Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149 Hearing dates: 19 and 20 July 2017 Date of orders: 23 October 2017 Decision date: 23 October 2017 Jurisdiction: Occupational Division Before: S McIllhatton, Senior Member Dr G Wynn, Professional Member Dr Kostur, Professional Member Dr Berglund, Lay 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 Respondent is to complete a course on Professional Boundaries conducted by Davaar Consultancy Training and Development within 12 months of the date of this decision. (5) If the course specified in Order 4 is unavailable then the Respondent is to complete an equivalent course as approved by the Chiropractic Council of NSW (the Council). (6) The Respondent is to provide evidence in writing to the Council of the successful completion of a course on Professional Boundaries within 12 months of the date of this decision. (7) All costs associated with completing this course are to be met by the Respondent. (8) The conditions appearing in Attachment A to these reasons are to be placed on the Respondent's registration for a period of 12 months from the date of this order. (9) The Chiropractic Council of NSW is the appropriate review body of these conditions for the purposes of Part 8 of the National Law. (10) The Registrar is requested to notify the Chiropractic Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 - 9 above as soon as practicable. (11) An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of Patient A appearing in the Schedule to the Complaint. (12) The Tribunal makes the following directions: (i) The Applicant is to file and serve submissions on costs within 14 days of the date of this decision. (ii) The Respondent is to file and serve submissions on costs within 28 days from the date of this decision. (iii) The question of costs is to be determined on the papers. Catchwords: Chiropractor - professional boundaries - communication with patient after complaint made – complaint withdrawn by patient - false statements made to the Health Care Complaints Commission about extent of contact with patient. Improper and unethical conduct. Whether conduct amounted to professional misconduct. 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 HCCC v Chowdhury [2015] NSWCATOD 65 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Walid Kesserwani(Respondent) Representation: Counsel: Ms Hartstein (Applicant) Mr Downing (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2016/00378838 Publication restriction: An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of the Patient appearing in the Schedule to the Complaint of Patient A. Reasons for decision Background 1. Dr Kesserwani is the Respondent to a complaint of unsatisfactory professional conduct and professional misconduct initiated by the Health Care Complaints Commission (the Commission). 2. Dr Kesserwani is a chiropractor. He holds a Masters of Chiropractic. He was first registered in 2007. He has been in private practice in NSW on his own account since 2007. 3. Between February and May 2015 Dr Kesserwani treated Patient A. During this time there was some discussion between them about their work and the potential for cross referral of patients and clients. In this context they exchanged mobile phone details. 4. On 12 June 2015, Patient A made a complaint to the Commission alleging that she had engaged in sexual activity with Dr Kesserwani during two consultations that took place on 13 May 2015 and 25 May 2015. 5. Dr Kesserwani was overseas between 1 and 23 June 2015. He was unaware of the complaint until 24 June 2015. 6. On 24 June 2015, Patient A contacted the Commission and requested that her complaint be withdrawn because the allegations forming the basis of the complaint had never occurred. Material before the Tribunal about Patient A suggests that there are some difficult issues in her medical and personal history. In a statement she made to the Commission dated 4 December 2015 she indicated that in April 2015 she had ceased taking medication which had been previously prescribed by a psychiatrist. 7. On 30 June 2015 proceedings were brought under S.150 of the Health Practitioners National Law NSW against Dr Kesserwani by the Chiropractic Council of NSW (the Council). These proceedings were triggered by information received by the Council of Patient A's complaint. Dr Kesserwani was not required to attend the proceedings. At the conclusion of these proceedings the Council delegates determined that it was appropriate to impose conditions on Dr Kesserwani's registration requiring a chaperone to be present when he was with female patients. 8. These conditions remained on Dr Kesserwani's registration from 2 July 2015 until 13 August 2015. They do not appear as part of the current conditions on his registration. Although there are different current conditions on his registration, they are not germane to the present matter. 9. By letter dated 3 July 2015 the Commission wrote to Patient A. In this letter the Commission noted Patient A's request to withdraw the complaint, however declined to approve the request given the serious allegations which she had raised. She was advised of the s.150 proceedings and the imposition of conditions on Dr Kesserwani's registration. She was further advised that the matter had been referred to the Council for management of Dr Kesserwani's practice conditions, and that her allegations had been referred to the Commission for investigation. 10. By letter of the same date the Commission notified Dr Kesserwani that the Council had made a complaint to the Commission which required investigation. In a subsequent letter dated 23 July 2015 the Commission wrote to Dr Kesserwani advising that the purpose of the investigation was to obtain further information in order to determine what, if any, further action was required. Various pieces of correspondence then followed in which the Commission sought information and responses to information from Dr Kesserwani. 