CITATION: MR v Commission for Children and Young People [2005] NSWADT 212 DIVISION: Community Services Division APPLICANT PARTIES: MR RESPONDENT Commission for Children and Young People FILE NUMBER: 044017 HEARING DATES: 12/05/2005 & 15/06/2005 SUBMISSIONS CLOSED: 06/15/2005 DATE OF DECISION: 09/26/2005 BEFORE: Kelly T (Deputy President); Smyth M - Judicial Member; Bolt M - Non Judicial Member APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Administrative Decisions Tribunal Act 1997 CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101 APPLICANT REPRESENTATION: E Pike, Barrister RESPONDENT M Higgins, Barrister ORDERS: (1) It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to MR in respect of the two offences of assault with acts of indecency for which he was convicted in the Sydney District Court on 3 May 2002 on the following conditions ; (i) That MR complies with all conditions flowing from these convictions that are imposed on him from time to time by the NSW Medical Board ; (ii) For such time as MR is under the supervision of the NSW Medical Board and/or the NSW Medical Tribunal in relation to these convictions he is to provide a copy of these orders to any employer who employs him in child related employment; (iii) The Registry is to serve a copy of these orders on the Registrar of the NSW Medical Board within 7 days of this decision. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section. (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a 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. REASONS FOR DECISION Introduction 1 The Applicant seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 ("Child Protection Act") so that he can work unsupervised with children and young persons. 2 Although an order would apply to all work with those under 18 years that is not directly supervised, the application is made as the applicant, a medical practitioner, wishes to train as an ophthalmologist. He requires a position as a registrar in a public teaching hospital to be accepted into the relevant College to commence post graduate medical studies to train as a medical specialist. 3 The Respondent opposes the application. 4 On 3 May 2002 the Applicant, a medical practitioner, was convicted of two counts of assault with act of indecency. These constitute serious sex offences as defined by the Child Protection Act. By the operation of s 5 of that Act, the Applicant is a "prohibited person" and as such, it is an offence for him to apply for, undertake or remain in child-related employment. 5 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act) makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, we have decided not to publish any details that could identify the Applicant or anyone referred to in the proceedings (other than the experts). The Applicant is referred to in these reasons by the pseudonym, "MR". Issues 6 The Tribunal must determine whether MR is a likely to be a risk to the safety of children and young persons if he is allowed to work with them without direct supervision. Relevant legislation 7 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Child Protection Act is not to apply to him or her. Section 9(1) provides that, on application from a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9). 8 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account: (a) the seriousness of the offences with respect to which the person is a prohibited person, (a1) the period of time since those offences were committed, (b) the age of the person at the time those offences were committed, (c) the age of each victim of the offences at the time they were committed, (d) the difference in age between the prohibited person and each such victim, (d1) the prohibited person's present age, (e) the seriousness of the prohibited person's total criminal record, (f) such other matters as the tribunal considers relevant. 9 Section 9(7) states that the Respondent is to be a party to any proceedings for an order under s 9 and the Respondent may make submissions in opposition to, or support of, the making of the order. Standard of Proof and meaning of "risk": 10 The Applicant carries the onus of proof on the Briginshaw standard, that he is not a risk to the safety of children. The meaning of the word "risk", for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J's analysis of the meaning of "risk" in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on: not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights. 11 Young J, went on to say One does not define risk as meaning minimal risk. One could exclude fanciful or theoretical risk. What one is looking for is whether in all the circumstances there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on the child. 12 His Honour continued: A balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. 13 His Honour further said: There is a two-tier decision-making process in the sense that the Tribunal making the decision must have two foci. Dealing with these foci in no particular order, one focus is the serious sexual offence and its circumstances. The second is the current danger, if any, posed by the applicant to children. Subsection 5 deals mainly with the first focus. That is, the Tribunal must evaluate the seriousness of the offences taking into account the age of the applicant when the offences were committed, the age of the victim at the time and the difference in the ages. The second involves the assessment of the applicant's character now, which includes the seriousness of the prohibited person's total criminal record, a matter mentioned by 5(e), and any other matter which the Tribunal considers relevant. Subsection 5 then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime and (b) the applicant's current character, all these matters must come together when the Tribunal is making a decision as to whether to exempt a person from the effect of the Act. A decision is then made in the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised in favour of the applicant unless there is good reason not to exercise it. 14 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission for Children and Young People that it was not permissible to impose conditions in order to lift the Applicant over the risk threshold. His Honour said that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an Applicant who would otherwise pose some risk to children into an Applicant who does not pose a real unacceptable risk to children: par [46]. Index Offences 15 The Applicant was convicted of two offences of assault with act of indecency. The first offence occurred on 12 January 2001 and the second offence on 26 September 2001. 16 In both instances he was a medical practitioner and assaulted female patients in the course of a medical consultation. 17 In the first offence a woman, aged 20, requested a referral for an x ray due to a painful shoulder. The Applicant became sexually aroused when examining the woman's shoulder and then performed further medical examinations getting her to remove some clothing. He pressed his erect penis against her right hip when testing her shoulder mobility. He inappropriately touched her chest area and again pressed his erect penis against her shoulder. He then inappropriately exposed her buttocks and touched her on her buttocks and thighs. 