Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sundararajah v Health Care Complaints Commission [2024] NSWCATOD 175 Hearing dates: 12 June 2024 Date of orders: 30 October 2024 Decision date: 30 October 2024 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Dr D Gunasekera, Senior member Dr M Jonas, Senior Member F Taylor, General Member Decision: (1) The application is dismissed. (2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any patient referred to in the proceedings is prohibited. (3) If the applicant opposes an order that he pay the respondent's costs as agreed or as assessed, he is to file submissions within 14 days of the date of these reasons. (4) The respondent may respond within a further 14 days. Catchwords: PROFESSIONS AND TRADES – dentistry – application for reinstatement Legislation Cited: Health Practitioner Regulation National Law (NSW). ss 5, 139, 163B, 163C Cases Cited: Bolton v Health Care Complaints Commission (No 2) [2024] NSWCATOD 38 Dudhela v Health Care Complaints Commission [2024] NSWCATOD 35 Haber v Health Care Complaints Commission [2018] NSWCATOD 16 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Sundararajah (No 2) [2018] NSWCATOD 86 Health Care Complaints Commission v Sundararajah [2017] NSWCATOD 182 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Marquinez v Health Care Complaints Commission [2017] NSWCATOD 148 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28 at [45]. Sundararajah v Health Care Complaints Commission [2020] NSWCATOD 144 Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 Category: Principal judgment Parties: Raahulan Sundararajah (Applicant) Health Care Complaints Commission (Respondent) Representation: Applicant (self-represented) Solicitors: Health Care Complaints Commission (Respondent) File Number(s): 2023/00429923 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any patient referred to in the proceeding is prohibited. REASONS FOR DECISION Introduction 1. These reasons concern the applicant's application for reinstatement to the Register of dentists, his registration having been cancelled on 4 June 2018. 2. The application is opposed by the respondent (Commission). 3. For the following reasons, the application for reinstatement is dismissed. Background 1. On 22 December 2017, the Tribunal found that the applicant was guilty of professional misconduct, had an impairment within the meaning of s 5 of the Health Practitioner Regulation National Law (NSW) (National Law) and was not competent to practise within the meaning of s 139(a) of the National Law: Health Care Complaints Commission v Sundararajah [2017] NSWCATOD 182 (2017 Decision). 2. As the Tribunal explained: 1 In 2011 a patient complained to the Australian Health Practitioner Regulation Agency that immediately following a consultation dentist, Raahulan Sundarajah, engaged in sexual conduct and attempted sexual intercourse with her. Four years earlier the patient and Dr Sundarajah had been in a concurrent sexual / practitioner-patient relationship. In February 2013, the Dental Tribunal of NSW found Dr Sundarajah guilty of professional misconduct and suspended his registration for a period of 18 months. 2 The following year, a further complaint was made about Dr Sundarajah, alleging that he had stalked and harassed a female solicitor, persisting in attempts to contact her despite repeated requests to cease. The solicitor had represented him in unrelated disciplinary proceedings in 2013. In August 2014, the Dental Council of NSW imposed a number of conditions on Dr Sundarajah's registration, which included that he not practise dentistry on female patients over the age of 15 unless a female adult member of the practice was present at all times (the Chaperone Condition). 3 In June 2015, following a complaint that Dr Sundarajah acted inappropriately with female colleagues in a Queensland dental practice where he worked for several weeks, the Dental Council again suspended Dr Sundarajah's registration. … 1. The Tribunal's reasons addressed four separate complaints referred to the Tribunal by the Commission. The Commission alleged that the applicant contravened the Chaperone Condition and as a consequence is guilty of "professional misconduct". In addition, the Commission alleged that the applicant suffered from "late onset paranoid schizophrenia illness", had an "impairment" and was not competent to practise dentistry. 2. Dr Sundarajah denied each complaint. 3. For the reasons given in the 2017 Decision, the Tribunal found each complaint proved. 4. In the subsequent "Stage 2" proceedings, Health Care Complaints Commission v Sundararajah (No 2) [2018] NSWCATOD 86 (2018 Decision), on 4 June 2018 the Tribunal cancelled the applicant's registration, disqualified him from seeking a review of the cancellation order for a period of 12 months, and prohibited him from providing any health services, unless and until he is registered as a health practitioner. 5. On 1 July 2020, the applicant brought an application for a review of the 2018 Decision. During the course of the proceedings, the applicant said that if he were to be re-registered, he would consent to the imposition of conditions on his registration including supervision, a chaperone condition and that he undertake continuing medical treatment. 6. The application was refused: Sundararajah v Health Care Complaints Commission [2020] NSWCATOD 144 (2020 Decision). The Tribunal concluded its reasons for decision with the following remarks: 139 … These proceedings are in the nature of an inquiry, our task being to ascertain whether it is appropriate to review the decision to cancel the applicant's registration with a view to determining whether it is appropriate to make an order the effect of which will enable him to apply for registration as a dental practitioner. In making our determination we are required to consider all of the material which has been put before us by the applicant and the respondent. We do not regard the determination of these proceedings as being conditioned upon whether or not the applicant has fulfilled an onus incumbent upon him to establish that he should be entitled to seek registration. Rather, the applicant has a burden of adducing such evidentiary material as will enable us to make a determination in his favour. The determination will be made objectively having regard to its context, including most importantly the paramount consideration of the health and safety of the public. Seen in this way, it is not necessary to demonstrate that any onus of establishing that the application should be granted lies on the applicant; rather his task is to discharge the burden which lies upon him of establishing those circumstances which will enable us to grant his application. 