Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75 Hearing dates: 26 April 2016, 29 April 2016 and 24 May 2016 (submissions) Date of orders: 10 June 2016 Decision date: 10 June 2016 Jurisdiction: Occupational Division Before: Marks ADCJ, Principal Member Dr J Davidson, Professional Member Dr A Reid, Professional Member Professor P Macneill, General Member Decision: 1. Consequent upon the finding of professional misconduct which we have made, we make the following orders: (1) The registration of Dr Giuliano Marino ("the practitioner") on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) in conjunction with the Medical Board of Australia is suspended under section 149C(1)(b) of the Health Practitioner Regulation National Law ("the National Law") for a period of 9 months. (2) On the expiration of the practitioner's suspension, his registration shall be subject to the following orders and conditions: (a) The practitioner is only to practise in a Medical Council of New South Wales ("the Council") approved public hospital position. (b) The practitioner is prohibited from performing locum work. (c) The practitioner is required to advise the Council in writing at least 7 days prior to changing his place of practice. (d) The practitioner shall authorise any employer to notify the Council of any concerns about his professional conduct or performance. (e) Within 12 months from the expiration of his suspension, or such further time as may be agreed with the Council the practitioner shall complete, at his own expense, the distance education course "Medical Ethics" conducted by the Department of General Practice, Monash University, Victoria provided however if such course is not available such other course as is nominated by the Council. (f) Within 2 months of the expiration of his suspension, or such further time as may be agreed in writing with the Council, the practitioner shall provide evidence in writing to the Council of his enrolment in the course referred to in order 2(e). (g) Within 2 weeks of completing the course referred to in order 2(e) of these orders, the practitioner shall provide documentary evidence to the Council of satisfactory completion of the course. (h) Within 21 days of the expiration of his suspension the practitioner shall: (i) provide for approval by the Council the name and professional address of a registered medical practitioner who has agreed to act as his professional mentor. The nature and frequency of contact with the practitioner's mentor is to be determined by the mentor in accordance with the Council's Guideline for Mentors ("the guidelines") but should not be less than monthly; (ii) provide to the mentor a copy of these reasons and a copy of the guidelines; (iii) meet with the approved mentor on a monthly basis, or on such more frequent basis as is determined by the mentor commencing within 14 days of the mentor being approved by the Council; (iv) authorise the mentor to report to the Council if there is any concern about the practitioner's professional conduct; (v) authorise the mentor to notify the Council of any failure to participate in a mentoring session or to do any act or thing contrary to the advice of the mentor or any other matter the mentor considers appropriate; (vi) authorise the mentor to include in discussions with the practitioner his personal and professional development as a registered medical practitioner and in particular any issues that may arise relevant to the matters identified in our reasons for decision. (3) In the event that the approved mentor is no longer willing or able to continue as a mentor, the practitioner shall nominate another mentor for approval by the Council within 28 days of the termination of the original mentoring relationship. (4) Orders 2(h)(i) - 2(h)(vi) shall apply in respect of any substitute mentor. (5) The practitioner shall be responsible for all costs associated with his mentoring pursuant to these orders. (6) The Medical Board of Australia in conjunction with AHPRA is requested to note the practitioner's suspension and the orders and conditions on his registration which are to come into effect on the expiration of his suspension. (7) In the event the practitioner seeks to review these orders and/or conditions under section 163A of the National Law, and his principal place of practice is in New South Wales, such application shall be heard by the Council as the appropriate review body. If the practitioner's principal place of practice is other than in New South Wales, sections 125 to 127 of the National Law shall apply and the review body shall be the Medical Board of Australia. 