Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vu v Health Care Complaints Commission [2015] NSWCATOD 61 Hearing dates: 16 and 17 April 2015 Decision date: 24 June 2015 Jurisdiction: Occupational Division Before: D Robinson, Principal member S Mungovan, Professional member B Elliott, Professional member H Kiel, Lay Member Decision: 1. In accordance with S 163B of the Health Practitioner Regulation National Law, Mr Vu's application for review is dismissed. 2. In accordance with S 163B of the Health Practitioner Regulation National Law, the relevant order is not to be reviewed until after 18 months from the date of this order. 3. In accordance with Schedule 5D clause 7 of the Health Practitioner Regulation National Law publication of the name of or any material identifying any former patient of Mr Vu is prohibited. 4. Mr Vu is to pay the costs of the Health Care Complaints Commission in relation to these proceedings, as agreed or assessed. Catchwords: Application under s 163 A of the Health Practitioner Regulation National Law (NSW) for review and reinstatement order - failure to discharge onus – original order remains appropriate – time limit on further review - costs Legislation Cited: Health Practitioner Regulation National Law No 86a NSW Cases Cited: Scully v HCCC (2013) NSWNMT 7 In Re Jason Martin [2010] NSWMT 13 Briginshaw v Briginshaw Wang v HCCC 2013 NSWNMT18; Re Lenehan ; Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488; Peter Cecil Harcourt Dawson v Law Society of NSW ; Re Mansoor Haider Zaidi [2006] NSWMT 6 Zaidi v HCCC Hardy v HCCC Nelson v HCCC Category: Principal judgment Parties: Hung Thanh Vu (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: P Griffin (Respondent) Solicitor: H Vu (Applicant in person) F Westwood, Health Care Complaints Commission (Respondent) File Number(s): 1420323 Publication restriction: Pursuant to Schedule 5D Clause 7 of the Health Practitioner Regulation National Law publication of the name of or any information which would identify former patients of Mr Vu is prohibited. reasons for decision Introduction 1. In March 2012 the Physiotherapy Tribunal of New South Wales considered three complaints made in relation to Mr Hung Thanh Vu. The complaints alleged that he was guilty of unsatisfactory professional conduct, professional misconduct and that he was not a suitable person to hold registration as a physiotherapist. 2. The Complaints arose out of allegations that Mr Vu had claimed and received benefits from a health insurance provider for physiotherapy services, which he had not provided to patients. It was also alleged that he had falsified patient records and that his clinical records were inadequate in a number of ways. 3. On 16 August 2012 the Tribunal determined that each of the three complaints was made out and ordered, amongst other things, that Mr Vu (who was unregistered at the time of the decision) be disqualified from seeking registration for a period of two years. 4. On 9 September 2014 Mr Vu wrote to the Physiotherapy Council of New South Wales seeking a review of the Tribunal's orders. His application was referred to the NSW Civil and Administrative Tribunal (NCAT) on 11 September 2014. Mr Vu also completed an application form seeking a review of the Tribunal's orders, dated 11 October 2014, which he lodged with NCAT on 20 October 2014. 5. Mr Vu wishes to practice as a physiotherapist again and seeks an order that he be permitted to re-register as a physiotherapist. Legislative Provisions 1. Mr Vu has a right of review arising under S163A of the Health Practitioner Regulation National Law (the National Law). 2. Section 163A (1) provides a person may apply to the appropriate review body (in this case the Tribunal) for the review of a "relevant order". Section 163 A (4) defines a "relevant order" to include "an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession." 3. On review the Tribunal has the powers set out in S163B of the National Law, which relevantly provide: 163B Powers on review 1. The appropriate review body must conduct an inquiry into an application for review and may then do any of the following- A dismiss the application;………….. B make a reinstatement order 2. A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if- (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. 3. The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. 4. The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 1. The Tribunal's task in conducting the inquiry into a review application is set out in S163C, which provides: 163C Inquiry into review application [NSW] 1. A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. 2. The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. 