Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Pakalu [2016] NSWCATOD 49 Hearing dates: 22 and 23 February 2016 Date of orders: 22 April 2016 Decision date: 22 April 2016 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr R Napier, Professional Member Dr K Edwards, Professional Member R Kelly, General Member Decision: 1. ORDER the registration of Dr Wilson Pakalu (the practitioner) recorded on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) is cancelled. 2. ORDER the practitioner may not make any application for review of Order 1 of these orders for a period of two years from the date of the orders. 3. The Registrar is requested to notify the Medical Council of Australia of Orders 1 and 2 of these orders as soon as practicable. 4. The Health Care Complaints Commission is requested to provide a copy of these reasons to AHPRA for its consideration of notification of the Papua-New Guinea registration authorities. 5. ORDER the practitioner shall pay the costs of and incidental of the Health Care Complaints Commission as agreed and failing agreement liberty to restore before the Tribunal. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW) – Where practitioner admits he is guilty of criminal offence (aggravated indecent assault) – Whether practitioner's conduct improper and unethical – Whether practitioner's conduct constitutes professional misconduct – Whether practitioner is fit to practise medicine. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016 Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Clyne v NSW Bar Association (1980) 104 CLR 186 HCCC v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Do Health Care Complaints Commission v Litchfield [1997) NSWSC 297 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 (1992) 67 ALJR 170 Re Dr Parajuli [2010] NSWNMT 3 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Wilson Pakalu (Respondent) Representation: Counsel: P Dwyer (Applicant) M Ainsworth (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Tress Cox (Respondent) File Number(s): 1520158 Publication restriction: A non-publication order was made under Schedule 5D cl 7 of the Health Practitioner Regulation National Law on 22 February 2016 restricting the publication of the name of the patient set out in the Schedule to the complaint to any person other than the parties to these proceedings. REASONS FOR DECISION Introduction 1. Dr Wilson Pakalu (the practitioner) is a 37 year old national of Papua-New Guinea (PNG). He is the first medical practitioner from that country to graduate from an Australian university with the degrees of MB.BS. 2. On 15 May 2013, in the course of his employment as a locum medical officer in the Emergency Department at Parkes Hospital, NSW, the practitioner when conducting a vaginal examination of a then 27 year old woman (Patient A) massaged her clitoris for approximately 40 to 50 seconds. The practitioner was charged with aggravated indecent assault and on 18 September 2015 in the Local Court at Forbes, and the following day at Parkes, he pleaded guilty to that offence. He was sentenced to 12 months imprisonment with the sentence suspended subject to him entering into a good behaviour bond under s 12 of the Crimes (Sentencing Procedures) Act 1999 (NSW). 3. Before this Tribunal the practitioner conceded that his actions constituted an indecent assault on the patient. He expressed remorse for his behaviour and apologised for the psychological stress caused to Patient A by his conduct. He also acknowledged his conduct had an adverse impact on the reputation and standing of the medical profession. 4. In a complaint annexed to an application for disciplinary findings and orders brought under the provisions of the Health Practitioner Regulation National Law (the National Law), the Health Care Complaints Commission (the HCCC) allege the practitioner "has [sic] convicted of a criminal offence" by reason of his criminal conviction (Complaint One). The HCCC also allege the practitioner is guilty of unsatisfactory professional conduct in that he engaged in improper or unethical conduct by his actions in stimulating Patient A's clitoris (Complaint Two). It is further asserted that the conduct particularised in Complaint Two constitutes professional misconduct (Complaint Three). Finally, it is asserted that the practitioner is not a suitable person to hold registration (Complaint Four). 5. On 23 October 2013 the practitioner consented to the imposition of conditions on his registration. The conditions include a provision that the practitioner is not to consult, treat or interview any female patient over the age of 10 years unless an approved female chaperone is continually present. The conditions require the chaperone to be approved by the Medical Council of NSW unless the practitioner is practising in a hospital. The qualifications of persons who can act as a chaperone are set out in the conditions and include a medical practitioner, a nurse or a nurse practitioner or an enrolled nurse currently registered in the specialist or general category. 6. Immediately following the incident the practitioner was terminated from his employment at Parkes Hospital and his name was placed on the NSW Service Check Register. The practitioner was thereafter unemployed and unable to secure a position in Australia. However, in September 2013, he obtained employment with International Health Medical Services (IHMS) and for a period of approximately 3 months provided primary health care to asylum seekers in detention at Christmas Island. He later, in December 2013, obtained further employment with IHMS caring for asylum seekers in Nauru. He engaged in practice in that position for approximately 5 months. The Nauru employment was terminated when his employer ceased retaining Australian registered doctors and employed Filipino trained doctors in the detention centres. In May 2015 the practitioner commenced work as a surgical registrar at Nonga Hospital, PNG. He remains in that employment but wishes to return to Australia in about 2018 to engage in specialist studies in orthopaedics. 