Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Choi [2017] NSWCATOD 82 Hearing dates: 1 and 2 February 2017 Date of orders: 23 May 2017 Decision date: 23 May 2017 Jurisdiction: Occupational Division Before: R Titterton, Senior Member G Wynn, Professional Member M Mison, Professional member F Taylor, General Member Decision: 1 The respondent's registration is cancelled. 2 The respondent is prohibited from providing any health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) whether public, private or volunteer services. 3 The respondent is not to apply for a review of Orders 1 and 2 for a period of five years from the date of these reasons. Catchwords: Respondent convicted of criminal offences – whether respondent guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law – whether respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law – whether respondent guilty of professional misconduct within the meaning of s 139E of the National Law – whether respondent is not a suitable person to hold registration as a chiropractor Legislation Cited: Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) No 86a Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Gayed v Walton [1997] NSWSC 279 Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 Health Care Complaints Commission v Dawes [2015 NSWCATOD 8 Health Care Complaints Commission v Do [2014] NSWCA 307. Health Care Complaints Commission v Howe [2010] NSWMT 12 Health Care Complaints Commission v Litchfield [1997] NSWCA 264 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Sharah [2015] NSWCATOD 99 Health Care Complaints Commission v Taylor [2010] NSWNT 10 Lee v Health Care Complaints Commission [2012] NSWCA 80 New South Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Dong Won Choi (respondent) Representation: Counsel: A Petrie (Applicant) Solicitors: Health Care Complaints Commission (Applicant) In Person (Respondent) File Number(s): 2016/00378634 Publication restriction: The Tribunal makes a non-publication order in accordance with cl 7(1)(b)(iii) of Schedule 5D of the Health Practitioner Regulation National Law (NSW) No 86a in respect of the name of Patient A, Patient A's boyfriend, any patient who provided a statement to the police which was relied on in the criminal prosecution of the respondent, and any work colleague of Patient A. REASONS FOR DECISION Summary 1. The respondent is a registered chiropractor. By an Application for Disciplinary Findings and Orders dated 17 March 2016, the Health Care Complaints Commission (the Commission) seeks orders in relation to the following complaints where: 1. The respondent has been convicted of criminal offences in the State of New South Wales (Complaint One); 2. The respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law (Complaint Two); 3. The respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law (Complaint Three); 4. The respondent the guilty of professional misconduct within the meaning of s 139E of the National Law (Complaint Four); 5. The respondent is not a suitable person to hold registration as a chiropractor (Complaint Five). 1. The complaints are set out in Attachment A to these Reasons. The principal basis for the complaints is that, on 5 February 2015, the respondent was convicted of two counts of sexual intercourse without consent, in that, on 30 November 2011, he had sexual intercourse with Patient A without her consent, and knowing that she was not consenting to the sexual intercourse contrary to s 61l of the Crimes Act 1900. 2. The respondent denies each complaint. In his Reply to the Application, the respondent relevantly states: I do not agree on the conviction against me because I did not have any criminal motivation and conduct criminal behaviour on the patient. I did treatment procedures to remove patient's pains on the lower back and buttock. I will do code of criminal [appeal] when I afford to hire senior representative. 1. The respondent says that Complaints Two, Three, Four and Five are unreasonable. He says that he is of good character, and has asked a Superintendent of the Metropolitan Special Programs Centre at Long Bay Gaol to provide a character reference. 2. For the reasons set out below, the Tribunal finds each complaint proved, and orders that: 1. The respondent's registration is cancelled; 2. The respondent is prohibited from providing any health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) whether public, private or volunteer services; 3. The respondent is not to apply for a review of Orders 1 and 2 for a period of five years from the date of these reasons. 1. In these reasons, all statutory references are a reference to the National Law except where otherwise stated. Evidence 1. The Commission filed a bundle of 70 documents including but not limited to a certificate of conviction; the Agreed Facts at the criminal trial; a Victim Impact Statement of Patient A; a pre-sentence report of psychologist Ms Rima Nasr dated 9 December 2014; the trial judge's remarks on sentence; the transcript of the jury trial; various police statements and other victims statements; expert reports; clinical notes for Patient A; correspondence from the Commission and the Chiropractic Council of New South Wales (the Council) to the respondent, and relevant records of the Australian Health Practitioners Regulatory Authority (AHPRA). 2. The only document filed by the respondent was his Reply, to which was attached a copy of a report of Ms Rima Nasr. Background 1. The following matters are not in dispute and the Tribunal makes the following findings. 2. The respondent is aged 48 and was aged 43 at the time of the conduct giving rise to the criminal convictions. 