Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brush v Health Care Complaints Commission [2018] NSWCATOD 76 Hearing dates: 3 May 2018 Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Occupational Division Before: The Hon F Marks, (Principal Member) A Linn, (Professional Member) E Clark, (Professional Member) R Kusuma, (General Member) Decision: (1) The application is dismissed (2) The applicant is to pay the costs of the respondent of these proceedings in an amount assessed in default of agreement. Catchwords: Health practitioner – application for review of cancellation of registration – insufficient insight contrition and remorse-insufficient attempts to gain knowledge of matters giving rise to misconduct – application refused-costs order Legislation Cited: Health Practitioner Regulation National Law NSW Cases Cited: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Haber v Health Care Complaints Commission [2018] NSWCATOD 16. Category: Principal judgment Parties: Grant Brush (applicant) Health Care Complaints Commission (Respondent Representation: Counsel: A Britt (Respondent) Solicitors: Applicant self-represented Health Care Complaints Commission (Respondent) File Number(s): 2017/00286898 Publication restriction: Non-publication order of the name of any patient or former patient of the applicant or any information which might tend to identify such person. REASONS FOR DECISION Background 1. The applicant in these proceedings, Grant Brush, formerly practised since December 2009 as a registered osteopath. In Health Care Complaints Commission v Brush [2015] NSWCATOD 120 published on 27 October, 2015 ("the original decision"), this Tribunal found the applicant guilty of professional misconduct and cancelled his registration. The Tribunal fixed a period of 18 months before the applicant could seek a review of that decision under the provisions of the Health Practitioners Regulation National Law NSW ("the Act"). 2. In this application, brought under section 163A of the Act the applicant seeks, by way of a review of the original decision that this Tribunal make a determination to the effect that he is entitled to apply for re-registration as an osteopath. 3. It is convenient at this stage to set out the relevant provisions of the Act which apply to this application. We shall discuss the manner in which they are to be applied to this application later in these reasons for decision: 163A RIGHT OF REVIEW [NSW] (1) A person may apply to the appropriate review body for a review of-- (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made— (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section— "decision-making entity" means the following— (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division or under Subdivision 5 of Division 3; (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013 ) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court. "relevant order" , in relation to a person, means any of the following orders made by a decision-making entity— (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession. 163B POWERS ON REVIEW [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order— (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a "critical compliance condition" unless the body orders otherwise. (3) A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 163C INQUIRY INTO REVIEW APPLICATION [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division. The original decision 1. In the original decision, the Tribunal set out the several Complaints made against the applicant, as contained in the following extract from that Decision: That Mr Brush being a registered osteopath: Complaint 1 Was made the subject of a criminal finding of an offence. Background to Complaint 1 On 21 February 2013, Mr Brush entered a guilty plea to a charge of sending text messages in a manner that "reasonable persons would regard that use as being menacing, harassing or offensive" contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). The Local Court found the charge proven, but discharged Mr Brush, without proceeding to conviction on condition that he pay the sum of $1000 and be of good behaviour for 12 months. Complaint 2 Is guilty of "unsatisfactory professional conduct" within the meaning of ss 139B(1)(a) and 139B(1)(l) of the National Law. Background to Complaint 2 Mr Brush was employed as an osteopath at the City Clinic, King Street, Sydney. He first consulted with Patient A in approximately August 2011 for a series of treatment sessions. In April 2012, Patient A again consulted Mr Brush and he provided ongoing and regular care until November 2012. Particulars of Complaint 2 (1) Mr Brush failed to observe proper professional boundaries in that in approximately April 2012 Mr Brush digitally penetrated Patient A in his treatment room during a consultation. (2) Between 13 May 2012 and 15 March 2013, Mr Brush engaged in a personal and/or sexual relationship with Patient A. (3) Between 17 April 2012 and March 2013, Mr Brush failed to observe professional boundaries in that he and Patient A exchanged approximately 12,000 SMS messages which were inappropriate having regard to the number, frequency and timing of the text messaging which included content of a personal and sexual nature. (4) Mr Brush failed to appropriately deal with Patient A's reported distress, in that he did not refer her for any psychological support or by discussing the matter with another osteopath, psychologist, medical practitioner or relevant health authority when: Patient A suggested on 22 June 2012 that she would take 46 Panadeine Forte tablets which she had in front of her. On 24 August 2012, when Patient A threatened to take 10 Endone tablets. (5) Mr Brush failed to keep adequate clinical records in that he failed to record consultations with Patient A on the occasions as set out in Schedule B to the Complaint [Schedule B lists 17 consultations]. (6) Mr Brush failed to keep adequate clinical records in that he failed to record and describe the treatment provided