2. In addition to the above orders, the respondent is to pay the costs of the complainant assessed in default of agreement. Catchwords: Medical Practitioner - finding of professional misconduct involving sexual activity with patient - held cancellation not appropriate - protective orders made including suspension of registration and practice conditions Legislation Cited: Health Practitioner Regulation National Law, ss125-127, 149C, 163A Cases Cited: Health Care Complaints Commission v Marino [2016] NSWCATOD 37 Zaidi v HCCC (1998) 44 NSWLR 82; [1998] NSWSC 335 Re Alger Hiss (1975) 333 NE 2d 429 Childs v Walton [1990] NSWCA 41 Dr Antwan Barich and the Medical Practice Act 1992 (Unreported, Medical Tribunal of NSW, 8 June 1999) Ex Parle Tziniolis; Re Medical Practitioners Act (1996) 67 SR (NSW) 448 at 461; 84 WN (NSW) (Pt 2) 275 Health Care Complaints Commission v Do [2014) NSWCA 307 Herron v McGregor (1986) 6 NSWLR 246 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Giuliano Marino (Respondent) Representation: Counsel: R Mathur (Complainant) P Griffin SC (Respondent) Solicitors: Health Care Complaints Commission (Complainant in person) TressCox Lawyers (Respondent) File Number(s): 1520170 Publication restriction: Non-publication order with respect to Patient A reasons for decision 1. In Health Care Complaints Commission v Marino [2016] NSWCATOD 37 published on 5 April 2016 we found the respondent in these proceedings, Dr Giuliano Marino, guilty of unsatisfactory professional conduct and professional misconduct. The proceedings were stood over for further hearing of a second stage in order to determine what protective and other orders should be made in consequence of these findings. These reasons for decision respond to these further proceedings. 2. A bundle of documents was filed on behalf of the respondent including a statement made by him on 22 April 2016 and a number of references. The respondent gave oral evidence and we were given an opportunity of questioning him concerning certain aspects of his background, his conduct which gave rise to these proceedings, and his aspirations concerning his future career as a medical practitioner. We would add that the opportunity to enter into a dialogue with the respondent provided us with a greater insight into his conduct and his personality and this has assisted us in evaluating what protective orders should appropriately be made. 3. We shall not repeat the conclusions and findings which we have earlier made and which are set out fully in our earlier decision. We note for completeness that the respondent was found guilty of professional misconduct in his assessment and treatment of a patient in the Emergency Department of a hospital on 1 August 2013, was found guilty of inappropriately prescribing Oxycodone, a drug of addiction, to that patient on that date and was found guilty of failing to keep an adequate clinical record of his treatment of that patient on that occasion. Furthermore, the respondent was found guilty of engaging in improper and inappropriate sexual contact with that patient on 1 September 2013 after driving her home from the same hospital, and in exchanging personal contact details with her. Finally, the respondent was found guilty of inappropriately prescribing a Schedule 4D drug to that patient on 4 September 2013. The evidentiary material in these 2nd stage proceedings 1. In his statement, the respondent acknowledged the findings which we had made in the earlier proceedings and said that he accepted: ..that I made many errors of judgement in my treatment and interactions with Patient A. I am truly sorry for these errors and any harm I have caused to the patient, which was certainly never my intention. I have never committed such serious errors before or since, and I do not believe that I have been the subject of any other patient complaint in over 10 years of medical practice. As will be seen, some controversy arose in the course of these second stage proceedings about whether the respondent had true insight into his misconduct, and had expressed genuine remorse and contrition for what had occurred. We regard the acknowledgement and statement of the respondent as indicating an acknowledgement that our findings included a finding of sexual misconduct with the patient. As will be seen from our earlier reasons for decision, the respondent vehemently denied any such misconduct, and our finding in this regard was contrary to the position which he took in the proceedings and contrary to his sworn evidence. 1. The respondent also said that our decision had caused him to "reflect on the reasons for my action, and to take steps to address the issues raised to prevent them from re-occurring." He referred to the fact that he had a stable working environment over the last 18 months working as a locum at the Sutherland Hospital Emergency Department from June 2014 to February 2016, averaging 2 to 4 shifts per week. He had regular contact with senior colleagues, knowledge of the hospital protocols and "awareness of frequently presenting patients facilitating significant professional growth." 2. He had recently reviewed a number of articles and completed online training courses covering issues such as managing difficult patients, managing boundaries in patients with mental health issues, communication strategies, medical records and documentation. 