communication style. 3. In their reasons for decision on that matter, the delegates noted that the applicant had accepted criticisms and had sought counselling in respect of those allegations, and as a result, he had implemented changes in his practice, including in relation to a sexual harassment policy and management guidelines. In those circumstances, the delegates formed the conclusion that no further action was required: Exhibit "1", Tab 4, pp 314-319. Second Inquiry – Convened pursuant to s 150A of the National Law 1. An inquiry pursuant to s 150A of the National Law took place on 11 July 2014. In that inquiry, the delegates provided their formal reasons for decision on 3 November 2014: Exhibit "1", Tab 4, pp 292-311. 2. At that inquiry, on the basis of evidence comprising a police facts sheet setting out disputed allegations that resulted in the applicant being charged with three offences involving indecent assault upon a female colleague, on an interim basis the delegates decided they were comfortably satisfied that for the safety and protection of the public, conditions should be imposed on the applicant's practice, effective from 18 July 2014, pending the determination of those charges by a court of competent jurisdiction. Third Inquiry – Convened pursuant to s 150A of the National Law 1. An inquiry pursuant to s 150A of the National Law took place on 5 November 2014. In that inquiry, the delegates provided their formal reasons for decision on 4 February 2015: Exhibit "1", Tab 4, pp 282-319. 2. That inquiry, which consisted of a review hearing convened at the request of the applicant following a hearing of criminal charges at Gosford Local Court on 4 September 2014 where the applicant was represented by experienced counsel. At that time, orders were made in his favour dismissing criminal charges of indecent assault on the basis of a lack of a prima facie case against him. 3. At that review hearing on 5 November 2014, the applicant sought and obtained the removal of the practice conditions that had been imposed upon him on 18 July 2014 as an urgent interim measure pending the hearing of those ultimately dismissed criminal charges. 4. Those former practice conditions (which are set out in full at Exhibit "1'. Tab 4, pp 285-287), included the requirement that the applicant have a chaperone continuously present when interviewing or examining female patients. That requirement was also removed as it was no longer considered to be appropriate. Fourth Inquiry – Convened pursuant to s 150 of the National Law 1. An inquiry pursuant to s 150 of the National Law took place on 22 June 2020. In that inquiry, the delegates provided their formal reasons for decision on 7 July 2020: Exhibit "1", Tab 2, pp 151-171. 2. That inquiry was generated by a multi-faceted complaint dated 23 May 2020 in relation to the applicant's dealings with Patient A. The complaint alleged a crossing of the professional boundary between doctor and patient in two material respects. The first element involved extensive and at times extended personal conversations and text message communications between the applicant and Patient A. The second element of the complaint alleged a disputed series of inappropriate physical sexual encounters had taken place between the applicant and Patient A. 3. The nature of those sexualised communications was admitted by the applicant but he vehemently disputed and denied the alleged physical sexual relationship. The delegates considered the origins and the nature of the relationship between the applicant and Patient A as follows: "In Dr Segal's written statement, he acknowledges being fascinated by [Patient A's] stories about her personal life, which often involved activities of people within their community. He describes being drawn in, intrigued and flattered by the attention, however [he] accepts that in hindsight, he allowed the doctor-patient boundary to become blurred. Dr Segal strongly denies any sexual contact with [Patient A]." [Ibid, p 156] 1. The delegates questioned multiple aspects of the applicant's contact with Patient A, including the appropriateness of his role in providing her with counselling, in not keeping records of his conversations with her, in not billing her for those conversations, and his inappropriate action of referring her for treatment to the same psychiatrist whom he had been consulting for his own issues. In that regard, the delegates commented as follows: "The delegates were not satisfied that Dr Segal acted appropriately in engaging in these long telephone counselling sessions, outside of the clinical context, where information beyond the bounds of the doctor-patient relationship was discussed, and in the context of Dr Segal having no training in mental health or counselling. The delegates determined these actions were unsatisfactory and breached doctor-patient boundaries. Whilst Dr Segal acknowledges elements of [Patient A's] complaint, he denied any sexual interactions as alleged by her, whether at the [redacted] practice or [Patient A's] home. Dr Segal alleges that [Patient A] is lying in an effort to enact revenge upon him as she believes he spread rumours in the community about her." [Ibid, pp 156-158] 1. In summary, the delegates considered that although there were discrepancies within the detail of the complaint concerning Patient A, on balance, at that interim level of inquiry, they considered the allegations to be plausible. They also took the view that whilst they were unable to form any assessment of what had occurred in connection with the charges against the applicant that were dismissed, they were not bound by those outcomes, and they did not accept all of the applicant's explanations that the complaints against him were vexatious. 2. At that level of interim inquiry, which was not governed by the same level of forensic rigour or focus required of a Tribunal decision, the delegates determined that the applicant's complaints history suggested a pattern of behaviour that lent some weight to the complaint in question: Ibid, pp 158-161. 3. On that basis the delegates decided that: the applicant posed a risk to the health and safety of the public; that the applicant's admitted behaviour would not be deemed by the public to be the acceptable behaviour expected of a medical practitioner; that his actions were in breach of the Medical Board's Guidelines to Sexual Boundaries in the professional relationship between doctor and patient; and such conduct undermined the trust and confidence the public had come to expect of the medical profession. 4. Consequently, pursuant to s 150(1)(a) of the National Law, the applicant's medical registration was suspended, and pursuant to s 150D of the National Law, the matter was referred to the HCCC as a complaint that warranted investigation: Ibid, pp 162-166. 5. It is necessary to identify the particular Tribunal findings of relevance, as follows. Tribunal Hearing – Stage 1 - unsatisfactory conduct and professional misconduct 1. On 27 July 2022, following a Stage 1 hearing, a series of adverse findings were recorded against the applicant in relation to two complaints in respect of which he was found guilty. These involved legislatively defined unsatisfactory professional conduct and legislatively defined professional misconduct. Those findings related to the applicant's communications during his relationship with Patient A: Health Care Complaints Commission v Segal [2022] NSWCATOD 71, at paragraphs [168] and [17]. 2. In that hearing, the Tribunal considered the exhibits, the transcript and the record of s 150 proceedings conducted on 22 June 2020 and decided on 7 July 2020. As a result of that hearing, pursuant to s 150(1)(a) of the National Law, the applicant's registration was suspended pending further action being taken: Exhibit "1'. Tab 2, pp 151-379. Those findings necessitated the subsequent Stage 2 Tribunal hearing: Health Care Complaints Commission v Segal (No 2) [2023] NSWCATOD 6. Proven unsatisfactory professional conduct 1. The 27 July 2022 Stage One Tribunal finding of unsatisfactory professional conduct involved the applicant's admitted failure to observe the indisputable professional ethical boundary concerning doctor and patient in his communications and dealings with Patient A. In examining the extent of that failure, very much in dispute was the question of whether or not there was an impermissible physical sexual relationship between the applicant and Patient A, as was alleged by Patient A. 2. The applicant had admitted there had been numerous inappropriate personal text messages and telephone communications between himself and Patient A between October 2016 and December 2016. 3. In that period, the applicant admitted calling Patient A on 659 occasions, including where 10 of those calls were for longer than 30 minutes, the longest being 61 minutes. In that same period, the applicant admitted receiving 157 calls from Patient A, where 6 of those calls were longer than 30 minutes. 4. Although the applicant admitted his involvement in those numerous telephonic communications, he maintained his steadfast denial that any physical intimacy had ever occurred between them, notwithstanding the contrary evidence provided by Patient A. The credibility of conflicting testimony was very much in issue in those proceedings. 5. The background circumstances were that Patient A had presented to him as a flirtatious patient who, in the clinical setting, had disclosed to him her high libido. The applicant claimed that in the numerous sexualised conversations which followed between them, including in the non-clinical setting, Patient A had disclosed to him the details of her sexual exploits with various prominent persons in her community. The applicant admitted that in those circumstances, he "had allowed the doctor / patient boundary to become blurred". 6. In the applicant's discussion of those events with his treating psychiatrist, he disclosed that the length and intensity of those communications with Patient A had enabled him to inappropriately derive "a source of gratification for himself" and a sense of "titillation", as was cited in the previous Tribunal decision in Health Care Complaints Commission v Segal [2022] NSWCATOD 71, at [176]. Proven professional misconduct 1. On 27 July 2022, the applicant was found guilty of professional misconduct on the basis that his proven unsatisfactory professional conduct regarding Patient A was of a sufficiently serious nature to justify suspension or cancellation of his registration in that he had engaged in more than one instance of unsatisfactory professional conduct. 2. That finding was based on the uncontroversial proposition that when the totality of the instances of unsatisfactory professional conduct are considered together, they amounted to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration: Health Care Complaints Commission v Segal [2022] NSWCATOD 71, at [169]-[178]. Unproven allegation of a physical sexual relationship 1. In the earlier proceedings, Patient A had provided very detailed evidence of an alleged intimate sexual relationship that had developed between herself and the applicant over the course of many months. Notwithstanding that evidence, the applicant maintained his vehement denial that an intimate sexual relationship had ever occurred or existed between them. 2. In the previous Tribunal decision, detailed consideration was given to the conflicting evidence on that topic. The credibility of Patient A's testimony on those allegations was challenged. 3. In those circumstances, the matters of fact in issue in those proceedings were substantially determined in favour of the applicant on the basis of an evaluation of an assessment of the credibility and the reliability of the respective testimonies according to the onus of proof borne by the prosecutor. 4. That evaluation, which was based on ample justificatory material, including the unchallenged medical records relating to Patient A, resulted in a finding to the effect that the alleged sexual relationship had not been proven to the requisite standard of proof on the balance of probabilities: Health Care Complaints Commission v Segal [2022] NSWCATOD 71, at [62]-155]. Consequently, no adverse finding was made against the applicant in respect of the disputed allegations of an alleged intimate physical sexual relationship. Tribunal Hearing – Stage 2 - Cancellation of Applicant's registration 1. On 1 February 2013, at the conclusion of a Stage Two hearing, pursuant to s 149C(1)(b) of the National Law, the applicant's registration as a medical practitioner was cancelled and a non-review period of one year was imposed pursuant to s 149C(5) of the National Law : Health Care Complaints Commission v Segal (No 2) [2023] NSWCATOD 6, at [92]. 