11. By letter dated 11 April 2016 the Commission advised Dr Kesserwani that it had concluded its investigation into the complaint, and it proposed to refer the matter to the Director of Proceedings for a determination as to whether to prosecute a complaint before a professional disciplinary body. The Application before the Tribunal 1. The application for disciplinary findings and orders against Dr Kesserwani is 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 as amended dated 14 June 2017 (the Complaint). The Complaint makes three individual complaints against Dr Kesserwani. The first complaint is supported by a one particular. The second complaint relies on a separate set of particulars. The third complaint relies on the particulars as contained in both the first and second Complaints. 2. The first and second complaints allege that Dr Kesserwani has been guilty of unsatisfactory professional conduct within the meaning of s139B(1)(a) and (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 of s.139B(1)(a) and (l) 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 third complaint alleges that Dr Kesserwani 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 Kesserwani's registration be suspended for a period of three months. 2. Both parties attended the hearing. At the time of the hearing a number of documents had been amended. These included the Complaint, Dr Kesserwani's reply and statement, and an expert's report dated 14 January 2016. Dr Kesserwani's reply to the amended Complaint was to the effect that whilst he admitted that he was guilty of unsatisfactory professional conduct, he did not admit he was guilty of professional misconduct. In broad terms with the exception of one particular, Dr Kesserwani admitted the particulars in the Complaint but sought to provide context and explanation. Particulars of the Complaints Complaint One and Two: Unsatisfactory Professional Conduct 1. The particular supporting Complaint One alleges that between 13 May 2015 and 30 May 2015 Dr Kesserwani communicated with Patient A in an inappropriate manner through the exchange of multiple mobile phone text messages. This particular was admitted by Dr Kesserwani. However, he contended that whilst the texts were familiar in tone they were not inappropriate. 2. The first particular in support of Complaint Two alleges that Dr Kesserwani contacted Patient A by telephone on 24 June 2015 after he had been informed by a representative of the Chiropractic Council of New South Wales that a complaint had been made against him, and in circumstances where he was aware or suspected that the complaint had been made against him by Patient A. This particular was denied by Dr Kesserwani. 3. Particular two is to the effect that on or around 24 June 2015, after Dr Kesserwani was made aware by Patient A that she had made a complaint against him: 1. He agreed with Patient A that they would delete mobile phone text messages that they had exchanged 2. He deleted approximately 45 text messages which had been exchanged between himself and Patient A from his mobile phone. 1. This particular was admitted by Dr Kesserwani. He explained that he deleted specific texts at the request of Patient A. 2. Particular three alleges that on 24 June 2015 Dr Kesserwani continued to have telephone contact with Patient A in circumstances where a complaint had been made and Patient A was in the process of withdrawing that complaint. Dr Kesserwani admits this particular but claims that he did not know Patient A had made a complaint to the Commission until she told him by telephone on 24 June 2015. He added that Patient A told him in subsequent phone calls that she would tell the truth and was withdrawing the complaint as it was false. 3. Particular four alleges that Dr Kesserwani continued to have telephone and text message contact with Patient A on 25 June 2015 and after in circumstances where he was under investigation by the Commission in relation to Patient A. Dr Kesserwani admitted this particular but explained he did not know he was under investigation by the Commission because Patient A had advised him that she was withdrawing the complaint. 4. Particular five, which is admitted by Dr Kesserwani, is that he made a false statement in a submission to the Commission dated 11 August 2015. The false statement was that after 30 May 2015 he had had no contact with Patient A in circumstances where phone records show he had contact with Patient A up to and including 30 July 2015. 5. Particular six, which is also admitted by Dr Kesserwani, is that he provided an annexure to his submission to the Commission which contained a table of text messages falsely purporting to be a record of all text messages sent to and from Patient A. The evidentiary material Complaint One 1. There is only particular grounding this complaint. The Applicant pointed to evidence of some 85 text messages exchanged between Dr Kesserwani and Patient A between 13 May 2015 and 30 May 2015. The material is contained in a statement of Patient A dated 4 December 2015, screen shots from Patient A's phone of text messages sent and received; and call charge records for phones belonging to both Patient A and Dr Kesserwani. Not all texts were available to the Tribunal because as admitted by Dr Kesserwani and detailed by particular two of Complaint Two, some texts had been deleted. 2. Examples of the text messages that were not deleted include: Saturday 16 May 2015 at 7:12 pm Patient A: Am I still in your thoughts? Dr Kesserwani: Yes evil one except I had to get distracted … 24 May 2015 at 3:23 pm Patient A: You should come over my place? I would invite myself to yours but I think that may be stalker like Dr Kesserwani: I would love to but it might be a bit late … but I would absolutely love to. Patient A: Ok then. I'll see you another time maybe 1. The call charge records suggest that Dr Kesserwani replied but that reply and the next 11 texts have been deleted. 