Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Black (No 3) [2015] NSWCATOD 72 Hearing dates: 23 June 2015 Decision date: 15 July 2015 Jurisdiction: Occupational Division Before: J Muller (Principal Member) Dr M Woollam (Professional Member) Dr R Engel (Professional Member) F Taylor (Lay Member) Decision: Having found Complaints One to Five inclusive established during a 'Stage One' hearing – See HCCC v Black (No2) - the Tribunal now finds Complaint Six established. Cumulatively the Tribunal has found established unsatisfactory professional conduct, professional misconduct, improper and unethical conduct, contravention of conditions on registration, contravention of s 34A(4) of the Health Complaints Act 1993, contravention of s 130(1) of the National Law and that the Respondent is currently not a suitable person to hold registration The Tribunal made the following orders : (1) Pursuant to s149C(4)(a) of the National Law declares that if the Practitioner were still registered as a osteopath the Tribunal would have cancelled his registration. (2) Pursuant to s149C(4)(b) of the National Law the Practitioner is disqualified from being registered as a osteopath for a period of 10 years commencing on the date of publication of Health Care Complaints Commissioner v Black (No3) [2015] NSWCATOD 72. (3) Pursuant to s149C(5) & s149C(5A) the Practitioner is permanently prohibited from providing all 'Health Services' as defined in s4 Health Care Complaints Act 1993 (NSW) (Prohibition Order) which includes the following services, whether provided as public or private services: (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act. (4) For the purpose of Order 3 herein the Tribunal expressly prohibits the Practitioner from providing in any manner massage therapy and/or naprapathic services and declares these to fall within the definition of 'Health Services' for the purpose of s4 of the Health Care Complaints Act 1993. (5) Orders 3 and 4 herein (HCCC v Black (No 3)) are to remain in force until the practitioner is granted registration under the National Law or any subsequent legislation governing the registration of health practitioners in any state or territory of Australia. (6) Pursuant to s149C(4)(c) of the National Law requests that the Osteopathy Board of Australia record in the National Register kept and maintained on behalf of that Board by the Australian Health Practitioner Regulation Agency (AHPRA) the fact that the Tribunal would have cancelled the Respondent's registration had he still been registered as at the date of this decision (HCCC v Black (No 3)). (7) A Non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of all persons identified as patients (and any information that may tend to identify them) referred to in the schedule annexed to the Complaint made by the HCCC dated 31 July 2013 except as specifically allowed in writing by the Tribunal or as required by law. The Tribunal also makes a non-publication order pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013 prohibiting publication of evidence relating to any of the patients before the Tribunal save for evidence recounted in the decisions published by this Tribunal. Further, the Tribunal makes a prohibited access order pursuant to Rule 42(3)(c) of the Civil and Administrative Tribunal Rules 2014 prohibiting non-parties from inspecting or obtaining copies of any public access document held in the Registry relating to this matter unless specifically allowed in writing by the Tribunal or as required by law. (8) Order that the Practitioner pay the costs of the HCCC as agreed or assessed. If agreement cannot be reached between the parties then the parties have leave to apply to the Tribunal for assessment unless some other assessment mechanism is provided for at the relevant time. Catchwords: Health Practitioner – osteopath – previously registered as osteopath and chiropractor – unsatisfactory professional conduct, professional misconduct, improper and unethical conduct on the basis of conduct in a clinical setting involving female patients, contravention of conditions on his registration on multiple occasions, failure to comply with 'Section 34A Notice' issued by the HCCC – failure to advise National Board of criminal charge in accordance with s 130(1) of the National Law – not a suitable person to hold registration Legislation Cited: Civil and Administrative Tribunal Act 2013 – s64(1)(c) Civil and Administrative Tribunal Rules 2014 – 42(3)(c) Health Care Complaints Act 1993 – s4, s34A(4), Health Practitioner Regulation National Law (NSW) – s3, s3A, s55, s139E, s144, s149C Public Health Act 2010 – s102 (3) Cases Cited: Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618 Health Care Complaints Commission v Black [2014] NSWCATOD 35 Health Care Complaints Commission v Black [2014] NSWCATOD 35 Health Care Complaints Commission v Black (No 2) [2015] NSWCATOD 5 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v ROOPRA (No 2) [2013] NSWDT 3 Health Care Complaints Commission v VU [2012] NSWPYT 1 Latoudis v Casey (1990) 170 CLR 534 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Ohn v Walton (1994-1995) 36 NSWLR 77 Category: Principal judgment Parties: Health Care Complaints Commission of NSW (Complainant) Robert Anthony John Black (Respondent) – appeared with leave by telephone Representation: Counsel: V A Hartstein (Complainant) Solicitor: M Richmond (Complainant) R Black (Respondent in person) File Number(s): 1420016 Publication restriction: The Tribunal made a non-publication order prohibiting the disclosure of the names (and any information that may tend to identify them) of all patients referred to in the schedule annexed to the Complaint made by the HCCC dated 31 July 2013 except as specifically allowed in writing by the Tribunal or as required by law. The Tribunal also makes a non-publication order pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013 prohibiting publication of any evidence given before the Tribunal relating to any of the patients save for evidence recounted in the decisions published by this Tribunal. Further, the Tribunal makes a prohibited access order pursuant to Rule 42(3)(c) of the Civil and Administrative Tribunal Rules 2014 prohibiting non-parties from inspecting or obtaining copies of any public access document held in the Registry relating to this matter unless specifically allowed in writing by the Tribunal or as required by law. reasons for decision What the Tribunal decided 1. The Tribunal conducted a 'Stage Two' hearing and found that the Respondent is not a suitable person to hold registration as an osteopath within the meaning of s 144 of the National Law (Complaint Six established). 2. Further, having already having found unsatisfactory professional conduct, professional misconduct, improper and unethical conduct, contravention of conditions on registration, contravention of s 34A(4) of the Health Complaints Act 1993, contravention of s 130(1) of the National Law established (Complaints One to Five) during the 'Stage One' hearing the Tribunal proceeded to make protective orders. 3. Noting that the Respondent failed to renew his registration in 2012 resulting in his registration lapsing on 3 January 2013, the protective orders made by the Tribunal essentially ensures the protection of public safety by declaring that a cancellation order would have been made had the Respondent held registration, making an order disqualifying the Respondent from holding registration for a period of 10 years (noting that any application for re-registration would need to be considered by a 'relevant tribunal') and making a Prohibition Order with respect to all health services. The Prohibition Order renders it an offence for the Respondent to provide any health service on any basis (s102(3) Public Health Act 2010). The Tribunal also made a costs order in favour of the HCCC. Background 1. The Respondent had practiced as an osteopath and chiropractor in New South Wales since before the time registration was introduced for these professions. Since at least 1991 his Registration has been subject to various complaints which warranted scrutiny by the relevant Board (s). Conditions on registration were imposed on a number of occasions during 2010 and 2011 by the relevant NSW Councils (Councils having replaced Boards for the purpose of regulatory matter in NSW with the introduction of the National Law on 1 July 2010). Paragraphs 3 to 9 of Health Care Complaints Commission v Black (No 2) [2015] NSWCATOD 5 provides a more detailed background. 2. In brief, the conduct already found proven by the Tribunal includes professional misconduct by the Respondent of a 'sexual' nature towards four female patients over a significant period commencing in the 1970's, the breaching of chaperone and other conditions placed on his Registration by the Osteopathy Council of NSW, as well as failures to comply with legislative requirements imposed upon those that hold the privilege of registration as a health professional. 3. The Tribunal had determined a preliminary application to dismiss or stay the proceedings made by the Respondent essentially on the basis of issue estoppel, res judicata, autrefois acquit. The Tribunal dismissed this application prior to commencing the Stage One hearing – see HCCC v Black [2014] NSWCATOD 35. Findings already made by the Tribunal 1. As recorded in Health Care Complaints Commission v Black (No 2) [2015] NSWCATOD 5 the Tribunal has already made the following findings: * Unsatisfactory professional conduct with respect to each of the following Particulars of Complaint One: 1(a), 1(b), 1(c), 2(a), 2(b), 3(a), 4(a), 5(a), 6(a), 6(b), 6(c), 7(a), 8, 9(a), 10, 11(a), 12, 13, 14, 15(a), 15(b), 15(c), 15(d), 16(a), 16(b), 17(a), 18(a), 18(b), 19(a), 19(b), 20(a), 20(b), 20(c). * Unsatisfactory professional conduct with respect to each of the following Particulars of Complaint Two: Particulars 1, 2, 3, 4, 5, 8, 9, 10, 11, 15, 16, 20, and 22. * Unsatisfactory professional conduct with respect to Complaint Three – Particulars 1, 2 and 3. * Unsatisfactory professional conduct with respect to Complaint Four. * Professional misconduct (alleged in Complaint Five) in accordance with s139E of the National Law with respect to the following Particulars of Complaint One: 1(a), 1(b), 1(c), 2(a) & (b) considered together, 3(a), 4(a), 5(a), 6(a), 6(b), 6(c), 7(a), 8, 9(a), 10, 11(a), 12, 13, 15(b) & (c) & (d) considered together, 16(a) & (b) considered together, 17(a), 18(a) & (b) considered together/18(b) alone, 19(a) & (b) considered together/19(b) alone, 20(b) & (c) considered together * Professional misconduct (alleged in Complaint Five) with respect to the following Particulars of Complaint Two: professional misconduct considering any three of Particulars 1, 2, 3, 4, 5, 8, 9, 10, 11, 15, 16, 20, and 22 together. * Professional misconduct (alleged in Complaint Five) with respect to Complaints Three and Four. 1. As noted in Health Care Complaints Commission v Black (No 2) the Complaint document is 27 pages in length and is reproduced at relevant points in that document. It is not reproduced in full herein. Publication Restrictions 1. The Tribunal made a non-publication order prohibiting the disclosure of the names (and any information that may tend to identify them) of all patients referred to in the schedule annexed to the Complaint made by the HCCC dated 31 July 2013 except as specifically allowed in writing by the Tribunal or as required by law. The Tribunal also makes a non-publication order pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013 prohibiting publication of evidence relating to any of the patients before the Tribunal save for evidence recounted in the decisions published by this Tribunal. Further, the Tribunal makes a prohibited access order pursuant to Rule 42(3)(c) of the Civil and Administrative Tribunal Rules 2014 prohibiting non-parties from inspecting or obtaining copies of any public access document held in the Registry relating to this matter unless specifically allowed in writing by the Tribunal or as required by law. Matters left for the Tribunal to decide 1. In the Stage One hearing the Tribunal reserved with respect to a finding regarding Complaint Six and the making of protective orders. These matters are now determined by the Tribunal after holding a Stage Two hearing on 23 June 2015. Submissions of the HCCC re Complaint Six 1. The HCCC provided a written outline of submissions both with respect to Complaint Six and protective orders. The HCCC submitted that the Tribunal should find Complaint Six established. The submissions of the HCCC regarding 'suitable person' included the following (at paragraphs 4 – 6 of its May 2015 submissions): 4. In HCCC v ROOPRA (No 2) [2013] NSWDT 3 the Dental Tribunal noted that 'suitable person' is not defined in the National Law, however some assistance as to its meaning is provided by section 55(1) of the National Law which gives the grounds upon which the National Board may decide that an individual is not a 'suitable person' to hold a general registration in a health profession. The Tribunal in that case noted that the conduct of the Respondent cannot be characterised as 'one off' or 'isolated' in nature. 