Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Pincock [2024] NSWCATOD 202 Hearing dates: 20 September 2024 Date of orders: 28 November 2024 Decision date: 19 December 2024 Jurisdiction: Occupational Division Before: ADCJ Hennessy, Deputy President Dr J Livesey, Senior Member D Telford, General Member Decision: (1) Under cl 7(b)(iv), Sch 5D to the National Law, the following evidence is not to be published: 1. Paragraphs 25, 66, 67, 68, 69, 70, 71, 72, 73, of Dr Pincock's statement dated 10 September 2024; 2. Paragraphs 14 - 17 of Dr Pincock's statement dated 19 September 2024; 3. Paragraph 6 of Dr Florida's report dated 16 September 2024 commencing from the words "The next major stress . . . " to the end of that paragraph. 4. Paragraph 8 of Dr Florida's report dated 16 September 2024 commencing from the words "Dr Pincock describes . . ." to the end of that paragraph. 5. Paragraph 9 of Dr Florida's report dated 16 September 2024 commencing from the words "and the birth . . ." to "intensified in 2015". 6. Paragraph 10 of Dr Florida's report dated 16 September 2024 commencing from the words "However, the combination . . ." to ". . .in relation to the children". 7. The content of a letter from Dr Pincock's former wife to the Tribunal dated 12 September 2024. 8. The matters identified in order 1 may be disclosed to: (i) the parties' legal representatives; (ii) the Tribunal; (iii) the Medical Council of New South Wales; and (iv) the Australian Health Practitioner Regulatory Agency (Ahpra). (2) Under cl 7(b)(iv), Sch 5D to the National Law, the following evidence is not to be published: 1. NOT FOR PUBLICATION 2. The following parts of Dr Florida's report of 16 September 2024: paragraph 3, paragraph 6 (from the beginning of that paragraph to the words "as a Medical Doctor"), paragraph 7 (apart from 7(ii) and (iii)), paragraph 8 (beginning with the words "Given Dr Pincock's . . . " and ending with the words "point in time"; paragraph 9, paragraph 10 and paragraph 16. 3. The matters identified in orders 1 and 2 may be disclosed to: (i) the parties' legal representatives (ii) the Tribunal; (iii) the Medical Council of New South Wales; and (iv) the Australian Health Practitioner Regulatory Agency (Ahpra) (3) Under s 149C(4) if the respondent were still registered, the Tribunal would have cancelled his registration and disqualified him from being registered as a medical practitioner for 18 months from the date of this decision. (4) The Medical Board of Australia is to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. (5) The respondent is to pay the applicant's costs as agreed or assessed. Catchwords: OCCUPATIONS – Health practitioners – misconduct and discipline – finding of professional misconduct – appropriate protective orders Legislation Cited: Health Practitioner Regulation National Law NSW Civil and Administrative Tribunal Act 2013 (NSW) Chiropractors and Osteopaths Act 1991 (NSW) (repealed) Cases Cited: Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 Health Care Complaints Commission v Nguyen [2022] NSWCATOD 21 Health Care Complaints Commission v Pincock [2024] NSWCATOD 89 Health Care Complaints Commission v Quan [2019] NSWCATOD 160 Health Care Complaints Commission v Reid [2019] NSWCATOD 31 Lee v Health Care Complaints Commission [2012] NSWCA 80 Puri v Medical Council of New South Wales [2024] NSWCATOD 87 Rinehart v Welker [2011] NSWCA 403 Shi v Migration Agents Registration Authority [2008] HCA 31 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 HCCC v Dinakar [2009] NSWMT 8 HCCC v Dr Mazzaferro [2011] NSWMT 9 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 State of NSW v Stanley [2007] NSWCA 330 Arain v Nguyen [2001] NSWCA 5 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Moseley v AB (No 2) [2017] NSWSC 1812 Health Care Complaints Commission v Haasbroek (No 2) [2018] NSWCATOD 198 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Tobias Pincock (Respondent) Representation: Counsel: K Sharma (Applicant) S Gaussen (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Makinson d'Apice Lawyers (Respondent) File Number(s): 2023/00271367 Publication restriction: See orders above REASONS FOR DECISION Overview 1. On 2 July 2024 the Tribunal decided that Dr Pincock had engaged in unsatisfactory professional conduct and professional misconduct and that he was not a suitable person to hold registration as a medical practitioner: Health Care Complaints Commission v Pincock [2024] NSWCATOD 89 (Stage 1 decision). This decision, the Stage 2 decision, is about the protective orders we should make. 2. The Tribunal has power to suspend or cancel a person's registration as a medical practitioner if it finds, as we have, that the person is guilty of professional misconduct or is not a suitable person for registration: Health Practitioner Regulation National Law (National Law), s 149C(1)(b) and (d). 3. As Dr Pincock is no longer registered, the Tribunal may decide that if he were registered the Tribunal would have suspended or cancelled his registration: National Law, s 149C(4). That is the order sought by the Commission. If we would have cancelled Dr Pincock's, we must decide whether to disqualify him from being registered for a specified period or until specified conditions have been complied with: National Law, s 149C(4)(b). 4. The Commission submits that Dr Pincock should be disqualified from being registered for two years. In addition, the Commission submits that Dr Pincock poses a "substantial risk to the health of members of the public". If that is the case, the Tribunal has power to make a prohibition order preventing him from providing any "health services", not just services provided by a medical practitioner, for the period of cancellation: National Law, s 149C(5A). We may also require the National Board to record the fact that the Tribunal would have suspended or cancelled Dr Pincock's registration in the National Register kept by the Board: National Law, s 149(4)(c). 5. Dr Pincock submits that a one year suspension is appropriate but if cancellation is thought to be necessary, a non-review period of one year is adequate. He submits that there should be no added restriction on his ability to provide other kinds of health services. 6. For the reasons we give below, we have decided that, if Dr Pincock were still registered, the Tribunal would have cancelled his registration and disqualified him from being registered as a medical practitioner for 18 months from the date of this decision. 7. Before setting out our reasons for making those protective orders, we will address two applications for non-disclosure and non-publication orders, one from Dr Pincock and one from his former spouse. We will then give reasons for two decisions we made at the hearing. The first was to make an interim suspension order preventing Dr Pincock from practising until the publication of these reasons. The second was to close the Stage 2 hearing to the public. Finally we deal with Dr Pincock's application that he should not have to pay all the Commission's costs. 8. In summary the issues are: 1. Should the Tribunal make orders prohibiting the publication of certain evidence? 2. What were the Tribunal's reasons for closing the Stage 2 hearing? 3. What were the Tribunal's reasons for making an interim suspension order? 4. What protective orders should the Tribunal make? In particular, if Dr Pincock were still registered: 1. would the Tribunal have suspended or cancelled his registration? 2. if the Tribunal would have cancelled his registration, should the Tribunal order that Dr Pincock be disqualified from being registered for a specified period or until specified conditions have been complied with; and 3. should the Tribunal require the National Board with which the practitioner was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration? 1. Should the Tribunal make a prohibition order? 2. Should Dr Pincock be ordered to pay all of the Commission's costs? Should the Tribunal make orders prohibiting the publication of certain evidence? The orders sought 1. Two applications were made for the Tribunal to prohibit the publication of certain evidence or other information – one from Dr Pincock's former spouse and the other from Dr Pincock. We have decided to make some of the orders sought in those applications. 2. Dr Pincock's former spouse applied for the following orders: 1. An order prohibiting or restricting the disclosure of my name, or the names of any of our three children in any decision or judgment published by the Tribunal; 2. An order prohibiting or restricting the publication or broadcast of any report tendered to the Tribunal, which may refer to me or any of our three children; 3. An order prohibiting or restricting the publication of any evidence given before the Tribunal, which may refer to me or any of our three children. 