2. On 25 May at 9:59 pm (after a series of deleted texts) there is the following exchange: Patient A: Talk to me. Tell me what's going on in your mind so I can get to know you better. Dr Kesserwani: Sorry I literally just finished it has been crazy, ask away and I would be more than happy to share :) … Patient A: …No questions from me. Would prefer u just tell me something! Anyway, enjoy rest of night. Chat to you another time." Dr Kesserwani: Well how about you tell me what you have had for dinner entice me as I am hungry and this fridge even though it is clean as hell is empty lol" Patient A: Lol I could of cooked you something … 1. Later on in the exchange in answer to Patient A's question about what foods he likes Dr Kesserwani says: "I know I know, the foods I enjoy are dependent on my mood, and you might frown upon me if I were to tell you" 2. On 30 May 2015 at 7:31 pm there was the following exchange: Patient A: "How are you? I'm disappointed I haven't heard from you" Dr Kesserwani: Yes I can imagine but this week I have been finishing pretty late … Regardless I know I should make time I know it is just a bit crazy now I hope you understand" 1. Dr Kesserwani contended that whilst some texts were familiar they were not improper and others concerned Patient A's medical condition. In his amended statement he accepted that he did not deal with Patient A's texts adequately or appropriately. In oral evidence he indicated that he had enrolled in a Professional Boundaries course conducted by Davaar Consultancy Training and Development. 2. Under cross examination Dr Kesserwani gave evidence he was unsure how to respond to messages from Patient A. He did not want to offend Patient A and he believed he was doing his best to deflect her. However he conceded that he should have dealt with the texts better. He added that he now understood he should have been clear and firm in responding to Patient A. At the time he did not know how to deal with the situation. He was due to travel overseas and he thought by ignoring it the situation would resolve. 3. Dr Andrew Paul, Chiropractor and Osteopath prepared a peer review report dated 14 January 2016 which was augmented by a supplementary report dated 30 January 2016. The report reviewed and expressed opinions as to the conduct of Dr Kesserwani and the social relationship that developed between him and Patient A. Based on the content of the text exchange between 13 and 30 May 2015 Dr Paul expressed the view that Dr Kesserwani had moved beyond a professional relationship and entered a personal relationship with Patient A where there was a level of flirtatious communication exchanged. 4. Dr Paul gave oral evidence that in his opinion Dr Kesserwani had allowed the text messages to get to a dangerous level by not being more forceful in his replies to put an end to any suggestion of building a relationship. In his view a relationship was developing. Dr Kesserwani should have been stern in his replies to Patient A because of the potential to cross boundaries. In this respect he pointed to Dr Kesserwani's reply to Patient A's invitation to come to her place and the pictures she sent of herself to him. Equally however, he accepted that there was nothing in the available texts which indicated that Dr Kesserwani had actually agreed to meet Patient A. 5. Dr Paul expressed the view that whilst Dr Kesserwani's conduct was below the standard of what was reasonably expected of a practitioner with an equivalent level of training or experience it was not significantly below. Complaint Two Particular One 1. On 24 June 2015 sometime between 11.00 am and 12.00 pm Mr Skidmore the Acting Executive Officer of the Chiropractic Council of NSW telephoned Dr Kesserwani and informed him that the Council had received a complaint about his conduct. He was advised that the Council had resolved to conduct s.150 proceedings under the National Law. Mr Skidmore told Dr Kesserwani that a letter would be emailed to him later that afternoon. An email and documents about the complaint were subsequently sent to Dr Kesserwani at 2.51 pm on that day. 2. Mr Skidmore made a statement on 11 December 2015 in which he said that in this telephone conversation he specifically informed Dr Kesserwani of the name of the complainant and that the nature of the complaint concerned sexual activity which had occurred at the practice. Mr Skidmore was not cross examined on his account. 3. The Applicant alleges that after Dr Kesserwani had been informed of the complaint against him, he contacted Patient A by mobile phone at 1.27 pm in circumstances where he was aware or suspected that the complaint had been made against him by Patient A. 4. This particular is refuted by Dr Kesserwani. He states that although Mr Skidmore told him that there had been a complaint of a sexual nature he did not disclose the identity of the patient who had made the complaint. In a statement made on 22 June 2017 and in oral evidence Dr Kesserwani stated that at first he did not believe the call was serious and was initially dismissive. He wondered if it was prank call being made by someone he knew. He also stated that he asked who had made the complaint and what he was alleged to have done. He recalled Mr Skidmore saying he could not give details at this stage and that he would receive documents with an email later that day. 5. Dr Kesserwani states that shortly after receiving the call from Mr Skidmore he looked at his mobile phone and saw a couple of missed calls from Patient A. He claims he did not initially connect the missed calls with the complaint against him. He tried to call Patient A back and was unable to get through to her. He spoke to Patient A around 1.27 pm and they had a lengthy conversation. Dr Kesserwani says it was during this conversation that Patient A told him about the complaint she had made to the Commission. 