Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Khan v Medical Council of NSW [2016] NSWCATOD 88 Hearing dates: 22, 23 and 24 June 2016 Date of orders: 08 July 2016 Decision date: 08 July 2016 Jurisdiction: Occupational Division Before: Marks ADCJ, Principal Member Decision: 1. Application to extend time to appeal refused 2. Costs reserved with liberty to apply 3. Proceedings stood over for hearing of any costs application and the making of orders for dismissal of appeal Catchwords: INTERLOCUTORY JUDGMENT - medical practitioner - breach of patient boundaries - appeal against suspension of registration made out of time - application to extend time -discretionary matters - application refused Legislation Cited: Civil and Administrative Tribunal Act, 2013 s4 Health Practitioner Regulation National Law, ss150, 150A, 150C, 159, 159C, 161, 165B Health Practitioner Regulation National Law (NSW) Amendment (Review) Act, 2016 Interpretation Act, 1987, s30 Cases Cited: Gallo v Dawson [1990] HCA 30 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Jackamarra v Krakouer [1998] HCA 27 Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Category: Principal judgment Parties: Dr Nauman Zafar Khan (Appellant) Medical Council of NSW (Respondent) Representation: Counsel: S Bhojani (Appellant) P Lowson (Respondent) Solicitors S Shakur (Appellant) Medical Council of NSW (Respondent) File Number(s): 1620062 Publication restriction: Non-publication order with respect to the identity of any patient of the appellant REASONS FOR DECISION Introduction 1. On 8 March 2016, Mr Shahid Shakur, a barrister and solicitor practising in Mosman Park WA had caused to be filed in this Tribunal an external appeal form on behalf of the appellant in these proceedings, Dr Nauman Zafar Kahn, a medical practitioner. The respondent to the proceedings is the Medical Council of NSW. A copy of a decision from which the appeal was brought was attached to the appeal form. The appeal form stated that the date that the appellant was notified about the decision was 29 October 2015. There is also a reference to "notification of review decision made on 26.02.2016 is awaited." The decision annexed to the appeal form was a decision of delegates of the respondent published on 24 November 2015 consequent upon a hearing conducted on 29 October 2015. In that decision, the delegates had determined to suspend the registration of the appellant pursuant to section 150(1)(a) of the Health Practitioner Regulation National Law ("the Act"). The grounds of appeal were said to be "as outlined in review application dated 23 December 2015" which was annexed to the appeal form. 2. At the conclusion of the written reasons for decision issued by the delegates, the appellant was advised of a right to appeal to this Tribunal under sections "159 and/or 159B" of the Act. The notation continued to the following effect: An appeal must be lodged with the Tribunal within 28 days of receipt of the delegates' written reasons. Dr Khan is also advised of his right to seek a review of this decision under section 150A of the National Law (NSW). Under section 150C the Council may also, at any time end a period of suspension imposed on Dr Khan's registration as a result of these proceedings. As will be seen, this advice was not strictly correct. I shall return to this matter later in these reasons for decision. 1. The appeal form contained a notation that the appeal was lodged within the time allowed under relevant legislation. The statutory matrix applying to these proceedings 1. In order to consider some of the many areas of controversy in these proceedings, it is first necessary to have regard to the relevant statutory provisions. 2. The delegates of the respondent, in determining to suspend the registration of the appellant were acting pursuant to powers contained in section 150 of the Act which is in the following terms: 150 Suspension of conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens- (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must- (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section- (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who- (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 1. The notation in the decision of the delegates made reference to the right of appeal from their decision. That right is established by section 159 of the Act which is now in the following terms: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession- (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note : An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 . (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given. 1. However, the Act was amended by the Health Practitioner Regulation National Law (NSW) Amendment (Review) Act, 2016 with effect on 15 May 2016. As at the date that the appeal in these proceedings was instituted, the provisions of section 159(3) were in the following terms: (3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given. 1. Submissions were made by the parties as to which version of subsection (3) of section 150 applied to these proceedings. The determination of this issue is governed by the provisions of section 30(1) of the Interpretation Act 1987, which is in the following terms: 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. 1. The submissions of the respondent focused attention on the provisions of subsection (1)(b) and (c). It was suggested that the lodging of the appeal on 8 March did not cause anything to be "suffered, done or commenced" under the Act. That was because this Tribunal exercises "the powers with which it is cloaked at the time it exercises those powers." Furthermore, the appellant had no accrued right to require the Tribunal to exercise jurisdiction in a particular manner. 2. In my opinion, this submission does not give appropriate weight to the provisions of subsection (1)(e) which clearly provide that the amendment does not affect any "…. legal proceeding or remedy…." with respect to a right, or privilege, which had already accrued to the appellant. I would regard the entitlement to maintain an appeal under section 159 as a right and privilege, and as such preserved in the form in which it was created at the time of the institution of the appeal, and prior to the amendment coming into effect. 3. In any event, it is not necessary that I consider this matter in any greater detail because I agree with the submission of the respondent that, in effect, the outcome of these proceedings is not affected in any way by the amendment to subsection (3). The essence of the appeal, as will be seen, is a consideration of the need to protect the health and safety of any person or persons, or any other matter which is otherwise in the public interest. The Act in its form prior to the amendment requires an identification of "the matter" which was before the delegates of the Council. The Act in its current form requires a consideration of the appeal against the suspension imposed or the refusal to end a suspension. This will also direct attention to the circumstances pertaining to the appellant in the context of the necessity or otherwise to impose a suspension. 4. Section 161 of the Act creates a time limit in which an appeal must be brought under section 159. It is in the following terms: 161 When appeal must be made [NSW] An appeal under this Division or Division 14A, other than an appeal on a point of law, must be made- (a) within 28 days after the day the person making the appeal was given notice of the decision being appealed against; or (b) within the longer period allowed by the Tribunal. 1. It will be seen that the appeal must be made within 28 days after the day the person making the appeal was given notice of "the decision." The appellant and his solicitor were present during the proceedings before the delegates of the Council who announced at the conclusion of the hearing on 29 October 2015 that the appellant's registration was suspended. Accordingly, the time limit ran from the following day. The written reasons for decision issued by the delegates were published on 24 November 2015 and, despite the protestations of the appellant, the Council insisted that they be posted to the medical practice at which he had previously been engaged, although he was no longer working there because of the suspension of his registration. The appellant said that he did not obtain the written reasons for decision of the delegates until some time in the beginning of December 2015. 2. For completeness, I note that a letter dated 10 November 2015 from the respondent to the appellant which confirmed and discussed the effect of his suspension also incorrectly stated that the 28 days' time limit for the institution of the appeal ran from the date of receipt of the Council's written reasons. 3. The appellant's solicitor filed an affidavit in the proceedings. He said that he was retained by the appellant on or about 22 November 2015 but was not provided a copy of the written reasons for decision until early December 2015. 4. In the circumstances, the respondent conceded that time ought not to have run until after the appellant had received the written reasons for decision, relying in part on the misleading statement contained in the decision of the delegates and presumably also the respondent's own letter to the effect that time would not run until receipt of the written reasons. It will be remembered that the delegates also advised the appellant of a right to seek a review of the decision under section 150A of the Act. In fact, the appellant chose to seek a review under this provision on the advice of his solicitor. I was informed during the proceedings that the solicitor was aware at that time that the appellant was out of time to institute an appeal under section 159. In those circumstances, the solicitor thought that it did not matter if the appellant sought a review or instituted an appeal because the appeal was already out of time. I was informed by counsel for the appellant that he determined to seek a review because this was cheaper and easier. Section 150A is in the following terms is 150A Review of certain decisions [NSW] (1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to- (a) suspend the practitioner's or student's registration; or (b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration. (2) On receiving an application for review, a Council- (a) may refuse to reconsider its decision if, in the Council's opinion, the application is frivolous or vexatious; or (b) must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant. (3) Following its reconsideration of a decision, a Council may- (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under section 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision. 1. The appellant requested a review by letter dated 23 December 2015. The review proceedings were conducted on 26 February 2016. The appellant attended on the hearing of the application together with his solicitor. The appellant filed the appeal form in these proceedings on 8 March 2016 prior to the issue of the written reasons for decision of the delegates declining to remove the appellant's suspension. 2. I note for completeness that by reason of subsection (4) of section 150A an application for a review will only succeed if the practitioner is able to demonstrate that there has been a change in his or her circumstances that justifies the variation or setting aside of the decision. Whilst an application for review was available to the appellant, and he availed himself accordingly, there is a significant difference between this process and the institution of an appeal under section 159. 3. These appeal proceedings were the subject of a directions hearing by the Honourable Acting Judge Boland AM on 15 April 2016. The parties were directed to file and serve copies of all documentation upon which they wished to rely and the proceedings were listed for hearing on 24 June 2016. The hearing date was subsequently varied by me at the request of the parties by including provision for an additional two days of hearing. 4. By written submissions dated 16 June 2016, filed and served prior to the hearing then scheduled to commence on 22 June 2016, the respondent asserted that the appeal had been instituted out of time and that there had been a "significant delay" in bringing the appeal. It was pointed out that the appellant had not applied for any extension of time nor provided any reasons for the delay. Furthermore, it was said that "the appellant has no reasonable prospects of success", and set out in summary form the basis for this submission. The respondent gave notice that it would resist any application brought by the appellant to seek an extension of time in which to commence the proceedings. 5. It will be observed that section 161 of the Act set out above which provides for the time limited for the institution of this appeal section also permits the Tribunal to extend the time for the making of this appeal. There is no description of any of the factors or matters which might pertain to the granting of a longer period, and it may generally be assumed that the Tribunal has a wide and unfettered discretion to extend the time. 6. The appellant, through his counsel, made an application to the Tribunal to extend the time for the bringing of the appeal when the matter came on for hearing at 10am on 22 June 2016. At that time, the Tribunal was constituted by me, as the presiding member, two professional members and a community member. As the appellant's application was to be strongly resisted by the respondent, it became clear that some time would be required to deal with this interlocutory matter. By reason of the provisions of section 165B of the Act, the determination of this matter was to be decided by me sitting alone. Section 165B is in the following terms 165B Constitution of Tribunal for complaints, applications and appeals [NSW] (1) If a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal under this Law- (a) the Tribunal must inform the Council for the health profession of the referral, application or appeal; and (b) the Council for the health profession must select 3 persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings. Note : Schedule 5 to the Civil and Administrative Tribunal Act 2013 provides the President must appoint a person as an occasional member for particular proceedings entered in the Health Practitioner List if that person has been selected for participation in the proceedings in accordance with any applicable procedures specified by or under this Law. If a person selected under subsection (1) (b) is not already a Division member, the President will be required to appoint the person as an occasional member in relation to the proceedings. (2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by- (a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and (b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1) (b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and (c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1) (b) from among a panel of lay persons for the time being nominated by the Minister. (3) If the health profession has divisions, at least one and, if practicable, both, of the health practitioners referred to in subsection (2) (b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing. (4) The Tribunal, when constituted to hear appeals under this Law that are restricted to points of law, is to be constituted by- (a) in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; or (b) in any other case, 1 Division member who is an Australian lawyer of at least 7 years' standing. (5) The Tribunal, when constituted to exercise a function under section 146D or 148G, is to be constituted by a Division member selected by the Tribunal List Manager. (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a). (6) A person is not to be selected to sit on the Tribunal if the person is a member of the Council. (7) An inquiry or appeal conducted or heard by the Tribunal under this Law may relate to more than one health practitioner or student if the complaint or complaints the subject of the inquiry or appeal arise from the same conduct. 