1. We note that Dr Pincock's former spouse made the application under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Where the Tribunal has been constituted by a panel, the source of the Tribunal's power to make non-publication orders is clause 7, Schedule 5D to the National Law: Puri v Medical Council of New South Wales [2024] NSWCATOD 87 at [135]. Based on the powers given to the Tribunal in that provision, we understand the application to be for a non-publication order in relation to "specified evidence" including the names of Dr Pincock's former spouse and their children and evidence referring to them: National Law, cl 7(1(b)(iv), Sch 5D. 2. Dr Pincock applied for orders under clause 7 of Schedule 5D of the National Law prohibiting publication of certain information relating to his mental health and ongoing Family Court proceedings. He also identified information relating to his former spouse and children. The orders sought by Dr Pincock, as amended in his 30 October 2024 submissions, were as follows: 1. Subject to order 2, pursuant to clause 7 of Schedule 5D of the National Law, the following must not be published pending further order of the Tribunal: 1. Evidence set out in the report of Dr Danielle Florida dated 16 September 2024 2. Evidence set out in the letter from [Dr Pincock's former spouse] to the Tribunal dated 12 September 2024; 3. NOT FOR PUBLICATION 4. NOT FOR PUBLICATION 5. Evidence in the statement of Dr Pincock dated 19 September 2024 set out in paragraphs [14] to [17]. 6. NOT FOR PUBLICATION 7. The names of [Dr Pincock's former spouse] and the three children of [the respondent's former spouse] being [names deleted]. 1. The matters identified in order 1 may be disclosed to: 1. the parties' legal representatives; 2. the Tribunal; 3. the Medical Council of New South Wales; and 4. the Australian Health Practitioner Regulatory Agency (Ahpra). 1. The Commission agreed to some of the orders sought by Dr Pincock but opposed others. In summary, the Commission agreed to: some, but not all, of Dr Florida's evidence being subject to a non-publication order; all of the evidence identified by Dr Pincock's former spouse being subject to a non-publication order; and some but not all of Dr Pincock's evidence being subject to a non-publication order. 2. The orders agreed to by the Commission are as follows: 1. Subject to order 2, pursuant to clause 7 of schedule 5D of the National Law, the following must not be published pending further order of the Tribunal: 1. NOT FOR PUBLICATION 2. Evidence set out in the letter from Dr Pincock's former wife to the Tribunal dated 12 September 2024. 3. NOT FOR PUBLICATION 4. NOT FOR PUBLICATION 5. Evidence set out in paragraphs [14] to [17] of the statement of Dr Pincock dated 19 September 2024. 6. NOT FOR PUBLICATION 1. The matters identified in order 1 may be disclosed to: 1. the parties' legal representatives; 2. the Tribunal; 3. the Medical Council of New South Wales; and 4. the Australian Health Practitioner Regulatory Agency (Ahpra). 1. In addition, both parties sought orders purportedly under s 64(1) of the NCAT Act, that third party access to the documents on the Tribunal's file containing the specified evidence be restricted. Both parties also requested that they be notified of any application by a third party for access to the file and be given an opportunity to be heard in respect of any application for those documents. 2. I am not satisfied that the Tribunal has power under s 64 of the NCAT Act to make the orders sought by the parties about third party access to the Tribunal's file. The procedures for inspecting documents in the Tribunal's registry are in Rule 42 of the Civil and Administrative Tribunal Rules 2014 (NSW). NCAT has published a policy on Access to, and Publication of, Information Derived from Proceedings in the Tribunal (NCAT Policy 4, October 2019). At paragraph 24 of that policy: There is no entitlement under r 42 to obtain access to documents that fall within the types of documents described in r 42(5). Those types include, without being exhaustive, documents that are privileged, that are covered by a non-disclosure order made by the Tribunal or whose disclosure is prohibited by legislation. If a person who is not a party to the proceedings wishes to challenge whether the documents fall within r 42(5) or to argue that a non-disclosure order should be set aside, the Tribunal will be required to give the parties notice of such an application and conduct a hearing, as the Tribunal determines is appropriate. (Emphasis in Italics added.) 1. This policy makes it clear that a third party will not be given access to any documents covered by a non-disclosure order, including a non-publication order. Parties will be given notice of any third party application to challenge whether the documents are covered by a non-publication order or that a non-publication order should be set aside. The procedures for dealing with an application by a third party for access to the Tribunal's files are set out in the Civil and Administrative Tribunal Rules and in NCAT Policy 4. There is no need to make the orders sought by the parties about third party access. Legal principles about making non-disclosure and non-publication orders in disciplinary proceedings under the National Law 1. Where the Tribunal has been constituted by a panel in proceedings under the National Law, the source of the Tribunal's power to make non-disclosure and non-publication orders is clause 7, Schedule 5D to the National Law: Puri v Medical Council of New South Wales [2024] NSWCATOD 87 at [135]. We set out that provision below: Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to— (a) a person who requested the direction; and (b) the complainant or the registered health practitioner or student concerned, as appropriate; and (c) another person the person presiding thinks fit. (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (5) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty— (a) in the case of a corporation, 150 penalty units; or (b) in any other case, 20 penalty units. 1. An interpretation of these provisions that will best achieve the purpose or object of the National Law is to be preferred to any other interpretation: National Law, cl 7 of Sch 7. Under s 3B of the National Law: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Under cl 7 of Sch 5D, the Tribunal may make non-disclosure or non-publication orders if it is "appropriate in the particular circumstances of the case". In determining whether it is appropriate to make such an order, the principle of open justice is relevant. One of the objectives of the national registration and accreditation scheme, which reflects the principle of open justice, is s 3A(2)(a): (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; 1. Open justice typically includes having a hearing that is open to the public, naming the parties and the witnesses and allowing publication of what transpires in the proceedings, including the evidence tendered. Unless the Tribunal makes an order to the contrary under clause 7, Sch 5D of the National Law, these features apply to hearings of the kind brought by the Commission against Dr Pincock. 2. The High Court has described the rationale for open justice as being "that court proceedings should be subjected to public and professional scrutiny . . .":Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 at [44], French CJ, Hayne, Kiefel, Bell and Keane JJ. 3. The principle of open justice is given greater prominence in court proceedings than in Tribunal proceedings. Under s 6 of the Court Suppression and Non-publication Orders Act 2010 (NSW): 6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 1. Under that legislation, an order derogating from the principle of open justice may be made only where it is "necessary" to do so on certain public interest grounds or in narrow circumstances to protect private interests: Court Suppression and Non-Publication Orders Act, s 8. In Rinehart v Welker [2011] NSWCA 403 at [106] the Court of Appeal approved of characterising "necessary" as a "strong word". The Court held that it is insufficient to reach a view that a suppression order should be made because it is merely "convenient, reasonable or sensible" to do so. The word "appropriate" in clause 7, Schedule 5D, is not as strong as the word "necessary" in the Court Suppression and Non-Publication Orders Act but it means more than merely "convenient, reasonable or sensible". 