5. The Tribunal held that considerations such as the maintenance of the reputation of the profession and the trust that is reposed in the profession by the public were matters relevant to the determination of the question of suitability of an individual for registration. The Tribunal also held that although the factors described by Basten JA in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 related to the question of character, such factors have relevance to the wider question of whether a person is suitable to hold registration. 6. In HCCC v VU [2012] NSWPYT 1 at [69] the Tribunal listed factors that provide assistance to the determination of suitability: Professional integrity, personal integrity, insight into the reason why the conduct attracted the severe criticism of the Tribunal, insight into the steps required to remediate any personal or professional deficits identified by the offensive conduct, steps taken towards such remediation, the Respondent's otherwise good character, the nature of the Respondent's prior professional practise including any prior misconduct. 1. The Tribunal accepts that the matters submitted by the HCCC are all relevant to a finding that a practitioner is not a suitable person within the meaning of s.144 of the National Law. 2. There is also assistance in the National Law. The HCCC submission correctly states there is an obligation placed on a National Board by the National Law to ensure that only suitable persons are granted the privilege of registration. This obligation arises specifically by virtue of the provisions of s55(1)(h)(i) and s55(1)(h)(ii) which read as follows: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if- (h) in the Board's opinion, the individual is for any other reason- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. 1. The National Board (and this Tribunal) are part of the national registration and accreditation scheme (NRAS) established in 2010 by the National Law. It is incumbent on tribunals to work within the provisions of the National Law. The National Law enunciates objectives and guiding principles for NRAS which include at s3 and s3A (s3A being NSW specific): s3(2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and …… (e) to facilitate access to services provided by health practitioners in accordance with the public interest; s3(3) The guiding principles of the national registration and accreditation scheme are as follows- …….. (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. (3A) In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. HCCC submissions regarding protective orders 1. The HCCC submitted that the Tribunal should make a comprehensive raft of protective orders as detailed later in this document. The HCCC submissions included a reference to paragraph 36 of Health Care Complaints Commission v Do [2014] NSWCA 307 which applied a well-known principle from Law Society of New South Wales v Foreman (1994) 34 NSWLR 408: 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 1. The HCCC submission records that the Court of Appeal in Do also relied upon the objectives of the National Law (at [34]) and made the following remarks at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. Additional evidence tendered by the HCCC and Respondent 1. In 'Stage Two' the Tribunal was provided with further letters from the Respondent dated 15 May 2015 and 18 June 2015. The Tribunal also heard oral evidence from the Respondent given on 23 June 2015. The HCCC provided the Tribunal with evidence that the Respondent was convicted in the Local Court on 4 May 2015 of two offences relating to advertisements in the White pages ('holding out' offences). The Respondent was fined $4,000 with respect to each offence. The Respondent informed the Tribunal that he was paying off this fine off at a rate of $50 each aged care pay day. The Respondent's Submissions and evidence 1. As noted above the Respondent provided two written documents to the Tribunal. These documents, in the form of letters, were a mixture of evidence and submissions. Further evidence and submissions were provided by the Respondent orally on 23 June 2015. The substantial document was a letter dated 18 June 2015 which was forwarded by the Respondent to the Registry and the HCCC by post. Fortunately a copy of that letter arrived at the HCCC on the day before the hearing and the HCCC drew it to the attention of the Tribunal as the copy posted to the Registry had not reached the Tribunal. When the Respondent was contacted by telephone on 23 June 2015 he stated that the letter/submissions that he had posted were incomplete and that he had emailed a completed version on the morning of the hearing (23 June 2015). As the Tribunal was not in possession of either version of this letter an adjournment was necessary to allow the HCCC to retrieve the Respondent's emailed submission. The HCCC provided these documents to the Tribunal. When compared by the Tribunal they were found to be identical. The Tribunal was then in a position to proceed with the Respondent's written submission, supplementary oral submissions from the HCCC as well as hearing the Respondent's oral submissions (on oath) by telephone. 2. The letter dated 18 June 2015 from the Respondent is lengthy. The Tribunal has not attempted to separate material properly considered as evidence and that which may be considered as submission. The Tribunal was mindful of the fact that the Respondent was not legally represented. Whilst the Tribunal read and considered all of the submissions made by the Respondent only a summary of a number of the substantial matters is made in this document. For ease of reference the Tribunal has added comments on some of these matters rather than leaving all comments to the later part of the decision. 3. The Respondent's submission dated 18 June 2015 commenced with an assertion that he had been denied 'procedural fairness and any natural justice' by the Tribunal as a result of the decision for the hearing (Stage One) to proceed ex parte. The Tribunal notes the following in relation to this submission: * It is not a submission that is in response to the HCCC submissions dated 14 May 2015 * It is not a submission that relates to the questions currently before the Tribunal * The HCCC maintained its position of strong opposition to the Application for the Respondent to appear by telephone throughout the Directions Hearing (such Application having been denied by the Tribunal during the Directions Hearings) and at the time the Application was renewed before the Tribunal at the commencement of the Stage One hearing * The Tribunal makes reference to the advice given to the Respondent and directions made during the Directions Hearings and to the reasons given for the refusal to grant leave for the Respondent to appear by telephone (see transcript commencing at T2) * The Tribunal notes the Respondent had been informed during Directions Hearing that it was the Tribunal's view that this was not a suitable matter for the hearing to proceed with a self-represented Respondent on the telephone rather than in person. * The Respondent did not accept the offer of an adjournment of the commencement of the Stage One Hearing to the following day to allow him time to travel to Sydney to appear before the Tribunal. The Tribunal notes that recent correspondence from the Respondent records that at the time of the Stage One Hearing 'a husband and wife' were staying with the Respondent for the purpose of helping him care for his wife. 1. The Respondent made submissions regarding the expertise of Dr Stone, one of the HCCC peer reviewers. The Respondent's criticism included the fact that she was still in nappies when he commenced his training and in primary school when he commenced practice, that she had no knowledge of Australian Chiropractic, that she was ill-informed as to his training under Alfred Kaufmann (and could not spell his name correctly) and she is not a registered chiropractor and therefor was giving an opinion regarding a 'modality she is lawfully prohibited from giving'. The Tribunal notes that Dr Stone was called as an osteopathic peer reviewer. Whilst the period of time a person has been in practice in a particular profession is a factor to be weighed into the consideration of peer reviewer/expert evidence, the Tribunal has examined the CV of Dr Stone and is satisfied that she is eminently qualified to provide opinions regarding the issues in this matter. 2. The Respondent submission also appears to assert that as he was trained by Alfred Kaufmann and as Alfred Kaufmann held 'eight international diplomas and degrees including Naprapathy' that Dr Stone's qualifications are not comparable to his qualifications either in quality or the time they were undertaken (meaning her training did not occur in the 1960's and was therefore not contemporary to his training). The Tribunal knows of no requirement for a peer reviewer/expert witness to have undertaken identical qualifications at the same time as the person commented upon. 3. The Respondent asserts on page three of his submission that he is the '….only person with the knowledge and experience to prepare an expert opinion on the top echelons of the profession…'. The Tribunal has no evidence before it to support such an assertion. The Tribunal notes the Respondent's evidence that he had provided reports in relation to a large medico-legal matter which occurred at least two decades ago. 4. The Respondent also makes submissions regarding the other peer reviewer, Dr Paul. The Respondent submitted that Dr Paul had '…received a free osteopathic diploma' on graduating with his diploma in chiropractic. The Respondent states that the Higher Education Board had informed the Sydney College of Chiropractic to discontinue this practice as it was 'unlawful'. The Respondent asserts it is a 'gross lie' for Dr Paul to list a Doctorate of Osteopathy on his CV. The Respondent concludes that these matters render the peer review 'unlawful'. The Tribunal notes there is nothing before it to support these assertions. The Tribunal had the benefit of reading Dr Paul's CV and it has no reasons to doubt Dr Paul is appropriately qualified to hold registration and has suitable experience to provide a peer review report. 5. The Tribunal notes that the Respondent had made several demands for the Council and/or the HCCC to provide a legal definition of an osteopathic procedure. In this context the Tribunal notes that the Respondent's submission includes the following statement: There is no such thing as an osteopathic procedure. There is no legal definition of an osteopathic manipulation, And it follows that Chiropractic and Naprapathy fall into the same basket with their definitions. 1. Digressing at this point, the Tribunal notes that there was no evidence before the Tribunal that would allow a conclusion that the training received by the Respondent in the 1960's would meet the current standards of an accredited course that would satisfy the training requirement for registration as an osteopath. Even if there was such evidence, the Tribunal would also need to be satisfied that all continuing professional development (CPD) requirements had been met as well as considering the current knowledge and skill of the Respondent. The Tribunal notes the Respondent's evidence that he had not completed any CPD for a significant period of time. This is not a matter that this Tribunal needs to rely upon in the determination of the issues in this matter and therefore no finding is made. It is a factor which the Tribunal can consider when determining the appropriate protective orders to make, especially what conditions to impose should the Tribunal determine it is appropriate for the Respondent to hold registration. 