Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Little [2016] NSWCATOD 146 Hearing dates: 18 and 19 August 2016and by written submissions received on 2 September 2016 and 16 September 2016 Date of orders: 29 November 2016 Decision date: 29 November 2016 Jurisdiction: Occupational Division Before: S McIllhatton, Senior Member J Uren, Professional Member R Engel, Professional Member A Collier, General Member Decision: (1) The Respondent is guilty of unsatisfactory professional conduct. (2) The Respondent is guilty of professional misconduct. (3) The Respondent is publicly reprimanded. (4) The conditions appearing in Attachment A to these reasons are to be placed on the Respondent's registration for a period of 18 months from the date of this order. (5) The Chiropractic Council of NSW is the appropriate review body of these conditions for the purposes of Part 8 of the National Law. (6) The Registrar is requested to notify the Chiropractic Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 - 5 above as soon as practicable. (7) The Respondent is to pay the Applicant's costs. (8) An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names of the patients appearing in the Schedule to the Complaint of Patients A, B, C and the husband of Patient B. Catchwords: Chiropractor – where practitioner admits he is guilty of unsatisfactory professional conduct – inappropriate relationship with patient while therapeutic relationship continues – failure to maintain appropriate professional boundaries – whether conduct amounted to professional misconduct – appropriate review body. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: HCCC v Ryken [2016] NSWCATOD 58 R. v Byrne [1995] 193 CLR 501 HCCC v Phung (No. 1) [2012] 1 NSWDT HCCC v Perroux [2011] NSWDC 99 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 HCCC v Saedlounia [2013] NSWMT 13 Health Care Complaints Commission v Do [2014] NSWCA 307 Qidwai v Brown [1984] 1 NSWLR 100 Pillai v Messiter (No 2) [1989] 16 NSWLR 197 Lee v Health Care Complaints Commission [2012] NSWCA 80 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Darren Little (Respondent) Representation: Counsel: R Graycar (Applicant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 1620072 Publication restriction: A non- publication order prohibiting the disclosure of the names of the patients appearing in the Schedule to the Complaint of Patients A, B and C; and the name of the husband of Patient B. Reasons for decision Background 1. Dr Little, the Respondent, is a chiropractor. He holds a Bachelor of Science from the University of Sydney and a Master of Chiropractic from Macquarie University. He was first registered as a Chiropractor on 8 February 1996 and has continuously maintained his registration without conditions since that date. He currently practices at three Sydney locations. 2. On 3 March 2014, Dr Little commenced providing chiropractic care to a child, Patient A. Subsequently, on 12 March 2014 Patient A's mother, Patient B, also became a patient of Dr Little. On 7 April 2014 Dr Little commenced providing chiropractic care to Patient B's second child, Patient C. Patient B, as the mother of both patients A and C, was in attendance at all times during therapeutic consultations between her children and Dr Little. 3. The essence of the complaint against Dr Little is that he formed an inappropriate personal relationship with Patient B. There is no complaint about Dr Little's therapeutic care of the children Patients A and C. 4. In July 2014 Dr Little ceased treating Patient B and her children after he disclosed the relationship to his wife who is also his professional business partner. 5. On 6 February 2015 the Applicant received a complaint from the husband of Patient B regarding a breach of therapeutic boundaries between Dr Little and Patient B. 6. At the time that Patient B sought treatment from Dr Little she had three small children who ranged in age from 18 months to 5 years. The previous 5 years for Patient B were characterised by substantial periods of pregnancy and breastfeeding. Prior to consulting Dr Little she had been unwell for some time including disturbed sleep and fatigue. The application before the Tribunal 1. This is an application for disciplinary findings and orders against Dr Little brought under the Health Practitioners National Law NSW (Chiropractic). The application is made by the Health Care Complaints Commission (the Applicant). The application attaches a Complaint dated 17 March 2016 ("the Complaint"). The Complaint makes two individual Complaints against Dr Little. The first Complaint is supported by a set of particulars. The second Complaint relies on the same particulars as contained in the first Complaint. 2. The first Complaint alleges that Dr Little has been guilty of unsatisfactory professional conduct within the meaning of s139B(1)(a) and/or (l) of the Health Practitioner Regulation National Law ("the National Law"). 