2. Clause 7 to Schedule 5D of the National Law is in relevantly identical terms to the now repealed clause 6(1) of Schedule 3 to the Chiropractors and Osteopaths Act 1991 (NSW) (repealed). A case that is often cited as to the meaning of that provision in the context of an application by a health practitioner for an order suppressing their name, is Walton v Momot [1997] NSWCA 334. In that case the Chiropractors and Osteopaths Tribunal had declined to make a suppression order during the currency of the proceedings in respect of the publication of the practitioner's name. On appeal, Spender AJ held that, "There is in my view no basis for importing ... a requirement that the circumstances must be special or exceptional for a suppression order to be made . . . .": quoted in Walton v Momot at 2. 3. The Court of Appeal held at 3, that Spender AJ ". . . erred in finding that there was no requirement that special or exceptional circumstances should be established before a suppression order could properly be made". In support of that conclusion, the Court of Appeal referred to the general principle that the Tribunal will sit in public: The general principle provided for in s 46 (3) [of the Chiropractors and Osteopaths Act 1991 (NSW)] is that the Tribunal will sit in public. If the Tribunal sits in public the details of proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such result. 1. In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69, the Appeal Panel undertook a comprehensive review of the relevant cases relating to suppression orders, including Walton v Momot. At [49], citing Shi v Migration Agents Registration Authority [2008] HCA 31 at [92], the Appeal Panel referred to the well-established principle that "[r]eference to decided cases must not be permitted to distract attention from the language of the applicable statute...". The Appeal Panel concluded at [82] that: ... we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition. 1. We note that the requirement for something "special", "exceptional" or "out of the ordinary" in Walton v Momot is expressed in the alternative. Something "out of the ordinary" will suffice. 2. In Bettington v Commissioner of Police [2021] NSWCATAP 110 at [41], the Appeal Panel warned against substituting the words "special" or "extraordinary" for the natural and ordinary meaning of the word "desirable" in s 49 and s 64 of the NCAT Act. We would sound the same caution in relation to the word "appropriate" in cl 7, Sch 5D. How to decide whether it is "appropriate" to make a non-disclosure or non-publication order 3. In determining whether it is appropriate to make a non-disclosure or non-publication order, we have adopted the approach taken by the Court of Appeal in proceedings under the Court Suppression and Non-publication Orders Act. In Council of the New South Wales Bar Association v EFA [2021] NSWCA 339 at [228] and [229] the Court distinguished between the 'probable harm' approach and the 'calculus of risk" approach: 228 Put briefly, the "probable harm" approach requires proof of the probability of harm in the absence of an order. The "calculus of risk" approach requires a more nuanced consideration, taking into account the nature, imminence and degree of likelihood of harm to occur to the relevant person. The "calculus of risk" approach appears, in the decided cases, to have gained ascendency as the preferred approach: see AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2019] HCA 6; AB (No 3) (NSWCCA); Wilson v Basson [2020] NSWSC 512 at [18]. 229 We likewise prefer the calculus of risk approach. The evidence established that, were the identity of the respondent to be publicly revealed, his mental health would be at risk. That conclusion would favour the making of an order restricting publication of identifying information. Against that has to be balanced the important consideration of open justice. More particularly, what has to be considered is the degree to which an order that would restrict identification of the respondent would encroach upon that principle. That encroachment would be minimal. Such an order would not restrict publication of the salient facts of the proceedings, that a barrister was the subject of disciplinary proceedings, the nature of the conduct that underlay the disciplinary proceedings, and the outcome of the disciplinary proceedings. 1. The Court was interpreting provisions of the Court Suppression and Non-publication Orders Act, but the general approach is similar for proceedings under the National Law. First, the steps in the reasoning process are the same. We set out our understanding of those steps below: 1. Make findings of fact about the reasons put forward by the applicant for non-disclosure or non-publication orders. 2. Assess the strength of those reasons including the nature, imminence and degree of likelihood of any harm occurring to the relevant person. 1. Balance those reasons using the "calculus of risk" approach, against the degree to which an order would encroach on the important consideration of open justice. Consideration Dr Pincock's former spouse's application 1. This application seeks an order prohibiting the disclosure of Dr Pincock's former spouse's name and the names of her children. As neither Dr Pincock's former spouse, nor any of their children, were witnesses in these proceedings, the Tribunal does not have power under Clause 7(1)(b)(iv) of the National Law to order that their names not be published. We note that the names of the children are not in evidence. This application also seeks a non-publication order over any report tendered to the Tribunal, and any evidence given before the Tribunal, which may refer to Dr Pincock's former spouse or their children. The Tribunal has power to make such an order, by prohibiting the publication of any specified evidence which refers to those people: National Law, Clause 7(1)(b)(iv). 2. Dr Pincock's former spouse seeks orders over evidence tendered in the Stage 1 proceedings. That evidence includes the evidence in Dr Pincock's statement of 11 January 2024. It is too late now to restrict the publication of the evidence tendered at the Stage 1 hearing. That hearing was open to the public and culminated in the unrestricted publication of written reasons for decision which referred to some of that evidence. We will consider the application only in relation to the evidence tendered at the Stage 2 hearing. 3. Dr Pincock consented to the orders sought by his former spouse being made. Initially the Commission neither consented to, nor opposed, those orders. In written submissions the Commission accepted that the names of Dr Pincock's former spouse and their three children should not be published, together with certain details concerning Family Court proceedings. 4. NOT FOR PUBLICATION 5. NOT FOR PUBLICATION 6. NOT FOR PUBLICATION 7. An order prohibiting publication of that evidence would have a small impact on the important consideration of open justice. Such an order would not restrict publication of the salient facts of the proceedings: that a medical practitioner was the subject of disciplinary proceedings; the nature of the conduct leading to the findings against him; and the outcome of those proceedings. Such an order would restrict publication of some of the evidence Dr Pincock and Dr Florida give about the reasons for making less onerous protective orders than those sought by the Commission. However, given the relatively small encroachment on the principle of open justice, and the fact that the health and safety of the public will not be affected, it is appropriate in the particular circumstances of this case, to make the orders prohibiting the publication of the following evidence which refers to Dr Pincock's former spouse and their children: 1. Under cl 7(b)(iv), Sch 5D to the National Law, the following evidence is not to be published: 1. Paragraphs 25, 66, 67, 68, 69, 70, 71, 72, 73, of Dr Pincock's statement dated 10 September 2024; 2. Paragraphs 14 - 17 of Dr Pincock's statement dated 19 September 2024; 3. Paragraph 6 of Dr Florida's report dated 16 September 2024 commencing from the words "The next major stress . . . " to the end of that paragraph. 4. Paragraph 8 of Dr Florida's report dated 16 September 2024 commencing from the words "Dr Pincock describes . . ." to the end of that paragraph. 5. Paragraph 9 of Dr Florida's report dated 16 September 2024 commencing from the words "and the birth . . ." to "intensified in 2015". 6. Paragraph 10 of Dr Florida's report dated 16 September 2024 commencing from the words "However, the combination . . ." to ". . .in relation to the children". 7. The content of a letter from Dr Pincock's former wife to the Tribunal dated 12 September 2024. 