6. In a statement dated 4 December 2015 Patient A said that when she told Dr Kesserwani that she had made a complaint about him he "had no idea." Particular Two 1. Particular 2 is to the effect that on or around 24 June 2015, after Dr Kesserwani was made aware that Patient A had made a complaint against him: 1. he agreed with Patient A that they would delete mobile phone text messages that they had exchanged; 2. he deleted approximately 45 text messages which had been exchanged between himself and Patient A from his mobile. 1. Dr Kesserwani admits that on 25 June 2015 he deleted a number of texts but explains that he deleted specific texts at the request of Patient A. To the best of his recollection most of the deleted texts were from Patient A but there were some from him as well. Patient A told him she was embarrassed about the content of the texts and worried that they would become known to her family as a result of the complaint. She asked him to delete the texts that were sexual in nature because of this fear. 2. This account is consistent with Patient A's statement. She explains that on 25 June 2015 an officer of the Commission asked her to send screen shots of the messages exchanged between her and Dr Kesserwani. However there were text messages she did not want anyone to read which were sexually suggestive. She was also concerned about a photo she had sent. She told Dr Kesserwani which texts she was going to delete and asked him to delete the same ones in case the Commission asked him for screenshots. 3. Dr Paul expressed the view that the missing content of the deleted texts may have assisted the Commission to determine if a breach of the Code of Conduct as it related to professional boundaries had occurred. He commented that if the texts were innocuous and merely flirtatious, then it had not helped Dr Kesserwani to have deleted them. In his view the deletions of texts after notification of the complaint was significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience and invited his strong criticism. Particular Three 1. Particular 3 is to the effect that Dr Kesserwani continued to have telephone contact with Patient A on 24 June 2015 after the phone call at 1.27pm in circumstances where a complaint had been made and Patient A was in the process of withdrawing the complaint. 2. Patient A stated that after she made the complaint she received a letter from the Commission. When she read the letter she realised that there was a detailed process and that the matter would be looked at in depth in a way she had not expected. As the allegations contained in her complaint had not occurred she decided to email the contact officer. At 1.47 pm on 24 June 2015 she sent an email to the Commission indicating that she did not feel comfortable proceeding anymore and asked if it were possible to withdraw the complaint. She received an out-of-office reply email. She called the Commission but was advised that the contact officer was not in. It was on this same day that she attempted to ring Dr Kesserwani to tell him of her complaint. Patient A spoke to Dr Kesserwani on more than one occasion during the course of that afternoon whilst she was trying to get through to the Commission. She stated that during these conversations she was quite upset and Dr Kesserwani had tried to calm her down. 3. Dr Kesserwani gave evidence about phone conversations he had with Patient A during that afternoon. This included that she had contacted the Commission and told them that she did not want to proceed with the complaint, what she had alleged was not true and she would withdraw the complaint. During some of these calls she was tearful and apologetic. She also disclosed some of her past and difficulties. 4. The evidence from Dr Paul in respect of these matters is to the effect that it would be reasonable for Dr Kesserwani to want to know the circumstances surrounding the complaint. Particularly as on Dr Kesserwani's account no sexual contact had occurred. Patient A had indicated she would withdraw the complaint. As the allegations the subject of the complaint were serious and could have damaging consequences to registration and ability to practice, it was reasonable for Dr Kesserwani to be in contact with her during the day to find out what progress had been made in respect of the withdrawal of the complaint. Dr Kesserwani's conduct in Dr Paul's opinion was consistent with what is reasonably expected of a practitioner with an equivalent level of training or experience. Particular Four 1. Particular 4 alleges that Dr Kesserwani continued to have telephone and text message contact with Patient A on and following 25 June 2015 in circumstances where he was under investigation by the Commission in relation to Patient A. 2. On 25 June 2015 Patient A was able to speak to the contact officer at the Commission who was dealing with her complaint and told her that she wanted to withdraw the complaint because the events the subject of the complaint had not occurred. The contact officer asked Patient A to forward an email to confirm this, as well as screenshots of text messages between her and Dr Kesserwani. 3. Dr Kesserwani states during the course of the day on 25 June 2015 he contacted Patient A to ascertain the progress of the withdrawal of the complaint with the Commission. In the evening Patient A sent him an SMS in which she attached a screen shot of the email she had sent to the Commission withdrawing the complaint. 4. As previously noted Dr Paul's report refers to the serious repercussions for Dr Kesserwani of the complaint. In these circumstances it would be reasonable for him to want to know that Patient A had executed on her intention to withdraw the complaint. Dr Paul examined the conduct of Dr Kesserwani and stated that the many communications with Patient A on the days of the notification of the complaint and the subsequent day of withdrawal would seem acceptable and was consistent with what is reasonably expected of a practitioner with an equivalent level of training or experience. 