3. In discussing the question of medical ethics and patient boundaries, the respondent accepted that he had transgressed professional boundaries "and committed a serious ethical error" in befriending the patient and then communicating with her by phone. He described this as a "terrible lapse of judgement" that he sincerely regretted. He acknowledged that he did not fully realise the extent of the patient's level of vulnerability because he had not become fully acquainted with her medical background and had only met her twice up to and including 1 September 2013. We comment that the respondent, however, was aware that she was a "difficult patient" because he had been told so by hospital staff. He thought that by being friendly, providing personal details, and supplying a script for Diazepam that he was being helpful to her. He was concerned that somehow the hospital system had not demonstrated sufficient support for the patient's circumstances. The respondent now professed to have greater insight into the manner in which he should have dealt with the patient. The respondent acknowledged that he should have accepted that the patient was drug seeking and at risk of medication abuse. 4. In his statement, the respondent also acknowledged his inappropriate prescription of medication to this patient and the inadequacies of his record-keeping and note taking. 5. We note that nowhere in the statement does the respondent actually acknowledge that he engaged in sexual activity with the patient. In submissions, the complainant was highly critical of the failure of the respondent to do so, stating that this was indicative of a lack of insight, remorse and contrition. This was a critical aspect in the formulation of the complainant's submission that the respondent's registration should be cancelled. 6. We do not regard the failure of the respondent to publicly acknowledge that he engaged in sexual activity with the patient as having the profound consequences contended for by the complainant. As we have said, his sworn evidence was to the effect that he did not engage in any sexual activity with the patient. For reasons which we described in some detail in our earlier decision, we determined to accept the un-sworn and untested statement of the patient in preference to the sworn evidence of the respondent that consensual sexual activity had in fact occurred. In circumstances where the respondent firmly maintains that he did not engage in sexual activity with the patient, notwithstanding our finding to the contrary, it would be hypocritical, for the respondent to now concede that he had lied under oath for the purpose of gaining some mitigation in the context of demonstrative remorse and contrition. We do not attribute the same profound consequences of the failure of the respondent to acknowledge the actual sexual activity with the patient as contended for by the complainant. 7. The circumstances of a person in a similar situation was a matter referred to in the NSW Court of Appeal in Zaidi v HCCC (1998) 44 NSWLR 82; [1998] NSWSC 335. The Medical Tribunal had cancelled a general practitioner's medical registration after it found that he had sexually assaulted three patients. Despite his strenuous denial of guilt, the Tribunal had found him guilty on the basis of the evidence given in the proceedings. In the absence of an admission of wrongdoing or a demonstration of insight into the need for reform, the Tribunal felt that there was a real risk of the practitioner re-offending. 8. On Appeal, Mason J (as his Honour then was), (with whom Priestley J and Powell J agreed) considered the question of whether the practitioner was required to admit his guilt before an application for re-registration could succeed. Regard was had to the following statement from the judgment of Tauro CJ of the Supreme Judicial Court of Massachusetts in Re Alger Hiss (1975) 333 NE 2d 429 at 437: Simple fairness and fundamental justice demand that the person who believes he is innocent though convicted should not be required to confess guilt to a criminal act he honestly believes he did not commit. For him, a rule requiring admission of guilt and repentance creates a cruel quandary: he may stand mute and lose his opportunity; or he may cast aside his hard maintained scruples and paradoxically, commit what he regards as perjury to prove his worthiness to practise law. Men who are honest would prefer to relinquish the opportunity conditioned by this rule: 'Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt ... may be rejected, - preferring to be the victim of the law rather than its acknowledged transgressor - preferring death even to such certain infamy'. Honest men would suffer permanent disbarment under this rule. Others, less sure of their moral positions, would be tempted to believe to commit perjury by admitting to a non-existent offence (or to an offence they believe to be non-existent) to secure reinstatement. So regarded, this rule, intended to maintain the integrity of the Bar, would encourage corruption in these latter petitioners for reinstatement, and again paradoxically might permit reinstatement of those least fit to serve. 1. In applying the above passage to the circumstances in Zaidi, Mason J stated at [39]: I would not disagree with the principle stated in the passage from Hiss that has been quoted. But the proposition which it states is a narrow one; confession is not a necessary precondition to reinstatement. ('Accordingly, we refuse to disqualify a petitioner for reinstatement solely because he continues to protest his innocence of the crime of which he was convicted': Hiss at 437). I do not understand this Court ever to have asserted such a categorical proposition: see Dawson v Law Society of New South Wales. That said, there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness on one or other of the grounds indicated in the sentence underlined...