2. Those Stage Two orders were made by the Tribunal following a consideration of a range of evidence as summarised below. 3. That evidence included a factual admission by the applicant, in an interview on 12 February 2011, that on 18 August 2011, he had kissed a person identified as Patient Y, who was also an employee in the practice where he worked. Those events occurred in the context where he had given Patient Y a lift home from a sporting match. This was also an admittedly inappropriate crossing of the doctor patient boundary given that the applicant had also been treating Patient Y for depression: Health Care Complaints Commission v Segal [2023] NSWCATOD 6, at [15]. 4. The consideration of that evidence also included a review of the applicant's account of having on a number of occasions reviewed the code of conduct comprising "Good Medial Practice: A Code of Conduct for Doctors in Australia", and his claim of a hindsight realisation that he had apparently arrived at through psychoanalytic treatment with Dr Michael Diamond, a consultant psychiatrist whom he had been seeing for therapy. Applicant's evidence 1. The applicant's evidence was in both statement and oral form. In light of the limited challenges made to the evidence of the applicant, his evidence in this application may be conveniently summarised follows. 2. On 1 February 2024, the applicant filed the present application for reinstatement, supported by a 72-paragraph evidentiary statement dated 29 January 2024. That statement was supplemented by oral evidence that was tested by cross-examination. In that statement, the applicant traversed the various allegations that had been made against him. He reiterated the details of his earlier admissions, and he appropriately referred to the findings on matters he had previously disputed. Acknowledgments by the applicant 1. In his statement, the applicant acknowledged the following matters in support of his application for reinstatement: "4. On 1 February 2023, the Tribunal delivered its decision in Health Care Complaints Commission v Segal (No 2) [2023] NSWCATOD 6. The Tribunal determined to cancel my registration as a medical practitioner. It ordered that I not be able to make an application for review of the cancellation order for a period of one year from the date of the order. 5. I fully accept the Tribunal's findings. I accept that my conduct in engaging in an inappropriate relationship with Patient A and calling her 659 times between October 2016 to December 2019 was so serious that it amounted to professional misconduct and justified the cancellation of my registration. 6. Reading the Tribunal's decision and experiencing the cancellation of my registration was a very sobering experience. In reflecting on it, I experienced great remorse and embarrassment about my actions towards Patient A. Whilst I had already taken significant steps to develop insight and improve my knowledge and understanding of patient boundaries upon first being made aware of the matters the subject of the Complaint, I realised after reading the Tribunal's decision that I still had further work to do in this area. 7. I have embarked on a journey of self-discovery which has been both arduous and confronting. I now believe that had this not happened, I probably would not have confronted my problems and acquired insight into my past and my character faults. 8. It was only with the passage of time that I gradually came to develop and appreciate the value of having genuine insight and this has changed my perspective. It forced me to be honest, sincere and candid about my character flaws, my poor judgment and my bad decisions. It was this realisation that brought me to experience deep remorse." 1. After the applicant set out the details of his professional qualifications and experience at paragraphs [9] - [20] of his statement, at paragraphs [28] – [42] he described the progress and the effect of his sessional psychotherapy consultations with Ms Masel, who has been his treating psychologist and psychotherapist in Perth since 3 March 2023. 2. The applicant described how he found he had to transfer his psychotherapy treatment from Dr Diamond to Ms Masel after he had moved to Perth, which was after Dr Diamond had retired from clinical practice. In terminating his therapeutic relationship, with the applicant, Dr Diamond foreshadowed that the applicant's ongoing psychotherapeutic treatment could continue with a psychologist. 3. In the applicant's evidentiary statement, in which he essentially set out his evidence in chief, he also set out in detail his perceptions of the lessons he had learnt on the topics referred to under the subject headings appearing below. Treatment provided by Dr Diamond 1. At paragraphs [21] to [27] of the applicant's evidentiary statement, he said that in the course of his therapy with Dr Diamond over a period of about 2 years, his understanding of the importance of the professional boundary between doctor and patient had improved dramatically, and he became increasingly aware of his prior naivety, character flaws, and his vulnerabilities, centred around his feelings of self-importance, craving for accolades, admiration and acceptance by others, and the personal fulfillment and gratification he had sought and obtained from such feelings. 2. The applicant also stated, regretfully, without seeking to convey excuses, that in the course of his many conversations with Dr Diamond, he had gained a further and deepening understanding of his prior wrongful decisions and behaviours, including with regard to his failure to observe his professional obligations. 3. The applicant stated that those realisations had caused him to intensively reflect on his past behaviours which had attracted regulatory attention. He stated that Dr Diamond had helped him to develop an understanding of the expectations required of him as a medical practitioner, as well as an understanding of the professional and public importance of maintaining at all times the appropriate professional boundaries in his interactions with patients. Treatment provided by Ms Masel 1. At paragraphs [28] to [42] of the applicant's evidentiary statement, he said that in the course of his treatment by Ms Masel, which had continued on from where Dr Diamond's treatment had ceased, he has had 16 consultations with Ms Masel between 3 March and 21 November 2023, which is roughly at fortnightly intervals. 2. That treatment comprised in-depth behavioural psychotherapy sessions focussed on mindfulness, acceptance of faults, and making personal changes. He described that treatment as greatly helpful. He has come to accept that his prior faults were related to low self-esteem, a need for acceptance and accolades, and "a wandering mind and lack of mindfulness". He envisioned scope for ongoing improvements with continuing therapy and mentoring. He also stated that he now felt able to trust himself to be able to adhere to principles, having overridden his previous "misguided beliefs". 3. The applicant said that he had come to realise that in his dealings with Patient A, he had lost control of his emotions and feelings which led to him mismanaging that patient by making wrong decisions, resulting in him getting himself caught up by his personal flaws and insecurities. He expanded upon those acknowledgments as follows: "31. Ms Masel has helped me accept my faults, which has been hard, and I have been making changes. With Ms Masel's help, I perceive my faults to include low self-esteem, a need for accolades and to be liked, and an inability to be present due to a wandering mind and lack of mindfulness. I have been drawing circles recognising the distribution of power in my life as a doctor, parent, friend, community member and focusing on my position. The circle has helped me with a systemic review of where I fit in. 32. I have been learning tools which help me deal with worry. I have learned in life I can only control myself and that with Patient A I had lost control of my emotions and feelings. I could not have controlled her emotions or feelings, but I could have managed myself better. I made wrong decisions based on my desire to fit in and be liked and got caught up in them. 33. Moving forward I need to continue to develop my sense of self, trusting myself, being mindful and learn to listen to myself through therapy and allow myself to feel the feelings I have been scared of acknowledging. For example, I need to focus on the patient's needs alone and not let my own insecurities influence the consultation. 34. My goal is to live in every moment according to my values. This anchors me and can only help my future consultations with patients. I aim to be an honest, competent and trustworthy doctor as well as a good husband, father, family and community member. 35. My deep disappointment in my behaviour, including the harm I have caused to Patient A, my family and myself both professionally and personally in the past is like a wound, the awareness of which motivates me. Ms Masel has helped me to work through these emotions, thoughts and feelings and use them as tools to reinforce my learnings regarding the importance of upholding professional boundaries. 36. Through therapy I have also learnt that my coping skills in the past were maladaptive and got in the way of me being alerted to other information that was crucial. 37. Before therapy and at the time of previous complaints I was acting in a way that kept me safe. I now recognise the limitations of working like that. I can now face my challenges (fears) in a way that a healthy and responsible medical practitioner should. 38. I have developed a new sense of awareness which I am committed to maintaining by seeking peer opinions if I'm unsure of anything and maintaining my therapy which is my commitment to real awareness and meaningful change in my life and work as a medical practitioner. 39. I've learnt to take nothing and give everything and to be present. I now am confident in my abilities of reflective listening and, as a result, an increased awareness of another person/patient's reality. I am now able to be a better version of myself as a doctor. 40. These lessons I've learnt will ensure that if I am permitted to return to medical practice, I will always maintain appropriate boundaries with patients. This will be supported by ongoing professional mentorship and continuing therapy, which will ensure I will be able to nurture and maintain this awareness of self. 41. I feel that I can now trust myself to remain true to my beliefs and principles through the work I have done in overriding my earlier misguided beliefs. 42. This past year I've dealt with the weight of shame and disappointment in myself, and I am more than ever committed to work hard, I've seen the ugliness inside myself and am far more self-aware than I've ever been. I have a true insight into understanding patient needs and requirements and understand its importance." Applicant's statements of shame and remorse 1. At paragraphs [67] to [72] of the applicant's evidentiary statement, in his concluding remarks, he set out his feelings of shame, remorse, and acceptance of the criticisms of his past behaviour, his belief as to his deeper understanding of the issues and the personal failures which led to his deregistration, and his aspirational commitment to being a better doctor if permitted to return to practice, including a commitment to abide by protective conditions, if thought appropriate. 2. It is pertinent to note that at the Stage Two Tribunal hearing, the applicant acknowledged that following his treatment with Dr Diamond, he had identified various character traits in himself which had led to his inappropriate behaviour with Patient A: Health Care Complaints Commission v Segal (No 2) [2023] NSWCATOD 6, at [42]-[57]. 