Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Power (No 2) [2025] NSWCATOD 17 Hearing dates: 13 November 2024; 18 November 2024; 21 November 2024 (written submissions) Date of orders: 25 February 2025 Decision date: 25 February 2025 Jurisdiction: Occupational Division Before: A Britton, Deputy President Dr A Ware, Senior Member Dr R Engel, Senior Member Dr R Leontini, General Member Decision: (1) Dr Power's registration as a chiropractor and Chinese medicine practitioner is cancelled under s 149C(1)(b) of the Health Practitioner Regulation Law (NSW). (2) Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), Dr Power may not apply for review of the cancellation order for 24 months. (3) Dr Power is to pay 65 per cent of the Health Care Complaints Commission's costs of these proceedings as agreed or as assessed under the Legal Profession Uniform Law Application Act 2013 (NSW). (4) The application made by Dr Power for a non-publication order in respect of his name under cl 7(1)(b)(iii) of Sch 5D to the Health Practitioner Regulation Law (NSW), is refused. Catchwords: OCCUPATIONS — health practitioner — chiropractor and Chinese medicine practitioner — finding of professional misconduct — appropriate protective orders COSTS — principles governing the exercise of the discretion to award costs under Health Practitioner Regulation National Law (NSW) — whether applicant had engaged in "disentitling conduct" COSTS –– principles governing apportionment of costs –– multiple issues in proceedings — applicant partly successful PRACTICE AND PROCEDURE — principles governing the discretion to make a non-publication order in respect of name of respondent health practitioner under cl 7(1) of Sch 5D to the National Law Legislation Cited: Chiropractors and Osteopaths Act 1991 (NSW) (repealed), s 46(3) Civil and Administrative Tribunal Act 2013 (NSW), ss 3(f), 49 Court Suppression and Non-publication Orders Act 2010 (NSW) Court Suppression and Non-Publication Orders Act 2020 (NSW) Health Practitioner Regulation National Law (NSW), ss 3, 3A-B, 144(b), 144B(1), 145C(a), 139E, 149, 149A, 149C(1), 149C(7), 150C, 165K; sub-div 6, div 3 of Pt 8; cll 7(1), 7(1)(b)(iii), 13(1) of Sch 5D Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Council of the New South Wales Bar Association v EFA [2021] NSWCA 339 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v FDE [2021] NSWCATOD 215 Health Care Complaints Commission v GGZ [2024] NSWCATOD 53 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Pincock [2024] NSWCATOD 202 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v Wilcox (No 2) [2020] NSWCATOD 51 Health Care Complaints Commission v ZXY [2021] NSWCATOD 136 Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274 Nitopi v Nitopi (No 2) [2022] NSWCA 199 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 NSW v Stanley [2007] NSWCA 330 Oshlack v Richmond River Council (1998) 193 CLR 72 Oshlack v Richmond River Council (1998) 193 CLR 72 at [65]; [1998] HCA 11 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Puri v Medical Council of New South Wales (No 2) [2024] NSWCATOD 122 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Walton v Momot [1997] NSWCA 334 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Williams v Lewer [1974] 2 NSWLR 91 Texts Cited: Nil. Category: Consequential orders Parties: Health Care Complaints Commission (Applicant) Terry Power (Respondent) Representation: Counsel: I Chatterjee (Applicant) R Rodger (Respondent) Solicitors: Health Care Complaints Commission (Applicant) File Number(s): 2023/00008057 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of the complainants in the 2023 and 2013 complaints is prohibited. REASONS FOR DECISION 1. In a decision handed down in 2024, we found chiropractor and Chinese medicine practitioner, Dr Terry Power guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) (the National Law): Health Care Complaints Commission v Power [2024] NSWCATOD 62 (the Decision). 2. These reasons address the questions: 1. whether to exercise the discretion to make protective orders in respect of Dr Power and, if so, the form of orders; 2. whether to exercise the discretion to order that Dr Power pay some or all of the costs of the Health Care Complaints Commission (the Commission); and 3. whether to exercise the discretion to make orders prohibiting the publication of Dr Power's name in relation to these proceedings. 1. For the reasons that follow, we have decided to cancel Dr Power's registration, to order that he not apply for review of that order for a period of two years, to order that Dr Power pay 65 per cent of the Commission's costs. In addition, we decline to make an order prohibiting publication of Dr Power's name. 2. These reasons should be read in conjunction with the Decision. Should protective orders be made in respect of Dr Power and, if so, what orders should be made? 1. The Commission urges us to cancel Dr Power's registration and to order that he not apply for re-registration for a period of 24 months. On the other hand, Dr Power urges us to impose conditions on his registration, including that he be subject to "remote supervision". He contends that a cancellation order is punitive, unnecessary for the protection of the public and contrary to established principles. Complaints made by Patient C and D Preliminary issues 1. Before considering the submissions made by the parties, we address a preliminary issue: whether, in exercising the discretion to make protective orders, it is appropriate to consider the evidence of complaints made about Dr Power by two former patients to whom we will refer in these Reasons as Patients C and D. The Commission tendered that evidence after we handed down the Decision in the second stage of these proceedings (the Stage 2 proceedings). Those complaints did not form part of the complaint referred by the Commission to the New South Wales Civil and Administrative Tribunal (NCAT) in January 2023 (the Complaint) that was the subject of the Decision. 2. The Commission said that it seeks to rely on that evidence for the purpose of demonstrating that Dr Power: has a lengthy history of failing to maintain a distinction between his private and his professional life; is reckless in maintaining boundaries between personal and professional relationships; lacks a "clinical mindset"; and has a history of demonstrating a "certain looseness" in his approach to clinical practice. While not put in these terms, we understand the latter allegation to mean that Dr Power practices outside the scope of chiropractic practice and Chinese medicine. 3. In addition, the Commission seeks to rely on the complaint made by Patient D to demonstrate that Dr Power failed to comply with the conditions imposed on his registration by the Chiropractic and Chinese Medical Council of New South Wales (the Council) in August 2020. Those conditions included one that Dr Power not consult, assess and/or treat female clients (the 2020 Conditions). 4. Dr Power objects to us considering the evidence about the complaints made by Patients C and D and contends that that evidence is prejudicial and irrelevant to the question of whether we should exercise the discretion to make protective orders. Dr Power denies failing to comply with the 2020 Conditions. However, we understand that he does not object to us considering the evidence in relation to that alleged failure. Consideration 1. The complaints made to the Commission by Patients C and D have not been referred to NCAT for determination. Patient C withdrew her complaint shortly after it was made. We understand the Commission is currently investigating the complaint made by Patient D. 2. Any person can make a complaint to the Commission about a registered health practitioner alleging that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct: National Law, ss 144(b), 144B(1). Once a complaint has been made to the Commission, several courses of action are available to the Commission, including, after consultation with the Council for the health profession in which the practitioner is registered, a referral of the complaint to NCAT: National Law, s 145C(a). 3. Where NCAT finds the subject-matter of a complaint against a health practitioner to have been proven, or the practitioner admits to it in writing, NCAT may exercise any of the powers in Sub-Div 6, Div 3 of Pt 8 of the National Law: National Law, s 149. These include the power to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or to complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice: National Law, s 149A. Where NCAT finds a health practitioner guilty of professional misconduct it may cancel or suspend their registration: National Law, s 149C(1). 4. In exercising the disciplinary powers conferred by Sub-Div 6, Div 3 of Pt 8, the Tribunal must have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in ss 3 and 3A of the National Law. In addition, the Tribunal must give paramount consideration to the protection of the health and safety of the public: National Law, s 3B. The National Law does not stipulate any other matters the Tribunal must or must not consider in the exercise of its disciplinary powers. 5. In these proceedings we raised with the Commission our concern about the appropriateness of having regard to evidence about complaints which are neither the subject of the initiating complaint nor have been referred to NCAT for determination. Given that the power to make disciplinary orders is only enlivened where the Tribunal finds a complaint proven, or the practitioner admits to the subject-matter of the referred complaint, it seems somewhat anomalous that the Tribunal could take into account evidence of complaints that had not been referred for determination. Nonetheless, we accept that evidence about a complaint which has not been determined by NCAT may be relevant to the exercise of the discretion to make disciplinary orders. 