1. For completeness, I note that the reference in subsection (5A) to an interlocutory decision is defined in section 4 of the Civil and Administrative Tribunal Act as referring, inter alia, to a decision concerning the extension of time for any matter (including for the lodgement of an application or appeal). (Section 4(1)(d)). Accordingly, I have conducted the hearing of the application for the extension of time for leave to appeal sitting alone. Both parties agreed that this was the appropriate course to follow. 2. The appellant sought to argue that the appeal which he had instituted and which is the subject of these proceedings could also be dealt with as an appeal from the decision of the Council to decline to vary or set aside the suspension under section 150A. This submission faces a number of difficulties. Firstly, if there were to be such a right of appeal as asserted by the appellant, one would expect to find a legislative provision to this effect. There is no provision in the Act which provides for such a right of appeal. Such a provision could easily have been accommodated within section 159, if the legislature thought appropriate. The second difficulty concerns an argument put by counsel for the appellant that an appeal from a decision under section 150A could be accommodated within section 159(1)(a). This argument must be rejected. A refusal to review a decision under section 150A does not itself constitute a suspension by the Council or a refusal to end a suspension. The suspension which is the subject of a review under section 150A is the suspension which the Council had decided to impose. Accordingly, section 159 cannot be utilised for the purpose of instituting an appeal from a decision made under section 150A. 3. Indeed, the wording used in section 159(1)(a) is framed in such a manner that it must be taken to be directed to action taken under sections 150 and 150C. This latter provision is in the following terms: 150C Power to remove or alter conditions or end suspension [NSW] (1) A Council may, at any time- (a) end a period of suspension imposed by the Council under this Subdivision; or (b) alter or remove conditions imposed under this Subdivision. (2) A Council may, at any time after taking action under section 150 with respect to a registered health practitioner or student ( "the original action"), take any other action it could have taken under that section at the time of taking the original action. (3) The Council must give written notice of the action it takes under this section to the registered health practitioner or student concerned. 1. Section 150C empowers the Council to end a period of suspension, and section 159(1)(a) uses the same words. The nature of the appeal 1. I have earlier set out the provisions of section 159 of the Act. Subsection (3) makes it clear that this appeal is to be conducted as a hearing de novo. As is clear, however, from a number of decisions of this Tribunal the appeal is not a hearing de novo strictly because the powers of this Tribunal to make a determination are limited by the provisions of section 159C of the Act which are in the following terms: 159C Tribunal's powers on appeal [NSW] (1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of. 1. It will be seen that on appeal from a suspension of registration, this Tribunal is limited to making an order terminating, varying or confirming a period of suspension. This is to be compared with the powers given to the Council under section 150 which extend to either making an order for suspension or the imposition of practice conditions. This limitation on the powers of this Tribunal to make orders on appeal has caused the appeal to be described as a hybrid appeal de novo. 2. Whatever the description, it seems to me that the limitation created by section 159C may create some difficulty for this Tribunal in appropriate circumstances. For example, the appellant concedes that he is guilty of misconduct in the context of these proceedings, but asserts that the public will be protected if appropriate practice conditions were imposed. If, on a hearing properly constituted, the Tribunal determined to accede to the submission of the appellant, it would be faced with the problem of making an appropriate order. If the Tribunal concluded that the practitioner could safely practice medicine provided that certain practice conditions were put in place, there would be no ability under section 159C to frame an appropriate order. The Tribunal would be limited to terminating the suspension or maintaining it. Either alternative would, in those hypothetical circumstances, render an injustice either to the practitioner or expose the public to a lack of protection from the practitioner. 3. As will be seen, I am saved from the prospect of wrestling with this particular problem in these proceedings. However, I would recommend that consideration be given by the responsible authority to an amendment to section 159C of the Act to permit the Tribunal on appeal to impose practice conditions where appropriate if it determines to terminate the suspension of a practitioner. 4. I will proceed to deal with these proceedings on the basis outlined above. I note that both the appellant and the respondent have filed a great deal of documentary evidence which was not before the delegates of the Council when they determined to suspend the appellant's registration. This new material was admitted by consent into evidence for the purpose of the determination of these interlocutory proceedings. Principles applying to extending time for bringing appeal 1. In the High Court decision of Gallo v Dawson [1990] HCA 30 McHugh J said at [2]: The applicant asserts, correctly in my opinion, that she was entitled to appeal as of right against the order of Wilson J. Section 34 of the Judiciary Act 1903 (Cth) provides that the High Court has jurisdiction to "hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers". However, a notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O.70, r.3 of the Rules of the High Court ("the Rules"). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O.60, r.6 to support her application. That rule provides that the Court or a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VicRp 27; (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion." 1. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the appeal panel of this Tribunal, after citing the above passage from Gallo, said at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 1. In Jackamarra v Krakouer [1998] HCA 27, Brennan CJ and McHugh J at [7] referred to the necessity for an appellant seeking an extension of time in which to appeal to demonstrate that the "proposed appeal has some prospects of success." In discussing an examination of the merits of the appeal, their Honours referred to the practice of appellate courts of determining the merits of an appeal with only limited access to evidentiary material and argument, saying at [10]: Given the practice in hearing applications for extension of time, the rules of procedural fairness require that an appellate court should not determine the application on the details of the evidence (if they have been provided) or the lack thereof unless counsel has been given fair notice that the court intends to take that course. 1. It is also necessary to refer to a decision of the Supreme Court of Victoria Appeal Division in Dix and Another v Crimes Compensation Tribunal [1993] VicRp 21. Brooking J, with whom Fullagar and Tadgell JJ agreed said: In its reasons for decision given in respect of both applications, the tribunal accepted what it described as the principles laid down by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 concerning the exercise of the power to grant an extension of time under s11 of the Commonwealth Administrative Decisions (Judicial Review) Act 1977. That section empowers the Federal Court to enlarge the time for the lodging of an application to the court for an order of review whether before or after the expiration of the prescribed period. As with the Victorian s31, nothing is said by the section as to the matters to be taken into account in determining whether to extend the time and no pre condition is in terms laid down to the grant of an extension. It is desirable to quote at some length from the judgment of Wilcox J, at 310-11. Speaking of decisions of judges of the Federal Court, his Honour said: "They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion: "(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The 'prescribed period' of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550). Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time (Duff v Freijah [1982] FCA 159; (1982) 43 ALR 479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at 7. "(b) Action taker, by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not 'rested on his rights': per Fisher J in Doyle v Chief of General Staff [1982] FCA 124; (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon, and Douglas v Allen (Morling J, 3 April 1984, not reported, at 18 of the transcript) with Lucic at 414-15 and Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 519. The reasons for this distinction are not only the 'need for finality in disputes' (see Lucic at 410) but also the 'fading from memory' problem referred to in Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528. "(c) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension: see Doyle at 287; Duff at 484-5; Hickey at 525-7 and Wedesweiller at 533-4. "(d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at 18; Lucic at 416; Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550; Becerra v Fowell (unreported, Morling J, 18 February 1983) at 12-13 of the transcript) or of established practices (Douglas at 19) is likely to prove fatal to the application. "(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417; Chapman at 6. "(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-5. Application of the principles to these proceedings 1. It is convenient to refer to each of the four matters clearly identified in the authorities referred to above in determining whether the appellant should be granted leave to extend the time for the bringing of this appeal. I shall deal with each of them in turn. The length of the delay 1. I do not regard the length of the delay in initiating the appeal as being determinative of this matter. Firstly, the appellant was misled by the observations of the delegates contained in their written decision, compounded by the information contained in the letter from the Council. Secondly, the appellant was advised by the delegates of the alternative entitlement to seek review under section 150A, which he did without any indication that in doing so he would prejudice his entitlement to appeal under section 159 because time would run. I am not suggesting that the delegates or the Council were under any particular obligation to advise the appellant of his appeal rights, but having done so, they should have warned the appellant about this potential area of prejudice. In addition, in seeking the review under section 150A, the appellant had made it clear to the respondent that he was seeking to pursue his rights and there could be no doubt in the mind of the respondent that the appellant was not content to accept the decision of the delegates as one which finalised his circumstances. This latter matter is referred to in the judgment of Wilcox J extracted above in Dix. It is clear that once the appellant became aware of the likely failure of the review application that he immediately instituted these appeal proceedings. The reasons for the delay 1. As I have already pointed out, no application was ever made by the appellant to extend time for the filing of the appeal prior to the commencement of the hearing on 22 June 2016. No doubt this application was only prompted by the filing of written submissions by the respondent dated 16 June 2016. This is notwithstanding the clear indication by the solicitor acting for the appellant that he was aware when he advised the appellant to seek a review under section 150A that there was a relevant time limit for bringing the appeal. Accordingly, the solicitor was aware of the time limit at some time before 23 December 2015. 2. No explanation is provided in the affidavit of the appellant's solicitor as to why an application to seek leave to appeal was not made earlier than 22 June 2016. The appellant has filed an affidavit in support of the appeal. Nowhere does he refer to any knowledge, or lack of knowledge concerning the imposition of a time limit for the bringing of an appeal, although he was clearly aware that such a time limit existed because he had been told of it in the decision of the delegates and in the letter from the Council. The appellant does not refer to any instructions which he gave to his solicitor, or to any advice which was given to him by his solicitor. There is simply no information available to this Tribunal by way of explanation for the failure to comply with the time limit fixed by the legislation. It is as if the appellant conducted himself in contumelious disregard of the existence of the time limit. 3. This is a matter which must count against the appellant in the exercise of the discretion as to whether to grant leave to extend time to appeal, but as will become clear this matter assumes less relevance when considering the merits of the appeal proceedings. Prejudice to the respondent 1. This is not a situation where the respondent was granted some vested right or entitlement by reason of the decision of the delegates. In circumstances where the only matter at stake is the entitlement of the appellant to continue to practice as a medical practitioner, albeit that the protection of the health or safety of any person or persons is a primary consideration, I do not regard the question of prejudice as being a significant matter in determining whether to exercise discretion as sought by the appellant. The merits of the appeal 1. There are several tests formulated in the authorities which are set out above. There is a suggestion that in circumstances where there is no appropriate or adequate explanation for the delay in instituting an appeal, as is the case in these proceedings, that a higher test should be expected than whether the appeal is "fairly arguable" on the merits. Counsel for the respondent was content to make submissions about this matter on the basis that "fairly arguable" would be an appropriate test, and I agree that it is sufficient to test the prospects of the success of the appeal on this basis. The conduct of the appellant said by the respondent to justify dismissal of the appeal 1. The section 150 proceedings conducted by the delegates of the Council essentially concerned complaints of misconduct made against the appellant with respect to communications he had engaged in with three of his patients. There was a further complaint referable to the prescription of the drug Seroquel to two of these patients. There is conflicting evidence concerning this complaint and, for present purposes, because of the nature of the proceedings with which I am dealing, I shall ignore it. 2. Once the Council had determined to suspend the registration of the appellant, it was required to notify the HCCC. During the course of investigations conducted by the HCCC, the appellant's mobile phone was taken from him and its contents examined. As a result of these enquiries, the HCCC reformulated the subject matter of its complaints by referring to: allegations of inappropriate conduct by (the appellant) towards eight of (his) patients. With respect to seven of the patients, who were named, the conduct complained of consisted of communications by text messaging and phone calls "of a personal and sexual nature which were in breach of therapeutic boundaries." With respect to all of the patients, there was an allegation that the appellant had conducted himself towards them by conduct of a sexual nature and in breach of therapeutic guidelines. There is also reference to the conduct of an examination of two patients which were not clinically indicated and which were inappropriate. 