8. The matters identified in order 1 may be disclosed to: (i) the parties' legal representatives (ii) the Tribunal (iii) the Medical Council of New South Wales; and (iv) the Australian Health Practitioner Regulatory Agency (Ahpra) 1. Having made those orders in response to Dr Pincock's former spouse's application, there is no need to determine whether it is appropriate to make identical orders as part of Dr Pincock's application. Dr Pincock's application 1. As we have said in relation to Dr Pincock's former spouse's application, it is too late now to order that the publication of any of the evidence given at or tendered in the Stage 1 hearing be restricted. That includes the evidence in Dr Pincock's statement of 11 January 2024. Apart from the orders we have made in relation to Dr Pincock's former spouse's application, Dr Pincock applied for non-publication of: the whole of Dr Florida's report, paragraphs 26 and 29 of his 10 September 2024 statement and any evidence given at the 20 September 2024 hearing pertaining to the matters listed at 1(f)(i) to (x) of the proposed orders. For the reasons we give below, we closed the 20 September 2024 hearing. The effect of that order is that oral evidence given at that hearing cannot be published including any matter listed at 1(f)(i) to (x) of the proposed orders. 2. Dr Pincock submits that the evidence relating to his personal circumstances and his mental health are "particularly sensitive" and have the strong potential to cause him distress or embarrassment. Dr Pincock's treating psychiatrist, Dr Florida, expressed the opinion in her 16 September 2024 report that publication of Dr Pincock's name in association with his mental health issues could adversely affect him. Below we set out Dr Florida's evidence on that issue. We note that it is not necessary to suppress Dr Pincock's name to protect him from the potential consequences outlined in Dr Florida's report. It is sufficient to prohibit the publication of the evidence relating to those matters. 3. NOT FOR PUBLICATION 4. The Commission did not seek to cross-examine Dr Florida on that evidence. 5. Dr Pincock also relies on the evidence in paragraph 17 of his statement dated 19 September 2024 to support his application for a non-publication order. That paragraph is the subject of a non-publication order pursuant to Dr Pincock's former spouse's application. 6. NOT FOR PUBLICATION 7. NOT FOR PUBLICATION 8. The Commission opposed an order prohibiting the publication of the entirety of Dr Florida's report for two reasons. Firstly, some of the evidence has already been published in the Tribunal's Stage 1 decision. At [188] of the Tribunal's Stage 1 decision, the Tribunal referred to the fact that Dr Pincock's marriage broke down in 2010, that he was involved in Family Court proceedings, that he was diagnosed with Major Depressive Disorder in 2015 and he was diagnosed with Adult ADHD in October 2022. As this evidence has been published, there is no utility in making an order prohibiting its publication in the Stage 2 proceedings: Health Care Complaints Commission v Reid [2019] NSWCATOD 31 at [42] and Health Care Complaints Commission v Quan [2019] NSWCATOD 160 at [19]. We note that Dr Pincock acknowledged that the fact of the diagnosis of ADHD and Major Depressive Disorder had already been published. 9. NOT FOR PUBLICATION 10. NOT FOR PUBLICATION 11. NOT FOR PUBLICATION 12. NOT FOR PUBLICATION 13. As for Dr Florida's report itself, we have made non-publication orders over some of the evidence in that report when considering the application by Dr Pincock's former spouse. Apart from that evidence, the following evidence contains the kind of evidence Dr Florida considered should not be published: paragraph 3, paragraph 6 (from the beginning of that paragraph to the words "as a Medical Doctor"), paragraph 7 (apart from 7(ii) and (iii)), paragraph 8 (beginning with the words "Given Dr Pincock's . . . " and ending with the words "point in time"; paragraph 9, paragraph 10 and paragraph 16. 14. An order prohibiting publication of the evidence we have identified in Dr Pincock's statement of 10 September 2024 and in Dr Florida's report would have a small impact on the consideration of open justice. Such an order would not restrict publication of the salient facts of the proceedings: that a medical practitioner was the subject of disciplinary proceedings; the nature of the conduct leading to the findings against him; some of the evidence about his mental health, the fact that he has obtained treatment and the opinion that he has gained some insight into his actions. Non-publication will mean that the public does not have the full picture as to Dr Pincock's mental health or the full extent of the reasons he and Dr Florida give for making less onerous protective orders than those sought by the Commission. However, given the nature of the likely harm, the relatively small encroachment on the principle of open justice and the fact that the health and safety of the public will not be affected, it is appropriate, in the particular circumstances of this case, to make the following orders: 1. Under cl 7(b)(iv), Sch 5D to the National Law, the following evidence is not to be published: 1. NOT FOR PUBLICATION 2. The following parts of Dr Florida's report of 16 September 2024: paragraph 3, paragraph 6 (from the beginning of that paragraph to the words "as a Medical Doctor"), paragraph 7 (apart from 7(ii) and (iii)), paragraph 8 (beginning with the words "Given Dr Pincock's . . . " and ending with the words "point in time"; paragraph 9, paragraph 10 and paragraph 16. 3. The matters identified in orders 1 and 2 may be disclosed to: (i) the parties' legal representatives; (ii) the Tribunal; (iii) the Medical Council of New South Wales; and (iv) the Australian Health Practitioner Regulatory Agency (Ahpra). What were the Tribunal's reasons for closing the Stage 2 hearing? Power to close the hearing and the Tribunal's order 1. When the Stage 2 hearing commenced it was open to the public. On the application of Dr Pincock shortly after the hearing commenced, we made the following order: The hearing on 19 September 2024 is to be conducted partly in private. 1. The reference to the hearing being "partly" in private was appropriate because the hearing was not closed until shortly after the hearing commenced. 2. The source of the Tribunal's power to close a hearing is s165K of the National Law: 165K When hearings may be closed to public [NSW] Despite section 49(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal may make an order that a hearing for proceedings under this Law be conducted wholly or partly in private only if it is satisfied that it is desirable to do so in the public interest for reasons connected with the subject-matter of the proceedings or the nature of the evidence to be given. (Italics added) 1. The legal test highlighted in italics differs from that in s 49(2) of the NCAT Act. Under s 49(1) of the NCAT Act hearings are "open to the public unless the Tribunal otherwise orders". Under s 49(2): (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. (Italics added) Dr Pincock's submissions as to why the hearing should be closed 1. NOT FOR PUBLICATION 2. NOT FOR PUBLICATION 3. The Commission did not consent to or oppose the application to close the hearing. 4. NOT FOR PUBLICATION 5. NOT FOR PUBLICATION What were the Tribunal's reasons for making an interim suspension order? 1. At the Stage 2 hearing, we decided to suspend Dr Pincock's registration pending publication of these reasons for decision. The power to make such an order is in s 165L(3) of the National Law: 165L Interlocutory orders [NSW] . . . (3) The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's or student's registration if— (a) it has found the subject-matter of the complaint against the practitioner or student to have been proved; and (b) the complaint has not yet been finally disposed of; and (c) it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest. 1. Dr Pincock consented to an interim suspension order pending the making of protective orders. He accepted that given the nature of the complaints that have been proven the appropriate protective orders necessarily involve a period of time away from practice. That is also our view. 2. Each of the elements of s 165L(3) of the National Law is satisfied. Firstly, following the Stage 1 hearing, we found the subject matter of the complaint to have been proven. Secondly, as at the date of the hearing, the complaint had not been finally disposed of because protective orders had not been made. Thirdly, we are satisfied that it is appropriate to make an interim suspension order for the protection of the health or safety of the public and in the public interest. 