3. In 2004, the respondent graduated from Macquarie University with a Bachelor of Chiropractic Science. 4. In 2008, the respondent graduated from Macquarie University with a Master of Chiropractic Science. 5. On 22 December 2008, the respondent was first registered as a chiropractor in Australia. 6. On 7 December 2011, the Commission notified the Council that the respondent had been charged by Police with the criminal offence of sexual intercourse without consent on 6 December 2011. 7. On 8 December 2011, the Council imposed a condition on the respondent's registration prohibiting him from treating any female patients effective from 8 December 2011. 8. On or about 9 January 2012, the respondent was granted bail conditional on victim protection. 9. On 29 February 2012, the respondent advised the Commission that Patient A was the only patient he had done the "internal rectal adjust technique" on and that he had two other patients to whom he did "external coccyx treatment". 10. On 7 November 2014, the respondent was found guilty of two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 by a District Court jury. 11. On 29 December 2014, the respondent submitted an online application for registration renewal to AHPRA in which he failed to disclose his criminal history. 12. On 5 February 2015, Judge Armitage of the District Court of NSW entered convictions against the respondent in respect of the two counts of sexual intercourse without consent. The respondent was sentenced to a term of imprisonment of two years to commence on 5 February 2015, with a non-parole period of one year (in respect of Count 1) and a separate sentence of 2 years, 6 months, to commence on 5 May 2015, with a non-parole period of 15 months (in respect of Count 2). 13. On 13 March 2015, the Council suspended the respondent's registration pursuant to s 150 of the National Law due to his repeated failure to disclose within his application for registration renewals to AHPRA that on 6 December 2011 he was charged with an offence that was punishable by 12 months' imprisonment or more. 14. On 19 March 2015, the Commission wrote to the respondent inviting him to provide submissions and advising that the Commission was proposing to refer the matter to the Director of Proceedings. 15. On 14 April 2015, the respondent wrote to the Commission, stating: I think I have been suffering enough from the hard time last 4 years and now in corrective centre I could not see patients last 4 years. Do you think you want to give me more? My registration will be cancelled because I cannot renew it. Also, this case will be reviewed at Supreme Court soon. I think you don't need to do about my registration. 1. On 28 May 2015, the Commission wrote to the respondent inviting him to make submissions in relation to whether he had provided false information regarding his registration renewals between December 2011 and March 2015 in contravention of s 130, and advising that the Commission was seeking to refer the matter to the Director of Prosecutions. 2. On 15 June 2015, the respondent wrote to the Commission. He denied that he had falsely disclosed his criminal history to AHPRA and submits that he was only required to provide notice of his criminal record from 5 February 2015 after he had been sentenced. He submitted that on 5 February 2015, he was incarcerated and therefore not in a position to notify the National Board. He maintained his innocence in his correspondence. (The Tribunal notes that the respondent maintained this position during the hearing, and also in his post-hearing submissions.) 3. On 13 August 2015, the Commission wrote to the respondent advising him that the issue of false information had been referred to the Director of Proceedings. 4. On 10 September 2015, the respondent wrote to the Complainant denying that he had provided any false information in his registration renewals as he was not sentenced until 5 February 2015 and had previously had conditions imposed on his registration. Again, he maintained his innocence. Agreed Facts 1. The Agreed Facts tendered in the criminal proceedings were relied on by the Commission in these proceedings. Relevantly, they provide: In November 2011 [Not for publication]. The offender, Dong Won ("Winston") CHOI, operated a one-man chiropractic business [Not for publication]. The victim [Patient A] had been suffering lower back pain. Physiotherapy treatment had been unsuccessful. A colleague recommended the offender. The victim attended her first appointment with him on 14 November 2011. He treated her condition, this included back massage. She felt some relief from the treatment and agreed to a follow-up appointment. By the morning of 30th November 2011, her back pain had returned. She was at work and contacted the offender. He agreed to see her in her lunch hour. She attended his room after lim. she was dressed in her usual work outfit; long pants, underpants, a bra and a t-shirt. The offender ushered into his room, locking the door behind her. He invited her to lie face down on the chiropractic bed. She did so, He massaged or 'palpated' various parts of her spine and lower back, eliciting responses from her. He then told her she needed to take her pants off. She managed to unzip her fly but had difficulty in her prone position removing the pants. The offender then pulled her pants down to her knees, her underpants came with them. Using his hand, the offender then demonstrated to her how her tailbone ("coccyx") was sticking into her back. He told her he would need to insert his finger into her anus to correct its position. (There is a legitimate, last-resort