1. By the time these proceedings came on for hearing, evidentiary material concerning these additional complaints had been provided to the appellant. By consent, a great deal of documentation exceeding 2500 pages was tendered into evidence before me for the purpose of these interlocutory proceedings, and they dealt with, inter alia, the circumstances of the eight patients and also contained a number of expert reports. I shall refer to those parts of the documentation as is relevant for the determination of these proceedings. 2. Before dealing with the circumstances pertaining to each of the patients, it is necessary to set out some background information contained within the documentation concerning the appellant. The narration which follows is taken from an affidavit which the appellant swore for the purpose of these proceedings. The appellant was born in Pakistan on 17 August 1974. He graduated with a degree in medicine from a university in Karachi in 1996. He has postgraduate qualifications from the Royal College of General Practitioners in the United Kingdom and has a postgraduate diploma awarded in the USA. He worked as a medical practitioner in Pakistan for 13 years, followed by 3 years in Saudi Arabia and then in Australia, after emigrating in August 2013. From 23 September 2013 until the suspension of his registration on 29 October 2015, the appellant worked as a general practitioner at a medical centre near Newcastle, NSW. He said that he tended to treat a number of patients for mental health issues as well as rheumatology and that he enjoyed a good relationship with his colleagues, the practice staff and patients. 3. When he arrived in Australia the appellant said that not only did he have to acclimatise himself to the practice of medicine in a new country, but also he had to assist his wife and young son to integrate into local life. He said that his wife found it difficult to adjust to living in the local area, particularly as she did not drive a car. 4. The appellant said that he first suffered from depression after his mother passed away in 1998. He was prescribed medication by a psychiatrist. 5. In 2014, the appellant was under pressure to pass examinations leading up to a FRACGP. At the same time his wife applied pressure on him for her to travel initially to the USA to visit her sister. He again failed the FRACGP examination in March 2015. He was granted permission to resit the exam in August 2015. 6. In April 2015, his wife decided to go to Pakistan with their son to visit family. The appellant did not want her to go and they argued, however she left on 6 June 2015. He said that after she left he was "miserable" missed his son and did not know anyone. He felt as if he was "drowning." He found conversations with his wife by Skype unsatisfactory. In early July 2015, he started drinking alcohol. He said that he needed someone to talk to so he reached out to "the IMG SOS medical educator and to some female patients." 7. During the course of his interview with the delegates of the Council, the appellant explained that as a result of the circumstances in which he found himself, he started reaching out to female patients in the hope that he could develop a relationship with them and discuss his problems. He initiated contact with patients for this purpose and he chose female patients who had been suffering from emotional or mental conditions because they "would be able to understand better" what he was going through. In one case he was hopeful of establishing a long lasting relationship, with a patient who was 20 years old. Particulars of the conduct by reference to each patient 1. I commence by referring to the details concerning each of the eight patients, to whom reference shall be made by use of initials. Patient HT 1. This patient made a statement to an investigator retained by the HCCC, the first page of which is dated 13 November 2015 and subsequent pages dated 4 December 2015. She was then 20 years old. She first consulted the appellant on about 2 April 2015 and saw him on a number of occasions. She attended on him in June 2015 after receiving a letter to discuss her blood test results. At that appointment, the appellant asked to talk about the problems in her life. She talked about her feelings of anxiety and depression. The appellant offered to be her psychologist and told her to come to the Medical Centre two to three times each week for counselling. He gave her a business card and wrote his mobile phone number on the back. He told her that she could ring him at any time if she needed to talk. On each occasion that she consulted the appellant thereafter he asked her questions about every detail of her life. HT said that she had consulted psychologists previously and her consultations with the appellant did not seem like normal therapeutic sessions, and they were more like a "chit. chat". Notwithstanding not feeling comfortable talking to the appellant, she assumed that he knew "what he was doing" and continued to see him. Sometimes her boyfriend would be waiting in the reception area, and the appellant enquired as to who he was. 2. HT said that she consulted the appellant on 15 July 2015 because she had been restless and unable to sleep, had been coughing and had trouble breathing. The appellant told her that he needed to examine her and told her to take off her shirt and loosen her bra. She was wearing shorts. She said: I went to the examination table and he put the curtain around. I took my shirt off and lay on the examination table. He felt all over my back and chest area. He touched down the sides of my breasts and down the centre of my chest between my breasts. He didn't touch my nipples. I put my shirt back on. During the same consultation, (the appellant) wanted to examine me again and told me to take off my shirt and loosen my bra. This time he didn't put the curtain around and watched while I undressed. At this consultation he gave HT a prescription for Seroquel 25 mg. 1. Over the next few days HT commenced receiving a number of text messages from the appellant. He told her about a number of personal problems that he was encountering and said that he was finding it hard to make friends. He did not explain that he was married and had a child. 2. The appellant first telephoned HT on her mobile phone on about 16 July 2015. She said that he sounded depressed and "very dark." He suggested that they should be there for each other. He asked her to come over to his house. She declined. The appellant continually sent her text messages over the next few days and she responded "because I felt worried for his well-being." 3. On 18 July 2015, HT telephoned the appellant in response to a text message from him to the effect that he needed to talk to her. Because she was worried that he seemed depressed and that he might self- harm, she suggested that he telephone her. When he did, he said words to the effect of: I need to tell you why I'm talking to you. I've really liked you since I first saw you. I have unconditional love for you. If ever you want to be with me I'm ready for you…… I wanted you the first time I saw you. She explained to the appellant that she could not see him and ended the phone call. Whilst she was at dinner that night HT kept texting her saying that he needed to see her. She said: In the text messages, he said more sexual-type things. His messages were really freaking me out especially when he said he knew I wasn't home and said he would come and pick me up in his car. I thought that he must have been at my house. I live with my mum and she was away. 1. HT had previously told the appellant that she was having troubles with her boyfriend. The appellant sent a text to her saying that her boyfriend did not love her. She said: I think (the appellant) was trying to use the information I had told him during our consultations about my relationship problems with (the boyfriend) as leverage. I believe he was trying to cause trouble between (the boyfriend) and me. 1. HT concluded her statement by saying: The consultations with (the appellant) and his contact with me has made me feel violated and my personal life invaded. He has my medical and personal details, and he knows my phone number and address. The way he was being persistent and forceful asking me why I wouldn't see him frightened me. It took her some time to feel confident that she could consult with a medical practitioner again, and she commenced seeing another doctor in another practice. 1. The actual text messages between the appellant and HT are in evidence. They are taken from records in the mobile phone of the appellant, as obtained by the HCCC. There is no date on the first record of text messages. It commences with a text from HT at 8:06 PM saying "what are you talking about, I don't understand what will happen when you see me." The appellant responds at 8:07 PM saying "nothing you wouldn't want." At 8:12 PM, there is a further text from the appellant "call me if you like." She responds at 8:12 PM "just tell me what you want with me?" At 8:15 PM, the appellant sent a text "not just sex if that's what you are asking." And then 1 minute later "happy". 2. On 1, 9 and 16 July 2015 the appellant sent text messages to HT commencing "are u doing ok?" On each of these dates HT responded with a text to the effect that she was doing alright. On 16 July the appellant continued to persist in sending text messages to her, at 9.26, 9.56, 10.02, 10.53, 11.23, 11.24, 11.25, 11.30, 11.32, 11.34, and 11.35 am, and 12.03, 12.04, 12.06, 12.08, 12.26, 12.29, and 12.30, pm. These text messages seek an opportunity to talk to HT because it would be "mutually beneficial to just talk" emphasising that the appellant did not have "any hidden motives." HT responded occasionally, but not in terms that would encourage the appellant to continue to persist in this behaviour. The appellant continued to initiate text communications with HT on 17 July 2015, explaining his personal family circumstances and that he had no one to talk to. On this day, he initiated some 15 text messages. Again, HT responded on a few occasions expressing sympathy. 3. On 18 July 2015, the appellant initiated approximately 120 text messages to HT. In the course of an exchange of text messages in which the appellant had persisted in seeking to maintain contact with her, he said "you said you were about to go somewhere. I am also a human and am allowed to like or have feelings. The only thing is that it's not professional then to see that patient." She responded; "but you already have seen me for a while and have touched me and stuff. It's a bit late to say that." He said "I've never touched you inappropriately….. I have always been professional…… I said ethically it's not right. Legally I can see you as long as there is no relationship." He then said that he would like to forget about her in a text message at 7:17 PM. HT responded "what do you want to do. You've said all of this so you have some sort of idea. If you want to forget me then why talk to me." He responded "I want to talk face-to-face so that we can see each other's expressions. I however won't talk to you if you don't want." The appellant then sent further text messages persisting in his desire to meet with her. He said: I said I want to meet you. I never said you to forget me. Since you don't like me. I said I have no choice but to forget u which I will try. And I said I will try not to contact or even text you as I don't want any trouble for you. The appellant then continued to say that he wanted to meet her and that he would not be "in pain anymore and would love to be there for you." HT responded variously that there was no point in her meeting him, and that it "doesn't make sense" and that she did not know what he wanted from her. He said that there were things that he could not explain to her over the phone and that he needed to see her. She responded by asking him to help understand what he wanted. He said that he had already done so over the phone. He then asked whether they could spend some time together. She asked why and he said that "I could use a hug." He said that ethically he could no longer be her doctor. She responded that she did not want to see him and he said "you hate me." She asked why he said that and he asked her whether she liked him. HT then said that she had a boyfriend whom she loved. After a number of further exchanges, the appellant said that the boyfriend was not her boyfriend because he was not completely committed and had cheated on her. She explained that he had apologised for his behaviour. 1. After a further series of text messages, the appellant then asked HT whether she could do him a favour and continue to see him as a patient. She declined saying "because you don't make sense, I don't understand you." The appellant persisted and she continued to refuse. At one stage, HT said "you said you wanted to have sex with me" and after that she repeated that "everything is wrong and I am definitely not your patient. That you want me in that way. This is too much." The appellant asked her whether he had said that and he said that she had misunderstood "everything." The text messages ended with the appellant apologising to HT. 2. This is the last text exchange between HT and the appellant. 3. Included within the evidentiary material is a statement from the boyfriend of HT which is corroborative of her statement. In particular, he said that he heard part of a telephone conversation between her and the appellant on 18 July 2015 including the words used by him "I love you unconditionally." 4. The circumstances surrounding HT were discussed by the appellant with the delegates of the Council during the course of the section 150 proceedings. The appellant confirmed that he thought that she was suffering from dysthemia and anxiety. He had referred her to a psychologist for management of her condition. He had prescribed medication because she was having "mood swings." The appellant said that he had commenced text messages with this patient after he had last seen her on 15 July 2015. He said that he thought that he liked her as a person and he reached out to her for his own benefit. He acknowledged that she was young at age 20, and was suffering from a psychiatric disorder. He said that he was searching for a long lasting relationship with someone, a permanent relationship because his wife had left her when he needed her the most. 5. The appellant's attention was directed to the fact that in his text exchange with HT, he had made reference to her relationship with her boyfriend and the fact that he had cheated on her. It was suggested that he had taken advantage of this information revealed to him in confidence "as a part of a persuasive attempt to engage her in a relationship." It is my understanding from a reading of the transcript of those proceedings that after some prevarication, that the appellant accepted this proposition. 