140 We commenced our consideration with the findings made in the decisions under review which we have previously set out. In the first decision the Tribunal found that it was more likely than not that the applicant suffered from a mental disorder or condition in the form of late onset paranoid schizophrenic illness which was current certainly at 22 December, 2017. The Tribunal also found that condition affected or was likely to detrimentally affect the applicant's ability to practice the profession of dentistry. Furthermore, there was sufficient concern that the applicant lacked capacity to deal with female patients, staff and others in an appropriately professional way with a consequence that he lacked the necessary competence required of a health practitioner. 141 As we have observed, the preponderance of the evidence available to us is that the applicant continues to suffer from a mental disorder or condition which affects or is likely to detrimentally affect his ability to practice the profession of dentistry with attendant concerns that he lacks the capacity to deal with female patients, staff and others in an appropriately professional way. On this basis the application for review must be dismissed. 142 The only other matter outstanding is whether the applicant should be permitted to apply for registration subject to conditions. Based on the opinion of Dr Samuels, we do not believe that it is appropriate to allow the applicant to seek registration as a dental practitioner subject to conditions as suggested on behalf of the applicant during the course of the hearing. These conditions were that he practise under supervision, that a chaperone always be present when treating a female aged 15 and over, and that he continue regular treatment under the care of a psychiatrist or psychologist. A requirement that the applicant could only practise if such conditions were imposed is incompatible with a current capacity to practise having regard especially to the health and safety of the public. In any event, as Dr Samuels pointed out such conditions would provide little or no comfort in terms of concerns that the applicant would have difficulty in communicating with and relating to peers and other work colleagues. 143 For all these reasons we conclude that the application should be dismissed. 1. It is against that background the applicant now brings a further application for reinstatement to the Register. Applicant's evidence 1. The applicant relied on the following materials. 2. First, a letter to the Dental Council of NSW (Council) dated 14 October 2023. This is a short document and we set it out in full: Background: My Registration was cancelled on the 4th June 2018 and since then I have not worked in Dentistry. I have undertaken a range of activities to prepare myself to return to clinical practice. Preparation: Completed 2 week Technical Skills Refresher Program at the Royal Dental Hospital, Melbourne (Feb 27th to March 11th 2023). Completed a 1 Day Infection Prevention and Control Program with the Australian Dental Association Victorian Branch (23th February 2023). Completed a Cardio-Pulmonary-Resuscitation Training at the Royal Dental Hospital, with Ian L Cash (2 February 2023). During the period of non-practicing I have regularly attended appointments with my Treating Health Practitioners on a monthly basis: Mr. Nicholas Lavidis (Psychologist) and Dr Howard Napper (Psychiatrist). See Letters attached. I have researched and read Scientific Articles on Professional Boundaries to improve my understanding of what is appropriate. See attached. I have reflected at great length on the mistakes that I have made and I now feel that I am able to ensure that they will never repeat. I am committed to requesting feedback from work colleagues, clients and clinicians, and to acting on any changes that they may recommend. I am committed to continuing to reflect on my practice and, to observe and maintain professional boundaries at all times. I am committed to always improve my knowledge and skills by actively engaging in CPD programs and self-study. If my request is granted, my intention is to seek employment in a collaborative practice in Rural New South Wales. 1. Secondly, a report of Dr Howard J Napper dated 21 March 2023. Dr Napper is a Consultant Psychiatrist. Dr Napper first assessed the applicant on 11 May 2022, and has seen him on 11 occasions, the last being 17 March 2023. 2. After referring to two reports of the late Dr Selwyn Smith (another psychiatrist), Dr Napper states: In my sessions with Dr Sundarajah, I have found that he has developed excellent insight and understanding of his behaviours that led to the loss of his dental licence. Dr Sundarajah has demonstrated great insight into the need to maintain appropriate professional boundaries between himself and dental patients. Dr Sundarajah has developed a clear understanding of the inappropriateness and seriousness of any kind of inappropriate sexual contact or behaviour with any patients or dental staff. Dr Sundarajah has undertaken a number of courses to maintain his standard as a dental practitioner. During my consultations with Dr Sundarajah I have found no evidence of any psychiatric vulnerability or psychiatric condition or psychiatric disorder. The sessions with Dr Sundarajah have provided supportive psychotherapy and assistance with applying to be reinstated as a dentist. I am fully aware that Dr Sundarajah has put in place procedures to prevent what has [happened] in his professional life. These procedures include: 1. Understanding his professional obligations. 2. Implementing individual risk controls. 3.Taking a thoughtful and considered approach to his future practice. I am in complete agreement with the psychiatric opinion by Dr Selwyn Smith that there is no impairment that would detrimentally affect Dr Sundarajah's capacity to practice dentistry safely. 1. Thirdly, a report of Mr Nicholas Lavidis dated 21 October 2023. Mr Lavidis is a clinical psychologist. Mr Lavidis concludes: Section 19: Diagnosis and Clinical Opinion: 64. Mr Sundararajah fits the diagnosis of adjustment disorders. These symptoms were identified by the SCID-5-CV. As noted, there is no formal diagnosis for depression or anxiety as noted by the BD1-ll and the BA!. 65. lt is noted in Mr Sundararajah's PAI [Personality Assessment Inventory] regarding positive impression management, Mr Sundararajah's response pattern indicates a tendency to portray himself in a positive light, portraying himself as relatively free from common shortcomings that most individuals would readily acknowledge. 