3. In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. Transitional Provisions 1. On 1 January 2014 the Physiotherapy Tribunal of New South Wales ceased to exist and the jurisdiction exercised by that Tribunal was transferred to the New South Wales Civil and Administrative Tribunal (NCAT) in its Occupational Division. 2. There is no dispute that NCAT is the appropriate review body in relation to Mr Vu's application. Burden and Standard of Proof 1. The onus of proof rests with the applicant. When a former physiotherapist, like Mr Vu, seeks re-registration, he must prove that he should be reinstated. 2. In Scully v HCCC (2013) NSWNMT 7, the Nursing and Midwifery Tribunal explained the standard of proof as follows: "the standard of proof to be applied by the Tribunal is the civil standard of proof, that is on the balance of probabilities. Because the nature of the jurisdiction, as set out in s 3 (2) (a) and s 3A of the National Law, is protective of the public, the Tribunal must be satisfied to a high level of probability that the applicant is "fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence". (see In Re Jason Martin [2010] NSWMT 13; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336)" Nature of the Jurisdiction 1. In Scully v HCCC (2013) NSWNMT 7 the Nursing and Midwifery Tribunal also provided a useful summary of the nature of the Tribunal's protective jurisdiction in this area: "The relevant legal principles in respect of an application to be re-registered are not in doubt and have been discussed in many decisions of courts, including the High Court of Australia, intermediate appellate courts, as well as tribunals. (see Re Lenehan (1948) 77 CLR 403; [1948] HCA 45 per Latham CJ, Dixon and Williams JJ at [33] Ex Parte Tziniolis; Re the Medical Practitioners Act(1966) 67 SR 488; Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Zaidi v HCCC [1998] NSWSC 335 per Mason P at 15) We have already referred to the fact that in this application it is the applicant who bears the onus of proof. That onus is a high onus in a re-instatement application. In In Re Jason Martin the Medical Tribunal of NSW explained first the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction being exercised is for the protection of the public. Although decided in the context of lawyers who have been removed from the roll of practitioners, the principles enunciated in such cases are generally apposite to these proceedings. The High Court has made it plain that the power to re-instate should "be exercised with great caution and only upon solid and substantial grounds". However a court (or a tribunal) should exercise its discretion having regard to the facts of each case (see Lenehan). While found in a dissenting judgment, the remarks of Kirby P (as his Honour then was) in Dawson have been adopted and applied in other decisions in this Tribunal. His Honour explained: 'There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance ....' In Re Jason Martin the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner will behave in the future and remarked that "the decision in the particular case is to a greater or lesser extent dependant upon the Tribunal's assessment of the applicant". The Tribunal explained "in making that assessment [the tribunal] may "draw inferences from what has happened in the past and in particular, what led to his [her] being removed from the Register". As in all applications in which the Tribunal in NSW is involved under the National Law the guiding principle and object in s3A applies. That section provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." 1. In Wang v HCCC 2013 NSWNMT18, another matter involving a reinstatement application by a nurse, the Tribunal made the additional points: "It has been noted by the Tribunal that the matter of reinstatement must be approached with healthy scepticism: Hardy v HCCC [2009] NSWNMT 21; Nelson v HCCC [2009] NSWNMT 7 Even if the Tribunal considers that it is unlikely the applicant will repeat the same conduct, that in itself is may not be enough for the Tribunal to be comfortably satisfied that they have shown that they should be allowed to return to nursing: See, for example, Hardy v HCCC [2009] NSWNMT 21 The Tribunal cannot assume that the applicant is a changed person merely because some time has passed since he or she was deregistered. The 'mere effluxion of time' principle has been noted and approved by a long line of authority." Procedural Matters Documents 1. The Tribunal considered the following documents, which were provided by the parties: * Mr Vu provided his application for review and a bundle of documents marked as Exhibit A. * The Commission provided a folder of documents, marked as Exhibit 1, containing amongst other things, the previous Tribunal decision. * Both parties made oral submissions. Witnesses 