18 The patient made a complaint to the Health Care Complaints Commission. In the Applicant's response to the Commission of 14 September 2001 he denied the patient's allegations and gave a dishonest account of what happened during the consultation. He admitted that his account was false during later proceedings before the NSW Medical Tribunal during 2003. 19 In the second offence he examined a female patient, aged 21, and inappropriately touched her chest and breasts, stomach, ribs, back, buttocks, pubic and perineal area, when there was no clinical indication to do so. He also placed her hand next to his erect penis and moved her hand over his penis several times, put his hand on her pants and asked her to pull her pants down. 20 The patient made a complaint to the police and the Health Care Complaints Commission. 21 The Applicant pleaded guilty to both offences in the proceedings in the Local Court on 22 March 2002 and was sentenced on 3 May 2002 in the District Court at Sydney. On the first count he was sentenced to 500 hours community service and on the second count to a 3 year good behaviour bond. As part of the conditions attached to that bond he was ordered to continue the counselling he had commenced with a general practitioner, Dr Burkitt, until such time as the doctor deemed it appropriate to stop. 22 In the course of sentencing MR for the index offences McGuire J made a number of remarks about the offence and the Applicant. Although McGuire J commented on the seriousness of the offence, the privileged position that doctors hold and the breach of trust involved his Honour stated I hold no doubt that he is genuinely contrite and I come to this view for several reasons, including the fact that he has communicated to his victims his sorrow and regret for his conduct. [sentencing remarks 3 May 2002] 23 McGuire J then referred to his treating doctors having no doubt he was genuinely sorry, the fact that although he initially did not acknowledge his misconduct he freely admitted it soon after the police spoke to him and he entered pleas of guilty at the first opportunity. McGuire J also took into account his background including expert evidence that he may have been suffering from an untreated depressive illness at the time. In addition his Honour took into account his background, that his family had been subjected to serious discrimination in his country of birth and that he had left that country to secure a better future and had spent a three year period in a refugee camp. He had worked at menial work and learnt English until eventually he was able to do medicine but had to work long hours to pay for his university education. He had worked long hours at the same time as studying. His efforts to seek appropriate counselling from his meagre resources also were in his favour. In addition he faced proceedings before the Medical Tribunal. Suspension from Medical Practice 24 The Applicant was suspended from medical practice from 23 October 2001 for an initial period of 8 weeks. That period was extended to 19 December 2001. The NSW Medical Board reviewed the Applicant's case on 11 December 2002 and allowed him to recommence work from 21 December 2001 under strict conditions. These included a requirement that he could not consult, treat or examine any female patient unless a third person was continuously present. Proceedings in Medical Tribunal 25 On 10 September 2003 the Medical Tribunal found MR guilty of professional misconduct. That finding was on the basis that he had engaged in conduct which demonstrated a lack of adequate judgement or care in the practice of medicine and engaged in improper or unethical conduct relating to the practice of medicine. An additional finding of professional misconduct was made on the basis that he had been convicted of criminal offences in NSW. 26 The Applicant admitted the matters alleged in the complaints before the Medical Tribunal. He accepted that the admissions of misconduct must lead to findings of misconduct in those proceedings. 27 On 23 December 2003 the Medical Tribunal severely reprimanded the Applicant. The Medical Tribunal was satisfied to the required standard that the practitioner had been rehabilitated to the point where the public interest could be adequately protected by permitting the Applicant to remain on the register. In reaching this view the Medical Tribunal took into account evidence concerning the changes made by the Applicant to lead a more balanced lifestyle. On the same date the Medical Tribunal made orders imposing the following conditions on his right to practice. 1. Following conditions are imposed on the practitioner: Health Related conditions (i) (MR) is not to prescribe for self medication. (ii) (MR) is to attend for treatment by a general practitioner of his choice, at a frequency to be determined by (MR) and the general practitioner. (MR) is to authorise the treating practitioner to inform the Medical Board of New South Wales ("the Board") of failure to attend for treatment, termination of treatment or if there is a significant change in health status. (MR) is to advise the Board within 7 days of receipt of these conditions of the name of his treating general practitioner. (iii) (MR) is to attend for treatment by a psychiatrist of his choice, at a frequency to be determined by that psychiatrist. (MR) is to authorise the psychiatrist to inform the Board of failure to attend for treatment, termination of treatment or if there is any significant change in health status. (iv) (MR) is to continue to take any medications prescribed by the psychiatrist or general practitioner. Monitoring related conditions (v) (MR) is to attend for review by a Board nominated psychiatrist, initially on a 6 monthly basis, at the Board's expense. (vi) (MR) is to attend a Review interview at the Board in 6 months or as otherwise directed by the Board. (vii) (MR) is to authorise the Board to forward copies of the Board Review interview reports and other information relevant to (MR)'s impairment to the board-nominated psychiatrist and to (MR)'s own treating practitioners. (viii) (MR)'s compliance with Employment Related Conditions is to be monitored and reviewed by the Board's Conduct Committee and his compliance with Health Related and Monitoring Related Conditions is to be monitored and reviewed by the Board's Health Committee. Employment related conditions (ix) (MR) is permitted to retain his current position of employment. He may not obtain alternative employment without the prior written approval of the New South Wales Medical Board. (x) (MR) is to inform his employer of these conditions and is to forward to the President of the New South Wales Medical Board on commencement of the employment, a copy of these conditions signed by his employer. 