66. As to the original goal, to assess whether there was any substantiating evidence for a diagnosis of psychosis or paranoid schizophrenia, Mr Sundararajah did not present with any observable unusual behaviour or signs of bewilderment. His responses did not exhibit any signs of unusual beliefs or peculiar thoughts that warranted any concerns. There were no indications of strange ideas in his responses. Mr Sundararajah did not display an extremely guarded or uncooperative attitude when during his thirty two sessions. He discussed his interactions with female patients in his practice. Furthermore, he readily expressed his willingness to comply with the use of a chaperone if deemed appropriate by the Dental Council. 67 Mr Sundararajah's reported his removal from dentistry has had a positive effect in that it has put an end to the dysfunctional path to which he had succumbed. He expresses remorse regarding his interactions with the female patients. With ten years to contemplate his behaviour, he remains committed to self-reflection and maintaining appropriate boundaries. He acknowledges his poor judgment when dealing with the females in his practice and the female solicitor. 68 Mr. Sundararajah exhibited no clinical indications of a psychiatric condition that would hinder his competence to practice dentistry. Throughout the thirty two sessions, there was no observable evidence of any symptoms related to psychosis or paranoid schizophrenia. Moreover, he did not manifest any symptoms associated with thought disorders, bipolar disorder, or any other significant disorder listed in the DSM-5 that might impede his ability to function as a dentist. Additionally, Mr. Sundararajah did not meet the criteria for antisocial personality disorder based on his history and assessment through the PAl. However, it is noteworthy that he does exhibit some criteria associated with paranoid personality disorder, as per the PAl, which may warrant further investigation. 69 Based on these observations and psychometric testing and in the absence of any diagnosed psychiatric disorder, I hold the opinion that Mr. Sundararajah is competent to practice dentistry, with any conditions that may be imposed by the Dentist Council. As stated, Mr Sundararajah could continue with further assessment for personality disorder via this service and continue to practice with a chaperone [where there are] there are female patients. 70. I have discussed the treatment plan with Mr Sundararajah. He is willing and eager to continue with weekly cognitive behavioural therapy. 1. We note that in an email dated 14 March 2024 from Mr Lavidis to the applicant's then lawyers, Mr Lavidis states: In relation to your questions please see response below. An overall update as to his consultation dates and general progress. Mr Sundararajah has attended three appointments this year (2024) he continues with support and maintains a consultation on a monthly basis. We have had discussion in sessions in relation to professional boundaries, personal boundaries. What is the average time of each consultation? The consultations last fifty minutes. Is Dr Sundararajah expected to undertake 'homework' between sessions? Mr Sundararajah was referred to this service on the basis of ruling out mental illness and support. He has had mindfulness which was demonstrated and he applies. Are there any specific therapy type(s) that are implemented with Dr Sundararajah? If so, explain each of them and how they are beneficial to Dr Sundararajah. He maintains boundaries at his place of employment and practices mindfulness. What are the long term aims of these therapies? There are no long term terms for support it is as long as Mr Sundararajah requires it or wants it. 1. Thirdly, a bundle of documents evidencing a number of CPD courses and programs undertaken by the applicant. 2. Fourthly, a 42 page document prepared by the applicant titled " An Apology with a Personal Reflection – Professional Boundaries". 3. This document consists of the following sections: 1. Introduction: definition of Remorse and Guilt, and components of a structured Apology 2. A detailed account of the offense; 3. Acceptance of responsibility for, and ownership for the act. 4. Acknowledgement of the hurt or damage done [empathy for their Devastation]. 5. An explanation that recognises one's role. 6. A statement or expression of regret of one's actions. 7. A request for Forgiveness. 8. An expression of credible commitment to change or a promise it wilt. not happen again [change in circumstances]. 9. DBA Code of Conduct and Professional Boundaries. 10. Conclusion: In gaining Insight. 1. Fifthly, a 58 page document prepared by the applicant titled "An Apology with a Personal Reflection – Professional Boundaries". This document has an abstract which states: ABSTRACT: The paper will look at the Definition of Insight, the various types of Insight, and their differences (as well as a Philosophical view). The Role it plays in Psychotherapy, in particular: Transference and the meaning of 'self'. How also social influences affect self-perception, and therefore insight into one's behaviour. A small excerpt on an interpersonal communication, titled "Uncertainty Reduction Theory." A brief visit on Boundaries in Doctor-Patient relationships. Discussion of Value Ethics and Value Judgements. And how the Two of these tie in with a Thorough appraisal of 'Establishing and maintaining Ethical Professional Boundaries'. Included is AHPRA guidelines on sexual boundaries, Discussion and Conclusion. 1. This document consists of the following sections: 1. Definition of Insight; 2. Difference between Intellectual Insight and Emotional Insight; 3. The Role of Insight in Psychotherapy: A review of Empirical Literature; 4. Social Psychology and it's Influences; 5. Interpersonal Communication and "Uncertainty Reduction Theory"; 6. Boundaries in Doctor-Patient; 7. Value Ethics and Value Judgements; 8. Establishing and maintaining Ethical Professional Boundaries; 9. AHPRA Guidelines on Sexual Boundaries; 10. Discussion; 11. Conclusion. 1. Sixthly, a character reference of a supervisor (unrelated to dentistry), Mr Abraham Ali. 2. The applicant was cross-examined by the Commission's advocate Ms Bayley. Where relevant we will refer to his oral evidence below. 3. Mr Napper and Mr Lavidis were also required for cross-examination. Commission's evidence 1. The Commission filed two bundles of materials on 7 and14 March 2024. The first bundle is 599 pages in length and includes but is not limited to the Commission's Reply to the application; the Council's decision of 2 September 2011 together with a transcript of proceedings; Dental Tribunal's decision of 18 February 2013 suspending the applicant; email and other correspondence between the parties; a report of the Impaired Registrants Panel dated 27 February 2015; various submissions made by the applicant at various hearings and sundry medical reports. These included reports of Dr Selwyn Smith and Dr Anthony Samuels. 