to Patient A on the occasions as set out in Schedule C to the Complaint [Schedule C lists 16 consultations]. (7) In approximately April 2012 at the outset of a personal relationship between Mr Brush and Patient A, Mr Brush failed to terminate treatment with Patient A and/or failed to refer Patient A to an alternative osteopath for ongoing osteopathic care. (8) Mr Brush failed to adequately communicate with Patient A's other health care providers by: Failing to provide any report of progress and/or management of Patient A to the orthopaedic surgeon who performed an operation on Patient A on 14 August 2012. Failing to provide any report of progress and/or management of Patient A to the physiotherapist who was also treating Patient A after surgery on 14 August 2012. (9) Mr Brush failed to appropriately manage termination of the therapeutic relationship with Patient A on 27 November 2012 in that he failed to refer Patient A for future care to another osteopath or any other clinician. Complaint 3 Is guilty of "unsatisfactory professional conduct" within the meaning of ss 139B(1)(i) and 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) (the National Law).. Particulars of Complaint 3 (1) Mr Brush contravened s 130(3)(a)(i) of the National Law by failing to notify the Osteopathy Board of Australia (National Board) within seven days of the subject offence. (2) Mr Brush contravened s 130(3)(a)(ii) of the National Law, by failing to notify the National Board within 7 days after being made the subject of a finding of guilt for the subject offence. (3) Mr Brush contravened s 129 of the National Law in that between 30 June 2011 and 24 September 2013 he practised as an osteopath without being covered by approved professional indemnity insurance. (4) Mr Brush made a false declaration in an online renewal for registration application to the National Board of Australia that he held approved professional indemnity insurance. Complaint 4 Is guilty of professional misconduct (ss 139E(i) and 139E(ii) of the National Law). Complaint 5 Relying on the particulars of Complaints 1, 2 and 3, the Commission alleges that Mr Brush is not a suitable person to hold registration as an osteopath (s 140 of the National Law). 1. The applicant substantially admitted that he was guilty of the conduct described in the complaints and particulars. The Tribunal found that complaint 1 was proven, that complaint 2 other than particular 9 was proven, and that complaints 3 and 4 were proven. It followed that the applicant was found guilty of professional misconduct. The evidentiary material given in these proceedings 1. The applicant tendered into evidence before us a brief statement, two brief character references, details of a course of study commenced by him, and a number of documents covering professional and ethical matters relating to the work of health practitioners which he said he had read as a means of further study. In addition, the applicant provided some brief clinical notes from a psychologist upon whom he had attended. The respondent Health Care Complaints Commission made available to us copies of the original complaint and amended complaint which was considered by the Tribunal in the original decision, and the expert report made available to the Tribunal in the original decision which had annexed to it some background documentation. In addition, the applicant gave oral evidence including cross examination by counsel for the respondent. We shall refer to this evidentiary material where relevant during the course of these reasons for decision. The nature and extent of the applicant's misconduct as found by the Tribunal 1. We should state at the outset that, as noted by the Tribunal in its original decision, the applicant maintained that the gravamen of his misconduct was the fact that he had engaged in an inappropriate sexual, albeit consensual, relationship with the person known in those proceedings and in these proceedings as patient A. The applicant continued to maintain this position during the course of these proceedings until he was forced to recognise in the course of cross examination and questions from the members of this Tribunal that this may have been the catalyst for a course of action which constituted, in part, his professional misconduct, but that misconduct manifested itself also in other matters which gave rise to concern, as clearly set out in the original decision. To this extent, the applicant lacked insight into the totality of his misconduct, and had clearly not understood and appreciated the findings of the Tribunal in the original decision. 2. To this extent, it is necessary to summarise, albeit briefly, the areas of misconduct identified by the Tribunal in the original decision. The Tribunal made the following findings; 1. that the applicant had been the subject of a criminal finding, albeit that in these proceedings he stated that he had never intended to threaten the person referred to in complaint 1, and what he had said had been carried out at a time when he was emotionally distressed. The applicant had also failed to notify the Osteopathy Board of Australia within seven days of the offence being committed and within seven days after the offence had been found proven as required by the National Law 2. that the applicant had failed to observe proper professional boundaries in April 2012 when he had first digitally penetrated patient A in his treatment room during a consultation, between May 2012 and March 2013 when he had engaged in an intense personal and sexual relationship with patient A and during a similar period when he had exchanged approximately 12,000 SMS messages with her which included content of a personal and sexual nature, and during which periods he continued to treat her as a patient. Whilst the respondent acknowledged this misconduct, he said it was out of character, and was brought about because he was infatuated with, and fell deeply in love with patient A. 3. that the applicant had failed to deal with manifestations of distress made by patient