7. We were asked by both parties to make our findings in respect of the complaints and to make appropriate protective orders without a separate hearing on those orders. These are our reasons for the orders made. Background 1. Unless noted by us to be an assertion the following facts are established to the requisite civil standard. 2. The practitioner was born in August 1979. His family of origin lived in the Southern Highlands and Hela Provinces in PNG. He is married and has three children aged respectively 11, 6 and 3 years. His wife and children are Australian citizens and are presently living in Australia. He asserts they are in the process of relocating to PNG with plans for the children to attend boarding school in Brisbane. 3. The practitioner obtained his secondary education in PNG and came to Australia on an AusAid scholarship. Between 1999 and 2005 he engaged in tertiary studies at Melbourne University. He obtained a Bachelor of Medical Science degree in 2004 and his MB BS in 2006. 4. Between 2006 and 2007 the practitioner completed 2 years of internship/residency training at Alotau General Hospital, PNG. This training was undertaken to satisfy the requirements of the Medical Registration Board of PNG. 5. In 2008 the practitioner was employed by an oil company in PNG with responsibility for health of employees at a camp in the Gulf Province, PNG. 6. In 2009 the practitioner returned to Australia and obtained employment as a second year House Medical Officer (HMO) with Goulburn Valley Health, Shepparton. 7. In 2010 he was employed as a surgical HMO3 by Barwon Health. 8. In December 2010 the practitioner worked as an emergency department registrar at Maclean Hospital NSW for four weeks. 9. In the first half 2011 the practitioner worked as a non-accredited surgical registrar with Barwon Health, Geelong, and later in the second half of the year, worked in various country hospitals in NSW as a locum emergency department registrar. 10. In 2012 the practitioner worked as an unaccredited registrar at Barwon Health Geelong. The practitioner asserted to Dr Paul Friend, psychiatrist, (Dr Friend) that he was rejected for surgical training. We will refer to Dr Friend's role in these proceedings later in our reasons. 11. In the first half of 2013 the practitioner worked as a locum medical officer in various country hospital emergency departments including Parkes Hospital. 12. On 15 May 2013 Patient A, a married woman and mother of 3 children, presented to the emergency department at Parkes Hospital. She reported suffering abdominal pains and unusual menstrual bleeding. She was concerned that an intrauterine device, a Mirena, she had previously had inserted, had become dislodged. At the time of her presentation the patient reported suffering polycystic ovarian syndrome and was taking Metformin. After a triage nurse took her temperature, blood pressure and weight Patient A underwent an X-ray of her abdomen. 13. After waiting a short period Patient A was seen alone by the practitioner. He advised Patient A that he did not propose to order an ultra-sound (as she had been expecting) but rather proposed to "have a look". Patient A understood the practitioner to mean he would conduct an internal examination. 14. Patient A reported that at the commencement of the vaginal examination, without a chaperone present, the practitioner wore gloves, but she did not observe any lubricant on them. She explained that she did not feel any pain when the practitioner inserted one or two fingers into her vagina in an endeavour to locate the Mirena string. On removing his fingers the patient reported the doctor immediately moved his fingers to her clitoris and said "It's a bit dry isn't it". She states: His hand remained on my clitoris and I felt really awkward. I shut down and turned my head to the left and towards the wall. He then proceeded to rub my clitoris up and down with his finger and said "Natural lubrication is better". When he said this he kind of laughed nervously ……I kind of moved up to try and move away from him and what he was doing. Him rubbing my clitoris was not arousing me but making me feel frightened. He then rubbed my clitoris for about 40 to 50 seconds. 1. At this point in Patient A's statement she asserts she told the practitioner that she had been sexually assaulted as a child, and said "that won't work. You will need lubrication". She goes on to assert that the practitioner appeared shocked and said "So you want me to get lubrication" and left the room. 2. A short time later the practitioner having obtained a speculum and lubricant, and in the presence of a registered nurse, resumed his examination of Patient A checking her cervix in an endeavour to locate the positioning of the Mirena IUD. 3. After leaving the hospital Patient A spoke to her mother, engaged in text messaging about what had occurred with her mother in law, and telephoned the hospital in an endeavour to speak to the nurse who was present for the latter part of the examination. Later on that day she had a conversation with the nurse asking her was "it normal for a doctor to stimulate your clitoris instead of using lubrication?". Patient A asserts the nurse asked Patient A why she had not spoken to her at the time of the examination and she explained that she had not done so because the practitioner had been present the whole time and the nurse was on the phone when she left the hospital. 4. Patient A was referred to the Orange Sexual Assault Unit. 5. On 17 May 2013, having been notified that there was a complaint concerning the practitioner, the acting Nurse Unit Manager spoke with the nurse who had been present at part of the examination, and who had spoken to Patient A. Both nurses interviewed the practitioner telling him Patient A had complained that he had stimulated her clitoris to try and create moisture. The practitioner is asserted to have responded saying "The lady's vagina was very dry and I did stimulate the clitoris to create moisture. Her vagina was very dry". Later the practitioner is asserted to have said to the nurses that he could have stimulated the patient's clitoris by accident. 6. On 18 September 2014 at Forbes Local Court a Facts Sheet was tendered by the prosecutor to Magistrate Stevenson. Her Honour accepted the practitioner's guilty plea based on the facts in the Facts Sheet. As earlier noted, the following day at Parkes Local Court the Magistrate sentenced the practitioner to 12 months imprisonment with the sentence suspended on the practitioner entering into a good behaviour bond. The practitioner was legally represented before the Magistrate. 