3. Section 139B of the National law defines unsatisfactory professional conduct. For present purposes the relevant provisions are contained in s.139B(1)(a) and (l) and are as follows: (a) Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The second Complaint alleges that Dr Little has been guilty of professional misconduct within the meaning of s139E of the National Law. 2. Section 139E of the National Law provides: For the purposes of this Law, professional misconduct of a registered health practitioner means- 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration, or 2. more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 1. If the Complaints are found proven by the Tribunal, the Applicant requests the Tribunal to exercise its power to make disciplinary orders specifically that Dr Little's registration be subject to conditions. In broad terms these conditions covered logistical aspects of his practice, mentoring and continuation of psychological treatment already being undertaken by Dr Little. 2. In Dr Little's reply to the Application he admits that he has engaged in unsatisfactory professional conduct and admits to the background and all particulars in the first Complaint, except that contained in Particular 4(b). This particular was subsequently withdrawn by the Applicant at the hearing. 3. In relation to the second Complaint the Respondent denies that he is guilty of professional misconduct within the meaning of s 139E of the National Law. Accordingly, Complaint Two was not conceded. The Hearing 1. Both parties attended the hearing. As there was broad agreement between the parties as to the facts, the focus of the Tribunal's deliberations was whether the conduct complained of amounted to professional misconduct and the nature and extent of appropriate protective orders. Both parties made submissions about aspects of the evidence before the Tribunal and the issue of costs. 2. As our reasons disclose we were independently satisfied that the Complaints as particularised were established. The fundamental problem underlying Dr Little's conduct as demonstrated by the particulars is that he did not maintain or appropriately manage professional boundaries with Patient B. Particulars of the Complaints Complaint One and Two: Unsatisfactory Professional Conduct and Professional Misconduct 1. On or about 20 June 2014 while Patient B was a therapeutic patient Dr Little did not maintain proper professional boundaries. He met with Patient B for coffee and exchanged an intimate kiss. He met Patient B again later that day at a hotel and exchanged a kiss. 2. During May to July 2014 while Patient B was a therapeutic patient Dr Little exchanged messages of personal nature with Patient B by text, email and messenger services. In addition he engaged with Patient B in concealment of this contact. On more than one occasion he exchanged a kiss and or a hug with Patient B at the commencement or conclusion of consultations. He consulted with Patient B as her client for life coaching. 3. On 12 July 2014 Dr Little arranged to meet with Patient B at a hotel for a drink. He then drove to a park with Patient B and kissed and or engaged in an intimate embrace with her for a period in the car. 4. It is contended that Dr Little did not appropriately manage professional boundaries with Patient B in relation to therapeutic relationships with Patients A, B and C including termination of the therapeutic relationship after engaging in kissing with Patient B. Applicant's Evidence Statement of Patient B 1. In a statement dated 22 April 2015 Patient B explains that she first approached Dr Little in relation to treatment for one of her children. At the time Patient B had just finished breastfeeding. She had pains in her neck, a sinus infection and was generally rundown and unwell. As she had seen improvement in her daughter after treatment from Dr Little she decided to seek treatment for herself. Patient B stated that she was attracted to Dr Little from the start. She found him to be warm and personable, and was caring towards both herself and her child. Patient B stated that she was looking for some sign during treatment for her child that Dr Little may have found her attractive. She found no sign. Although he was empathetic and she believed them to have similar ways of thinking, she found him to be absolutely professional. 2. Patient B's statement indicates that during her treatment conversations changed to a more social nature. In around May/June 2014 Dr Little gave her some articles and they began to exchange texts of a more personal nature. Soon after they met for coffee and shared an intimate kiss. They became friends on facebook and would send each other private messages. Patient B continued to see Dr Little as a patient and they would kiss briefly and intimately at the beginning of consultations. Patient B set out other instances of personal and intimate contact with Dr Little outside of consultations which are detailed in the particulars. Patient B recalled thinking that because these moments did not take place in the confines of the treatment room she did not feel like Dr Little's patient; rather, she felt like his friend. 3. Patient B stated that she had no intention of leaving her marriage and Dr Little had no intention of leaving his. It was clear in her mind that she did not want to have sex with Dr Little, but equally she believed that if she had wanted to have sex with Dr Little, he would have agreed. She did not feel any pressure from Dr Little to have a sexual relationship. 