6. Without proper argument this is not the occasion to conclusively determine the extent to which the Tribunal can have regard to allegations about a health practitioner contained in a complaint which has not been referred to NCAT for determination, in the exercise of its disciplinary powers. We have decided to take into account the evidence in relation to the complaints made by Patients C and D on a more limited basis than that urged by the Commission. We will not address or make findings about the allegations made by Patients C and D about the nature of their relationship with Dr Power and for current purposes accept the facts admitted by Dr Power about the nature of those relationships. Nor will we consider the claims made by Patients C and D about the scope of treatment provided by Dr Power, said by the Commission. We will largely restrict our consideration to the evidence relevant to the following questions: 1. Whether Dr Power consulted or treated Patient D and or his mother after the 2020 Conditions came into effect; 2. Whether the admitted personal relationship with Patient D demonstrated that Dr Power lacks judgment and a proper of understanding of the need to maintain professional boundaries with patients. Complaint made by Patient C 1. On 13 August 2013, Patient C made a complaint to the Commission about Dr Power. Eleven weeks later she withdrew that complaint. Patient C was a patient of Dr Power between October 2008 and December 2012. 2. In a detailed letter to the Commission dated 31 October 2013, Dr Power addressed the allegations made by Patient C and said in conclusion: "Moving forward Reflecting upon the treatment I have provided to [Patient C] I feel as though I have delved too much into the pure emotional issues of [Patient C's] problems. Moving forward I will ensure that I maintain my professional relationship with all of my patients by: • never consulting a patient outside of clinic hours outside of the practice; • restricting my telephone contact with patients to business hours; and • ensuring that I maintain a level of professionalism in my emails. This experience has taught me the importance of maintaining the boundary between my professional dealings and my personal dealings. It has also reinforced to me the importance of continually monitoring my patient's emotional state and recognising when a patient's condition is beyond my ability to treat them and to immediately refer them to appropriate specialists and doctors. In order to ensure this situation does not arise again, and to ensure I am aware of a process to properly deal with a similar circumstance which may arise in the future, I am actively sourcing an appropriate course on professional boundaries. I expect to complete the course of this nature within the next 6-12 months." (Emphasis added) 1. After receiving that response, the Commission referred Patient C's complaint to the Council for management. 2. On 28 January 2014, at the direction of the Council, Dr Power attended an interview with delegates of the Counselling Committee of the Council (the Committee). In a report of that interview, the Committee recorded that Dr Power said that the allegations made by Patient C were false. He said that Patient C was a fragile person, he wanted to help her and over time she made increasing demands on his time. He agreed to meeting Patient C outside the practice on two occasions. 3. In its report the Committee recorded that, when asked to comment about what might have led Patient C to make the complaint, Dr Power said: "[I]t was not maintaining effective boundaries, didn't think clearly and accurately, he should have insisted that she attend classes. He thought he was being compassionate and professional, he should have recognised that she was very vulnerable, suffering anorexia, drinking problems and sexual/relationship problems. Meridian Lawyers have recommended a boundary course 'North Coast Boundary Course' and he intends to attend it. The Committee advised that the Council was in place to protect the public and not the practitioner. Dr Power was advised that the Committee would further discuss the matter and consider the outcome including what further action might be required." 1. In conclusion the Committee wrote: "Outcome The Council further discussed the Counselling session and held concerns that [Dr Power] didn't appreciate what his contribution was to the set of events that brought him before the Council. Given these concerns, whilst the Council did not have the power through the counselling session to impose a condition on Dr Power, the Council resolved to strongly recommend to Dr Power that he undertake at least four (4) mentoring sessions over a period of six (6) months with a suitable mentor to further explore the issues raised in the complaint. The Council considered that Dr Geoff Irvine would be a suitable senior practitioner to provide mentoring to Dr Power which would be at his expense, although the ultimate choice of mentor would be left to Dr Power. The Council encouraged him to consider engaging a senior practitioner as his mentor. The mentoring should include checking record keeping and discussion on maintaining appropriate professional boundaries with patients. The Council notes that whilst it cannot compel Dr Power to undergo such mentoring, he would be wise to do so given the Council's ongoing concerns in relation to his insight with respect to his contribution to the allegations in the complaint. Dr Power is invited to provide the Council with a report from his mentor, outlining the outcome of the mentoring sessions, following its conclusion." 1. The Council took no further action in relation to Patient C's complaint. 2. In these proceedings Dr Power said that following Patient C's complaint, he undertook "boundary training" with Davaar Consultancy and had a few sessions with a clinical psychologist. Dr Power said he learnt from that training that patients can feel "vulnerable and open to feeling taken advantage of" and that a "vulnerable patient especially one who has mental health issues can mistakenly and even at times purposefully confuse the interactions to serve protecting their own self-esteem and sense of shame". Dr Power said it was only when he did that training that he came to realise that his relationship with Patient C was in the nature of a "dual relationship" (a concurrent professional and personal relationship). Complaint made by Patient D 1. In a complaint lodged with the Commission on 1 November 2023, Patient D alleged among other things that she was treated by Dr Power after he "lost his licence to practice on women". On 17 November 2023 following referral of that complaint by the Commission, the Council conducted proceedings under s 150C of the National Law and suspended Dr Power's registration. That suspension remains in force to this day. 2. Dr Power met Patient D in 2007 and commenced treating her in 2010. According to Dr Power they initially had a casual friendship which later developed into a close friendship which ended acrimoniously in 2023. Dr Power denies that he continued to treat Patient D after the 2020 Conditions came into effect. 3. At pp 6, 7 of the reasons for its decision to suspend Dr Power's registration (the Council's Reasons), the Council summarised Dr Power's response to the complaint made by Patient D. The Council recorded that Dr Power said that after the 2020 Conditions were imposed: 1. the nature of his relationship with Patient D had been one of "friendship" only; 2. he and Patient D communicated most days, usually by text messages; 3. when invited, he visited Patient D at her home; 4. he and Patient D supported each other through their mutual interests in "intuition", "spirituality", "prayer energy work" and Reiki techniques; 5. he and Patient D performed Reiki techniques and "pressure point work" on each other as "between friends and who were helping each other spiritually". Reiki involved some touching, mainly on the top of the head, shoulder, and abdomen but "nothing that resembled chiropractic treatment or acupuncture"; 6. before touching Patient D, it was his practice to ask her to give verbal consent. He is aware of the importance of obtaining consent even among friends. 1. At pp 7, 8 of the Council's Reasons, the Council discussed the claim made by Patient D that she had modelled for Dr Power for a book he was writing about pelvic floor exercises. Dr Power said that Patient D did nude modelling work for local artists and had volunteered to model for his book. Dr Power said that he had offered to pay Patient D, it was all done "professionally", he wore gloves while pointing to various parts of Patient D's anatomy, and, on occasion, touching Patient D with her "full consent". 2. At p 7 of the Council's Reasons, noting the broad definition of "practice" in the Chiropractic Board of Australia, Code of Conduct, the Council said that it was arguable that Dr Power's actions in taking photographs of Patient D for his book fell within that definition. The Council said that it was concerning that Dr Power had discussed the book with a person with whom he had had a therapeutic relationship and who appeared to have "significant vulnerabilities". The Council found that Dr Power "did not recognise the potential professional boundary issues involved in having [Patient D] pose for photographs of intimate body parts". 