2. The Respondent also provided lengthy submissions regarding the keeping of records, specifically the electronic 'retention of data' in his 18 June 2015 letter. The Respondent details the evidence that was before the Tribunal regarding various problems the Respondent had with failing electronic equipment and his attempts to rectify these technical problems. The Respondent submitted that he had only decided to transfer his hard copy patient records into an electronic form in May 2009 after having a casual conversation with three other chiropractors whilst on a '4x4 wheel drive track' vacation. 3. In the submission the Respondent acknowledges that having records that are accessible by another practitioner is '…referred to as health and safety of the public'. However, the Respondent submits that, in effect, this was not applicable to him as 'there is not another Robert Black'. The other practitioners he would refer patients to when he was away were not trained in osteopathy, chiropractic, naprapathy and naturopathy as he was. The Respondent submitted that his notes would therefore be useless to another practitioner as none would be able to provide an equivalent range or standard of services. 4. The Respondent submitted that he was entitled to provide a receipt for services to patients recording osteopathic treatment or chiropractic treatment had been provided if at least one per cent of the treatment he provided fell into these categories. The Tribunal is of the view that this is not relevant to the questions currently before the Tribunal. 5. The Respondent submits that Patient D had complained that he was 'rude' and had not provided her with information or 'explain enough' to her. The Respondent submitted that Patient D's complaint about his conduct escalated on each occasion she spoke to the HCCC and the police. The Respondent also attributes a failure of one of his staff to 're-issue' a receipt at the request of Patient D in an allegedly unethical manner as the factor that precipitated the complaint. Once again the Tribunal is of the view that these submissions are not relevant to the questions currently before the Tribunal and note that the Particulars of Complaint relating to Patient D go well beyond anything addressed in the Respondent's submission. The Tribunal also notes the Respondent did not call evidence from this former staff member to support his assertion. 6. The Respondent then deals in his 18 June 2015 submission with the conditions imposed on his registration by Councils, recording that they changed month to month. The Respondent also stated he was the '…first practitioner in Australia with a restriction that I was required to have a medically trained professional in attendance at all times while treating female patients, which meant I had to have a RN or registered nurse employed'. The Respondent submitted that this condition was 'overzealous' and questioned the refusal of the Osteopaths Council to approve his wife (who was then a registered nurse) on the basis of there being 'no course available in Australia' for chaperones. The Respondent then records that at some point he commenced treating all patients as a chiropractor as the conditions on his registration as a chiropractor were less onerous and that this was 'perfectly legal as I was a registered Chiropractor and can treat with whatever modality I choose to place on the receipt'. The Tribunal notes that a number of regulatory bodies around Australia have published guidelines, policies etc relating to chaperoning and that it is a condition that has been imposed on medical practitioners in NSW for many years. 7. Later in his submission, at page 18 (addressing paragraph 14 of the HCCC submissions), the Respondent returned to the issue of the chaperoning conditions imposed by the Councils and adds the following: As to the various boards imposing restrictions on chaperoning it was the Councils which imposed different and various restrictions on my practice as an osteopath or chiropractor, not in any of the other modalities I practice. When my wife who has an ongoing illness was sitting outside a clinic door which was left ajar for that purpose supervising patients, the Osteopathic Council suggested there was a distinct lack of privacy and the Tribunal went along with it. Utter rubbish the privacy of the patient was assured at all times because of the design of the rooms. 1. For ease of reference, the Tribunal notes at this point that it made a finding in Black (No2) that the chaperoning conditions placed upon the Respondent could not be satisfied by a person sitting outside the door of the treatment rooms. Having had the benefit of the extensive video tape recorded by the police at the practice premises the Tribunal has clearly seen the layout of the practice. The Tribunal's view is that for the purpose of the conditions imposed upon the Respondent (as in most cases) a chaperone would have to be in the room where the treatment is being provided. The Tribunal is also of the view that leaving the door ajar would be an invasion of the privacy of a patient. Whilst what can be seen through a partially opened door in the two treatment rooms is not a full view of a patient, the patients are partially clothed and should not be placed so that they can be viewed, albeit it partially, by people entering the premises. The reference to an invasion of privacy is not a reference to the chaperone, as by definition the chaperone needs to be present, it is a reference to the members of the public attending the practice premises. 2. Later in the submission the Respondent returns to the issue of the conditions placed on his registration by the 'various Councils'. The submission asserts that that he considered them to be unworkable in a 'multi-disciplinary practice'. The basis for the Respondent's submission is the fact that he utilized a number of modalities and the Osteopathic Council could only impose conditions in relation to his provision of osteopathy services and could not legally prohibit him from treating females in other modalities (see paragraph 14, page 19). Further into the submission the Respondent asserted that as this matter was being heard by an Osteopathic Tribunal that only conditions relating to osteopathy could be applied by the Tribunal. The Respondent specifically pointed out there had been no chiropractic deliberations or hearing. The Tribunal notes at this point that the effect of the prohibition order sought by the HCCC was applicable to a wide variety of health services. The detailed account of the scope of a prohibition order was provided to the Respondent during the hearing on 23 June 2015 and the Respondent was provided with an opportunity to make oral submissions. 3. The Respondent's submissions raised the question of the manner in which modalities of treatment such as naprapathy are regulated when they are not 'recognised in this country'. The submission asserted that there could only have been a breach of conditions on his Registration if he was exclusively working as an osteopath. For the purpose of this Decision the Tribunal relies upon its finding that the Respondent was providing osteopathic services on the relevant occasions. 4. The Tribunal notes that the National Law is based on protection of title which can present a misapprehension that merely describing a health service as another modality can avoid regulation. In the Tribunals view this is not the case. All registered health practitioners not only have an obligation to work within their scope of practice but to strictly comply with conditions on registration and any other restrictions imposed by the application of the National Law. Other legislation/regulation relating to health practitioners when they are providing health services must also be complied with. By way of illustration, all persons providing health services will be subject to various requirements relating to infection control and medication administration. 5. The Respondent submission stated that he had taken patient records with him to the interview with the HCCC investigators. This interview took place in Wagga on 9 November 2011. Attendance at this meeting had been part of the s34A Notice processes of the HCCC. The submission asserts that the HCCC investigators refused to take his wife's medical records when he attempted to pass them over. The Tribunal notes these records did not form part of the request for documents made in the various s34A Notices issued to the Respondent. The Respondent states that due to his emotional state (as a result of his wife being in hospital at the time) he forgot to hand over the patient records he had with him on that day before he left the interview after an hour to attend to his wife. The Respondent expressed the view that the HCCC should have made a further request for the information. The Respondent does not record any steps he took to provide these documents to the HCCC subsequent to this meeting. The Tribunal also notes the Respondent did not provide these to the Tribunal in his evidence. 6. The Respondent alleged in his submission that two police constables and a Crown Prosecutor had conspired to pervert the course of justice during the prosecution relating to the Patient A matters. The submission states: I approached the State Ombudsman's Office to have the matter formally investigated and after four weeks I was told they could not investigate the matter as I had not asked for costs after the trial, so all of these people who had conspired to convict me walk away free. 1. These are not matters the Tribunal considers relevant to the issues before it. 2. The Respondent makes submissions which touch upon issues regarding the reason why Patient A was receiving treatment. There is no need to recount the evidence regarding 'knock-knees' for the purpose of appreciating this submission. The Tribunal is unable to reconcile this submission with the evidence before the Tribunal or the findings made in Black (No 2). The Tribunal notes that the Respondent accuses Patient A of 'gross perjury' in relation to the evidence she gave to the Tribunal. The Tribunal is not the forum for determining the question of perjury and has not formed a view that there is any support for referral of this issue to appropriate authorities. 3. The Respondent provided an account of the disciplinary proceedings that occurred in 1991 and recounted that neither of the complaints made by female patients were found to be established. The Respondent recounted that for one of these matters the complaint had arisen when a patient spoke to another practitioner who had urged her to complain about a particular procedure. The Respondent stated he had informed the Board that he had performed a 'Stoddard Rocking test' and he was 'exonerated on these fabricated charges'. The Respondent recounts that in the second matter the female patient suffered from 'genophobia'. The Respondent treated this condition by providing a 40 minute tape recording for her to listen to in private. The tape was 'very sexually explicit and pulled no punches in getting down to grass roots' according to the Respondent. The Respondent states that on the basis of evidence given by a psychiatrist he was fully exonerated. The Respondent puts the complaint down to the fact that the osteopaths and chiropractors on the Boards at the relevant time were not qualified to treat this condition. The Respondent however asserts he was 'qualified to diagnose and treat this condition … as I had advanced certificates in sexual problems utilizing clinical hypnotherapy'. The Tribunal has no other evidence before it regarding these complaints and therefore cannot take the matter any further for the purpose of the matters now considered. 4. The Respondent asserts in his submission that he was 'the only practitioner in Australia fully trained in this Country utilizing urogenital manipulations for forty years.' Apart from information regarding the Respondent's training in the early years, particularly with Mr Kaufmann, the Tribunal does not have any evidence of more contemporary training or studies or anything approaching continuing professional development undertaken in this century. 5. The Respondent's submissions also dealt with a matter arising as a result of evidence given by Patient S to this Tribunal. The Tribunal relies on the account of this patient's evidence regarding the manipulation of her neck a few weeks before she gave evidence, as set out in Black (No 2). However, for context, the evidence of Patient S was that she had received a treatment, included a cervical spine manipulation, from the Respondent (at a time he did not hold registration as either a chiropractor or an osteopath) that was identical in nature to the type of cervical manipulation she had received over the years from the Respondent (when he did hold registration). The Tribunal notes it has been provided with records of local court proceedings indicating that the criminal prosecution of the Respondent relating to provision of this treatment did not result in a conviction. The Tribunal did not have access to the entirety of the remarks on sentence although it appears the Respondent does have access to this document as he provided a short extract to the Tribunal in his letter of 18 June 2015. 