4. Patient B described being confronted by her husband about the relationship with Dr Little around 14 July 2014. After this she ceased seeing Dr Little. She defriended Dr Little on facebook. In the following couple of days she sent and exchanged messages with Dr Little which she explained was about finding closure and finishing the relationship. Text, email and social media communication 1. A large number of emails, text and facebook instant messages between Dr Little and Patient B were available to the Tribunal. In some time periods the extent of the communication is frenetic and concentrated. The nature of the communication reveals an intensive sharing of personal and intimate information, attempts to arrange meetings and describing day to day activities. In these messages Dr Little expresses hopes and aspirations to be with Patient B. He also encourages Patient B to maintain a deception with her husband about the extent of the communication. For example in an email sent after the relationship was discovered, he suggests to Patient B that she delete emails including those contained in sent and deleted folders, as well as deleting facebook messages. 2. In this same email Dr Little tells Patient B that he "still and will always have that glimmer of hope", he suggests that he will meet up with her if she wants to and deems it safe. He asks her to use a public or friend's phone if she wanted to call him in the future. 3. In a final email dated 23 July 2014, and in response to an email sent by Patient B asking if they could talk, Dr Little sets out why it is not possible for them to contact one another for the foreseeable future. Peer's Report: Professor Ray Hayek 1. Professor Ray Hayek prepared a peer review report dated 1 September 2015. The report reviewed and expressed opinions as to the conduct of Dr Little and the social and intimate relationship that developed between him and Patient B. This report was supplemented by a further report dated 28 September 2015 which provided clarification as to the standard to which Professor's Hayek's opinion referred. Professor Hayek's Curriculum Vitae was available to the Tribunal. It reveals an extensive academic, research and practical career in Chiropractic health. 2. At the hearing Professor Hayek amended his report. In the main the amendments amounted to deletions of some portions of the report and were explained on the fact that Professor Hayek now had the advantage of reading two reports prepared by Dr Peter Cox, psychologist, dated 10 November 2015 and 6 August 2016. 3. Professor Hayek commented on Dr Little's conduct when he engaged Patient B in an intimate kiss in June 2014. Professor Hayek notes that to a degree this was perceived by Dr Little to be consensual. Equally however, Professor Hayek observes that the doctor patient boundaries were clearly crossed and were of extreme concern. Professor Hayek stated that the act was void of judgement and highlighted a lack of capacity to formulate judgements for the best interests of the patient. Professor Hayek observed Dr Little should have identified these issues and taken action to reduce the likelihood of misinterpretations and or expectations that Patient B may have developed. Professor Hayek regarded this behaviour as significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited his strong criticism. 4. In relation to Dr Little's conduct in continuing to provide treatment to Patient B's child after he and Patient B had kissed, Professor Hayek's view was that Dr Little ought to have realised that a line had been crossed and ceased treating Patient B and her children. Professor Hayek regarded this conduct as falling below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 5. Professor Hayek noted that it is not uncommon for regular patients to give treating doctors an embrace in a clinical setting. These are more likely to take place in a public setting such as a waiting room. However, what occurred in this instance was kissing of a patient within the confines of a treatment room and behind closed doors. As such the conduct is fraught with a host of concerns, for example the misuse of power that a health professional has over a patient. It can also promote and further entrench illegitimate patterns of dependency behaviour which appeared to be recognised by Patient B in her statement dated 22 April 2015. Professor Hayek regarded this behaviour as significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited his strong criticism. 6. In relation to Dr Little engaging Patient B's services Professor Hayek believed that in differing circumstances where there was a professional foundation for doctor-patient encounters, this would not have been a concern. However in the light of this case it suggested a desire to create opportunities and situations to increase the likelihood of contact between Dr Little and Patient B. In Professor Hayek's view this was clear departure from the standards and was significantly below the standards. 7. Professor Hayek expressed the view that the text and social media communication between Dr Little and Patient B was used for personal promotion and a desire to share intimate information with the hope to deepen their intimacy with each other. The expression in this communication by Dr Little to be with Patient B in Professor Hayek's view demonstrated that Dr Little was unable to exercise his judgement as to the impact and consequences of his actions on his own and Patient B's extended family members. Further Dr Little encouraged Patient B to maintain a deception as it related to her husband. Professor Hayek regarded this behaviour as significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited his strong criticism. 