3. The Council concluded that Dr Power has "likely breached the conditions of his registration by providing therapy to [Patient D] in her home after August 2020": "At the least, Dr Power appears to have been providing some type of hands-on "therapy" in the form of what he calls Reiki and "pressure point work". As a registered Chinese medicine practitioner, the use of any type of pressure point therapy could be viewed as acupuncture practice. It is also arguable that taking photos of the complainant's intimate body parts for the purposes of writing a book about professional therapeutic techniques would also constitute "practice". In our view, it is not unreasonable that a patient would interpret the therapy/treatment described by Dr Power as chiropractic or acupuncture type practice, given she has had similar treatments with Dr Power in his clinic in the past. It is of serious concern that Dr Power would continue to offer any therapy/treatment to a female patient in these circumstances, especially given her history of significant vulnerabilities, as reported by herself and Dr Power. Apart from anything else, this demonstrates a significant lack of insight and understanding of Dr Power's professional obligations and responsibilities as a registered health practitioner. We note similar concerns have been raised by previous delegates of Councils in earlier s.150 proceedings." (Emphasis added) Did Dr Power treat Patient D after August 2020? 1. The Commission contends that it is open to the Tribunal to find that Dr Power continued to treat Patient D after August 2020. In support the Commission points to the evidence given by Dr Power in these and the November 2023 section 150 proceedings, including his admission that after August 2020, he continued to perform "ancillary work" on Patient D which he had been performing before August 2020 in the course of "standard" chiropractic sessions. In addition, the Commission relies on a series of messages sent between Dr Power and Patient D using the app, Telegram. 2. Dr Power denies providing chiropractic or Chinese medicine treatment to any female person, including Patient D, after the 2020 Conditions came into effect. He said that when those conditions were imposed, he immediately stopped treating all patients, male and female. He said that while the 2020 Conditions permitted him to treat male patients, he felt he was not in a fit state of mind to do so. He said that in 2022 he commenced treating a handful of male family members and friends for the purpose of maintaining his registration as a health practitioner. 3. In support of his claim that he stopped treating female clients in August 2020, Dr Power relied on: 1. Statements prepared by his brother, chiropractor, Dr Leigh Power and his sister, a massage therapist. Both work at the practice where Dr Power was working when the conduct the subject of the complaints in relation to Patients A and B occurred (the Family Practice). They said that after August 2020, Dr Power no longer worked at the Family Practice and patients were informed that he would not be seeing any patients for the foreseeable future. They claimed that after August 2022 the treatment rooms that had been used by Dr Power were no longer in use. Those claims were supported by receptionists employed by the Family Practice. 2. Dr Leigh Power's statement that after August 2020 he took over the treatment of Patient D. That claim was supported by his sister and the receptionists who worked at the Family Practice. 3. A character reference dated 17 July 2022 prepared on behalf of Patient D, in which Dr Power said that he had treated Patient D "regularly from 24 October 2010 until August 2020". Patient D tendered that reference in proceedings in the NSW Local Court. The defendant in those proceedings, Patient D had been charged with the offence of drink driving. 4. Statements prepared by several former patients who said that they were not treated by Dr Terry Power after August 2020. 5. Statements prepared by several female friends and acquaintances who said that after August 2020 Dr Terry Power declined their request for treatment and said that he was not permitted to treat female patients. 1. In a statement prepared for these proceedings (Exhibit R 6), Dr Power said that when the 2020 Conditions were imposed, he informed all patients, including Patient D, that he was unable to continue to treat them. 2. Dr Power said that after August 2020: 1. he did not perform chiropractic or acupuncture work on Patient D; 2. he and Patient D engaged in energy work and "occasionally some pressure points that can be done between friends". That was not work of a professional nature but work that friends can perform on each other, "even if they had a prior [patient/practitioner] relationship, as long at the interaction is now informal – and not a continuation of the previous professional relationship" (Exhibit R 6 at [402], [403]). Telegram messages 1. The Commission tendered copies of Telegram messages purporting to have been sent to and from Patient D and Dr Power, spanning the period March 2021 to September 2023 (Exhibit A10). 20 August 2021 messages From Patient D to Dr Power: "can we have a home visit because of bad neck pain." From Dr Power to Patient D: "Hallo [Patient D] yes that doesn't sound good at all for you to ask for a home visit it means it must be serious and it's important you looked after I'm at a construction site at Wauchope today but can come on the way through going back home when we've finished We are allowed to do this this because it is an essential that then takes pressure off medical facilities and hospitals Just because of Covid rules I'll have a mask on and if anyone at you home can also have mask on and we can socially distance anyone at your residence." 9 September 2021 messages From D to Dr Power "Hello Terry Sorry to bother you but I saw your brother yesterday for treatment and I'm in a lot of pain still. He is booked out today and can't see him again and truthfully … to get out is hard with my arm and neck I just need to be still. Can you please do a home visit ASAP? I would so appreciate it. Regards [Patient D]" From Dr Power to Patient D "Oh that's no good at all [Patient D] Yes I will help … actually I have a chance right now if your home? Oh yes you said your home Ok I'll get sorted and come. Of course we all know the covid rules so we have to be sure to follow them. Masks and distancing of others. Best regards Terry Power" Dr Power's response to the Telegram messages 20 August 2021 message 1. Dr Power denied sending the 20 August 2021 message reproduced above. He claimed that on that day he was working on a building site. Patient D visited him at that site, said she was anxious and asked him to visit her at home. Dr Power claimed that he told Patient D that he could not visit her "except for emergencies", apparently in reference to the COVID-19 rules then in place restricting the movement of individuals. According to Dr Power, at her request he handed Patient D his phone which she used to send the message reproduced above. He claimed that he did not read that message. It was his practice to delete all messages from his Telegram app. 9 September 2021 message 1. Dr Power denied sending the 9 September 2021 message reproduced above and claimed it had been edited by Patient D. In support he tendered several articles he obtained from the internet which claimed that it was relatively simple to edit messages sent and received using Apps, such as Telegram, see, for example, Exhibit R8, pp 93-98. 2. In addition, Dr Power claimed that the language contained in that message was not typical of the language he used in sending messages to Patient D which was less formal and more personal. He pointed to the sign off, "Best regards, Terry Power" used in that message and contrasted it with the sign offs, "love and light" or "love" contained in most of the messages tendered by the Commission. Patient D's motivation in making the complaint 1. Dr Power said Patient D's claim that he continued to treat her after August 2020 was entirely false and was likely the result of "deep past trauma and a drug-affected mentally". He claimed that he and Patient D had been on good terms until late 2023 when he locked one of her "shamans" out of a building site where he was working. He said Patient D identified as a witch and her shamans were seeking to punish him because they falsely believed that he had been doing "dark magic voodoo" on Patient D. We understand Dr Power to mean to use the word "shaman" to mean a spirit. 2. In a statement prepared for these proceedings, Dr Power's wife said that she believed that Patient D was vexatious and vengeful. She said she had viewed entries made by Patient D on Facebook and in her opinion, they demonstrated that Patient D had decided to "impose as much damage as she could on myself, Terry, our marriage and our clinic". 3. Dr Power claimed that he is not the only person to have been vindictively targeted by Patient D. In support he tendered several statements prepared by friends and acquaintances who claimed that Patient D had made false claims about them and was mentally unstable. Consideration 1. We find that as claimed Dr Power did not treat Patient D or any other female patient at the Family Practice after August 2022. In addition, we find that when the 2022 Conditions were imposed, Dr Power informed former and prospective patients, including Patient D, that he would be unable to treat them for the foreseeable future. Further, we find that after August 2020 Dr Power did not provide Patient D with the full suite of chiropractic and Chinese medicine therapies, he had been using in treating her before August 2020. 2. However, that does not dispose of the question, whether after August 2020 Dr Power provided some form of chiropractic and/or Chinese medicine treatment to Patient D outside the Family Practice. 3. Dealing first with the messages reproduced above, we accept, as Dr Power asserts, that it is possible for Telegram messages to be edited after they are sent or received. However, that does not establish as claimed by Dr Power that some of the messages tendered by the Commission were edited. Dr Power produced no expert evidence to support that claim. Nonetheless, in circumstances where Dr Power denies sending the 9 September 2021 message, where the Commission did not adduce any expert evidence, or call Patient D to attest to its authenticity, we could not be positively satisfied that the record of that message reproduced above is authentic. 