A when she suggested in June 2012 and again in August 2012 that she would take an overdose of analgesic tablets. In his evidence before us the applicant said that the applicant had threatened suicide on a number of occasions as a ploy to gain his attention, and that after a while he ignored her threats on the basis that she had "cried wolf" too often 4. that the applicant had failed to keep adequate clinical records by failing to record a number of consultations with patient A and by failing to record and describe treatment of patient A on a number of occasions 5. that the applicant failed to terminate treatment with patient A and failed to refer her to an alternative osteopath for ongoing treatment immediately the personal relationship had commenced 6. that the applicant had failed to communicate with other health practitioners who were treating patient A 7. that the applicant had practised as an osteopath between 30 June, 2011 and 24 September, 2013 without being covered by approved professional indemnity insurance. The applicant claimed that this occurred as a result of an administrative oversight and was not the result of any intentional misconduct. The failure to obtain professional indemnity insurance also caused the applicant to make a false declaration to the National Board of Australia when he applied for registration renewal online 8. that the applicant was guilty of professional misconduct, in all the circumstances. The relevant principles to be applied in considering the application 1. We have previously set out the provisions of the Act which govern this application which, if successful, would entitle the applicant to make an application for registration to the National Board, subject to the exercise of discretion by that Board whether to affect registration. We adopt the formulation of the principles which apply to this application as recently formulated by the Tribunal in Haber v Health Care Complaints Commission [2018] NSWCATOD 16. At [12] the Tribunal said: We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24]. (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]; 1. In determining whether the applicant has made out a sufficient case we accept that the burden of proof which applies is that established by the civil standard namely, on the balance of probabilities. 2. There are a number of matters which we take into account in determining these proceedings. They include: Insight 1. In the course of the original proceedings, the applicant characterised the essential nature of his misconduct as being the formation of a sexual relationship with a patient, which he contended before the Tribunal was a "single mistake." The applicant persisted in so characterising his misconduct before us. To some extent this is explicable because the consequences of entering into that relationship have had a disastrous impact on his life. He has lost his reputation, dignity and self-respect, the ability to practise a profession which he professed to love, his family has been torn apart, and the original decision of the Tribunal is displayed prominently whenever anyone accesses the Internet to search out his name. This latter matter has, he said, seriously compromised his ability to obtain employment. However, notwithstanding the applicant's focus of attention on his relationship with this patient as being the source of all his problems, he has failed to understand, as demonstrated by his evidence before us, that the relationship must be seen as a precipitating factor for other areas of misconduct. These include the failure to create appropriate clinical records, the failure to make contact with other health professionals who were treating the patient concurrently, and the failure to refer her for psychological or other assistance whilst she was clearly in distress. And of course, overarching all of these matters is the fact that the applicant determined to enter into a sexual, albeit consensual, relationship with the patient before terminating that relationship, and persisted in continuing to treat the patient whilst that relationship continued. 2. Seen in this way, there are several areas of recognized misconduct which are a manifestation of, and result from, the fact that the applicant entered into the relationship with patient A. It is our impression that the applicant did not have any real appreciation and understanding of the substantial aspects of these clinical and professional failures and failed to demonstrate significant remorse other than that which he felt for his own substantial losses. Perhaps his overall sense of his life having been destroyed has precluded him from analysing carefully and closely all the features of his misconduct. That analysis must be undertaken, the ramifications understood, and some remedial strategy put in place and completed before the applicant is entitled to succeed in this application. To the extent that these matters have not been undertaken or completed, the application must fail. 3. As further proof of a lack of sufficient insight, we refer to the evidence of the applicant which he gave consistently to the effect that the formation of a sexual relationship with patient A was, in all the circumstances inappropriate. During the course of his evidence we asked him why it was inappropriate. His initial response, given on a number of occasions, was that such a relationship was inappropriate because it involved "boundary violations" but he was unable to provide any rationale behind this conclusion. It was only after some close questioning which required the applicant to explain why such a relationship was inappropriate that he engaged in some analysis to attempt to discern the appropriate rationale. During the course of this close questioning we asked the applicant to consider whether he was able to treat the patient objectively without being affected in any way by the fact of his sexual relationship with her. We discussed with him his objectivity, the obvious power imbalance created by the fact that he was her treating practitioner, her vulnerability, whether this affected the necessary informed consent to treatment which must be given by the patient, and the requirement to deter others, and to uphold and enhance the integrity and reputation of his profession. 