8. Professor Hayek believed that Dr Little's conduct in writing to Patient B after their relationship had been discovered and outlining possible discrete means for Patient B to continue communication with him were not in keeping of a health provider discharging their responsibilities. Professor Hayek regarded this behaviour as significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited his strong criticism. 9. Professor Hayek noted that from the clinical notes and other information reviewed it appeared that the desired therapeutic objectives of Dr Little's treatment of Patient B were successful. He expressed the view that it was unfortunate that what appeared to be a successful treatment program with great patient outcomes had been clouded by the actions of Dr Little. Chiropractic Board of Australia – Code of Conduct March 2014 1. The Code of Conduct was developed by the Chiropractic Board under section 39 of the National Law. Amongst other matters, the Code is a guide to the expected standards of behaviour of chiropractors in relation to providing good care to, and working with patients; professional behaviour and ethical conduct. In relation to working with patients it states that a good partnership between chiropractor and the person they are caring for requires high standards of personal conduct. This involves the chiropractor recognising that there is a power imbalance in the relationship. Decisions made should be directly relevant to clinical experience unaffected by non-clinical motivations. It refers to professional boundaries allowing a practitioner and patient to engage safely in a therapeutic relationship. In paragraph 9.2 it sets out good practice as involving: 1. maintaining professional boundaries so that patients are not exploited financially, physically, emotionally or sexually. 2. Never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under care and includes those close to the patient such as a parent 3. Recognising that sexual relationships with people who have previously been patients are often inappropriate depending on the extent of the professional relationship and the vulnerability of the former patient. Respondent's Evidence Dr Little 1. In a statement dated 12 November 2015 made in response to the Applicant's investigation, Dr Little acknowledged that he should never have allowed the relationship with Patient B to become personal and it was wrong of him to cross professional boundaries. He accepted that he should have ceased care for Patients A, B and C as soon as he realised the nature of the relationship; and should have ceased contact with Patient B once their respective spouses became aware of the situation. 2. In an undated statement prepared in reply to the Application, Dr Little sets out the steps he has taken to address his own behaviour. He has completed an on-line course on safe professional boundaries. He has altered aspects of his practice protocols for example; there is always another staff member present on each shift he works and he has adopted an open door policy in the treatment rooms unless a patient requests privacy. He has sought counselling with a psychologist, Dr Peter Cox, and as at May 2016 had attended 45 sessions. 3. Dr Little concluded his statement by stating that whilst there is no evidence of adverse clinical outcomes; once his relationship with Patient B became personal his continued treatment of her and her children was inappropriate because it may have impacted on his clinical judgment. 4. In oral evidence to the Tribunal Dr Little conceded that at the time Patient B consulted him she had been unwell for some time and he accepted that her health issues made her vulnerable. 5. Dr Little clarified that an email he sent to Patient B after the relationship was discovered in which he suggests to her that she delete emails and Facebook messages and suggested ways in which she could contact him, was sent on 17 July 2014. He explained this written contact with Patient B on the basis that at the time he was trying to work through his own issues. Although he understood that the therapeutic relationship was at an end he did not understand it to be the end of the personal relationship. Further he was not under the impression that he could never contact Patient B again. He suggested that in hindsight he had said a lot of stupid things that he did not stand by now. However, he conceded that at the point in time of this email at an emotional level he had wanted the relationship to continue. 6. Since March 2014 Dr Little has attended a monthly professional mentoring group with chiropractic colleagues. He explained that these meetings were not part of a formal mentoring program. He clarified that he had completed an on-line professional boundaries course as a face to face course would have involved travelling interstate. 7. In answer to questions from the Tribunal Dr Little was able to identify cues in his own behaviour or attitude that might suggest risks which potentially could give rise to boundary transgression. Dr Peter Cox, psychologist 1. Dr Peter Cox, psychologist provided two reports dated 10 November 2015 and 6 August 2016. Dr Cox confirmed that Dr Little has been seeing him for psychological treatment since August 2014. 2. In broad terns the reports by Dr Cox expressed the view that Dr Little did not have a diagnosable personality disorder or a psychological syndrome. Dr Cox observed that the unprofessional conduct involved different individual examples of boundary violation but was confined to a single relationship. 