2. These conditions may not be reviewed, varied or discontinued by the New South Wales Medical Board for a period of three years. 28 These conditions became effective on 23 December 2003 and consequently cannot be reviewed, varied or discontinued by the Medical Board until December 2006. The Medical Board Reviews 29 In accordance with these conditions the Applicant was required to attend for review by a Medical Board nominated psychiatrist, initially on a 6 monthly basis. The Applicant had co-operated with the Medical Board and participated in regular reviews. At the time of this Tribunal's hearing the most recent review had been conducted in January 2005. Applicant's oral evidence 30 He gave evidence about the factors that had led to his offending. Significant factors were the lack of intimate personal relationships and social isolation. He did not have a partner, had no real contact with friends and had spent most of his time studying and working very hard. 31 The Applicant gave evidence that he had developed a better balance between work and his personal and social life since he committed the offences. He stated that he now has a girlfriend and that they have lived together for more than 2 years and that he has developed a number of friends. He tendered some photographs of himself with his partner, her family and his friends. He tendered a letter from his partner stating that she had been in a relationship with him for more than 2 years and that since April 2003 they had been living together. In addition he tendered a letter from a friend attesting to their friendship and referring to his relationship with his partner. 32 The Applicant's partner and friend were not available to give evidence about their statements. His partner stated in her statement that she had written the letter on the premise that she would not be asked to present for questioning. She also referred to her great distress when dealing with matters relating to the Applicant's criminal convictions. 33 The Applicant indicated that he now goes to social functions and watches soccer with his mates. He had also taken up gym, initially going to one and now has bought gym equipment that he used at home. 34 The Applicant indicated that his current work did not involve seeing female patients as he worked as a doctor in an impotence clinic treating male patients. The Applicant indicated that he wished to train as a medical specialist and required an exemption in order to apply for a position as a registrar at a teaching hospital. A position as a registrar is a prerequisite to undertaking the specialist training. 35 In his evidence the Applicant made it clear that early on, after he was found out, he had been in denial about his conduct. Over time, with counselling, he had been able to take responsibility for his actions. Through counselling he had gained an insight into the factors that led to his offending and had taken action to remedy them. He had also developed an understanding of appropriate boundaries between doctors and patients. 36 He indicated that he had adhered to the conditions imposed on him by the Medical Tribunal in December 2003. Other Relevant Matters Expert Evidence 37 Since the offences occurred the Applicant has been treated and assessed by several doctors. His treating doctors have been Dr Burkitt and Dr Allnutt. In addition he was assessed by a number of experts as part of the Medical Tribunal and Medical Board proceedings. These included assessments by Dr Samuels and Dr Wright whose reports were produced to us. More recently he was assessed by Dr Lennings at the request of the respondent in these proceedings. Dr Allnutt and Dr Lennings provided reports for these proceedings and gave oral evidence. Dr Burkitt 38 The Applicant was treated by Dr Burkitt, a general practitioner who provides counselling for men in crisis. Several of Dr Burkitt's reports and his notes were in evidence before us. Dr Burkitt did not give oral evidence in these proceedings and was not required for cross examination. In particular the Applicant drew our attention to his reports of 17 December 2001, 30 April 2002 and 5 December 2002. Dr Burkitt also gave evidence before the Medical Tribunal hearing. 39 Dr Burkitt first saw the Applicant on 19 October 2001 about the complaints of inappropriate sexual behaviour made against the Applicant. 40 Dr Burkitt's report of 30 April 2002 outlined his contact with the Applicant and his assessment of his progress in counselling. He concludes that He has developed a deep level of insight into the background of these events, his very repressive sexual upbringing, his knowledge of the fact of sexual exploitation of patients being a common but hidden reality in (his country of birth) and the effect of having devoted himself to his studies at the expense of any meaningful social and sexual relationships. He repeatedly speaks of his profound remorse at his actions. I am absolutely convinced of his sincerity. 41 Towards the end of the last paragraph of that report Dr Burkitt states I feel extremely confident that he will not repeat his actions. 42 Dr Burkitt's report of 5 December 2002 is an update of his 30 April 2002 report. He noted the impact of the sentence by the District Court in May 2002 and the conditions imposed by the Medical Board. The Applicant was initially overwhelmed by these, had suicidal thoughts and his then girlfriend ended their relationship. Despite advice from his counsellor to spread his community service out to gain some balance in his life he had worked for up to 14 hours a day and finished his community service in 8 weeks. Dr Burkitt outlined the issues that were dealt with in counselling which included a particular session in which the Applicant revealed he had lost confidence in Dr Burkitt as a therapist. This matter was resolved at the next session. He concluded that I have been most impressed at the way that he has been prepared to undertake the rigours of therapy, to learn and to create change. I am also convinced of his contrition and feel that he is extremely unlikely to re-offend… Unfortunately through a lack of awareness, extreme commitment to study and social isolation he acted in a completely unacceptable manner with two patients. I am convinced that he has accepted full responsibility for what happened and that nothing of the sort will ever happen again. 43 In a letter dated 5 March 2003 Dr Burkitt made it clear that he continued to see the Applicant until 18 December 2002 when it was mutually agreed to conclude the therapy process. In that letter he also stated that he is very confident that the Applicant will not re-offend. Dr Samuels 44 Dr Samuels, a psychiatrist examined the Applicant at the request of the Medical Board on 10 July 2002 and prepared 2 reports dated 26 July 2002 and 14 April 2003. He also gave evidence in the Medical Tribunal proceedings. In his initial report Dr Samuels accepted that it was likely that the practitioner had suffered from longstanding and depressive symptoms since leaving his country of birth as a refugee at the age of 19 years and the support of his family structure. He was concerned that the Applicant had brazenly lied about the allegations in the belief that he successfully escaped punishment in respect of the first assault. He had a concern that the Applicant might further offend. 