7. On 24 November 2015 the practitioner, at the request of his solicitors, attended on Dr Friend to obtain an expert medico-legal report. The practitioner told Dr Friend he believed he had "briefly and accidently touched the women's clitoris as he was finishing the examination but did not touch the clitoris for the alleged 40-50 seconds". 8. Dr Friend also recorded that the practitioner: In pleading guilty [the practitioner] wished to deal with the matter as expeditiously as possible and did not recognise the possible ramifications for his medical registration in Australia. 1. On 29 August 2015 the practitioner gained a certificate for completion of an on-line ethics course run by the Norwegian Medical Association. He asserts he has also read a number of publications including the Medical Board's "Good Medical Practice: A Code of Conduct for Doctors in Australia", the Medical Board's "Guidelines on Sexual Boundaries" and the AMA Code of Ethics. 2. In January 2015 and January 2016 the practitioner completed two on-line courses in ethics offered by Avant Mutual Group Limited. Relevant principles and statutory provisions 1. The HCCC rely on the following provisions of the National Law to support the complaints made. Section 144 of the National Law sets out conduct that may be relied on to ground a complaint against a health professional. In summary those grounds are: 1. if a practitioner has a criminal conviction in New South Wales or elsewhere, 2. is guilty of unsatisfactory professional conduct or professional misconduct; 3. demonstrates a lack of competence to practise, 4. is impaired; or 5. is otherwise not a suitable person to hold registration. 1. Section139B contains a non-exhaustive list of conduct that constitutes unsatisfactory professional conduct. 2. Section 139B (1) (l) sets out as an incident of unsatisfactory professional conduct, behaviour in defined circumstances that is improper or unethical. The sub-section provides as follows: (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Professional misconduct is defined in s 139E as follows: For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The objects and principles underpinning the National Law 1. Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. Section 3A of the National Law, in force at the date of the hearing, sets out the objective and guiding principle to be applied by a Tribunal in New South Wales conducting an inquiry into a complaint and, if appropriate to do so, when making protective orders. The relevant parts of s 3, for the purposes of this hearing, are as follows: (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 ... ... (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. Section 3A, which has particular relevance in the circumstances of this matter, provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. It is relevant at this point the Tribunal records that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1980) 104 CLR 186). The onus or burden of proof 1. The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. (see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 (1992) 67 ALJR 170). The protective orders sought by the HCCC and those proposed by the practitioner 1. The HCCC sought orders cancelling the practitioner's registration, and that he be prevented from applying for re-registration for a period of two years. 2. Initially, the practitioner's counsel, Mr M Ainsworth, submitted that it would be appropriate to suspend the practitioner's registration until approximately 2018, and then to place conditions on his registration. The presiding member raised with Mr Ainsworth the potential lack of efficacy of an order suspending the practitioner's registration to protect the public because of his stated position not to return to Australia to practise medicine until 2018. Mr Ainsworth requested we ignore his first proposed order of suspension of the practitioner's registration. 3. Mr Ainsworth ultimately sought we make orders that the practitioner be reprimanded and that his registration be subject to conditions. The first condition sought is that prior to the practitioner "changing the nature or place of practice" that he obtains "the relevant review body's approval". A further condition is sought that the practitioner shall notify the appropriate review body in writing at least 21 days prior to changing the nature or place of his medical practice in Australia. Although the review body is not defined in the proposed orders, we infer the Medical Council of NSW is the intended review body, not the Medical Board of Australia. 4. The proposed orders also provide, except in the case of an emergency, for a female chaperone condition if the practitioner is to treat, interview or examine any female patient over the age of 10 years. This proposed order is unlimited in time. It is also proposed that the practitioner conduct and complete the distant education course in ethics conducted by Monash University, Victoria. Finally, it is proposed that the practitioner be subject to level 3 supervision (now described in the Medical Council of NSW Conditions Handbook as Level C supervision). The proposed order is also unlimited in duration but of course, may be reviewed under s 163A of the National Law. The Council is nominated as the appropriate review body in the proposed orders if the practitioner's principal place of residence at the relevant time is NSW. The evidence The facts sheet relied by the Magistrate and the criminal conviction 1. We note that although Patient A provided a statement in these proceedings she was not required for cross-examination. This was principally because there is no dispute that the practitioner pleaded guilty to the charge of aggravated indecent assault, and accepted the facts set out in the Facts Sheet relied on by the Magistrate when passing sentence. 