3. Dr Cox believed that the likelihood of Dr Little repeating similar behaviour in the future to be very low. In forming this opinion he referred to various matters including; this being the first incident in which Dr Little had allowed a professional relationship to move into an inappropriately personal one in some 20 years of practice, at a certain point Dr Little recognised the inappropriateness of the relationship and told his wife, his seeking of psychological help to address underlying issues prior to his knowledge of a complaint being made and his continued progress in the therapeutic process. Other material 1. Dr Little provided a written reference from a friend and former employer, Joseph Keledjian. This reference attested to Dr Little's work ethic and his dedication. Mr Keledjian, who was aware of the details contained in the Application, believed that the conduct was out of character. Dr Little also provided the workbook used in the on-line professional boundaries course he had completed. Submissions 1. Both parties provided submissions as to the substantive matters the subject of the Complaints. It is not disputed that Complaint One, unsatisfactory professional conduct, is conceded whilst Complaint Two, professional misconduct, is not. In essence the parties placed a different emphasis on whether the admitted unsatisfactory professional conduct was of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration so that it could be said to amount to professional misconduct. 2. The Applicant referred to a number of factors which it submitted warranted a finding of professional misconduct. These included; the admitted breach of professional boundaries on a number of occasions while treating Patient B and her children, the violations occurring at the practice and elsewhere, Dr Little knowingly conducting the relationship despite being aware that Patient B was vulnerable when she first attended for treatment and his failure to take steps to avoid the unprofessional behaviour entirely or take other action such as referring the patients to another practitioner. Furthermore, even when the inappropriate relationship had ended Dr Little sought by email to continue the contact by means of suggesting that Patient B might contact him and how she might do that to avoid detection. 3. The Applicant referred to the report of the peer reviewer and submitted that in the light of the centrality of the opinion of peers referred to in specific case law about professional misconduct, Dr Little was guilty of professional misconduct. 4. In relation to protective orders the Applicant submitted that if the Tribunal finds Complaint Two to be established and the conduct constitutes professional misconduct, it is open to the Tribunal to suspend the practitioner from practising for a period of time. Alternatively if the Tribunal does not consider it appropriate to suspend the practitioner's registration, then the Tribunal ought to reprimand the practitioner in accordance with s 149A of the National Law. 5. The Applicant submitted that whether the Tribunal decided to suspend the practitioner or to impose a reprimand, it was appropriate to impose a set of conditions upon the registration of the practitioner. The proposed conditions were provided to both the Tribunal and the Respondent 6. The Respondent submitted that the duration of the inappropriate conduct was relatively short. It commenced on about 20 June 2014 when the Respondent and Patient B met for coffee and exchanged an intimate kiss. It ended less than a month later. It was submitted that when viewed on a scale of inappropriate boundary violations the Respondent's conduct could be seen at the lower end. There was no instance of sexual intercourse. Rather what occurred was more akin to the actions of two immature teenagers who had fallen in love. The Respondent has expressed responsibility for what had occurred, as well as remorse and contrition. His awareness of the issues surrounding professional behaviour is demonstrated by his continuing therapy and his completion of an on-line professional boundaries course. 7. Both the Applicant and Respondent pointed to the decision of HCCC v Ryken [2016] NSWCATOD 58 (Ryken) as it related to professional misconduct. The Applicant submitted while the practitioner in that case did have a sexual relationship with one of the three patients who was the subject of the Complaints, his boundary violating conduct in relation to the other two patients bore considerable similarity to the conduct in this case. In contrast, the Respondent submitted that Ryken involved three patients and that Dr Little's conduct was significantly less serious. 