45 Dr Samuels prepared a second report, dated 14 April 2003, after the Health Care Complaints Commission asked him to comment on the reports of Dr Wright and Dr Burkitt. He expressed concern about the Applicant's level of insight and empathy. In his opinion the Applicant's statement that the first patient had been "unpleasant" seemed to imply that, despite his claim of remorse, at some level he continued to project blame onto the patient. Although he accepts that the Applicant may have had a low grade depression during the period he offended that may well have been a predisposing factor he notes that it was Only after the complaints were made and his registration was actually suspended that he became suicidal, tearful and unable to sleep. 46 He found no evidence that he was so depressed he had no capacity for control over his actions. 47 He commented on Dr Burkitt's report regarding the Applicant's remorse and insight. Dr Samuels acknowledged that, given the length of relationship between Dr Burkitt and the Applicant, Dr Burkitt might be in a better position to assess the depth and quality of insight and remorse than occurs in a single occasion for medico legal purposes. Dr Samuels highlighted that "assessment of insight is fraught with difficulty" and refers to the likelihood that the Applicant would have felt some pressure to reassure Dr Burkitt that therapy was leading him to insight and understanding. Dr Samuels concluded that the risk of re-offending was low but certainly not negligible. Dr Wright 48 Dr Wright, a psychiatrist, initially examined the Applicant on 25 March 2002 at the request of the Applicant's representatives in the Medical Tribunal and concluded that the likelihood of re-offence was negligible. On 25 March 2003 Dr Wright examined the Applicant again and maintained his opinion that the risk of re-offence was negligible. He noted that the Applicant had made significant changes to his life so that he was no longer socially and culturally isolated. Dr Wright also gave evidence in the Medical Tribunal proceedings. Report of Dr Lennings 49 The Applicant was interviewed and assessed by Dr Lennings, a clinical psychologist, at the request of the respondent in these proceedings. A report prepared by Dr Lennings, dated 28 January 2005, and a supplementary report dated 21 April 2005, were tendered in these proceedings. Dr Lennings also gave oral evidence. 50 In his written report of 28 January 2005 Dr Lennings stated that he utilised the Static 99, an actuarial tool, to gauge risk. This method uses key variables research has shown discriminate between sexual offenders who recidivate and those that do not. These are referred to as static variables because they are not likely to change in response to treatment or supervision. Based on the Static 99 he placed him in the medium low risk category. 51 He then used a clinical assessment, sampling variables from both static and dynamic risk factors. Dynamic factors are variables that may be able to be moderated by treatment or supervision and include observations and conclusions reached during a clinical assessment. He utilised the categories developed by the British Columbia Institute Against Family Violence. He concluded that On the whole the structured clinical assessment suggests a low risk of recidivism. It seems his offence was largely a function of a particular set of circumstances present in 2001, but "cued" by years of frustration and poor life management prior to 2001. 52 He assessed personality indicators of risk and concluded that there seemed to be few indications from the personality assessment that would be of any great concern. He noted that the kinds of circumstances that were associated with the offence in 2001 are largely absent. He referred to changes in rules that meant the Applicant was more likely to gain a specialisation in his chosen field of medicine, his current relationship that he is happy in as well as the benefits he appeared to have gained from psychotherapy, including more balance in his life and no evidence of depressive affect. Dr Lennings stated at paragraph 31 of his report Nonetheless some concerns must be expressed in regarding the nature of the offence inasmuch as they do appear to be strongly situationally defined and if a future situation was to occur with the breakdown of his relationship and perhaps other kinds of stresses in his life, the unsupervised nature of his work could create problems. The assessment of risk has to occur within an understanding of the opportunity for offending. If a situation has low supervision and exacerbates the power relationship, as happens in doctor-patient situations, then opportunity to offend is high. Despite a low risk rating some risk still adheres simply because of the nature of the situation that evolves in medical settings. Nonetheless it does appear to me that (MR) has a low risk of re-offence. It seems to me that some management of the opportunity–risk can be dealt with through requiring that (MR) at all times that he is seeing a patient who would fit into the criteria of a young female to have a nurse present in the room who is aware of his past behaviour. It would seem to me that since the likelihood of an offence is reasonably rare this would be a sensible precaution that should provide some safety for any future potential difficulties. 53 Dr Lennings' supplementary report dated 21 April 2005 refers to Dr Allnutt's reports of 11 December 2003 and 13 April 2005. Dr Lennings' notes that the 2005 report appears most important in settling some ongoing concerns for him. He stated In particular I note that Dr Allnutt's report indicates that (MR) appears to have experienced a genuine insight into the conditions surrounding the offence and has taken sensible steps to prevent the kind of isolation and despair occurring again. To that extent, the personality and behaviour factors I was uneasy about appears to have been modified. 54 Dr Lenning's conclusion that MR was a low risk remained the same. In regard to his original report and the risk of inappropriate behaviour as a function of a "catastrophic collapse of coping" he noted that according to Dr Allnutt MR appears to have developed a range of behaviours and strategies to minimise such a collapse. He then stated Hence, if the Tribunal seeks to minimise even further the risk of offence it might insist upon a nurse present during the examination of children or young people but I believe that considerable weight should be placed upon Dr Allnutt's assessment in this case and it seems on the basis of both our assessments that the risk of re-offence is low. Oral evidence Dr Lennings 55 Dr Lennings gave evidence that to the best of his recollection MR had come to his appointments with Dr Lennings alone. He did not recall the Applicant showing him any photos at the time he assessed him. Dr Lennings indicated that he had not asked for corroboration of the Applicant's self reporting that he had a partner and social relationships. He stated that he did not disbelieve him. 56 Dr Lennings was asked how important he regarded a condition that MR should have a witness available when examining young female patients under 18. Dr Lennings referred to the issue of managing uncertainty. In his view if the Applicant's intimacy needs are met it is unlikely that he would misbehave with a patient. He said that the uncertainty is about events in the future if the Applicant was alone or under pressure. He noted that this is hard to predict, although if the Applicant found himself in psychiatric distress soothing behaviour through unwelcome touch could occur. 