3. In considering that evidence, the reasons of the Stage Two Tribunal noted a number of relevant views expressed by Dr Diamond in 2022 which stand as a relevant baseline for the consideration of this application: Health Care Complaints Commission v Segal (No 2) [2023] NSWCATOD 6, at [54]-[60]. Those baseline views may be summarised as follows: 1. The applicant had an Adjustment Disorder with Anxiety and Depression as a consequence of the matters before the Tribunal; 2. He had been treating the applicant by means of psychoanalysis; 3. He had identified in the applicant some dysfunctional perceptions and attitudes, including previously unchallenged perceptions of entitlement that were reportedly part of his upbringing in South Africa, and about which he has now "gained helpful insight into these aspects of his developmental history"; 4. With ongoing psychoanalytic therapy, the applicant has continued to focus upon deficiencies regarding the soundness of his understanding of professional ethics, knowledge of codes of conduct and a deeper appreciation of the ethical underpinnings of the material and principles recorded in the applicable code of conduct; 5. The applicant had come to see the extent to which his past attitudes were held, and how they have influenced his previous aberrant professional conduct; 6. The applicant has achieved substantially improved insight into the professional issues of concern, and in relation to his ability to conduct himself professionally in his interactions with others, including having a substantially improved capacity to perceive and express genuine empathy, including an appreciation of the predicament in which the complainant (Patient A) had found herself; 7. There was strong evidence to support the notion of a shift in the applicant's mindset and attitudes that were previously expressed in more superficial and glib terms in previous counselling sessions and disciplinary hearings; 8. There has been a clearly evident underlying improvement in the applicant's insight, understanding, and acceptance of the previous Tribunal findings made against him; 9. It will be important for the applicant to continue in a psychotherapeutic arrangement with a treating practitioner, not necessarily with a psychiatrist, but with someone who understands his psychological makeup, and who will continue the process of psychotherapy; 10. Dr Diamond considered that, unlike in the past, the applicant was no longer just "paying lip service to what he needs to say to get through the complaint". 1. Those unchallenged views expressed by Dr Diamond form a convenient baseline for the consideration of the present application. Applicant's future professional aspirations 1. At paragraph [66] of the applicant's evidentiary statement, he identified tentative arrangements he has made with an established sizeable interstate group general and specialist practice, with associated complementary paramedical practitioners, where that practice wishes to expand its services to include skin cancer services and procedures and has asked him to run that aspect of the practice. He has stated that he has informed the principal of that practice of the circumstances of his medical deregistration, and his current application for re-registration as a medical practitioner. Professional mentoring from Dr Michael Levitt AM 1. At paragraphs [43] to [49] of the applicant's evidentiary statement, with regard to his mentoring sessions with Dr Michael Levitt, whom he has seen roughly fortnightly since his deregistration, he said that mentoring has continued to deepen his understanding of the doctor patient relationship and need for the maintenance of professional boundaries in an array of potential settings, both formal and informal, to avoid the blurring of such boundaries. The applicant stated that he has gained a better understanding of the need to ensure that therapeutic rapport can never veer outside the therapeutic context, and he is aware that there is a power imbalance between medical practitioners and unwell patients who are vulnerable. This portion of his statement concluded with the following text: "47. My conclusion from my work with Dr Levitt is that therapeutic rapport can never veer outside of the therapeutic context. 48. The overriding feeling I have after much time with Dr Levitt is my now deep acceptance of my prior failure to recognise inappropriate communication with Patient A and that such communication was harmful, improper and disregarded the power differential of the situation. 49. Through my work with Dr Levitt, I have developed a greater sense of humility through acceptance and understanding of flaws in my own make up. Dr Levitt helped me understand how its ok to feel the shame of my previous behaviour and its consequences and to own it. Further, that these feelings can be used as a positive driver to ensure that if I am permitted to return to practice as a medical practitioner, I will always maintain appropriate professional boundaries with my patients." Centre for Clinical Intervention: Course completed by applicant 1. At paragraphs [50] to [60] of the applicant's evidentiary statement, he set out the essence of some of the lessons he obtained from his formal engagement with an educational course recommended by Ms Masel regarding the management of unhelpful or negative thinking in the context of the personality characteristics and need for approval issues that Dr Diamond had identified to him, and the management of anxieties associated with those matters. The course was of six weeks duration: "Working with worry and Rumination". It was a group-based psychologist-run cognitive behavioural therapy course conducted by the Centre for Clinical Intervention. That course involved meditation techniques mindfulness exercises, methods for challenging beliefs and worries with the result that he feels he can control his insecurity-based behaviours and reactions with a greater insight and effectiveness than was previously the case. Other Activities and CPD courses undertaken by the applicant 1. At paragraphs [61] to [66] of the applicant's evidentiary statement, he identified some eleven educational CPD courses he completed between March and November 2023 with annexed proof of completion. He also referred to two resource books of significance he has read to enhance his personal coping skills to avoid "self-sabotage", whilst acknowledging accepting his own vulnerabilities whilst to try to improve himself for patients, friends, and his family. The applicant also identified the extent of voluntary work he has been undertaking at an aged care facility during his period of deregistration. He has also been carrying out some menial non-medical work at a medical centre where he hopes to be employed if he were to be reregistered. Evidence from treating and examining practitioners 1. In support of his application for reinstatement, in addition to the factual evidence regarding the treatment the applicant obtained from Dr Diamond and Ms Masel, he also relied upon a series of expert reports from the consultant psychiatrists, Dr Anthony Samuels and Dr Ralf IIchef. The baseline for the consideration of those reports comprises the earlier historical treatment reports and related oral evidence from Dr Michael Diamond. Dr Michael Diamond – historical treatment reports and related oral evidence 1. The applicant relied upon the historical treatment reports dated 1 and 15 February 2022 from Dr Michael Diamond which the former Tribunal had considered, as summarised at paragraphs [101] above. 2. Since Dr Diamond's retirement from clinical psychiatric practice, and since the last of his reports was issued, he has not seen or treated the applicant, hence the absence of any updated opinions from him. 3. Dr Diamond gave oral evidence at the earlier Stage 1 Tribunal hearing: Exhibit "1", Tab 24, pp 832-837. At that hearing, during the cross-examination, counsel for the respondent explored some relevant matters of history that do not have a direct bearing on the issues this Tribunal is tasked to determine as the findings of that Tribunal are not open to question in these proceedings. 4. The significance of the content of Dr Diamond's historical reports and his oral evidence given at the previous Tribunal hearing remains as a convenient and logical baseline for the consideration of the application for reregistration as identified at paragraph [118] above. 5. At this point it is relevant to refer to the historical clinical treatment input from Ms Masel, including as outlined in her oral evidence. Ms Anne Masel – historical treatment report 1. The applicant relies upon the content of the report dated 23 January 2024 from Ms Anne Masel, his treating clinical psychologist. As already observed, Ms Masel commenced her role as the applicant's treating therapist in March 2023, after Dr Diamond's role had ceased in 2022. Her report was based on the series of 21 identified therapeutic consultations she has had with the applicant between 3 March 2023 and 21 November 2023. 2. Ms Masel noted that the applicant has been committed to his treatment with her and was motivated to attend at every opportunity. In addition, she noted that the applicant had through his own initiative, attended a series of appropriate courses and mentoring meetings. She diagnosed the applicant as having symptoms which met the DSM-V diagnostic criteria for the diagnosis of an adjustment disorder, with mixed anxiety and depressed mood. She considered that the ongoing consultations should continue fortnightly. 3. In her report, Ms Masel provided an extensive commentary concerning the applicant's current situation, as summarised below: 1. In therapy, the applicant has shown his commitment to maintaining and enhancing the insights he has developed with the assistance of Dr Diamond, and in doing so, he has clearly demonstrated to her his understanding of the link between his present predicament and his past patterns of behaviour, such that she has seen and noted good maturity and understanding and effective behaviour changes, with appropriate insights gained as he had progressed through therapy. In that context, she recommended continued therapy, possibly fortnightly, to consolidate those insights and behavioural changes; 2. To her knowledge, the applicant has been compliant in taking medication for treating his adjustment disorder and anxiety and depressive symptoms as prescribed by his general practitioner, and he has achieved an increase in his psychological consciousness. 3. The focus of treatment sessions has been to find alternative ways of managing distress, stress, and anxiety, and to challenge negative factors that could operate in a self-sabotaging way, and importantly, to set boundaries; 4. The applicant has engaged enthusiastically with the techniques provided to him in therapy, and he meditates and uses the technique of mindfulness on a daily basis to distract from negative disruptive thoughts. He has learnt to use such approaches in his daily interactions such that she considers this will be a valuable resource for him in various ways in the doctor patient dynamic were he to resume clinical practice; 5. In therapy, the applicant has acknowledged and accepted that his unprofessional conduct and boundary crossing occurred in circumstances where the power dynamic of his relationship with Patient A meant that he had met his needs rather than those of his patient, where his mistakes which blurred the professional boundary was that he had lost sight of his responsibilities as a medical practitioner, with deleterious consequences for all concerned, and in therapy the applicant has expressed remorse and shame over those matters; 6. Ms Masel considered that the applicant had relevantly accepted responsibility for the deleterious impacts of the events in question. She considered that he had achieved greater awareness and was committed to learning and making relevant changes to the behaviours which have led to his predicament, including by maintaining regular resources such as counselling, peer supervision and self-monitoring; 7. Ms Masel considered that the applicant now has an awareness of the professional boundaries between himself and patients, and she considers he also has a good awareness that a lack of appropriate boundaries between doctor and patient can lead to a distorted professional relationship with deleterious consequences for all concerned; 8. Ms Masel described the upheaval and adverse consequences to the applicant resulting from his deregistration, where this has galvanised his commitment to a clear adherence to proper professional boundaries between doctor and patient. She considered that he is