Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Priyamanna No 2 [2016] NSWCATOD 3 Hearing dates: 18 December 2015 Date of orders: 13 January 2016 Decision date: 13 January 2016 Jurisdiction: Occupational Division Before: Boland J ADCJ (Deputy President) Dr A Reid (Professional Member) Dr L Cotterell (Professional Member) Ms B Radcliffe (Lay Member) Decision: 1. Pursuant to s 149C of the Health Practitioner Regulation National Law (NSW) ("the National Law") the registration of Dr Naleen Keethi Priyamanna ("the practitioner") is cancelled from the date of this order. 2. Pursuant to s 149C (7) the practitioner may not make any application to the Tribunal for review of Order 1 of these orders for a period of two years from the date of this order. 3. The Registrar is requested as soon as practicable to notify the Medical Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 and 2 of these orders. 4. The practitioner shall pay the Health Care Complaints Commission's costs of and incidental to these proceedings as agreed and failing agreement liberty to restore to the list. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW) Where practitioner found guilty of unsatisfactory professional conduct and professional misconduct. Where conduct warrants cancellation of the practitioner's registration. Consideration of an appropriate period before the practitioner can apply for re-instatement to the register of Medical Practitioners. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: HCCC v Baez (No 2) [2014] NSWCATOD 26 HCCC v Do [2014] NSWCA 307 HCCC v King [2013] NSWMT 9 HCCC v Litchfield [1997] NSWSC 207; 41 NSWLR 630 HCCC v Ng [2015] NSWCATOD 139 HCCC v Priyamanna [2015] NSWCATOD 138 HCCC v Qasim [2015] NSWCA 28 Lee v HCCC [2012] NSWCA 80 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Naleen Keerthi Priyamanna (Respondent) Representation: Counsel: W Hunt (Applicant) P Strickland SC (Respondent) Solicitors: Health Care Complaints Commission (M Richmond) (Applicant) Nyman Gibson Miralis Lawyers (Respondent) File Number(s): 1520071 Publication restriction: On 15 May 2015 an interim non-publication order was made prohibiting the publication of the name of the patient set out in the schedule to the complaint to any person other than the parties to the proceedings. A final order in identical terms was made on 16 October 2015 in respect of the patient and witnesses in the proceedings. On 12 October 2015 a non-publication order was made in respect of the names of the patients referred to in the reasons for judgment of the District Court of Queensland (Health Practitioners Tribunal Medical Board of Queensland v Priyamanna [2007] QHPT) published on 27 June 2007. REASONS FOR DECISION Introduction 1. On 10 December 2015 the Tribunal published its reasons for decision in respect of a complaint brought by the Health Care Complaints Commission (the HCCC) against Dr Naleen Keerthi Priyamanna (the practitioner). The Tribunal found the complaints of unsatisfactory professional conduct and professional misconduct proved. At the request of the parties, the Tribunal did not, at that time, make protective orders, but rather afforded the parties the opportunity to read our findings in respect of the complaints, and adjourned the matter until 18 December 2015 to hear evidence and submissions as to appropriate protective orders. 2. The practitioner had, during the proceedings, conceded his conduct in examining a then 35 year old female patient, who complained of a sore throat, fever and body aches and pains, constituted unsatisfactory professional conduct because his examination was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The practitioner accepted that the patient, Patient A, genuinely believed the examination had sexual or improper elements. 3. The Tribunal found the practitioner had, on two occasions, touched or massaged the patient's thigh, had briefly massaged both of her breasts and grabbed or squeezed her vaginal area over her shorts with his fingers, and that such touching was not accidental. Rather, we found the practitioner's conduct constituted inappropriate behaviour of a sexual nature. 4. On 18 December 2015 Mr P Strickland SC (Mr Strickland), senior counsel for the practitioner, did not dispute the submission made by Mr W Hunt (Mr Hunt), counsel for the HCCC, that the appropriate protective order was cancellation of the practitioner's registration under s 149C of the Health Practitioner Regulation (National) Law (the National Law). However, he argued that the order sought by the HCCC that the practitioner not be permitted to seek a review of the cancellation order for a period of three years was excessive. He submitted that a period of 18 months, before any review application may be made, was appropriate. 5. We independently found that the practitioner's conduct required that his registration should be cancelled. In the exercise of our discretion, we further found a period of two years before the practitioner may again apply to review the cancellation order to be appropriate. 