8. At the hearing there was some discussion and refinement to the conditions proposed by the Applicant. In broad terms the Respondent did not have any difficulty with the wording or substance of the conditions. The Tribunal noted that to some extent Dr Little was already implementing some aspects of the proposed conditions as it related to his practice. Preliminary Issues 1. In the course of the hearing the Respondent raised two issues which it requested the Tribunal to consider. Both parties provided written submissions in relation to these issues after the hearing. The issues were: 1. the interaction of subparagraphs (a) and (l) of s.139B(1) of the Health Practitioner Regulation National Law ('the National Law'); and 2. the Tribunal's power to order that in respect of any conditions it might impose upon the Respondent's registration the appropriate review body be the Chiropractic Council of NSW. 1. In respect of the first issue the Respondent raised a question about the Applicant's reliance on s.139B(1)(l) of the National Law in circumstances where the conduct in question might also fall within any of the paragraphs (a) – (k) of s.139B(1). The Respondent submitted that the formula "any other" before the phrase "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" limited the operation of s.139B(1)(l) to conduct that did not otherwise fall within any of the other earlier paragraphs of the provision. In support of that proposition, reference was made to a decision made at a Professional Standards Committee Inquiry dated 10 June 2015 in relation to Dr Syed Adil Zafar where a similar submission was put and where the Committee found that it did not need to make findings in relation to the pleaded breach of s.139B(1)(l) in circumstances where it found a breach of s.139B(1)(a) to have been established. 2. The Tribunal does not accept the Respondents submission in this regard. It accepts the submissions made by the Applicant on this point. These include that the phrase used in s.139B(1)(l) is a different composite phrase from the language used in some of the other parts of 139B(1). Section 139B(1)(a) refers to conduct "in the practice of the practitioner's profession"; by contrast sub- paragraph (l) refers to "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". It is therefore directed at a broader range of conduct than that which occurs "in the practice of" a person's profession. For example conduct can be both "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" and improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 3. The Tribunal is not bound by a decision of a Professional Standards Committee. Further, there are a number of decisions by the Tribunal and the Court of Appeal in which findings under both s.139B(1)(a) and (l) have either been made or affirmed without any suggestion that there is anything inappropriate about such findings: see HCCC v Ryken [2016] NSWCATOD 58; Qasim v Health Care Complaints Commission [2015} NSWCA 282; King v Health Care Complaints Commission [2011] NSWCA 353; Bar-Mordecai Health Care Complaints Commission [2002] NSWCA 192 and Lindsay v Health Care Complaints Commission [2010] NSWCA 194. 4. In the Tribunal's view there is no basis for adopting the proposed construction of the statute for which the Respondent contends. Accordingly it is open to the Tribunal to find that the Respondent is guilty of unsatisfactory professional conduct by virtue of having breached both s.139B(1)(a) and (l). 5. In respect of the second issue the Respondent contends that the appropriate review body is the Chiropractic Council of NSW. The Applicant does not disagree with this contention. Indeed this was reflected in the proposed conditions that were provided and refined at the hearing. 6. The Tribunal accepts the Respondent's submission that such an order is appropriate, as in this case, when the conditions concern matters about which the Respondent's peers are best qualified to determine whether or not they should be maintained. The additional benefits of such an order are that any review application can be dealt with relatively quickly and without the attendant costs and formalities that would accompany an application to the Tribunal. This is consistent with the Tribunal's objects of achieving the resolution of disputes justly, quickly, cheaply and with as little formality as possible: see Section 3 (d) Civil and Administrative Tribunal Act 2013. FINDINGS 1. For the reasons that follow the Tribunal is satisfied that the particulars relied upon by the Applicant are established and Complaints One and Two are proved. Complaint One: Unsatisfactory Professional Conduct sections 139B(1)(a) and (l) 1. It is common ground that Dr Little engaged in an inappropriate personal relationship with Patient B for a period between June and July 2014. The relationship consisted of them meeting socially on several occasions, and included incidents of hugging and kissing, sometimes in the practice and sometimes elsewhere. They also texted each other and exchanged messages via social media during that period, and in a more limited fashion, after their respective partners became aware of the relationship on 14 July 2014. 2. Section 139B(1)(a) of the National Law requires the determination by the Tribunal as to whether Dr Little has been guilty of unsatisfactory professional conduct. It involves an objective assessment of Dr Little's conduct against the standard of conduct reasonably expected of an equivalent practitioner. 3. Section 139B(1)(l) of the National Law also requires a determination by the Tribunal as to whether Dr Little has been guilty of unsatisfactory professional conduct. It involves an assessment as to whether Dr Little's conduct was improper or unethical relating to the practice or purported practice of his chiropractic profession. 4. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral; 2. in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law. 5. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R. v Byrne [1995] 193 CLR 501 at 514-515: see HCCC v Phung (No. 1) [2012] 1 NSWDT at [68]. If conduct, is not in conformity with standards of professional conduct and practice it can be seen as improper. 