6. The Tribunal understands from the submission made by the Respondent in response to paragraph 15 of the HCCC submission (at pages 19-20) that the Respondent does not agree he is required to be registered to be providing the treatment he delivers. In support of this position the Respondent further states that his former patients have informed him that 'Thai and Chinese massage clinics' provide 'quite reasonable….cervical manipulation'. 7. The Respondent gives an account of a private inquiry agent attending his practice and taking film of the treatment provided by the Respondent to him in the practice. The Respondent records that at the end of the treatment when the private inquiry agent paid he was provided with a receipt that had the ABN of the 'Company' the Respondent 'works' for written on it. At this point the Tribunal notes the oral evidence of the Respondent on 23 July 2015 included information that this company was no longer operating and was just waiting to be 'wound up'. Later in his evidence the Respondent indicated that he was not terribly concerned about a costs order being made by the Tribunal as he worked for a company that had ceased trading and was being wound up. The Respondent stated that he was still unsure what assets this company might still hold. 8. The Respondent made certain submissions regarding the peer review evidence that was before the local court for the recent criminal prosecution relating to the cervical manipulation of Patient S. The Respondent's submission records that the magistrate did not allow some of the questions put to the peer reviewer by the Respondent. On the basis of this occurrence and the adverse comments about the peer reviewer made by the Respondent in his submissions the Tribunal declines to publish these submissions. 9. The Tribunal does not take into consideration the unsuccessful prosecution of the Respondent for undertaking a restricted procedure and notes there was no conviction for this offence. 10. The Respondent's submission contains the following statement on page 17: On remorse I have absolutely none whatsoever. 1. The Respondent supports this submission on the basis that he had been 'cleared' by a jury and a judge in 'each case'. The Tribunal will read this submission as being limited to the matters involving Patient A and Patient B. As far as the Tribunal is aware there has not been any criminal prosecution arising out of the complaints by Patient C or Patient D. The Tribunal also notes that the Respondent was informed during the Directions Hearing of the difference in the standard of proof applied in this jurisdiction as opposed to the criminal standard. 2. The Respondent makes submissions to explain the observed escalation of his conduct towards Patient D. The Respondent explained that it was his practice to change techniques if there was no progression (meaning improvement of the patient's symptoms). The Respondent also criticised the peer reviewers evidence regarding the particulars relating to conduct towards Patient D as follows: If they had a modicum of knowledge of anatomy then they would have realized it is impossible to achieve. I however missed my day in the sun because I could not ask M/s Stone or Mr. Paul any questions in relation to that particular manipulation and their great knowledge of it. 1. The Tribunal notes at this point the Respondent did not serve any peer reports in response to the HCCC peer reviewers' reports. 2. The Respondent submission records that although he 'retired at the end of 2012' he had subsequently considered applying for registration. The Respondent infers in his submission that he did not so apply as he 'found out' (by means undisclosed) that he 'would be assessed by the two incompetents I had written two malpractice reports about twenty years before Mr [X] and Mr [Y].' The submission goes on to state that he had made complaints regarding both of these practitioners which went unanswered by the Boards and alleged other details of misconduct against all parties. The Tribunal does not find there is a basis for this submission to be relevant to any of the questions or issues before it. 3. At this point the Tribunal notes the Respondent gave evidence on 23 June 2015 that within the last few months he had been consulted by a person who had travelled from Western Australia for the purpose of specifically consulting him after having seen nine other chiropractors. 4. The Tribunal notes that during Direction Hearings the Respondent had asserted he was not in a current financial position to afford legal representation. He further asserted that he intended selling his family home in Wagga (in which his practice is also located). The Respondent's submission states that he had recently placed his 'home on the market'. He plans to travel around Australia with his wife 'irrespective of her medical condition'. The Respondent also records that he does not intend to work again and his 'company' ceased trading on 12 December 2012. In his oral submissions (made on 23 June 2015) the Respondent confirmed that he had an appointment to see a real estate agent in the immediate future. He also advised that the motorhome intended for use to travel around Australia was currently not operable. As noted above, the Respondent also advised that his company had not yet been wound up. 5. In response to paragraph 16 of the HCCC submission (see above) the Respondent repeats that he considers that 'There are no proven particulars as this matter has not undergone a fair and just process'. The Respondent submits that he considers he has been exonerated by time and that he has fulfilled all of his legal obligations regarding these matters. The Tribunal does not accept that time can provide exoneration unless that time has been utilised for significant change. From the evidence before the Tribunal it appears that the Respondent has fulfilled his legal obligations with respect to criminal matters. As to whether this has been a fair and just process the Tribunal leaves this question to the appropriate review body. 6. The Respondent states in his submission that he had 'lost any respect' he had for the Osteopathic and Chiropractic Councils as they were 'complicit in covering up the largest Chiropractic malpractice case in Australia's history, ably supported by the HCCC'. The Respondent asserts that when the matter was raised with the Ombudsman's Office by the person who had reported the malpractice to the HCCC no action was taken due to the effluxion of time so that the Council and HCCC were 'never brought to account for their disgusting behaviour in the [name omitted – being the person who had allegedly reported the matter to the HCCC] matter'. From the evidence before the Tribunal this appears to relate to the same matter referred to by the Respondent as recorded earlier in this decision and occurred over two decades ago. 7. The Respondent makes submissions regarding the question of costs at page 21. The Respondent submits that legislation provides that the HCCC has sixty days to investigate a matter, with a further sixty days if the matter is complicated. The Respondent submits that there was considerable 'waste' with the HCCC requesting the same information 'over and over again'. The Respondent states 'My Company is certainly not paying for the legal team to fly to Wagga and stay at the most expensive Hotel so they could interview my staff on a subject my staff member reported to me they had no concept of at the end of the one and a half hour interview'. The Respondent explained that his reference to his 'Company' is a company called Rabaul No 8. Further every clinic card and receipt issued is printed with a statement that Robert Black is a 'servant' of Rabaul No 8. 8. The Tribunal notes the s34A Notice from the HCCC (dated 3 August 2011 – exhibit 109) required production of invoices and bills issued to female patients that he had provided osteopathic or chiropractic services to since 20 September 2010 (and other documents). In his reply (letter dated 12 August 2011 - exhibit 110) the Respondent accused the HCCC and the Council of 'trying to disrupt' his preparation for the District Court criminal prosecution he was facing at that time. In the reply the Respondent also stated that he had already had his staff 'record the receipts' from his practice but would not supply them until he had an answer to a 'legal question' as to what constitutes an 'Osteopathic manipulation or treatment'. This letter is indicative of the attitude the Respondent displayed to the HCCC and the Council. The Respondent also claimed that without this term being defined he considered he 'may be incriminating' himself by indicating on his receipts which modality he is utilising for a particular patient. The lack of good faith of the Respondent in his dealings with the HCCC is further demonstrated by his conduct with respect to the patient records he claims to have had in his possession when he met with the HCCC investigators in Wagga. The Respondent's submission records that he had failed to hand them to the HCCC due to his distressed state of mind. The Tribunal is of the view that had the Respondent been acting in good faith he would have taken steps to ensure the HCCC received these records, and at the very least provided them to the Tribunal. The Tribunal is critical of the Respondent's failures in this regard. Tribunal's consideration of Complaint Six 1. The Tribunal accepts the submissions of the HCCC as to matters relevant to the determination of the question of whether a person is unsuitable to be a registered health practitioner. 2. Whilst each case turns upon its own facts and circumstances, the Tribunal is of the view that the following matters may assist a tribunal in making a finding of not a suitable person within the meaning of s144 of the National Law: 1. The professional integrity of the practitioner (or former practitioner) 2. The personal integrity of the practitioner (or former practitioner) 3. Whether the practitioner (or former practitioner) has insight into the reason why the conduct attracted severe criticism and the nature of that insight 4. Whether the practitioner (or former practitioner) has insight into the steps required to remediate any personal or professional deficits identified by the offensive conduct 5. The steps, if any, taken by the practitioner (or former practitioner) towards such remediation 6. The otherwise good character of the practitioner (or former practitioner) 7. The nature of the practitioner (or former practitioner) prior professional practise including any prior misconduct 8. Other aspects of being a fit and proper person to hold registration 9. The practitioner (or former practitioner) ability to practise competently and safely 10. Would continued registration of the practitioner (or former practitioner) damage the reputation of the profession 11. Would continued registration of the practitioner (or former practitioner) damage the confidence that the public reposes in the profession 1. The Tribunal is of the view that maintaining the reputation of the profession and maintaining the confidence that the public is entitled to repose in a registered health practitioner are matters relevant to the determination of the question of suitability of an individual for registration as these are important functions of the regulatory scheme. These considerations also act to prevent the general membership of the profession being tainted by the conduct of the few that engage in misconduct or other disreputable conduct. 2. The Tribunal is of the view that the conduct of the Respondent had the potential to damage the reputation of the profession of osteopathy and to damage the trust reposed in that profession by members of the public. The Tribunal notes that historically the profession of osteopathy has had a close association with the profession of chiropractic, an association unique amongst the registered health professions in Australia. This includes there having been a single registration Board for both osteopaths and chiropractors for a significant period of time in NSW (and elsewhere in Australia). 