2. The events that occurred on 16 May 2013 at Parkes Hospital recorded in the Facts Sheet do not differ in any material respect from those summarised by us under the heading "Background". The aggravated indecent assault, which occurred immediately after the practitioner's digital examination of the patient's vagina, is reported, in the context of that examination, as follows [Patient A] could feel the left and right side of her vagina and he felt up and down. She then felt him push up and further inside her vagina. When she glanced down she saw that he was leaning over her with his right arm between her knees. She remembers looking at his face and seeing that his tongue was out which at the time she thought was his way of concentrating. She then felt him slowly pull his fingers out from inside her vagina and without leaving contact with her vagina move them up between her labia and onto her clitoris where he stopped and remained. He said, "It's a bit dry isn't it?" She felt really awkward. She emotionally shut down and turned her head towards the wall. He then proceeded to rub her clitoris up and down with his finger and said, "Natural lubrication is better" and laughed nervously. She looked up at the ceiling as what he was doing felt really wrong. Her legs started to shake, and she felt uncomfortable and anxious and felt like she was going to have an anxiety attack. She moved up to try and move away from him and what he was doing. The rubbing of her clitoris was not arousing her but frightening her. He rubbed her clitoris for about 40 or 50 second before she said, "I was sexually assaulted as a child that won't work. You will need to lubricate". She said this to him because he was a doctor and she trusted him and she thought he was trying to lubricate her in order to do an internal examination. She wanted him to know that in order for him to do an internal examination he needed to use lubrication. She believed that telling him this would make him stop because she wanted to stop what he was doing. 1. The Fact Sheet records the practitioner then stopped rubbing Patient A's clitoris and left the examination room. On returning to the room, the Facts Sheet notes that the practitioner was followed by a nurse. The nurse asked "Do you want me to be present?" and the practitioner replied "It's up to you". The Facts Sheet then records: The nurse said, "Well, it's really up to the patient". He then looked at [Patient A] and said, "Is it okay?" and she was relieved and replied "Yeah" and nodded. The witness statements of the nurses 1. We had the benefit of reading a statement of the Clinical Nurse Supervisor who was the nurse who accompanied the practitioner during the latter part of his examination of Patient A. She reported that Patient A had telephoned her later in the afternoon of the day of the examination when she asked "Is it normal for the doctor to rub the clitoris to create wetness for examination?. The nurse replied that "it was not something I've seen in my 30 year nursing career" and she asked Patient A why she hadn't mentioned the conduct in the Emergency Department. Patient A explained she had not reported the incident "because he [the practitioner] was there". 2. The following morning, in the presence of the Acting Nurse Unit Manager, (the NUM), the nurse spoke to the practitioner who said words to the effect: I did stimulate the clitoris to try and create moisture because her vagina was very dry but there was no sexual intentions. 1. The practitioner confirmed to the NUM that such stimulation was "not normal". Later in the interview the practitioner said he "May have stimulated the clitoris when he inserted his finger to feel for the string of the IUD". Patient A's victim impact statement 1. The presiding Magistrate at Parkes read a victim impact statement prepared by Patient A that was handed up to her by the prosecutor. The practitioner did not see the statement, and gave evidence before us that he had not seen the document until this hearing. 2. In her letter dated 18 September 2014 Patient A records that she is not working, having left her job on stress leave following the assault. She records the impact of the assault not only on her, but her husband and children. She explains she is seeing a sexual assault counsellor and that two of her children are seeing their school counsellors. She records being afraid to go to a doctor alone. She concludes her letter as follows: I really don't know how to explain in words how much my life has been turned upside down, I made a stand so my daughters and other unsuspecting women are safe. He can't be allowed to do this again. The practitioner's evidence 1. In his statement dated 14 December 2015 tendered in the proceedings the practitioner at [30] acknowledges his conduct towards Patient A "was inappropriate and an abuse of power". At [31] he says "I deeply regret the distress that my conduct has caused Patient A". Similar statements were made by the practitioner in his oral evidence. He also said he had let down the profession. 2. The practitioner, in both his oral evidence and statement, explained that he wishes to return to Australia in about 2018 to undertake speciality training in orthopaedics. He plans, after that training, to return to PNG where he hopes "to be able to return to provide vital medical services to those who would otherwise struggle to have access to orthopaedic services". 3. During his oral evidence the practitioner was extensively cross-examined about statements he made to Dr Friend on 24 November 2015. He sought to justify the statements he made to Dr Friend about why he pleaded guilty (to get the proceedings over as quickly as possible) and that the touching of Patient A was accidental. As we will discuss more fully below, we found the practitioner's answers to these questions to be evasive, and when pressed by counsel for the HCCC, unconvincing. The expert evidence 1. The HCCC relied on an expert report of Professor Andrew Korda. That report deals extensively with best practice for a doctor conducting a genital examination of a female patient. The report does not address the practitioner's conduct in massaging Patient A's clitoris and why that conduct is improper or unethical. It was acknowledged by Ms Dwyer on behalf of the HCCC that reliance was not placed on that report. 