(citation omitted). 1. The respondent tendered three references from three specialist medical practitioners, each of whom provided powerful testimony to his competency as a medical practitioner and which facilitate a conclusion that the misconduct which we have found is out of character. 2. Dr John Raftos is a Senior Specialist in Emergency Medicine and Conjoint Associate Professor at the University of New South Wales. Dr Raftos has read our earlier decision. Dr Raftos has been the supervisor of the respondent in the Emergency Department at Sutherland Hospital for 18 months. He described the respondent as: ..a competent and caring doctor. His diagnostic and therapeutic skills are at a high level. He is aware of his limitations and consults appropriately. He is kind and caring with his patients. To the best of my knowledge, his medical skills have not been questioned. He is well liked by his patients and his colleagues. He further described the respondent as a capable and conscientious doctor who has: ..behaved appropriately and in his patients' best interests at all times. I regard him among the best junior doctors with whom I have worked. I would readily re-employ him. 1. Dr Andrea Bell is a Staff Specialist in the Emergency Department at Sutherland Hospital. Dr Bell has similarly read our earlier decision. Dr Bell has known the respondent as a casual Senior Resident Medical Officer locum since 2013. Dr Bell has worked with him whilst she was the consultant on duty, and Dr Bell is the Co-director of Emergency Medicine Training at the hospital. Dr Bell said that in the time that she has known and worked with the respondent, she has found him to be a "reliable, diligent and conscientious doctor" with good medical knowledge, who knows the limitations of his knowledge and seeks appropriate advice, and has good professional relationships with nursing and medical staff. She said that the respondent has been "one of our preferred locums and on many occasions we have specifically requested if he is available for work." She was unaware of any other complaints or action concerning the respondent while working at the hospital. 2. Dr Andrew Finckh has also read our decision. Dr Finckh is the Director of the Emergency Department at Sutherland Hospital and has known the respondent for about 18 months whilst he worked there as a locum medical officer. Dr Finckh said that he had found the respondent to be of sound character, reliable and conscientious and that he always acted professionally towards patients and staff. He added "He is clinically sound. He seeks senior assistance and advice appropriately. I have never found his medical documentation to be sub optimal." He found the respondent to be always personable and courteous and was aware of no issues concerning his professional behaviour. 3. It is also appropriate to set out some background material concerning the respondent. He was born in 1979, completed a Bachelor of Psychology in 2000 and a Bachelor of Medicine, Bachelor of Surgery with honours in 2004. He gained a number of academic awards and scholarships. The respondent became registered as a medical practitioner in 2005 when he commenced employment as an intern at Royal Prince Alfred Hospital. He also attained registration as a medical practitioner in the UK. where he worked in 2010 and 2011 before returning to Australia in 2011. During the course of 2011 to 2012, the respondent worked in the emergency departments of a number of hospitals and in 2013 commenced working as a locum in various emergency departments for the services of a locum agency. 4. In the course of giving oral evidence, the respondent explained that he had developed a personal relationship with a friend who lived in Italy and he endeavoured to spend two to three months each year in Italy with her. It was for this reason that working as a locum suited him because it gave him the flexibility of travelling to Italy. He said that that seven-year relationship has now ceased but whilst he was in that relationship he sacrificed the creation of a career progression in medicine in Australia. The respondent said that he wished to now build a career focusing on practising emergency medicine, particularly at Sutherland Hospital, or at any other hospital where he was able to secure employment. He would now like the opportunity of working as a full-time medical officer in a hospital, working towards becoming a consultant in Emergency Medicine. 5. The respondent conceded that the circumstances in which he now finds himself and which culminated in the findings of professional misconduct arose as a confluence of several errors on his part. He was anxious to overcome these problems and to pursue a worthwhile career as a full-time medical practitioner. The respective positions of the parties 1. In essence, it was the position of the complainant that the registration of the respondent should be cancelled and that the Tribunal should set a period of between 18 months and three years before he would be permitted to apply for reregistration. 2. The respondent submitted that, in all the circumstances, a reprimand was appropriate and that he should be permitted to continue practising medicine, albeit with practice conditions imposed on his registration. 