3. The conduct of the Respondent relied upon by the Tribunal in making this finding is detailed in Black (No 2). The Tribunal notes that each of Patient A, B, C and D described their emotional reactions to the Respondent's conduct towards them. Representative of this is the evidence given by Patient D (T150-24-40): Q. As a result of your treatment, and I use that word in inverted commas, from Robert Black, I mean the way he treated you, have you had any problems that you can tell the Tribunal about? A. Yeah. Things like trouble sleeping, simple things like getting in an elevator and if there's a male there, having tradespeople come to the house if my husband's not home. I try not to do that. Simple things like going to work and knowing that you have got to deal with men or going to the doctors. I wouldn't go and have a Pap smear or things like that. I don't know. There was lots of different things that just sort of you would get on with life because you have to but it was extremely difficult. My self‑confidence was shot. It affected intimacy with my husband as well. I can remember just feeling really depressed and really down for quite a while. I think I only started to really allow myself to deal with any of it when I wrote to the Health Care Complaints Commission. I think I wanted to just bury it and not think about it because I thought that was the best way to deal with it because I couldn't, I just couldn't do it. I couldn't ‑ I just couldn't. So I think it was from then that I ‑ it's like it opened the gate. So, yeah, just been trying to heal since. 1. The other 'class' of professional misconduct found by the Tribunal relates to his failures to comply with conditions imposed upon his registration in accordance with the relevant legislation and failure to comply with notices validly issued by the HCCC in accordance with the Health Care Complaints Act. This type of conduct demonstrates a disregard for regulatory authorities and also tends to damage the reputation of the profession and impact upon the trust the public reposes in the profession. (a) Professional integrity 1. Turning to consideration of the factors listed above, the Tribunal is of the view that most of the particulars found to be established by the Tribunal impugn the Respondent's professional integrity. The Tribunal accepts the HCCC's submission that the evidence reflects the contempt the Respondent showed for the Conditions placed on his Registration by the Osteopathy Council of NSW. The evidence before the Tribunal is that the Respondent did not make any significant effort to comply with these conditions. Rather, the Respondent actively side-stepped attempts by regulatory authorities. The Respondent devised schemata that only had validity in his own frame of reference. For example the Respondent asserted he was using 'modalities' of treatment beyond the reach of the regulatory authority to avoid compliance with conditions on his registration. 2. Further, the general content and tone of the letters the Respondent has sent over a lengthy period of time to various authorities including this Tribunal, the HCCC and the Councils/Board(s) demonstrates a blatant and substantial disregard for authority. Boundary violations, failure to comply with conditions on registration and failure to comply with legislative requirements are all findings that allow the Tribunal to be reasonably satisfied that the professional integrity of the Respondent is so deficient that he is not a suitable person to hold registration. All citizens have a legal obligation to comply with legislation as it applies to them. (b) Personal integrity 1. The conduct found established by the Tribunal is of such a nature that it directly reflects upon the Respondent's personal integrity. This is not a matter where the conduct has occurred, for example, due to a deficiency in the clinical knowledge of a practitioner in a limited area of practice. All of the conduct results from decisions the Respondent made to contravene boundaries and his failure to comply with legislative obligations about which he was well aware. However, the Tribunal is of the view that this is not a matter where there is a simple failure to comply with legislative obligations. Rather, the Respondent actively planned ways around compliance and exploited the obligation of the regulatory authorities to provide procedural fairness. This exploitation included stating he needed more time to gather materials on the basis that he was distracted preparing for his criminal proceedings and asserting that the HCCC had the obligation to re-issue the request for patient records after he failed to hand them over on 9 November 2011. The Tribunal also notes the Respondent's complaint that there were duplications of requests from the HCCC which he objected to being included in any consideration of costs. 2. Based on the conduct described by the Tribunal above (noting this includes the comments made in HCCC v Black (No 2)) the Tribunal has formed the view that there are key personal attributes lacking in the Respondent. These include respect and honesty, which are fundamental to the suitability of a person to hold the privilege of registration as a health practitioner. 3. The Tribunal notes that as the Respondent held registration as both a chiropractor and an osteopath at times two sets of conditions were imposed upon his practice. Both the Chiropractic Council of NSW and the Osteopathy Council of NSW considered that the conduct of the Respondent required conditions to be imposed on his Registration. Conditions are imposed by Councils for the purpose of protecting the public whilst an allegations is being investigated. The Tribunal is of the view that this should have been a clear warning to the Respondent that his peers held grave concerns regarding the allegations made against him. Rather than approach practice in a cautious manner, reflect on his conduct, and provide total cooperation with the registration authorities, the Respondent's conduct illustrates a level of disregard that demonstrates the Respondent has no relevant insight. (c) Insight 1. The Tribunal has no evidence that the Respondent has insight into the reasons why his conduct has attracted the severe criticism of the Tribunal; rather, there is evidence to the contrary as detailed above. The Respondent is riled by any criticism of his conduct and asserts there is no one in a position to make comments critical of his practises as he is 'peerless'. The evidence given by the Respondent to the Tribunal on 23 June 2015 as set out elsewhere in this document confirmed this finding as current. (d) Insight into steps to remediation 1. It follows that the Tribunal finds that the Respondent has not demonstrated any understanding of the steps required to remediate any personal or professional deficits identified by the offensive conduct. Acceptance of the conduct is usually a prerequisite to the formulation of remedial processes. The evidence given by the Respondent on 23 June 2015 did not provide any evidence that he accepts any aspect of his conduct warrants criticism. The Tribunal notes the Respondent expressed the view it was appropriate that he had not undertaken any continuing professional development over at least the last 20 years as there was no practitioner within Australia that he considered had the ability to enhance his skill/knowledge. In essence, the Respondent's evidence was that he was far ahead of any other practitioner with respect to his professional skills and abilities. The Respondent supported this position by the fact that graduate students had been coming to him for years to 're-train' so that they could become effective practitioners. (e) Steps to remediation 1. There was no evidence in the submissions made by the Respondent that could be characterised as a step towards remediation. In fact his evidence of continuing to provide treatment to patients despite the findings of this Tribunal and his recent convictions are clear indicators that there is no remediation at the present time. 2. The Tribunal is reasonably satisfied that there is no evidence that the Respondent has taken any steps towards remediation. (f) Otherwise good character 1. The character of the Respondent is another relevant consideration. The nature of the misconduct is indicative of serious deficits in character and does not, in the view of the Tribunal, need any detailed analysis. There are some aspects the Tribunal will highlight. 2. The nature of the Respondent's conversations with various female patients is of concern to the Tribunal. Apart from the conversations detailed in the Particulars, the Tribunal also heard evidence from Patient W who described the Respondent's conversation as 'a bit robust and aimed at a broadminded female' and gave the example of the Respondent recounting to her an incident when a female patient had a tampon string hanging out of her underpants. The comments were crude and distasteful. The Tribunal's view of such conversations is that the community would consider they have no place in general conversation, let alone within a therapeutic setting. 3. The inability to keep appropriate boundaries is a matter the Tribunal considers goes to the quality of character. Such conversations damage the character of a person. (g) Prior professional practise 1. The Tribunal notes the lengthy period of time over which the misconduct that is the subject of the Complaint occurred. Whilst it is not 'prior misconduct' in the sense that there were earlier occasions on which a tribunal or other disciplinary body had made a formal finding, there were occurrences that should have had the same impact upon the Respondent. The investigations undertaken by the HCCC and the interventions by the Councils should have been of some moment to the Respondent. There is no evidence of this. The nature of the Respondent's prior professional practise does not provide the Tribunal with any confidence with respect to the Respondent's suitability for registration. 2. The misconduct of the Respondent towards female patients spans almost the entire time he was in practice. The Tribunal finds that misconduct over such an extended period must be a factor to consider when determining if the Respondent is suitable to hold registration. The conduct of the Respondent was not limited to a relatively short period of time as was the case in Roopra or Vu referred to in the HCCC submissions reproduced above (although the tribunals in those matters ultimately found the practitioners' registration should be cancelled). The effluxion of time should have provided an opportunity for the Respondent to reflect on his conduct, to have developed insight (with or without professional assistance) and desist from such behaviour. (h) Fit and proper 1. The Tribunal is also of the view that the pattern of conduct towards women is of particular concern. For the best part the patients sought treatment as a result of suffering pain. They were seeking to alleviate their pain. This creates vulnerability. Being partially clothed whilst receiving treatment adds to that vulnerability. The Tribunal findings demonstrate that the Respondent took advantage of this vulnerably by incrementally escalating boundary violations. Such conduct would be sufficient for a finding that the Respondent was not a fit and proper person to be granted the privilege of registration without regard to any other factors or proven particulars of complaint. Ability to practise competently and safely 1. The Tribunal is also concerned with the competence of the Respondent given his failure to undertake CPD over such a lengthy period of time. 2. The Tribunal finds that it has no confidence that the Respondent can practise in a safe manner. The Respondent has abused the trust of numerous female patients on numerous occasions and has shown blatant disregard for authority. This is not a matter where the abusive conduct has occurred on one occasion or over a short period of time. This is also not a matter where the regulatory authorities have made no effort to try and regulate the Respondent's conduct. The whole frame of reference of the Respondent's submissions is of significant concern as it does not reflect any of the qualities expected of a registered health professional. The Tribunal makes a finding that the Respondent is unable to practise competently and safely. (j) Damage to the reputation of the profession 1. The Tribunal finds that the conduct established is of such a nature that the reputation of the profession would be significantly damaged if he was permitted to be a registered health professional. Damage to public confidence 1. The Tribunal finds that the conduct established by the Tribunal is of such a nature that the trust reposed in registered health practitioners by the public (a trust they are entitled to be able to repose in all registered health practitioners) would be undermined if the Respondent be permitted to hold registration. 