5. However in the period following 25 June 2015 Dr Kesserwani continued to exchange text messages with Patient A. Call charge records reflect that after Patient A contacted the Commission and advised that she wished to withdraw her complaint Dr Kesserwani and Patient A were in contact on a regular basis until at least 3 August 2015 (the last date for which records were obtained). 6. Dr Kesserwani explained that through the balance of June 2015 and into July he and Patient A continued to exchange text messages and speak by phone on occasion. Patient A would contact him to see if he had heard anything further from the Commission. On occasions Patient A sent him motivational type messages. On other occasions he telephoned her to ask her to stop contacting him and explained that he should not be talking to her given the complaint. 7. In late June 2015 Dr Kesserwani spoke to Patient A about the s.150 proceedings and the conditions that were placed on his practice. Around mid-July Patient A sent him a number of texts and called him requesting that he treat her again as she was having recurring pain. He told Patient A that he could not treat her. She requested his views on practitioners from whom she should seek treatment and he made a recommendation. Later he received a text from Patient A that after receiving treatment she felt unwell. He rang Patient A and gave her advice to attend hospital or consult her General Practitioner. He was concerned for Patient A's well-being and he made follow up calls to see how she was. 8. Patient A's evidence was consistent with Dr Kesserwani's account as to the nature and extent of the contact between them after 25 June 2015. 9. Dr Paul acknowledges that on Dr Kesserwani's account, and in the light of Patient A's circumstances, he was trying to handle a delicate situation. Dr Paul noted that Dr Kesserwani had properly discontinued care of Patient A once the complaint was made. However in his view Dr Kesserwani had got close to Patient A as demonstrated by the text messages from 13 to 30 May 2015. A complaint had been made and although withdrawn Dr Kesserwani should have discontinued giving advice once he became aware of the complaint. Patient A was no longer his patient by her own actions. The communications which Dr Kesserwani had with Patient A although seemingly professional were not appropriate considering he was under investigation by the Commission. Dr Paul concluded that Dr Kesserwani's conduct in this regard was below what is reasonably expected of a practitioner with an equivalent level of training or experience. Particulars 5 and 6 1. There is no dispute in the evidence before the Tribunal that Dr Kesserwani made a false statement in a submission dated 11 August 2015 which had been prepared by legal advisers and provided to the Commission. The false statement was that after 30 May 2015 he had had no contact with Patient A in circumstances where phone records showed he had contact with her through June and July 2015. 2. Further Dr Kesserwani provided an Annexure to his submission to the Commission which contained a table of text messages falsely purporting to be a record of all text messages sent to and from Patient A. 3. The evidence is also to the effect that Dr Kesserwani admitted that the information he had provided to the Commission was false after the existence of call charge records were put to him by the Commission. 4. In Dr Kesserwani's amended statement dated 22 June 2017 made as part of these proceedings, he indicated that he sincerely regretted misrepresenting the true position and realised that doing so was a serious matter in the context of the investigation by the Commission. He explained that it was a misguided attempt on his part to spare Patient A from further embarrassment and trouble. He was also concerned about Patient A's mental health and what impact it would have on her if it emerged that she had only provided select text messages to the Commission. In his oral evidence Dr Kesserwani characterised his conduct as deplorable and hated the fact that he had associated himself with these lies. 5. In a supplementary report dated 30 January 2016 Dr Paul stated that by Dr Kesserwani's own admission he had concealed and fabricated evidence that would be important in the Commission's investigation and thus hampered the investigation. Dr Paul viewed Dr Kesserwani's conduct as significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience. Dr Kesserwani's conduct invited Dr Paul's strong criticism. 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. FINDINGS Complaint One: Unsatisfactory Professional Conduct sections 139B(1)(a) 1. The Applicant contends that Dr Kesserwani is guilty of unsatisfactory professional conduct because he engaged in conduct that demonstrates the judgement possessed, or care exercised, by him in the practice of chiropractics is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 2. The evidence in support of Complaint One comprises text message communication between Patient A and Dr Kesserwani between 13 May and 30 May 2015. 3. In the Tribunal's view the texts were familiar and improper. Dr Kesserwani provided personal information about his work schedule and what food he liked. On occasion he encouraged Patient A to seek more information from him about his thoughts. In response to Patient A's suggestion that he should come over to her place he said he would love to. The content of Dr Kesserwani's text messages disclosed information which was more in the nature of a personal relationship rather than a therapeutic one. 4. Section 139B(1)(a) of the National Law requires the determination by the Tribunal as to whether Dr Kesserwani has been guilty of unsatisfactory professional conduct. It involves an objective assessment of his conduct against the standard of conduct reasonably expected of an equivalent practitioner 5. As referenced by the expert Dr Paul, based on the content of the text exchange between 13 and 30 May 2015 Dr Kesserwani had moved beyond a professional relationship and a personal relationship was developing with Patient A where a level of flirtatious communication was exchanged. In Dr Paul's view this was below, but not significantly below, what was reasonably expected of a practitioner with an equivalent level of training or experience. 