4. We perceive that the applicant was not aware of these matters. This is despite the applicant having professed to have read Guidelines for doctors issued by the Medical Board of Australia dealing with sexual boundaries. Those Guidelines describe Sexual Misconduct and contain a section entitled "Why breaching sexual boundaries is unethical and usually harmful." The introductory words read: A breach of sexual boundaries is unethical and unprofessional because it exploits the doctor-patient relationship, undermines the trust that patients (and the community) have in their doctors and may cause profound psychological harm to patients and compromise their medical care. There is then a reference to the "inherently unequal" power imbalance in a doctor-patient relationship and the fact that a patient is often vulnerable, with emotional dependence. This is followed by a reference to trust as constituting the foundation of a good doctor-patient relationship and loss of objectivity which may impair judgement and compromise the patient's care arising out of a sexual relationship "even if the patient is a consenting adult." There is other material contained in the Guidelines to which we do not presently need to refer. We would have thought that the applicant, having engaged in professional misconduct involving a sexual relationship with a patient, as he readily conceded, would have paid particular attention to this material. If so, we would expect that he would be able to recall at least some of these matters in summary form. We can only conclude that if the applicant did read this material, he did not absorb it sufficiently to be able to recall it. We repeat that we regard a knowledge of this material as being critical in demonstrating insight, and as being essential in creating some form of strategy to avoid misconduct of this kind in the future. These matters also mitigate against the grant of the application. Contrition and remorse 1. In his evidence, the applicant professed to be sorry and remorseful for what had occurred. He said that he would regret his misconduct for the rest of his life and that he would never do anything like that again. However, the focus of his attention in this regard was the devastating impact that his professional misconduct had had on his life as we have previously described this. Missing from his evidence was any significant expression of regret concerning the effect of the intense relationship on patient A, and recognition of the obvious distress which this had caused and exacerbated for her. Of course, if that relationship had been entirely distinct from and removed from his relationship with patient A as a patient, then any adverse impact on her arising from the relationship and its breakup would have not created any question of professional misconduct because she would not have been a patient. However, once an intense relationship of this kind is entered into with an existing patient (and in some cases, with a former patient), questions of professional misconduct immediately arise. In these circumstances, the failure of the applicant to express real concern for the circumstances of patient A in the context that she was a patient of his, demonstrates an inappropriate lack of contrition and remorse, as well as a lack of insight into the adverse consequences of the relationship for that person as a patient. 2. These matters also militate against the grant of the application. Further education and remedial steps 1. The applicant has enrolled in an online course with the Sydney School of Public Health through the University of Sydney entitled "Clinical Ethics" which commenced in March 2018. This is an online course and the applicant said that he undertook six hours of study a week and that the course would last a semester. This is the first formal course of study undertaken by him since the original decision of the Tribunal in October 2015. 2. We have also made reference to the material which the applicant says that he has read, but as we have pointed out, there must be some doubt about how much of this he has absorbed. Furthermore, he has not provided any timeline when he conducted this reading and how long it took him. 3. The applicant informed us that he had no-one to whom he could turn for assistance, mentoring or counselling with respect to his current circumstances, and what he needed to do to demonstrate that he was now in a position where it was appropriate to grant his application. He described himself as a "loner." Being a "loner" is insufficient reason not to seek help. 4. Whilst we accept the applicant's explanation that limited financial resources have impacted upon his ability to undertake further education designed to enhance his learning and understanding of matters relating to his misconduct, nevertheless the fact remains that he is unable to demonstrate an appropriate commitment to date in this regard. The psychological evidence 1. As is plain from the principles which we have referred to above, the applicant needs to demonstrate to us to the requisite civil standard, namely on the balance of probabilities, that he has a reformed character. Matters concerning conduct and behaviour are normally the province of experts with expertise in this area, namely psychologists and psychiatrists. 