6. These are our reasons for the protective orders now made. The reasons should be read in conjunction with our reasons published on 10 December 2015 (HCCC v Priyamanna [2015] NSWCATOD 138). Relevant Law 1. We commence this topic by reference to the relevant statutory provisions. Although set out in our reasons of 10 December 2015, it is useful we repeat s 3A of the National Law as that provision underpins and guides all decisions made under the National Law. It is in the following terms: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. It is also helpful that we refer to portions of s 3 of the National Law. This provision deals with objects of the National Law. It relevantly provides: (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and (b) … (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 (b) … (c) … (d) … (e) … (f) … (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) … (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. 1. The National Law provides that, if a Tribunal finds a complaint of professional misconduct proved, it may make an order suspending or cancelling a practitioner's registration as provided in s 149C as follows: (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied-- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; … 1. However, the authorities make it clear that suspension or cancellation is not an automatic outcome if professional misconduct is found proved. Rather, the Tribunal must assess, at the date of hearing, if the practitioner is unfit to practise. This requires an assessment of the gravity of the conduct found proved, and consideration of remorse and insight, if any, demonstrated by the practitioner (see HCCC v King [2013] NSWMT 9). 2. As noted by our earlier reference to s 3A, it is the Tribunal's role under the National Law to ensure that any orders made have as their paramount focus the protection of the public (see Health Care Complaints Commission v Litchfield [1997] NSWSC 207; 41 NSWLR 630). They are not designed to be punitive. It is acknowledged, however, while the principal purpose of any orders made must be the protection of the public, such orders often have a punitive effect causing financial and emotional hardship to the practitioner and his or her family. 3. The Tribunal's orders also have both a public education role and a deterrent aspect. Orders made where professional misconduct is established uphold the maintenance of standards and the dignity of the profession. These principles are cogently explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at 35 as follows: 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. 1. We now apply these principles to the facts as found by us, giving weight to the submissions made by counsel for the parties. The evidence of Dr T H Priyamanna 1. The practitioner was present, but did not give evidence at the hearing on 18 December 2015. However we had the benefit of hearing from his wife, Dr T H Priyamanna (Dr Priyamanna). It was through her evidence we were able to glean some limited insight of the practitioner's reaction to our findings and his present intentions in respect of practising medicine in the future. 2. Dr Priyamanna and the practitioner were married in 1991. They have one child aged 14. Dr Priyamanna, as did the practitioner, undertook her medical education in China, and then worked between 1997 and 2003 in Sri Lanka. She has practised in Australia, including in a north Queensland Hospital Emergency Department where she was supervised by the practitioner. She has been engaged in general practice for the last three years. 3. Dr Priyamanna gave evidence that, when the practitioner notified his employer that Patient A's complaint was to be subject of proceedings in the Tribunal, the after-hours service had terminated his contract in May 2015 and that he is presently engaged in home duties and the care of their son. We found Dr Priyamanna to be an articulate, intelligent and honest witness. 4. In her oral evidence in chief Dr Priyamanna explained that she considered her husband to be a very caring and thorough doctor, and notwithstanding the Tribunal proceedings, that he still had her support. When asked if her husband felt any regret about Patient A's reaction to the practitioner's examination, she said he felt he could have "done better" and that he regretted "how the lady felt". 5. Dr Priyamanna also said that the practitioner had worked hard and that it had been a struggle for him to gain his registration in Australia. She explained that currently the practitioner was not sure whether he had any interest in practising again and was uncertain what he really wanted to do. 6. Mr Hunt in his sensitive cross-examination of Dr Priyamanna attempted to elicit from her what acceptance of the Tribunal's findings and/or insight into his conduct the practitioner presently displays. 7. Dr Priyamanna gave careful and considered answers to Mr Hunt's questions. She gave evidence that the practitioner accepts and respects the Tribunal's decision but said she was not sure he agreed with it. She made it plain that the practitioner did not accept his conduct had a sexual element to it and that she also did not accept he engaged in inappropriate behaviour of a sexual nature. In summary her evidence was that she and the practitioner accept the Tribunal's decision, but do not agree with it. 8. Dr Priyamanna made it plain that, as a general practitioner, she had not suggested any treatment such as counselling for the practitioner, and she would not recommend such therapy. Rather, she framed the conduct as found by us, as attributable to Patient A's cultural background and to the cultural background of herself and the practitioner. 