making considerable efforts along those lines in light of past events; 9. In the context of the applicant having been beforehand somewhat unsure of "who he was", his better understanding of boundaries and the effect of therapy and the "safe compass" of mentoring, Ms Masel's opinion was that the applicant has embraced his period of deregistration as an opportunity to re-set and reflect on the impact of his past actions and behaviour and to live with the consequences. She was also of the opinion that with the acquisition of knowledge he was not just capable of change, but that knowledge has had a relieving effect on him in now knowing what had contributed to his actions. She identified the challenge as being for him to be able to make decisions that retain his professionalism and his self-respect through clear boundaries; 10. Ms Masel concluded her report in the following terms: "Mr Segal is highly motivated, with clearly highly competent and talented skills as a medical practitioner. He has much to gain with ongoing medical work as I would think as does the community. His re -registration would serve as an extremely important and motivational resource for his recovery particularly as he has made such positive progress and changes and he would derive much professional pride and self-esteem through this decision. Mr Segal is now aware of potential blind spots in his past behaviour and he reports a clear motivation to avoid any pattern that potentially violates professional boundaries. He has shown throughout this year he is a man who can address his mistakes honestly and overtly, he has made a conscious effort to atone for these mistakes and has been committed to learning and changing his behaviour so that they do not happen again. I would support Mr Segal's re-registration as a medical practitioner if that was the decision of the Tribunal. I would propose that if that was the decision he continue to engage with his professional mentoring and therapy. This would serve to give him support and to consolidate and expand the insights and behaviour changes considered necessary to practice in the field of medicine. These are my thoughts and responses in relation to the issue of Mr Segal's re- registration application as a medical practitioner based on my discussions and sessions with him over the past nine months. I hope they can assist the Tribunal towards their decision." Ms Masel's oral evidence 1. In Ms Masel's oral evidence, she explained that the applicant's therapy, which she described as having been empirically validated, was at the mid-point, it was continuing, and there was some distance to go before it could be said to be complete: T19.33; T20.38; T21.4; T29.12; T33.46; T34.12. 2. Ms Masel designed her therapeutic sessions around the need to assist the applicant with regard to his behaviours that led to his de-registration: T 26.45. She had all the relevant records of the outcome of the prior proceedings to assist her in that regard: T 27.23. Whilst she agreed she had given the applicant a sympathetic hearing in their therapy sessions (T32.29), she rejected the proposition that she was in effect a paid friend (T31.19) or that the applicant had hoodwinked her in her sessions with him as to the progress he was making in therapy with her: T22.3. 3. The oral evidence of Ms Masel did not relevantly dilute or derogate from the opinions she expressed in her report. The qualifying comments she made in her oral evidence related to the fact that the applicant's therapy with her was necessarily incomplete, but that did not serve to invalidate the opinions she had expressed in her report. Reports of Dr Anthony Samuels, consultant psychiatrist 1. On 7 December 2023, at the request of his solicitor, the applicant was interviewed at length by Dr Anthony Samuels, a consultant psychiatrist, for the purpose of providing an expert opinion for use in these proceedings. Dr Samuels' report of the same date was in evidence. On 1 February 2024, Dr Samuels provided a supplementary report which provided clarification of his earlier report following his review of some additional documents that were provided to him for comment. 2. Dr Samuels had the benefit of comprehensively reviewing a range of material comprising the 23 May 2020 complaint by Patient A, the particular allegations she had raised against the applicant, Dr Diamond's reports of his psychotherapy treatment of the applicant, the applicant's statements, and the findings of the two Tribunal decisions which led to the applicant's deregistration, where it was noted that some allegations made against the applicant were accepted, and others not accepted. 3. Dr Samuels undertook a detailed analysis of that material, and he took a detailed history from the applicant. Those histories covered psychosocial, developmental, educational, occupational, medical, and related areas. After reviewing the factual events that gave rise to the complaint by Patient A, he reviewed the applicant's current presentation, his mental status, and then proceeded to address a series of seven questions that had posed for him to answer. 4. Significantly, after agreeing with Dr Diamond's formulation following his psycho-therapeutic treatment of the applicant, Dr Samuels said: "I concur with Dr Diamond's opinion that Mr Segal was psychologically unsophisticated and naïve, that his background medical training in South Africa, finding himself in a tight-knit Jewish community in Australia, having the need to prove himself as a migrant doctor, wanting to be liked and validated, were all significant factors in the context of this complaint. I also agree with Dr Diamond that perhaps there was an element of "titillation" and, "fascination" that led to Mr Segal becoming so involved with the patient and he does seem to accept that this was a component. It is also clear that over the years Mr Segal has probably had numerous other professional boundary violations where he has given prescriptions or assisted members of his community in an informal way. His over-familiarity and poor boundaries may have led to the two other complaints that occurred within his work practices. My impression is that these events have led Mr Segal to reflect greatly on what has occurred and that he has matured as a medical practitioner and has a much better understanding of the need and rationale for the maintenance of professional boundaries. He also appears to be finding more constructive ways to get the type of approbation that he needs outside of his identity as a medical practitioner." 1. Dr Samuels referred to the applicant as having taken courses in professional boundaries and was satisfied that the applicant was now familiar with the applicable codes of conduct and practice with regard to the maintenance of professional boundaries. He went further, and proffered the opinion that: "I do think Mr Segal has a clear understanding of the seriousness of the boundary violations, the fact that he compromised the patient's care and that there have been significant deficiencies in his practice to date. He is remorseful about the manner in which he gave evidence in the S150 hearing and accepts that he was, "ill-prepared" and lacking in insight in regard to the seriousness of the issues at the time. I think that this period of cancellation has been a time to reflect on these issues and to consolidate the gains he has made in therapy with Dr Diamond and Anne Maissel." 1. Dr Samuels concluded that the applicant has made very positive steps in addressing the issues that have brought him to the attention of the Medical Council and the HCCC, and the Tribunal. He concluded that the applicant was now suitable for re-registration, but subject to conditions. Those suggested conditions will be the subject of separate consideration at a later point in these reasons. 2. At the request of the solicitor for the applicant, Dr Samuels issued a supplementary report on 1 February 2024. In that report, he reviewed the 23 January 2024 report of Mr Masel concerning her psychotherapeutic treatment of the applicant which took up from where Dr Diamond's treatment had ceased. Significantly, he commented upon Ms Masel's interventions as follows: "Anne Masel concludes that Mr Segal has benefitted greatly from therapy, has gained insight, accepted responsibility for his behaviour, understands the impact it has had on others and has been committed to learning and changing those behaviours. She stresses that he has demonstrated an understanding of the reasons for the cancellation of his medical registration and has an increased awareness of professional boundaries. She notes that he has put in place many strategies that have been helpful, that the cancellation of his registration had a profound impact for him and his family, she commended his motivation and commitment and attitude despite some personal adversities that he has faced since that time. She describes Mr Segal as highly motivated, competent, aware of potential blind spots, and she supports his re-registration as a medical practitioner." 1. Dr Samuels was asked to clarify his views as to appropriate conditions particularly in stations where the applicant would be examining female patients. He stated his clarification as follows: "In regard to subparagraph 116(v) of my prior report I stated: "when examining or performing procedures on female patients he should have a practice nurse present at all times". I am aware there is some ambiguity in this sentence and it requires expansion. It is not my view that Mr Segal should have a practice nurse present at all times for routine consultations or examination of the skin of exposed areas, e.g. face, neck, arms or legs. I do think however that if Mr Segal is going to examine a patient in an intimate area of the body, in the region of the breasts or the pelvic area or thighs, then it would be prudent to have a practice nurse present. Again, in regard to performing simple procedures, e.g. cryotherapy, application of topical treatments for superficial lesions on the face or scalp, again I would not see it as being necessary to have a practice nurse present. I do think it would be prudent if Mr Segal is doing a more complex surgical procedure to have someone present, just logistically, to pass sutures, implements and to provide additional support if there is a medical emergency e.g. hypotension. I am however happy to leave this determination to Mr Segal and the practice principals who would be best placed to understand the requirements in these types of situations. However, once again, if he is removing lesions from more intimate areas of the body, e.g. breasts, pelvic area or upper thighs, it remains my view that it would be prudent to have a practice nurse present. I hope this gives more clarity to the recommendation I made in my prior report." Dr Samuels' oral evidence 1. In his oral evidence, Dr Samuels explained the process whereby he prepared his reports. He was taken to a number of aspects of his reports which the respondent sought to harvest as criticisms of the accuracy of the applicant's history as was provided to Dr Samuels. 2. When those matters were reviewed by Dr Samuels, he provided reasonable qualifications to those aspects such that we consider they did not constitute a relevant basis for attacking the credibility of the history which the applicant had provided to Dr Samuels: T108.19; T110.5; T110.25; T111.43. Significantly, his oral evidence did not relevantly dilute or derogate from the opinions he had expressed in his report as cited above. Dr Ralf Ilchef – reports - Consultant psychiatrist 1. On 17 April 2024, at the request of the Health Professionals Councils Authority, the applicant was interviewed by Dr Ralf Ilchef, a consultant psychiatrist. Dr Ilchef reviewed a comprehensive portfolio of 49 identified documents which he listed in his report dated 25 April 2024. Broadly, these corresponded with the materials that have been tendered in evidence at this Tribunal hearing. Dr Ilchef' report was based on the notes he took when he interviewed the applicant. Those typed notes, in the form of an abbreviated aide memoire, were also in evidence. 2. In his report, Dr Ilchef recorded a summary of the applicant's personal, developmental, family, health, and professional background. He noted the financial and other effects that professional deregistration had on the applicant, and the disruption to his family in relocating to live in Perth after media publicity, "for a new start". 