Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Skandaliaris (No 2) [2019] NSWCATOD 110 Hearing dates: 26 April 2019 Date of orders: 10 July 2019 Decision date: 10 July 2019 Jurisdiction: Occupational Division Before: L Pearson, Principal Member Dr R Boland, Senior Member N Loneragan, Senior Member G Alder, General Member Decision: 1. The Respondent is reprimanded. 2. The Respondent's registration as a physiotherapist is cancelled from the date of this decision. 3. The Respondent is not to make any application for review of the cancellation of his registration for a period of 12 months from the date of this decision. 4. Under Sch 5D, cl 13 of the Health Practitioner Regulation National Law (NSW) the Respondent is to pay the costs of the Health Care Complaints Commission as agreed or assessed. Catchwords: TRADES AND PROFESSIONS – health practitioner – physiotherapist – findings of unsatisfactory professional conduct and professional misconduct – appropriate protective orders Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR(NSW)448 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Perera [2018] NSWCATOD 112 Health Care Complaints Commission v Skandaliaris [2018] NSWCATOD 199 Lee v Health Care Complaints Commission [2012] NSWCA 80 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ioannis Skandaliaris (Respondent) Representation: Counsel: S Maybury (Applicant) G Jauncey (Respondent) Solicitors: Health Care Complaints Commission (Applicant) M J Woods & Co Lawyers (Respondent) File Number(s): 2017/00388303 Publication restriction: Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW) the names of Person A and Patients A, B, C, D, E, F, G, H and I identified in the Schedule to the Complaint are not to be disclosed. REASONS FOR DECISION 1. In reasons published as Health Care Complaints Commission v Skandaliaris [2018] NSWCATOD 199 we made findings in relation to four complaints made against Ioannis Skandaliaris, a registered physiotherapist, by the applicant Health Care Complaints Commission (HCCC). These reasons should be read in conjunction with that earlier decision (the Stage One decision). 2. The first complaint was a complaint of unsatisfactory professional conduct in relation to treatment Mr Skandaliaris provided in April 2014 to Person A, a receptionist employed at the medical centre at which Mr Skandaliaris was working. The second complaint was a complaint of unsatisfactory professional conduct in relation to his failure to comply with a chaperone condition subsequently imposed on his registration under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law) by the Physiotherapy Council in June 2014. The third complaint was a complaint of unsatisfactory professional conduct in relation to the provision of reports to the Physiotherapy Council as to his compliance with the s150 conditions from November 2015 to May 2016. The fourth complaint was a complaint of professional misconduct arising from the same matters. 3. The detail of each complaint and its particulars is discussed in the earlier decision. The Tribunal was satisfied that each of the complaints brought against Mr Skandaliaris was established. In relation to complaints 1, 2 and 3, the findings were: 1. Complaint 1 – treatment provided to Person A: Mr Skandaliaris is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) and (l) of the National Law, in: 1. failing to obtain and adequate history before commencing treatment (particular 1); 2. engaging in conduct during the treatment on 4 April 2014 that was not clinically justified for the proper care of Person A, and failing to properly explain what he was doing or to obtain informed consent for the treatment (particular 2); and 3. failing to maintain adequate clinical notes (particular 3); 1. Complaint 2 – breach of condition imposed under s 150 of the National Law on 16 June 2014 that he not consult, treat or examine any female patient including work colleagues unless a chaperone is present: Mr Skandaliaris is guilty of unsatisfactory professional conduct as defined in s 139B(1)(c) and (l) of the National Law; 2. Complaint 3 – failure to include details of all the females treated by him in reports provided to the Physiotherapy Council: M S is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) and (l) of the National Law. 1. Complaint 4 alleged that Mr Skandaliaris was guilty of professional misconduct as defined in s 139E of the National Law, relying on particular 2 of Complaint 1, particular 1 of Complaint 2, and particulars 1, 2, 3, 4 and 5 of Complaint 3. The findings on Complaint 4 were as follows: 111. In considering whether any of the established conduct is of sufficient seriousness to constitute professional misconduct, we note that the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264. 112. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. At [20] his Honour continued: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 113. The Tribunal's findings in relation to Complaints One, Two and Three go to Mr Skandaliaris' compliance with: (1)the ethical obligations and the standard of care required of a health practitioner; (2)the conditions imposed on his registration under s 150 of the National Law for the protection of the health or safety of the public; and (3)his obligations as a health practitioner to be candid and honest in his dealing with the regulatory authorities. 114. The findings as to Particular 2 of Complaint One demonstrate a serious breach of the standard of care expected of a health practitioner in a position of trust. 