4. With respect to Dr Power's claim that at her request, he handed Patient D his phone, and she used it to send the 20 August 2021 message to herself, which he failed to read and then later deleted, strikes us as somewhat implausible. Nonetheless, in circumstances where that claim is uncontradicted and no explanation has been provided by the Commission for failing to call Patient D, we could not be positively satisfied that Dr Power sent that message. 5. Dr Power admitted using "energy work" and pressure point massage/muscle release in the course of "standard" chiropractic consultations with Patient D before August 2020, and, in the course of prayer and energy sessions conducted in Patient D's home after that date. The point of difference between the parties is the proper characterisation of that conduct. In answer to questions from the Tribunal Dr Power said that if part of muscle realignment, manual adjustments, or muscle/skeletal realignment, pressure point massage/muscle release constitutes chiropractic practices but not otherwise. As acknowledged by Dr Power, not only are pressure point massage/muscle release techniques commonly used in the practice of chiropractor and Chinese medicine, he had been using those techniques in the course of standard chiropractic/Chinese medicine consultations with Patient D before August 2020. In the circumstances in which they were used, by a registered chiropractor on a former patient, in our view those techniques can properly be regarded as chiropractic practice and/or Chinese medicine treatment, irrespective of whether they were or were not used in conjunction with muscle realignment or other some other type of chiropractic or Chinese medicine therapies. We find that by performing pressure point massage/muscle release on Patient D, Dr Power acted in breach of the 2022 Conditions. 6. Without proper argument we have decided not to address whether, as the Council found, Dr Power's action in taking photographs of Patient D to illustrate his book on pelvic floor exercises constitutes chiropractic treatment. For reasons to which we will return, however, we find that action demonstrates a lack of judgement. Did Dr Power treat his mother after August 2020? 1. In support of the claim that Dr Power treated his mother after August 2020, the Commission relies on the following Telegram message produced by Patient D to the Commission dated 14 June 2021: "Hi [Patient D] I'm just giving Mum an adjustment at the clinic which won't take long I can pop around then if you're home?" 1. In a statement prepared for these proceedings (Exhibit R8, p 26), Dr Power said he could not recall sending that message but doubted that he had. 2. Dr Power denied performing "adjustments" on his mother after August 2020. He said that because of her advanced age, neither he nor his brother had performed adjustments on their mother for the past four years. Dr Leigh Power supported that claim. Dr Power described an adjustment as a "high velocity but low amplitude thrust" applied to an affected joint. 3. However, Dr Power agreed that after August 2020, he continued to give his mother "muscle release" which he described as "a little bit of massage". He said that his mother used the term "adjustment" to refer to muscle release because she was familiar with that term. 4. Dr Power argued that muscle release applied by a son to their mother does not constitute chiropractic treatment. In support he points to a joint statement in which his mother, sister and brother state "even non-registered lay people can do massage release on a family member". Consideration 1. Our reasons in relation to the characterisation of the muscle release performed by Dr Power on Patient D apply equally to the muscle release he performed on his mother. By that conduct Dr Power acted in breach of the 2020 Conditions. Commission's submissions: protective orders 1. The Commission urges the Tribunal to cancel Dr Power's registration and to impose a two-year non-review period for the following reasons. 2. First, the Commission contends that the conduct found proven by the Tribunal was objectively serious. The Tribunal found that Dr Power failed to obtain informed consent to the intra-vaginal technique ("IVT") he used on Patient B. In addition, the Tribunal found that Dr Power failed to obtain consent to manipulate Patient A's right breast. The Commission points out that the Tribunal described that conduct as "egregious" and found that it constituted professional misconduct. 3. The Commission points out that Dr Power's failure to give Patient B an adequate explanation of the nature and purpose of the intra-vaginal technique caused her to suffer significant distress and led her to believe (albeit incorrectly) that the procedure was unwarranted and a sexual assault. Patient A found distressing Dr Power's manipulation of her breast in circumstances where she was not given any information about, or asked whether she consented to, that procedure. 4. With respect to the balance of the Complaint found proven, the Commission pointed out that the Tribunal found that Dr Power's failure to notify the National Board of the charge brought against him (the subject of Particular 2 of Complaint 2 to the Complaint), and to disclose that fact to the Australian Health Practitioner Regulation Agency (AHPRA) when applying for re-registration in 2020, amounted to unsatisfactory professional conduct (Decision at [223], [242]). In addition, the Tribunal found that Dr Power failed to make and keep adequate records of treatment provided to Patients A and B, and that that conduct amounted to unsatisfactory professional conduct (Decision at [225], [226]). The Tribunal found that that conduct, taken together, amounted to professional misconduct (Decision at [251]). 5. Second, the Commission does not contend that the evidence establishes that Dr Power manipulated Patient A's breast for sexual gratification or similar reasons. However, the Commission contended that in circumstances where he has failed to give an explanation for that conduct, the Tribunal could not be satisfied that conduct of that type will not be repeated. 6. Third, the conduct to which Dr Power admits involving Patient C and D demonstrates a lack of clinical mindset and a clear understanding of why particular treatment is given. 7. Fourth, by treating Patient C and his mother after the 2020 Conditions were imposed, Dr Power breached those conditions. At the very least that conduct demonstrated that Dr Power took a very technical view of those conditions and lacked judgement. 8. Fifth, Dr Power's conduct in relation to Patients C and D indicates a lack of insight and acknowledgement of the necessity of maintaining professional boundaries with patients. It is especially troubling that Dr Power went on to have a concurrent personal and professional relationship with Patient D after undertaking training about maintaining professional boundaries following the complaint made by Patient C. 9. Finally, citing Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the Commission contends that cancelling Dr Power's registration would serve to denounce the impugned conduct and maintain public confidence by signalling that health practitioners whose conduct does not meet the required standards will not be permitted to practise. Dr Power's submission: protective orders 1. Dr Power accepts that the Tribunal should make protective orders but contends that an order to cancel his registration is excessive and disproportionate, and unnecessary for the proper protection of the public. He contends that an order imposing conditions on his registration is a more appropriate form of order. He proposes those conditions (the proposed conditions) that he be required to: 1. practice under remote supervision; 2. undertake training in clinical note keeping and "working within scope"; 3. undertake training in National Safety and Quality Health Service (NSQHS) Standards; 4. engage in peer support; and 5. undertake to be subject to "clinical audits". 1. In support of the proposal that the conditions he proposes are sufficiently protective of the public, Dr Power makes the following submissions. 2. First, Dr Power contends that he does not pose a risk to patients. He argues that any concerns held by the Tribunal will be addressed through the proposed conditions. 3. Second, he has already paid a significant price for the conduct found by the Tribunal to amount to unsatisfactory professional conduct and professional misconduct. He has been unable to practice for four years. This has adversely affected his income, his family, the Family Practice and his mental health. 4. Third, the proposed conditions would enable him to help practitioners who find themselves in a similar position that they can learn from their mistakes. Dr Power said he has done a lot of reading on maintaining proper professional boundaries with patients and he would like to share that knowledge with other practitioners. In addition, he would like to participate in a national mentoring scheme so that he can turn his experience into a force for good rather than punishment. 5. Fourth, Dr Power contends that it is in the public interest that he be permitted to resume practice. In support he points to the many references he tendered in these proceedings prepared by former patients, several of whom are health practitioners, who attest to his skills as a practitioner and his caring and compassionate nature. 