1. The following people gave oral evidence to the Tribunal: 2. Mr Vu, the applicant 3. Ms Coopman, registered psychologist, gave evidence by conference telephone Representation 1. Mr Vu was a self-represented applicant. The Tribunal explained to him, amongst other things, the process of the hearing, the nature of the relevant legal issues, the purpose of submissions as opposed to testimony and indicated that Mr Vu could seek an adjournment if he needed to at any time. Non-Publication order 1. The Commission sought an order under Clause 7 of Schedule 5 of the National Law. The Tribunal ordered that the identity of any former patients of Mr Vu not be disclosed. The Tribunal's decision in 2012 1. Mr Vu had fraudulently obtained funds from a private health insurer (nib) by using the HICAPS system to claim for patient services, which he had not provided. His clinical notes were also unsatisfactory. 2. Mr Vu made admissions in relation to his conduct and conceded that it constituted both unsatisfactory professional conduct and professional misconduct. However he denied that he was not a suitable person to be registered as a physiotherapist. The Tribunal ultimately found he was not suitable. 3. As well as focusing on Mr Vu's fraudulent conduct and breach of his professional code of conduct, the Tribunal referred to his lack of personal and professional integrity, his lack of insight into his conduct and the need to seek professional advice and mentoring, his lack of continuing professional development activities and the lack of a plan for his own remediation which included such activities. The Tribunal was also concerned about Mr Vu's clinical skills and his attitude to record keeping. 4. The Tribunal noted that, "the respondent's evidence is that he made no comments regarding steps he would take to address ethical and legal requirements of practice, financial and business practices, behaviour modification, particularly regarding risk taking and resisting social pressure, and stress management." 1. In determining that Mr Vu be disqualified from seeking re-registration for a period of two years, the Tribunal recommended that Mr Vu undertake psychological counselling, arrange mentoring and take appropriate steps to understand his ethical obligations. Mr Vu's application 1. In his application to NCAT Mr Vu states, "Orders sought required de-registration of two years from 16 August 2012 to 16 August 2014………..De-registration period has lapse since 16 August 2014." 1. In his initial comments to the Tribunal, Mr Vu acknowledged his previous misconduct by saying it was difficult for him to understand what had happened. He said his emotions had been too much to handle and he had no one to reach out to. Despite his intentions he had become a dishonest person. He stated that his poor business conduct had led to poor professional conduct. He had also accrued a large debt and had been declared bankrupt. He said it had been a long journey for him to get back to where he could now think clearly. Maturity 1. In his letter to the Physiotherapy Council of New South Wales, dated 9 September 2014, Mr Vu states that at the time he came before the Tribunal he was young, immature and acting impulsively. In his document headed "My Personal Development, Work, Family and Goals", he states "in the beginning I was too young, too ignorant, too naïve, too inexperienced and at times too optimistic." 2. He states he is now 34 years of age and with hindsight "can now clearly see all of my shortcomings and insecurities." Isolation 1. He acknowledged that he had worked in isolation as a sole practitioner but that in the last two years he had learnt a great deal from meeting and talking with colleagues and other healthcare professionals. Family and personal circumstances 1. Since August 2012 he has established stability in his life and considered his short-term and long-term goals. He considers his family to be his first priority and was married in March 2013. His wife is expecting their first child. He is also involved in assisting his mother-in-law to care for her disabled daughter. Medical reports 1. Mr Vu produced a short letter from Dr Lam dated 15 December 2014 stating that he did not suffer from a mental or physical illness. He also produced a letter from Dr Devilliers dated 19 January 2015 stating that he suffered from anxiety and a mental health plan had been prepared to assist him with enhancing assertiveness. Counselling and psychological support 1. Mr Vu said he had consulted 4 general practitioners since the Tribunal's decision in 2012. Mr Vu first saw Dr Lam in November 2012. He did not provide him with a copy of the Tribunal's decision but that told him that he was a physiotherapist who had managed his finances badly and been removed from the Register. He requested a referral to a psychologist, but did not obtain one, as after a 40 minute consultation, Dr Lam told him that his problem was motivation. 