treatment for coccyx adjustment in this manner called the "rectal technique", two expert witnesses gave evidence during the trial about that procedure). The victim asked the offender • "Is it 100% necessary?". He responded "Yes". The offender put on latex gloves. He told the victim: "I'm going to touch here" As he said that he touched her anus. Then he touched her vagina saying: "I need body fluid from here" She asked: "Don't you have lubricant in your office?" He replied: "I've run out of lubricant . . . body fluid is better for your health". COUNT 1 He said: "I'm not getting enough fluid. I'm going to need to put my finger in your vagina to get more fluid." As he was saying that he inserted his finger/s into her vagina. The victim could feel his fingers moving in and out for 30-60 seconds; they were rubbing the walls of her vagina. During this she ". . . still had my head locked in between the pillows and my elbows down . . . I was shaking and sweating. . . " The offender removed his fingers. He then re-inserted his finger/s into her vagina. She described it thus: "at one point he went really far, I could feel his fingertip like it kind of hits my tummy . . I think he hit . . . the uterus, like it was really far in". He removed his finger/s. He told her to lie on the left side facing the wall. He inserted his finger into her owners and pulled out-away from her back. This caused her considerable pain. COUNT 2 He then re-inserted a finger into her vagina and it felt to her as if he was ". . . trying to pull it away from my body". She said : "Winston - that's my vagina". He replied: "Sorry". He withdrew his finger. He told her to lie on her other side. She did so. He reinserted a finger into her anus and repeated the earlier movement, pulling out and away from her body. He then told her to lay on her tummy which she did. He inserted two fingers into her anus and started lifting towards the ceiling. The victim "kicked my leg a few times and because it was so painful . . . l try to squeeze my buttocks trying to kind of forcing his fingers out because l don't have any other way. And then I try to get up with my elbow, like I tried to hold myself up." She yelled out : "Pain!" He said "Just a couple more" and she replied "No, sorry, I can't. Its too much pain, like, I can't do it anymore". She got up from the bed and put her pants on. The offender told her he would do some massaging. He got her to sit upright on the bed. He got her to do some stretches. He "cracked" her back. He massaged her face, neck, shoulders and chest. The victim paid the offender his fee for service. When asked why she did not say anything to him about what had just happened she said : "I was very upset and I was a bit angry and because /know that he's going to give me the some answer anyway, and I wanted to get out of his office as soon as I can". Within the next few hours the victim told some of the detail of what had occurred to work colleagues and to her boyfriend. Evidence at the hearing 1. The respondent was cross-examined at the hearing. 2. At the commencement of his cross examination he denied the five complaints. He said that, as the regulatory authorities knew about his charges, he did not have a separate duty to inform them of his convictions. He agreed that he did not make any enquiries about his obligations to report the convictions. The respondent said that he thought that AHPRA and the other authorities were aware of his convictions, and that there was no independent obligation on him to report them. In relation to Complaint Three, he said that his understanding was that his criminal record started or commenced with sentencing. He denied that he lied to AHPRA when he replied no to the question whether he held a conviction. 3. During the course of his cross-examination, the respondent said that he planned to appeal, and that he was not guilty. 4. Ms Petrie questioned the respondent about the Agreed Facts. He again said that he was innocent, and said that Patient A exaggerated evidence on the encouragement of her boyfriend. In his view, he had done nothing wrong. 5. In relation to his consultation with Patient A, he was asked directly whether he had discussed other treatment options with her. He said that he explained the procedure and received Patient A's permission. When pressed about other treatment options, the respondent said that no other treatment options were discussed. He said that he chose the particular treatment because of Patient A's coccyx pain. He agreed that he locked the door of his consulting room. He also agreed that he did not use any lubricant. He was asked whether he could have obtained lubricant from somewhere else, and he said that he could not. When asked why not, he said that he misunderstood the necessity for lubricant. He agreed that he never kept lubricant on his premises and used skin lotion instead. 6. The respondent said, perhaps surprisingly, that the use of a latex glove was sufficient. Counsel challenged him about this, suggesting that there was no lubricant on a latex glove. The respondent said the lubricant came from "fluid from sweat". He denied that he took lubricant from Patient A's vagina, and said that he took fluid from her sweat gland and her inter coccyx mucus. The Tribunal notes that this evidence was consistent with his post-hearing submission that his lubricated latex glove combined with Patient A's physical structure (her coccyx being covered with mucus membrane and having an intestinal fluid gland and sweat gland) were enough for the lubrication. 