3. In the course of dialogue with counsel for each of the parties we canvassed alternative protective orders, including suspension. We asked the parties to give consideration to what practice conditions should appropriately be imposed if we were to determine the suspension of the respondent's right to practise was appropriate. It was the position of the complainant that the only appropriate protective order was cancellation. In those circumstances, and because the respondent was currently engaged as a locum, it was said that there were no appropriate conditions which would protect the public in relation to the proven complaints. Accordingly, the complainant declined to make any submission in relation to practice conditions. The complainant has a very important role to play in the administration of this area of the law. We find the reluctance by the complainant to assist the Tribunal by engaging in dialogue of this kind unhelpful. 4. The complainant submitted that the respondent's proven lack of honesty before the Tribunal must be a significant consideration in determining the appropriate protective order. We agree, and will take this matter into account in determining what protective orders are appropriate. The complainant also emphasised the specific vulnerability of the patient which, as we found, exacerbated the seriousness of the respondent's misconduct and that it was irrelevant that the respondent did not act in a premeditated manner or with ill intent. It was said that these findings must inform the appropriate protective order to be imposed. The complainant submitted that: The Respondent's repeated denials and total lack of acknowledgment regarding the proven sexual misconduct, are matters directly relevant to insight; contrition and acceptance of responsibility and risks regarding future misconduct. They are directly relevant to the paramount consideration of the Tribunal -namely the protection and safety of the community. 1. The complainant then referred us to a number of authorities which it was asserted would confine the outcome of our formulation of an appropriate protective order to that of cancellation. However, none of these cases has a factual basis which is identical with or sufficiently similar to these proceedings as to provide a sufficiently persuasive basis for establishing cancellation as the only possible outcome. For example, the decision of the New South Wales Court of Appeal in Childs v Walton [1990] NSWCA 41 concerned the circumstances of a psychotherapist who had engaged in long-term personal and social relationships with two patients. Whilst the medical practitioner endeavoured to explain why she had engaged in misconduct by reason of a number of matters personal to her, it was found by the Court that she had not recognised that what she had done was wrong and had not expressed contrition for her misconduct. To that extent, she lacked relevant insight. The factual circumstances which pertain to these proceedings are significantly different. Without in any way condoning the misconduct of the respondent, we note that it arose out of two encounters with the one patient and, more significantly, we regard the evidence of the respondent as expressing contrition and remorse for not only what occurred, but for his behaviour assessed by reference to the findings that we have made. 2. The submissions made on behalf of the complainant are significantly based on the assertion that the respondent has not recognised his wrongdoing. Once we have concluded, as we have done, that the respondent has expressed remorse and contrition in the manner which we have described, this aspect of the complainant's submissions may be given less weight. 3. The complainant referred us to a decision of the Medical Tribunal of NSW in the matter of Dr Antwan Barich and the Medical Practice Act 1992 (Unreported, Medical Tribunal of NSW, 8 June 1999). In the course of conducting an examination of a female patient complaining of chronic abdominal pain, the medical practitioner had requested her to lie on the examination table and pull her pants down. He "came over to examine her and pulled her pants down further to the top of the patient's pubic hair line." The medical practitioner then conducted an examination of the abdomen. When the examination was completed he asked the patient to sit on the edge of the examination table. He told her that she had a sore abdomen because she had been undertaking a lot of stomach exercises and some karate. The patient appeared upset and frustrated and the medical practitioner "then came towards her and cuddled and hugged her. She felt uncomfortable and embarrassed when he did this but thought the doctor was simply showing her some sympathy because she was upset." After a discussion about whether the patient wished to have a baby, the medical practitioner stood up and again cuddled or hugged her, and kissed her on the right cheek. The patient then said that he moved his right hand and brushed past her left breast whilst holding a pen. She said that she became "scared", and "began shaking a little." The Tribunal found that he had then "placed his hand on her left knee. He then slid his hand up the outside of her trousers and placed it over her vagina for about 5 to 10 seconds. At this time he was also talking about his wife who was about to have a child." The patient said that she was terrified and left the consultation room. The Tribunal found that the medical practitioner had inadvertently brushed past the patient's left breast with his hand, but otherwise found the conduct of which the patient complained proven. During the course of the hearing the medical practitioner asserted that the facts of which the patient complained had never occurred. In so finding the complaints proven, the Tribunal had rejected the evidence of the medical practitioner. 