2. As we have earlier noted, the practitioner's solicitors retained Dr Friend to provide a report in the practitioner's case. Dr Friend saw the practitioner on 24 November 2015 and his report provided to the practitioner's solicitors is dated 30 November 2015. 3. It is important at this point we pause to note that the practitioner's statement, in which he acknowledges his improper conduct, and expresses regret about the effect of his actions on Patient A, was signed on 14 December 2015 that is approximately three weeks after his visit to Dr Friend. 4. Dr Friend's report is generally unremarkable. It documents statements made to him by the practitioner, including revelation of a driving conviction in 2012 for driving whilst under the influence of alcohol and his usual alcohol consumption. Dr Friend opines that the practitioner does not have a psychiatric diagnosis. 5. Statements made by the practitioner to Dr Friend are of significance. First Dr Friend records: [the practitioner] states that any touching of the clitoris was accidental and brief and not the 40-50 seconds stated by the claimant. [the practitioner] states that he did not behave inappropriately in regard to his manner or speech other than he examined the woman without a chaperone. 1. Dr Friend goes on to note: He accepts that conducting such an examination without a chaperone and touching the clitoris accidentally and briefly were both inappropriate and serious matters. In pleading guilty [the practitioner] wished to deal with the matter as expeditiously as possible and did not recognise the possible ramifications for his medical registration in Australia. 1. At or before the time of giving his oral evidence Dr Friend was told that the practitioner's reporting to him was untruthful. We discuss Dr Friend's oral evidence when considering each of the complaints. Discussion and conclusions Complaint One 1. It is unnecessary we discuss Complaint One in any detail. There is no dispute that the practitioner pleaded guilty to a criminal offence and that a suspended custodial sentence was imposed by the presiding Magistrate. Corroboration of the conviction is provided by the Certificate of Conviction dated 23 September 2014. 2. We have already noted that a criminal conviction is a matter upon which a complaint may be grounded. We further note that s 55 of the National Law provides a Board, in this case, the Medical Board of Australia, may determine an individual such as the practitioner is not suitable to hold general registration having regard to that person's criminal history (see s 55 (1) (b). Complaint Two 1. Complaint Two asserts the practitioner is guilty of improper or unethical conduct because of his actions when examining Patient A. 2. Very properly, Mr Ainsworth did not submit on his client's behalf that his conduct was accidental. He acknowledged the practitioner had pleaded guilty to a serious offence of aggravated indecent assault, and while emphasising the practitioner had not been the subject of any other complaints during his career, described his conduct on 15 May 2013 as "opportunistic". 3. The Medical Board of Australia guidelines on "Sexual Boundaries: Guidelines for doctors" and the authorities on this topic are clear and unequivocal. The guidelines stress the need for a practitioner to maintain professional boundaries, and "never using your professional position to establish or pursue a sexual, exploitative or other inappropriate personal relationship with anybody under your care". 4. Although decided many years ago the observations of Priestley JA reported in Health Care Complaints Commission v Litchfield [1997) NSWSC 297 remain cogent and relevant. In Litchfield the Court of Appeal explained: 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. We find that the practitioner's behaviour in touching Patient A's clitoris was not accidental, but rather a deliberate opportunistic act without any rational explanation or clinical basis. We further find, having regard to the Guidelines, that it was both improper and unethical. Complaint Three 1. Complaint Three asserts the practitioner is guilty of professional misconduct. We have already set out the definition of professional misconduct as found in s 139E of the National Law. 2. The particulars supporting Complaint Two are repeated for Complaint Three. 3. There can be no doubt that the practitioner's inappropriate and opportunistic conduct was of a very serious nature. A female patient undergoing a genital examination, as was Patient A, places absolute trust and confidence in the integrity of the practitioner carrying out the examination. While we are cautious about the weight, if any, we may give to Patient A's victim impact statement, which was, in accordance with the usual practice, not tested by cross-examination or admitted as evidence before the Magistrate, it does suggest that the incident has had an ongoing adverse impact on Patient A, her husband and children. 4. We agree with Magistrate Stevenson the offence to which the practitioner pleaded guilty was a serious one. We have found for the reasons enunciated earlier that it was also improper and unethical conduct. We are satisfied it is of sufficient gravity, or of such a serious nature, to justify the suspension or cancellation of the practitioner's registration. We are satisfied that Complaint Three is proved. Complaint Four 1. This complaint became in many ways the essential focus of these proceedings. As earlier set out it is the position of the HCCC that the practitioner is not fit to practise medicine and that his registration should be cancelled. That assertion is based on the particulars pleaded in respect of the earlier three complaints. 2. This complaint overlaps to a significant degree with our discussion of Complaint Three and of the appropriate protective orders to be made based on our findings in respect of those complaints. 