2. In making some of these findings the Tribunal is mindful that it appears there is a generalisation being made regarding the Respondent's conduct towards Patient A, Patient B, Patient C and Patient D. The Tribunal relies upon the specific findings regarding the Respondent's conduct with respect to each of these patients as detailed in Health Care Complaints Commission v Black (No 2). 3. The Tribunal formed the view that the Respondent's unfitness continues. This will be evident from the comments made by the Tribunal above when dealing with various aspects of the Respondent's evidence and submissions. The Tribunal also notes the Respondent's letter of 18 June 2015 contains a particularly disturbing paragraph. The paragraph contains very personal information alleged about one of the patients named in this complaint. The information does not relate in any way to the matters relevant to a Stage Two hearing. It appears to be designed to embarrass the particular patient by 'publishing' a 'scandalous' matter. It is a serious breach of patient confidentiality in the view of the Tribunal. 4. The Tribunal has also formed the view that the Respondent is unfit to practise for the indefinite future in any capacity. This basis of this finding includes the length of time of the misconducted, the nature of the misconduct and the fact that he was recently found to be in breach of the law. In these circumstances the only appropriate order, had the Respondent's name remained on the Register, would have been cancellation of registration. 5. Complaint Six alleges that the practitioner is not a suitable person to hold registration as an osteopath within the meaning of s.144 of the National Law, the HCCC relying on the particulars and allegations identified in Complaints One to Four. The particulars of Complaints One to Four found to be established by the Tribunal are listed above. The reasons relied upon by the Tribunal to establish these particulars and the complaints are set out in Health Care Complaints Commission v Black (No 2) as discussed above. The Tribunal finds Complaint Six established. Protective Orders 1. The role of tribunals has been held to be protective of the public and not punitive towards the practitioner. Other aspects of the role of tribunals include maintenance of the reputation of the profession, maintenance of the trust that is reposed in the profession by the public, as well as a general deterrent effect. 2. In summary, the Tribunal found that the Respondent engaged in unsatisfactory professional conduct or unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of registration (professional misconduct – Complaint Five) in the following respects: 1. The conduct engaged in demonstrated that the knowledge, skill and judgment possessed and the care exercised by the Respondent was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (Complaint One – Patient A, Patient B, Patient C, Patient D). 2. The conduct in the practice or purported practice of osteopathy engaged in by the Respondent was improper and unethical (Complaint One – Patient A, Patient B, Patient C, Patient D). 3. Breaching conditions on his Registration on multiple occasions (Complaint Two). 4. Failing to comply with a 'Section 34A Notice' issued by the HCCC without reasonable excuse (Complaint Three). 5. Contravened s130(1) of the National Law by failing to provide the National Board written notice of being charged by NSW Police on 9 August 2010 with one count of Assault female and commit act of indecency <16 years pursuant to section 76 of the Crimes Act 1900 (Complaint Four). 1. The Tribunal has also found that the Respondent is currently not a suitable person to hold registration (Complaint Six). 2. An examination of the entirety of the evidence allows the Tribunal to form the view that the Respondent's conduct demonstrated he has an ingrained attitude of disregard for professional boundaries, a disregard for the welfare of the female patients he assaulted, a lack of understanding of the provision of heath care in a regulated setting, is unconcerned about breaching conditions on his registration, has knowingly and actively planned to avoid the effect of the conditions on his registration, has breached the National Law by holding himself out to be a registered health practitioner when he had knowingly let his registration lapse and has shown blatant disregard for the statutory authority of the HCCC and the relevant regulatory Boards and Councils. 3. The Respondent also has an entrenched (and disturbing) view that he is superior in every way to all other osteopaths (and chiropractors). The Respondent gave the following evidence before the Tribunal 'I keep saying, I have no peers. Any of the old time practitioners will say "I stood alone"'. 4. Having found Complaint Six established and having further found that the Respondent remains an unsuitable person to hold registration the appropriate order is cancellation of registration. However, as noted above, the Respondent failed to renew his registration in 2012 and his registration lapsed in early 2013. In these circumstances it is appropriate for the Tribunal to make a declaration that had the Respondent been registered at this time it would have proceeded to make a cancellation order. 5. Putting aside the Tribunal's finding of Complaint Six, and considering the nature of the conduct found established by the Tribunal, a cancellation order (and in the current circumstances a declaration to this effect) would have been made by the Tribunal based on each of the numerous professional misconduct findings made in Complaint Five. 6. In coming to the finding that cancellation would have been the appropriate order the Tribunal accepts the submissions made by the HCCC regarding the serious nature of the misconduct found. Specifically the Tribunal accepts the submissions made in paragraphs 9 to 17 of its submission which reads as follows: 9. The professional misconduct of which the Respondent has been found guilty is extremely serious and, in respect of Complaint 1, involved boundary violations involving the penetration of the vagina and anus, in one case, of vulnerable female patients including a twelve year old girl. 10. These sexual assaults took place on various occasions over a long period of time and involved in each case escalating misconduct in relation to female patients. 11. The Respondent has not expressed remorse or any other mitigating circumstance in respect of those assaults or, indeed, any of the other complaints. 12. The Respondent has provided no evidence of any sort which would allow the Tribunal to be satisfied that the risk to female patients of similar improper behavior towards them by the Respondent is any less now than it was when the assaults took place. 13. There are numerous particulars of complaint which have been proved against the respondent. The sheer number of proven particulars is significant in deciding whether it would be appropriate to cancel the registration of the respondent, if he were still registered. 14. In the past, over many years, various Boards have attempted to protect female patients by imposing requirements that the respondent have a chaperone present when treating female patients. The respondent has not abided by these conditions. It is not appropriate, therefore, to impose conditions with which the Respondent must comply for any purpose. 15. The Respondent continues to treat patients using osteopathic or chiropractic techniques, although not registered in either of those modalities, and he attempts (in his various letters to the Tribunal and other authorities) to avoid the requirement for registration by describing his treatments as "massage" or "naprapathy". 16. It is the Complainant's submission that, because of the number of proven particulars and their seriousness, the length of time over which the respondent has offended, the respondent's flagrant breach of conditions imposed upon his registration, his disregard of his legal obligations, his dishonesty and the attitude displayed by the Respondent to the Tribunal and other authorities governing the practice of an osteopath or chiropractor, the Respondent constitutes a substantial and ongoing risk to the safety of the public. He will never be a fit and proper, nor a suitable, person to be registered. 17. Because the legislation requires either a specific period or specific conditions to be set, it is submitted that 10 years is an appropriate period in all the above circumstances. 1. The Tribunal has also had regard to the principles established in the matters of Freeman and Do set out above. The Tribunal has a strong role in setting and maintaining standards of conduct acceptable within professions. Having formed the view that the safety of the public would be at risk if the Respondent was allowed to practise, that the conduct falls well short of the standard expected of registered health practitioners, that the Respondent lacks the competence and is unfit to practise and for the purpose of denouncing the conduct of the Respondent the Tribunal has formed the view that the Respondent should not have the privilege of registration. 2. Where a practitioner remains registered it is incumbent on all tribunals to consider whether conditions on registration would provide sufficient comfort to allow the practitioner to remain on the register. The Tribunal is of the view that even if the Respondent remained on the register there are no conditions that could be applied to the Respondent's registration that would provide any level of comfort that the public safety would be maintained. As set out below the Tribunal has no confidence that the Respondent would comply with conditions on his registration. 3. The HCCC submitted that the Tribunal should order that the Respondent be disqualified from registration as an osteopath for a period of 10 years. This is a significant period of time. 4. The time fixed for a period of disqualification is not intended to be punitive. Rather, it is intended to be protective, as are the orders of tribunals. This is not to say that in being protective it will be viewed by all in that light. 5. The period for disqualification fixed by a tribunal exercising a protective function serves several purposes. Primarily a period of disqualification should be referenced to the minimum period of time the tribunal considers is required for the person to overcome the deficits identified. The period of disqualification also: 1. allows the person to be relieved of their professional responsibilities to provide them with the time to focus their attention on remediating the deficits in their previous practise and/or their character as identified by the tribunal's findings, 2. prevents the abuse of the review process when there are no prospects of the person's circumstances having changed within a certain period of time from the original tribunal consideration of the matter, 3. prevent a person subject to a term of imprisonment (including any conditional liberty such as release on parole) from holding registration as a health professional, 4. indicates to the practitioner, to other members of the profession and to the public the seriousness with which the conduct is viewed. 1. These may not be the only factors that will influence the fixing of such a period of time. This time so fixed should be the minimum period of time required should the person totally apply themselves to their rehabilitation. For the purpose of fixing a time consideration of the nature of the conduct, the insight and remorse demonstrated by the practitioner, any view that can be formed regarding the persons capacity for remediation will assist. 2. The nature of the Respondent's conduct is recorded in this document. The lack of insight is also evident from the evidence recorded by the Tribunal. The Tribunal notes the Respondent's bald statement that he has no remorse. There is some additional evidence that the Tribunal will now recount that contributes to the view that the Respondent has little capacity for remediation, substantially due to well entrenched character flaws. 