7. During the course of his cross-examination, the respondent denied many of the Agreed Facts that were presented to the jury at his criminal trial. He denied that he inserted his finger in Patient A's anus three times. He denied that she kicked him and asked him to stop. He said this was a lie and simply her version of events. When asked whether he thought Patient A was comfortable, he said that she was "not too much uncomfortable". When asked about the manner of pulling down Patient A's pants to allow access for his treatment, Counsel reminded him that the professional guidelines provided that the patient was always to remove their clothing. Counsel asked him whether he thought his actions were inappropriate. He said it was not a problem. When referred to the chaperone options in the guidelines, the respondent said he did not find out, and did not give Patient A that option. 8. Counsel for the Commission also discussed with him the trial judge's remarks on sentence, in which he stated that Patient A sustained injuries from his treatment. The respondent said that the Patient A did not sustain injuries. 9. Counsel spent some time asking the respondent whether he had reflected on his conviction, particularly during the period of his incarceration. She asked him whether there was anything else he wanted to say, apart claiming his innocence. The respondent said that he did a lot of physical and spiritual healing in gaol, and that he now wanted to save money for an appeal. 10. Towards the end of the cross examination, Counsel asked the respondent what, if anything, he had learned from the experience of being convicted, and whether he had reflected on why the jury convicted him. She asked him whether he would do anything differently. The respondent said that he would not perform the procedure again. He said that he wanted to treat Patient A's pain, but he was misunderstood. He said he tried to be kind to Patient A, but he had heard that she had applied for $200,000 of compensation. He said that one of the reasons she made the complaint was to get money. 11. Counsel asked the respondent if he had read Patient A's Victim Impact Statement, and how it made him feel. In that statement, Patient A, stated that her working life had been interrupted as she had had to quit her job [Not for publication]. She said that her grades [Not for publication] had dropped off considerably, and that she struggled to connect to people in good faith or to trust them in the aftermath of the respondent's crimes. The trial judge found that her distress was palpable from her statement and that she had suffered considerably as a result of her exposure to the respondent's conduct. When asked whether he thought Patient A was comfortable while she undertook his treatment, the respondent said that Patient A may have felt "a bit uncomfortable", but then asked, what about "my side". The respondent said that the judge and the jury only listened to Patient A's complaints. When asked whether he had reflected on how Patient A felt, and what he would should do in the future, the respondent stated that Patient A had exaggerated her claims during the trial, and was influenced and manipulated by her boyfriend. He said that they made a plot together. Consideration of the respondent's evidence 1. We accept entirely the characterisation of the respondent's evidence given in cross-examination as stated in the detailed submissions of the Commission. The principal matters emerging from those submissions, which we accept, are that: 1. The respondent was an unreliable and evasive witness who showed limited insight in relation to how his own conduct had led to his criminal convictions. The respondent's preoccupation with Patient A seeking compensation, and his opposition to a non-publication order in relation to her, is illustrative of his lack of insight. As noted, the respondent told the Tribunal on a number of occasions that Patient A was a liar, and she had made up the complaint so as to be able to obtain compensation; 2. The respondent focused on protesting his innocence and his future intention to appeal, despite no appeal having being lodged during the requisite time and despite him having served his term of imprisonment; 3. It was apparent from the respondent's evidence when questioned by both of the professional members of the Tribunal that his treatment of Patient A was inappropriate, if not incompetent. A similar position was taken by Dr Engel, the expert called by the prosecution during the respondent's criminal trial; 4. During the course of his cross examination, the respondent gave evidence consistent with what he told the Police, that is that he had never used lubricant for patients. The Commission submits that his failure to keep lubricant in his medical practice or to use it when administering internal procedures is one of many examples of why the respondent is not suitable to practise as a Chiropractor. The respondent confirmed during cross examination that he misunderstood the necessity for lubricant, and that he never kept in on his premises. It is to be noted that it was an agreed fact that he told Patient A that he had run out of lubricant. 