6. Fifth, he claims that over the past four years he has reflected on his professional conduct and developed a more compassionate and responsible approach to patient care. He said those improvements align with the goals of the NSQHS Standards, which "emphasis continuous improvement in the delivery of safe and high-quality health care". He has read widely about and reflected on the requirement of health practitioners to obtain informed consent from patients before undertaking treatment and to maintain adequate clinical notes. He is confident that he would comply with his professional responsibilities in respect of each requirement. Consideration 1. The National Law directs that, in exercising the power to make protective orders, the health and safety of the public is the paramount consideration. The jurisdiction exercised is protective not punitive. As Basten JA explained in Prakash v Health Care Complaints Commission [2006] NSWCA 153, at [101], "[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order". 2. Our finding that Dr Power has engaged in professional misconduct, that is, conduct of a "sufficiently serious nature" to justify an order for suspension or cancellation, enlivens the power to order the cancellation or suspension of his registration but does not require that that power be exercised. Whether it is appropriate to do so will depend on the circumstances of the particular case. Basten JA explained in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [14]: "There may well be cases in which, in the proper exercise of its discretion, based upon the findings it has made, the Tribunal would err in failing to cancel a practitioner's registration; in other cases, cancellation may be seen as an unreasonable or disproportionate exercise of the power conferred on the Tribunal." (footnotes omitted) 1. Applying these principles, we have decided that, nonetheless, it is necessary for the proper protection of the public that Dr Power's registration be cancelled. In reaching that decision, we have taken into account, as Dr Power emphasised, that the authorities have consistently emphasised that any protective order made must be reasonable and proportionate. In addition, we have taken into account that many people of good repute consider Dr Power to be a person of good character and a capable and caring health practitioner. Nonetheless, we find that the imposition of the proposed conditions would be insufficiently protective of the public. In reaching that conclusion, we considered the following matters to be especially relevant. 2. First, in circumstances where we have not been provided with an explanation for Dr Power's conduct in manipulating Patient A's right breast, we could not be positively satisfied that conduct of that type would not be repeated. 3. Second, despite his claim to the contrary, we are not satisfied that Dr Power has an adequate understanding of the requirement to obtain informed consent from patients and what that requirement entails. The answers he gave in cross examination, together with the comments he made in written submissions, evidenced that Dr Power has failed to grapple with our finding that even if his account of the consent conversation with Patient B were to be accepted, he had failed to obtain informed consent before undertaking the IVT: Decision at [136]. In a statement prepared for these proceedings (Exh R6, pp 84-86), Dr Power suggests that Patient B misunderstood what he told her before he performed the IVT and attributes that misunderstanding to, among other things, Patient B's "post-treatment shame", her pain levels and emotional and physiological state at the time of the procedure, which he contends impacted on her ability to remember the details of that procedure and the consent conversation. Dr Power appears to be of the opinion that had he properly documented what he told Patient B about the IVT, the consent process he employed would be regarded as adequate. That is consistent with his claim that, after the August 2020 section 150 proceedings, he described that process to a lawyer, who "considered the approach foolproof and was perplexed by the resultant problems". 4. In a statement prepared for these proceedings, Dr Power said that after the August 2020 section 150 proceedings he "devoted considerable time to reflecting on my role in the circumstances underlying the complaint". He said that those reflections led him to understand that a patient's perceptions of their treatment can be influenced by others and "broader social reactions". As a male "I may automatically be perceived as a threat by some individuals … certain patients may still view me through a lens shaped by societal stereotypes. They will automatically assume there may be some sexual or sensual intension (sic)". Arguably, it matters not if Dr Power's motivation for endeavouring to obtain informed consent is that he believes that, as a male practitioner, he is vulnerable to "false claims" made by female patients. However, it is concerning that after considerable reflection, Dr Power has failed to demonstrate a clear understanding of what informed consent entails. 5. Third, we accept that Dr Power holds the honest belief that his use of pressure point massage/muscle release on Patient D and his mother did not constitute treatment. In addition, we accept that he did not deliberately contravene the 2020 Conditions. Nonetheless, his decision to employ those procedures when he was subject to conditions demonstrates a surprising lack of judgment. Dr Power appears not to have considered the possibility that his actions might breach the 2020 Conditions, or that it might be prudent to seek clarification or advice. Relevant to the exercise of the discretion to impose conditions on a health practitioner's registration is the likelihood that they will scrupulously comply with those conditions. Compliance with the proposed conditions will invariably require Dr Power to make numerous decisions about their implementation. There is a risk that poor judgment may result in Dr Power inadvertently failing to comply with the proposed conditions. 6. Similarly, we are not satisfied that Dr Power currently possesses the judgment necessary to discharge the wide-ranging obligations and responsibilities imposed on health practitioners. In addition to those described above, the evidence is littered with examples of Dr Power exercising poor judgment. For example, in these proceedings Dr Power admitted to confiding in Patient D about the complaints made by Patients A and B and the subsequent disciplinary proceedings. It is apparent he went further than merely informing Patient D that he was the subject of disciplinary proceedings in relation to former patients. In answer to questions from the Tribunal he said, "I trusted [Patient D] to the point where I shared every single detail … everything I shared everything with [Patient D] … everything to do with the HCCC and the police." Dr Power appears not to have considered that by sharing that information he may have breached the obligation to maintain patient confidentiality. A further example is Dr Power's decision to use Patient D to model for his book on pelvic floor exercises. Whether, as Dr Power claims, that was Patient D's idea, she was an enthusiastic participant, and everything was "done professionally" is not to the point. She was a former patient who Dr Power understood had mental health and other problems. 7. Fourth, Dr Power's admitted close friendship with Patient D demonstrates a failure to appreciate the requirement to maintain professional boundaries. That failure is especially troubling given that it postdates the complaint made by Patient C. It will be recalled that in 2013 Dr Power told the Commission that that complaint had taught him "the importance of maintaining my professional dealings and my personal dealings". He then went on to undertake counselling and training on maintaining professional boundaries with patients. The subsequent personal relationship with Patient D demonstrates a failure to apply that claimed insight and training in practice. A further concern is that Dr Power was aware that Patient D was a vulnerable person. In the character reference he prepared on her behalf Dr Power said that Patient D had suffered "extremely significant life abuse including sexual abuse" and had a long history of receiving treatment for psychological treatment. 8. In these proceedings Dr Power said that his "current thinking" is that if a person wants to be patient, they "can only be a patient and not a friend". It is possible that the combined effect of that claimed insight and the deterrent effect of these proceedings means that it is unlikely that Dr Power will go on to transgress professional boundaries with patients. However, on the available evidence we are not satisfied that this would be the outcome. 9. Finally, the conduct the subject of the Complaint was of a serious nature. We agree with the submission made by the Commission that it is appropriate that Dr Power's misconduct be denounced to underscore to him, the profession and the public of the standards expected of chiropractors and Chinese medicine practitioners: Health Care Complaints Commission v Do at [35]. 10. It is unlikely that Dr Power will be able to address the concerns we have discussed above in less than 24 months. For that reason, we have decided to order under s 149C(7) of the National Law that Dr Power not seek review of the cancellation order for 24 months. Should the discretion to make orders prohibiting the publication of Dr Power's name be exercised? 