6. Dr Little's conduct over a period of months involved different individual examples of boundary violation and although it was confined to a single relationship the text, facebook and email messages between him and Patient B were numerous and intense. In a number of these communications Dr Little frequently expresses hopes and aspirations to be with Patient B. He also encourages Patient B to maintain a deception with her husband as to the nature and extent of their contact. 7. Dr Little did not maintain a clear separation between his professional conduct aimed at meeting the health needs of Patient B and his own personal views and feelings. The intimate and personal relationship he developed with Patient B was not relevant to the therapeutic relationship. He crossed professional boundaries. Many inappropriate and unprofessional things were said via social media. His conduct gave rise to the potential to impact on his clinical judgment. In the Tribunal's view Dr Little's conduct was significantly below the standard of conduct reasonably expected of an equivalent practitioner. 8. Further, Dr Little's attempts to encourage Patient B to maintain a deception as it related to her husband was improper and unethical. His attempt to maintain contact in secret in outlining possible discrete means in which Patient B could continue communications with him after the relationship had been revealed, demonstrates a considered attempt to maintain contact. It was not in conformity with standards of professional conduct and practice and as such was improper and unethical. 9. The Tribunal finds that Dr Little's conduct amounts to unsatisfactory conduct pursuant to s139B(1)(a) and (l) of the National Law. Complaint Two: Professional Misconduct section 139E of the National Law 1. While the fact that the relationship impermissibly crossed professional boundaries is common ground, the parties do not agree on the characterisation of the conduct, and in particular, whether the conduct constituted professional misconduct. 2. In determining whether a finding can be made of professional misconduct the Tribunal must determine whether as outlined in HCCC v Perroux [2011] NSWDC 99 at 18 "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration". 3. It has been held that the "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards": see Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638. 4. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: HCCC v Saedlounia [2013] NSWMT 13 at 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at 35. 5. To constitute professional misconduct, it has been held that the conduct the subject of the complaint must be of such a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence: see Qidwai v Brown [1984] 1 NSWLR 100 at 105 (Priestley JA). 6. In Pillai v Messiter (No 2) [1989] 16 NSWLR 197 the Court of Appeal (referring to the earlier statutory test) described professional misconduct as including: "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson [v General Council of Medical Education and Registration [1894] 1 QB 755] (at 760-761)." (per Kirby P at 200). 1. In this case Professor Hayek, the Applicant's expert peer reviewer, has expressed his strong criticism of the conduct which he found fell significantly below the standard expected in a number of respects. As Professor Hayek makes clear there were a number of clear breaches of the Chiropractic Board of Australia Code of Conduct, March 2014. 2. The Tribunal does not accept the submission made on behalf of the Respondent that the conduct can be regarded as more akin to the actions of two immature teenagers who had fallen in love. 3. Dr Little has admitted that he breached professional boundaries, on a number of occasions, while treating Patient B and her children. Those boundary violations involved physical contact at the practice such as kissing behind closed doors as well as meetings with the patient at other venues. The Tribunal accepts the submissions of the Applicant. As the health practitioner, it was Dr Little who had the responsibility to take steps either to avoid the unprofessional behaviour entirely, or to take other action such as to refer the patients to another practitioner. He did neither. He knowingly conducted the relationship despite being aware that Patient B was particularly vulnerable when she first attended for treatment. He was cognisant of the existence of the power relationship between him as the health practitioner and the patient. 4. Even when the improper relationship had ended (and both parties' spouses had become aware of the relationship), Dr Little sought to continue the contact by suggesting that Patient B might contact him in future by means of a friend's phone or public phone, so as to avoid detection, or when it was "safe" that is; when her husband was unaware. Although he subsequently made it clear that he could no longer contact Patient B, this does not detract from his attempts to potentially continue the relationship and to encourage Patient B to engage in deception. 5. In the Tribunal's view the unsatisfactory professional conduct displayed by Dr Little is of a sufficiently serious nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. The Tribunal finds that when considered as a whole Dr Little's conduct constitutes professional misconduct. Principles regarding protective orders 1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see ss149A, 149B and 149C. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v Health Care Complaints Commission [2012] NSWCA 80 at 34. 2. In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184. 3. In Health Care Complaints Commission v Do, Justice Meagher (with whom Justices Basten and Emmett agreed) referred (at [35]) to the importance of denunciation of misconduct, in the context of s 3 and s 3A of the National Law as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. Dr Little is a practitioner of some 20 years standing. Apart from this specific relationship there appears to have been no other instances of boundary transgression. The Tribunal has had regard to the report of Dr Cox that Dr Little presents a low risk of repeating unprofessional behaviour. The Tribunal accepts that Dr Little has taken a number of remedial steps of his own volition including adjustments to his practice. The Tribunal was also satisfied from Dr Little's oral evidence that he was able to properly identify cues in his own behaviour or attitude that might suggest risks in potential boundary transgression and to take action to mitigate these risks. For these reasons the Tribunal does not believe it is appropriate to cancel his registration. 2. In the Tribunal's view a key aspect of the protection of the public extends beyond protecting the individual patients of an individual practitioner, but rather, to the protection of the public as a whole by means of the denunciation of the type of conduct such as the boundary violation that occurred in this case. Having regard to the findings made above as to the nature of the conduct and the protection of the public, the Tribunal is satisfied that a reprimand and the conditions sought by the Applicant in respect of Dr Little are appropriate. Costs 1. The Applicant seeks an order for costs. The Respondent's counsel noted that in the circumstances costs would follow the event. 2. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36. 3. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at 42-46, with Emmett JA (Meagher JA and Beech-Jones J agreeing) stating: "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made". 1. The Complaints have been established. There are no factors that might militate against the recovery by the Applicant of its costs. Accordingly, the Applicant is entitled to an award for costs in its favour incidental to the proceedings. ORDERS 1. The Tribunal orders that: 1. The Respondent is guilty of unsatisfactory professional conduct. 2. The Respondent is guilty of professional misconduct. 3. The Respondent is publicly reprimanded. 4. The conditions appearing in Attachment A to these reasons are to be placed on the Respondent's registration for a period of 18 months from the date of this order. 5. The Chiropractic Council of NSW is the appropriate review body of these conditions for the purposes of Part 8 of the National Law. 6. The Registrar is requested to notify the Chiropractic Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 - 5 above as soon as practicable. 7. The Respondent is to pay the Applicant's costs. 8. An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names of the patients appearing in the Schedule to the Complaint of Patients A, B, C and the husband of Patient B. ********** ATTACHMENT A - CONDITIONS 1. To practise only in a group practice where there are at least two registered health practitioners (including the subject practitioner), and: 1.1. The other practitioner is a registered chiropractor of minimum 7 years post-registration experience; and 1.2 There is always one other registered health practitioner or staff member on site. 2. Within 28 days of 8 February 2017 the practitioner is to nominate a registered experienced chiropractor to act as his professional mentor for approval by the Chiropractic Council of NSW (the Council) in accordance with the Council's Compliance Policy - Mentoring (as varied from time to time). The practitioner is: 2.1 To be mentored for a minimum period of 12 months, and as subsequently determined by the Council. 2.2 To participate in meetings with the mentor on a monthly basis for the first 6 months, and afterwards at a frequency to be determined by the mentor. 2.3 To authorise the Council to provide the mentor with a copy of this decision. 2.4 To authorise the mentor to report to the Council on a quarterly basis. 2.5 To authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration. 3. To attend for treatment by a psychologist of his choice, at a frequency and for a duration to be determined by the practitioner in consultation with the treating practitioner. 3.1 To provide the Council with the name and contact details of the treating practitioner. 3.2 To authorise the Council to provide the treating practitioner with a copy of this decision. 3.3 To authorise the treating practitioner to inform the Council of any failure to attend for treatment without reasonable excuse, or the termination of treatment, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration. 4. The practitioner is to be responsible for any costs associated with meeting conditions 2 – 3. ********** 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 Amendments 08 February 2017 - Attachment A – Conditions – Amendment to Condition 2 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 February 2017