1. The Commission submits, and the Tribunal accepts, that throughout the proceedings the respondent was more focused on his entitlement to practice as a Chiropractor, the fact that he has been the subject of restrictions in being precluded from treating female patients from December 2011 to February 2015, when he was imprisoned, and then subsequently suspended. He provided no evidence before the Tribunal that the conduct which gave rise to the criminal convictions would never occur again. There was no evidence that he was a changed person, that he had addressed his inadequacies as a Chiropractor or reflected properly on his conduct and how to ensure that it did not occur again. In this respect, the Commission relies on Health Care Complaints Commission v Litchfield [1997] NSWCA 264 where the Court of Appeal stated at 6: No explanation was offered by the doctor which made it unlikely that the conduct would occur again. Moreover there was nothing to suggest that the doctor had become a changed person during the four years since the last of the incidents … in cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 461: "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a credible kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man. 1. The Commissions submits, and the Tribunal; accepts, that other than the respondent's own evidence, there is no third party evidence of the respondent's professional integrity or personal integrity. 2. At the time the respondent was charged, the respondent asked the Police not to tell the Commission or any other relevant authority of his criminal charges. When the respondent applied for a renewal of his registration he did not disclose that he had been found guilty by the jury on 7 November 2014, prior to his sentencing hearing on 5 February 2015, with his renewal application for registration being submitted online on 29 December 2014. The Commission submits, and the Tribunal accepts, that such evidence is evidence of the respondent's willingness to deceive the professional bodies responsible for his registration to enable him to continue to practice. 3. During the course of the hearing, the respondent did not provide to the Tribunal, other than his own evidence, any evidence to show that he was a suitable person to practice, including evidence of reformation of character. He had not undergone any counselling as recommended by a psychologist. 4. Consistent with the evidence that the respondent gave to NSW Police, the respondent said when cross examined that he pulled Patient A's pants down to gain access to her coccyx and to perform the internal procedure. The Complainant submits that the removal of Patient A's clothing by the respondent was inappropriate. Such conduct also invited the strong criticism of Crown's expert Ms Stone. Submissions of the Commission 1. The Commission's Counsel provided very detailed and helpful submissions to the Tribunal which is not necessary to repeat. Suffice it to say, for the reasons appearing below, we accept those submissions and find all the complaints proved. Submissions of the respondent 1. After the hearing, the respondent provided submissions to the Tribunal. In relation to Complaints One and Two, the respondent states: The respondent does not agree on the conviction and will apply for appeal when his financial condition is affordable. Reasons: 1) The patient and her boyfriend applied for the compensation of $200,000 with regard to this event. They must be plot and plan for the money from making this case. 2) The respondent had no any motivation, no plan and no misconduct related to this case. 3) Lubrication – The respondent's lubricated latex glove and patient's physical structure (The coccyx is covered with mucus membrane and has intestinal fluid gland and sweat gland) are enough for the lubrication. 4) A good character person – The respondent is a person of having a good character. He did not violate any restriction condition of HCCC from Dec. 2011 and did not violate any condition of bail from Dec. 2011, and did not violate any traffic signals from June 2014, so classified as C3 (top level for good prisoner) when he released. 5) Rationale of selecting rectal technique - The respondent found patient's lower back pain which is coming down to buttock and sacrum and coccyx from his palpation. X-ray diagnosis showed mild tilted coccyx into front-right side. 6) Thumb rectal technique – This technique is presented and supported by other practitioners in the internet and the number of treatment is also supported 2-3 times. There is no master manual for chiropractic technique, it should be determined by practitioner according to the clinical conditions. 7) Observer - This cannot be always obeyed in real clinical conditions, but Dr. Sharon Stone (DPP's expert) agreed she did not obey this at her clinic. 1. In relation to Complaints Three, Four and Five, the respondent states 1) The criminal record of the respondent has determined and recorded on Feb 5, 2015, after his sentence hearing. All HCCC's complaint 3, 4, 5 are belonged prior to this date, they are invalid. 2) When the respondent applied for renewal registration, there was no ) information on the notice of failed trial result to within 7 days after the failed date. The respondent knew this obligation (notice of failed trial result within 7 days) in this civil tribunal. 3) The respondent did not receive any information about this obligation from chiropractic board or HCCC before. 4) The National registration board already knew this case and restricted the respondent license on Dec. 2011 from the requests of police and HCCC, and sent restricted license certificate to the respondent. 5) The National registration board already knew the progress of this case and sent suspended license certificate to the respondent in the mid of 2015. 