3. Dr Pincock requested that any interim suspension order come into effect on 5 October 2024, two weeks from the date of hearing. In that period, Dr Pincock would not take on any new patients and would only see patients post-operatively. He would not operate except in a medical emergency which, he said, is a very rare occurrence. On 24 September 2024, the parties agreed to the following order which we made on that date: 1. Pursuant to s 165L(3) of the Health Practitioner Regulation National Law, the respondent's registration as a medical practitioner is suspended with effect from 5 October 2024. 2. Order 1 above ceases to have effect upon delivery of the Stage 2 decision in these proceedings. Note: Between the date of this order and 4 October 2024 (inclusive), the respondent undertakes: a. Not to perform any surgery on any new or existing patient except in the event of a medical emergency. b. To only consult with existing patients and not take on new patients. What protective orders should the Tribunal make? Tribunal's powers 1. As Dr Pincock is no longer registered, the Tribunal may decide that if he were registered the Tribunal would have suspended or cancelled his registration: National Law, s 149C(4). If we would have cancelled his registration, we must decide whether to disqualify Dr Pincock from being registered for a specified period or until specified conditions have been complied with: National Law, s 149C(4)(b). We may also require the National Board to record the fact that the Tribunal would have suspended or cancelled Dr Pincock's registration in the National Register kept by the Board: National Law, s 149C(4)(c). 2. In addition, the Commission submits that Dr Pincock poses a "substantial risk to the health of members of the public". If that is the case, the Tribunal has power to make a prohibition order preventing him from providing any "health services", not just services provided by a medical practitioner, for the period of cancellation: National Law, s 149C(5A). Legal principles 1. Under the National Law, the protection of the health and safety of the public must be our paramount consideration: National Law, s 3B. Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a). The law also provides that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality": National Law, s 3A(2)(c). Protecting the health and safety of the public is not confined to protecting future patients from the risk of harm. Protection includes deterring all doctors from engaging in similar misconduct and upholding public confidence in the standards of the medical profession: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher JA (Basten JA and Emmett JA agreeing). 2. The power to make any of the orders specified in s 149C is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] the Court of Appeal summarised three "important points": 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 1. In another Court of Appeal decision (Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638) guidance was given on how to measure the gravity of professional misconduct: The gravity of professional misconduct is not to be measured by reference to the worst cases, but the extent to which it departs from the proper standards. Relevant factors and weight 1. The seriousness of the proven misconduct, the risk that the conduct will be repeated, the period of time likely to be required for the practitioner to change his or her conduct and the need for deterrence are all relevant factors in determining the nature and scope of any protective order. 2. Factors to which we give little weight are the views of those who wrote letters of support, Dr Pincock's financial situation and any shortage of ENT surgeons in New South Wales. We address each of those matters below. 3. A long term employee, a professional colleague and a friend wrote letters attesting to Dr Pincock's good character and the positive changes they have observed. While these letters demonstrate support for Dr Pincock and attest to a change in his behaviour, they do not address the specific conduct the Tribunal found to have been substantiated. They do not give the Tribunal much comfort that Dr Pincock has insight or that he is unlikely to engage in similar conduct again. 4. Another factor to which we give very little weight is Dr Pincock's financial circumstances. We set out some details about his personal and financial situation in the following paragraph. 5. NOT FOR PUBLICATION 6. The financial impact of suspension or cancellation is of limited weight: Health Care Complaints Commission v Nguyen [2022] NSWCATOD 21 at [150]. Even if a deterioration in Dr Pincock's financial situation will adversely affect his former spouse and their children, that fact has little influence on our assessment as to the appropriate protective orders. The protection of the health and safety of the public must be our paramount consideration 7. We have given no weight to Dr Pincock's assertion that there is a shortage of ENT surgeons in New South Wales with waiting lists in the realm of about 6 months. Dr Pincock states that he is one of only three surgeons in NSW who has completed a fellowship in facial reconstruction from the American Academy of Facial Plastic Surgery and Reconstruction. He says that qualification equips him to conduct very difficult surgeries. Even if we accept that Dr Pincock is highly qualified and there is a 6-month waiting time for ENT surgery, that is not something that we are persuaded to take into account in the circumstances of this case. 8. Other evidence to which we gave limited weight are the findings of the Professional Standards Committee on 11 February 2016 and a previous Tribunal decision where Dr Pincock's name was anonymised. Those decisions were provided to support a submission by the Commission that Dr Pincock does not have a "clean record" so that a reprimand or caution is not appropriate. Even without evidence of those findings, we have come to the view that a period of suspension or cancellation is appropriate. 9. Dr Pincock submits that the fact that he voluntarily accepted an interim suspension until the publication of these Stage 2 reasons, should be taken into account when considering the appropriate time for any suspension of cancellation. While voluntarily accepting an interim suspension suggests that Dr Pincock appreciates the seriousness of his conduct, it is not a separate factor which weighs in favour of a shorter period of suspension or cancellation than we would otherwise have ordered. 10. Finally, we address Dr Pincock's submission that the delay in these proceedings being determined had some impact on his capacity to defend the proceedings. We acknowledge that the events the subject of these proceedings took place 9 years ago. No doubt those events would have been fresher in Dr Pincock's mind if the proceedings had been brought sooner. We can accept that the delay would have had some impact on Dr Pincock's ability to recollect the events. That is unfortunate but it is not a factor which is relevant to the protective orders we should make. 11. We turn now to address the factors which have significant weight when determining the nature and duration of an order to cancel or suspend Dr Pincock's registration. Seriousness of the proven misconduct 1. The Commission provided a summary of the Tribunal's findings in the Stage 1 proceedings. We adopt the substance of that summary in these reasons. 2. Dr Pincock was granted general registration in February 1998 and became a Fellow of the Royal Australasian College of Surgeons in 2006. He has been in private practice as an ear, nose and throat (ENT) and facial plastic/reconstructive surgeon since 2006. In 2015, Dr Pincock operated a number of clinics and practices. In early 2015, he set up a unit trust called the Australian Allergy Centre Trust (AAC Trust) Dr Pincock owned a majority of the units in the AAC Trust. 3. The Commission relied on six complaints in its Amended Complaint against Dr Pincock. 