3. The focus of the submissions made by Mr Ainsworth on behalf of the practitioner are, in summary, directed to the following factors: * the incident was an isolated one which, because of its consequences, is unlikely to be repeated; * the practitioner has demonstrated remorse and acknowledges the wrongfulness of his conduct; * to make findings he is not fit to practise medicine and his registration should be cancelled would be "out of step" with other decisions where practitioners guilty of more serious offences have been permitted to carry on practice with conditions including chaperone or supervision conditions on their registration; * the unique position of the practitioner as the first PNG graduate and his role model status in PNG; * the costs and practical consequences to the practitioner if he had to come back from PNG to Australia to seek re-registration before the Tribunal; * the needs of the people of PNG for a well-qualified practitioner to provide medical services and ultimately orthopaedic skills to them. 1. We are bound to determine Complaint Four on the particulars as pleaded in the complaint. Although not specifically pleaded, we infer that the complaint of improper or unethical conduct, and this complaint, includes a lack of genuine understanding of the wrongfulness of the conduct and insight as to its impact. If we are wrong about that, those matters are nonetheless directly relevant to protective orders as without such insight and genuine contrition we could not be confident that, in similar circumstances, the practitioner may not engage in like conduct. 2. Dr Friend was unequivocal in his oral evidence. He said that, in his opinion, the practitioner is not currently fit to practise medicine. This was because he said he could not be confident that the practitioner would not engage again in similar conduct. He opined the risk of the practitioner re-offending was "fairly high". Later in his evidence he agreed with counsel for the HCCC, Ms Dwyer's proposition that the risk was "a high risk". 3. Dr Friend's strong stance was predicated on his opinion that, in giving a history to him, the practitioner had been deliberately dishonest. He opined it reflected poorly on the practitioner's character in that he knew he had done the wrong thing and was trying to hide that fact. That deceitfulness led Dr Friend to conclude the practitioner could not be relied on. He also opined that the practitioner's dishonesty indicated that the practitioner had very poor insight into his offence. 4. Mr Ainsworth suggested to Dr Friend that, as the practitioner had not been found to have committed any offence since 2013, and had practised in PNG without incident in 2015, he should be found to be competent to engage in practice. He explained to Dr Friend that the practitioner would only be practising in PNG until 2018. Dr Friend did not agree with Mr Ainsworth's submission, although he noted that if the practitioner was able to demonstrate going forward for a couple of years he had received a good level supervision in a variety of situations, and had the benefit of the influence of good medical peers, this would auger well in support of any application for his re-instatement to the register in Australia. 5. Notwithstanding Mr Ainsworth's extensive questioning of Dr Friend he was not swayed from his firmly expressed views about the practitioner's deceitful conduct and its impact on his suitability to practise. 6. We found Dr Friend made a number of appropriate concessions in answering questions put to him by Mr Ainsworth. He was an impressive witness. We found Dr Friend's evidence about the practitioner's lack of candour in giving a history to him was replicated in part of the practitioner's evidence before us when questioned on the topic. As earlier noted the practitioner hesitated and was evasive when questioned by Ms Dwyer about the statements he made to Dr Friend. 7. The practitioner's excuse for his dishonestly in giving a false history to Dr Friend is that he was stressed. Dr Friend acknowledged that the practitioner could have been stressed in seeing a psychiatrist, but said he did not observe any undue stress during his interview with the practitioner. It must be remembered that the practitioner was well aware that Dr Friend's report had been sought by his solicitors to support his case in the proceedings. Further, and of some significance to us, is the very short time period from the practitioner's consultation with Dr Friend and the signing of his statement in these proceedings. It follows, any insight the practitioner purports to have about the nature and effect of his conduct referred to in his statement changed in that short period. 8. Mr Ainsworth submitted that to cancel the practitioner's registration would involve considerable logistical difficulties for the practitioner in any application for re-registration because of his residence in PNG. While we acknowledge there will be some logistical difficulties involved, we note that the practitioner proposes his children will attend school in Brisbane. We infer from this evidence that he and/ or his wife will travel regularly to Australia. In these circumstances we find there should be no undue burden on the practitioner to seek re-instatement which may be able to be co-ordinated with a period when he would otherwise be in Australia. 9. The practitioner's statement refers to the very real needs of the people of PNG for orthopaedic services. We accept that to be the case. Mr Ainsworth stressed that cancellation of the practitioner's registration may thwart or hinder his orthopaedic training in Australia, with the consequent adverse impact on patients in PNG. We have given some weight to this submission, but ultimately we find the risk of the practitioner re-offending outweighs this consideration. Further, we note that the practitioner, at a time his registration in Australia was not in question (2012), was not successful in obtaining an accredited training position as a surgical registrar. His admission to the relevant college to undertake orthopaedic training is, at this time, speculative. 10. Mr Ainsworth provided us with a table of cases in which practitioners have been found to have committed sexual offences against their patient. He submitted to cancel the practitioner's registration would be "out of line" with these decisions. He stressed that the incident was an isolated one that was opportunistic in nature. He further submitted that we should not slavishly follow the NSW Court of Appeal in HCCC v Litchfield (1997) 41 NSWLR 630 at 639 that "the necessity for imposing such [chaperone] conditions on the appellant's registration demonstrated that he was unfit to practise medicine and in those circumstances the only appropriate order was one dismissing his appeal". Rather, he submitted those comments should be construed in the light of the facts in HCCC v Litchfield. 