Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78 Hearing dates: 16, 17 May 2019 Date of orders: 23 May 2019 Decision date: 23 May 2019 Jurisdiction: Occupational Division Before: ADCJ BJ Knox SC, Principal Member Dr J Fogarty, Medical Member Dr C Newberry, Medical Member Ms J Houen, General Member Decision: 1. Dr DWF's registration is cancelled pursuant to s149C(1)(c) and s149C(1)(d) of the Health Practitioner Regulation National Law ("the National Law"). 2. Dr DWF shall not apply for re-registration on the Register of Medical Practitioners maintained by the Medical Board of Australia in conjunction with the Australian Health Practitioner Regulation Agency (AHPRA) for a period of at least 5 years from the date of these Orders pursuant to s149C(7) of the National Law. 3. Dr DWF is prohibited pursuant to s149C(5) of the National Law from providing any "health services" as defined, whether provided as a public or private service, until further order. 4. That Dr DWF pay the HCCC's costs pursuant to Clause 13, Schedule 5D of the National Law, as agreed or assessed. 5. The specific evidence consisting of the 3 medical reports referring to Dr DWF or Dr DWF's wife and her current state of health, being the report of Associate Prof Saidi dated 28 March 2019, the report of Dr Jane Rowden dated 5 May 2019, and the report from Dr D'Angelo dated 14 May 2019 are to be referred to in the Reasons and Orders collectively as "the medical evidence on the non-publication application" but not otherwise referred to in the Reasons and published 6. The reports from Dr Bruce Westmore, Dr David Greenberg, Associate Prof Sam Saidi dated 28 March 2019, the report from Dr Jane Rowden dated 5 May 2019, and each of the reports from Dr D'Angelo are to be placed in a sealed envelope on the Tribunal file marked "Not to be accessed by any third party without further Order of the Tribunal"; 7. In the event that any third party seeks access to the contents of the sealed envelope of the Tribunal's file, prior to such access being considered by the Tribunal, each of the parties is to be provided with 14 days' notice of that request and be given an opportunity to be heard in that respect. 8. These reasons shall be released by the HCCC to the relevant specialist medical College of which Dr DWF was a member. 9. The HCCC shall inform both Persons A and B of the decision of the Tribunal and their entitlement to read the decision at the registry of the Tribunal. Catchwords: Non-publication of name of doctor; exceptional circumstances Legislation Cited: Crimes Act 1900 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186 Crickett v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Dawson v Law Society of NSW [1989] NSWCA 58 Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Re Jason Martin [2010] NSWMT 13 Re Lenehan [1948] HCA 45; 77 CLR 403 Re Mansoor Haider Zaidi [2006] NSWMT 6 Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 Zaidi v Health Care Complaints Commission [1998] NSWSC 335 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr DWF (Respondent) Representation: Counsel: E Raper (Applicant) E Elbourne (Respondent) Solicitors: U Webster (Applicant) E Monger (Respondent) File Number(s): 2018/00393404 Publication restriction: The order under Cl 7 of Schedule 5D of the National Law, made on 1 February 2019 prohibiting the disclosure to any person or entity of the names of Persons A and B set out in the Schedule to the Amended Complaint is continued. REASONS FOR DECISION Proceedings 1. This complaint is brought by the Health Care Complaints Commission ("HCCC") against Dr DWF ("Dr DWF") pursuant to s 90B (1) of the Health Care Complaints Act 1993. The Amended Complaint (filed 24 April 2019 and dated 21 December 2018) is based on Dr DWF's convictions for administering an intoxicating drug and indecent assault on one person (Person A) and a later count of indecent assault involving another individual (Person B) and, consequently, that he is a person who is not suitable to hold registration as a medical practitioner within the meaning of the Health Practitioner Regulation National Law ("the National Law"). 2. The Amended complaint refers to a number of matters most of which were summarised in statements of Agreed Facts (exhibits 4) tendered in earlier criminal proceedings involving Dr DWF and, separately, Person A and Person B. 3. Dr DWF filed a Response to the Amended Complaint on 9 May 2019 admitting Complaints One and Two. Sec 150 hearing 1. A s 150 hearing (Members Dr Gregory Kesby, Ms Narelle Bell) was conducted on 16 October 2015. Dr DWF had been found guilty on the previous day, 15 October 2015, of the indecent assault on and administering an intoxicating drug to Person A. He was then awaiting sentencing on that count. 2. Evidence was given during that s 150 hearing of psychiatric issues which raised concerns as to the risk of Dr DWF continuing to practise medicine. Following that, the Medical Council ordered that Dr DWF's registration be suspended under s 150(1)(a) of the National Law on the basis that he posed a risk to the safety or health of the public. He remained on the register of practitioners with the status of "suspended" to the date of this hearing. 3. That panel determined that "…the crimes that Dr DWF has been convicted of would prevent the public from having any confidence if his registration was to continue…" at this time, making reference to Crickett v Medical Council of NSW (No 2) [2015] NSWCATOD 115. Clearly that confidence needs to be construed in terms of his suitability to practice if his registration was continued. Dr DWF: Background 1. Dr DWF is aged 67 (born 1952). His primary medical qualifications are that of MB, BS. He graduated from his university with the University Medal. He also has a PhD in his specialist field. He became a Fellow of his specialist medical College and, as well, a Fellow of another specialist college in 1984. 