9. The tenor of Dr Priyamanna's evidence was very much in accord with the manner in which the practitioner's case was advanced before us. We found Dr Priyamanna's position to be readily understandable given her unqualified belief in her husband. She did not shirk from her position, or attempt to give evidence suggesting or implying remorse by the practitioner. She is clearly loyal to, and supportive of, her husband and rationalises, or seeks to rationalise his conduct, on the basis of a mismatch of cultural norms or mores. Discussion and conclusions cancellation of registration The HCCC's submissions 1. The HCCC seeks that we make orders that the practitioner's registration is cancelled and that a period of not less than three years expire before he may seek a review of the cancellation order. We discuss the review period sought later in these reasons. 2. The HCCC directed us to the findings of the 2007 Queensland proceedings, where the practitioner conceded unsatisfactory professional conduct because of his lack of appropriate clinical skills in examining four female patients, the extended period the practitioner's registration was subject to conditions, and the extensive educational opportunities he has experienced since those proceedings. It is submitted that these factors must be "relevant to the protection of the public and the reputation and standing of the medical profession in the protective orders made". 3. The HCCC's submissions refer to the discussion in HCCC v Litchfield in which reference is made about the special trust between female patients and their practitioners and that it would be inappropriate to impose chaperone conditions in a case such as the present one. 4. The submissions address the cultural explanation offered by Dr Priyamanna to justify Patient A's perception of the examination by the practitioner, and refer to our earlier reasons at [74] where we rejected that explanation. 5. Mr Hunt in his oral submissions pointed to the lack of insight demonstrated by the practitioner, and that while Dr Priyamanna would be the pivotal person to guide his rehabilitation that was unlikely to occur because of her steadfast belief in him. The submissions made on behalf of the practitioner 1. As noted earlier it was not submitted on behalf of the practitioner that he should be permitted to continue to practise but subject to conditions. Rather, Mr Strickland articulated the disputed issue to be the length of the non-review period. 2. Mr Strickland raised three issues in relation to the review period. First, he argued that any practitioner seeking to be restored to the register faces a very high hurdle. In this case he noted the practitioner bears a heavy onus to demonstrate reformation of character. Secondly, he noted that there nothing in the language of the statute to guide a Tribunal when formulating a review period, if one is imposed, and that the section is entirely discretionary. Thirdly, while not adopting a formulaic approach by reference to other cases, he submitted consideration of other cases gives guidance to an outcome within a range of outcomes achieving some consistency of decision making. 3. Mr Strickland appropriately urged that we should be cautious in our use of the Queensland decision in reaching our decision about appropriate protective orders, noting that no finding of inappropriate behaviour of a sexual nature was found by that Tribunal. 4. The HCCC tendered before us, without objection, the full decision of the Queensland Tribunal and a table of compliance history with the chaperone conditions, including monthly log/chaperone reports, for the period April 2014 to December 2015 but excluding May 2014. Those reports disclose that the practitioner saw no female patients over the age of 13 in the relevant period after conditions were imposed following the s150 proceedings. We note Dr Priyamanna's evidence that the practitioner's employment ceased in May 2015. Discussion and conclusions 1. The comments of the Court of Appeal in HCCC v Litchfield have resonance in this case. In HCCC v Litchfield their Honours were discussing several allegations of sexual assault of female patients by the practitioner over the course of five year period, but the principles espoused are of general application in circumstances of a power imbalance between a female patient and a male practitioner, or a male patient and a female practitioner. This is particularly so where the proved conduct involves inappropriate behaviour of a sexual nature perpetrated by the practitioner. Their Honours made the following statements which we find to be relevant to this case: … The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. … Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest". 