1. At the conclusion of his submissions, the respondent states that he: has been experiencing harsh financial time due to the restricted work and no-work from the end of 2011, he served 18 month in custard [sic - custody] period and is looking for code of appeal. The respondent ask tribunal members to release his suspension so, he can work and recover from this situation and serve community, soon. 1. It is to be noted that in his submissions the respondent maintained his innocence of the charges of which he was found guilty by the jury. Consideration 1. The standard of proof required to establish complaints is the civil standard of proof, that is, on the balance of probabilities. However, given the seriousness of the allegations and the gravity of the consequences, the Tribunal must be "reasonably satisfied" that the particulars of the complaint have been established: Briginshaw v Briginshaw (1938) 60 CLR 336. Complaint One 1. The Tribunal is satisfied that Complaint One is established. The respondent was convicted of two counts of sexual intercourse without consent on 30 November 2011. He has served his term of imprisonment. The Tribunal placed no weight on his submission that he intends to appeal in respect of his convictions. Complaint Two 1. Relevantly, s130 of the National Law provides as follows: (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, given the National Board that registered the practitioner or student written notice of the event. . . . (3) In this section relevant event means: (a) in relation to a registered health practitioner: . . . (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment." 1. Having considered all the evidence before it, the Tribunal finds that the respondent failed to notify the Chiropractic Board of Australia within 7 days of him having been found guilty in relation of the two criminal charges. The Tribunal notes that the respondent submitted that he was under no obligation to do so as he had not been sentenced, but conceded under cross-examination, after being taken to the relevant legislation and guidelines, that he did have a duty to do so. The Tribunal finds that the respondent conceded that he had failed to so notify the Chiropractic Board of Australia either at the time that the jury found him guilty on 7 November 2014 or at the time that he was convicted on 5 February 2015. 2. There was nothing raised in the respondent's submissions which causes the Tribunal to not accept the Commission's submissions on this issue. The Tribunal is satisfied that Complaint Two is established. Complaint Three 1. Complaint 3 relates to a finding of unsatisfactory professional conduct on the basis that the respondent has engaged in improper or unethical conduct relating to the practice of chiropractic, in circumstances where he made false statements in his renewal of registration application submitted on 29 December 2014 by answering "No" to question 7 that "during your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?" and declaring that the details given in his renewal of registration were true and correct. 2. Section 109(1)(b) of the National Law provides as follows: "(1) An application for renewal of registration must include or be accompanied by a statement that includes the following: . . . . . (b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration" 1. Section 5 of the National Law defines "criminal history" as: "(b) every plea of guilty or finding of guilt by a Court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence". 1. The Tribunal finds that finds that the respondent had an obligation pursuant to the provisions of the National Law to disclose to AHPRA in the renewal of his registration that during the preceding period of registration there had been a change to his criminal history that he had not declared to AHPRA, namely that he had been found guilty of two offences and he made a false declaration in this regard. 2. The Tribunal accepts that par [3] of the Chiropractic Board of Australia's Criminal History Registration Standard refers to not only a conviction but also "a finding of guilt". 3. We accept that submission. There was nothing raised in the respondent's submissions which causes the Tribunal to not accept the Commission's submissions. The Tribunal is satisfied that Complaint Three is established. Complaint Four 1. Compliant Four is the allegation of professional misconduct. The Commission submits that the respondent is guilty of professional misconduct in circumstances where the matters contained in Complaints Two and Three, both cumulatively and separately, are of a sufficiently serious nature to justify suspension or cancellation. 2. We accept that submission. There was nothing raised in the respondent's submissions which causes the Tribunal to not accept the Commission's submissions. The Tribunal is satisfied that Complaint Four is established. Complaint Five 1. The final complaint is that the respondent is not a suitable person to hold registration. The Commission correctly submits that there is an obligation placed on a National Board by the National Law to ensure that only suitable persons are granted the privilege of registration. This obligation arises from the provisions of s 55(1)(h)(i) and s 55(1)(h)(ii) which relevantly state: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if- . . . (h) in the Board's opinion, the individual is for any other reason- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. 1. "Suitable" is not defined in the National Law. The Commission relies on the following matters in submitting that the respondent is not a suitable person to hold registration. 