6. The appellant repeated that he was attracted to HT, and was hoping to initiate a relationship. He said that he: ..tried to contact her to explain my pain that I had been going through and my feelings for her as well…. In the hope that I could do that she would – might – she might develop some sort of sympathy for me and in the hope that she may even start liking me as a human being. And may even reciprocate…the feelings. 1. He acknowledged that his conduct was stupid and that, in retrospect, he should have sought professional help. He said that, in general terms, he had taken advantage of patients like HT for his own personal reasons. 2. The appellant was questioned as to why he would choose to turn to a 20-year-old patient who was already in a vulnerable medical condition. He said that he had no other means of developing personal relationships. 3. In answer to questions asked by a HCCC investigator, the appellant denied conducting a physical examination of HT in the manner described by her in her statement. Patient KH 1. This patient, then aged 44, gave a statement to the HCCC which she signed on 10 March 2016. She said that she first saw the appellant between 18 months and two years previously, attending upon him with "mental health issues." She said that she had been a victim of sexual assault and was very vulnerable. The appellant had prescribed medication for her and had given her a referral letter indicating a diagnosis of schizophrenia. She was concerned about this diagnosis and made another appointment to see the appellant because although she had been previously diagnosed with borderline personality disorder and post-traumatic stress disorder, she was concerned that she was not suffering from schizophrenia. The appellant refused to remove this diagnosis from her record. She also consulted the appellant about her concern that she was smoking too much cannabis, but the appellant did not seem to think that this was a problem. 2. The appellant had given this patient his mobile telephone number and suggested that she should call him if she was ever in distress. She then commenced seeing another doctor in the same medical practice and subsequently sought treatment in another medical centre. 3. KH said that on 17 August 2015, her next-door neighbour and friend needed an urgent medical appointment. She found the appellant's telephone number in her mobile phone, and called it thinking that this was the telephone number of the medical centre. When the appellant answered the phone she apologised for having called him by mistake. He said that he needed to talk to her and that he would come to her house. KH assumed that the appellant wanted to talk about matters associated with his treatment of her. After receiving some text messages from the appellant, he came to her home. She said that when she answered the front door, the appellant "was standing there with his shirt half undone." She offered him something to drink and he came into the house. He then removed his shoes and sat down on the lounge. He then said words which she recollected were to the effect of "So… what's the most important thing in your life; what do you want most out of life." KH said that she understood immediately that the appellant was not there to discuss her problems, but that he was "a predator." The appellant then said that he knew that she was in a dark place, that he also was in a dark place and that he could "walk you through this." He then spoke in disparaging terms about his wife, and said words to the effect of "You know I like you…. I need a sexual companion apart from my wife." He then moved next to where she was sitting on the lounge and after some further exchanges she said to him "No. I'm not giving you my body." He did not move away and said words to the effect "We need to at least hold hands, cuddle and kiss." He told her that it was his birthday and lent towards her for a hug. KH said that she felt penned in, and gave him a hug to get him out of her house. She then went to her neighbour to tell her what had happened. She said that she was very shaken up. About two hours later, she received a text from the appellant which said "it was wonderful to meet u. Already missing the communication and connection." She sent a text message to the appellant saying that she thought that he was depressed and should seek professional help and asking that he not contact her again. She later rang the HCCC and after receiving advice reported the matter to her then general practitioner who, in turn, made a complaint about the appellant's conduct 4. A reproduction of the text messages which confirms the above account is contained within the documentary evidence. 5. A statement made by the neighbour, signed on 5 March 2016, confirmed that she was with KH when she called the appellant. She saw him outside the home of KH and he said that he was looking for her. She said that later that day KH had come to her home distressed and upset and told her about her visit from the appellant. She saw the text messages on her phone. 6. In dialogue with the delegates of the Council, the appellant denied that he had suggested to KH that he engage in an extra marital affair with her. Otherwise, he confirmed that he had attended at her home. 7. In a statement given to a HCCC investigator, the appellant said that he could not recollect who initiated the discussion about him attending the home of KH. He confirmed however that his wife had returned from Pakistan on 9 August 2015, so that his visit was 8 days after her return. He was upset with his wife because she had told her mother about his text messages with the patients. The appellant denied that he suggested an extra marital affair with KH, and said that he had never contemplated any sexual relationship outside his marriage. Patient H 1. This patient gave a statement to a police officer arising out of an examination conducted on Sunday, 11 January 2015. The appellant said that he wanted to examine her and asked her to remove her top and bra. She said that whilst lying on her back on the examination bed, the appellant commenced a normal breast examination of the left breast for about a minute. She said that he: ..then placed his right hand palm down on my sternum between my breasts and rubbed it up and down. He placed both hands on my breasts taking one in each. He was squeezing them repeatedly using a firm gesture but not excessive pressure to cause pain. He then started squeezing my nipples with his fingers one of the time alternating hands with each squeeze. I started feeling a bit uncomfortable but believed he was doing a proper exam. 1. There was then a discussion about whether the appellant was making her feel uncomfortable. He then started rubbing her breasts again and moved his hand under her breasts and across her stomach. She said that he then asked whether he could kiss her and she replied no. After she was dressed the appellant apologised to her and she left. She then made a statement to the police. 2. Police records indicate that this patient had also sought treatment for a breast condition from other general practitioners, which she had not mentioned to the investigating police officers. It was determined that further police investigations would not be pursued, because the patient had contacted the press, and there were other inconsistencies in her statement. 3. In dialogue with the delegates of the Council, the appellant said that he was aware that this patient was suffering from mastitis and lumps in the breast and that she was consulting other doctors for this condition. He vehemently denied that he had ever examined her breasts, and denied the incident as described by her in her statement. 4. In my opinion, it would be unsafe to have any regard to the circumstances of this patient for the purpose of these proceedings, and I shall not do so. Patient HF 1. Patient HF made a statement to the HCCC signed 10 March 2016. At that stage, she was 26 years old. She had consulted the appellant around November 2014 and saw him on a number of occasions suffering from anxiety and depression. The appellant prescribed antidepressants and she was happy with her relationship with him. In January 2015, he wrote his mobile phone number on the back of his card and told her that she could ring him anytime if she needed to talk to him. In June 2015, she saw the appellant for a STD test. About a week later she received a text message asking how she was. She did not recognise the telephone number, and thinking the text had been sent by a friend replied that she was fine. She received a further text saying something about looking at her records and she sent a text asking whether her results were okay. He responded that they were good. The next day she received another text from the appellant asking how things were going. Over the next few weeks she received more frequent text messages from the appellant trying to engage her in conversation. She said that she was "very vulnerable" at that time as she was going through "a bad time personally." Although she was unable to recall the exact messages and the dates received, she recollects receiving messages asking whether she had friends that she could talk to and whether she knew what it was like to be alone. At first she responded to the messages "out of politeness, and because I am a friendly person." But she then found some of the messages strange and she felt uncomfortable and guilty that she had responded in the first place. He also asked her whether she had a boyfriend, where she lived and how old she was. One evening she received a text from the appellant asking her whether she would like to come over to his house for coffee. She replied in the negative. Notwithstanding this, she received further messages to the effect that he was "in trouble" and was having family problems. The appellant telephoned her twice but she did not answer the phone. One evening when she received a message from the respondent, her partner at the time was with her. He was next to her when he called the appellant and told him not to make contact with her again. She then sent a text message to him to stop contacting her and blocked his number from her phone. She thought that his messages ended sometime in June or July 2015. 2. HF said: I have been very disturbed by (the appellant's) contact. I had confided a lot of things about myself and my problems to him during consultations with him. I had been having a terrible 6 months and he knew all my problems. 1. She has had no further contact from him. 2. Records of text communications between the appellant and HF are in evidence. During the period 20 June 2015 to 29 July 2015 he sent her approximately 125 text messages. These ranged from inquiries as to how she was, suggestions that she provide advice and counselling for him, suggested treatment of a broken toe, suggestions that they meet for coffee and otherwise get together, personal enquiries as to where she lived, whether she had a boyfriend and her age. The last text message is from HF to the appellant in which she makes it clear that his text messages were inappropriate and that they were starting to concern her and making her feel uncomfortable. 3. In his dialogue with the delegates of the Council, the appellant conceded that HF had a history of depression, had taken an overdose of paracetamol after termination of a pregnancy and had therefore been suicidal. He had reached out to her in an endeavour to widen his social circle. He was asked why he had chosen this particular vulnerable person to burden with his personal life. He acknowledged that what he had done was wrong and that he had approached patients for his personal need who had been through emotional stress and would be better able to understand what he had been through. He was unable to explain why he had asked questions of a personal nature of this patient. He denied that he was seeking any deeper relationship, unlike with HT. He found HF friendly. 4. The appellant acknowledged that it was he who had initiated the text communications with HF. Patient JR 1. This patient made a statement to the HCCC which she signed on 10 March 2016. She was 40 years old. She first consulted the appellant in August or September 2013. He gave her his email address in case she needed to make contact for a chat. She said that at that time she was "very low and in a dark place." She found the appellant's care professional and supportive. She did not consult the appellant in 2014 or 2015. 2. In about July 2015, the appellant telephoned her and asked whether he could talk to her. He asked to come to her house, but she arranged to meet in a restaurant. She said that she talked to the appellant who was having personal problems and needed a friend to talk to about them. They exchanged text messages and phone calls and met over the next few months either at his house or hers. The appellant told her that his wife had gone overseas with his son. The appellant told her when his wife had returned to Australia, and that his wife was aware that she had been giving him support. He kept in contact with her and came to see her the day after his registration had been suspended, sometime in October 2015. She said that the appellant had tried to kiss her a number of times and that his text messages indicated that he wanted more than friendship. She said that she would remain as a friend, but nothing more. 3. At one stage when the appellant had come to her home a friend had been present. A few weeks later the appellant phoned her and asked for the friend's telephone number so he could make contact. JR said that she found this "really weird", and terminated her relationship with him. 4. This account given by JR is corroborated by her text messages with the appellant. Records of those text messages indicate that, between the period 9 July 2015 and 23 September 2015, the appellant had sent 491 text messages to her and she had sent 465 text messages to him. The bulk of those messages involve a running commentary by him concerning his family circumstances, and seeking friendship and understanding from JR. There are several messages in which he enquired whether she loved him. 5. The appellant told the HCCC investigator that he had approached this former patient asking her whether she would be willing to provide him with emotional support because he was going through a difficult time in his life. He remembered JR as an intelligent person who had been suffering from depression and alcohol issues but who was cured. He agreed that some of the messages that he had sent her had a flirtatious flavour, particularly when asking her whether she could possibly love him and "what if I fall in love with you?" He said he was not proud of this. Patient AB 1. This patient was born on 28 April 1978. She first consulted the appellant on 16 July 2014 when a mental health treatment plan was completed. She was suffering from post-traumatic stress syndrome after her "ex" committed suicide. The appellant initiated contact with her seeking emotional support. He conceded in an interview with the HCCC that at the time that he did so she was and would remain his patient. 