57 In Dr Lennings' view the risk of unwelcome touching was low. The risk of further life crisis is probably higher as it is a fact of life that difficulties occur to everyone from time to time. He noted that the Applicant has a rigid personality. Although the Applicant has made numerous changes he still carries the legacy of earlier coping mechanisms. In Dr Lennings' view one has to assume that there will be further difficulties, however whether inadvertent touch will be used in response is harder to know. The risk is low but uncertainty remains. He stated that if the Applicant's needs are met and he is fairly happy then it is unlikely that there will be a problem. He further stated that it is hard to predict the Applicant's state of mind into the future. If he was lonely and under stress again this may lead to re-offending in the future. 58 In Doctor Lennings' view there are three elements that go to whether offences such as the Applicant committed will occur– the internal mechanisms of the person, the vulnerability of the patient and the characteristics of the situation that make it more or less unlikely that an offence will occur. 59 In his view one way to control the risk is to directly manage the environment by a condition such as having a nurse present during medical examinations of young female patients so that if there is an impulse to offend inhibitions are in place. In essence by increasing the opportunity for a person to be caught or complained about the inhibition is increased and the likelihood of an offence decreased. 60 When talking about whether knowledge of the consequences would impact on behaviour Dr Lennings stated that the impulse to offend would have a counter veiling pressure, that is, the awareness of the consequences if the Applicant did offend. This would lead to an intense conflict which would normally be resolved by repressing the impulse to offend. If however the Applicant was in a disturbed or irrational state of mind because he was experiencing a number of conflicts it can also mean that the impulse and fear can add to psychological pressure rather than reduce the desire to offend. 61 Dr Lennings' stated that if the Tribunal wanted to further minimise the low risk he had identified then having a nurse present was one way to achieve this. Dr Allnutt – treating psychiatrist's reports 62 Since 27 June 2003 the Applicant has been treated by Dr Allnutt, a psychiatrist, on a monthly to two monthly basis. Dr Allnutt provided a report dated 22 December 2003 and an additional report prepared for these proceedings dated 13 April 2005. Both of these reports were written as his treating psychiatrist. 63 Dr Allnutt also had the opportunity to review the report provided by Dr Lennings dated 28 January 2005 at the request of the Respondent. 64 Dr Allnutt stated that his 13 April 2005 report should be read in conjunction with his earlier report of 22 December 2003. He states that the Applicant is taking antidepressants and his mental state is stable. He notes that he has a stable sexual relationship with a woman with whom he lives. 65 He reported that the Applicant now maintains a social circle and limits the number of hours he spends working and studying to balance that with adequate social time and time with his partner. 66 He stated the Applicant understands the circumstances surrounding the index offending and understands the gravity of his offending and the potential impact of that offending on his victims. 67 He agreed with Dr Lennings' final opinion that the Applicant poses a low risk of sexual recidivism. He noted that the Applicant's sexual preference is for mature women, as his victims were young adults above 20 years and that he has not shown any paedophilic or hebephilic interests (sexual interest or behaviour involving teenagers). 68 He went on to state that the Applicant should be regarded as a low risk to young people age 18 years and under. He noted that the Medical Tribunal has considered the issue of risk to the public and imposed conditions and concluded that Having regard to this, his risk to people less than 18 years is unlikely to be of a degree that he requires professional supervision such as chaperone. 69 In his report of 22 December 2003 Dr Allnutt stated He cannot be diagnosed with paraphiliac disorder. That is while his offending was of a frotteuristic nature, there is little evidence to conclude that the offending was driven by underlying recurrent fantasies, or urges that suggest a condition of sexual deviance. Rather it appears that the offending was circumstantial and impulsive. 70 However he goes on to say that the Applicant will require ongoing oversight in the short to medium term. Dr Allnutt's oral evidence 71 Dr Allnutt gave oral evidence as the Applicant's treating psychiatrist. 72 He stated that if he applied the Static 99 test now the Applicant's risk ranking would improve from a 1 to a 2 on the basis that he has now lived with a partner for more than two years. This still placed him in a moderate-low risk group but the percentages identified in the Static 99 table would drop. 73 He agreed with Dr Lennings that the overall risk to those under 18 years was low and specific to apparently sexually mature female teenagers. 74 He agreed with Dr Lennings set of factors needed for an offence to reoccur. Dr Allnutt specified that the drive, interest, need and desire would be needed. In addition the person would need to overcome external controls and inhibitors as well as their own internal ones, such as conscience, for an offence to reoccur. It is a balance between those three elements. 75 Over time the risk of offending is reduced but the corollary is that you get increased opportunity to offend. He noted that the best approach to risk management would be a gradual stepping down approach over time and noted that more stringent criteria required in the beginning may not be applicable later. 76 In Dr Allnutt's view any risk of a catastrophic collapse in the Applicant's state could be addressed by conditions. The Applicant should be required to see a psychiatrist or psychologist at regular intervals to assess his mental state and monitor him regarding the development of depression or psychological distress. In addition such a practitioner could monitor his social activities to identify social isolation or overwork; and could also monitor his views regarding his work and offending including the formation of any justifications. This practitioner could also assist the Applicant to deal with interpersonal issues and maintain mental stability. 