115. We are satisfied that the conduct in relation to Person A as established in Particular 2 of Complaint One is of sufficient seriousness to constitute professional misconduct. We are also satisfied that Mr Skandaliaris' breach of Condition 2 of the conditions imposed under s 150 of the National Law, and his failure to disclose information that he was not complying with that condition in his reports to the Physiotherapy Council, are of sufficient seriousness to constitute professional misconduct. Even if we are wrong and the conduct established in regard to each of the particulars of Complaints One, Two and Three can properly be regarded individually as constituting unsatisfactory professional conduct, the complaints are, considered together, of such seriousness as to constitute professional misconduct. 1. We had agreed to a two stage hearing in this matter at the request of the parties, on the basis that particular 2 of complaint 1 included an allegation of a sexual element in the conduct during the treatment of Person A on 4 April 2014. We anticipated that publishing our Stage One reasons would afford procedural fairness to the parties by providing an opportunity to them, after considering our findings, to make submissions as to what protective orders should be made. Both parties have provided written submissions, and Mr Skandaliaris provided a written statement (20 March 2019) and character references. A Stage Two hearing was held on 26 April 2019, at which Mr Skandaliaris gave oral evidence. 2. Mr Skandaliaris' registration is currently subject to conditions imposed under s 150 of the National Law by the Physiotherapy Council on 20 July 2016. Those conditions require that he obtain approval before changing the nature and place of practice; that he not consult, treat, interview or examine any female patient including work colleagues in any practice context; that he submit to a monthly inspection of every practice in which he provides physiotherapy services; that he provide to the Council a record of all appointments attended by patients each Friday; and that he authorise and consent to exchange of information between the Physiotherapy Council, Medicare and health funds for the purpose of monitoring compliance. Unless his registration is cancelled or suspended, conditions on his continuing practice will need to be imposed. 3. The HCCC submits that the appropriate protective orders are to impose a reprimand; to cancel Mr Skandaliaris' registration as a physiotherapist; to impose a non review period of 2-3 years; and to make an order under s 149C(5) of the National Law prohibiting Mr Skandaliaris from providing health services. The HCCC seeks an order for costs. 4. Mr Skandaliaris disputes the orders proposed by the HCCC, and instead accepts that he should be reprimanded, and proposes that current conditions on his registration continue together with a condition requiring evidence of continuing education in ethical practice. Mr Skandaliaris proposes that any costs order be for payment of 75% of the HCCC's costs. 5. We have determined, for the reasons which follow, that the appropriate protective orders are to reprimand Mr Skandaliaris, to cancel his registration as a physiotherapist, and that he should be precluded from applying for review for a period of 12 months, and that he should pay the costs of the HCCC of and incidental to these proceedings. What protective orders could be made 1. Having found that the complaints against Mr Skandaliaris have been proved, the Tribunal may, under s 149A(1) of the National Law: (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 1. The Tribunal may suspend or cancel Mr Skandaliaris' registration, as it has found that he is guilty of professional misconduct: s 149C(1). 2. Additional protective orders sought by the HCCC are those under s 149C(5) and (7): (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. The power to make any of these orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: 20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards. 1. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s3. The most directly relevant of those principles is that in s 3(2)(a), to provide for 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. The protection of the health and safety of the public must be the paramount consideration: s3A. 2. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: 35. 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. While the Tribunal has found that Mr Skandaliaris is guilty of professional misconduct, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. Whether or not the misconduct is sufficiently serious to warrant cancellation or suspension depends on the circumstances of the individual case. What protective orders should be made 1. The HCCC submits that Mr Skandaliaris' conduct relates to the direct practice of the profession, as well as character transgressions. His conduct is a serious breach of the standards that the public have a right to expect of a practitioner. He was prepared to treat patients, being staff of the medical centre, in circumstances of an inadequate history, and he failed to keep clinical records. His conduct in treating Person A included inappropriately manipulating parts of the patient's clothing in circumstances where consent was not obtained and no clinical indication existed. That manipulation of clothing was particularly serious because it did or had the propensity to expose the patient's private or genital regions. The conduct extended to inappropriately touching or manipulating parts of the patient's body without clinical justification and where the patient tried to prevent him doing so. The practitioner placed his hands inside the patient's underwear and touched her pubic area and forcefully manipulated her body in circumstances where that was not clinically justified. The HCCC submits that the deliberate flouting of the chaperone condition is serious, more so in circumstances where Mr Skandaliaris provided false records to try and cover up the lack of a chaperone. The complaints cover most aspects of physiotherapy practice, and concern a lack of candour or honesty. 