2. He had been a Professor of his particular speciality field in a Sydney teaching hospital for a considerable period. Prior events and criminal proceedings. 1. Statements of Agreed Facts were tendered (exhibit 4) relating to the Complaints concerning the matters involving Person A and Person B. What follows in this summary of each complaint is drawn primarily from those Agreed Facts and what has been referred to in other aspects of the evidence including Dr DWF's statements to various psychiatrists. There are no substantial areas of difference between those sets of documents but the factual details are set out below in this manner as the approach was adopted of not requiring any of the witnesses including the complainants to give evidence. Person A 1. The charges Dr DWF faced arose out of his conduct towards Person A were brought under s61L and s 38(a) of the Crimes Act 1900 (NSW). Person A had previously been supervised by him for three months in another Sydney Hospital. In 2013, she was a registrar on secondment at another hospital. Dr DWF was her mentor and referee. She referred to him as "Prof". 2. It was an agreed fact in earlier proceedings that, prior to the offences, they had developed a strong working relationship and a good friendship over the period 2012 – 2013. During that period they communicated by email on a number of professional subjects and saw each other in work and professional spheres. 3. In August, 2013 Person A had asked to see Dr DWF for assistance with her studies and professional skills and had seen him for two tutoring sessions. In September, 2013 she advised him she had failed her exams. She was due to sit another exam in the area in which she had failed. She also asked him to be one of four referees for a stage in her professional advancement. He agreed to that and said he was looking forward to her returning to the hospital at which he held a senior position. They also discussed the possibility of her transiting from a registrar to being a Fellow at that hospital. 4. In October 2013 Dr DWF sent her an email telling her that he had been involved in developing a mentoring programme for trainees at that hospital. He asked her if she would be interested in being part of that programme. She responded to that in early November saying that she was interested. 5. Dr DWF rang her on her mobile phone on 1 November, 2013. He had not done that before. 6. During their email correspondence in October/November 2013, Dr DWF told her that he would like to talk about her transitioning from a registrar to a fellow at the hospital's centre in his specialty of which he was the Director. 7. Three days later Dr DWF invited her to his home, a unit in an inner city suburb, to discuss a mentoring programme for Registrars, a potential fellowship for her and her forthcoming exams. Four days later (11 November 2013) she responded by email and said she would be happy to meet and have dinner. He said that he had also invited his daughter to be present at the dinner. However, he said that she had a gastro attack that day and that his daughter had pulled out of the dinner arrangements. 8. Dr DWF also said that he had been drinking extensively before Person A arrived. 9. Person A arrived after he had prepared the meal. Dr DWF told her his wife was away overseas. While both had been further involved in the cooking process for the dinner, they each drank champagne and talked about the proposed mentoring programme, Dr DWF put a tablet of Ativan (a benzodiazepine sedative drug) in her glass of wine without her knowledge. She said that made her feel muddled and sleepy. 10. They left the unit and then went for a walk for about an hour. On their return she again complained of being muddled and sleepy. 11. While she as in that state, Dr DWF said to her "lie down, I'll teach you a relaxation technique". He also took her boots off and rotated her around so she was lying on a couch and said "I'll give you a head massage." He started to remove her shirt up her back. She said she "…couldn't seem to protest" and didn't at that stage. He later then massaged her and she awoke on a bed in another room to find Dr DWF kissing or mouthing her nipple. She said "No, stop". She tried to turn her face away. When he tried to kiss her nipple again, she pushed him away, stood up and left the room and then the unit. 12. The following morning Person A consulted a GP who arranged for urine drug testing. It tested positive for benzodiazepine. She reported the matter to a suburban police station on 29 November 2013. 13. Person A then rang Dr DWF in January 2014. Her telephone conversations with Dr DWF on 5 and 6 January were the subject of a recording pursuant to an authorised listening device. During those conversations Dr DWF said he was stunned by the allegations she made and had limited recall of what had happened. He apologised for whatever had happened and expressed shock and disbelief at the allegations. He said he had experienced alcohol blackouts and would undertake treatment for his problem. He offered Person A any third party assistance he could including counselling and mediation. 