77 In Dr Allnutt's view anti-depressant medication is required now and may continue to benefit him in the short to medium term. 78 Dr Allnutt further stated that the Applicant would require a supervisor who was well aware of the Applicant's history and had the capacity to communicate with the Medical Board and the Applicant's medical practitioner. Such a supervisor could give him regular feedback regarding his performance in the workplace and make enquiries regarding how he was performing. 79 Dr Allnutt was asked to comment on Dr Lennings' suggestion of a chaperone. He stated that a chaperone could provide a false sense of security. He believed that people could still offend with a chaperone present especially in a frotteuristic way by concealed touching. 80 He raised a number of practical questions regarding a chaperone. Who would be the chaperone? Would a roster be required? Would a chaperone have to follow the Applicant around? He also pointed out that personal relationships could develop between the Applicant and a chaperone so that a chaperone may not be as effective. 81 In summary, Dr Allnutt stated that while in principle a chaperone was a good idea as an element that manages the environment directly, in practice it may not be as reassuring as it first appears. He would be concerned about a chaperone being used as the mechanism of control and safety for patients. 82 In his view there are conditions which would provide tough scrutiny so that he would be aware that he was being watched. That would be similar to having a chaperone but the power dynamics would be different. 83 Dr Allnutt considered the conditions that have been imposed by the Medical Tribunal as appropriate and recommended that this Tribunal impose these. He noted that the Medical Board will have on-going oversight of the Applicant and had the ability to vary conditions if appropriate. In addition, he noted that conditions imposed by the Medical Board are important as it is a high body that has power and control over the Applicant and that it would feed into his conscience, particularly the knowledge that his license to practice could be revoked. 84 In Dr Allnutt's view the safest way to proceed would be to use a "step down manner" so that the Applicant had the opportunity to show that he could operate in an environment over time. He could be reassessed at intervals to determine the appropriate conditions. 85 Dr Allnutt was not able to give a precise period of time that conditions such as clinical supervision, counselling and medication would be required. Dr Allnutt noted that at present the Applicant works only with male patients so we do not really know how he reacts, behaves or respond in an environment with female patients. He also noted that the first year of a specialist Registrar's training was one of the most stressful years. Applicant's Submissions 86 The Applicant submitted as follows. a. He is at low risk of re-offending, he does not present a real and unacceptable risk of offending against children and young people and that his application should be granted without conditions imposed by this Tribunal. b. Although acknowledging that the index offences are serious, they were not at the highest level of seriousness nor were they against children or those the Applicant thought were children. c. It was in his favour that he confessed to the offences, although not at first, in circumstances of one person's word against another with circumstantial evidence. He made admissions against interest and pleaded guilty at the first opportunity. d. He was proactive in seeking professional assistance before he was required to do so by any order. He has continued seeking this assistance. e. The stressors that were causal factors for the offences have been addressed, particularly the social isolation, lack of intimate relationships and balance between his work and social life. f. Dr Lennings expressed the view was that any risk presented by the Applicant would only arise in the event of a catastrophic collapse. The chance of this was low and would be an impulse offence only. It was Dr Lennings' opinion that conditions would be appropriate if the Tribunal formed the view that an impulse offence was likely. g. It was Dr Burkitt's opinion that he was profoundly remorseful, had accepted full responsibility for his offending and that nothing of this sort would happen again. Dr Burkitt's opinion was based on extensive therapy sessions at a time when the degree of risk was higher than now. Dr Burkitt was not required for cross examination and his views are unchallenged. The Medical Tribunal placed significant weight on Dr Burkitt's views. h. Judge McGuire of the District Court found that he was genuinely contrite when sentencing him. i. It was Dr Wright's opinion, in evidence before the Medical Tribunal, that he presented a very low risk, indeed Dr Wright stated that the likelihood of reoffending was negligible. Dr Wright is an experienced and independent psychiatrist. j. As neither Dr Wright nor Dr Burkitt was required for cross examination their evidence is unchallenged. k. In any event, whatever his risk, it is not such as should prevent his application being granted with conditions. l. The evidence shows that any risk he may pose would be to women above the age of 18 years. Although this Tribunal is not bound by the Medical Tribunal's assessment of risk the Medical Tribunal considered that the conditions it imposed were all that was required to adequately safeguard the public. m. The Medical Tribunal made its assessment at a time when the risk of re offending was greater than it is now as four years have passed with out him re-offending. n. There is no material before this Tribunal which would indicate that the Applicant poses a risk to children as opposed to the public at large. o. It would be an erroneous approach to impose a possible condition requiring a chaperone to be present when the Applicant examines young female patients. The opinion of Dr Lennings is merely expressed with a view to minimising even further an already low risk. Dr Lennings' opinion is that the Applicant could be a risk in the event of a catastrophic collapse and he says that risk is low. Dr Allnutt as his treating psychiatrist was impartial and viewed the risk as low. Dr Allnutt did not view a chaperone as necessary. p. A condition of a chaperone would mean at a practical level he would be unable to enter the specialist training program. There is a public interest in having competent medical practitioners and such a condition would sentence the applicant to continuing in his current field as a general practitioner. q. The Tribunal needs to take into account the continued monitoring role of the Medical Board. The conditions imposed by the Medical Tribunal will