2. Mr Skandaliaris accepts that a reprimand is appropriate. He submits that cancellation of registration is not appropriate, when regard is had to the absence of a finding that there was a sexual element in the conduct during the treatment on 4 April 2014, and that this was an isolated incident. There is no evidence of any physical effect, rather distress, and there is no evidence that the treatment caused Person A harm or required remedial treatment. There is no evidence that Mr Skandaliaris' history taking or notes are less than adequate for patients. The treatment of Person A was an aberration, and there is no evidence of complaint from those patients treated in the absence of a chaperone. The breaches were all at the lower end of breaching particularly when considered in the totality of the background, the prior good record of Mr Skandaliaris, and the delay in the conclusion of the matter. Mr Skandaliaris has been in practice for a considerable period of time, has otherwise complied with the requirements of his profession, and doctors continue to refer patients to him. Evidence relied upon in the Stage Two hearing 1. In his written statement Mr Skandaliaris states that he understands the basis of the Stage One decision and accepts it, and feels extremely remorseful for his behaviour. He is currently treating males on an unsupervised basis, and has been unable to find more than one day a week of employment. He has received no complaints other than those presently before the Tribunal, and he has complied with all his professional obligations since he was barred from treating women. He will never again treat staff members or friends. He will never breach a direction or order of the Board in future, because of the shame his behaviour has cause him and his family, the catastrophic effect it has had on his business and income earning potential, and because he has gained insight through introspection into the importance of complying with orders. He has found it difficult to understand his own behaviour. He understands that the real cause of the breaches was his personal failing, and he has developed strategies to relieve any damaging pressure in the future. He intends to enrol in courses, and he has developed hobbies such as training at gym. He attends church every week and the priest has become a mentor. His income has reduced significantly, and while the income from physiotherapy is such that there is little point in working under the present restrictions he has continued because he loves physiotherapy. He apologises for his behaviour and breaches, and feels ashamed and contrite. 2. In oral evidence Mr Skandaliaris stated that he still considers his treatment of Person A was appropriate, and his error was in treating a colleague. He treated patients without a chaperone because he was weak, and had pressure from patients wanting treatment, he was struggling financially, and he was embarrassed to tell the patient he should not be treating them. He has looked on the internet for suitable courses but cannot afford to enrol. He has thought about having a mentor, in an environment with colleagues, however his applications for work have not been successful because of the conditions on his registration. In future he would make sure a patient understands completely what he is doing, and would obtain insight into their ability to understand during history taking. Discussion and findings 1. There are three aspects relevant to consideration of what protective orders are required and appropriate: Mr Skandaliaris' conduct; his insight and remorse; and the steps he has taken in rehabilitation. 2. The background to the complaints, and the history of Mr Skandaliaris' qualifications and registration as a physiotherapist are summarised in the earlier reasons. Relevantly, it is not in dispute that Mr Skandaliaris has been practising as a physiotherapist since 2004. At the time of the events which led to the complaints he was working three days a week in a medical centre. 3. There are two aspects in consideration of the conduct the subject of the complaints against Mr Skandaliaris: first, what his treatment on 4 April 2014 of Person A, a fellow staff member, says about his compliance with professional and ethical standards; and secondly, his failure to comply with the conditions imposed under s 150 of the National Law on 16 June 2014 that he not treat female patients without a chaperone and provide a report each month of all patients treated including details of the chaperone. 4. The Stage One reasons detail the allegations, and our findings, as to what took place during Mr Skandaliaris' treatment of Person A on 4 April 2014, and need not be repeated. In summary, we found that in providing treatment to Person A for pain in her right sacroiliac joint Mr Skandaliaris had removed parts of Person A's clothing, exposing parts of her body, in circumstances where there was no clinical justification and where he did not explain what he was doing or ask permission. He tried to open her legs despite her resistance, and he put one of his hands inside her underwear, actions for which there was no clinical justification and no explanation provided. Those actions were done despite her objections. He lifted Person A up off the table and let go in a way that meant she collapsed back on the treatment table. We found that Mr Skandaliaris had engaged in conduct that was not clinically justified for the proper care of Person A and failed to explain what he was doing or obtain informed consent. 