14. Police executed a search warrant on 31 January 2014 on Dr DWF's home. They found benzodiazepine in his home Convictions 1. Arising out of these events on 22 November 2013, Dr DWF was convicted in the District Court of NSW on 15 October 2015 for using an intoxicating substance to commit an indictable offence contrary to s 38(a) of the Crimes Act 1900 (NSW) and Assault with indecency contrary to s 61L of the Crimes Act. He was sentenced by Judge Hock to a term of imprisonment of four years, that sentence ultimately being set aside by the NSW Court of Criminal Appeal on appeal. Dr DWF was re-sentenced to an aggregate sentence of 18 months imprisonment. He served nine months of that sentence and was then released to parole. Apparently there have been no issues with the observance of his terms of parole. Person B: Facts 1. The events involving Person B were that she had first met Dr DWF in 2012. The context of that meeting was that her father had been diagnosed with prostate cancer and she had accompanied him to his first session at the Clinic at a Sydney hospital where she met Dr DWF. Over the next few weeks Person B's father continued to attend for treatment there during which time his emotional and financial position deteriorated. 2. Over that period, Dr DWF became aware that Person B had become separated from her husband and her father was financially dependent on her. At the relevant time Person B was aged 49. 3. Dr DWF was also aware that Person B was very stressed and under a lot of pressure. She said that she thought of Dr DWF as her and her father's saviour. 4. Over the course of a number of meetings, Dr DWF told her that he wanted to write a history of her father. He raised this in emails to her. In December, he again emailed her specifically to arrange a meeting without her father to discuss the proposed journal article. They arranged to meet for lunch which Dr DWF said he would pay for. He said that they would go out for lunch and meet prior to that at the clinic at the St George Hospital. 5. On 28 December 2012, she met Dr DWF at the hospital and then in his office. They had lunch there and during that he provided champagne to her while they were in his office. She had two glasses of champagne and some canapes/sandwiches. She felt as though the champagne had gone straight to her head. 6. After having the champagne, Dr DWF took her into his consultation room where they continued their discussions about her father and the proposed article. She said she was tense. Dr DWF told her he would teach her relaxation techniques. She felt uneasy and then felt her limbs being heavy. 7. Dr DWF told her to get up on the examination bed and then ran his hands over her chest and breasts. She was hesitant and uncomfortable but he was insistent. 8. He started to undo the buttons on her dress and front and exposed her chest and bra. She felt a heavy sensation and as though everything was happening in slow motion. 9. Dr DWF then suggested that he give her a breast examination stating, apparently by way of either encouragement or to diminish her reservations, that he was the head of a clinic which had specialist expertise in treatment of medical breast issues. 10. During that, Dr DWF squeezed her breasts and gently squeezed her nipples. She tried to stop him. He then placed his mouth over her nipple and sucked on her breast and kissed her. 11. There was a knock on the door. Dr DWF went to the door. When he was absent, Person B got dressed although her legs still felt heavy. She tried to leave but on his return, Dr DWF came up behind her and put his arm around her waist. 12. She got out of the office and left the hospital. Thereafter she felt upset and was unable to talk about what had happened. 13. She complained to the police on 15 October 2015 following a discussion with her sister. Her sister had become aware of the publicity given to the investigation against Dr DWF in relation to Person A. 14. Person B suffered a nervous breakdown. The effects of that were profound as set out in her statement. Conviction and sentence: offence involving Person B 1. Dr DWF was convicted in the Local Court of NSW at Sutherland in relation to those matters of an act of indecency contrary to s 61L of the Crimes Act. He received for that offence a Community Services Order under s 8 of the Crimes (Sentencing Procedure) Act and was required to perform 340 hours of community service work. 2. Evidence was given at that sentencing hearing that, at the relevant times, Dr DWF was suffering from stress, anxiety and an alcohol related condition. Impact of imprisonment 1. The impact of that sentence of imprisonment on the Person A charges on Dr DWF was profound as was indicated in some of the psychiatric reports referred to later. 2. Dr DWF's psychiatrist, Dr D'Angelo, (see below: report 23 November 2018) said that Dr DWF had said that he had had numerous difficult and traumatic experiences in prison. These involved threats and intimidation and also physical assault. Relevant matters since release to parole and subsequently 1. There is no evidence of any anti-social behaviour since Dr DWF's release to parole, rather the reverse. He has been law-abiding and extensively involved in charity work with homeless men including ex-prisoners. 