4. In all the circumstances the Tribunal determined to cancel the registration of the medical practitioner. In doing so the Tribunal said, in part, that: To perform acts on a patient which are not related to the medical treatment of the patient but are undertaken for the personal sexual gratification of the medical practitioner concerned is a gross breach of trust and a gross breach of the proper standards of the medical profession. Of interest to these proceedings, the Tribunal said in its reasons for decision: However, whilst the acts performed in the present case were a gross breach of trust and such standards they were also in the context of sexual misconduct by a medical practitioner towards the bottom of any scale of reprehensibility. Had Dr Barich admitted the actions, expressed contrition for them and undertaken never to have performed any such acts in the future the Tribunal may have been satisfied that he would not have been likely to have committed any sexual misconduct in the future and therefore that the protection of the public and the maintenance of proper standards could have been secured by a period of suspension coupled with a fine. However, Dr Barich denied the performance of the relevant acts. There is thus no public acknowledgment by him of his conduct and of its reprehensible nature and no apparent contrition for such conduct. In those circumstances the Tribunal cannot be satisfied that Dr Barich will not perform similar acts on other patients in the future if he is permitted to continue to practise (sic) as a medical practitioner. 1. We observe that there are significant differences between the factual circumstances which pertain to these proceedings to those which applied in Barich. The sexual encounter which the respondent had with the patient in these proceedings was entirely consensual. Whilst no less reprehensible, it occurred outside the clinical setting. Furthermore, the respondent in these proceedings has expressed contrition and remorse for what occurred including the circumstances as we have found them. We are unable to conclude on the basis of the evidence before us that the respondent would engage in similar acts with other patients in the future if he were permitted to continue to practise as a medical practitioner. 2. The complainant also emphasised that we should accept the respondent's assertion of reformation of character with some caution. We were taken to the well-known judgment of Walsh JA in the NSW Court of Appeal in Ex Parle Tziniolis; Re Medical Practitioners Act (1996) 67 SR (NSW) 448 at 461; 84 WN (NSW) (Pt 2) 275 at 286: ..Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man. 1. In submissions, the complainant emphasised the lack of any explanation from the respondent as to why he had engaged in the sexual misconduct which we have found to have occurred, brought about by his denial that he had so misconducted himself. In the circumstances, it was said that we would be unable to determine whether the conduct could be characterised on his part as being an error of judgement, rather than a defect in character. This distinction would have an obvious impact upon the assessment that we should make about the respondent's fitness to practise medicine. There is some merit in this submission, and the respondent's denial creates a quandary in determining, to the extent that it is relevant, whether the respondent is likely to again engage in conduct of this kind. On one view, the burden of demonstrating any matter which is favourable to the respondent will lie on him, and it is for him to satisfy us that he will not again engage in misconduct of this kind. However, apart from the evidence that he has himself given, and the fact that he readily acquiesced in engaging in dialogue with us, we are not sure what more can be done to ensure that we are convinced about this matter. Certainly, there are no scientific means by which we might assure ourselves that this respondent will not reoffend by again engaging in misconduct of this kind. There is no expert evidence which can determine with any degree of accuracy the risk of re-occurrence of behaviour of this kind. Even psychiatrists can (and do) err in assessing the likelihood of recidivism in persons with established aberrant behaviour including drug addiction, sexual depravity, and paedophilia. We are prepared to proceed on the basis that the respondent's acceptance of wrongdoing, coupled with the expression of contrition and remorse, and the active steps that he has taken to gain a greater appreciation of patient/practitioner boundaries suggest that the risk that he will repeat this behaviour is low. We are of the same opinion concerning the inappropriate prescription of drugs of addiction to this patient, and his poor record keeping. 