2. There is a record of many text messages between AB and the appellant commencing 19 July 2015 and ending on 9 September 2015. In these messages, the appellant indicates that his personal circumstances are difficult and that he is looking for support. They make arrangements to meet on 20 July 2015. There is an indication that they met on other occasions. On 27 July the appellant told her that "you are an amazing person, honest yet caring, practical yet an idealist. Attractive yet carefree. Deep yet easy to talk to and connected with. I am just being honest." On 30 July, the appellant sent a text saying "The truth is that there is no one who cares about me or love me or is sincere to me." There are further text messages indicating dissatisfaction with his wife upon her return to Australia on 9 August, and how pleased he was being reunited with his son. 3. The appellant said that he considered his relationship with AB as being one of friendship. He said that after a while he stopped texting her, and was no longer friends with her. Patient IS 1. This patient was born on 19 February 1972. The appellant told the HCCC that her daughter was primarily his patient and he met her in that context. She had also consulted him. He had given her his mobile telephone number. 2. The appellant said that IS was a patient who was: interested in me… Initially, I responded not the way I should, I did not discourage her, but afterwards I bluntly discouraged her because she did not have any mental health issues…..so I had no hesitation in sending her this text message that I'm sorry, I can't do it. 1. He said he had one or two telephone calls with her but did not meet her outside of the clinic. 2. There is a record of a number of text messages between the appellant and this patient commencing 5 September and finishing 23 September 2015. The first six text messages are from IS to the appellant in which she indicates that her husband has been abusive, and she is anxious to get out of her marriage. On 21 September, IS asks the appellant whether he has stopped making contact with her. He replied the same day that he was waiting after her last message. IS next said that she was missing the appellant "very much" and that she was "free now." Later she told him that she was free and asked whether he could come to her house for 30 minutes "so we can talk." He said that he could not. She was upset that he had declined saying that he had a hectic day the following day. On 23 September, IS asked the appellant whether he would like to come to her place for dinner. There is no indication of any reply. 3. There does not appear to be any evidence that contact with this patient was initiated by the appellant. Whilst there is evidence of contact between the appellant and IS, it is of limited duration. Patient RP 1. There are many text communications between this patient and the appellant commencing on 28 September 2014 and finishing on 7 September 2015. It is clear from the initial messages that RP wished to form a relationship with the appellant. She offered to see another doctor, and on 7 October says "Just remember I love you and I am telling you all this because I love you." On 18 November she told the appellant that she was confused, that she missed him and wanted to see him and she did not understand what was happening. On 9 December the appellant sent her a text saying "I love you too." The communications continued along these lines, that is, RP proclaiming her love for the appellant and that she wishes to be with him, with limited response from the appellant. On 25 June, the appellant sent a text message "I love u". On 4 July, RP indicated that she was taking certain medication, but that she was scared to do so, although she wanted to get better so that she could see him more often. On 20 July, RP said: ..it feels like you are ignoring me even though you are denying that and that makes me feel like I have been taken advantage of. You knew what I was going through and how weak I was and you took that for granted when your wife left you and you needed someone so you came to me. I am not sure whether all this is true but currently that's how I feel. If that's the case than that's so unhuman and so unprofessional. I hope I am wrong but if I am right I just want you to know that you really messed up with my life and my feelings. I trusted you and I came to see you for help. 1. It does not appear that the appellant responded to this text message. On 22 July, there is a text exchange including a message from the appellant that he had just come to bed. RP said that she could not sleep after talking to the appellant because she was "too excited". He asked her what she was wearing. After a number of texts, the appellant sent a message at 5.02AM saying "good night sweet dreams." Later that morning, he told her that he missed her. There follows a number of text exchanges on 23 July in which RP is enquiring about the status of their relationship and in which the appellant explains that he needs to meet with her to give her some explanation. There are text messages concerning his wife and son. On 4 August, RP indicates that she loves the appellant and he responded "I live (sic) you more." On 6 August RP sent the appellant a text indicating that she wanted to stop taking pills. She was not seeing much improvement and: ..in fact I am having many side-effects and sometimes they make my anxiety worse. I don't know what to do. I am seeing another doctor on Friday. Don't know what to do till then. I was going to see you today if you haven't left just to discuss about the pills. 1. That text was sent at 8.26AM. The appellant responded at 8.41AM indicating that he could meet her the next day in the context of a social meeting. RP had said that "this relationship it's starting to have an impact on my mental state and unfortunately not in a good way…." On 6 August RP sent a text saying that if his wife was leaving that she was ready to take over but only on condition that they kept his son. Later that day she suggested that they meet for lunch "to get to know each other better and talk about anything and we don't have to rush or hide." The appellant responded "Deal". Later that day, RP sent a text saying that she had got her period twice in one month asking whether this was from the pills or maybe stress. The appellant responded "yes." There were further text messages that day and the appellant responded: I am just preparing myself mentally to see you professionally tomorrow. I will speak to you after I have seen you tomorrow. Just want you to know that I am not ignoring you. I can't ignore you and that all the more reason for me not to talk to you when I've to see you in professional capacity. I hope you'd understand. I'm just trying to be strong here. 1. There followed a series of texts from RP in which she said that she was on her own at home, and had not been left on her own for almost 3 months, she asked the appellant not to cause her any more pain and: And we had an affair and I didn't want to express any feelings because I wasn't sure what I was feeling. The more we were communicating the more my feelings for you grew and I felt a very strong connection and I became sure that I am in love with you. Don't ask me how or why but I am really in love with you. 1. This was followed by a text message from RP indicating that she loved the appellant "so much and I can't wait to see you today and I am sure we will be fine. I am going to the playgroup first and then we'll see you. Haven't slept much, too excited." He responded with what I understand to be a "like" symbol. On 9 August, commencing at 1:53AM, RP sent another series of text messages to the appellant in which she said that it seemed that only she was interested in the relationship, that she sensed that he had been telling her for a long time to "get lost" and that she could not understand why he was not responding to "a young, good-looking, sexy woman is telling you that she loves you, she is interested in you and she wants to be intimate with you…" RP sent many more text messages that day in which she extols the appellant for the way in which he liked her, spoke of the strong connection between them and said "And at the end…. Sex is fantastic…… What else do we want?" The appellant responded at 6:28AM saying that they would talk about the matter when they would next meet "from whenever it is". After five more text messages from RP wishing him luck in his forthcoming examination and informing him of her love for him, the appellant responded "thanks" with a heart symbol. RP sent six further text messages that day saying that she imagined living with the appellant, that his son was her adopted child, that she was feeling low because she had not received a response and that she wanted to break up because "this is a real torture." The appellant did not respond that day. RP sent five text messages on 13 August, 11 text messages on 14 August, four text messages on 22 August, and 21 text messages on 23 August before the appellant responded that day indicating that he might be the wrong person for her, that he was stressed, that she was very impatient, and that he thought it would be better if they did not contact each other for some time. RP responded to this with a series of text messages. Tellingly, on 23 August at 12:23AM she said: I came to you about a year ago as a patient. At the beginning I only saw you as a doctor. I had health problems and I came to you as a patient. You never saw me just as a patient. You kept calling me back so you can see me more. Then we started feeling a connection between us. You called me, we met, we hugged then kissed. We kept communicating and seeing each other. We were saying to each other how much we love each other and we care about each other. Then your family came back and we were communicing (sic) less. I changed doctors so you don't get in trouble. Then we kept communicing. We couldn't meet because you were busy with work and your family. At the beginning I was fine then I became a bit impatient. I kept messaging you every day so I feel closer to you. You sometimes were busy and couldn't reply but sometimes you just ignored me. Where did we go wrong?...... now when I think a bit dipper (sic) about everything I realise that you really used me. You used my vulnerability. You used your knowledge and your position. You use me for your own benefit. You wanted to feel wanted and loved and you manipulated with me. You did, didn't you? How are you feeling now? Are you feeling better? Are you feeling accomplished… You know I am so weak, this is not good for my mental state, I am not well anyway and this is making everything worse. 1. RP persisted with further text messages begging for a response and begging for forgiveness. On 24 August, the appellant sent RP a text message saying that he could not meet her that day and would need to reschedule and asked whether she would be free the next day. She responded that she had too much work the next day. Subsequently, on 27 August and twice on 28 August, the appellant sent text messages to RP telling her that he loved her. Following further text communications, RP sent a text to the appellant on 3 September saying: ..when I first started seeing you in your office I thought you were attractive and I liked you as a doctor and as a person at the same time but I wasn't going to show you or tell you that because I thought it was not appropriate. However, when you did the first step I was very surprised but also very happy at the same time and I didn't mean to have anything with you but just an affair. 1. The appellant replied "not today.. Patience." 2. There are many more text messages between RP and the appellant, most of which originate from her, the last of which is dated 7 September 2015. They are in the same vein. RP continues to protest her love for the appellant, expresses concern that he is not responding, they arrange to meet, but whatever is happening it seems to her that it is all one-sided to the extent that whilst he professes to love her he is not prepared to commit to taking any steps to satisfy her desire to spend more time with him. 3. There must be countless circumstances where married persons meet someone else and engage in "affairs", and there must be countless circumstances where one or perhaps both parties finish the relationship in an unhappy state. This is not unusual in our modern society. However, the circumstances are entirely different where one of the parties is a vulnerable person suffering from mental illness and is the patient of the other. Doctor-patient boundaries are set for good reason. The unhappy circumstances which are to be found in the relationship of RP with the appellant as revealed in this sorry train of text messages is a perfect example of why those boundaries exist and why they must never be breached. The existence of these text messages and their contents cannot be denied, even if the appellant were to attempt to put some gloss on the words used. It is incontrovertible that RP was a vulnerable patient, that the appellant as a medical practitioner should have realised this and that in breaching the professional boundary he created an adverse therapeutic result. 4. The appellant discussed the text messages to and from RP with investigators from the HCCC in the presence of his solicitor. He acknowledged that he first met her as a patient, and that he was treating her for anxiety and emotional problems. He said that she initiated contact outside the doctor-patient relationship with him, he denied ever engaging in sexual activity with her and denied kissing her. Furthermore, he said that he had never gone to her house, nor had she ever gone to his. He said that they had had two or three meetings at a park. He said that when he had told her in text messages that he loved her he did not intend to convey the meaning that he was in love with her. When taken to passages from the text messages which were indicative of an intimate relationship, the appellant proffered explanations as to why they had a contrary meaning. For example, when she referred to the sex as being "fantastic" he said that she was talking about sexual pleasure generally. The appellant denied encouraging RP in her relationship with him although he conceded that he was not discouraging her. He said that he did not respond to a lot of her text messages because he wanted to end the relationship. Finally, the appellant admitted the content of the text messages but said that the dates were incorrect. He said he had sent text messages to her between May and August 2015 only. The medical evidence 1. By letter of 9 November 2015, the appellant's treating general practitioner, Dr Catherine Lau referred him to a psychiatrist, Dr Pek Ang. The referral letter referred to the appellant as having a history of depression which was triggered by his mother's death in 1990 and for which she received treatment. She said that the depression: ..became exacerbated while in Australia due to social isolation, work stress along with workplace bullying and complaints made via HCC (sic) regarding inappropriate communications with his patients. Subsequently his medical licenses have been suspended awaiting his hearing… 1. Dr Ang provided a report to Dr Lau dated 18 November 2015. She said that the appellant presented for: …assessment and treatment of his depression and alcohol abuse in the context of work stressors. There is also medico-legal issues relating to allegations of improper Medicare claims and boundary transgressions with a couple of his patients. 1. She noted that the appellant's registration had been suspended. 