3. In Exhibit 99 being a letter dated 15 August 2010 the Respondent stated: I was personally taught by Alfred Kaufmann, the father of Osteopathy in Australia and a former Divine Science Teacher at Cambridge University in the UK. I received my religious instruction from an expert. He also taught me a no nonsense straight forward approach to dealing with patients, especially in all internal visceral investigations and adjustments. In the twelve years I taught at the Sydney College of Osteopathy, and then in my own College I have steadfastly remained loyal to Alfred's teachings.' , "I am the last remaining practitioner personally taught by Alfred Kaufmann still practicing in Australia. 1. Exhibit 102 is another letter from the Respondent. This letter dated 30 March 2011 includes the following: I have retrained numerous practitioners over the last couple of years and when questioned on their training in urogenital and visceral manipulation they have all said there was none in their Osteopathic or Chiropractic courses. Macquarie Chiropractic Course had a thirty minute lecture on internal coccyx adjustment with no practical demonstration on the various positions to place the patient in or more to the point, the thrusting or direction angle of the manipulation. With the UWS Osteopathy course the procedures were completely non-existent. In relation to restrictions in place on my License to Practice Osteopathy I would respectfully submit that those members of the Committee who are sitting making the decision to impose the restrictions collectively would not be able between them, to diagnose a ptosed bladder or uterus! As for any member on the Chiropractic committee none of them do soft tissue release, let alone putting on a rubber glove to examine a male or female patient. I would hasten to suggest that not one member of either committee has ever utilized urogenital manipulation in their practices. Yet wrongly believe that because they are incompetent and totally untrained in urogenital manipulation procedures that nobody should do them. 1. Further in exhibit 102 the Respondent stated that he maintained that he was under no obligation to comply with s130 of the National law and make a notification regarding having been charged with the criminal offence (relating to Patient A) as there was no registration at the time when the offence was alleged to have occurred and the legislation cannot have retrospective effect. 2. In an open letter dated 10 November 2010 (part of exhibit 103) the Respondent informed his patients that although he had purchased a 'Motorhome' he was not intending to retire. Rather he intended taking trips over weekends or long weekends to treat patients in remote locations. The letter continued: The redhead big Jules (M/S Julia Gillard) will be assisting me with Tax Assistance as I will be the first Osteopath in Oz to travel to these remote areas. Some of my patients currently travel up to three hours each way to receive my form of Osteopathic treatment. They of course go past numerous other practitioners on the way to Wagga. All think it is worth the trip. As a leading Naprapath my clinic motto is still the same as it has been for forty six years. "My standard of treatment is the measure by which all others fall short" If you can pass this message on, especially to the blabber mouths who are so desperate for me to retire, which would then enhance their level of mediocrity to be somewhere near my standard of treatment it would be greatly appreciated. A few people may find themselves in Court having placed their assets at risk in making unsound and untrue assertions. 1. In a letter dated 3 March 2012 (exhibit 121) to the HCCC the Respondent makes the following statement (noting that Mr Pehm is the NSW Health Care Complaints Commissioner): I would like to draw your attention to the "Law" in relation to experts Mr.Pehm. I would particularly like to point out to you the Frye test in relation to expert witnesses. Now according to the traditional definition expert evidence is evidence which draws on a "recognised field of specialist knowledge, sufficiently established to have gained general acceptance in the particular field to which it belongs. 1. The Respondent then goes on in exhibit 121 to quote from 'Dixon JC'. The Respondent then states that he had spoken to all of the people he had 'trained as Naprapaths' and none had been approached by the HCCC to provide an opinion regarding Naprapathic manipulative treatment and approaches. As an aside, the Tribunal notes there is no evidence before it that Naprapathy is recognised in Australia as a treatment modality. 2. Another example of the Respondent's view that he was in effect 'peerless' when it came to urogenital manipulation is provided in his letter to the HCCC dated 30 March 2011 (exhibit 123). This letter includes the following: One matter the HCCC must resolve before it can investigate the complaint is to answer the question on who to obtain as a peer reviewer on urogenital manipulation. I would suggest to you your field is extremely limited in Australia. You may also find it difficult to obtain an unbiased opinion as I have taught most of the people who are so trained and all the others have no training in urogenital manipulative procedures. 1. Towards the end of his written submission dated 18 June 2015 the Respondent reiterates his assertion that he considers he has no peers. He bases this on an assertion that there is no one in the profession with his 'training experience and knowledge'. 2. Another indicator of the character of the Respondent is the ease with which he was willing to allege that many of his patients had altered their receipts (in an identical manner) for the purpose of being either able to make a claim from their private health insurer or so they could obtain a higher rebate. The Tribunal views this allegation as an attempt by the Respondent to support his proposition that he was providing naprapathic treatment rather than osteopathic treatment (noting that the receipts in evidence were clearly marked as indicating osteopathic treatment had been provided) and therefore fell outside the purview of the Council (and this Tribunal). 3. The video evidence of the execution of the search warrant by members of the NSW Police Service recorded the Respondent informing DSC Culgan, the detective in charge of the investigation, that there were no clinical notes in the premises. The video reveals that during the search notes regarding Patient D stored together with pornographic material in a draw in the reception area were located by police. In context the Tribunal notes that the Respondent had informed police that no patient notes were located within the practice premises. On a professional level, the Tribunal is of the view that pornographic material has no place within a practice, let alone within a public reception area. 4. Although not subject of the particulars of any Complaint, the Tribunal notes that the conduct of the Respondent in the presence of the police is relevant to consideration of appropriate protective orders as it is indicative of the character flaws that require remediation. This evidence supports the findings of the Tribunal that the Respondent has no respect for authority and this would render the imposition of conditions rather than cancellation of registration a matter requiring very careful consideration. The Tribunal would need to have confidence that the Respondent would comply with conditions so imposed as the public safety is at risk. The Tribunal notes that from time to time a tribunal may seek an indication from a respondent as to whether or not they will comply with proposed conditions prior to their imposition. 5. The oral evidence of the Respondent that he had not undertaken any continuing education (CPD) was remarkable for the pride the Respondent demonstrated in this circumstance. In summary, the Respondent's view was that there was no one who was more qualified/skilled than he and therefore he had no need for CPD. The Tribunal notes that this view is firmly held by the Respondent in the circumstances where his conduct had been the subject of scrutiny by various bodies over a lengthy period of time. The Tribunal describes this aspect of the Respondent's conduct as arrogant self-deception. 6. Having regard to the entirety of the evidence, in particular the character flaws of the Respondent amplified by the above observations cause the Tribunal to form the view that there is little prospect that the Respondent will ever remediate the flaws identified by the proven conduct. 7. The HCCC submitted that the Tribunal should make an order disqualifying the Respondent from being registered as an osteopath for a period of 10 years. There is no doubt that this is at the upper end of the range for such an order. 8. In this case the Tribunal does not have any evidence to demonstrate that the Respondent has commenced on the pathway to acknowledging his conduct. This is usually a prerequisite to the remediation process. 9. Further, the conduct of the Respondent not only spans several decades, the attitude of disregard permeates both his conduct towards patients and his engagement with any 'authority' related to his registration. The Tribunal observes at this point that having had the benefit of viewing the video record of the Respondent's engagement with members of the NSW Police Service during the execution of a search warrant on his practice premises as well as hearing evidence from the police officer in charge of that operation the Tribunal is reinforced in its view as to the Respondent's total lack of regard for 'authority'. 10. The Tribunal is mindful that the purpose of a period of disqualification is not to punish a practitioner; rather it is the Tribunal's view as to the minimum amount of time that may be required for the practitioner to remediate the deficits identified. The Tribunal emphasises that it is a minimum time required for remediation in the event that the practitioner totally applies themselves to the remediation process. This period of time needs to be assessed on a case by case basis. 11. In the circumstances of this matter the Tribunal is of the view that the minimum period of time that would be required for the Respondent to remediate the deficits in his practice identified by the Tribunal is a period of 10 years. The Tribunal will therefore make an order disqualifying the Respondent from holding registration for a period of 10 years from the date hereof. 12. Remediation will need to be assessed by a subsequent tribunal to ensure that the Respondent no longer poses a risk to public safety and demonstrates he is, at that time, a suitable person to hold registration (as well as demonstrate any other requirements imposed by the relevant registration board such as recency of practice). 13. The HCCC has submitted that it would be appropriate for the Tribunal to make a prohibition order in accordance with the provisions of s149C of the National Law. The operation of s 149C (5) and (5A) requires the Tribunal to have made a decision to suspend or cancel a person's registration (or if the person is no longer registered to have made an order that it would have ordered suspension or cancellation) and then be satisfied that the person poses a substantial risk to the health of members of the public. 14. The term 'substantial' 'is an ordinary English word and must be given its ordinary meaning in the context in which it appears' (Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618 at 622). 15. The Tribunal is of the view that it should not be satisfied that the Respondent's poses a substantial risk if his conduct was trifling or peripheral. However, in this case the Tribunal has found numerous particulars of the Respondent's conduct to be professional misconduct. Whilst it is the Tribunal's view that the inappropriate physical contact the Respondent made with the four female patients to be sufficient to make a finding of substantial risk, the balance of the Respondent's conduct reinforces this position. Certainly the disregard for the views of his peers and for authority could not allow the Tribunal to take the view that the Respondent would, of his own volition, take heed of the criticism of his conduct and cease providing health services. The Tribunal notes the Respondent has been convicted of offences relating to his holding out as a registered health practitioner and a hefty fine has been imposed. The Tribunal has evidence before it that the Respondent was aware that he was not entitled to use the title but nevertheless continued to do so, informing his patients that he had failed to renew his registration and was therefore unable to provide them with a receipt which could be used for the purpose of claiming a rebate from the patient's private health insurer. 