11. We accept the incident was an isolated one. But as Dr Friend explained, had the practitioner been honest with him, he could have explored the circumstances that led to the offence in more detail and whether or not the practitioner was unwell at the time. The practitioner offered no explanation of his conduct. Without in anyway condoning the conduct of a practitioner who engages in a consensual sexual relationship with a patient, where a power imbalance exists, this conduct was in our view, of a different and it may be argued, more serious category. It was perpetrated on a vulnerable female patient in circumstances where she placed absolute trust in the practitioner to conduct an intimate examination in a professional manner. That trust was violated. 12. Mr Ainsworth's submission may have had much greater force if the practitioner had not provided a deceitful history to Dr Friend in November 2015, and some three weeks later signed a statement acknowledging his offence and expressing remorse. While we accept comparable cases provide guidance to a Tribunal, they must be carefully evaluated with all of the other relevant evidence in the matter before the Tribunal. 13. We are further fortified in our view of the appropriate protective orders to be made by the discussion of the former Medical Tribunal of NSW in Re Dr Parajuli [2010] NSWNMT 3. There the practitioner, who had engaged in consensual sexual conduct with a very vulnerable patient, acknowledged the inappropriateness of his conduct, and had taken a number of significant remedial steps prior to the Tribunal hearing. Notwithstanding those matters and the Medical Tribunal's finding that the risk of the practitioner re-offending was low, the Tribunal found that while the practitioner lacked full insight into his conduct he would remain incapable of fully appreciating his misconduct and "there will be some risk of future patient/practitioner boundary transgression". The Tribunal at [37] and [38] discussed cases involving similar facts saying: The Tribunal has considered the case of HCCC v Dr Cheung NSWMT [2005] 25. The facts in that case were similar to those in the present case. In that case the Tribunal disposed of the matter by way of a severe reprimand, a substantial fine and the imposition of strict conditions. Despite the similarities between the cases and the desirability of similar disposition in cases involving similar facts, this Tribunal considers that a disposition short of deregistration would be an inadequate response to the seriousness of the practitioner's misconduct. Both the profession and the public must know that standards will be maintained and that serious misconduct will have consequences for professional registration: Law Society v Foreman (1994) 34 NSWLR 408 per Giles JA at 471. 1. Accepting as we do Dr Friend's evidence that the practitioner is not presently a suitable person to hold registration we find Complaint Four is established. Protective orders 1. For the reasons set out above, and accepting as we do, Dr Friend's expert evidence, we are not satisfied that the practitioner has a true level of insight into the gravity of his offence and its adverse impact on Patient A. Significantly, we could not be satisfied on the evidence before us that the practitioner would not re-offend. 2. On behalf of the practitioner it is submitted that we can be satisfied that conditions on the practitioner's registration will protect the health and safety of Australian public if and when the practitioner returns to Australia in 2018. 3. While we accept it is unlikely on the evidence before us that the practitioner will seek to return to Australia prior to 2018, he may choose to do so. Because of our finding about the practitioner's present lack of insight into his conduct, other than its adverse impact on his reputation, employment and family, and because of the risk he may re-offend, we do not find conditions such as Level A supervision and chaperone conditions are appropriate. 4. Further, we are satisfied that an order cancelling the practitioner's registration sends a strong message to other practitioners and to the public that like conduct will not be condoned. It is in many ways tragic that this practitioner who has achieved so much, and who is held out as a role model to so many young Papua-New Guineans, has transgressed in this manner. Any steps he takes to rehabilitate himself should not only facilitate the resumption of his career in Australia if that is his goal, but also to demonstrate to his fellow citizens that he is deserving of his role model status. 5. In these circumstances, we are satisfied that the only appropriate order is the cancellation of the practitioner's registration. The practitioner's referees 1. In reaching our conclusions that the practitioner's registration should be cancelled we have not overlooked the evidence of the two referees on whom he relies. The hospital chaplain at Nonga Hospital seeks that the practitioner be given "a second chance to prove himself". 2. The practitioner also relies on a reference from Dr Kevin Lapu the Deputy Chief Surgeon, New Guinea Island, Department of Health, Nonga General Hospital, Surgical Unit. Dr Lapu refers to the fact that the practitioner is a role model in PNG. He says that the practitioner "has a good reputation and an unblemished record in PNG. It was very sad to learn of his criminal conviction but I think this was an isolated incident and truly is not that of his character". 3. It is clear from the referees that they each hold the practitioner in high regard. However each reference pre-dates the practitioner's consultation with Dr Friend and the weight which may be afforded to each must be balanced by the practitioner's later dishonesty in his reporting to Dr Friend. No doubt his PNG colleagues will be important mentors to assist the practitioner to gain full insight into his conduct, and provide appropriate guidance to him going forward when he seeks re-registration in Australia. Period of time before the practitioner may again apply for registration. 