1. In this case at [188] in our earlier reasons we found that the practitioner did engage in inappropriate behaviour of a sexual nature, which was brief in duration, but was conduct that caused Patient A significant psychological distress. We also found that the practitioner's concession of unsatisfactory professional conduct was properly made, particularly when he conceded he had not explained to Patient A the necessity for, or obtained her informed consent to, an abdominal examination which he inappropriately conducted with the patient standing. 2. Thus, it may be argued that the aspects of the practitioner's examination of Patient A we have found established merely demonstrate a brief opportunistic examination of the patient involving inappropriate touching but with no physical, financial or other discernible impact on her well-being. But we cannot ignore the significant psychological impact of this examination on Patient A requiring her to consult her local mental health unit and take prescribed medication. 3. Significantly, the practitioner does not accept his behaviour had any inappropriate motive, and his stated remorse was subject to the caveat that Patient A was unintentionally misguided in her conclusions. 4. In assessing the practitioner's current fitness to practise we have regard to the following matters: 1. the inappropriate massaging of Patient A's thigh, and her breasts; 2. the grabbing or squeezing of her vaginal area by the practitioner. We are satisfied this conduct, and that set out in (1) albeit brief, because of the psychological effect on the patient, and the abuse of the trust she reposed in the practitioner, should be classified as grave; 3. the lack of appropriate clinical skills in carrying out the abdominal examination and chest examination including lack of proper explanation and consent notwithstanding the educational requirements imposed by the Queensland Tribunal; and 4. any significant insight into the conduct; 5. the inappropriateness of conditions that would require long term chaperoning arrangements when examining female patients; and 6. that the conduct engaged in, if not publicly addressed, is likely to bring the profession into disrepute and would fail to convey a message that such conduct is unacceptable. 1. It is for the reasons particularised above we concur with the position adopted by the HCCC, and not opposed by the practitioner's counsel, that it is appropriate the practitioner's registration be cancelled. The Review Period 1. We turn now to the question of the imposition of a time period, if any, before the practitioner may seek to review our orders under s 163A of the National Law. 2. It is useful at this point that we set out s 149C (7): (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. As noted earlier in these reasons the HCCC seek an order that the practitioner be precluded from applying for a review of the cancellation of his registration for a period of not less than three years or more than five years. It is the position advanced on behalf of the practitioner that the review period should be for a period of 18 months. 2. The imposition of an order under s 149C (7) is, by reason of the language employed in the provision, a matter of discretion. The National Law contains no guidance as to how the discretion under the section should be exercised. Clearly, as with the exercise of any discretion, it should not be exercised capriciously or for an improper purpose, rather it must be exercised judicially. Each matter must be considered on its own unique facts and circumstances. 3. It appears to us that there are a number of circumstances to be weighed in the balance when making, or not making, an order under s 149C (7). First, at one end of the spectrum, it may be argued that, having regard to the principles applied when considering whether or not to make an order under s 163B (3), where a practitioner must demonstrate at the time of the application that he or she is an appropriate person to be re-instated to the Registrar, that an order under s 147C (7) may be unnecessary. A practitioner will generally require cogent evidence of matters such insight, remorse, and/or the undertaking of remedial education, to be successful in a review application. If unsuccessful, the former practitioner will generally incur the imposition of a costs order. It may be argued that these factors impose a self-regulating regime such that a practitioner will consider carefully his or her likelihood of success prior to instituting a review application. In other cases the practitioner may have surrendered his or her registration and/or expressed a firm intention never to practise again. Thus it is arguable that in some factual circumstances the making of any order under s 149C (7) is unnecessary. 4. Secondly, at the other end of the spectrum, a practitioner's conduct may be so gross, perhaps including established criminal conduct, that it is unlikely he or she will ever be considered fit to practise and a long period, before any application for re-instatement may be made, should be imposed. The imposition of a long period before any review may be instituted should ensure the safety of the public, have a deterrent effect, and send a strong public message that the Tribunal is cognisant of maintaining the integrity of the profession. 