2. He next saw his family's GP Dr Bui in April 2013. He again asked for a referral to a psychologist but Dr Bui suggested that he see him instead. He did not give Dr Bui a copy of the Tribunal's decision. Dr Bui suggested an antidepressant medication because he considered Mr Vu was suffering from post traumatic stress disorder after his deregistration and bankruptcy. Mr Vu did not accept this diagnosis and did not take the medication prescribed. 3. He then attempted to find a psychologist himself and found Ms Michelle Derham through an Internet search. He consulted her in early 2014. In his written statement entitled My Personal Development, Work, Family and Goals, Mr Vu states, "Early 2014 I decided to seek counseling as I struggled to bear the weight of my conscience. I had never spoken to anyone about my bankruptcy or the guilt and shame I had inside me for so many years. I finally made a booking with Missing Peace counseling service, Michelle Derham a counsellor who promises your problem fixed in five sessions or the sixth one free. To begin with I did not know where to start or what problem exactly I am fixing. I just needed to talk to someone to start the healing and maybe find some answers……………….. She said that I had a higher Emotional Intelligence than what she would normally see in her other clients…………. She did not think there was much else she could do for me because the goal of her counseling was to get people to reach a state of awareness that I was already at." 1. Mr Vu saw Ms Derham on 2 occasions and later discovered that she was a counsellor and not a registered psychologist. 2. He approached White and Associates in December 2014 but cancelled the appointment because of the costs involved. He also contacted Frances Koulos at MyPsychologists, but did not follow up with an appointment. 3. In December 2014 he saw Francisco Rivas at Ascent Psychology for one consultation. Mr Vu told the Tribunal that Mr Rivas had diagnosed "avoidance of confrontation" as his main problem. 4. Mr Vu next saw his wife's GP who referred him to Ms Sophia Coopman, psychologist at Blue Sky Psychology. Ms Coopman, in her report dated 19 March 2015, states that Mr Vu has attended six sessions between 3 February 2015 and 19 March 2015. Ms Coopman has used a cognitive-behavioural treatment approach in therapy and she described Mr Vu as making good progress in terms of identifying behavioural patterns and unhelpful thinking styles. 5. Although Mr Vu stated that he had gained a lot from talking to psychologists, he also stated on a number of occasions that he was not really sure why he was seeing a psychologist and he was unsure about 'what questions to ask'. 6. Although the mental health plan, which supports Mr Vu to see Ms Coopman, provides for only ten sessions and he faces some financial constraints, Mr Vu stated that he would continue with therapy. 7. He acknowledged that he did not initially give Ms Coopman a copy of the Tribunal's 2012 decision, but did do this 2 days ago on the advice of a solicitor at the Commission. 8. Ms Coopman gave evidence to the Tribunal. She has been a registered psychologist since January 2014. She stated that the Tribunal's 2012 decision had been emailed to her two days ago but she had not as yet read it. She understood Mr Vu had been deregistered because of health fund fraud and that he needed assistance with assertiveness training and understanding the behavioural patterns, which lead to his professional misconduct. 9. Ms Coopman described the therapeutic support she has provided to Mr Vu. She has focused mainly on personal issues, understanding the pressures on Mr Vu from his family of origin and identifying unhelpful thought patterns. She has not undertaken any work in relation to ethical issues. 10. Ms Coopman indicated that Mr Vu did not need to continue to attend on a weekly basis and it may be useful if she sees him every 3 to 4 weeks. Business management 1. As a result of financial mismanagement Mr Vu was declared bankrupt. He initially told the Tribunal that he was unsure if he had been fully discharged from bankruptcy but later produced a letter from the Trustees in Bankruptcy confirming he was discharged on 8 October 2012. 2. Mr Vu stated he understands the need for a physiotherapist to have basic knowledge about running a business. He acknowledges he had no training in running a business and no skills when it came to hiring staff. He now sees his efforts at cutting costs to have been counter-productive. Mr Vu said that his poor business conduct had lead to his poor professional conduct. 