2. We note that in its Reply the Commission stated that it neither consented to nor opposed the application for reinstatement. However, by the time of the hearing, and confirmed at the hearing, the Commission's position was to oppose the application for reinstatement. 3. The second supplementary bundle of materials was 169 pages in length. These materials consisted of the transcript of proceedings the applicant's 2020 reinstatement application. Oral evidence The applicant 1. In oral evidence in chief, the applicant was asked questions about how he perceived personal and professional boundaries, and what he had taken away from his session with Mr Lavidis. The applicant said that they had discussed, amongst other matters, professional boundaries, mindfulness and had had group therapy sessions. The applicant said that he had found the sessions helpful. 2. In regard to Patient A, the applicant said that he was very sorry about what happened, and that he should have been more considerate about Patent A's mental state. He said that the most sensible option would have been to forward her ongoing care to another practitioner. He recognised that there was a power imbalance. 3. He said that the boundary crossing occurred when there were personal stressors in his life, and that he should have sought guidance and support from a psychiatrist or psychologist. 4. He agreed that what happened with the solicitor was totally inappropriate, and that when her senior associate asked him to stop he should have stopped. He says that because of that experience he has now developed cognitive judgment about such matters, and that he would immediately stop treating a patient if he had romantic relationship with a one. He agreed that it was a grave error of judgment, and one which he regretted. 5. When asked what he wanted to say in terms of practising safely, after a long pause, he said that he thought it would be reasonable for him to practise with conditions, including a chaperone condition. 6. When it was put to him that he had not complied with the chaperone condition in the past, he said that "I gave power over my conditions to someone else", and that he "he should have taken total responsibility himself". When asked how the Tribunal could be assured that he would not come to the Council's notice in the future if given the chance to practise, he said "no one can predict the future", but that he would value the opportunity to practise "more than ever, I would have to try my best". 7. The applicant said that he had adequate support systems in place, being his medical practitioners and his family, and his support network in the profession. 8. The applicant said that if something went wrong in his personal or professional life in the future he would immediately discuss those matters with Mr Lavidis and Dr Napper. 9. In cross-examination, Ms Bayley asked the applicant what he did wrong in Cairns. He said: I passed on responsibility of conditions to someone else. As to the impression I made on staff, it is just common-sense highly implausible, where staff might have been upset with someone. I would have acted right away. If they are saying that I was behaving in that manner it is very hard to comprehend there. There wasn't even work there, on the time scale alone. The principal had a duty to inform me. I should have had the opportunity for him to address me. … The employer was never around. He just waited and gathered all the information and made a complaint which I think was so wrong. 1. The applicant was directly questioned by Ms Bayley as to whether he accepted that he had a personality disorder. After a long pause, he said that if he was diagnosed with a personality disorder, then it would have to be taken seriously. 2. Ms Bayley also asked him how the Tribunal could be satisfied that he would comply with chaperone conditions in the future and with their documentation. He said that he "solemnly pledged" to see to those matters "meticulously". When asked about his comment that in Cairns he gave "power" to "someone else", he said "I wasn't the principal of the employer, they weren't going to listen to me, I'm not going to go into that, better if I chaperone myself". 3. Towards the end of his oral evidence, Tribunal Member Taylor asked the applicant to explain why the Tribunal should reinstate him. The applicant said: I really want it back. Your vocation it identifies you. I have tried various things while outside of practice. This is where I belong. If the Tribunal gave me the opportunity, I would be very grateful, grateful enough to do the best I can in appreciation. That's why I am here today. Dr Napper 1. After being taken to evidence at the time he prepared his report, Dr Napper confirmed in brief evidence in chief that the applicant could return to the practice of dentistry, but that conditions on his registration including supervision were "essential". Dr Napper thought the applicant was "on track" and highly motivated to maintain boundaries. 2. Dr Napper agreed in re-examination that the applicant had come "a long way", although he still had some troubles with insight, and that there was still "work to be done'. Dr Napper also confirmed that the applicant was committed to sessions with him and never missed one. 3. In cross-examination, Dr Napper told Ms Bayley that he thought that the applicant had confided in him. He did not consider that the applicant suffered from paranoia, but was more likely to have a mixed personality disorder. Dr Napper also stated that psychometric testing would be helpful. Mr Lavidis 1. In oral evidence in chief, Mr Lavidis said that he thought that the applicant had formed a good level of insight, and that while he found the process anxiety, he was reflective and took responsibility for his actions. 2. In cross-examination, Mr Lavidis did not agree that psychiatrists were better assessed to diagnose the applicant: "no, because we do the diagnostic stuff, when the psychiatrist does the assessment it is the psychiatrist's assessment". 3. Mr Lavidis considered that the applicant had some insight into his conduct, and understood the importance of maintaining boundaries. Dr Samuels 1. Dr Samuels saw the applicant on two occasions, 20 October 2020 and 6 February 2024. 2. In his report of 20 October 2020, Dr Samuels concluded: 139 I reached the same conclusion as Dr Phillips and Dr Giuffrida that it is really difficult to be diagnostically clear in regard to what is going on from a psychiatric perspective with Mr Sundarajah. He certainly is an unusual man who appears to have some difficulties in relation to social interactions and social boundaries. As noted above, I did think at times Mr Sundarajah was quite thought disordered and some of his comments were quite difficult to follow. Facial grimacing is a well described feature of Schizophrenia. 