5. Mr Skandaliaris failed to take a proper history, or maintain proper notes, of his treatment of Person A. While he admitted to the latter, we did not accept his explanation that he was providing only limited treatment as Person A was a colleague and not a patient, and thus did not need to take a full history. 6. As a consequence of the events of 4 April 2014, which led to charges with offences of assault with act of indecency, chaperone and reporting conditions were imposed on Mr Skandaliaris' registration on 16 June 2014. Mr Skandaliaris admitted that he had treated nine female patients without a chaperone present between 24 November 2015 to 17 May 2016. Mr Skandaliaris gave different explanations as to why he had done so, one being that he thought the conditions would fall away after his acquittal on the assault charges on 15 December 2015. Four of those patients were treated before the conclusion of the criminal proceedings. We concluded that the failure to comply was not inadvertent, and that it was more likely than not that financial reasons together with his embarrassment, and resistance from some of his older female clients, were behind his failure to comply. 7. Mr Skandaliaris admitted that he had not provided details of all the female patients treated during the periods in the reports provided to the Council in November 2015, December 2015, March 2016, April 2016 and May 2016. We concluded that the omissions were deliberate. 8. As we observed in the earlier reasons, Mr Skandaliaris' conduct demonstrates a substantial failure in his understanding of and compliance with his ethical obligations and the provision of appropriate clinical care; a failure to comply with conditions intended to protect public health and safety; and a failure to exercise the candour and honesty expected of a registered health practitioner. That misconduct covers the whole gamut of professional practice. 9. Notwithstanding his statement that he understands and accepts the Stage One reasons, Mr Skandaliaris maintained in his oral evidence that his treatment of Person A was appropriate. He appears to regard his decision to treat a work colleague as being the issue. However, his stated resolve not to treat staff members and friends in future does not acknowledge that it was not his treatment of a colleague that was the issue (that not being precluded by the Physiotherapy Board of Australia Code of Conduct), but his failure to maintain expected professional standards of care in doing so, including adequate records and assessment. His continued assertion that his actions during treatment of Person A were appropriate, and the dismissal of the seriousness of the extreme distress caused to Person A, are strong indications that Mr Skandaliaris lacks insight into the inappropriateness of his conduct. 10. Mr Skandaliaris states that he has an understanding of the breaches, and he will not reoffend. He points to his increased involvement in his church and his relationship with the priest, and that doctors continue to refer patients to him. Mr Skandaliaris has provided character references from two doctors who practice at the medical centre where he now works, both of whom attest to his high levels of patient care, note taking and reporting, and who state they have no hesitation in future working with him in looking after patients. The Tribunal places limited weight on those references. Both doctors refer to knowledge of the "allegations" and the conditions imposed on Mr Skandaliaris, however it was confirmed in oral evidence that neither has been made aware of the Stage One decision and reasons. His parish priest confirms that Mr Skandaliaris is an active member of the church and community and regularly volunteers, and states that he is an honest trustworthy young man who is diligent, mindful and very respectful. The priest states that Mr Skandaliaris now understands he should have complied with the conditions, and that he will continue to mentor, guide and support him. Neither the references from the doctors nor that from the parish priest provide comfort that Mr Skandaliaris has reflected on and now understands the inappropriateness of his conduct in the treatment of Person A. 11. Mr Skandaliaris in his statement acknowledges that his financial position and his frustration were important elements in his conduct. Given the findings that the failure to comply with the chaperone condition and properly disclose to the Council were deliberate, the Tribunal is not confident that Mr Skandaliaris can be trusted to comply with his ethical and professional obligations in future if placed under similar pressure. While he states he would be willing to undertake further professional education, he has taken only limited steps to identify appropriate courses, or to establish a mentoring relationship with a professional colleague. 12. The Tribunal acknowledges that Mr Skandaliaris has had many years in practice with no apparent issues until the events of 2014, 2015 and 2016, and no evidence of any further breaches since the s 150 conditions were varied in 2016. However, the Tribunal concludes that in the context of the serious failures across the range of professional practice and obligations, the lack of candour with the regulatory authority, and the lack of insight and absence of steps to remedy shortcomings, it cannot be satisfied that Mr Skandaliaris is suitable to remain in practice as a physiotherapist. The appropriate protective order is that his registration be cancelled. 