3. Dr Ilchef noted the substance of what the applicant disclosed to him in consultation. In essence, the applicant had acknowledged to him that he had "stuffed up" in that he had engaged in inappropriate behaviour on account of his own vulnerabilities, but adamantly denied he had ever behaved in a sexually inappropriate manner. He attributed the allegations to the contrary that have been made against him to have been due to misunderstanding or malice. 4. Dr Ilchef recounted the applicant's account of his complaints history. The first, in about 2012, being a complaint by a receptionist over a prescription he had issued to her where she had mental health problems. The second was over a resolved allegation concerning whether or not he had incorrectly removed a lesion. The third was "a bad episode with a clinical assistant who had said [he] had rubbed up against her" where this had resulted in a criminal charge that was dismissed, and where after the dismissal, he had brushed the incident off "without true insight". The fifth, and most serious, related to the applicant's dealings with Patient A. 5. In relation to that fifth matter, Dr Ilchef recounted the applicant's account as involving communications only, without any physical component, referring to Patient A as a sex worker who had been regaling him with the details of her sexual encounters with "prominent people". Dr Ilchef noted the applicant's concession of inappropriateness and recorded those as events as the applicant "enjoying the soap opera part of it, the titillation", noting that it was "so preposterous, [and] inappropriate". The applicant had stated to him that he "endured [the process] because of [his] insecurities, [his] need to be liked. It was like a drug." Significantly, Dr Ilchef noted the applicant had told him Patient A had berated him for telling others that she was a sex worker, and had said to him that "she would get [him] back". 6. Dr Ilchef said he had asked the applicant what he had learned from those events, and recounted that the applicant had told him he had learned not to provide his phone number to patients, not to give advice outside of the clinical setting, to be aware of boundary issues, and to recognise that hugging was a boundary issue, and to exercise more insight, to focus, and to recognise the importance of mentoring and to be patient-centred, and to receive the ongoing benefit of mentoring and psychotherapy. 7. Dr Ilchef noted the applicant's mood was euthymic, and he agreed with Dr Diamond's assessment that the criterial for diagnosing a mental illness was not met, and that instead, there was an adjustment disorder with anxiety and depressed mood at times relating to the present proceedings. 8. Dr Ilchef then proceeded to address and to answer a series of questions posed to him by the Council. In his answers, he indicated that: 1. The applicant had found it almost impossible to find work since his deregistration; 2. Whilst the applicant did not agree with all of the previous Tribunal's findings, he accepted that those findings had been arrived at through an exhaustive and fair process; 3. The applicant had clearly done a lot of work on his vulnerabilities, including improving his understanding of professional boundaries, and that his statements "regarding this seem sincere", and that the applicant had acknowledged that he had previously brushed off earlier allegations "without true insight"; 4. The applicant's statement of contrition and personal responsibility, in his assessment, appeared to be sincere insofar as he could assess that; 5. He concurred with Dr Diamond's assessment. He stated that the applicant "does appear to have done as much as can reasonably [be] expected regarding his self-awareness and learning about boundary violations." He noted that Mrs Masel's report was supportive, whilst noting that her report was "almost as a character reference" and did not address the question of "recidivism", and that he would be more comfortable if the applicant were to be reviewed by "a more tough-minded and sceptical expert in boundary violations on an ongoing basis and for an extended period". Ultimately, that critical description of a character reference was considerably softened in Dr Ilchef's explanatory oral evidence; 6. He reiterated his agreement with Dr Diamond's summary assessment, including that the applicant had a deepening understanding of his role in the circumstances that had given rise to earlier complaints, and although the applicant had emphasised the effect that the events had had on him and his family, he did go on to say he felt sorry for Patient A. That sentiment related to an earlier comment where the applicant was quoted as saying: "I had no idea how much I had fucked up … I feel sorry for her, upset I wasn't more patient-centred"; 7. He agreed that Dr Diamond's summary was reflective of the history provided by the applicant, and appears to be fair and balanced; 8. In a combined answer to questions 8 and 9, on the question of possible reinstatement, he stated that: "If this were to occur it would be helpful if [the applicant] were also being seen by a psychiatrist or GP psychotherapist, who would have more familiarity with boundary issues seen in medical practice than a therapist from another discipline. His work with Dr Diamond appeared productive and a similar relationship going forward would be optimal." 1. Dr Ilchef noted that the applicant had told him the period over which he obtained treatment from Dr Diamond had been something of a turning point for him in that he had changed the way he saw himself, and that he "was not the person [he] was then". 2. Dr Ilchef noted the applicant's account of his treatment with Dr Diamond, his sessions with his treating psychologist, Ms Masel, together with the support of his family, the professional mentoring he has received, and his non-medical volunteer work at an aged care facility in his new community setting in Perth. 3. The impression conveyed was the applicant had embraced relevant life-changing attitudinal changes. Dr Ilchef also recounted the following history he obtained from the applicant: "He told me he had spent 16 months with Dr Diamond discussing professional boundaries regarding his behaviour and finally truly understanding the doctor patient relationship with it's inherent power differential. He was seeing a psychologist at the same [time], a behavioural therapist, Mrs Anne Masel "under a banner of mindfulness", learning as he put it to be true to his values, attributes, principles. …" Dr Ilchef's oral evidence 1. In his oral evidence, Dr Ilchef qualified aspects of his written report. Whilst he acknowledged that he was not a medico-legal psychiatrist (T101.2) his overall professional assessment was that the applicant as unlikely to repeat his prior offending behaviour: T102.2. He qualified some earlier remarks he had included in his report which might have given the impression that that Ms Masel's approach to the assessment of the applicant was uncritical. He said that her notes were impressively thoughtful, very well laid out, and comprehensive (T97.50; T98.42) and indicated they had been written from the perspective of a supportive therapist: T 99.4 – T99.18: T100.11 – T100.18. Those remarks represented a considerable softening of his prior comment on Ms Masel's repor to suggest it had a character reference-like appearance. Additional documents relied upon by the applicant 1. The applicant relied upon a number of additional supporting documents as summarised below. Dr Michael Levitt AM – mentoring report 1. The applicant relied upon a letter dated 14 November 2023 from Dr Michael Levitt AM, an eminent surgeon, a former Chief Medical Officer for Western Australia, and a current Clinical Member of the Medial Board of Western Australia, and a mentor for the applicant since May 2023. Dr Levitt provided the following relevant observations: "These meetings have been semi-structured in as much as we have endeavoured to cover some key topics while allowing time for discussions of a more philosophical nature; at times, these have been very much about the way Shaun's circumstances have altered his understanding of his previous practice of medicine, including his awareness of aspects of his own personality and nature. The formal matters that we have discussed included: ▪ The importance of medical documentation ▪ Informed consent ▪ Billing and item numbers ▪ Open disclosure ▪ Trust and integrity ▪ Working as a team ▪ Dealing with adverse outcomes ▪ What our patients want from us ▪ What our colleagues want from us From the outset, it was apparent to me that Shaun regarded the relationship he had with this particular patient (and the protracted exchange of SMSs and phone calls in which he had engaged with her) that led to the cancellation of his registration as inappropriate and entirely of his own making. Likewise, it was apparent that he also regarded it as his direct and personal responsibility to understand the reasons behind his choices and to work hard to correct them. Specifically, he identified the following "themes". ▪ Clarity about what constitutes a proper doctor-patient relationship; ▪ An appreciation that patient behaviours should be assessed in light of the possibility that those behaviours reflect the patient's ill-health and need to be responded to as such; ▪ The criticality of accurate and timely documentation and the fact that this is not a matter of breaching patient confidentiality; ▪ Humility in acknowledging his own flaws and, especially, in his previous inability to distinguish between the personal reward gained from his interactions with his patients and true therapeutic rapport; ▪ The overriding issue that a doctor's focus must always be on their patients and not on themselves. Without doubt, cancellation has had a profound impact upon Shaun. He has clearly grappled with the disgrace as well as with the financial penalty. But my involvement with Shaun commenced at astage by which time Shaun's response to the impact of his cancellation had already matured beyond self-recrimination and shame to a more sophisticated appreciation of and response to his own weaknesses. He demonstrates great self-awareness and a determination not to be defined by those flaws. Rather, he appears keen to learn from this episode - as well as from the various courses and programmes he has undertaken - and to prove to himself that he can exhibit compassion and expertise while remaining completely focused on his patients' best interests. From my perspective, Shaun now displays an admirable level of self-awareness and a balanced commitment to returning to high quality clinical practice. I would strongly support his plan to return to registration as a medical practitioner and would warmly welcome him as a colleague." Dr Leon Levitt – general practitioner – opportunity to practise if reinstated 1. On 12 January 2014, Dr Leon Levitt, a Perth general practitioner who is the brother of Dr Michael Levitt, wrote a letter of support for the applicant in his application for reregistration: Exhibit "A", Tab12, pp 142 – 143. In that letter zDr Levitt acknowledged having read the background materials which provided details of the applicant's the disciplinary history of the applicant. 2. Dr Levitt provided a summary of his own lengthy and impressive medical career as a general practitioner obstetrician, including in various leadership roles, and his present situation as the owner and founder of two medical practices, in particular, the Baby Steps practice, which operates as a multi-disciplinary clinic where multiple practitioners provide their professional services in an administratively well-supported and ethical environment. 3. Conditional upon the applicant being re-registered, Dr Levitt has offered the applicant a well organised place in which to practice with appropriate mentoring, administrative support, collegiate support, professional development opportunities, and a potential for patient referrals relevant to his expertise in surgical dermatology. 