6. The evidence before the Tribunal indicates that other texts existed. The Tribunal notes that texts which Patient A considered to be sexually suggestive and embarrassing have been deleted. The Tribunal has not had the benefit of reading these texts nor of having the contents of them put to an expert to provide an opinion as to whether they were within or a departure from professional standards. 7. The Tribunal finds on the basis of the texts that are available to it Dr Kesserwani did not maintain a clear separation between his professional conduct aimed at meeting the health needs of Patient A and his own personal views and feelings. There was a danger of crossing professional boundaries given the developing personal relationship with Patient A. 8. However on the evidence before the Tribunal it is not possible to conclude that the communication exchanged was significantly below what was reasonably expected of a practitioner with an equivalent level of training or experience. 9. Notwithstanding Dr Kesserwani's admission of unsatisfactory professional conduct, in the Tribunal's view on the evidence before it the proven conduct alone does not amount to unsatisfactory conduct under s139B(1)(a) of the National Law. Complaint Two: Unsatisfactory Professional Conduct sections 139B (l) 1. The Applicant contends that Dr Kesserwani is guilty of unsatisfactory professional conduct because he engaged in improper or unethical conduct. It grounds its position on six particulars. 2. The first particular is to the effect that after Mr Skidmore told Dr Kesserwani about the complaint by Patient A he contacted Patient A by mobile phone in circumstances where he was aware or suspected that she had made the complaint against him. This particular is refuted by Dr Kesserwani. He states that although Mr Skidmore told him that there had been a complaint of a sexual nature he did not disclose the identity of the patient who had made the complaint. 3. The evidence before the Tribunal about the details of the conversation between Dr Kesserwani and Mr Skidmore is contained in their respective statements and in the oral evidence of Dr Kesserwani. Mr Skidmore was not cross examined on his account. Dr Kesserwani was cross examined on this aspect and he was firm in his view that he was not told of the identity of the complainant during the call. 4. The Tribunal accepts that Mr Skidmore told Dr Kesserwani the name of the complainant or gave enough factual information that identified Patient A as the complainant. In the Tribunal's view as a senior officer of the Council Mr Skidmore's professional responsibilities when contacting a practitioner about a complaint would be as a matter of course to indicate the identity of the complainant. 5. Dr Kesserwani's evidence was to the effect that he was in shock at receiving the call from Mr Skidmore. At first he did not believe the call was serious and was initially dismissive. He thought it was a prank. In the Tribunal's view the most likely explanation for the variation between the recollection of Mr Skidmore and that of Dr Kesserwani is that although Mr Skidmore did identify the complainant, Dr Kesserwani simply did not hear it or it did not register. This explanation would also be consistent with the observation made by Patient A that when she told Dr Kesserwani about the complaint he had no idea. 6. In the light of this finding it is not possible for the Tribunal to conclude that at the time Dr Kesserwani first spoke to Patient A in the early afternoon of 24 June 2015 that he was aware or suspected that it was she who had made the complaint. Accordingly the Tribunal is not satisfied that particular one is proved or is capable of supporting a finding of unsatisfactory professional conduct. 7. Dr Kesserwani admits that on 25 June 2015 he deleted a number of texts but explains that he deleted specific texts at the request of Patient A. This account is consistent with Patient A's statement. She explains there were text messages she did not want anyone to read which were sexually suggestive. 8. Dr Paul expressed the view that the missing content of the deleted texts may have assisted the Commission to determine if a breach of the Code of Conduct as it related to professional boundaries had occurred. His view was that the deletions of texts after notification of the complaint was significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience and invited his strong criticism. 9. The Tribunal is satisfied that particular two is proved. Dr Kesserwani deliberately destroyed material which he knew was directly relevant to an ongoing investigation by the Commission. The fact that it was done at the request of Patient A shows very poor judgment on his part. It was his registration that was at stake. 10. The categorisation of the telephone contact by Dr Kesserwani with Patient A over 24 and 25 June 2015 in circumstances when she was in the process of withdrawing the complaint is more difficult. Of itself on one view a practitioner would be wise to exercise caution in having direct contact with a patient once a complaint has been made. For example there may be concerns that such communication has the potential to influence a complainant to withdraw a complaint. The Tribunal acknowledges that there is no suggestion that this is what occurred in this case. 11. Dr Paul's opinion was that as the allegations the subject of the complaint were serious and could have damaging consequences to registration and ability to practice, it was reasonable for Dr Kesserwani to be in contact with Patient A during the day and the subsequent day of withdrawal to find out what progress had been made in respect of the withdrawal of the complaint. Dr Paul examined the conduct of Dr Kesserwani and stated that the many communications with Patient A on the days of the notification of the complaint and the subsequent day of withdrawal would seem acceptable and was consistent with what is reasonably expected of a practitioner with an equivalent level of training or experience. 