3. He attended a short business course, 'Plan and Start a Business', at WEA Adult Learning Centre in June 2014 but has now lost interest in running his own business. In his Personal Development document he states, "I just don't have the heart or tenacity to operate a business now that I have matured and realise what the real important things in life are." Employment and work history 1. Mr Vu told the Tribunal that he is currently employed at Inghams Chickens, where he works in the production area. He started this employment in 2010. He applied for an Occupational Health & Safety position at Inghams but was unsuccessful. He also applied for work with Anglicare and a disability service, again without success. 2. The only other work Mr Vu has undertaken was with Mr Danny Gilbert, physiotherapist. Mr Vu worked as a physiotherapy assistant, on a voluntary basis, from October 2012 to January 2014. 3. In his written statement Mr Vu said he assisted with exercise supervision, application of heat and electrotherapy machines, general domestic duties and appointment scheduling. He repeated this description in his oral evidence but also said that with Mr Gilbert he had "a practice as a manual therapist". He explained that initially he behaved as he had done in his Cabramatta practice where he had had a very "hands on" approach. He described applying heat packs and providing soft tissue massage and doing connective tissue work for patients. However, he stopped this when Mr Gilbert spoke with him and suggested this approach made the patients too dependent on him. Character references 1. Mr Vu provided a character references from Mr Danny Gilbert, physiotherapist, dated 16 April 2014. He acknowledged he had not provided the Tribunal's decision to Mr Gilbert. 2. Mr Vu also provided a character references from Ms Nuygen, his supervisor at Inghams, dated 3 April 2014. The 2012 Tribunal decision 1. Mr Vu told the Tribunal he accepted and agreed with the original Tribunal's decision. He acknowledged his professional judgment was lacking and that he had failed to understand his ethical and financial obligations. He stated that his drive to succeed overshadowed informed financial decision making. His budgeting skills were very poor, he did not seek financial help and as a result accrued a debt of over $200,000 which precipitated his bankruptcy in 2009. 2. He discussed the deficiencies in his clinical recordkeeping. He stated that he now understood that patient safety was the first priority and that good record keeping promoted good clinical care. 3. Mr Vu told the Tribunal that since the 2012 decision he had maintained his professional knowledge by reading journals and notes he has obtained from new graduates (his brother graduated in physiotherapy in 2013). He had not undertaken any lectures or formal courses as continuing professional development. Mr Vu had not developed any specific learning objectives and there was no record of any reflection by him on the impact of any learning on his knowledge base. 4. He has not undertaken an ethics course. 5. For his own stress management he goes to the gym and plays tennis and golf, although he acknowledged that in the near future, with the birth of his first child, his first priority will be the care of his wife and baby. Future plans 1. Mr Vu stated that he hopes to work as a physiotherapist and to do so in Adelaide where his family resides. He believes he may be able to obtain part time employment with Mr Danny Gilbert. Mr Gilbert has several clinics and Mr Vu believes he may be able to work in Mr Gilbert's rehabilitation practice. 2. Mr Vu also discussed the possibility that he might undertake work in nursing homes. He described the knowledge and skills needed for this work in terms of assessing a person's need for assistance and understanding the availability of mobility aids such as wheelchairs and shower chairs. He stated he would also seek other work in sports physiotherapy. Submissions The Commission 1. The Commission, in its role as contradictor, submitted that the appropriate order for the Tribunal to make was to dismiss Mr Vu's application on the basis that it is premature. While Mr Vu has made some progress and taken some positive steps he has not fully addressed all of the issues raised by the Tribunal or discharged the heavy onus on him as the applicant. 2. The professional misconduct of which Mr Vu was guilty occurred between February 2007 and July 2008. It was serious misconduct in that it involved fraudulent behaviour, which undermines the fundamental trust the community should have in the physiotherapy profession. The conduct occurred over an extensive period of time and revealed a lack of both personal and professional integrity. 