2. The report then set out a history referring to the impact on the appellant and his wife of moving to Australia and commencing practising in a local practice. There was reference to "bullying" from a senior receptionist at the practice and stress being encountered by the appellant which affected his relationship with his wife. After referring to the separation from his wife between June and August 2015 when she was in Pakistan with their son, Dr Ang noted that the appellant was: ..terribly lonely and thought his marriage was over. During this time he turned to alcohol for solace. It was during this period he started reaching out to people he knew. He did so with his employer, a psychologist who worked at the practice, another colleague at another practice and then a number of patients he felt a connection with. He sent text messages asking their permission for him to talk to them. 1. Dr Ang then noted that the consequences of the investigations and the suspension of his registration had further contributed to his stress and depression but that on medication his mood had improved considerably and was approaching remission. 2. Dr Ang diagnosed the appellant from suffering from a major depressive disorder which was recurrent but currently in early remission. Dr Ang thought that the resolution of the complaints with the HCCC and Medicare would significantly help his mood. "He will need to continue on his medication but also have ongoing psychological support through his GP, myself and when indicated a psychologist." Dr Ang thought that …to make this unlikely from happening again, it will be important for (the appellant) to abstain from alcohol and maintain a healthy lifestyle including exercise and social correctness. Supervision from an experienced GP will help monitor his boundaries. 1. She planned to review him again shortly to ensure that his improvement continued. 2. Dr Ang issued a further report dated 2 May 2016. In this report, she referred to the history as outlined in her early report. Dr Ang noted that the appellant: …expresses regret regarding his boundary transgressions. This occurred in the context of marital disharmony, isolation from his family and social isolation from friends at a time when he developed a major depressive episode. At that time (the appellant) tried to conceal his depression and started drinking alcohol, which further exacerbated his problems. His boundary violations were a product of his mental illness, alcohol abuse, social isolation and impaired judgement at the time. 1. Dr Ang referred to the appellant's medication, psychological treatment which he had undertaken and his improved relationship with his wife. She thought that he was in remission from depression and that the factors contributing to his boundary violations had been resolved. She suggested that the appellant receive supervision from an experienced GP and that she considered that he was able to practice medicine. "In my opinion it is highly unlikely that (the appellant) would cross any professional boundaries again provided he remains in remission from depression, alcohol abuse and any relationship problems." She suggested that he continue with regular supervision, regular visits to his GP, psychologist and her and that he be further reviewed in 6 to 12 months. Dr Ang concluded that "the best predictor of success in these situations is when the individual has a high level of insight, sincere remorse and a means to change the circumstances that led to the impairment." 2. Taken at face level, the opinion of Dr Ang is based in part on her understanding of the appellant's "boundary transgressions with a couple of patients." This history is coloured by her understanding that the appellant had made contact with "…. a number of patients he felt a connection with. He sent text messages asking their permission for him to talk to them." This impression of the appellant's conduct which must be taken as informing the basis of Dr Ang's opinion is far from the true situation as revealed in the extracts from the text messages and the information furnished by the appellant to the delegates and the HCCC investigators. Either the appellant has mislead Dr Ang, or her history recording is lacking. The clear situation is that the appellant initiated contact with a number of vulnerable female patients concurrently, and imposed himself and his personal difficulties upon them. There is explicit reference in his text messages to physical and sexual contact, and to a long lasting relationship. Some of the patients were extremely young, and all were female and vulnerable by reason of their own medical conditions. There is no consideration in the report of Dr Ang about these matters, and whether they are relevant to her diagnosis, treatment and prognosis. In these circumstances, it would be unsafe to rely on the opinion of Dr Ang. I do not make these observations of Dr Ang's report in a sense which is critical of her. Given that the appellant had a solicitor representing him, the usual protocol in matters of this kind would involve the solicitor in directing the treating specialist to any relevant background information, and inviting the expression of an opinion covering those matters identified as relevant to the proceedings. 3. The appellant has also made available a report from a treating psychologist, Sally Holmes dated 7 May 2016. Ms Holmes noted the appellant's history, including depression prior to coming to Australia. She noted that the appellant was no longer depressed by the manner in which he dealt with the rejection of his review of his suspension, his improved relationship with his wife and that he has appropriate coping mechanisms to manage stress. Tellingly, the only reference to the circumstances which are at the heart of these proceedings is a note that the appellant had undertaken an ethics course: …and accepts he crossed boundaries when seeking support from patients. This man is aware of the need to create and maintain support networks and he is actively pursuing this in appropriate areas. It is my opinion he would not cross professional boundaries in the future. 1. Furthermore, the appellant was also aware of the need to maintain support contacts for professional supervision and mentoring. 2. This report contains no relevant details of the nature and extent of the appellant's behaviour in crossing professional boundaries. It is difficult to accept Ms Holmes' diagnosis and her assessment of recovery, and the likelihood of any recurrence in the absence of any professed understanding of the appellant's conduct. The report contains the same deficiencies as I identified in Dr Ang's report. The respondent's expert evidence 1. The respondent retained Drs SC Howle and Anthony Samuels to provide expert opinions concerning the conduct of the appellant. 2. Dr Howle is a general practitioner who was been in practice for 41 years in Tamworth. He has had considerable experience as a VMO, and in supervising GP registrars as well as acting as a GP surveyor. Furthermore, he has assisted the Medical Council as an expert over the last 15 years. Dr Howle was provided with extensive documentation including statements made by a number of patients, the transcript of the interview given by the appellant with the HCCC investigators, the reasons for decision of the respondent and other documentation provided by the appellant including his affidavit of 18 May 2016 tendered in these proceedings. 3. Dr Howle had access to material concerning patient boundary issues which he relied upon in furnishing his opinion. He noted the following matters of concern, with respect to the appellant's interaction with the patients the subject of these proceedings, namely: 1. The appellant must have accessed patient records to obtain phone numbers in order to approach the patients. 2. The appellant saw several of the patients outside the surgery. 3. The appellant had conversations and text messages with these patients that were of a personal nature and unrelated to his treatment of them. 4. Statements by several of the patients suggest possible psychological damage to them. 5. Boundary violations included inappropriate touching as well as creating unhealthy dependency, breach of trust, and interference in personal relationships: There were warning signs (within the text messages) for anyone observing Dr Khan's texting behaviour, such as treating the patient as a friend, socialising with a patient, direct intervention in a patient's life and excessive self-disclosures. 1. The appellant accepted that he was selfish and seeking emotional support. 2. Within the period June to August 2015, there was evidence which pointed to boundary violation outside the therapeutic relationship between doctor and patient 3. The relationship with at least one patient, RP: …seems to have been interpreted by her as him… wishing to engage in a very personal, perhaps intimate, relationship even to the extent of her suggesting that he leave his wife for her. 1. Lastly: "…..The patient cohort involved (all female, or younger than Dr Kahn, or with psychological/psychiatric problems) is particularly disturbing. He has used a very vulnerable group to provide himself with "companionship". He has sought out 8 different women to this end, almost simultaneously, over a short time period." 1. Dr Howle noted that the appellant presented himself as an experienced GP with a medical career in several countries and with an extensive list of postgraduate education. He would expect the appellant to conduct his medical practice in a manner consistent with that of an experienced GP. Dr Howle noted that it was common to have interactions with patients outside the confines of the doctor-patient relationship and that it was necessary for a doctor to be careful to avoid clinical issues when making contact outside the therapeutic relationship. He said that "the real issue is the responsibility of the doctor not to use his position of power and influence as a treating doctor in this non-medical environment." 2. Dr Howle was concerned in examining the conduct of the appellant, that this might be interpreted: as predatory in nature indicating an underlying personality flaw exposed by a combination of stressors. This adds a concern that such behaviour could recur with future life stressors which are likely to come up as he tries to pursue his examinations, for example. 1. He noted that the appellant had continued contact with some of the patients for some time after his wife had returned and even after his initial suspension. 2. In determining whether the appellant could safely return to the practice of medicine with strict conditions, Dr Howle said that much depended upon whether the appellant was likely to be truthful and forthcoming in the future. He was unsure that this was likely to occur. By way of example, Dr Howle had regard to the clinical records of the treatment of the appellant at the medical centre at which he was engaged between 11 November 2013 until 9 July 2015. During this time, he was regularly prescribed an antidepressant drug and other medication. He had been prescribed sufficient medication to have lasted into the period when he said that he commenced to be depressed after his wife travelled to Pakistan. Dr Howle commented: It is unclear whether Dr Khan took the medication as prescribed, took an excessive amount, or none at all, as this is not mentioned in the letters from his current GP nor the psychiatrist. However, he had the provision to restart/continue the medication if he felt the depression was returning or worsening. He also had regular access to the GPs who prescribe these drugs to discuss his emotional state. This goes to his truthfulness and perhaps lack of insight into a condition which had been present on and off for years since the death of his mother. It is also interesting that in all those GP consultations (15 – 17 in less than 2 years) there is no mention by his treating doctors of the need for referral to a psychologist or psychiatrist, only to continue to prescribe the drugs. This suggests the Dr Khan was telling the doctors that his condition was very stable (? Truth), even in mid-2015, or there was a lack of insight/interest by the prescribers. 1. Dr Anthony Samuels provided a report dated 19 May 2016. Dr Samuels is an experienced psychiatrist who has provided a great deal of assistance to the Medical Council over many years and has undoubted qualifications. He had been given extensive documentation which is outlined in his report, including transcript of the interview given by the appellant to HCCC investigators, the reasons for decision of the delegates of the Council, text messages with a number of the patients, statements given by a number of patients, medical records of the patients, reports of the appellant's treating health practitioners, and explanations provided by the appellant in various forms. 2. The appellant declined to be examined and interviewed by Dr Samuels. 3. Even though he had not personally examined the appellant, Dr Samuels expressed some concern about the diagnosis given by Dr Ang of a major depressive disorder. He thought it more likely that the appellant was suffering from a less severe form of depression such as an adjustment disorder. He thought that the natural history of a major depressive disorder even with adequate treatment was generally much longer than that encountered by the appellant. He said: It is worth noting that for someone who was allegedly suffering from severe major depression Dr Khan's ability and energy to make contact with so many women simultaneously and to so determinedly seek intimate relationships with them; also raises doubts about the level and severity of his depression. 1. Dr Samuels expressed concern about the vulnerability the appellant said was caused by the absence of his wife. This was because, on the evidence, the appellant continued to pursue some of these relationships after his wife returned. He said: ..it would be important to have a better idea of why she left the relationship in the first place and her motivations for returning in order to understand the quality of this relationship and its protective benefits if any. Her affidavit suggests a strong sense of guilt and a perception that she is being "punished" for leaving him and not wanting to return. 1. Dr Samuels thought that there was a likelihood of the appellant exhibiting quite significant antisocial personality features. This arose because the appellant seemed to have a repetitive, consistent and seemingly quite well rehearsed pattern of behaviour with the patients and he had selectively targeted vulnerable patients with histories of relationship difficulties, substance abuse, depression, anxiety and personality disorder. He thought that this suggested not only a misuse of whatever training the appellant had in the area of mental health but also a selective targeting of vulnerable young women. Dr Samuels also relied on the fact that the appellant immediately made contact with JR after ascertaining that he had been suspended. 2. Dr Samuels thought that there were suggestions of "quite considerable narcissism" particularly in the behaviour exhibited by the appellant when he came to the home of KH. 3. Even if the appellant were to enter into long-term psychological treatment, Dr Samuels expressed concern about his capacity to "behave honestly, ethically and appropriately in the context of his professional practice." 