4. Complaint One was that Dr Pincock engaged in "unsatisfactory professional conduct" under s 139B(1)(a) of the National Law, that is, "conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". It relied on a number of particulars in relation to Patients A and B. 5. With respect to Complaint One, the Tribunal found as follows. In relation to Dr Pincock's conduct regarding Patient A: Complaints 1.1 and 1.5 (concerning Patient A's employment by Dr Pincock) were established. The Tribunal found that Dr Pincock offered Patient A employment when she was his patient and continued the therapeutic relationship after she commenced employment. He said words to the effect of "Come and work for me in our new clinic opening in November. Leave your current job and you will run the eye clinic at Edgecliff, and the practice." This was a significant conversation from Patient A's point of view. Her ENT surgeon, who regarded her as a "trusted friend" asked her to come and work in a clinic he was setting up. Complaints 1.2 and 1.3 (concerning Dr Pincock's encouragement of Patient A to invest funds) were established. The Tribunal found that Dr Pincock encouraged Patient A to invest in a business owned by the AAC Trust, and made representations to the effect that the investment would mean that her children with disabilities would be financially taken care of for life, and that the return on her investment would be $5,000,000 in five years. Dr Pincock did not have a reasonable basis to make those representations. Dr Pincock did not know, even in general terms, how much the business was worth or would be worth in five years' time. Complaints 1.4 and 1.5 (concerning Dr Pincock's receipt of investment funds from Patient A) were established. The Tribunal found that Dr Pincock accepted $335,000 from Patient A. Dr Pincock then continued the therapeutic relationship with Patient A, which had been ongoing for over six years, despite employing her and receiving investment funds from her. He did not tell Patient A that he could no longer see her as they had a commercial relationship and did not tell Patient A shortly after the 6 November 2015 consultation that he could not perform the surgery. Dr Pincock knew at the time that he should not have continued the therapeutic relationship with Patient A, but he did not do or say anything to end that relationship. 1. Dr Pincock's conduct with respect to Patient A, as proven, constituted unsatisfactory professional conduct. The Tribunal found: (i) With respect to Patient A's employment: Patient A was a long-term patient who Dr Pincock considered to be a "trusted friend". Dr Pincock continued a therapeutic relationship with Patient A after she commenced employment. Dr Pincock should have been mindful of the risks that boundaries were being crossed or that Patient A's care could be compromised when offering her employment. His judgement in offering Patient A employment and continuing that relationship was significantly below the relevant standard; (ii) With respect to the investment funds received from Patient A: The power imbalance between Dr Pincock and Patient A was significant. Dr Pincock was a successful ENT surgeon. Patient A had had 23 consultations with him and he had performed multiple surgeries. They "had formed somewhat of a friendship" and had discussed things that were not usual for a doctor to discuss. Patient A trusted Dr Pincock. He exploited the power imbalance in their relationship by encouraging her to invest and accepting funds while continuing the therapeutic relationship. He was not ethical or trustworthy. He did not avoid financial involvement and was not transparent. His judgment was significantly below the relevant standard. 1. With respect to Patient B, the Tribunal found: Complaints 1.9 and 1.10 (concerning Dr Pincock's receipt of funds from Patient B) were established. Dr Pincock accepted $200,000 from Patient B and continued a therapeutic relationship with him. Dr Pincock's conduct with respect to Patient B constituted unsatisfactory professional conduct. As with Patient A, there was a power imbalance between Patient B and Dr Pincock because of the doctor/patient relationship. Dr Pincock took advantage of the trust that Patient B had in him by accepting funds while continuing the therapeutic relationship. His judgment in doing so was significantly below the relevant standard. 1. Complaint Two was that Dr Pincock is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that he has engaged in improper or unethical conduct. 2. With respect to Complaint Two, the Tribunal found: (a) The conduct the subject of complaint 1.1 (continuing a therapeutic relationship with Patient A after she became an employee) was conduct that was at least "improper". Dr Pincock should have been mindful of the risk that boundaries were being crossed or that Patient A's care could be compromised when offering her employment. (b) By engaging in the conduct outlined in complaints 1.2, 1.3, 1.4, 1.5, 1.9 and 1.10 (relating to the investment of funds by Patient A and B), Dr Pincock was exploiting the power imbalance in the doctor/patient relationship to take advantage of Patient A and Patient B financially. That conduct was improper and unethical. (c) Dr Pincock knowingly misled the Commission in an email on 28 September 2018, in which he stated that Patient A's last consultation was on 6 November 2015 and that, at this last appointment, he made it clear to Patient A that he could no longer see her as a patient because of the commercial relationship in which they had entered. Dr Pincock knew at the time that he did not make it clear to Patient A that he could no longer see her as a patient. He was motivated by self-interest in making that representation to the Commission. That conduct was improper or unethical. 1. Complaint Three was that Dr Pincock was otherwise not a suitable person to hold registration in his profession (National Law, s 144(e)). 2. With respect to this complaint, the Tribunal found: Out of the investment funds received from Patients A and B, Dr Pincock directed the payment of $475,290 towards expenses unrelated to the AAC Trust. The details of how those funds were expended are set out [132]-[140]. Because of the large amount Dr Pincock had already invested in the AAC Trust, he considered that he could use the funds Patient A and Patient B had invested to pay his debts as they arose and to lend money in return for interest. In that sense, though not in a legally binding sense, he considered that the AAC Trust was indebted to him or owed him money. He thought he was entitled to use the funds for his own personal benefit. Before he used the funds, Dr Pincock failed to disclose to Patient A that the AAC Trust was indebted to him in the sense described above or that he intended to use the funds for his personal benefit. There was also no evidence that Dr Pincock disclosed to Patient B his decision to use the money for non-AAC Trust purposes or his personal benefit. Dr Pincock was not honest and forthright with Patients A and B. He did not act in their best interests. Dr Pincock directed a substantial part of the funds invested to expenses that were unrelated to the AAC Trust and which benefited Dr Pincock personally. He did not disclose to Patients A and B that he intended to use the funds for those purposes. The nature and extent of Dr Pincock's conduct made him "not suitable" to hold registration. The facts found proven in Complaints One and Two also contributed to Dr Pincock's unsuitability. 1. Complaint Four concerned Dr Pincock's failure to notify the National Board within 7 days of being charged on 18 May 2018 with one offence of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW). Complaint Five concerned a declaration by Dr Pincock, when renewing his registration on 22 August 2018. He failed to provide details of the charge outlined in Complaint Four. 2. Dr Pincock admitted Complaints Four and Five and those complaints were found to be proven. 3. Complaint Six was that Dr Pincock was guilty of professional misconduct under s 139E of the National Law. With respect to this complaint, the Tribunal found: Complaint 1.1 (entering into an employment relationship with Patient A and continuing the therapeutic relationship) was not serious enough to amount to professional misconduct or to contribute to an overall finding of professional misconduct. The remaining particulars of Complaint One were sufficiently serious to justify a finding of professional misconduct. Taking advantage of the power imbalance in the doctor/patient relationship in the manner and to the extent that Dr Pincock did, was an abuse of the trust that is so often a characteristic of those relationships. Complaint Two included an instance of knowingly misleading the Commission. In combination, the particulars of Complaint One (apart from Complaint 1.1) and Complaint Two amounted to professional misconduct. Complaints Four and Five involved breaches of requirements to give notice of certain events. In circumstances where the contraventions were not deliberate, these complaints did not amount to professional misconduct and did not contribute to an overall finding of professional misconduct. 1. As well as findings of professional misconduct, the Tribunal found that Dr Pincock is not a suitable person for registration. 