2. There are also no scientific means by which we are able to assess whether and to what extent the respondent was genuine in his professed statement of contrition and remorse for that conduct which he admitted, and for the conduct which we have found proven against him, despite his denials. Having had an opportunity of engaging in dialogue with him whilst he was in the witness box, we have formed the impression that he was sincere in expressing this statement, and we are prepared to accept this statement at face value. There can be no doubt that the respondent acted in a naïve manner in his interaction with this patient, and that he lacked maturity in conducting himself in the manner that he did, but these failings are not necessarily indicative that he is likely to act in this manner again. In coming to this conclusion, we are mindful of the character references tendered on behalf of the respondent, the contents of which we have earlier summarised. On the basis of these references, we are satisfied that the respondent's unfortunate and reprehensible involvement with this one patient is otherwise out of character. In so concluding, we are conscious of the criticism rendered by the complainant concerning the contents of the character references which, it was suggested, failed to address whether there had been any reformation of character. Each of the referees said that he or she had read our earlier reasons for decision, and was thus presumably aware of them. In regarding the misconduct of the respondent as being out of character, we are unsure as to how, and in what manner the referees could have ascertained and considered whether there was an appropriate manifestation of a reformation of character. What protective orders are appropriate? 1. In determining what orders are appropriate we are guided by relevant principles established by appellate court authority. In Health Care Complaints Commission v Do [2014) NSWCA 307, Meagher JA (with whom Basten and Emmett JJA agreed) said at [34]-[36]: The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include 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 to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3. 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. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 1. In Herron v McGregor (1986) 6 NSWLR 246, McHugh JA referred more briefly to the same consideration (at 258): It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest. 1. We are conscious that in determining the nature and extent of any protective orders we must take into account a primary regard for the protection of the health and safety of the public in the practice of medicine by this respondent and whether in all the circumstances the misconduct which we have found would render the respondent being characterised as having a character so unbefitting a medical practitioner that his registration should be cancelled. We acknowledge that it is integral to our functions and powers that we also take into account the necessity to uphold appropriate professional standards and to send a message to other medical practitioners that misconduct of this kind will not be tolerated. All of these matters are well established by relevant authorities, and succinctly summarised in the extract from Do set out above. 2. Whilst the misconduct of the respondent which we have found proven is reprehensible, given all of the circumstances which pertain to these proceedings and, in particular the circumstances of the respondent, we are not persuaded that cancellation of registration is appropriate. Nor are we persuaded that the imposition of a reprimand as originally contended for by the respondent is appropriate. 3. We have already discussed in some detail the nature and extent of the respondent's misconduct. It is not necessary that we repeat this discussion. Much of that discussion occurred against the background of a strongly expressed concern by the complainant that we cancel the registration of the respondent. The determination as to whether the finding of professional misconduct in the circumstances as they apply to this respondent would merit cancellation of registration or suspension combined with the imposition of practice conditions (which we see as the only two viable possibilities) involves an exercise of a value judgement, and the forming of an impression based on the evidence considered in the context of the legislative framework in which this Tribunal operates. Whilst we concede that either of these outcomes would be available in the exercise of our discretion, we are persuaded that in all the circumstances an order for suspension and the imposition of practice conditions upon the lifting of the suspension is the most appropriate outcome. 4. The fact that there is a finding that the respondent has been found guilty of professional misconduct which will be recorded on his registration, coupled with his suspension from practice for a significant period and the restrictive practice conditions which we intend imposing upon his registration, will, in our opinion, represent an appropriate response to all of the circumstances of his proven misconduct, and including the fact that we did not accept his evidence as to his denial of any sexual involvement with the patient. 