4. Overall, Dr Samuels was not convinced that the appellant now had genuine insight into the inappropriate nature of his conduct which gave rise to his suspension from practice. There was a clear pattern of predatory behaviour with selective targeting of several extremely vulnerable young women. He agreed that the appellant tried to paint himself as a victim with these patients knowing that they were "damaged" women. Furthermore, he was unimpressed with the manner in which the appellant endeavoured to rationalise his use of the word "love" when dealing with some of the patients, that he had used information gained in the course of consultations to exploit the vulnerabilities of the patients (especially in connection with the boyfriend of HT), and there was clear evidence that a number of the patients felt scared and intimidated. In these circumstances, he thought that the risk of repeating this type of behaviour was "extremely high." 5. Dr Samuels was concerned that it would be impossible to restrict the practice of the appellant if the suspension was lifted because much of his predatory behaviour occurred outside the consulting room. Additionally, Dr Samuels said: It is virtually impossible to ensure the Dr Khan does not misuse such information to exploit vulnerable patients outside the context of the practice setting. It would be impossible for any professional body to ensure that he was not communicating with patients, using a range of methods and devices as he already has and arranging to meet them for sexual or other purposes. 1. Furthermore, it would be difficult to restrict the appellant from seeing patients who had mental health problems, because "almost all patients often seem to have a mixture of both physical and psychological problems." Even restricting the appellant's practice to seeing male patients only could give rise to concerns about misusing information such as a male patient informing him that he was having marital problems. 2. Finally, Dr Samuels was not impressed that the appellant had shown genuine remorse for his conduct. Not only did he attend on JR the day after his suspension, but he asked her for the contact details of her friend upon realising that JR was not willing to engage in a sexual relationship with him. The appellant's response to the specific allegations 1. The appellant acknowledged that his engagement with the patients constituted a "fundamental breach of the trust of patients in their doctor to seek and engage in relationships outside of the professional relationship." He accepted that he engaged in communication with the patients, HT, HF, KH, RP, JR, AB and IS which consisted of text messages and in some instance phone calls of a personal nature which were in breach of therapeutic boundaries. He denied that he had engaged in any inappropriate communication with H. He denied that he engaged in communication with HT, HF, KH, RP, JR, AB, AB and IS which was of a sexual nature except for the text to HT on 17 July, 2015. 2. The appellant also accepted that his conduct "was selfish and outside of the therapeutic relationship. I was looking for emotional support however I conscientiously acknowledge that it could not be an adequate explanation." He asserted that the text messages occurred during the timeframe May to August 2015 only. 3. The appellant asserted that he had never be involved in any physical, sexual or intimate relationship with any of the eight patients or with any patient in his entire professional career. 4. Finally, relevantly, he denied conducting any physical examination of either HT or H inappropriately or without clinical indication. Other evidentiary material 1. There was filed on behalf of the appellant a number of affidavits and statements made by patients, health professionals with whom he had worked and staff of the medical centre where he had been engaged. All of this material praised the appellant in glowing terms, but not one of the deponents or makers of the statements said that they were aware of the nature and extent of the conduct of the appellant which is the subject of these proceedings. The nature of sec 150 proceedings 1. In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115, the Tribunal summarised the nature of section 150 proceedings in the following terms, which I adopt and will apply as appropriate to these proceedings. At [56] the Tribunal said: We make the following observations concerning the underlying principles which we perceive to apply in the circumstances of these proceedings: (1) The exercise of the power to suspend will have grave consequences for a medical practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. The grave consequences are accommodated within the need to ensure that we are satisfied to the Briginshaw standard that we can safely make the conclusions necessary to make a determination that section 150 is enlivened including a consideration of the nature and status of the material upon which any such conclusions are made. (2) The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that those exercising it need not embark upon a detailed enquiry, and may base their reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (See the cases cited in R and Medical Board of Australia [2013] WASAT 28 at [24] and following). (3) Section 150(6) arguably requires that notice be given to the practitioner before any order of suspension, or any other order under that section has been made. The practitioner will always have an opportunity of addressing the decision-makers prior to any determination being made. (4) Nevertheless, the "draconian" nature of the power is such that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination and consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach" (R and Medical Board at [28]). (5) It will also require the formation of a "reasonable belief... That because of the health practitioner's conduct (or) performance...., the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety" (R v Medical Board at [28]), or to do so otherwise in the public interest. This quotation needs to be qualified to the extent that "necessary" is not the test contained in the Act. (6) Any conclusions which are made in the course of determining that section 150 is enlivened are made for the purpose only of that determination, by reason of the ability to rely on information and material which may not otherwise be strictly admissible in administrative or judicial proceedings. (7) It is also necessary to consider the nature of the section 150 proceedings from which this appeal is brought. The provisions of section 150 have been set out above. We make the following observations about these provisions: (a) There are two requirements to be satisfied when determining whether the section is enlivened, namely the protection of the health or safety of any person or persons, and the public interest. (b) These requirements are expressed to be in the alternative. (c) The manner in which the introductory words of subsection (1) are expressed arguably creates some difficulty in interpretation, or perhaps some ambiguity. This is caused by the use of the word "otherwise" and the context in which it appears. On one view, it is possible to argue that the health or safety of a person or persons is "otherwise in the public interest", in the sense that health or safety are matters within the public interest. That is, public health and safety are within public interest, but in a different manner, or in other respects. The other view is that health or safety of persons is in the public interest in circumstances which are apart from or in a different or contrasting way from the public interest so that one does not include the other. The difference, in general terms, is between health and safety being subsumed generally within public interest, or health and safety being exclusive of public interest. If the former is correct, then arguably, it would not matter if either the delegates or this Tribunal determines the matter on either basis. If the latter is correct, then a decision based on public interest alone may not have been validly made if, in reality, the findings should more properly had been directed to the protection of the health or safety of any person or persons. It does not appear that this matter has arisen for consideration in any other reported proceedings. The respondent submitted that the provision operated so that "otherwise" would mean "in some other way". Therefore, the health and safety element is subsumed within the public interest. We do not understand the appellant to have made a contrary submission. As this approach to construction appears to us to reflect the overall intention of the section, we shall apply it for the purpose of these proceedings. (d) In any event, if either of the health or safety or public interest ground is made out, then it is mandatory that the Council either suspend or impose practice conditions, subject to the Council being satisfied that it is appropriate to do so for the stated reasons. (e) By subsection (4), action may be taken by the Council under section 150 whether or not a complaint has been made or referred to the Council about the medical practitioner. Accordingly, if information comes to the attention of the Council in whatever manner, the provisions of section 150 are enlivened. Of course, having regard to the nature and extent of the powers under section 150 it is a trite observation that the Council must observe the strictures imposed by section 150 (1), and must do so in a responsible and appropriate manner. It would be a rare situation if the Council determined to take action to suspend or otherwise impose practice conditions without having first notified the practitioner and given him or her some opportunity to explain his or her circumstances. Of course, one might envisage urgent situations arising where there might be no time or opportunity to notify the practitioner. The urgency and apparent gravity of the situation may dictate the nature and extent of the information relied upon in dealing with a matter. (f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits. (g) Section 150 empowers the Council to either suspend or impose conditions on the registration of the medical practitioner if circumstances warrant either of these steps. These powers are also available in circumstances where complaints have been initiated against a medical practitioner under the Act. The exercise of those powers by the Medical Tribunal is conditional upon findings of unsatisfactory professional conduct or professional misconduct. The process which we are undertaking is removed from any consideration of whether the medical practitioner might, at some stage, be found guilty of either unsatisfactory professional conduct or professional misconduct on the basis of some complaint which to date has not been initiated. We agree with the observations of Beech-Jones J in Berger previously set out, and we adopt the following from his Honour's judgement at [17] – [18]: .... to attempt at this point to predict what the Tribunal might decide at some indefinite point in the future risks distracting the Court from ascertaining what presently is necessary in the public interest. No doubt there are cases where professional misconduct is demonstrated against a solicitor but the Tribunal determines not to remove them from the roll or completely prevent them from practising because aspects of their conduct since the complaint may demonstrate that that step is not warranted. There is very little scope to consider such possibilities in this type of application.... In my view the appropriate approach is one that requires that the Law Society at first instance, and this Court on appeal, to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended. (h) There is very little consideration within the provisions of the Act as to the manner in which the Council or its delegates are to conduct themselves in determining whether the necessary preconditions to the use of the available powers under section 150 are satisfied. For present purposes, it is sufficient that we observe that the principles of natural justice, including procedural fairness, should apply to the extent reasonably necessary. 1. Notwithstanding the differential approach to the presentation and consideration of the relevant evidence which is described in the above extract, I should make it clear that I am proceeding to consider the merits of this appeal on the basis that both parties were fully prepared to proceed with the hearing to commence on 22 June 2016, and all relevant documentation upon which the parties wished to rely including affidavits and witness statements had been filed. Of course, the parties would have been permitted during the course of the substantive hearing of the appeal to require witnesses including the appellant to be made available for cross-examination. Whether and to what extent the position of either party would have improved after cross-examination by opposing counsel is a matter of conjecture. Notwithstanding this possibility, I proceed on the prima facie basis that the parties have put forward all of the material upon which they wished to rely, and it is appropriate that I consider whether and to what extent the appeal is fairly arguable having regard to that voluminous and extensive material. The submissions of the parties 1. In dealing with the submissions of the parties, I will have an opportunity of considering the validity of the competing submissions, and this will enable me to formulate a consideration of the various matters to be determined in arriving at a conclusion as to the appropriate disposition of these proceedings. 2. In essence, the appellant submitted that he had admitted the inappropriate conduct in which he had engaged, had apologised for that conduct and had felt and expressed remorse. He relied upon his personal circumstances as providing the context in which the conduct occurred. He said that he had sought and received professional medical assistance and would continue to do so on an ongoing basis, that he had gained significant insight, that his marital situation had changed markedly, he had undertaken "numerous rehabilitative steps", he has and will continue to develop social networks and friendships in order to keep his personal and professional life separate and apart, and has significant support from his employer, professional colleagues and patients. It was said that further and indefinite suspension was having a punitive effect on the appellant and his family. Furthermore, continued suspension was not warranted in all the circumstances. It was said that on this basis that the appellant's prospects of success were "strong." 3. In addition, the appellant submitted that the protection of the safety of the public would be accommodated if appropriate conditions were imposed upon his registration after his suspension was terminated. 4. However, this submission avoided focussing on the details of his conduct, and especially the content of his text messages with the patients and former patients. It is worth repeating a number of features of his communication with these persons. As the respondent submitted, all but one of them had a history of mental health problems of which the appellant must have been aware and for which he had afforded treatment. In communicating with these persons, the fact that he was or had been their doctor created a power imbalance. As the respondent submitted, this imbalance was "exacerbated by the very personal, intimate matters about which the women had consulted (the appellant), including suicide, PTSD, termination of pregnancies, alcohol addiction and relationship issues." 