3. Mr Vu has not been registered as a physiotherapist since 2008. Over those seven years he has had a significant period of time to reflect, develop insight and take remedial action to address his demonstrated difficulties. Unfortunately Mr Vu still feels unable to provide a copy of the Tribunal's decision to or openly discuss it with treating health practitioners or family members. 4. He has undertaken some counselling. However the only significant period of psychological therapy occurred in early 2015, years after the events in question and the Tribunal's 2012 decision and indeed after his application for reinstatement was made. 5. The Commission notes the authorities, which support the view that the mere effluxion of time is not sufficient to enable the Tribunal to be confident that reinstatement is appropriate. 6. Although Mr Vu is now having therapy with Ms Coopman, there was no evidence of a comprehensive psychological assessment. The only documents provided to the Tribunal were short letters from Miss Coopman and Mr Gilbert, neither of whom have read the 2012 Tribunal decision. 7. The Commission submits that there are two types of insight - personal insight and professional insight. Mr Vu's therapy may assist him to address questions around personal insight, but he has produced no evidence to indicate insight into his professional role, the exercise of professional judgment, practice management or his obligations or relationship with his patients. 8. The Commission also noted that Mr Vu has not addressed the question of ethics, through any formal course or other undertaking. Issues in relation to his recency of practice were also noted. 9. The Commission submitted that not only should the application be dismissed but that a further period of 12 months should be imposed before another reinstatement application could be made. It was submitted that this was the shortest possible time in which Mr Vu would be able to address the outstanding issues in relation to his rehabilitation. Mr Vu 1. In his written application Mr Vu concluded by stating, "I would like to conclude in saying that if given the opportunity to practice physiotherapy again, I know I am better prepared to make more informed decisions, control my emotions and stress, and to prioritise my goals with family commitments. I am entering a new phase in my life where I would like to start my own family…… I know any decisions I make, it will need to be thought out carefully and with a lot of planning. I am a firm believer of facing the consequences of your own actions, and I accepted that the decision of the Tribunal was fair. I would very much like to be able to practice physiotherapy again but at the same time would like to do so with the confidence of the Physiotherapy Council behind me." 1. However, in his oral submissions Mr Vu told the Tribunal that he agreed with the submissions made by the Commission. He said that he had made progress in understanding issues in his personal life but acknowledged there is more that he can do. He indicated that he would be more proactive in terms of his professional development and would, for example, undertake an ethics course and seek expert advice about professional matters. 2. Mr Vu agreed with the Commission's submission that his application be dismissed and that a period of 12 months elapse before he can seek another review. The Tribunal's Decision 1. The Tribunal accepts the submissions made by the Commission, as does Mr Vu. 2. As the applicant for a reinstatement order, Mr Vu bears a heavy onus of proof. As the Commission noted the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds. The Tribunal is not satisfied that Mr Vu has discharged the onus resting on him as the applicant. 3. Mr Vu's application is premature. He has not adequately addressed the issues raised in the 2012 decision in relation to the actions he must take to be reinstated as a physiotherapist. 4. The 2012 Tribunal recommended that Mr Vu undertake psychological counselling. He was unsure about why he should see a psychologist and unclear about "what questions to ask". Although he briefly saw a number of psychologists, he has only very recently begun to see a psychologist on an ongoing basis, and while personal issues have been discussed, it is unclear if relevant professional issues have been canvassed, especially as the psychologist has yet to read the 2012 Tribunal decision. 5. The 2012 Tribunal also referred to the need for Mr Vu to address deficits in his understanding of the ethics of professional practice, but he has not undertaken any formal ethics course nor has he made an effort to address ethical issues by any other means. 