140 Given that Mr Sundarajah still has a firmly held view that he had some previous relationship with the solicitor and his explanations for wanting to make contact with her, and the fact that he persisted in making contact with her because he felt other people were "blocking" this contact, the emails written at the time and the fact that he is mildly thought disordered, leads me to concur with Dr Giuffrida that there is a possibility that Mr Sundarajah has some atypical form of psychotic illness with paranoid features. 141 I also agree with Dr Phillips that Mr Sundarajah has an unusual personality structure. Mr Sundarajah is obviously is intellectually bright, he seemed to have a particular aptitude and interest in Mathematics in his later high school years. He did not seem to have any particular social difficulties at school as far as I can ascertain but his affect and manner are distinctly odd, he continues to mildly transgress boundaries as in asking if he could call me by my first name, not seeming to really understand that I was seeing him for an important medico-legal assessment which could impact upon his application for re-registration, and some of the comments he made in the context of the interview were just distinctly odd. 142 This does raise the possibility of Cluster A Personality Disorder with rather odd and eccentric features. 143 The other diagnostic possibility is that Mr Sundarajah also falls in the Autistic Spectrum and this leads to a lack of self-awareness in regard to the way in which he comes across to others. 1. In his report of 6 February 2024, Dr Samuels concluded: 67. When I reviewed Mr Sundararajah today, 6 February 2024, his presentation was different. He was pleasant, cooperative, not overly forthcoming or expansive with information but he outlined that his psychosocial situation was stable, that he is looking after his elderly parents, that he is in contact with his children, that he has friends, that he is not in a new relationship. He describes good general health, being under the care of a GP and having maintained consistent contact with his treating therapists Dr Napper and Dr Lavidis. He is not on any form of medication. He denies substance misuse but he does smoke 20 cigarettes per day. Mr Sundararajah stopped working in October 2023 as a mail officer to work on his reapplication and then unfortunately his father was injured in an accident and Mr Sundararajah has now become a carer for his parents. He stressed to me that he is very keen to return to dental practice and outlined the steps that he had undertaken. 68 On examination his affect was reactive, his mood euthymic, there was no unusual facial grimacing, his speech was normal paced and his thought form was normal. The only abnormalities I detected on mental state was his comment about no one in Cairns being worth flirting with and he denied the allegations made at that time. Mr Sundararajah still appears to have a fixed delusion regarding the solicitor whom he encountered in 2015 and maintains the view that he met her as, "a working girl" and he is certain that this is the case. 69. I can find no evidence that Mr Sundararajah has had any other difficult interpersonal interactions since the time I last reviewed him. 70. It remains my view that Mr Sundararajah has an impairment within the meaning of the National Law in that he has residual features of a Cluster A Personality Disorder, specifically a Paranoid Personality Disorder. He is currently not exhibiting any features suggestive of a frank psychotic illness. He has however been working with two therapists and is not exhibiting prominent features of this condition at the present time. The potential remains however, that under stress or in the context of working as a dentist that more florid psychotic symptoms could re-emerge. There certainly is a possibility that aspects of his personality style could intrude upon relationships with patients and colleagues. However, I do feel more confident seeing him now that if he continues to work with Dr Lavidis and Dr Napper, if he is well supported in a practice situation and that there are supportive conditions in place, that it might be possible at this time for Mr Sundararajah to contemplate a return to dental practice. (emphasis added) 1. In oral evidence in chief, Dr Samuels "certainly agreed" that the applicant had no "frank psychotic illness", but thought the applicant did have a paranoid disorder which at times became more florid with the applicant exhibiting psychotic symptoms. Dr Samuels said that there was an "underlying suspiciousness", with the potential for those traits to "come out". 2. Dr Samuels said that his diagnostic view was that the applicant had a cluster of Type A personality disorders with paranoid features, and some narcissistic personality traits. 3. Dr Samuels considered that any supervisor would have to be appraised of the applicant's history so as to be in the best position to monitor him. 4. Dr Samuels did not have a strong view about chaperone conditions as he had no sense of what the sexual offending risk might be. 5. In cross-examination, after being asked to assume that his diagnosis of the applicant was correct, Dr Samuels was asked whether that condition was long standing. Dr Samuels said "absolutely, in some form from quite early in his life". Dr Samuels said he had concerns about the applicant's depth of understanding of his condition "in any integrated way". Dr Samuels said that the applicant was "more ready" to return to practise now. When it was suggested that he had "stopped short" of saying the applicant was not ready to return to practise, Dr Samuels, while noting that the applicant had engaged in therapy and had been compliant, said that he had reservations, as the nature of paranoid disorders was that they do not go away. 6. In re-examination, Dr Samuels said that the applicant should be commended for attending counselling sessions, and that while the conditions on registration suggested by the applicant would be a safeguard, they were not absolutes. Factual findings 1. Based on the evidence before us we make the following relevant findings. These findings are largely based on the voluminous evidence filed on by the Commission, supported by the lengthy and detailed cross-referenced submissions of the Commission. We also note these matters were not denied by the applicant in his post-hearing submissions. 2. In 2004, the applicant initiated a flirtatious phone call with Patient A. 3. In May-July 2007, the applicant engaged in a personal and sexual relationship with Patient A. 4. In February 2011, the applicant engaged in sexual activity with Patient A immediately following a consultation. 