5. Furthermore, it is significant that the appellant reached out to so many and only women over a similar period of time. If he had truly been reaching out for a sympathetic person to help him deal with his personal pressures concerning his relationship with his wife, his need to sit another exam and the stress of working in the practice, he could easily have reached out to his employer or a health professional, from whom he now says he is able to obtain assistance. Instead, he reached out to several vulnerable women. The respondent described the appellant's conduct in this regard as "bizarre". I agree. This bizarre conduct was exacerbated by the fact that he endeavoured to use at least one of these patients to seek out a relationship with another woman. (JR). 6. All of this conduct occurred in circumstances where the appellant clearly knew that he was breaching professional standards. There is a reference to this on a number of occasions in the text messages with several of the patients which I have set out above. 7. I have endeavoured to deal with the text messages in which the appellant was engaged in summary form, but hopefully with sufficient detail to indicate that the appellant was clearly seeking out these patients, as he conceded, for self-gratification. It is clear from a reading of the messages themselves that most of the women were adversely affected by the manner in which the appellant sought to impose himself upon them. Even the two women who responded positively to his professed affections were, in the end, adversely affected by his rejection of them and the manner in which he ignored their pleas for his love. This is clearly symptomatic of predatory conduct on the part of the appellant without any concern for the impact of his behaviour on any of these persons. As a human being, he has acted selfishly; as a medical practitioner who should have some understanding of the complexities of interpersonal relationships, he has acted with wanton disregard for the well-being of these persons, who were his patients all of whom he knew to be vulnerable. Of course, on his own admission he had selected them because of their vulnerability. 8. In reviewing the circumstances of some of the patients, there can be no doubt that HT was an impressionable young person at age 20. She clearly had mental health issues and was vulnerable. The appellant initiated contact with her in circumstances in which he created concern on her part for his well-being. On his own admission, he was attracted to her and it is clear from the undoubted content of the many text messages that there were sexual overtones in the approaches that he made to her. In effect, he pressed himself upon this vulnerable young person and exposed her to an emotionally confronting situation. He endeavoured to manipulate and prey on her emotions. Furthermore, he admitted to her that what he was doing was unprofessional and unethical. The appellant used confidential information that he had obtained from this patient with respect to her relationship with her boyfriend to endeavour to manipulate her. His endeavours to search for a long lasting relationship with this patient, a vulnerable 20-year-old, borders on the bizarre. 9. The circumstances in which the appellant came to the home of KH are also bizarre. Having regard to the totality of his behaviour as demonstrated by the contents of the text messages with the several patients and former patients, KH was right to think of the appellant as a predator. Again, he took advantage of this former patient to press himself upon her and to seek some form of physical satisfaction. The conduct of the appellant towards this person persevered even after the appellant's wife had returned from Pakistan. 10. The patient HF was also a vulnerable younger woman. Again, the appellant initiated contact with her and took advantage of her politeness and friendship. He created in her feelings of discomfort and guilt and continually persisted in endeavouring to press her for personal information. This patient was very disturbed by his conduct. Again, the text communications which are in evidence attest to the circumstances as outlined by her in her statement. 11. Patient RP was obviously responding to some form of representation made by the appellant. She consistently told him that she loved him and he responded by saying that he loved her also. As their relationship, or lack of it, progressed, it is clear from the text messages which have been set out and summarised that the appellant was either unable to deal with her or was leading her on and deliberately deceiving her. Whatever scenario, it might be said that his conduct was inappropriate in the context of an extra-marital relationship, but was even more inappropriate given the fact that she had been a patient. It is clear that this patient's unrequited love and her ultimate rejection by the appellant had a profound impact on her well-being. Tellingly, the appellant did not dispute in his text exchanges with her the truth of her reference to the intimate and sexual nature of their relationship. 12. It is well-established that there are appropriate professional boundaries in every relationship between a medical practitioner and his or her patients. There are countless decisions of this Tribunal and its predecessors as well as decisions at appellate level that cover this field. It beggars belief that any medical practitioner would not understand the boundaries that have been appropriately set not only by professional governing bodies but also by the expectations of the community. A medical practitioner must not cross the boundary so as to adversely affect the well-being of any patient because the doctor-patient relationship is not a balanced one. Furthermore, such behaviour is exacerbated in circumstances where a patient is vulnerable either by reason of age or medical condition or both. Whatever spin the appellant and those advising him wished to seek to put on the circumstances pertaining to the relationship which the appellant had with each of these patients and former patients, the text messages that are in evidence, with respect to those particular patients, are self-evident in painting a picture of a person who was willing to inflict himself on vulnerable female persons, and to persevere in a perverse relationship which, in most cases, resulted in an adverse impact on the recipient's health and well-being. The conduct of the appellant as described, is appalling and disgusting. It is not necessary to embark upon any exercise of dissection or analysis of what the respective parties said. The basics of the communications in the form of the text messages are there to be seen by all. It is one thing for the appellant to seek to excuse his reference to having loved a person by saying that "love" can mean different things to different people. It is clear that his exchange of text messages with the use of this word with this particular patient conveyed to her only one meaning of the word "love". The attempt by the appellant to dissemble and inappropriately seek to explain away his position in the context of his dialogue with the HCCC investigators is contemptible. 13. Of course, given the nature of section 150 proceedings, the Tribunal would be entitled if appropriate to take into account the material given in the untested statements of the patients which I have earlier summarised. It is not necessary that I accept them in their totality for the purpose of determining these interlocutory proceedings. I accept those parts of the statements which have not been specifically denied by the appellant. I am able to make my assessment of the appellant's conduct and character on the text messages, on the admissions which the appellant has made, and on those parts of the statements which are corroborated by the text messages. This evidence is sufficient to enable me to be comfortably satisfied in considering the merits of the appellant's appeal for present purposes that I can characterise the behaviour and conduct of the appellant as constituting a most serious breach of his duties and responsibilities as a medical practitioner. I accept the assessment of Dr Samuels that the appellant's conduct is of a predatory nature. The appellant has violated patient boundaries in clear breach of the standards expected of a medical practitioner. 14. It is next necessary to consider whether, given the circumstances which now pertain to the appellant, based on the evidentiary material which I have described, that there is a fairly arguable case that there is no need to suspend his registration for the protection of the health or safety of any person or persons, or otherwise in the public interest. 15. I start from the basic proposition that a medical practitioner who has engaged in conduct of this kind clearly presents a risk to the health and safety of any person or persons who might become his patient generally, and his patients in particular. This risk prima facie extends to any such person who is female and may have some underlying vulnerability by reason of a psychiatric or other emotional condition whether or not associated with some underlying medical condition. Such a person need not necessarily be younger than the appellant, so long as she is vulnerable. I agree with the comments of Drs Howle and Samuels that it is necessary to take into account matters beyond the treatment and interaction with young, vulnerable female patients. There are other circumstances where a medical practitioner with the predatory behaviour of the appellant might learn of other female persons who are also vulnerable for a variety of reasons. The fact that the appellant was bold enough to ask one of the patients for the name of a friend with whom he might form a relationship is evidence of this. 16. It is also necessary to take into account in considering suspension under section 150 the additional matters which are well-established on authority as being relevant. A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits. (Extracted from [134] above). Given the conduct of the appellant as I have described it, these factors militate towards the suspension of the appellant's registration. 17. I conclude that it cannot be fairly argued that the conduct which has been found to have been undertaken by the appellant does not prima facie justify the suspension of his registration. 18. I repeat once more that the proceedings were to be conducted on the basis that the parties had filed all of the evidence upon which they wished to rely, and that oral evidence would be confined to providing witnesses for cross-examination. Accordingly, it may be assumed that the appellant has addressed in his affidavit and other material which he has filed any particular detail contained in the statements of the patients and former patients to which I have referred and which I have summarised above which he has wished to challenge as being incorrect. It may also be assumed that the appellant has filed all expert medical and other evidence upon which he has sought to rely in support of his appeal, including any evidence in reply. The proceedings before me on this interlocutory application have been conducted on this basis. 19. The appellant has sought to paint a picture of a person who has been successfully treated medically for his problems, is now in a stable relationship, and is unlikely to reoffend. He has presented references in glowing terms in support of this contention. All of the documentation which the appellant has presented in support of these propositions is fatally tainted with the defect which I have previously identified. Not one of the persons concerned has commented in any way on the reasons for decision of the delegates of the Council under appeal, or any of the additional material which has been filed by the respondent in these proceedings. Whether this inattention to detail is deliberate, or reflects poor preparation on the part of the appellant and those advising him is unknown. However, there is no point in producing and endeavouring to rely on character references unless the referees are fully appraised of the circumstances about which they are proffering an opinion in terms of the character of the appellant. 20. In the same way, the psychiatric opinion of Dr Ang, the opinion of Ms Holmes, the psychologist and also of the appellant's general practitioner to the effect that the appellant's conduct is unlikely to re-occur cannot be accepted, and in my opinion would not be accepted by the Tribunal fully constituted, unless those persons had read the text messages between the appellant and each of the patients and the statements of those of the patients who have made them. It would be inappropriate to accept the opinions expressed by them concerning the nature of the appellant's conduct, diagnosis and whether he was unlikely to repeat it unless they were aware of the full extent of that conduct. 21. On this basis, it is clear that much of the evidentiary material upon which the appellant relies in asserting that he is no longer likely to engage in misconduct of this kind in the future, and that he is rehabilitated cannot be accepted at face value. This leaves only his own protestations that he is a reformed character, that he is rehabilitated, and that he will never offend again. It is well-established that a Tribunal will be cautious in determining that a person who has engaged in misconduct over a period of time will never reoffend and will never again present as a danger to the health and safety of any person. In circumstances where the appellant has been diagnosed as suffering from a psychiatric condition, the best evidence as to whether the condition has resolved, or is in remission, and is unlikely to ever manifest itself again is that of a psychiatrist who is in a position to express it on an acceptable basis. For reasons stated above, this evidence does not exist. It must be concluded that the evidence proffered by the appellant in support of this aspect of his case is so lacking and deficient that the appellant cannot mount a fairly arguable case based on it. 22. The appellant has persisted in denying that any of his text messages with the patients save for HT were of a sexual nature. This is simply incorrect. I agree with the respondent's submission that protestations of this kind reflect a lack of insight by the appellant concerning the nature of his behaviour, and clearly throw his professed expressions of contrition and remorse into doubt. Conclusion and orders 1. For all these reasons I conclude that the appellant does not have a fairly arguable case that his appeal should succeed. I further conclude that, in the circumstances, and having regard in a peripheral manner to the failure of the appellant to lead any evidence as to the reason for the failure to file the appeal within time, that his application to extend time for the filing of the appeal should be refused. 2. It follows that the appeal should be dismissed. Before making any formal order or, alternatively, referring the matter to the Tribunal as fully constituted for the making of such an order, I shall stand the matter over at the request of the respondent to allow for the making of any application for a costs order. 3. I make the following orders: 1. The application to file the appeal out of time is refused. 2. Costs are reserved with liberty to apply which should be exercised within one month of this date. 3. The proceedings are stood over to allow for relisting before the Tribunal for the making of final orders. Any such application should be made within one month of this date. 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: 08 July 2016