4. Dr Levitt has had the opportunity of spending significant time with the applicant since meeting him in early 2023. Over time, he has given the applicant the opportunity to observe the running of the practice. It is impressive that he has expressed confidence that the applicant would find a safe and ethical place in which to practice in that environment if he is reinstated. Dr Levitt's evidence was not challenged in any respect. Ms Michelle Bredemeyer – practice manager of Dr Levitt's practice 1. On 14 January 2024, Ms Michelle Bredemeyer, the practice manager at Dr Levitt's Baby Steps practice provided the applicant with a letter of support to be tendered in evidence in these proceedings: Exhibit "A", Tab13, pp 144 – 145. 2. Ms Bredemeyer's letter serves as complementary reading to the above letter from Dr Leon Levitt. She described the Baby Steps practice in detail, comprising 11 general practitioners, and 18 allied health practitioners. She indicated that if re-registered, the applicant would be able to work in that practice for full days, 5 days per week. 3. Ms Bredemeyer's letter of support is founded upon her 6 months acquaintance with the applicant in circumstances where he has spent time building anticipatory relationships with other practitioners and staff at the Baby Steps premises, and where he has provided unpaid volunteer assistance in moving the practice premises. As practice manager she proffered the opinion that the applicant would be an integral and valuable addition to the practice, assuming reregistration. Her evidence was not the subject of challenge. 4. Significantly, the applicant's evidence on his attendances at the Baby Steps practice was not the subject of material challenge. Applicant's submissions 1. Senior Counsel for the applicant provided written submissions which focussed on the issues calling for decision and also made supplementary oral submissions by reference to the evidence. 2. In essence, those submissions engaged with the applicable legal principles cited at paragraphs [23] to [24] above, as well as the applicant's evidence, the evidence of his referees, and the medical evidence cited above. 3. The substance of those submissions was to the effect that the applicant has appropriately undergone remedial rehabilitation, he has satisfactorily addressed his prior professional failings and flaws which were the subject of previous adverse Tribunal findings, such that he is now (subject to appropriate conditions), fit to be re-entrusted with the responsibilities and privileges that accompany registration for resumed medical practice without any appreciable risk of repeating his earlier acknowledged misconduct. 4. Those submissions pointed to the evidence of relevant changes in the applicant's outlook, his insights, his awareness of professional boundaries, the progress he has made with treatment, and his commitment to mentoring. Accordingly, it was submitted that evidence represented a significant turning point for the applicant which should operate to displace the previous adverse findings made in the earlier Tribunal decisions. 5. The applicant's submissions acknowledged that if he were to be reinstated to practice, he must be subject to a series of conditions that would operate to ensure the protection of the health and safety of the public. 6. On the applicant's behalf it was submitted that at this time, the Tribunal would be comfortably satisfied that, unlike the applicant's identified past offending conduct, in the future, it is likely he will act and conduct himself in an appropriately trustworthy, ethical, honourable and safe manner in accordance with the high standards and responsibilities of the medical profession: Re Mansour Zaidi [2006] NSWMT 6, at [42]. Respondent's submissions 1. At the conclusion of the evidence, the respondent, a presumed model litigant, placed its counsel in the embarrassingly unenviable position of having to advance a pre-conceived position that did not fully reflect the evidence because of the unavailability of updated instructions that paid due regard to the effect of the evidence once it was concluded. 2. Regrettably, this was in circumstances where the respondent had the opportunity to test the evidence by cross-examination, where serious personal and professional criticisms involving dishonesty were levelled at the applicant. 3. At the conclusion of the evidence counsel for the respondent recognised the inherent difficulty that had arisen in that regard and sought an adjournment for one week to enable updated instructions to be obtained from the Medical Council: T113.33 – T116.31. That application was opposed. 4. The application for an adjournment was necessarily refused because to accede to it would have been inconsistent with the overriding mandatory requirement of s 36(1) of the NCAT Act, which identified the guiding principle to be applied to the proceedings, namely, that they be conducted in a manner that was just, quick, and cheap, also in accordance with the guiding principles found in s 3A(2)(a) of the National Law which requires that the proceedings be conducted in an efficient, effective and fair way. 5. In those circumstances, proper regard had to be given to the circumstances of the privately funded applicant, who has been unemployed since 1 February 2023, and who had incurred significant personal expense in travelling to the hearing from interstate, in circumstances where significant legal expense had also undoubtedly been incurred. 6. Following the refusal of the application for an adjournment, the respondent was required to proceed as instructed. Accordingly, submissions were made opposing the application for reinstatement. In recognising the respondent's predicament, leave was given to within seven days file alternative submissions if then so instructed: T134.35. 7. In opposing the application, the respondent's submissions drew the attention of the Tribunal to the essential issues that must be addressed, as already summarised at paragraphs [13] to [17] above. 8. The respondent's written submissions, between paragraphs [37] – [62], drew attention to the requirements of s 163C(C) of the National Law which mandated that the Tribunal also consider events that have emerged since the applicant was deregistered. 9. On the basis of that latter provision the respondent made submissions attacking the credit of the applicant, as follows. 10. In particular, the respondent placed much emphasis on the circumstantial evidence of website and social media postings on Facebook, Instagram, and LinkedIn, to argue that the applicant was continuing to actively "hold himself out as a doctor" by his online presence, and in doing so, was in breach of the protected title provisions comprising s 113 and s 116 of the National Law by implying he was licensed to practise medicine when he was not. 11. On the basis of those arguments, the respondent made the rolled-up submission that those circumstances were "reflective of dishonesty and/or disregard for and dismissiveness of the nature and the consequences of the Tribunal's decisions" thus raising the question of "whether the applicant can now be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession". (Emphasis added). 12. The respondent's submissions also went on the assert that the applicant's "website and social media information raises substantial concern as to the applicant's preparedness to deceive the public, to hold himself out as a medical practitioner, and consequently, his honesty and integrity and whether he is a fit and proper person to be reinstated as a medical practitioner." 13. The respondent's submissions drew upon the details of the applicant's prior disciplinary history to argue, in effect, that from those events, it appears the applicant's history of significant events, including criminal charges, did not seem to have triggered substantial behavioural change in the applicant such that …"The Tribunal could not have the requisite high degree of confidence that the applicant will not commit the same behaviours as found by the [previous] Tribunal in the future, given his previous professions of change and understanding have been demonstrably unreliable." 14. The respondent also made oral submissions which sought to attack the credibility of the evidence of the applicant. In doing so, controversially, the respondent submitted that the applicant's evidence on some matters of dispute required corroboration: T120.49. 15. Those matters, and the respondent's selection of elements of the evidence from prior Tribunal proceedings and from the medical reports, led the respondent to make the primary submission that the application for reinstatement should be refused pursuant to s 163B(1)(a) of the National Law, and that a further non-review period of 12 months should be imposed. 16. After the proceedings had concluded, pursuant to leave granted, the respondent in effect forwarded a further submission framed in the alternative, suggesting that if the applicant was to be reinstated, specified conditions ought to be imposed on his practice. Applicant's submissions in reply 1. In submissions in reply, Senior Counsel for the applicant traversed and refuted the respondent's submissions which criticised the applicant's credit as a witness. Those refutations will be identified in the consideration that now follows. Consideration of issues raised 1. Having due regard to the evidence and the submissions of the parties, our consideration of the issues raised by this application proceeds in the following sequence: 1. Relevance of and weight to be given to the newly emergent complaint alleging that the applicant has inappropriately used a protected title. 2. Credit findings concerning the applicant's evidence. 3. Applicant's acceptance and insight concerning previously identified flaws and prior boundary crossing conduct. 4. Whether the health and safety of the public would be placed at undue risk if the applicant were to be reinstated. 5. Conclusions concerning issues requiring determination. Alleged misuse of a protected title – new complaint 1. Pursuant to s 163C(2)(a) of the National Law we are required to consider the newly emergent complaint which raises the allegation that the applicant has been misusing a protected title contrary to law. 2. The respondent's reliance on that fresh complaint as raised in these proceedings to criticise the applicant is a matter capable of being determined at an abstract level as a preliminary matter according to uncontroversial legal principles without reference to the applicant's credit as a witness. 3. For the reasons that now follow, we consider the respondent's submission based on that fresh complaint concerning the alleged misuse of a protected title to be problematic on several levels. 4. First, there is no reliable evidence to positively prove that the applicant was either directly or indirectly, responsible for those internet postings. The criticism of him as outlined in the respondent's submissions summarised at paragraphs [167] to [168] above must therefore be seen to founder at this first hurdle. Whilst the applicant has in effect been required to prove a negative proposition, properly understood, the respondent has failed to prove the positive propositions inherent within upon the newly emergent complaint. 5. Secondly, other than by impermissible speculation, there is no proper foundation in the evidence from which to infer that the applicant was either personally or vicariously responsible for those internet postings. Factual findings cannot be reliably based upon impermissible speculation: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19, at 358; following Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, at 5. 6. Thirdly, it is procedurally unfair and inappropriately repugnant to well settled legal principles that the respondent should seek to reverse the onus of proof of fact in issue to require the applicant to prove a negative proposition, namely, that he has not committed a criminal offence contrary to the provisions of s 113 and s 116 of the National Law. 7. Fourthly, where a prosecutor, here the respondent, alleges that a crime has been committed, here potentially cumulatively carrying a maximum fine of $60,000 and up to 3 years imprisonment for each offence, it hardly needs stating that is incumbent on the prosecutor to provide precise particulars that conform with the terms of the statute by which the crime is defined. Instead, here, there is a disjunctive mismatch between the terms of the complaint and the terms of the statute. 