1. Dr Power seeks an order prohibiting the publication of his name in relation to these proceedings (the non-publication order). The Commission opposes that application. Legislative framework 1. Clause 7(1)(b)(iii) of Sch 5D to the National Law provides that the person presiding in proceedings before the Tribunal may, if they think it is appropriate "in the particular circumstances of the case", direct that the name of a person involved in the proceedings, including a registered health practitioner, not be published. The power to make an order under this provision vests in Deputy President Britton, the presiding member of this Tribunal. Throughout these reasons we have referred to the Tribunal in the plural. In the interests of consistency of language, we will adopt that practice when referring to Deputy President Britton as the decision-maker under cl 7(1) of Sch 5D to the National Law. 2. In exercising the discretion conferred by cl 7(1) of Sch 5D to the National Law, the Tribunal must have regard to the norm of open justice established by s 49 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and s 165K of the National Law, together with the objects of the former, which include ensuring that the Tribunal is accountable and has processes that are open and transparent: NCAT Act, s 3(f). In addition, we must take into account the direction that "in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration": National Law, s 3B. Clause 7 of Sch 5D to the National Law is an NSW provision. 3. In Walton v Momot [1997] NSWCA 334, Handley JA (with whom Priestley JA and Grove AJA agreed) considered at p 3 the operation of s 46(3) of the now repealed Chiropractors and Osteopaths Act 1991 (NSW): "The general principle provided for in s 46(3) [Chiropractors and Osteopaths Act 1991 (NSW)] is that the Tribunal will sit in public. If the Tribunal sits in public the details of the 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 a result.... This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts...." (authorities omitted; emphasis added) 1. NCAT has consistently applied the test stated in Walton v Momot that "something special, exceptional, or out of the ordinary, must be established", in exercising the discretion conferred by cl 7(1) of Sch 5D to the National Law, see for example, Health Care Complaints Commission v ZXY [2021] NSWCATOD 136 at [122]; Health Care Complaints Commission v Vo [2014] NSWCATOD 127 at [182]; Health Care Complaints Commission v FDE [2021] NSWCATOD 215 at [29]. However, in a recent decision, Health Care Complaints Commission v GGZ [2024] NSWCATOD 53 at [28], the Tribunal (Hennessy ADCJ) questioned whether that test remains binding authority, noting that Walton v Momot was decided before the enactment of the National Law, the NCAT Act and the Court Suppression and Non-publication Orders Act 2010 (NSW). We share Hennessy ADCJ's misgivings about the applicability of that test. 2. In Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [16], Acting Judge K P O'Connor said that it is an "unavoidable incident" that a health practitioner the subject of proceedings brought under the National Law will often suffer a deep sense of shame and embarrassment and will be concerned about the impact of the proceedings on other members of their family. At [25], His Honour referred to the rationale for disclosing the identity of the subject health practitioner in disciplinary proceedings brought under the National Law: "Disciplinary proceedings and disciplinary orders have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence. Decisions also provide a marker of what is unacceptable to other members of the profession." Submissions 1. In support of his application for a non-publication order Dr Power tendered evidence and made detailed submissions about his personal circumstances and those of many members of his family. In these reasons, to protect their privacy, we will not refer to those family members by name or detail the evidence they and/or Dr Power gave about their personal circumstances. 2. Dr Power contends that a non-publication order would serve to protect his welfare and interests, together with those of members of his immediate and extended family, the Family Practice and the complainants in these proceedings. He makes the following arguments in support. 3. First, any media interest generated by these proceedings would jeopardise his fragile mental health. Dr Power claims that since being informed of the complaints made by Patients A and B and participating in the consequent disciplinary proceedings, he has experienced significant stress, been diagnosed with several mental health conditions, and has undergone psychological treatment. Dr Power says that he believes that these conditions are likely to deteriorate if these proceedings were to generate publicity and in support relies on reports prepared by his GP, Dr Alakirawa Waba, and psychologist, Dr Wendy Mackay, together with a statement provided by his wife 4. In a report dated 25 July 2024, Dr Waba set out the history of the mental health conditions for which Dr Power has been diagnosed – posttraumatic stress disorder, depression, anxiety and adjustive disorder – and the treatment he has received for those conditions. According to Dr Waba, a combination of treatments has led to an improvement in Dr Power's sleep and functioning, however, ongoing stressors "continue to pose significant obstacles". 5. In a more recent report dated 25 October 2024, Dr Waba wrote that by mid-2023 Dr Power had been "formally designated as permanently disabled". According to Dr Waba, Dr Power has shown some evidence of improvement but "media attention would destroy that progress and very likely cause further deterioration". He wrote that because of Dr Power's fragile state he is vulnerable to external stressors. 6. Second, members of his large extended family are likely to suffer significant distress and loss if these proceedings were to be publicised. Many live in a small regional community and share the name Power. Dr Power argues that two members of his immediate family would be especially vulnerable to any media scrutiny. In his report dated 25 October 2024, Dr Waba stated that one of those family members is a patient of his clinic and suffers from a particular psychological condition. We have decided not to identify that condition in these reasons. In Dr Waba's opinion, any media attention would "likely lead to a severe setback in [their] social an emotional development". 7. Third, any media exposure is likely to harm the professional standing of his wife and two of his daughters. 8. Fourth, any media exposure has the potential to damage Dr Leigh Power who continues to work in the Family Practice. This would severely undermine Dr Leigh Power's ability to sustain his practice and to continue to financially support his wife and dependent children. Media exposure could adversely affect the emotional health of his sister-in-law who has significant caring responsibilities. In addition, media exposure could damage the reputation of some of his brother's children who are employed in sensitive occupations. 9. Fifth, media exposure may be damaging to the welfare and the interests of the complainants in these proceedings. While the Tribunal has already directed that their names not be published, Dr Power claims that their identity is already known to some members of the community. He contends that negative media reports about him have the potential to fuel negative feelings towards the complainants. 10. Sixth, a non-publication order is necessary to comply with the suppression order made by the NSW Local Court in October 2020 (the suppression order). 11. The Commission urges the Tribunal to decline to make a non-publication order. It contends that there is no cogent evidence to support the contention that the effect of any publicity that might be generated by these proceedings would be so significant as to justify the exercise of the discretion to make a non-publication order. The apprehended harm Dr Power claims he and other members of his family are likely to suffer is remote. 12. In addition, the Commission points out that the Decision was published in May 2024 and has been the subject of some, albeit limited media reporting. In those circumstances there would be no utility in making a non-publication order. 13. Finally, the Commission submits that compliance with the suppression order does not require the non-publication order sought by Dr Power to be made. The Local Court suppression order 1. Dr Power applied for a non-publication order 20 months after these proceedings commenced. By that time, the Stage 1 proceedings had been completed and the Decision had been published on NSW Caselaw and other publicly available websites which publish selected NCAT decisions for five months. Dr Power informed the Tribunal and the Commission about the existence of the suppression order in closing oral submissions in the Stage 2 proceedings. Dr Power provided the Tribunal with a copy of that order two days after the final hearing in these proceedings after being directed to do so. 2. From its terms, it was not clear whether the proceedings the subject of the suppression order were the same proceedings referred to in the Complaint. At our request, the NCAT Registrar made enquiries of the Local Court and was advised that the proceedings the subject of the suppression order and the proceedings referred to in the Complaint were one and the same. In addition, the Local Court advised that the suppression order had not been revoked. 3. Compliance with the suppression order requires that that any reference in that Decision which refers to the proceedings the subject to the suppression order, be removed. However, compliance with that order does not require the non-publication order sought by Dr Power to be made. Nor, in our view, does the existence of the suppression order favour the exercise of the discretion to make the non-publication order sought by Dr Power. 4. The parties will be invited to comment on the redactions we proposed to make to the Stage 1 Decision. In the meantime, at our request, that decision has been removed from Caselaw. Consideration 1. Without proper argument this is not the occasion to decide whether, in exercising the discretion to make the non-publication order sought by Dr Power, the test stated in Walton v Momot remains binding. Therefore, in exercising that discretion, we will consider whether "something special, exceptional, or out of the ordinary" has been established and, in the alternative, whether it is appropriate in the particular circumstances of this case to make that order. 