2. The Commission submits that the respondent is unsuitable to hold registration as a chiropractor by reason of the following matters: 1. The respondent's lack of professional integrity. This submission is based on the seriousness of the offences, which occurred in the course of the respondent's practice as a chiropractor, and the lack of evidence from colleagues of the respondent or other persons that would give the Tribunal confidence that the manner in which the respondent conducted himself during the consultation with Patient A was an aberration or somehow out of step with the way he generally conducted himself in his practice as a chiropractor; the respondent's failure to notify the National Board when he was found guilty and later convicted of the criminal offences, and the respondent's admission that he did not take any steps to inform himself of his professional obligations. 2. The respondent's lack of personal integrity This submission is based on there being no evidence before the Tribunal in the form of character references or testimonials; 3. The respondent's lack insight into his conduct This submission was primarily based on the respondent's continued denials that he was guilty of the offences of which he has been convicted, and his failure to reflect on any failings in his own practice or conduct that might have given rise to Patient A's complaint. When asked about his reflections on his conduct, the respondent repeatedly gave responses that were evasive and deflected blame onto Patient A and Patient A's boyfriend, whom he alleged had been plotting and lying in order to obtain compensation; 4. The respondent's lack of insight into the need to remediate his personal and professional deficits. The Commission submitted that the respondent's evidence demonstrated a marked lack of insight. The Commission submitted that not only did the respondent continue to deny that he was guilty of the offences of which he had been convicted, he had failed to reflect on any failings in his own practice or conduct that might have given rise to Patient A's complaint. The Commission submitted, correctly, that the respondent repeatedly gave responses that were evasive and deflected blame onto Patient A and Patient A's boyfriend, rejected any suggestion that Patient A had suffered harm from the treatment he provided, and did not accept that Patient A had experienced considerable pain and discomfort during the treatment. 5. The inadequate steps, if any, taken by the respondent towards such remediation. This submission was based on the following matters. The respondent gave evidence that he had engaged in limited informal continuing education since his registration was suspended in 2015. This consisted of self-directed learning such as reading journal articles. There was no evidence before the Tribunal as to the topics of the articles and for what period the respondent has engaged in such continuing education. Aside from his evidence that he reflected on his spirituality and relationship with God during his incarceration, there was no evidence before the Tribunal that the respondent had given consideration to any defects of character or any other personal issues that he might address in order to ensure he did not find himself the subject of similar complaints in the future. 6. The respondent's lack of regard for the dignity and wellbeing of Patient A. The Commission submitted that the respondent's lack of regard for the dignity and wellbeing of Patient A was of concern. The Commission submitted that his failure to recognise her pain and discomfort was concerning, as was his lack of empathy for her position, even with the benefit of hindsight. The Commission submitted that the practice of chiropractic requires a practitioner to be empathetic and attuned to the patient, particularly with vulnerable patients such as Patient A who was in significant pain at the time of her consultations with the respondent. 1. The respondent made no submission directly relating to Complaint Five. Conclusion as to suitability to hold registration 1. The Tribunal finds that all these matters, when considered cumulatively, indicates that the respondent is not a fit and proper person for general registration as a chiropractor, and therefore is not is not a suitable person to hold general registration in a health profession. 2. The particulars relied on by the Commission for Complaint Five included Complaints One, Two and Three and the particulars thereto. In the circumstances, it is not necessary to make any finding in relation to the respondent's ability to practice competently, or the sufficiency of his communication skills, and whether those skills comply with s 139(b) of the National Law. However, we agree with the Commission that the respondent's evidence in cross-examination raises concerns regarding his ability to practice competently and safely, especially in relation to the lack of lubricant during the internal coccyx adjustment. Appropriate orders 1. The relevant principles include the following: 1. The nature of the jurisdiction of the Tribunal is not to punish the respondent, but to protect the public and to maintain proper standards in the chiropractic profession: Clyne v New South Wales Bar Association [1960] HCA 40; Prakash v HCCC [2006] NSWCA 153 2. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public: s 3A. 3. There are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include the reminder to other members of the profession of the public interest in maintaining high professional standards and the unacceptability of certain kinds of conduct and the maintenance of confidence in the high standards of the profession: New South Bar Association v Meakes [2006] NSWCA 340. 4. The deterrent aspect to the protective nature of the jurisdiction: Health Care Complaints Commission v Do [2014] NSWCA 307. 5. In the exercise of protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the profession, the preservation of public confidence in the profession and the protection of the community: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]. 