5. We are concerned to ensure that after the period of suspension that the respondent will only be able to practise medicine under an appropriate supervised regime. To this extent we accept the suggestion of his counsel that his practice be confined to a hospital emergency department environment, but we decline to allow him to be able to accept longer term locum placements, because supervision in such placements is more limited. Costs 1. The complainant sought an order for costs in its favour. This is a costs jurisdiction, and costs normally follow the event. The respondent did not oppose the making of a costs order, and we shall make an appropriate order in favour of the complainant. Orders 1. Consequent upon the finding of professional misconduct which we have made, we make the following orders: 1. The registration of Dr Giuliano Marino ("the practitioner") on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) in conjunction with the Medical Board of Australia is suspended under section 149C(1)(b) of the Health Practitioner Regulation National Law ("the National Law") for a period of 9 months. 2. On the expiration of the practitioner's suspension, his registration shall be subject to the following orders and conditions: 1. The practitioner is only to practise in a Medical Council of New South Wales ("the Council") approved public hospital position. 2. The practitioner is prohibited from performing locum work. 3. The practitioner is required to advise the Council in writing at least 7 days prior to changing his place of practice. 4. The practitioner shall authorise any employer to notify the Council of any concerns about his professional conduct or performance. 5. Within 12 months from the expiration of his suspension, or such further time as may be agreed with the Council the practitioner shall complete, at his own expense, the distance education course "Medical Ethics" conducted by the Department of General Practice, Monash University, Victoria provided however if such course is not available such other course as is nominated by the Council. 6. Within 2 months of the expiration of his suspension, or such further time as may be agreed in writing with the Council, the practitioner shall provide evidence in writing to the Council of his enrolment in the course referred to in order 2(e). 7. Within 2 weeks of completing the course referred to in order 2(e) of these orders, the practitioner shall provide documentary evidence to the Council of satisfactory completion of the course. 8. Within 21 days of the expiration of his suspension the practitioner shall: 1. provide for approval by the Council the name and professional address of a registered medical practitioner who has agreed to act as his professional mentor. The nature and frequency of contact with the practitioner's mentor is to be determined by the mentor in accordance with the Council's Guideline for Mentors ("the guidelines") but should not be less than monthly; 2. provide to the mentor a copy of these reasons and a copy of the guidelines; 3. meet with the approved mentor on a monthly basis, or on such more frequent basis as is determined by the mentor commencing within 14 days of the mentor being approved by the Council; 4. authorise the mentor to report to the Council if there is any concern about the practitioner's professional conduct; 5. authorise the mentor to notify the Council of any failure to participate in a mentoring session or to do any act or thing contrary to the advice of the mentor or any other matter the mentor considers appropriate; 6. authorise the mentor to include in discussions with the practitioner his personal and professional development as a registered medical practitioner and in particular any issues that may arise relevant to the matters identified in our reasons for decision. 1. In the event that the approved mentor is no longer willing or able to continue as a mentor, the practitioner shall nominate another mentor for approval by the Council within 28 days of the termination of the original mentoring relationship. 2. Orders 2(h)(i) - 2(h)(vi) shall apply in respect of any substitute mentor. 3. The practitioner shall be responsible for all costs associated with his mentoring pursuant to these orders. 4. The Medical Board of Australia in conjunction with AHPRA is requested to note the practitioner's suspension and the orders and conditions on his registration which are to come into effect on the expiration of his suspension. 5. In the event the practitioner seeks to review these orders and/or conditions under section 163A of the National Law, and his principal place of practice is in New South Wales, such application shall be heard by the Council as the appropriate review body. If the practitioner's principal place of practice is other than in New South Wales, sections 125 to 127 of the National Law shall apply and the review body shall be the Medical Board of Australia. 1. In addition to the above orders, the respondent is to pay the costs of the complainant assessed in default of agreement. 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: 10 June 2016