continue to apply for another one and half years and if necessary can be extended thereafter. It is likely that the Medical Board will continue to monitor him. r. In response to the respondent's submissions regarding the weight to attach to letters from the Applicant's partner and friend the Applicant submitted that his partner and friend had made it clear why they were not available to give evidence in the Tribunal and there are numerous references to the partner in medical practitioner's reports. Dr Lennings stated in evidence that he did not disbelieve that the Applicant had a partner. In addition no application for adjournment was made to have the partner and friend available for cross examination. Respondent's submissions 87 The respondent submitted as follows. a. The offences were serious sexual offences. If they had involved children then the offence would have been aggravated indecent assault. b. When the Tribunal is asked to accept that the Applicant admitted the offences at the first opportunity and was remorseful the evidence suggest this is not correct. The timing of his response and contrition comes in a chronology. The first evidence that he admitted the offences is in Dr Burkitt's clinical notes on 17 December 2001 and that is a partial admission to the first offence. It is apparent from those notes that the Applicant did not feel that his offence deserved a denial of his right to practice and he thought the imposition of that was excessive. He found the conditions of practice placed on him at the time restrictive. c. By 17 December 2001 there had been a complaint to the Health Care Complaints Commission. The Applicant's letter to the Health Care Complaints Commission of 14 September 2001 made statements that he admitted were false in evidence before this Tribunal. This was a calculated attempt by the Applicant to make false statements about one of his victims, he had denied that the first offence took place and suggested that the victim was unreliable. He falsely presented her as a person suffering from a psycho-social problem and sought to establish facts that she was avaricious, rough, uneducated, a person interested in improving her legal position rather than therapeutic intervention. d. By 17 December 2001 the Applicant had been suspended from practice for two periods of eight weeks. He did not admit the conduct before the Medical Board enquiries that led to these suspensions. By 17 December 2001 he was also aware that the Police wanted to speak to him about the second offence. e. There is evidence that even in June 2003, when the Applicant was two months into his therapy with Dr Allnutt, he still failed to perceive the discomfort and distress of his victims at the time of his consultations. f. The respondent submitted that a risk factor that contributed to the index offence was the chronic absence of intimate relationships. The respondent argued that although a letter from the Applicant's partner was in evidence there is a question of weight. The author did not give evidence and there was no opportunity to ask the author whether in fact she was the author of the letter and the opinions in the letter were hers. There is nothing in support of the claim of a loving relationship except the photos and the letter from a friend. The same submissions regarding weight apply to the letter from the friend. g. The Tribunal has a statutory duty to assess risk and it not appropriate to delegate that function to the Medical Board. h. On the basis of Dr Allnutt's evidence the Applicant presents a low risk. The respondent argued that the risk is real and appreciable. The issue is whether conditions can put the Applicant in a condition beyond appreciable and real risk. i. Dr Allnutt's evidence indicated that the Applicant has responded well to treatment and that treatment should be ongoing but reducing. The respondent adopts the evidence of Dr Allnutt regarding the conditions. These include a condition regarding ongoing therapy in similar terms to that of the Medical Board, a condition regarding taking all medication as prescribed by his therapist and that there be a clinical supervisor. j. In regard to the need for a chaperone the respondent referred to the oral and written evidence of Dr Lennings including paragraph 31 of his report of 28 January 2005 where Dr Lennings observed that the likelihood of re-offending is reasonably rare and a chaperone would provide some safety. In the context used by Dr Lennings it was to manage the environment in order to avoid the risk of further offending, together with other features. k. The Tribunal cannot meaningfully impose a condition that there be no relationship breakdown or that medication be continued. To some extent a condition regarding ongoing therapy would enable supervision of the issues of relationship breakdown and medication. In regard to medication the Medical Board will be informed if there is no continuation of taking prescribed medicines. In regard to relationship breakdown a therapist can assist with taking a holistic approach. Findings and Conclusions 88 On 3 May 2002 the Applicant was convicted of two counts of assault with act of indecency. These offences make him a prohibited person under the Child Protection Act. 89 The Applicant sought an unconditional declaration under s 9(1) of the Child Protection Act. If granted this would allow him to work without restriction in child related employment. The respondent opposed that application but did not oppose a conditional declaration. 90 The offences are clearly serious. He was in a powerful position as a medical practitioner. He caused the individual women involved distress and the offences were also a significant betrayal of the trust placed in medical practitioners. 91 The offences were both committed in 2001. At the final day of hearing it was approximately 4 years and 5 months since the first offence and 3 years and 9 months since the second offence. The offences were committed when he was an adult of 37 years against women 16 and 17 years younger than him. The Tribunal recognises that neither victim was a child or young person as they were aged 20 and 21 respectively. 92 Aside from the index offences the Applicant has never been charged or convicted of any other offence. There is no suggestion that he has ever offended against children or young people. 93 The evidence indicates that the Applicant has been genuinely contrite regarding the index offences for some time. We endorse the views of Judge McGuire regarding this issue in sentencing him on 3 May 2002. 94 The Applicant is now aged 41 years. The Applicant has been proactive in addressing the stressors that were factors in his offending, has actively sought out and participated in treatment and has taken responsibility for his offending behaviour. 95 Dr Allnutt reported that the Applicant maintains a social circle and balanced work and study with adequate social time and time with his partner. Dr Lennings stated that he did not disbelieve that the Applicant had a partner and social relationships. On the basis of that evidence and the Applicant's evidence we accept that MR has been in a relationship with his girlfriend for more than two years and has lived with her since April 2003. 