6. There is a special relationship of trust between medical practitioners and female patients: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. 7. The test for cancellation of a practitioner's registration under the National Law was stated by the Tribunal in Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [278] to [281] as follows: [278] In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18]. [279] The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. [280] Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. [281] Past cases referred to the determination of whether the practitioner is "permanently unfit to practice" in making an order for de-registration: Stanoevski v Law Society of New South Wales [2008] NSWCA 93 at [52]- [54]. More recent consideration of these cases clarify that an undue focus on the word "permanent" is a gloss. It is demonstrated current unfitness, not a prophesy of permanent unfitness, that is required to justify deregistration: Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102]; Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31. 1. The Commission seeks orders that: 1. The respondent's registration is cancelled; 2. The respondent is prohibited from providing any health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) whether public, private or volunteer services; 3. The respondent is not to apply for a review of Orders 1 and 2 pursuant to s 163A of the Health Practitioner Regulation National Law (NSW) (National Law) for a period of 10 years from the date of judgment being delivered by the Tribunal. 1. In circumstances where the respondent has been found guilty of serious criminal offences, the offending conduct occurred in the course of his practice as a chiropractor and the respondent has demonstrated little to no insight, the Commission submits that the continued registration of the practitioner would damage the reputation of the profession and the confidence the public reposes in the profession. 2. The Tribunal agrees. As noted, there is a special relationship of trust between health practitioners and female patients, which relationship was broken by the respondent. We consider that cancellation and disqualification is the only appropriate course given the objective seriousness of the respondent's conduct, his lack of insight into his conduct: Health Care Complaints Commission v Dawes [2015 NSWCATOD 8. 3. Given the respondents' lack of remorse, his lack of insight, his positive and unbased assertions that Patient A lied, and that she and her boyfriend plotted to lay the compliant in order to achieve a compensation payout, the appropriate order to protect the public, maintain the standards of the chiropractic profession, and preserve public confidence in the chiropractic profession, is to cancel the respondent's registration. When the respondent's conduct is considered as a whole, it is of a sufficiently serious nature to justify suspension or deregistration: Perroux. 4. The HCCC also seeks a prohibition order pursuant to s 149C(5) of the National Law to prevent the respondent from providing any health service. The Tribunal accepts that there is a "substantial risk to the health of members of the public" which is a precondition to the making of such an order, and that it is a risk that is real or apparent on the evidence presented and not a risk that is without substance, or which is fancy or speculative: Health Care Complaints Commission v Taylor [2010] NSWNT 10; Health Care Complaints Commission v Sharah [2015] NSWCATOD 99. 5. In the circumstances, the Tribunal makes the prohibition order as sought. 6. The Commission also seeks an order that the respondent not be able to seek a review of its orders for ten years. 7. The Commission correctly submitted that the Court of Appeal in the Court of Appeal has cautioned against the use of comparative cases in the determination of periods of suspension: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [24] - [25], and found that comparison with a single, other "comparative" case provided "no useful or meaningful guidance": at [76]. However, the Court stated that a court or tribunal may proceed on the basis that comparison with the outcomes in earlier cases if those earlier cases show some discernible range or pattern, although such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct". 8. The Tribunal considers that the appropriate period before the respondent can seek a review of its orders is five years. Costs 1. This is a costs jurisdiction. As a general rule, costs of proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45]. 2. The Commission has been entirely successful. In the circumstances, the Tribunal proposes that the respondent should pay the Commission's costs of the proceedings. Both parties have leave to file submissions on costs within 14 days if they seek some other order, and each may reply within a further 14 days. Orders 1. The Tribunal finds that each of Complaints One, Two, Three, Four and Five proved, and orders that: 1. The respondent's registration is cancelled; 2. The respondent is prohibited from providing any health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) whether public, private or volunteer services; 3. The respondent is not to apply for a review of Orders 1 and 2 for a period of five years from the date of these reasons. Attachment A (21.4 KB, docx) 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 30 May 2017 - Information restricted and marked 23 June 2017 - Paragraph 74 word replaced with unbased 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: 23 June 2017