8. Fifthly, when the terms of the complaint (alleging the applicant was "stating that he is a doctor" and that he has been "masquerading as a doctor") are compared to the multiplicity of specific and alternative statutory elements of the offences alleged and which are required to be proven, namely alleged breaches of either s 113(1)(a) and (b), S 113(2)(a) and (b) or s 116(1)(a), (b), (c) and (d), and s 116(2)(a), (b), (c) and (d) of the National Law, that disjunctive disconformity of language cannot properly form the basis of an adverse finding of criminality against the applicant. 9. In that sense, from the perspective of procedural fairness, we cannot be comfortably satisfied on the balance of probabilities that the applicant was in breach of those statutory offences concerning the misuse of protected titles, recognising and applying what was said in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, at [126] to [128], which discussed and explained the limited but analogous use of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, at pp 358 – 363, in relation to the task of fact finding in NCAT cases. 10. Sixthly, where in cross-examination of the applicant, the prosecutor, here, the respondent, did not raise any direct allegation of a breach of any of the above statutory elements, it would be procedurally unfair, and contrary to the well settled rules of fair play in litigation, to make submissions to assert to the contrary: Browne v Dunn (1893) 6 R 67, at pp 72 – 73; Allied Pastoral Holdings Pty Ltd v Commissioner for Taxation [1983] 1 NSWLR 1, where in the latter case, at p16, it was stated that: "It has … always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the evidence sought to be led. That rule of practice follows from what I have always believed to be the rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn." 1. Relevantly, in this case, there is a mismatch between the content and the tenor of the respondent's submissions as summarised at paragraphs [166] to [168] above and the cross-examination of the applicant on what role, if any, he might have had in posting the material in question on the internet. 2. The inescapable conclusion is that there is no reliable evidence to rationally base a suggestion that the applicant had either taken, misused, or held himself out as having and using a protected title or that he was "masquerading as a doctor", either contrary to the provisions of s 113 and a 116 of the National Law, or otherwise, as asserted by the terms of the most recent complaint. 3. Accordingly, pursuant to s 163C(2)(a) of the National Law, having considered the allegations raised by that newly emergent complaint, we are compelled to conclude that the matters raised by that new complaint cannot be given any determinative weight as against the applicant in his pursuit of the present application. Credit findings 1. The applicant was the only witness who gave oral evidence on factual matters at the hearing before this Tribunal. As that factual evidence was not the subject of contradictory evidence or relevant challenge, it is pertinent to observe that the applicant's evidence was neither inherently nor glaringly improbable. 2. Notwithstanding that observation, in oral submissions, the respondent repeatedly submitted that the applicant's evidence on material matters should be viewed with caution and not accepted without corroboration: T120.49; T121.9; T122.14; T123.34. 3. The submission suggesting that corroboration of the applicant's evidence was required should not be accepted because it seeks to impose a false standard to the assessment of the applicant's honesty and sincerity on crucial matters requiring proof, particularly where the respondent's credit challenges related to peripheral matters that were open to interpretation. 4. In the course of exchanges during oral submissions, the respondent ultimately accepted the proposition that corroboration was not the relevant standard of proof in this case: T122.12. 5. On the crucial evidentiary questions, no material challenge was made to the applicant's evidence concerning his claims of having acquired remedial insight into his personality issues and his insight into past actions of concern which led to his deregistration; his present understanding of professional boundaries according to the applicable professional code of conduct, and generally; his present understanding and empathy for his former patient, Patient A; his expressions of sincere remorse and insight on those matters; and his reported feelings of regret and empathy with regard to the position of Patient A. 6. Similarly, the applicant was not challenged or contradicted as to the sincerity or the genuineness of his evidence concerning the remedial efforts he has pursued through focussed psychotherapy over a considerable period of time. Nor was he challenged on the genuineness of his stated reflections and how he has applied the lessons learnt during his period of deregistration. Nor was he challenged with regard to the educational and professional development courses he has undertaken aimed at bettering himself and readying himself for a return to appropriate medical practise. 7. In light of the unchallenged evidence of Dr Diamond, Dr Samuels, and Dr Ilchef, each of whom are skilled psychiatrists and trained professional observers adept at applying appropriate clinical cynicism where appropriate, there is little room for doubt as to the veracity and the sincerity of the applicant's statements regarding those matters. 8. In our view it is highly unlikely that any disingenuity on the part of the applicant, if present, would have escaped the critical attention and acumen of those experts. That view is reinforced by the evidence of Ms Masel, whose considered professional opinion was that the applicant had not hoodwinked her in his expressions of regret and remorse over his past unprofessional behaviours which has led to his deregistration: T22.3. 9. Ms Masel was in a reasonable and ideal position to make that observation given the extent of her clinical exposure to the applicant over a significant period of time. Her view in that regard was not challenged. 10. Whilst the respondent raised a number of matters with the applicant in cross-examination, presumably aimed at challenging the credibility of aspects of his testimony, when those matters are considered individually and as a whole, they were generally limited, and related to non-determinative matters, as follows: 1. The semantics of an historical account of how he had described Patient A to Dr Ilchef, namely whether he had referred to her as a prostitute or a sex worker to describe his informed belief as to her vocation: T40.45. Both of those descriptions involve legitimate use of the lexicon and neither are necessarily pejorative. 2. The semantic distinction he made in his historical account of the prior Tribunal proceedings, where he was noted to have told Dr Ilchef that he had been found guilty of professional misconduct, but not guilty of sexual misconduct, the latter qualification being in the sense of having had a physical relationship with Patient A, a matter which he consistently denied: T41.1 – T41.10. That distinction made by the applicant was not unreasonable or misleading in the circumstances. 3. He confirmed his belief that Patient A had lied to her parents about having had a sexual relationship with him: T42.45 - T43.2. He provided a reasonable basis for the foundations of that belief, which was not challenged or contradicted. 4. The semantics of his description to Dr Ilchef concerning the composition of the panel of a previous Tribunal hearing where there was scope for variation between what was said and what Dr Ilchef had actually recorded in his notes. Dr Ilchef fairly conceded that point: T45.45 – T47.50. 5. The content of postings on social media was explored at some length regarding questions concerning whether he had used the protected title of doctor, contrary to s 113 and s 116 of the National Law, and with regard to his efforts at seeking to obscure, disguise or hide those references as they might appear on algorithmically curated or guided Google searches of his name and former vocation: T 48.41 – T 64.39. The implied requirement that the applicant had to prove that the postings in question were not of his making is an incorrect approach. 6. The semantics of an element of his historical account concerning the frequency or pattern of his consultations with Ms Masel, and whether they were properly described as having weekly rather than fortnightly, as was recorded in one of the medical histories in evidence: T64.41 – T65.7. That evidence involved generality and not specificity. In that context, the criticism was picayune and went nowhere. 7. The semantics used by Ms Masel when she constructed a multi-faceted clinical note as recorded in her consultation notes, where he was unable to explain why she had used the word "lied" as it appears in her notes. The matter went nowhere as the question was ultimately withdrawn: T68.44 – T 69.12. It was not suggested to the applicant that his historical descriptions were untrue. 8. The accuracy of a factual summary, not prepared by the applicant but by Dr Samuels, of the described detail and the outcome of a previously dismissed complaint concerning events in 2013 involving allegations over whether he had in a social setting kissed an employee goodbye on the cheek or the lips (T71.6 – T75.38) cannot be a legitimate source of criticisms as to credit in that context: Mason v Demasi [2009] NSWCA 227, at [2]. 9. His acknowledgment to Dr Samuels that at the time of his admittedly inappropriate sexualised conversations with Patient A, he had a very limited understanding of professional boundaries (T 78.21) was a fair concession which comprised the baseline for assessing the remedial steps he has since undertaken to address that deficiency. 10. The question of how Patient A had obtained his mobile telephone number was explored. The effect of that questioning was that whilst he respectfully accepted the previous Tribunal's decisions as having been open on the evidence, he continued to dispute as mistaken, the history as recorded by Dr Diamond to the effect that he had given Patient A his mobile number: T 81.31. The previous Tribunal finding does not preclude the applicant from holding a rationally different view. The critical point here is that he did not seek to cavil with that adverse finding. 11. He was questioned about the frequency of his attendances at the newly minted practice premises of Dr Leon Levitt where he had provided some physical assistance with setting up those premises where he was hoping to find a place from which to practise if re-registered: T 82.30 – T 83.21. There was no suggestion that in those circumstances, contrary to law, he was carrying on any form of medical practice at those premises. 1. In our view, those challenges, when taken individually and in aggregate, involved peripheral matters which cannot and do not serve to materially detract from the credit or the reliability of the applicant's evidence on the critical issues calling for decision as identified at paragraphs [14] – [17] above. 2. For completeness, in light of the newly emergent complaint concerning the results of internet searches of the applicant's name, it is necessary to examine the evidence of the applicant's internet profile as this has been raised by the fresh complaint to determine whether it should be viewed as a valid criticism of the applicant in this context, having regard to the circumstances in which that material came to light. 3. It is sufficient to say that there is no evidence that the applicant had either created or generated the material in question. The respondent cannot legitimately seek to reverse the onus of proof in that regard. The unchallenged and not otherwise improbable evidence is that the applicant has taken reasonable steps, including by paying people whom he thought had the appropriate expertise, to try to reduce the prominence of his profile on Google searches, and to try and hide those references when searches are conducted. 4. It was not incumbent on the applicant to call evidence on those matters in order to seek to avoid an adverse inference on that topic as there was no basis for an expectation that such action would be called for particularly as corroboration was not the required standard for assessing that evidence: Jones V Dunkel [1959] HCA 8; (1959) 101 CLR 298, at p 313, as applied in JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd [2003] NSWCA 66, at [24]. 