2. In evaluating the evidence on which Dr Power relies in support of his claim that he and members of his family will suffer loss and/or harm as a result of media interest in these proceedings, we have applied the "calculus of risk" approach adopted by the Court of Appeal in Council of the New South Wales Bar Association v EFA [2021] NSWCA 339. In that decision, the Court considered an application for a suppression order under the Court Suppression and Non-Publication Orders Act 2020 (NSW). That decision considered a different statutory regime, but nonetheless provides useful guidance about the assessment of evidence said to support a finding that the publication of a practitioner's name the subject of disciplinary proceedings might cause the practitioner and others harm and/or loss. At [228]-[229] the Court explained the difference between the "calculus of risk" and the "probable harm" approach: "[T]he '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]. 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. In Health Care Complaints Commission v Pincock [2024] NSWCATOD 202, the Tribunal adopted the calculus of risk approach. 2. We understand that to date there has been little media interest in these proceedings. However, we accept that it is possible that the publication of these reasons might generate further media interest. If that were to occur, members of Dr Power's immediate and extended family are likely to suffer distress and embarrassment, some more so than others. The family member Dr Waba referred to in his report of 25 October 2024 is probably the most at risk of harm because of their age and the nature of their psychological condition. However, without some elaboration for the basis for Dr Waba's opinion that any media attention would "likely lead to a severe setback in [their] social and emotional development", and the assumptions on which it is based, little weight can be given to that opinion. In addition, we note that there is no evidence to suggest that that family member is aware of these proceedings, the publicity they have generated or is likely to become aware of any future publicity. The available evidence does not demonstrate that it is likely that their social and emotional development will be significantly harmed in the absence of a non-publication order. 3. We accept that, notwithstanding the evidence of recent improvement in Dr Power's mental health, there is a risk that media interest in these proceedings might cause it to deteriorate. However, the available evidence does not support a finding that any deterioration is likely to be significant or reasonably likely to occur. 4. Nor does the available evidence support a finding that it is reasonably likely that the professional reputations and livelihoods of those family members referred to by Dr Power would be materially damaged if the non-publication order is not made. Dr Leigh Power is probably the most at risk because of his close professional association with Dr Power through the Family Practice. Nonetheless, there is no evidence that to date Dr Leigh Power's practice has been adversely affected by the publicity generated by these proceedings or the Local Court proceedings the subject of the suppression order. 5. The argument made by Dr Power that the non-publication order is necessary to protect the interests of the complainants is unpersuasive. A non-publication order has been made in respect of each complainant. By cl 7(5) of Sch 5D to the National law it is an offence to identify them. If, as Dr Power suggests, the identity of the complainants is already known to some members of the community, it is unlikely that the non-publication sought by Dr Power would be of any utility. 6. Dr Power has failed to establish that "something special, exceptional, or out of the ordinary" would result from the publications of his name so as to justify the exercise of the discretion to make the non-publication order he seeks. 7. Nor are we persuaded that it is appropriate to exercise that discretion in the particular circumstances of this case. In reaching that conclusion, we have taken into account that the non-publication order sought by Dr Power would not prevent the publication of the salient facts of the Complaint or the outcome of these proceedings. Dr Power could be referred to in these reasons and the Decision by a pseudonym. Nonetheless, we are not persuaded that the particular circumstances of this case warrant a departure from the norm of open justice established by the NCAT Act and the National Law, which includes the publication of the name of the subject health practitioner. In reaching that conclusion we agree with the comments made by the Tribunal in Health Care Complaints Commission v BXD (No 2) at [32] about the rationale for disclosing the identity of the subject health practitioner in disciplinary proceedings brought under the National Law. Costs 1. The Commission urges the Tribunal to order Dr Power to pay its costs in these proceedings, as agreed or assessed. The Commission points out that it was largely successful in these proceedings as the Tribunal found Dr Power guilty of both unsatisfactory professional conduct and professional misconduct. Nonetheless, the Commission accepts that it was unsuccessful on a relatively significant issue: whether, as alleged by Particular 8 of Complaint 1, Dr Power inappropriately carried out an IVT on Patient B without proper and sufficient clinical indications. The Commission contends that as a consequence it is appropriate that the proportion of its costs payable by Dr Power be reduced to 90 per cent of its costs. 2. Dr Power argues that he should pay no more than 50 per cent of the Commission's costs. In support, Dr Power argues that the Commission: 1. commenced proceedings in NCAT "without considering my responses or offers of cooperation"; 2. ignored "proactive communication" by his legal team which resulted in the Complaint being referred to NCAT and the length of the hearing being unnecessarily extended; 3. made "excessive accusations", the majority of which were abandoned at the commencement of the hearing; 4. caused the length of the hearing to run for five days when it could have been completed in two; 5. failed to act efficiently and to promptly narrow the issues after its expert's last-minute modification to their report; 6. "aggregated the complaints", resulting in his insurer refusing to fund the Stage 2 proceedings. 1. In addition, Dr Power contends that in determining the proportion of the Commission's costs he is required to pay, the Tribunal should take into account the toll these proceedings has taken on his mental health. He asserts that if he is required to pay the Commission's costs his mental health will deteriorate further. In addition, he asks the Tribunal to take into account the fact that he has not worked for four years. He claims that if he is required to pay the Commission's costs, he will be financially ruined. Statutory framework and general principles 1. Clause 13(1) of Sch 5D to the National Law provides that the Tribunal "may order… any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry … before the Tribunal to pay costs to another person as decided by the Tribunal". The discretion to award costs is to be exercised judicially: Oshlack v Richmond River Council (1998) 193 CLR 72 at [65]; [1998] HCA 11 ("Oshlack"). 2. The "usual rule" is that "costs follow the event", that is, the successful party is generally entitled to receive their costs from the unsuccessful party: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 ("Philipiah") at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. 3. Generally, the presumption that the successful party is entitled to receive their costs will only be displaced where that party has engaged in "disentitling conduct" by that party: Oshlack at [40]; Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [25]. 4. A further basis for departing from the usual rule is where the successful party in the proceedings is not entirely successful: Health Care Complaints Commission v Wilcox (No 2) [2020] NSWCATOD 51 ("Wilcox") at [10]; Puri v Medical Council of New South Wales (No 2) [2024] NSWCATOD 122 at [14]. 5. In Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 ("Elite Protective Personnel") the Court of Appeal said at [6]-[8]: "Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which the appellant was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). As the appellants submit, the commencing position is that costs follow the event so that a successful party is entitled to costs. In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 (at [24]). A similar approach is adopted in the Court of Appeal. If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 (at [27]). Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 (at [18]) per Hislop J (with whom Beazley JA and Tobias JJA agreed)." (Emphasis added) 1. In Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274 at [20], the Court of Appeal said that the phrase "dominant or separable", as used in the passage reproduced above from Elite Protective Personnel, should not be applied as if it were a statutory test. The Court explained: "It involves two concepts, each of which should be treated flexibly. Most cases will involve multiple issues and one expects a judgment to be structured accordingly. A number of issues may arise from a common factual basis, so that it is difficult to disentangle them. Further, disentanglement may work at different levels. One issue may be entirely separate from others, and thus truly separable. On the other hand, it may not be possible to state a fraction of the time taken in preparation, or presentation at trial, of that issue. For that purpose, it may not be sufficiently dominant to warrant separate treatment in relation to costs." 