2. Dr DWF's evidence has been that he had repeated dreams about those prison experiences consistent with PTSD. As a result and since his release, he has become involved with a local outreach community service, a respite accommodation service for homeless men. He volunteers for that service once per week. Suicidal ideation 1. Dr DWF has told Dr Westmore (report: see [52] ff below) that he has felt suicidal on occasions. His suicidal thoughts became intense in March/April 2014. Impact on Dr DWF: Practice and professional contacts 1. Dr DWF ceased practice in January, 2014 shortly after he was interviewed by police following the complaints by Person A. 2. Dr DWF has lost his clinical directorship, his associated academic position and his medical registration. He also says that he has lost almost all of his professional contacts, previously numbering about 150 colleagues. Only about 3 or 4 former professional colleagues maintain contact with him. 3. Evidence was given at the earlier court and sentencing hearings that Dr DWF had suffered from a major depressive disorder (which was untreated) from work stress and that he had used excessive alcohol consumption as a coping mechanism. As a result of the court proceedings he has suffered flashbacks, insomnia and nightmares. 4. Dr DWF has said that he has abstained from alcohol for three years. Insight and attitude 1. Dr DWF attributes his actions to his vulnerability to stress, overwork and burnout, his then social difficulties and his inability to set boundaries. Dr DWF 1. Dr DWF has consented to his medical registration (currently suspended) to being cancelled and also to a condition that he will not seek to obtain re-registration for a period of at least five years. The conditions include prevention of him providing health services as defined. Psychiatric evidence Dr Westmore 1. Dr Westmore, forensic psychiatrist, provided a report dated 8 February, 2018. Diagnosis 1. Dr Westmore determined that (p11 of his report) "Mr DWF suffers from an Alcohol Use Disorder which is currently in remission and he also suffers from a Social Anxiety Disorder, which has probably been present for many years and possibly originated during his formative years. He has a history of pre-incident depression and I have diagnosed him as having an adjustment disorder. Following his current legal problems, Mr DWF's Depressive Disorder has been exacerbated with the differential diagnosis being that of a moderate to severe Adjustment Disorder or, in the alternative, a major Depressive Disorder." 1. Dr Westmore also noted Mr DWF's morbid thoughts are of "…a self-harming type." Dr. Roberto D'Angelo 1. Dr Roberto D'Angelo, psychiatrist, provided four reports dated 16 February, 2016, 14 July 2016 and 23 November 2018 and a report dated May 2019 on the first day of the hearing. He based his report on information obtained during individual psychotherapy sessions from June 2014 onwards. He had seen Dr DWF on over 115 separate occasions. 2. Dr D'Angelo thought that Dr DWF's conduct had been completely out of character. He noted that Dr DWF's wife had been away overseas at the time of the first offence for over a week. Dr DWF had not been away from her for that long a period since their marriage and found it difficult to tolerate being away from her. He said that he had experienced what Dr D'Angelo referred to as a protracted panic attack after her departure. Dr D'Angelo thought that was relevant in relation to the intensity of their relationship against the background of other attachments Dr DWF had had with for example, his mother. 3. Dr D'Angelo also noted that Dr DWF had experienced frequent suicidal thoughts. Dr David Greenberg 1. Dr David Greenberg, forensic psychiatrist, provided a report dated 15 April 2016. 2. Having reviewed the material, Dr Greenberg gave his opinion (p17) that: Despite Dr DWF's claim that he had no erotic feelings for the victim, I am of the opinion that the most likely scenario to explain Dr DWF's offending behaviour is that he had some sort of sexual interest in his young female registrar. I am of the view that in his mind, he set up 'a romantic date' with this young woman. In my view, he attempted to seduce (Person A) by offering her various work-related favours', as well as impressing her with wine and food and his (impressive) apartment. He likely, in my view, attempted to relax the young woman with offers of alcohol, relaxation massage and spiking her food/drink with a sedative medication in order to secure his goal of sexual gratification. It is also impossible that his intention was to induce an incapacitated (semi-comatosed or deep sleep state) in Person A, with the subsequent loss or partial loss of memory (due to the benzodiazepine substance) of the event by the young woman." 1. In that context, Dr Greenberg made reference to a similar intimate liaison at the time of Dr DWF's first marriage when he had developed a relationship at the time of having intimacy and sexual issues with his first wife. He then had a consensual relationship with a female doctor in the hospital. 2. The same pattern appeared in his second marriage with similar sexual issues and the combination of events, in Dr Greenberg's opinion, may have led him to pursue a new romantic liaison with Person A. 3. Dr Greenberg concurred with Dr D'Angelo's opinion that Dr DWF's behaviour towards Person A was completely out of character. But he also thought (report p29) that Dr DWF's elaborate actions preceding and at the time of the offending behaviour indicated voluntary conscious awareness of his actions which were not disorganised, random, haphazard or unsystematic or trance-like. 4. Dr Greenberg differed from Dr D'Angelo in making any connection between traumatic childhood experiences and the events concerning Person A. Dr Greenberg thought (report p 30) that Dr DWF's premeditation and planning did not support a view that he lacked awareness or consciousness. Rather, what occurred was that he was in a position of power and authority relative to Person A. The facts do not support a lack of capacity to know and understand the nature of his actions or that they were wrong. He had made considered judgments about offering Person A a specially created, more senior, position in his department, as well as his discussions about the mentorship program and his offer of training to Person A. 5. In Dr Greenberg's opinion, Dr DWF must have been aware of the inappropriateness of his invitation to Person A. All that occurred several days before the offending behaviour while he was at work and (likely) not intoxicated or under the influence of any sedative or dissociative state. 