2. Dr Pincock acknowledges that the Tribunal's findings in the Stage 1 proceedings are serious. Those findings, as outlined above, represent a significant departure from the proper standards. Dr Pincock encouraged Patient A to invest in a business, represented that her children with disabilities would be financially taken care of for life and that the return on her investment would be $5,000 in five years. He had no reasonable basis for those representations. He continued a therapeutic relationship with Patient A knowing that he should not have done so. Dr Pincock exploited the power imbalance in the doctor/patient relationship to take advantage of Patient A and Patient B financially. He has not been honest and forthright with Patient A in his financial dealings with her. He did not disclose his intentions as to how the money they invested would be spent and thought he was entitled to use the funds for his own personal benefit. He has behaved unethically including by knowingly misleading the Commission. Personal circumstances and mental health 1. NOT FOR PUBLICATION 2. Dr Florida is a psychiatrist who started seeing Dr Pincock in April 2020. Since then she has seen him approximately fifty times. In the last 18 months she has seen him fortnightly or weekly. Dr Florida prepared a report for these proceedings dated 16 September 2024. Dr Pincock had seen other psychiatrist before seeing Dr Florida. In 2016 he saw Dr Robert Fisher for a short period and then he saw Dr Ahmed for 12 months. He has also had appointments with Dr Atherton, a court appointed psychiatrist. 3. NOT FOR PUBLICATION 4. The diagnosis of Major Depressive Disorder was made in late 2015 by a psychiatrist who was treating Dr Pincock at the time. Dr Pincock believes the Depression resolved in early 2020 but he continued to take medication until January 2023. He believes that the depression has been treated and cured. Dr Florida also diagnosed Dr Pincock with ADHD. 5. NOT FOR PUBLICATION 6. NOT FOR PUBLICATION 7. NOT FOR PUBLICATION 8. NOT FOR PUBLICATION 9. NOT FOR PUBLICATION 10. NOT FOR PUBLICATION 11. NOT FOR PUBLICATION Dr Pincock's insight and remorse 1. Dr Pincock states that he has read the Tribunal's Stage 1 decision and accepts all the findings. In particular, Dr Pincock accepts that: No patient of mine should have been employed by a company of which I was a director regardless of how that employment came about; I never should have had any discussions with Patient A about finances or investments; I took advantage of the power imbalance which existed in the doctor/patient relationship; Accepting money from patients for the purpose of investing in the AAC Trust was deeply wrong and was a clear breach of boundaries and trust; I should have made a conscious choice between whether the relationship with Patient B remained solely a business relationship or shifted to a doctor-patient relationship. I accept that there was a power imbalance and a breach of trust; I never should have had any form of financial relationship with current or former patients; I will never repeat these mistakes again. 1. Where Dr Pincock gave evidence that is inconsistent with the Tribunal's findings he says he may have said things he now can't remember or, alternatively, he did not say those things. Either way, he acknowledges that he should never have encouraged Patient A to invest in his business. 2. In the Commission's submission, Dr Pincock has a degree of insight but has not fully integrated the details and the wrongfulness of what he did. The Commission clarified that it is not submitting that Dr Pincock's earlier denials of matters means that he has no insight. Rather, that there are gaps in his understanding of the significance of his conduct. 3. The Commission submitted that Dr Pincock does not appreciate the full extent of his wrongdoing. For example, Complaint 3 includes a finding that Dr Pincock encouraged Patient A to invest in circumstances where he thought he could spend the money on unrelated purposes and that he did not disclose that to Patient A. While he accepts at a high level that he should not have entered into a financial relationship, he did not acknowledge that he failed to disclose his intentions as to how the money would be spent or the fact that the funds were allocated to an unrelated purpose. 4. When questioned at the hearing about the degree to which he accepted the Tribunal's findings, Dr Pincock acknowledged that the problem was not just that he entered into a financial relationship with Patient A but that he used the money for things that he did not tell her about, he was not honest and forthright with her and he moved money around to suit his own personal agenda. Dr Pincock also accepted that he deliberately exploited the power imbalance between doctor and patient by accepting funds from Patient A and Patient B. His only qualification to that statement was that accounting entries show that he put the money back in but did not tell Patient A what was going on. 5. Dr Pincock says he takes responsibility for his actions and is deeply remorseful for the pain he has caused Patient A and Patient B. According to his treating psychiatrist, Dr Florida, he has expressed remorse during consultation. He acknowledges that he is "guilty" and has expressed shame. 6. Since speaking with treating mental health practitioners, he says he has gained valuable insights into why he allowed a patient to invest in his business. Dr Pincock acknowledged that he did not have an appropriate ethical framework at the time. He considered that the existence of a doctor/patient relationship was an "administrative thing that you could get around", rather than a fundamental barrier to forming financial relationships. 7. On 13 April 2017, Dr Pincock says he paid patient A $150,961.25 which is the equivalent of 50% of her shares. He said he could not pay the remaining 50% because he had been declared bankrupt and did not have the money to pay her personally. Dr Pincock also says that E4 paid back patient B 50% of his shares totalling $89,500. 8. Paying back some of the money is an acknowledgment of wrongdoing and an attempt to recompense Patient A and Patient B. Dr Pincock says that he now appreciates the nature and extent of his wrongdoing. He acknowledges that it was not only accepting the money from patients that was wrong but that it was wrong of him to use the money for things that were not related to the purpose for which his patients had invested. The genuineness of these statements of remorse and insight is supported by Dr Florida's evidence. 9. Dr Florida says that in the last nine months in particular Dr Pincock has begun to understand what prompted these behaviours. He is now more reflective, pragmatic and humble. She expressed the view that Dr Pincock's behaviours as outlined in the Stage 1 decision were "starkly different" from his behaviours over the last four years. 10. Dr Florida's conclusion was that she cannot imagine Dr Pincock engaging in the kinds of misconduct the Tribunal found in the Stage 1 decision today. In 2020 and 2021, Dr Pincock was minimising the boundary issues and making excuses but now he understands those boundaries. Dr Florida said he has been an engaged patient over 4 years and has committed to improving his mental health. 11. Dr Pincock has completed the following activities relating to boundaries and ethics: 1. Avant CPD course – Managing Professional Boundaries, completed 29 August 2024; 2. Personal reading – Good Medical Practice – A Code of Conduct for Doctors in Australia; Ethical Dilemmas of For-Profit Enterprise in Health Care; Medical Ethics – Lecture Series – Lecturi, Medical Ethics Manual 2015 – World Medical Association; 3. Discussions with treating practitioners helped him recognise that his decision making at the time may have been influenced by various mental health issues. 4. Discussions with non-medical contacts. 1. Based on the evidence from Dr Pincock and Dr Florida, we find that Dr Pincock has developed a substantial degree of insight into the wrongfulness of his conduct. He accepts, at a high level, that he should not have entered into the financial relationships and he is remorseful of the impact on Patient A and Patient B. However, we are not persuaded that he fully appreciates the wrongfulness of failing to disclose his intentions as to how the money was to be spent or how the money was actually spent. Nor are we persuaded that Dr Pincock fully appreciates that the money should not have been used for purposes unrelated to the AAC Trust. Taking into account each of the considerations we have identified, most significantly the very serious nature of the conduct, if Dr Pincock were still registered, the Tribunal would have cancelled his registration and disqualified him from being registered as a medical practitioner for 18 months from the date of this decision. Should the Tribunal make a prohibition order? 