16. As set out in Black (No2) the Respondent breached the trust of many patients. It is difficult to characterise the conduct as being anything other than for the purpose of fulfilling his own needs. He certainly has shown no regard for the impact of his conduct upon his patients or on the reputation of the profession. 17. The Tribunal recounts that it formed the view that the 'contact' with the Respondent described by Patient D does not constitute any treatment that would properly be considered as osteopathic and is without clinical foundation. This is a consideration with respect to the making of a prohibition order. 18. The vulnerability of Patient A is evident from her age at the time of the conduct. The vulnerability of Patient D was revealed by her evidence that when the Respondent became aware of her reluctance to continue the Respondent offered to move her appointments to the commencement of his lunch break, and on that basis would not charge her for those appointments. The Tribunal notes this was a time of the day when generally there were no other persons within the practice premises. 19. The Tribunal is of the view that the Respondent poses a substantial risk to the public and intends making a prohibition order for a minimum period of 10 years and continuing until such time as the Respondent is granted registration in a registered health profession in accordance with the National Law or any subsequent legislation governing the registration of health practitioners in any state or territory of Australia. The Tribunal is of the view that the prohibition order must be in place for this period of time as it will only be at a time when the Respondent has demonstrated he has overcome the deficits identified by the findings made against him and when he comes under the regulatory control of a statutory board (or council) that the risk to the public will be mitigated to a point where the prohibition order can be lifted. 20. The Tribunal hopes that the prospective penalty for a breach of the Prohibition Order provided in s102(3) Public Health Act 2010, being a maximum penalty of 200 penalty units, or imprisonment for 12 months, or both, will deter the Respondent from providing any form of health services in the future as this is what is required to ensure public safety is maintained. The Tribunal notes that in response to a query from the Respondent during the hearing on 23 June 2015 the scope of the prohibition order sought by the HCCC and the activities covered under the definition of 'health service' was comprehensively canvassed. 21. The Tribunal intends to make a specific prohibition order regarding naparpathic services. There is evidence before the Tribunal recording that the Respondent considers he is a naprapathic practitioner and has provided certain naprapathic 'qualifications' to at least one of his employees (Ms Thomson gave evidence that she had studied naprapathic massage therapy with the Respondent and he had provided her with a qualification in this 'field'). The Tribunal also notes that the Respondent has styled himself as a provider of health services training in the past and as a mentor for others studying health services. Exhibit 113 records the Respondent is the Registered Proprietor of the Business Names: 'NAPRAPATHY THE EFFECTIVE NATURAL ALTERNATIVE ' and 'AUSTRALIAN COLLEGE OF APPLIED AND ADVANCED NAPRAPATHY'. 22. The Respondent has attempted to 'hide behind' this modality of treatment as a way of side stepping the regulatory reach of the regulatory bodies for both osteopathy and chiropractic. Any attempt on the part of the Respondent to repeat this type of conduct with respect to the terms of the prohibition order would not accord with the intention of the prohibition order made herein. So as to assist any future court or tribunal considering the question of a breach of the prohibition order (and for clarity for the Respondent) this Tribunal advises it is of the view that the prohibition order includes any services, whether he is paid or unpaid for the service, where the Respondent touches a patient or is instructing/supervising any other person to provide health services. The Tribunal also considers that the provision of any health education services, including the mentoring of persons studying or practising in a health service would also fall within the scope of the prohibition order made herein. These descriptions do not intend to limit the circumstances that may constitute a breach of the prohibition order. Reference should be made to the transcript of the hearing on 23 June 2015 wherein the scope of a prohibition order was explained to the Respondent. 23. By way of background there is no significant presence of the profession of naprapathy in Australia. There is evidence before the Tribunal that it is practiced in a few other countries and that formal training courses exist overseas. 24. Although the Tribunal has not listed manipulation of the spine as being a health service specifically prohibited it is of the view that it falls within both the scope of a health service as defined as well as being a restricted procedure under s123 of the National Law. There was evidence heard by the Tribunal that at a time the Respondent did not hold registration he applied a manipulation to a person's neck of the same type that he had applied when he was registered in an appropriate health profession as defined in s123 of the National Law. Due to the extreme risk of harm such a manipulation poses the Tribunal has found it necessary to note this procedure or anything approaching it as prohibited under the orders made herein. 25. The HCCC made the following submissions as to costs at paragraphs 17 to 21 of its submission dated 16 April 2015: 17. The question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. 18. Gleeson CJ said in Ohn v. Walton (1994-1995) 36 NSWLR 77 at 79: "The point of Latoudis v. Casey (1990) 170 CLR 534 is that the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made. When legislation confers a power to order costs it is, in the absence of any contrary indication, to be understood as conferring a power to be exercised for that purpose. Two things follow: 1.The usual rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred, in the absence of grounds connected with the charge or the conduct of the proceedings which make it unjust or unreasonable that there should be such reimbursement. 2.The test of whether an order for costs should be made against an unsuccessful plaintiff or complainant is not whether he or she has done anything to warrant punishment. It is whether, in the circumstances, the defendant or respondent should be compensated. The majority also held that these principles are equally applicable to a case where a complainant or informant is acting under a public duty to lay a complaint or information." 19. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] the Court accepted that as a general rule, costs of proceedings before the Tribunal should follow the event. 20. The mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule". 21. Although the Complainant accepts as a matter of principle that in some cases, such as where the Complainant is only partly successful, or where the Complainant is responsible for a long and unreasonable delay, the Complainant may not be entitled to all its costs, in this case, where the Complainant has succeeded in the vast majority of particulars and is not responsible for the delay in finalising the proceedings, there is no reason to depart from the usual rule and order that the Complainant be entitled to recover all its costs. 1. The Tribunal accepts the HCCC submissions in relation to costs sets out the relevant law. The Tribunal observes that the award of costs is not intended to be punitive. The HCCC has fulfilled its obligations to properly put this matter before the Tribunal and has substantially established its case. 2. The Tribunal notes the Respondent indicates his opposition to the making of a costs order. The Tribunal does not find there is any reason to depart from the usual rule with respect to the awarding of costs. The Tribunal intends to make an order awarding costs in favour of the HCCC. 3. The HCCC advised the Tribunal that it had forwarded documentation regarding its costs prior to the Stage Two hearing. The Tribunal notes that unless the parties agree on the quantum of costs there is currently no statutory provision for an independent assessment to be made. The Tribunal with therefore allow the parties to relist the matter for the purpose of assessing the costs unless some other mechanism becomes available in the interim. 4. The Tribunal notes that the Respondent made a written submission that he considered this matter should be dealt with by way of a negotiated settlement given the 'disgrace of an investigation and unlawful behaviour'. The Respondent's alternative position was to seek a review in the Supreme Court in accordance with s69 of the Supreme Court Act or to appeal in accordance with clause 29 of schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal notes the Respondent did not raise the matter of a negotiated settlement during the hearing. Orders 1. Noting that the Tribunal has made a finding that the Respondent (herein after referred to as the Practitioner) is not a suitable person to hold registration as an osteopath and that his conduct in several regards amounted to professional misconduct the Tribunal makes the following orders: 1. Pursuant to s149C(4)(a) of the National Law declares that if the Practitioner were still registered as a osteopath the Tribunal would have cancelled his registration. 2. Pursuant to s149C(4)(b) of the National Law the Practitioner is disqualified from being registered as a osteopath for a period of 10 years commencing on the date of publication of Health Care Complaints Commissioner v Black (No3) [2015] NSWCATOD 72. 3. Pursuant to s149C(5) & s149C(5A) the Practitioner is permanently prohibited from providing 'Health Services' as defined in s4 Health Care Complaints Act 1993 (NSW) (Prohibition Order) which includes the following services, whether provided as public or private services: (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act. 1. For the purpose of Order 3 herein the Tribunal expressly prohibits the Practitioner from providing in any manner massage therapy and naprapathic services and declares these to fall within the definition of 'Health Services' for the purpose of s4 of the Health Care Complaints Act 1993. 2. Orders 3 and 4 herein are to remain in force until the practitioner is granted registration under the National Law or any subsequent legislation governing the registration of health practitioners in any state or territory of Australia. 3. Pursuant to s149C(4)(c) of the National Law requests that the Osteopathy Board of Australia record in the National Register kept on behalf of that Board and maintained by the Australian Health Practitioner Regulation Agency (AHPRA) the fact that the Tribunal would have cancelled the Respondent's registration had he still been registered as at the date of this decision. 4. A Non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of all persons identified as patients (and any information that may tend to identify them) referred to in the schedule annexed to the Complaint made by the HCCC dated 31 July 2013 except as specifically allowed in writing by the Tribunal or as required by law. The Tribunal also makes a non-publication order pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013 prohibiting publication of any evidence before the Tribunal relating to any of the patients save for evidence recounted in the decisions published by this Tribunal. Further, the Tribunal makes a prohibited access order pursuant to Rule 42(3)(c) of the Civil and Administrative Tribunal Rules 2014 prohibiting non-parties from inspecting or obtaining copies of any public access document held in the Registry relating to this matter unless specifically allowed in writing by the Tribunal or as required by law. 5. Order that the Practitioner pay the costs of the HCCC as agreed or assessed. If agreement cannot be reached between the parties then the parties have leave to apply to the Tribunal for assessment unless some other assessment mechanism is provided for at the relevant time. 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: 15 July 2015