96 The Tribunal has had the benefit of the opinions of five medical witnesses and their evidence is summarised above. 97 Dr Burkitt believes that the Applicant has insight and contrition. The Tribunal accepts his views on this because of his long term and detailed contact with the Applicant. Dr Burkitt went on to state that he believed the offences will never happen again and we put less weight on this opinion than that of the psychologist and psychiatrists as Dr Burkitt is a general practitioner counsellor. 98 Dr Samuels who saw the Applicant twice, two and a half years ago concluded his risk of re-offending was low but not negligible. 99 Dr Wright who saw him once two and a half years ago thought his risk was negligible. 100 We put most weight on the evidence of Drs Allnutt and Lennings who have seen the Applicant most recently. Both gave evidence before the Tribunal and were questioned in detail about their opinions. 101 Dr Lennings stated that the risk of re-offending was low. His evidence was that there is a risk of the Applicant re-offending if he faces a "catastrophic collapse" and is again under stress and lonely. As it is hard to predict the chance of this happening he recommended a conditional declaration in the Applicant's favour. The condition being a nurse present when he examined young female patients. 102 Dr Allnutt who has had ongoing contact with the Applicant as his treating practitioner thought that there was a low risk of re-offending and also believed a conditional declaration was appropriate. He considered the conditions that have been imposed by the Medical Tribunal as appropriate and recommended that this Tribunal impose these conditions including medical oversight in the medium term. He did not recommend a chaperone. 103 Thus the preponderance and weight of expert medical opinion is that without conditions at least for some time the applicant, whilst a low risk, will pose a real and appreciable risk to older teenage female patients if certain stressors were to reoccur. 104 The Tribunal accepts this view. 105 Whilst not rejecting the idea of a chaperone for an at risk doctor in all circumstances, in this instance we agree in general terms with the reservations that Dr Allnutt expressed about conditions involving a chaperone. There would be real logistical problems in requiring a chaperone for a position such as a Registrar, as distinct from circumstances where a doctor works with a specific group of staff in a specific location. 106 In our view in this case there is a better alternative. Implied from the evidence of Dr Lennings and Dr Allnutt the risk is only likely to occur if the stressors that caused the index offences reoccur. Each has recommended ongoing monitoring of the Applicant's mental state and the stressors in his life for some time. 107 The regime set up by the Medical Tribunal and the Medical Board provides the power to impose and monitor conditions regarding ongoing psychiatric counselling and medication. The conditions, as imposed by the Medical Tribunal, cannot be reviewed, varied or discontinued by the NSW Medical Board until December 2006. At present the Medical Board is monitoring MR's compliance with the conditions and has conducted a number of reviews. 108 In December 2006 the Medical Board will be able to review the Applicant. The Board will then be able to consider all up to date medical reports, the Applicant's then employment circumstances and any other relevant contemporaneous material, and then, in the light of all that material determine whether to terminate extend or vary the existing conditions. In contrast, this Tribunal may only make an order which is permanent and which can only be based on the evidence available at the time of the hearing of this application. 109 If the psychiatrist, presumably Dr Allnutt, forms the view that counselling is no longer necessary and is able to persuade those authorities at the time of review that counselling is not necessary because the risk has disappeared, then such a condition can be revoked. 110 If the treating psychiatrist alerts the Medical Board that the risk factors are re-emerging in the Applicant's life the Board can act to impose stricter conditions and if necessary prevent the Applicant seeing female patients or practising alone. 111 Such an approach is consistent with the expert opinion of Dr Allnutt who has recommended a gradual step down approach to the management of risk in this case. 112 In addition, the Tribunal accepts Dr Allnutt's view that the existence of the Medical Board as a high body with power and control over the Applicant, would feed into the Applicant's conscience, acting as an inhibitor for any offending to occur. The Applicant would be well aware that the Medical Board has the power to revoke his registration to practice. Similarly the Medical Board can impose stricter conditions should the need arise. 113 The Medical Board is a responsible statutory authority and is an appropriate body to vary conditions if necessary. This Tribunal has no difficulty in that body having the power to vary conditions that attach to the Applicant. 114 The conditions imposed on the Applicant by the Medical Tribunal reflect the conditions that this Tribunal would have imposed in the absence of the regime set up by the Medical Tribunal and Medical Board. 115 This is a preferable situation than that which regularly confronts this Tribunal when making a declaration with conditions attached. It is an unfortunate reality that whilst s 9(9) of the Child Protection Act allows the Tribunal to impose conditions, the Tribunal can only make a declaration with or without conditions which cannot be revisited. Thus the conditions this Tribunal imposes are set in concrete. A change in the nature of child related employment or other dynamics in the life of the Applicant cannot result in the conditions being varied or even reconsidered. Amendments to the Child Protection (Prohibited Employment) Act to give this Tribunal more flexible order making powers would be well worth considering. 116 In our view the following orders are appropriate. ORDERS (1) It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to MR in respect of the two offences of assault with acts of indecency for which he was convicted in the Sydney District Court on 3 May 2002 on the following conditions: (i) That MR complies with all conditions flowing from these convictions that are imposed on him from time to time by the NSW Medical Board. (ii) For such time as MR is under the supervision of the NSW Medical Board and/or the NSW Medical Tribunal in relation to these convictions he is to provide a copy of these orders to any employer who employs him in child related employment. (iii) The Registry is to serve a copy of these orders on the Registrar of the NSW Medical Board within 7 days of this decision. 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.