1. The Commission submits that, as well as cancelling Dr Pincock's registration Dr Pincock should be prohibited from providing any "health services" during the period of disqualification. A "health service" has the meaning given in the National Law: Health Care Complaints Act 1993 (NSW): National Law, s 138. In this case "health services" means other health services, not just services provided by a medical practitioner. 2. The power to make a prohibition order is in s 149C(5) and s 149(5A) of the National Law: If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. 1. The Tribunal discussed the meaning of the term "substantial risk" in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [19]. We adopt the Tribunal's interpretation of this phrase: Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services. 1. In Dr Pincock's statement of 11 January 2024 prepared for the Stage 1 hearing, he disclosed that the focus of his practice in Double Bay was "facial plastics orientation". The Taylor Clinic in Bella Vista focused on "non-surgical cosmetic medicine, such as botox and fillers". These kinds of services come within the definition of a "health service". The Commission's submission is that Dr Pincock should be subject to a prohibition order because of the way he exploited the trust of two of his patients. There is likely to be some level of power imbalance if Dr Pincock provides other kinds of health services. 2. Dr Pincock's response was that he does not know whether he is interested in providing any other health services but there should be no reason he cannot do so. 3. The legal test for determining whether to make a prohibition order is narrow. There must be "a substantial risk to the health of members of the public". Dr Pincock's misconduct, while serious, did not pose and real and material risk the health of his patients or members of the public. We are not satisfied that there would be such a risk if Dr Pincock engaged in other kinds of health services. Should Dr Pincock be ordered to pay all of the Commission's costs? Legal principles 1. The Tribunal has power to require the Commission or a registered health practitioner such as Dr Pincock to pay the costs of another party: National Law, Sch 5D, clause 13. The Tribunal has a broad discretion in relation to costs, but that discretion must be exercised judicially: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]. The ordinary rule is that costs follow the event, that is, the successful party is entitled to their costs: HCCC v Dinakar [2009] NSWMT 8; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67]. The onus is on the unsuccessful party to displace the ordinary rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; State of NSW v Stanley [2007] NSWCA 330 at [24]. 2. The general rule that costs follow the event will be displaced where there has been some kind of disentitling conduct on the part of the successful party. Disentitling conduct may include lengthening the proceedings unnecessarily, causing unnecessary issues to be canvassed or otherwise causing the costs of the litigation to be increased: Arain v Nguyen [2001] NSWCA 5 at [36] and [38]; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40] and [69]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. As Walton J held in Moseley v AB (No 2) [2017] NSWSC 1812 at [71]: The disentitling conduct does not necessarily need to amount to misconduct; it may simply be any conduct "calculated to occasion unnecessary expense": Lollis v Loulatzis (No 2) [2008] VSC 35 at [29]; Keddie v Foxall [1955] VLR 320 at 323–4. Parties' submissions on costs 1. The hearing was scheduled to commence on 4 March 2024. The parties made opening remarks and tendered materials. On the morning of the hearing the Commission confirmed that a statement of Professor Harvey, an expert witness, would not be relied on. The first witness for the Commission was called at 2 pm on 5 March 2024. On the morning of that day, the Commission confirmed that Patient B was not available to give evidence because of events that had transpired that day. The Commission provided evidence that Patient B's unavailability was not within their control. Three particulars of the Complaint 1 (1.6, 1.7 and 1.8) relating to Patient B's evidence, were withdrawn. 2. Dr Pincock submits that he should not have to pay the Commission's costs incurred on Monday 4 March 2024 and Tuesday 5 March 2024 before 2 pm or the costs of withdrawn particulars. Dr Pincock also submits that he should not have to pay the Commission's costs of withdrawing Complaint 1.11 relating to inappropriate billing codes. 3. The Commission submits that as the general rule is "costs follow the event" and as they have been entirely successful, Dr Pincock should pay their costs. The failure to call Prof Harvey, the fact that Patient B was not available and the withdrawal of certain particulars are not forms of disentitling conduct. Reasoning and decision 1. The Commission was the successful party and is entitled to their costs subject to any disentitling conduct. The Commission made a forensic decision on the day of the hearing not to call Prof Harvey. While Dr Pincock would have incurred some costs in preparing to cross-examine Prof Harvey, the Commission's decision was not misconduct, nor was it designed to lengthen the proceedings. 2. Patient B's unavailability was not the fault of the Commission and cannot be characterised as disentitling conduct. The late withdrawal of particulars was because Patient B decided not to give evidence. The withdrawal of particular 11 of Complaint 1 relating to inappropriate billing codes did not relate to Patient B but was insignificant in terms of the overall costs incurred. 3. The facts in this case are not comparable to those in Health Care Complaints Commission v Haasbroek (No 2) [2018] NSWCATOD 198 where costs were discounted, in part, because of "disentitling conduct". That conduct was "the late withdrawal of particular 4 of Complaint Four, the even later withdrawal of particular 7, improper reliance on particular 8, and the continued reliance on particular 1 of Complaint Four where such reliance was contrary to law": at [16]. The Tribunal held that that conduct justified a departure from the usual rule in respect of costs such that the practitioner was ordered to only pay 50% of the Commission's costs. 4. As there was no disentitling conduct on the part of the Commission in this case, costs should follow the event. Orders 1. Under cl 7(b)(iv), Sch 5D to the National Law, the following evidence is not to be published: 1. Paragraphs 25, 66, 67, 68, 69, 70, 71, 72, 73, of Dr Pincock's statement dated 10 September 2024; 2. Paragraphs 14 - 17 of Dr Pincock's statement dated 19 September 2024; 3. Paragraph 6 of Dr Florida's report dated 16 September 2024 commencing from the words "The next major stress . . . " to the end of that paragraph. 4. Paragraph 8 of Dr Florida's report dated 16 September 2024 commencing from the words "Dr Pincock describes . . ." to the end of that paragraph. 5. Paragraph 9 of Dr Florida's report dated 16 September 2024 commencing from the words "and the birth . . ." to "intensified in 2015". 6. Paragraph 10 of Dr Florida's report dated 16 September 2024 commencing from the words "However, the combination . . ." to ". . .in relation to the children". 7. The content of a letter from Dr Pincock's former wife to the Tribunal dated 12 September 2024. 8. The matters identified in order 1 may be disclosed to: (i) the parties' legal representatives; (ii) the Tribunal; (iii) the Medical Council of New South Wales; and (iv) the Australian Health Practitioner Regulatory Agency (Ahpra). 1. Under cl 7(b)(iv), Sch 5D to the National Law, the following evidence is not to be published: 1. NOT FOR PUBLICATION 2. The following parts of Dr Florida's report of 16 September 2024: paragraph 3, paragraph 6 (from the beginning of that paragraph to the words "as a Medical Doctor"), paragraph 7 (apart from 7(ii) and (iii)), paragraph 8 (beginning with the words "Given Dr Pincock's . . . " and ending with the words "point in time"; paragraph 9, paragraph 10 and paragraph 16. 3. The matters identified in orders 1 and 2 may be disclosed to: (i) the parties' legal representatives (ii) the Tribunal; (iii) the Medical Council of New South Wales; and (iv) the Australian Health Practitioner Regulatory Agency (Ahpra) 1. Under s 149C(4) if the respondent were still registered, the Tribunal would have cancelled his registration and disqualified him from being registered as a medical practitioner for 18 months from the date of this decision. 2. The Medical Board of Australia is to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. 3. The respondent is to pay the applicant's costs as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2024