6. Dr Greenberg's concluding view (p 31) was that "…the most likely scenario was that Dr DWF had some sort of sexual erotic interest in Person A who was a subordinate. His offending acts were intentional, rational, voluntary and conscious". 1. He agreed with Dr Westmore that: "…most likely, Dr DWF had an alcohol use disorder and some form of depressive disorder at the time preceding and at the time of the offending". Additional evidence: Dr DWF's wife 1. Further reports were tendered from Associate Prof Saidi dated 28 March 2019, Dr Jane Rowden dated 5 May 2019, and Dr D'Angelo dated 14 May 2019. That latter report related to Dr DWF's issues. The other reports related to the impact of the proceedings on Dr DWF's wife. They were tendered collectively as medical evidence on the non-publication application. 2. The Tribunal has read those reports which has informed its decision that there should be no reference to those reports in these reasons and no reference to, nor identification of, Dr DWF's wife. It is clear that the totality of the proceedings against Dr DWF have had a major impact on his wife. There is no public interest in any disclosures regarding her or the impact of these proceedings on her. 3. It is proposed that those reports and relevant psychiatric reports concerning Dr DWF be restricted in access to such persons who make specific application to the Tribunal and establish sufficient standing and interest to warrant disclosure of that material. Law Objects of the National Law 1. The objects of the National Law, found in s 3 and particularly in NSW in s 3A, guide and direct the Tribunal in its decision making. At the heart of all proceedings is the mandate to ensure decisions protect the health and safety of the public. Also relevant is that a Tribunal ensure only those practitioners who are fit to practise are registered if a claim of not suitable to practise is established. 2. Against the reference to the objects of the legislation, it is relevant at this point in these reasons that the Tribunal records that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1960) 104 CLR 186). 3. The High Court has made it plain that the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds". Clearly the Tribunal needs to exercise its discretion having regard to the facts of the case - see generally Re Lenehan; [1948] HCA 45; 77 CLR 403; per Latham CJ, Dixon and Williams JJ at [33]; Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Zaidi v Health Care Complaints Commission [1998] NSWSC 335 per Mason P at [15]; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [637]; Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58. 4. In Re Jason Martin [2010] NSWMT 13, the then Medical Tribunal also noted that the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction being exercised is for the protection of the public. Further that, it is not "a question of what an applicant has suffered in the past. It is a question of his worthiness and his reliability for the future." Interests of the public 1. Protecting the interests of the public is an integral part of the Tribunal's role. It's orders have an educative function and there is a deterrent aspect both to the profession and to the public. Orders made where professional misconduct is established are also designed to uphold the maintenance of standards and the dignity of the profession. These principles were set out by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at 35 as follows: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." Interests of the profession: Deterrence 1. Disciplinary proceedings have as their ultimate purpose the protection of the public; the public and other members of the profession have an interest in knowing of such proceedings, and their outcome, as well as the process involved and the standards applied. In this case, that becomes particularly relevant in terms of what the Tribunal considers to be the evidence necessary before re-instatement applications are considered. 2. As indicated earlier, these principles are also relevant to the determination of the application for non-publication of Dr DWF's name and identifying details or suppression orders of the material sought. 