2. The applicant has made available to us very brief notations taken by a psychologist on four occasions namely 24 October, 14 November and 19 December, 2017 and 14 February 2018. Those notes indicate that the applicant suffers from "high levels of anxiety" because he no longer has a career and stated that the romantic relationship "ruined his life." On 14 November, 2017 there is a notation that the applicant "demonstrates good psychological resources and good insight" but this seems to relate to his regret about what occurred in the sense of its impact on his current situation. As at 19 December, 2017 there is a notation that the applicant's self-esteem was vulnerable. On 14 February 2018 the psychologist noted that the applicant felt that he had "no future" and stated that there was "some suicidal ideation." The psychologist makes no reference to or gives any assessment of the applicant's suitability to return to practice, and a referral to a psychiatrist is referenced. The applicant is on a waiting list for this appointment. 3. These brief notations are indicative that the applicant continues to suffer emotionally as a consequence of the cancellation of his registration, and cast some doubt that he is now in such a stable position that he would again be able to undertake the work of an osteopath. The character references 1. The applicant provided two brief character references. One, from a general practitioner who has known the applicant for about a year described him as being "polite, warm and engaging" as well as courteous and respectful. He noted an expression of regret by the applicant concerning the events leading to the cancellation of his registration. This reference makes no mention of the findings of the Tribunal, and consequently expresses no opinion concerning the applicant by reference to those findings. The other reference is from a chartered accountant who has known the applicant for over 10 years both personally and professionally. He said that the applicant was "forthright and very personable", was a good father to his children and that he was passionate about his former profession. Again, there is no indication that the author has read the decision of the Tribunal, and we can only presume that his assessment of the applicant's character was made without reference to the findings of the Tribunal. 2. We are unable to place much weight on these character references as indicating in any way a reformation of character. Reformation of character – the applicant's evidence 1. In his evidence the applicant asserted that there was no need for him to reform his character because he was of a good character save for his one transgression in entering into the relationship with patient A. Not only does this statement demonstrate a lack of insight, contrition and remorse, but this bare statement of itself is not sufficient indication of reformation of character, so that we could be satisfied that the applicant is unlikely to ever again engage in any form of inappropriate relationship with a patient. Any corroborative evidence would need to be able to attest to the applicant's character having regard to the findings of the Tribunal. 2. We should emphasise that throughout the proceedings the applicant was adamant that even though he had transgressed by reason of his inappropriate relationship with patient A, this was conduct which had occurred five years ago, he had been "punished" and "done his time" and should now be given an opportunity of getting on with his life and resuming practice as an osteopath. Such an attitude belies the matters which we are required to consider in determining his application. The cancellation of registration was not inflicted on the applicant by way of "punishment", although there was, obviously, a punitive effect. The cancellation of registration was imposed predominantly for the protection of the public. Our concern is for the protection of the public. It is this concern which will inform our decision, and in this way, there is no question of the applicant having served his punishment and now being allowed to resume practice. Such resumption can only occur if it is consistent with the protection of the public. And finally, we observe that any manifest assertion that the applicant will not offend again needs to be accompanied by an understanding of the nature and extent of his misconduct, something which we have found lacking for the reasons set out above. Conclusion on the basis of the evidence 1. For the reasons which we have stated during the course of our consideration of the evidentiary material, we are not satisfied that the applicant has demonstrated, on the balance of probabilities, that he can now be trusted to practice in a manner that conforms to the professional standards expected of an osteopath, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession. We are not satisfied to that standard that there has been a reformation of character. We are not in a position to establish his worthiness and reliability for the future, again, applying the same standard of proof. 2. On this basis, the application must be dismissed. Costs 1. The respondent sought a costs order in the event that the application was unsuccessful. The applicant said that he was impecunious, would be unable to pay any costs and that a costs order would represent "a nail in my coffin." Whilst we have sympathy for the applicant's financial circumstances, the relevant principles state that impecuniosity is not a reason of itself to decline a costs order. This is a costs jurisdiction and there is no reason why the respondent should not have a costs order in its favour. We propose to order accordingly. Time for review 1. The respondent sought an order that if the application was dismissed the applicant should be precluded from making a further application for a period of 18 months. We can see no basis for fixing a further arbitrary period. If the applicant again wishes to pursue a career as an osteopath, he may make application when he feels he is ready to do so, having regard to the necessity to comply with the principles to which we have referred. No good purpose would be served in fixing such a time limit, and we shall refrain from doing so. Orders 1. Consequent upon the findings and conclusions expressed above, we make the following orders: 1. The application is dismissed. 2. The applicant is to pay the costs of the respondent of these proceedings in an amount assessed in default of agreement. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2018