5. The applicant kissed her, she objected, he forced her to put her hand on his penis, she hit him in the stomach, he pushed her head towards his penis wanting oral sex, she objected and tried to fend him off and he made her lick his penis. 6. The Dental Tribunal accepted Patient A's evidence and rejected the applicant's denials. The Dental Tribunal found that the applicant's denial of having knowledge of Patient A's vulnerability and fragility was "highly unlikely", and that the applicant was "evasive in his responses to questions which might in any way reflect on him badly or incriminate him". 7. The applicant was found guilty of professional misconduct. The Dental Tribunal was satisfied that the public required protection until the applicant had dealt with the issues arising out of the sexual activity, the lack of insight into the effects of his behaviour and his failure to understand the nature of his professional ethical obligations. 8. In June 2013, the applicant attended disciplinary hearing conducted by the Council regarding root canal treatment, the applicant was assisted by a female solicitor, the complaint was dismissed, and the female solicitor advised the applicant by email that the file would be closed. 9. From June 2013 to February 2014, the applicant contacted the female solicitor on several occasions by email, telephone and Facebook. 10. In February 2014, a complaint was made to the Commission that the applicant stalked and harassed the female solicitor, despite repeated requests to cease. 11. In March and May 2014, the applicant continued to contact the female solicitor by emails. 12. In May 2014, the applicant refused to respond to the complaint regarding the female solicitor, claiming it was a "highly personal matter." 13. In August 2014, the applicant gave evidence at a s 150 hearing, admitted he sent the emails to the female solicitor, was reluctant to discuss "a private matter" and explained that he had "fallen in love with her". 14. The Council imposed further conditions on the applicant's registration including a chaperone condition, namely that the applicant not practise dentistry on female patients over the age of 15 unless a female adult member of the practice was present at all times. 15. In February 2015, the applicant gave evidence to the Impaired Registrants Panel during which he consented to conditions being imposed on his registration including the chaperone condition. 16. In March 2015, the applicant commenced work in a dental practice in Cairns. On multiple occasions in the period March-April 2015, the applicant contravened the chaperone condition, in that he practiced dentistry on female patients over the age of 15 years old without a chaperone being present. When confronted by the dental assistant, the applicant claimed he had spoken to his employer about staying at the door when the chaperone left the room and his employer had told him it was "OK" not to leave the room when she was not present. 17. In April 2015, the applicant's employer made a complaint that the applicant acted inappropriately in the Cairns dental practice, by: * making inappropriate comments to dental staff, saying to a dental assistant that he knew "how to please a woman"; * making sexually inappropriate comments to a female dentist and offering to massage her neck; and * being "a bit flirty" with patients (by staring at female patients, looking down female patients wearing low-cut tops, making a comment about a female patient being beautiful). 1. In May 2015, the applicant responded to the employer's complaint (claiming he spoke to his employer about staying at the door when the chaperone left the room). 2. In June 2015, the s 150 delegates were concerned that the applicant had failed to comply with the chaperone condition, had fabricated a story to explain his behaviour when confronted by the dental assistant and had not been strictly complying with other conditions (to regularly see a psychologist/psychiatrist and submit reports). 3. The Council suspended the practitioner's registration. 4. On 22 December 2017, the Tribunal found that the applicant was guilty of professional misconduct, had an impairment within the meaning of s 5 of the National Law and was not competent to practise within the meaning of s 139(a) of the National Law: see the 2017 Decision. 5. The Tribunal's reasons addressed four separate complaints referred to the Tribunal by the Commission. The Commission alleged that the applicant contravened the Chaperone Condition and as a consequence is guilty of "professional misconduct". In addition, the Commission alleged that the applicant suffered from "late onset paranoid schizophrenia illness", had an "impairment" and was not competent to practise dentistry. 6. Dr Sundarajah denied each complaint. 7. For the reasons given in the 2017 Decision, the Tribunal found each complaint proved. 8. In the subsequent "Stage 2" proceedings, on 4 June 2018 the Tribunal cancelled the applicant's registration, disqualified him from seeking a review of the cancellation order for a period of 12 months, and prohibited him from providing any health services, unless and until he is registered as a health practitioner: see the 2018 Decision. 9. On 1 July 2020, the applicant brought an application for a review of the 2018 Decision. 10. The application was refused: see the 2020 Decision. The Tribunal concluded its reasons for decision with the remarks set out at [11] above. Relevant legislation and principles 1. Sections 163B and 163C of the National Law provide: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order— (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division. 1. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16, the Tribunal stated at [12]: We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24]. (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]; 1. To these principles can be added the statements of the Tribunal in Marquinez v Health Care Complaints Commission [2017] NSWCATOD 148 at [19] that: (1) The Tribunal's jurisdiction in relation to reinstatement orders is protective: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155; (2) The power "is to be exercised in a way that ensures that any health practitioner who is the subject of a reinstatement order is of good character and both fit and competent to practise their profession": Donnelly at [12]; (3) The onus of proof lies on the former practitioner seeking reinstatement, requiring an evidentiary basis and with the standard of proof being the civil standard of the balance of probabilities: Donnelly at [12]. (4) The Tribunal "must approach the matter of reinstatement with a healthy scepticism" and "with the greatest caution and only upon solid and substantial grounds": Donnelly at [13]; (5) The Tribunal ought to be open to the possibility that a former practitioner has demonstrated that he or she is now fit for reinstatement to the register: Donnelly at [14]-[15]. There may also be public interest considerations served by permitting reinstatement: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 at [39]. (6) The passage of time since deregistration without further infraction does not imply that former practitioner is a changed person – clear proof is required to show that some years later the person has established themselves as a different person: Mnyandu at [38]; (7) Improved insight into conduct which led to the cancellation of registration in the first place, and into the personal factors which resulted in the complaints in question, will often be relevant to any application for reinstatement, as will any steps taken to demonstrate such improved insight as well as that the former practitioner is a changed person: see Donnelly, Mnyandu; Ristevski v Medical Council of NSW [2016] NSWCATOD 18. The applicant's submissions 1. Prior to the hearing, the applicant filed brief submissions on 27 May 2024. The principal points made in these submissions are as follows: 1. Dr Samuels agrees that the applicant is mentally and physically fit to return to the practice of Dentistry; 2. generally speaking, neither Dr Samuels, nor Dr Napper, nor Mr Lavidis have any objection to the applicant returning to the practice of dentistry, provided that certain "risk control measures" are put in place, namely: chaperone conditions being put in place, the applicant being supervised and the applicant continuing to attend health appointments. 1. After the hearing, the applicant filed further submissions on 19 June 2024. In summary, he submits that: 1. he agrees with the Commission's statement of relevant principles set out in its submissions; 2. he should be reinstated with the following conditions placed on his registration: Supervision Plan i. The Applicant will practice under a period of supervision, with a supervision plan to be approved by the Tribunal. ii. This plan will detail the frequency and nature of supervisory sessions and reporting requirements. Disclosure Obligation i. The Applicant will provide a copy of the original Tribunal decision to any employer prior to commencing employment. Continued Treatment i. Applicant will continue regular attendance with his treating for a period of not less than 12 months. 1. In relation to the topic of rehabilitation, the applicant submits that he has sought and undertaken further study with a particular focus on educating himself on insight, identifying and maintaining professional and personal boundaries, as well as undertaking ethical studies and continuing professional education relating to his technical training. The applicant relies on the evidence given by his treating practitioners demonstrating his commitment and engagement in his therapy sessions. He says that he has continued with regular treatment since 2021 and maintained an excellent record of attendance. He says that he has shown a commitment to his mental health as well as maintaining relevant technical knowledge 2. In relation to the topic of reformation, the applicant submits that he has dedicated a considerable amount of his time to care for his elderly parents sacrificing the ability to financially support himself in favour of supporting his parents. This humbling experience has allowed him valuable time to reflect on the actions of the past. 3. As to insight, the applicant points to his oral evidence at the hearing which he says confirmed that he was disappointed and ashamed of his previous actions. He expressed his remorse and acknowledged that his previous actions were not acceptable which, was not apparent during prior proceedings. 4. As to recency of practice, the applicant submits that he has taken sufficient steps to prepare himself to re-enter the profession and practice safely by way of continuing professional education at an immersive and practical dentistry conference in 2023 and continues to educate himself by studying research material. He says that the imposition of conditions will also seek to ensure his practice is relevant. The Commission's submissions 1. The Commission raises the following concerns: 2. First, protection. The Commission asks whether, given the seriousness of the applicant's proven professional misconduct and the proven impairment, does the cancellation order remain appropriate to protect the public? In summary, the Commission submits that the applicant has not yet taken sufficient steps to address the risk that he will engage in inappropriate conduct towards female patients and staff, such that the cancellation order remains appropriate at this time to protect the public. 3. Secondly, rehabilitation. The Commission asks whether, given the proven impairment and proven lack of competence of the applicant, can the Tribunal be confident that the applicant has rehabilitated, such that he is no longer impaired and is now competent to practice dentistry? In summary, the Commission submits that the applicant has not yet taken sufficient steps towards rehabilitation and accordingly the cancellation order remains appropriate at this time to ensure that dentists are able to practise the profession competently and safely. 4. Thirdly, reformation. The Commission asks whether, given the applicant's disciplinary history and lack of current character evidence, can the Tribunal be confident that the applicant's character is reformed? In summary, the Commission submits that the Tribunal has not yet provided sufficient evidence to demonstrate reformation of his character so the cancellation order remains appropriate to reinforce high professional standards and maintain public confidence in the profession. 5. Fourthly, insight. The Commission asks whether, given the applicant's reflections, can the Tribunal be satisfied that he has now demonstrated genuine insight and gained a proper appreciation of the professional responsibilities of a registered dentist? In summary, the Commission submitted that the applicant had not yet demonstrated genuine insight such that the cancellation order remains appropriate at this time to protect the public. 6. Fifthly, recency of practice. The Commission asks whether, given the applicant has not practised as a dentist since 2015, has the applicant taken sufficient steps to prepare himself to re-enter the profession and practice safely? In summary, the Commission submits that the applicant has not yet taken sufficient steps to prepare himself to re-enter the profession and practice safely such that the cancellation order remains appropriate at this time to protect the public. The applicant's submissions in reply. 