12. In the Tribunal's view on the evidence before it, it is not open to draw the conclusion that this conduct amounts to unsatisfactory professional conduct. The expert peer report was not critical of this conduct. The Tribunal is conscious that it did not have the benefit of the precise content of the communications that flowed between Dr Kesserwani and Patient A at this time. However on the evidence as it stands the Tribunal is not satisfied that particular 3 is capable of supporting a finding of unsatisfactory professional conduct. 13. In relation to particular 4 the evidence discloses that Dr Kesserwani continued to have telephone contact and text communication with Patient A after 25 June 2015 in circumstances where he was under investigation by the Commission. 14. Dr Paul acknowledges that on Dr Kesserwani's account, and in the light of Patient A's circumstances, he was trying to handle a delicate situation. However, a complaint had been made and although withdrawn Dr Kesserwani should have discontinued giving advice. In Dr Paul's view the communications which Dr Kesserwani continued to have with Patient A were not appropriate in the light of the Commission's continuing investigation. Dr Paul concluded that Dr Kesserwani's conduct in this regard was below what is reasonably expected of a practitioner with an equivalent level of training or experience. 15. The Tribunal is satisfied that Dr Kesserwani knew he was under investigation by both the Council and the Commission. 16. There is no dispute in the evidence in relation to the facts underpinning particulars 5 and 6. Dr Kesserwani made a false statement and provided misleading information to the Commission concerning his contact with Patient A. 17. Section 139B(1)(l) of the National Law requires a determination by the Tribunal as to whether Dr Kesserwani has been guilty of unsatisfactory professional conduct. It involves an assessment as to whether Dr Kesserwani's conduct was improper or unethical relating to Chiropractic practice. 18. 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. 19. 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. 20. Dr Kesserwani deleted text messages between himself and Patient A in the knowledge that a complaint had been made against him by Patient A. The fact that Patient A indicated that she would be withdrawing the complaint does not excuse his conduct. Dr Kesserwani had not been informed by either the Council or the Commission that any investigation was terminated. In so doing he was interfering with information that was relevant to the investigation. 21. Dr Kesserwani subsequently made a false statement in a submission to the Commission dated 11 August 2015. He falsely stated that after 30 May 2015 he had had no contact with Patient A in circumstances where phone records showed he had contact with Patient A up to and including 30 July 2015. Further he provided an annexure to his submission to the Commission which contained a table of text messages falsely purporting to be a record of all text messages sent to and from Patient A. 22. In the Tribunal's view this conduct was improper and unethical. Dr Kesserwani concealed information from, and misrepresented information to a regulatory authority. He deprived the Commission of information that was relevant to its role. His conduct limited the information that was available to the Commission. As a consequence, the Tribunal's consideration of more comprehensive information has also been limited. 23. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at paragraph 81. 24. It was Dr Kesserwani's duty to be candid and honest with the Commission. This is an integral part of the proper functioning of the regulatory system. By his actions Dr Kesserwani demonstrated a disregard for the Commission and its role. This conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical. 25. Further, the communication which Dr Kesserwani continued to have with Patient A following 25 June 2015 was improper given the Commission's ongoing investigation. Dr Paul concluded that Dr Kesserwani's conduct in this regard was below what is reasonably expected of a practitioner with an equivalent level of training or experience. The Tribunal finds that this conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical. 26. The Tribunal concludes that particulars 2, 4, 5 and 6 are proved and taken individually and together justify a finding unsatisfactory professional conduct. 27. The Tribunal is satisfied that Dr Kesserwani is guilty of unsatisfactory professional conduct within the meaning of s.139B(1)(l) of the National Law in that he has engaged in improper or unethical conduct relating to the practice of chiropractic. The Tribunal finds that Complaint Two is established. Complaint Three: Professional Misconduct section 139E of the National Law 1. Complaint 3 is that Dr Kesserwani is guilty of professional misconduct in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, or he engaged in more than one instance of unsatisfactory professional conduct that, when considered together amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. 