5. Thirdly, in the case of practitioners involved in inappropriate prescribing and/or poor or non-existent record keeping, lack of clinical skills, knowledge or judgment or other unethical conduct, a time period which allows sufficient time to complete education courses may be appropriate. The restraint on applying for review for a lengthy period may lead to the practitioner losing his or her clinical skills, and being unable to meet continuing professional requirements for registration including meeting any Recency of Practice standards. Another relevant consideration is the time period that will elapse from the filing of a review application until final determination of the matter, particularly where, for example, a council for a profession seeks to be made a party to the application and opposes re-instatement. In noting this factor as relevant to the discretion we are conscious of the objects of the Civil and Administrative Tribunal Act 2013 (NSW) (see s 3 (d) and s 36 (4)). 6. Fourthly, an appropriate time period may be determined after evaluation of psychiatric or psychological evidence indicating a minimum period of therapy necessary to render the practitioner again fit to practise. In such case a Tribunal will be assisted in formulating its orders based on a consideration of such evidence. 7. The Court of Appeal has, understandably, eschewed the use of a table of comparable decisions or a formulaic approach to determining appropriate orders in disciplinary proceedings. The approach to be adopted is set out by Barrett JA in Lee v Health Care Complaints Commission [2012] NSWCA 80 as follows: In cases of the present kind, therefore, this Court should proceed on the basis that: (a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern; (b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct"; (c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers; (d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle; (e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection; and (f) the Medical Tribunal, as a specialist tribunal, brings special skill and experience to the task of formulating protective orders. Discussion and Conclusions – Review period 1. The HCCC submits that the evidence of the practitioner, and that of his wife, demonstrates a lack of insight into the serious nature of the conduct notwithstanding we found it to be principally opportunistic in character and brief in duration. As earlier noted, the HCCC places emphasis on the fact that, although the practitioner admitted unsatisfactory professional conduct in the Queensland proceedings, and had the benefit of doing a number of courses and supervision of his practice, that his lack of appropriate clinical skills remain of serious concern. The HCCC seeks to differentiate the circumstances of this practitioner with those of the practitioner in HCCC v Ng [2015] NSWCATOD 139 where the Tribunal imposed a period of 18 months before any review could be filed. 2. In relying on other cases to provide guidance as to a non-review period range, the HCCC particularly relies on the decision of HCCC v Baez (No 2) [2014] NSWCATOD 26. In that case the Tribunal imposed a non-review period of five years. The Tribunal rejected the submission of the practitioner's counsel that he could receive psychiatric assistance to facilitate his rehabilitation saying: … That submission is no more than speculation without the slightest factual foundation for it. What the tribunal is left with on the evidence is a doctor who, over a prolonged period of time, engaged in conduct which not only was professional misconduct in relation to patients A, C and D but is, as we have said, disgraceful exploitation, at least in relation to Patients A and C, of vulnerable patients. The protection of the community of New South Wales requires that the public be protected from Dr Baez; and moreover, that other doctors understand that the exploitation for sexual gratification of young and otherwise vulnerable patients will be met with stern protective orders. This tribunal has no hesitation in saying that there is absolutely nothing which suggests to us on the available evidence that anything less than a disqualification period of five years would be appropriate. 1. By contrast, Mr Strickland submitted the practitioner has shown some level of insight in his concession that his conduct of the examination led Patient A to her belief it was sexual in nature, and that he made no challenge to the honesty and integrity of Patient A. We accept that to be the case. He relies on the decision in HCCC v Ng as an appropriate case to take into account in the exercise of our discretion. Mr Strickland notes that the conduct asserted in HCCC v Ng, which involved the insertion by an Osteopath of his finger into the vagina of a patient for a non-established clinical purpose was objectively more serious than the instant conduct. 