1. The applicant filed brief submissions in reply. Generally, the applicant disagrees with the Commission's submissions. Consideration 1. To paraphrase the Tribunal in Dudhela v Health Care Complaints Commission [2024] NSWCATOD 35 at [59], the applicant has the onus of proof in these proceedings, which onus is a heavy one. The onus is on the applicant to demonstrate to the Tribunal that, having engaged in conduct of such a serious nature, he can now be trusted to return to practise in a way that presents no risk to the safety of the public and their confidence in the profession. Clear proof is required that the applicant has gained insight and that he will not behave in future in a way that causes risk to patients or may bring the profession into disrepute. The Tribunal is to exercise the power to reinstate with great caution, only on solid and substantial grounds, and is to approach its task with a "healthy scepticism". The paramount consideration is the protection of the public. 2. Our general view is to accept the submissions of the Commission, which we thought were balanced and persuasive. 3. We do not consider that the applicant has not taken sufficient steps to address the risk that he will engage in inappropriate conduct towards female patients and staff. 4. We are concerned about the lack of any recent supportive character references, noting that, as submitted by Ms Bayley, the references provided should be given limited weight. 5. We were concerned that, in answer to Member Taylor's question set out at [41] above, the applicant's answer focused on himself, and not on his profession or his patients. We thought this showed a considerable lack of insight. 6. In particular, we were concerned that the applicant had a tendency to minimise the significance of the incidents involving Patient A. 7. While we consider that there is some substance to the Commission's submission the applicant has not yet taken sufficient steps towards rehabilitation, we do not accept the Commission's submission that the applicant has demonstrated difficulty engaging in therapy. On the contrary, the evidence demonstrates that he has been very cooperative with his treating practitioners. 8. We were however concerned that when it was put to him that he had not complied with the chaperone condition in the past, he said that "I gave power over my conditions to someone else", and that he "he should have taken total responsibility himself". 9. We accept that is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner, and that the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. However, we are not persuaded that there is "clear proof" of the reformation of the applicant's character: Tziniolis. 10. In addition, the medical evidence suggests that the applicant still demonstrates delusions, including Mr Lavidis noting in October 2023 that the applicant exhibited a paranoid personality disorder warranting further investigation. In addition, it remains Dr Samuels' view that the applicant has an impairment within the meaning of the National Law in that he has residual features of a Cluster A Personality Disorder, specifically a Paranoid Personality Disorder. 11. For these reasons, we do not think it appropriate to reinstate the applicant to the Register of dentists, even under the conditions suggested by him. Conclusion 1. The applicant bears the onus of proving that he is a fit and proper person to be engaged in the profession of dentistry, and any applicant who seeks to establish fitness to have their name restored to the Register having been earlier removed from it bears a heavy onus of doing so. 2. We are unable to conclude that the applicant has discharged that onus for us to order him to be reinstated to the Register of dentists. 3. We propose therefore to dismiss the application for reinstatement. 4. The Commission has not sought that the Tribunal impose a further order that the cancellation order is not to be reviewed until after a further specified time. That means the applicant is free to make a further application for reinstatement at any time. He should understand however that he is unlikely to be successful if he does not present independent and probative evidence to the Tribunal of his insight, his rehabilitation and his fitness to practise. Costs 1. This is a costs jurisdiction. To paraphrase Bolton v Health Care Complaints Commission (No 2) [2024] NSWCATOD 38 at [20], the authorities are clear on this issue. The general rule is that costs follow the event and that costs are intended to compensate the successful party, absent any disentitling conduct: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; v Health Care Complaints Commission (No 2) [2011] NSWCA 182; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28 at [45]. 2. Accordingly, we propose to order the applicant to pay the respondent's cots as agreed or as assessed. However, as we have not heard from the applicant on this issue, the applicant may provide submissions on costs within 14 days, with the Commission responding within a further 14 days. 3. Submissions are to be limited to three pages, and we propose to consider costs "on the papers" and without an in person hearing. Either party opposing that course can address that issue in their submissions. 4. We draw the parties' attention to the decision of the Appeal Panel in Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 where the Appeal Panel stated: 84 Section 50(2) of the NCAT expressly authorises the Tribunal to dispense with a hearing if "it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal". 85 The Tribunal said it was so satisfied. It is the experience of the Appeal Panel that costs decisions in the Consumer and Commercial Division and on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing. The parties were given an opportunity to provide written submissions and did so. They can be presumed to have included all relevant issues in their written submissions. 1. We consider that those statements of principle are equally applicable to costs decisions involving the health profession in the Occupational Division of the Tribunal. Orders 1. The Tribunal orders that: 1. The application is dismissed. 2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any patient referred to in the proceeding is prohibited. 3. If the applicant opposes an order that he pay the respondent's costs as agreed or as assessed, he is to file submissions within 14 days of the date of these reasons. 4. The respondent may respond within a further 14 days. ******** 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: 30 October 2024