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 the Tribunal's view Dr Kesserwani's failure to be candid and honest with the Commission was a most serious departure from accepted standards. He destroyed text messages that were relevant to the Commission's investigation. He made false representations and gave false information to the Commission about the extent of his contact with Patient A. It was only after phone records were put to him that he admitted that he had lied to the Commission. It was an attempt to deliberately limit and deprive the Commission of comprehensive information. It was disrespectful of the Commission's role and it was an abuse of the privileges which accompany registration. The expert peer report viewed his conduct in concealing and misrepresenting material to the Commission as significantly below the standard reasonably expected and invited strong criticism. 2. In the Tribunal's view the unsatisfactory professional conduct displayed by Dr Kesserwani is of a sufficiently serious nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. The Tribunal is satisfied that Complaint Three is established. 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: 1. 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. The Applicant sought Orders that Dr Kesserwani be suspended for a period of three months followed by the completion of an ethics course and mentoring. In contrast Dr Kesserwani argued against suspension and contended that mentoring and an educational course was appropriate. 2. In our view Dr Kesserwani was out of his depth when navigating the professional relationship with Patient A. He allowed his judgement to be clouded when he acceded to the request to delete text messages. 3. Dr Kesserwani has already enrolled himself in a professional boundaries course. In our view Dr Kesserwani will benefit from additional professional training as it relates to professional boundaries. This would ensure that his future behaviour is informed in such a way which reflects the paramount consideration of the protection of the public. 4. The Tribunal accepts that Dr Kesserwani has been chastened by this experience. We accept his expression of regret for misleading the Commission. In our view Dr Kesserwani is unlikely to conduct himself in the same manner in the future if faced with a similar set of circumstances. 5. In the Tribunal's view the manner in which Dr Kesserwani dealt with the circumstances in which he found himself and his subsequent lack of judgement as demonstrated in this case establishes that mentoring is warranted. 6. 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 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 conditions in relation to the completion of further professional training and mentoring are the appropriate mechanisms for denouncing Dr Kesserwani's conduct. For these reasons the Tribunal does not believe it is appropriate to suspend his registration. 7. In relation to the question of costs the parties indicated at the hearing that they wished to provide submissions on the question of costs after the Tribunal's decision was made available to them. Accordingly there will be procedural directions in relation to submissions and the determination of the issue of costs. ORDERS 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 Respondent is to complete a course on Professional Boundaries conducted by Davaar Consultancy Training and Development within 12 months of the date of this decision. 5. If the course specified in Order 4 is unavailable then the Respondent is to complete an equivalent course as approved by the Chiropractic Council of NSW ('the Council'). 6. The Respondent is to provide evidence in writing to the Council of the successful completion of a course on Professional Boundaries within 12 months of the date of this decision. 7. All costs associated with completing this course are to be met by the Respondent. 8. The conditions appearing in Attachment A to these reasons are to be placed on the Respondent's registration for a period of 12 months from the date of this order. 9. The Chiropractic Council of NSW is the appropriate review body of these conditions for the purposes of Part 8 of the National Law. 10. The Registrar is requested to notify the Chiropractic Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 - 9 above as soon as practicable. 11. An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of Patient A appearing in the Schedule to the Complaint. 12. The Tribunal notes that the parties wished to argue the issue of costs after the decision was delivered. Accordingly the Tribunal makes the following directions: 1. The Applicant is to file and serve submissions on costs within 14 days of the date of this decision. 2. The Respondent is to file and serve submissions on costs within 28 days from the date of this decision. 3. The question of costs is to be determined on the papers. ******** ATTACHMENT A - CONDITIONS 1. Within 28 days of the date of this decision, 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 Chiropractic Council of NSW's Compliance policy – Mentoring (as varied from time to time). The practitioner is: 1.1 To be mentored for a minimum period of 12 months, and as subsequently determined by the Council. 1.2 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. 1.3 To authorise the Council to provide the mentor with a copy of this decision. 1.4 To authorise the mentor to report to the Council on a quarterly basis. 1.5 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. 2. The practitioner shall within 12 months of the date of this decision undertake a course on Professional Boundaries conducted by Davaar Consultancy Training and Development and provide evidence in writing to the Council of NSW of his successful completion of the course. 3. If the course specified in Condition 2 is unavailable then the practitioner is to complete an equivalent course as approved by the Council. 4. All costs associated with completing a course on Professional Boundaries are to be met by the practitioner. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2017