3. Here there is no issue but that Dr DWF's registration will be cancelled. Further, that he will not seek to be re-registered for a period of five years. He has also made it clear at the hearing that he will not be seeking to make an application for re-registration. Non-publication and suppression orders: Submissions Dr DWF's wife 1. Given the approach of both counsel and the contents of various medical and psychiatric reports tendered on her behalf from Dr Rowden dated May 2019 and Dr D'Angelo dated May 2019, consent orders are able to be made that there be no publication of any details identifying Dr DWF's wife nor her pertinent details. These reasons reflect that agreement and are considered appropriate by the Tribunal. Medical and psychological reports 1. A similar approach was adopted in relation to the non-publication of all or any medical and psychiatric reports tendered or filed in these proceedings. In that regard, and given the concessions made in the Amended Response by Dr DWF, the approach was also adopted of not requiring any such medical or other witnesses to give evidence. Accordingly the evidence does not represent any finding by the Tribunal after, for example, cross-examination of all or any of the witnesses. The Tribunal considers that the selected material set out earlier is sufficient to indicate the nature of the evidence should that be considered to be relevant at a later date for other purposes. 2. All that material is in the control of the parties and can be released if thought appropriate to any other relevant medical or regulatory authorities. The Tribunal does not consider that it is in the public interest for any wider release at the present time. 3. In the circumstances of the matters raised in relation to the current situation of both Dr DWF and his wife and the fact that the relevant offending matters occurred and were dealt with to finality (and publicly) over four years ago, the Tribunal considers it to be appropriate that the current medical and psychiatric evidence pertinent to both Dr DWF and his wife should not be released to the public other than following a specific application to the Tribunal. Any such application should specify the basis for the application, the interest of any party making such application and any public interest considerations. Publication of Dr DWF's name 1. Counsel for Dr DWF has made application for a non-publication order in relation to Dr DWF's surname. She submits that: 1. given the events happened some years ago; 2. they were dealt with to finality at that stage with all the attendant publicity; 3. Dr DWF has made it clear that he is not seeking re-registration; 4. that his name and the fact of the cancellation of his registration will in any event be on the register; and 5. that there is no public interest reason why his name should not be anonymised to the initials 'DWF.' HCCC 1. Counsel for the HCCC submitted that the onus is on Dr DWF to justify why an order should be made and to establish that there are special circumstances warranting such an order. Further, in the circumstances and on the evidence – and even accepting that Dr DWF and his wife have clearly been deeply distressed, shamed and embarrassed by all the attendant publicity over the years - there is no reason why he should not be identified by his name in these reasons. Non-publication: Dr DWF's name 1. The Tribunal considers that exceptional circumstances do exist sufficient to depart from the principles of open justice normally applicable in these cases – see HCCC v Vo [2014] NSWCATOD 127 at [181-185]; Health Care Complaints Commission v XC [2015] NSWCATOD 9, those being that: 1. There has already been substantial and adverse publicity to Dr DWF surrounding the initial investigation and the criminal trial and sentence in the District Court and the Local Court proceedings including the sentence; 2. His identification and personal details and connection with all these matters was publicly available and were also available to his professional colleagues in his specialty, his specialist college, his hospital and other professional environment; 3. The psychiatric evidence of Dr D'Angelo and to a limited degree that of Dr Westmore sets out the impact on Dr DWF and on his wife of the investigation, his trial, the sentence, the appeal and his imprisonment including the professional and social consequences and disgrace which he has evidently and keenly felt; 4. and that these circumstances warrant a non-publication order in relation to Dr DWF's name which should be anonymised. 1. The Tribunal also considers that the public interest is protected in these proceedings given the references in the public register to him will also show that his registration has been cancelled. Further, given the intention of Dr DWF not to practice again and the duration of the orders proposed (five years), there is limited likelihood of the needs of future patients being a relevant consideration. The public interest of those already involved needing to be able to ascertain what has happened is met by these orders, but not the decision being available on the public register which can be searched. 2. Clearly, AHPRA records are available setting out the fact of cancellation for any person or, for example, any referring practitioner who wishes to inquire into Dr DWF's status or any person wishing to know what has happened in these proceedings. That register also indicates that the HCCC has acted appropriately; further, that it has fulfilled its statutory function to take firm action to protect the public from practitioners whose actions are criminal and where there are or may be issues of public safety. 3. Further, the distribution of these reasons by the HCCC to the Medical Council of NSW and by it to the relevant College to which Dr DWF belonged will ensure that the profession itself can take measures to bring any relevant matters to the attention of its members if necessary. Reasons for cancellation 1. Even though the parties have consented to an order for cancellation of Dr DWF's registration and Dr DWF has confirmed during the hearing that he does not intend to re-apply, those circumstances may change. Accordingly, the Tribunal considers that it should set out the factors which warrant such an order at this stage and on the evidence before the Tribunal as at the date of this hearing. 