1. The task of apportioning costs is discretionary and not mathematically precise: Elite Protective Personnel at [11]; Nitopi v Nitopi (No 2) [2022] NSWCA 199 at [21]; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259. In Health Care Complaints Commission v Wilcox (No 2) Cole DCJ explained at [11]: "Costs are at the discretion of the Tribunal, and that discretion is to be exercised judicially. The issue cannot be resolved with mathematical precision and the discretion will often be exercised with regard being had to matters of impression and evaluation (see Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259)." 1. It is for the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]. Consideration 1. The parties agree that Dr Power should pay some of the Commission's costs of these proceedings but disagree about the proportion of those costs he should be required to pay. The Commission submits that Dr Power should be required to pay 90 per cent of its costs; Dr Power on the other hand submits that 50 per cent is a more appropriate figure. 2. The arguments advanced by Dr Power can be grouped into two categories: his personal circumstances, and the Commission's alleged disentitling conduct. 3. As to his personal circumstances, Dr Power requests that we consider the impact of any cost order on his financial position and mental health. Undoubtedly the discretion to award costs is broad. Nonetheless it must be exercised "according to rules of reason and justice, not according to private opinion … or even benevolence … or sympathy" (citations omitted): Williams v Lewer [1974] 2 NSWLR 91 at 95. Mere impecuniosity is not a justifiable reason to depart from the usual rule: Philipiah at [42]. Nor is the impact a costs order may have on the mental health of the party who is the subject of that order. 4. While not put in these terms, Dr Power contends that in these proceedings the Commission engaged in "disentitling conduct" which justifies a departure from the usual rule. We reject that argument for these reasons. 5. First, the examples said by Dr Power to demonstrate that the Commission engaged in disentitling conduct are largely in the nature of assertions, unsupported by evidence. For example, Dr Power produced no evidence to support the assertion that before referring the complaint to NCAT, the Commission acted unreasonably by failing to consider his offers of cooperation and the "proactive communication" by his legal team. 6. Second, as Dr Power correctly points out in the amended complaint filed shortly before the commencement of the Stage 1 hearing, the Commission abandoned the following allegations which were contained in the original complaint: 1. that in the course of a consultation on 12 May 2020, Dr Power inappropriately placed his hand on, kneaded, and squeezed Patient A's right breast in circumstances where, among other things, there were no proper and sufficient clinical indication to do so: Particular 1 of Complaint 1; 2. that in the course of that consultation Dr Power pulled down Patient A's underpants, pushed on her pubic bone and failed to seek her consent before doing so: Particulars 3, 4, 5 of Complaint 1; 3. that in the course of a consultation on 14 July 2020, Dr Power failed to seek Patient B's consent before pulling down her underpants: Particular 12 Complaint 1. 1. The consultations with Patients A and B, the subjects of the above allegations, were also the subject of other particulars, some which we found proven. It could not be reasonably suggested that by abandoning the above allegations, significant costs of either party were thrown away. There was some evidence to support each abandoned allegation. That the Commission made a forensic decision to abandon those allegations does not constitute improper or disentitling conduct. 2. Third, Dr Power has failed to identify how the Commission's conduct in the proceedings contributed to the length of the hearing being unnecessarily extended. Our observation of counsel for the Commission was that he was well-prepared for the hearing and made efficient use of the time available to question witnesses and make submissions. 3. Finally, Dr Power contends that the Commission's actions in "aggregating the Complaint" resulted in his insurer refusing to fund Stage 2 of these proceedings. By that contention we understand Dr Power to mean that because the Commission decided to refer to NCAT the complaints made by Patients A and B in a single complaint, the amount his insurer was prepared to fund was reached in the Stage 1 proceedings and his insurer refused to fund his legal costs in the Stage 2 proceedings. (Dr Power was legally represented in Stage 1 but not Stage 2 of these proceedings.) Dr Power adduced no evidence to support that claim, less still evidence that the Commission knew that the consequences of aggregating the two complaints would result in Dr Power's insurer refusing to fund his Stage 2 legal costs. Apportionment 1. The Commission properly concedes that it was unsuccessful on a relatively significant issue, namely, whether the IVT was clinically justified and on that basis some discount ought to be applied. That issue was the subject of Particular 8, of Complaint 1 which states: "On 14 July 2020 during the consultation, the practitioner inappropriately carried out an intra-vaginal technique on Patient B which involved inserting his finger or fingers into Patient B's vagina for about one minute ('the intra-vaginal technique') without proper and sufficient clinical indications in that: The practitioner failed to undertake an appropriate chiropractic examination of Patient B prior to asking to perform the intra-vaginal technique and in doing so acted contrary to clause 2.1 of the Chiropractic Board of Australia Code of Conduct (March 2014), a. The public symphysis, obturator externis, and obturator internus could have been treated externally, b. There was no indication to treat the uterus internally, c. The practitioner failed to exhaust all external treatment of the public symphysis, obturator externis, and obturator internus over three previous consultations before asking to perform the intra-vaginal technique on Patient B. d. The practitioner failed to exhaust external treatment of the pubic symphysis, obturator externis, and obturator internus over three previous consultations before asking to perform the intra-vaginal technique on Patient B." 1. In closing submissions, Counsel for the Commission properly conceded that the available evidence did not support the factual assertions contained in sub-particulars (b), (c) and (d): Decision at [84]. We found sub-particular (a) not proven: Decision at [96]. 2. Each party called experts to give evidence in these proceedings. Dr Ramona Horton gave evidence at the request of Dr Power. Dr Scott Philipson gave evidence at the request of the Commission. Each expert gave evidence about the issues raised by Particulars 2, 6, 7 of Complaint 1 (which related to the consultation with Patient A) and Particulars 8, 9, 10, 11, 13, 14 and 15 of Complaint 1 (which related to the consultation with Patient B). 3. A difficulty with estimating the amount of time spent during the hearing on Particular 8 of Complaint 1 is that there was a common factual basis between that particular and the balance of those particulars, that is, what Dr Power did or attempted to do during the IVT. Because Dr Power elected not to give evidence about this issue, a significant amount of the oral evidence given by the experts was devoted to that issue. 4. Nonetheless, the balance of the issues raised by Particular 8, namely whether the IVT was clinically indicated, were largely severable from the issues raised in the other particulars which related to Patient B. We estimate that about 50 per cent of the time the experts spent giving oral evidence was devoted to whether the IVT was clinically indicated. We have no evidence about the amount of time Dr Philipson spent preparing his reports or the proportion of time he devoted to the issues raised by Particular 8. 5. The significant proportion of the hearing time devoted to Particular 8, and the complexity of that issue is likely to have been reflected in the resources the Commission devoted to that issue. In those circumstances, it is reasonable and just that the proportion of the Commission's costs Dr Power is required to pay is reduced. As acknowledged by the authorities, in proceedings where there are multiple issues, and the successful party has failed on a particular issue, determining what is an appropriate reduction is a difficult task. We estimate that about 35 per cent of the Commission's costs were probably devoted to the issues raised by Particular 8 (excluding what occurred during the IVT). 6. For that reason, we order Dr Power to pay 65 per cent of the Commission's costs as agreed or assessed. Orders 1. Dr Power's registration as a chiropractor and Chinese medicine practitioner is cancelled under s 149C(1)(b) of the Health Practitioner Regulation Law (NSW). 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), Dr Power may not apply for review of the cancellation order for 24 months. 3. Dr Power is to pay 65 per cent of the Health Care Complaints Commission's costs of these proceedings as agreed or as assessed under the Legal Profession Uniform Law Application Act 2013 (NSW). 4. The application made by Dr Power for a non-publication order in respect of his name under cl 7(1)(b)(iii) of Sch 5D to the Health Practitioner Regulation Law (NSW), is refused. ********** 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: 25 February 2025