13. The HCCC seeks an order that review not be available for a period of two to three years, submitting that it will take time for Mr Skandaliaris to reflect on and take steps to redress deficiencies in his understanding of his ethical obligations. The Tribunal agrees that there is work for Mr Skandaliaris to do before he could demonstrate that he is fit to resume practice as a physiotherapist. The Tribunal acknowledges that Mr Skandaliaris had no adverse complaints before the events of 2014; that he has had conditions on his registration since then; and that his practice since 2016 has been restricted to treating males only, with no evidence of breach of that condition. The Tribunal also acknowledges that considerable time elapsed between the imposition of those varied conditions in June 2016 to the commencement of these proceedings. However, there is no evidence that in that intervening period Mr Skandaliaris has taken steps to obtain professional support, such as arranging mentoring by an experienced colleague, or provided evidence as to a clear pathway in terms of further education. Given the gravity of the misconduct and the need to uphold public confidence in the profession, the Tribunal considers that a period should be specified before Mr Skandaliaris can seek review. In the context of the extended time these proceedings have taken, that period should be 12 months. It will be for Mr Skandaliaris to demonstrate the reformation of character required at the conclusion of that period: Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR(NSW)448. 14. The HCCC submits, and Mr Skandaliaris accepts, that a reprimand is appropriate. A reprimand demonstrates that the practitioner is sanctioned for failing to meet expected professional standards, and acts as a deterrent to other practitioners; and further, upholds and reinforces the standards of the profession: Health Care Complaints Commission v Perera [2018] NSWCATOD 112 at [99]. We agree that a reprimand is appropriate. 15. The HCCC seeks an order prohibiting Mr Skandaliaris from providing health services, which are defined in s 5 of the National Law: health service includes the following services, whether provided as public or private services— (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services. 1. Before doing so the Tribunal would have to be satisfied that Mr Skandaliaris poses a "substantial risk" to the health of members of the public. The HCCC submits that the Tribunal should be so satisfied, based on the nature of the inappropriate treatment provided to Person A which was not clinically indicated and was not just misguided but rough; the lack of satisfactory explanation for that conduct; and Mr Skandaliaris' propensity to accede to patient requests contrary to his practice restrictions. Mr Skandaliaris submits that given the length of time he has been involved in the health profession and the isolated treatment of Person A, there cannot be said to be a substantial risk to the health of members of the public. 2. The Tribunal acknowledges the seriousness of the misconduct, and the need to maintain public confidence in the profession as part of the protective orders made. Having regard to the periods of practice without complaint before and after 2014-2016, the Tribunal is not satisfied that it can conclude that Mr Skandaliaris poses a substantial risk to the health of members of the public if permitted to work in health services. The Tribunal is not persuaded that a prohibition order is required to protect the health of the public, or to ensure that the protective purpose of the cancellation of his registration as a physiotherapist is met. Costs 1. The HCCC seeks an order for costs under cl 13 Sch 5D of the National Law, submitting there is no disentitling conduct on its part and the usual rule should be followed. The HCCC seeks its total costs, submitting that Mr Skandaliaris' admission to a small element of the particulars would not warrant a reduction of 25% of its costs. 2. Mr Skandaliaris submits that in the context of admissions to complaint 3, and in not requiring cross examination of Person A, any costs order should be for a percentage of the HCCC's costs, namely 75%. 3. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282: 85. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".) 1. Mr Skandaliaris made only limited admissions. While Person A was not required for cross examination on the allegations the subject of Complaint One, Mr Skandaliaris contested each of the particulars, requiring detailed testing of his evidence and submissions. There was no disentitling conduct in the HCCC's conduct of the proceedings, and the usual rule should be followed. The appropriate order is that Mr Skandaliaris pay the HCCC's costs of the proceedings. Orders 1. The Tribunal orders: 1.The Respondent is reprimanded. 2.The Respondent's registration as a physiotherapist is cancelled from the date of this decision. 3.The Respondent is not to make any application for review of the cancellation of his registration for a period of 12 months from the date of this decision. 4.Under Sch 5D, cl 13 of the Health Practitioner Regulation National Law (NSW) the Respondent is to pay the costs of the Health Care Complaints Commission as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 10 July 2019