2. Against the background of the evidence, the Tribunal considers that the events which gave rise to Dr DWF's convictions involved: 1. The abuse of a professional colleague with whom he was in a relationship of trust and with a considerable power imbalance; 2. Person A's relationship with Dr DWF was one of particular vulnerability given that he was her supervisor and was about to supervise her again. She had recently failed an exam and was about to be tutored and mentored by him. What must have been at least a sub-text to what occurred was that her potential fellowship would depend, at least, on his approval; 3. There is at least a strong inference from Person B's description of her reactions to what had occurred after she had had the drinks as offered to her by Dr DWF, that she also was subject to the influence of an intoxicating substance; 4. Certainly the offence concerning Person A involved administering an intoxicating drug to which Dr DWF had ready access as a specialist medical practitioner. 5. The abuse of Person B was towards a person who had approached him about her father who was seriously ill; she was in the position of an ordinary member of the public seeking help for a close relative, namely, her father; 6. Dr DWF had utilised his professional standing in that he said he was wanting to write a paper about Person B's father for a medical journal; 7. The events concerning both Person A and Person B occurred in the context of either Dr DWF's office or a medical consulting room or in his home. He had the control over those premises on each occasion. Neither victim had any real familiarity with the premises. They were entitled to be safe and not to be assaulted as they each were in those premises; 8. Each victim separately had trusted him to behave not just honourably but also honestly and without manipulating them in the situation he had arranged, if not manufactured, with each of them; 9. Both events constituted repeated efforts by him to have sexual contact with each of Person A and B in the respective situations which arose because he was utilising his professional standing; 10. The two events which need to be considered both individually and cumulatively and in the context of the eleven month time period. In the circumstances the events cannot be considered as isolated nor a 'one-off' or a response to a misunderstanding. Rather, they both individually and cumulatively need to be considered as part of a pattern, a pattern involving the use of alcohol and the manipulation of a scenario which Dr DWF created and the ensuing abuse of each victim. Any apparent explanation of the first incident involving Person A does not appear to be relevant to the second incident 11 months earlier involving Person B; Impact on victims. 1. It is clear that each event had lasting psychological consequences on each victim; Mitigating factors 1. There was no suggestion of Dr DWF either restraining or forcibly confining the complainants – albeit Person A was certainly and clearly affected and alarmed by what had happened. There was a repetition of the inappropriate behaviour when Person B attempted to leave the room; 2. Neither event involved physical threats nor violence over and above that of the acts themselves - and then not to the point of physical injury. Nevertheless the psychological consequences were significant; 3. The gravamen of both offences was an act of indecency rather than penetrative intercourse; 4. Dr DWF's had a previously unblemished record both as a doctor and as an individual; 5. He had carried out many professional service in a number of eminent capacities; 6. His imprisonment was for a significant period and has been served; Impact on Dr DWF 1. The undoubted shame and humiliation he has experienced personally and professionally given the publicity that has accompanied the investigation, the trial and hearing, the sentencing as well as his imprisonment and the impact of all those matters; 2. The financial impact on him of all these events in terms of the loss of his positions, his practice and his loss of income; 3. The costs he has incurred during the trial and hearing processes as well as the appeal together with the costs of this hearing. Consideration: additional factors 1. Against the background of the matters listed, the Tribunal considers that the two events involving different complainants in a relatively short space of time shared some similarities in planning and premeditation. Both events and incidents indicate a course of conduct in which Dr DWF utilised his professional position, standing and knowledge to his advantage as well as his capacity to obtain the intoxicating substance used on Person A. 2. In both offences there was a commonality in the manipulation of a situation and in the kind of sexual behaviour involved. The first offences involving Person A required considerable preparation and planning. It could not be said to be an opportunistic event. 3. Similarly with Person B, Dr DWF's manoeuvring of her into his consultation room and his ostensible use of relaxation techniques in his appeal to her to acquiesce in his examination techniques. 