2. Mr Strickland referred us to a number of decisions including the decision of the former NSW Medical Tribunal in Health Care Complaints Commission v King [2013] NSWMT 9 where the practitioner, who initially denied any sexual impropriety, was found to have engaged in inappropriate sexual conduct with three female patients. On remitter from the NSW Court of Appeal the NSW Medical Tribunal found the practitioner showed remorse, and was undergoing psychotherapy. Finding that it was necessary the psychotherapy to continue for at least a further 12 months, that Tribunal imposed an 18 month non review period. 3. The particular circumstances of this case make assessment of an appropriate period before the practitioner may seek review challenging. The practitioner did not give any evidence before us at the resumed hearing, and we were reliant on his wife's evidence as to his present circumstances. He adduced no character references to support the application for a much more limited review period than that sought by the HCCC. 4. Further, the evidence of Dr Priyamanna, which we accept was honestly given, is that she would not suggest or support counselling for the practitioner. We find she is the person most likely to influence the practitioner to undergo such therapy, and without her encouragement and support the practitioner is unlikely to immediately engage in such therapy. 5. The period of three to five years sought by the HCCC is, we find, excessive in the circumstances of this matter. The practitioner's conduct, whilst both clinically inept, and inappropriate by breaching the trust between a practitioner and a female patient, was found by us, insofar as it had an inappropriate sexual element, to be opportunistic. There are no findings in the Queensland proceedings of inappropriate behaviour of a sexual nature. Thus, we must regard the inappropriate behaviour of a sexual nature as limited to this incident. 6. In reaching this conclusion we have given careful consideration to the authorities relied on by the HCCC in particular to HCCC v Baez (No 2). We find the facts in that case to be far removed from the facts in the instant case. 7. We have received some guidance from the decision in Health Care Complaints Commission v King. There the practitioner was found guilty of professional misconduct based on his inappropriate sexual conduct with three patients over a period of time. However by the time of the remitted proceedings before the second tribunal he demonstrated some insight, expressed remorse and was undergoing psychotherapy. 8. Doing the best we can on the evidence before us, we are of the view a period of two years should elapse before the practitioner may again apply for a re-instatement order. In determining this period we find it is likely that, in his present state of uncertainty about his future, the practitioner may not be emotionally ready to take on board our findings, address his lack of appropriate clinical skills including communication with female patients, and to seek counselling. Allowing a period of time for the practitioner to reflect on these matters and then take remedial action appears to us to require a period of not less than two years. 9. In reaching this conclusion we have taken into account, in addition to the matters discussed above, the practitioner's present age, his lack of practice of medicine since the termination of his employment, and issues relating to his ongoing professional development requirements to be eligible for registration. Costs 1. The HCCC sought an order that the practitioner pay its costs of the proceedings. The making of a costs order was not opposed by the practitioner. 2. The relevant principles in respect of costs in disciplinary proceedings are well known. Those principles are summarised in the relatively recent decision of the NSW Court of Appeal in HCCC v Qasim [2015] NSWCA 282 as follows at [84]–[85]: Clause 13 in Sch 5D of the applicable National Law relevantly provided: A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".) 1. In this matter the HCCC have established, with one exception, to the Briginshaw standard, the matters particularised in the complaint. While the practitioner admitted aspects of the manner in which he conducted his examination of Patient A were below the standard expected of a practitioner of an equivalent level of training and experience, that concession was not made until late in the day, and did not include any concession of inappropriate behaviour of a sexual nature. We do not find the concession made warrants a departure from the ordinary practice of costs "following the event". Accordingly, we are satisfied it is appropriate to make the costs order sought by the HCCC. orders 1. Pursuant to s 149C of the Health Practitioner Regulation National Law (NSW) ("the National Law") the registration of Dr Naleen Keethi Priyamanna ("the practitioner") is cancelled from the date of this order. 2. Pursuant to s149C (7) the practitioner may not make any application to the Tribunal for review of Order 1 of these orders for a period of two years from the date of this order. 3. The Registrar is requested as soon as practicable to notify the Medical Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 and 2 of these orders. 4. The practitioner shall pay the Health Care Commission's costs of an incidental to these proceedings as agreed and failing agreement liberty to restore to the list. 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: 13 January 2016