5. There is no reliable evidence to suggest that it was within the applicant's power to remove the material in question from the internet. Absent expert evidence on this point, it cannot be reasonably assumed that he had that capacity. Expert evidence on how the intricacies of internet search algorithms work and are curated would be required to either confirm or negate that proposition. 6. Plainly, in the described circumstances of the short notice given of the further complaint, the applicant has not had a procedurally fair opportunity to fully meet and deal with that late emergent evidentiary matter. In the circumstances, any implied criticisms of him would be unreasonably prejudicial because of inherent procedural unfairness. 7. Absent such evidence, and absent reasonable notice from the respondent indicating the material in question would be seriously raised and relied upon at the hearing as a valid criticism of the character of the applicant, shortly stated, it would be fundamentally and procedurally unfair to place reliance on that material in the circumstances in which it came to light. In the emergent circumstances, it cannot be given persuasive weight on the question of the applicant's character, credit, or his fitness to practice. 8. Before leaving the topic of the respondent's submissions on the subject of the material found on the internet, consideration of a confounding and confusing feature of the respondent's submissions is required, as cited at paragraph [167] above, where the respondent submitted that the applicant had been dishonest "and/or" had a disregard for, and was dismissive of, previous Tribunal decisions. 9. That submission must be seen to have been based on a flawed construction as to the significance of the material posted on the internet. That analysis and construction has been rejected as already explained above. 10. At best, the criticism of the applicant based on an "and/or" formulation is meaningless and confused because the term "and/or" invokes the bastard or illegitimate conjunction: See Vaccaro v MLC Limited [2016] NSWDC 85, where at [10] the following extract appears: "The use of the loosely ambiguous term "and/or" has been authoritatively described elsewhere as the "bastard conjunction" that is to be regarded as being unacceptable in pleadings due to its vagueness and scope for confusion: St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480, at [11]; following Bonitto v Fuerst Bros & Co Ltd [1944] AC 75, at p 82. The use of that conjunction could wrongfully lead the reader to assume it involves causation when all it achieves is obscurity: Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711, at p 716. …" 1. If the illegitimate conjunction has no place in a pleading it is equally unacceptable in submissions as to credit where greater precision is required. In this case the rolled-up use of that illegitimate conjunction as appears in the respondent's submissions in the form of an advocate's flourish, unsupported by cogent evidence, suggesting that the Tribunal should make an adverse credit finding as to the applicant's character, is unjustifiable. 2. On the issue of the applicant's credit, we consider that there is no sound basis for the submitted conclusion to the effect that the applicant has been dismissive of previous Tribunal findings. The tenor of his evidence (of his consistent attention over time to reflection and therapy) and his statements suggest otherwise, notwithstanding that he holds an opinion that one of those findings on a tangential matter of history was based on his belief that there was an erroneous record of an item of history, as noted at sub-paragraph (10) of paragraph [196] above. 3. The submission to the effect that the applicant's past disciplinary history reveals a pattern of flaws that should preclude reregistration because of the risk of recurrences of the described behaviours should not be accepted. This is because that submission is founded upon a collage of lumped together items of history where a significant number of those matters were either unsustained or did not result in adverse findings, as recorded at paragraph [49] above. 4. Furthermore, whilst a finding to that effect might have been available at a previous Tribunal hearing, it should not be accepted in this context because to do so would be to ignore and not pay due regard to the unchallenged evidence of the applicant's extensive remedial work which he has thus far successfully undertaken through reflection, treatment, and the modification of his prior attitudes. 5. Our task in this instance is not to make findings that might have been available to the previous Tribunal, but rather, to determine whether the applicant has provided reliable evidence which now serves to displace the previous adverse findings which led to his deregistration: s 163A, s 163B and s 163C of the National Law (NSW). 6. For the above reasons, we consider that the respondent has failed to make good its credit attack on the reliability of the evidence of the applicant. The applicant's evidence on the matters calling for decision therefore should be accepted on the issues calling for decision in these proceedings. Applicant's acknowledgments and insight regarding past flawed conduct 1. The applicant has acknowledged and accepted ownership of his past flawed professional behaviours. That acknowledgment appears in his evidentiary statement and in his oral evidence. 2. The central focus of those acknowledgments concerns the applicant's previous attitudes, his previous communication style, and his limited insight with respect to the professional boundary that exists between doctor and patient. The applicant has accepted that his past behaviours which were the subject of the prior Tribunal hearings involved unacceptable conduct on his part such that his deregistration was justified. 3. The applicant stated that the disciplinary process has been a sobering experience for him. He has expressed shame, embarrassment and deep remorse over those events. He has also expressed empathy for Patient A for the damage she has incurred as a result of his boundary crossing behaviour. 4. The investigation process and the Tribunal hearings have caused him to take stock and to seriously reflect on the events which have led to his deregistration. With the aid of intense therapy, first from Dr Diamond, and continuing with Ms Masel, he reached a turning point in the course of that treatment, and he has remedially confronted those events and undertaken a personal journey of reformation to effect change in his outlook, attitudes and behaviour. 5. In the result, which has come at a great cost to him, he has acquired appropriately changed perspectives concerning the duties and the obligations to be observed by medical practitioners towards patients. 6. Those perspectives have caused him to reflect and undertake honest reappraisal to modify his prior attitudes and personal shortcomings in a positive way, and in that process, he has candidly confronted his shortcomings and the poor decisions he made which led to his boundary crossing behaviour and his deregistration. He has shown diligent commitment and appropriate dedication in his engagement with those remedial efforts. 7. In that process, insightfully, he has identified a sense of disappointment in himself for the problems that followed his misconduct. As a result, with the aid of therapy and the support of his family and mentoring, he has developed a new and positive sense of self-awareness. He has made meaningful changes to his prior attitudes and his previously misplaced sense of entitlement. 8. The applicant's evidence and acknowledgments along those Iines, which were not materially challenged either as to veracity or sincerity, bespeaks true insight into past wrongful behaviours and also indicates that he has learnt the appropriate lessons which will serve to positively guide his future conduct. 9. The applicant has been extensively examined over the course of time from different perspectives by Dr Diamond, Dr Samuels, Dr Ilchef, and Ms Masel. The summary of the evidence of Dr Diamond as set out at paragraph [101] above is confirmatory of the applicant's evidence of a change following therapy. The same applies to the evidence of Ms Masel as summarised at paragraphs [113] to [118] above. That body of evidence is supportive of his reinstatement. 10. On reviewing the body of evidence outlined above, we are comfortably persuaded by that solid and substantial evidence, that by his remedial efforts, the applicant has adequately addressed and discharged the heavy onus he carries to persuade us that the prior Tribunal findings of unsatisfactory professional conduct and professional misconduct findings. 11. We accept that those previous findings as to the applicant's flaws have now been displaced by the appropriate changes he has pursued as described in the evidence we have identified and reviewed. Consequently, in light of those findings we are comfortably persuaded that the applicant is no longer unfit to practise. Whether undue risk to public health and safety risk if reinstated 1. The questions that remain to be addressed concern the potential risk to the health and safety of the public if the applicant were to be reinstated, and if he were to be reinstated, what conditions ought to be imposed to guard against a risk of recurrence of the past behaviours which led to his deregistration. 2. In considering those questions, whilst we note that the applicant's deregistration has caused him to incur considerable financial loss and disruption to his family, those matters have not influenced our determination. 3. On our review of the evidence, we consider that the risk of the applicant repeating his prior unprofessional conduct and misconduct is unlikely, as stated in the opinion of Dr Ilchef. We are reinforced in that view by the profound, disruptive, and salutary effect that the prior Tribunal findings have had on the applicant such that he has embraced the trauma of those events as a turning point in his life, in his attitudes and in his behaviours. Those changes are evidenced by his continued commitment to therapy. 4. We therefore accept the submissions made by Senior Counsel for the applicant that he has remediated and redeemed his past flaws and established his worthiness and reliability to be trusted and reinstated to the privilege of medical practice, and that he will in future act in accordance with the high standards and responsibilities expected of medical practitioners and practise in an ethical, honourable and safe manner in furtherance of the health and safety of patients. 5. At this point, where the applicant has undertaken earnest remedial efforts to reform his prior misconduct, there is no public interest in continuing to deny him a return to the practise of his profession. Disposition 1. Having examined the applicant's written and oral evidence, the expert evidence, and the evidence of the treating practitioners, applying the required legal criteria, including the paramount consideration of the health and safety of the public, we are comfortably satisfied that the applicant has discharged the heavy onus he carries and has justified his claim to an order to facilitate his reinstatement onto the register of medical practitioners, subject to his adherence to the conditions identified in the Appendix to these reasons. Costs 1. The respondent was required to actively participate in these proceedings and was entitled to test the applicant's evidence and make submissions in the public interest. It follows that the respondent's costs incurred in that regard should be paid by the applicant on the ordinary basis, as agreed or assessed. Orders 1. The Tribunal makes the following orders: 1. Pursuant to s 163(1)(c) of the Health Practitioner Regulation National Law (NSW) 2009, the applicant, Shaun Segal, may apply to the Medical Board of Australia for registration to reinstate him to the register of medical practitioners subject to the practice and health conditions listed in the Appendix to these reasons. 2. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) 2009. 3. Pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) 2009, the applicant is to pay the respondent's costs of these proceedings on the ordinary basis as agreed or assessed. ********** APPENDIX CONDITIONS (132535, pdf) I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2024