1. The HCCC seek a period of two years until the practitioner may again apply for registration. It is the practitioner's stated intention to complete his surgical training in PNG and only return to Australia to work in about 2018. 2. Notwithstanding the practitioner's current position, we are satisfied that a two year period before any application may be made under s 163A of the National Law is appropriate. In reaching this finding we accept the evidence of Dr Friend that a substantial period of at least two years is required for the practitioner to be able to demonstrate the necessary understanding of his wrongful conduct and benefit from mentoring such that he is likely to be fit to be re-registered. PNG Registration 1. In her written submissions which were available to Mr Ainsworth at the hearing Ms Dwyer submitted there was no requirement for Australian authorities to notify authorities in PNG if the practitioner is suspended or de-registered. She goes on to note: It appears, however, that it is with [sic] Australian Health Practitioner Regulation Agency's (AHPRA's) power to disclose information to the equivalent authority in PNG. 1. Ms Dwyer further refers to s 216 and s 221 of the National Law. She submits that s 221 of the National Law authorises disclosure of protected information to a registration authority. She further submits s 5 of the National Law "defines registration authority to include, in effect, an overseas registration authority". 2. Ms Dwyer submits that as it is doubtful that the Tribunal has power to order AHPRA to disclose information to a registration authority that "it is open to the Tribunal to make a recommendation to that effect and to further recommend that the HCCC take reasonable steps to bring its comments to the attention of AHPRA". 3. As presently advised, we accept we do not have power to bind AHPRA, who is not a party to the proceedings, to do any act. But the definition of registration authority in s 5 of the National Law includes an overseas registration authority. This indicates an acknowledgment of the role of registration authorities in other jurisdictions. 4. The practitioner's evidence indicates that there has been some level of supervision of his examination of female patients whilst he has been practising in PNG. It is unclear to us whether the PNG registration authority had any role in that supervision. It is likely that this supervision was to comply with the conditions the practitioner agreed should be imposed on his Australian registration pending this hearing. 5. Given the serious nature of our findings, we find it is appropriate that we request the HCCC to provide AHPRA with a copy of these reasons. In this respect we note the provisions of s165M of the National Law. We recommend that AHPRA should notify the PNG registration authority of cancellation of the practitioner's Australian registration. Costs 1. The HCCC sought an order for its costs of and incidental to these proceedings. Schedule 5D cl 13 empowers the Tribunal to make an order for costs. The Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016 inserted a new cl 13A to Schedule 5D of the National Law c l 13(3) as follows: The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. 1. Section 3A of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act) defines the legal costs legislation to mean (amongst other statutory provisions) costs under Parts 6 and 7 of that Act. Cl 13A now enables the Tribunal to make an order that one party pay the other party's costs (or part thereof) either in a fixed quantum, or as agreed between the parties, and failing agreement costs may be referred for assessment under s74(2) of Div 3 of Part 7 of the Application Act. However at the date of these reasons, the amending legislation was awaiting proclamation of its commencing date. Relevant principles 1. The question of the power to award costs is subject of discussion by Meagher JA, with whom Basten and Emmett JJA agreed, in Health Care Complaints Commission v Do albeit in the context of an appeal under s 162 A of the National Law. After referring to the power in s 175B of the National Law, which has national application by reason of s 201, his Honour noted, in respect to the power to award costs: That is a provision having national operation pursuant to s 201 it should not be subject to local rules. It should be treated as conferring an unfettered discretion on the Tribunal. 1. His Honour then referred to the decision of the Court of Appeal in Health Care Complaints v Philipiah [2013] NSWCA 342 as follows: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power. Whatever the true extent of the power conferred on this Court in respect of costs of this appeal, it is appropriate to adopt the same approach as would have been adopted in the Tribunal, namely that there was an unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs. Discussion and conclusion – costs. 1. As we have found the complaints against the practitioner established and there are no factors militating against an award of costs we propose to order that the practitioner pay the HCCC's costs of and incidental to the proceedings. As the remedial legislation, which includes the insertion of Cl 13A into schedule 5D is not yet operational, will we grant liberty to restore to the Tribunal to fix the quantum of costs in the event costs are not agreed. orders 1. ORDER the registration of Dr Wilson Pakalu (the practitioner) recorded on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) is cancelled. 2. ORDER the practitioner may not make any application for review of Order 1 of these orders for a period of two years from the date of the orders. 3. The Registrar is requested to notify the Medical Council of Australia of Orders 1 and 2 of these orders as soon as practicable. 4. The Health Care Complaints Commission is requested to provide a copy of these reasons to AHPRA for its consideration of notification of the Papua-New Guinea registration authorities. 5. ORDER the practitioner shall pay the costs of and incidental of the Health Care Complaints Commission as agreed and failing agreement liberty to restore before the Tribunal. 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: 22 April 2016