4. The Tribunal has had regard to all the matters set out, including the convictions, the sentences, the circumstances of the offences, the separate and cumulative effects of them, the other evidence tendered as part of these proceedings, the public interest and the unsuitability of Dr DWF to continue in practice. The Tribunal considers that cancellation is the appropriate outcome under s 149C of the National Law. In so finding, the Tribunal has had regard to the objectives and guiding principles of the National Law. Safety of the public 1. The Tribunal considers that such orders are necessary to protect the interests of the public. Deterrence 1. The Tribunal considers that such orders are also necessary to ensure that there is a public deterrence factor to other members of the profession against being involved in such conduct. Options 1. The Tribunal considers that cancellation is an appropriate penalty. Specifically, the Tribunal does not consider that a fine or reprimand is appropriate. Costs 1. Counsel for the HCCC submits that it was necessary for the HCCC to bring the application for cancellation. It is accepted that Dr DWF and his legal team acted appropriately in dealing with the matter to confine and limit issues before the Tribunal, including by notifying Dr DWF's intention not to oppose the cancellation order on 9 May 2019. 2. Counsel for Dr DWF accepts that an order should be made for the payment of the HCCC's costs of, and incidental to, the first date of hearing. 3. Here the matter was conducted by the HCCC and Dr DWF's legal representatives efficiently and co-operatively. Dr DWF did not contest factual matters nor any of the opinions advanced in the psychiatric evidence. It was therefore not necessary to call any of the witnesses. On the material before the Tribunal, it appears that Dr DWF and his legal representatives acted appropriately in making concessions and, if not promptly, certainly reasonably, in the time available after the filing of the amended application. 4. Nevertheless, the Tribunal accepts that it was necessary for the HCCC to act in the way it did to ensure that the existing suspension of Dr DWF's registration was converted to one of cancellation. 5. Accordingly the Tribunal considers that the appropriate order is that Dr DWF pay the costs of, and incidental to, the hearing and makes that order accordingly. 6. The Tribunal would observe that despite that co-operative attitude between the parties, there does not seem to be a legislative provision other than for the HCCC to come back before the Tribunal to make registration cancellation orders by consent. That necessarily increases the costs to both the HCCC and the relevant practitioner as well as making demands on the Tribunal's resources to ensure that the reasons for the cancellation are determined and recorded. It may be that legislation is necessary to avoid this need in appropriate consent circumstances. Certainly this Tribunal anticipated that this would be a full hearing which is why it was set down for the time period allocated. 7. Nevertheless, on the basis of the legislation and authorities which currently exist in these circumstances, the HCCC is entitled to its costs. That order effectively follows the event of the orders for cancellation. Here the HCCC has insisted on the full days' costs which counsel for Dr DWF does not oppose. Orders 1. Dr DWF's registration is cancelled pursuant to s149C(1)(c) and s149C(1)(d) of the Health Practitioner Regulation National Law ("the National Law"). 2. Dr DWF shall not apply for reregistration on the Register of Medical Practitioners maintained by the Medical Board of Australia in conjunction with the Australian Health Practitioner Regulation Agency (AHPRA) for a period of at least 5 years from the date of these Orders pursuant to s149C(7) of the National Law. 3. Dr DWF is prohibited pursuant to s149C(5) of the National Law from providing any "health services" as defined, whether provided as a public or private service, until further order. 4. That Dr DWF pay the HCCC's costs pursuant to Clause 13, Schedule 5D of the National Law, as agreed or assessed. 5. The specific evidence consisting of the 3 medical reports referring to Dr DWF's wife and her current state of health, being the report of Associate Prof Saidi dated 28 March 2019, the report of Dr Jane Rowden dated 5 May 2019, and the report from Dr D'Angelo dated 14 May 2019 are to be referred to in the Reasons and Orders collectively as "the medical evidence on the non-publication application" but not otherwise referred to in the Reasons and published Orders; 6. The reports from Dr Bruce Westmore, Dr David Greenberg, Associate Prof Sam Saidi dated 28 March 2019, the report from Dr Jane Rowden dated 5 May 2019, and each of the reports from Dr D'Angelo are to be placed in a sealed envelope on the Tribunal file marked "Not to be accessed by any third party without further Order of the Tribunal"; 7. In the event that any third party seeks access to the contents of the sealed envelope of the evidence referred to in the Tribunal's file, prior to such access being considered by the Tribunal, each of the parties is to be provided with 14 days' notice of that request and be given an opportunity to be heard in that respect. Release of reasons 1. The reasons shall be forwarded by the HCCC to the relevant specialist medical College of which Dr DWF was a member. 2. The HCCC shall inform both Persons A and B of the decision of the Tribunal and their entitlement to read the decision at the registry of the Tribunal. 3. The order under Cl 7 of Schedule 5D of the National Law, made on 1 February 2019 prohibiting the disclosure to any person or entity of the names of Persons A and B set out in the Schedule to the Amended Complaint is continued. 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: 31 May 2019