6. The Tribunal noted that much of Mr Vu's evidence, rather than focusing on his conduct or professional issues, was an account of his emotional difficulties, personality problems and his use of a poor business model. These are important matters for him to address, but the Tribunal remains concerned about Mr Vu's reflection upon and insight into his professional deficiencies. He only briefly referred to the conduct, which brought him before the Tribunal in 2012 or the specific nature of the complaint and how he had addressed it. He failed to acknowledge the impact of his past fraudulent behaviour on former patients and the profession generally. His lack of insight is reflected in, and his rehabilitation seriously undermined by, the considerable difficulty he has had in providing a copy of the 2012 Tribunal decision to family or other professionals involved with him. 7. The Tribunal was also concerned that Mr Vu displayed limited understanding of his need to improve his knowledge and skills in the area of clinical practice. He stated that he is still competent and confident that he is able to undertake a subjective examination, but when questioned further this was not substantiated. For example, Mr Vu was unable to correctly recall red flags that are used to screen patients in an initial subjective examination for serious pathology. He failed to recognise his current lack of knowledge and need to upgrade clinical skills. 8. Mr Vu stated that a potential area of employment would be work in an aged care facility. However, he was unable to identify the particular knowledge and skills required to work as a physiotherapist in that capacity. Although he referred to mobility issues, there was no mention of highly relevant knowledge and skills required in an aged care environment, such as falls prevention strategies. 9. Mr Vu's difficulties with clinical knowledge and skills may be attributable in part to his failure to engage in ongoing professional development. Mr Vu demonstrated a lack of insight into his need for structured and systematic continuing professional development. He was unable to clearly outline any specific learning goals and the reflection that has taken place since 2008 to improve his current knowledge base. Although he has undertaken reading and says he has made informal attempts to remain up to date, there was no evidence corroborating this, such as a portfolio documenting participation in learning activities. There was no record of reflection and evaluation of the impact of learning on his current understanding of clinical practice. 10. For all of the reasons stated above, the Tribunal determined to dismiss Mr Vu's application. In addition, the Tribunal orders that another application for review cannot be made within a period of 18 months from the date of this decision. 11. While both the Commission and Mr Vu considered that a 12 month period might be imposed before another review could be sought, the Commission acknowledged that this was the shortest period in which Mr Vu could address the many matters which remain for him to tackle. The Tribunal considers that Mr Vu needs additional time and that a period of 18 months will give him appropriate opportunity to address the issues he still needs to address. Any shorter period is not in the public interest nor does it assist Mr Vu should he wish to apply again for reinstatement. 12. The Tribunal makes a number of recommendations to Mr Vu. He should not only continue with psychological counselling, but undergo a comprehensive psychological assessment as part of that counselling. 13. It is also recommended that he enrol in and complete a suitable ethics course. 14. It is also recommended that he engage in appropriately rigorous continuing professional development, in relation to clinical knowledge and skills, practice management and his professional role with patients. 15. Mr Vu should also ensure that he has addressed the recommendations made by the 2012 Tribunal, such as arranging for support by a professional mentor. Costs 1. The Commission sought an order that Mr Vu pay the Commission's costs. Mr Vu did not oppose this application. 2. Accordingly the Tribunal ordered that Mr Vu pay the Commission's costs associated with these proceedings. ORDERS 1. In accordance with S 163B of the Health Practitioner Regulation National Law, Mr Vu's application for review is dismissed. 2. In accordance with S 163B of the Health Practitioner Regulation National Law, the relevant order is not to be reviewed until after 18 months from the date of this order. 3. In accordance with Schedule 5D clause 7 of the Health Practitioner Regulation National Law publication of the name of or any material identifying any former patient of Mr Vu is prohibited. 4. Mr Vu is to pay the costs of the Health Care Complaints Commission in relation to these proceedings, as agreed or assessed. 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: 24 June 2015