Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sarkis [2019] NSWCATOD 134 Hearing dates: 15 July 2019 Date of orders: 04 September 2019 Decision date: 04 September 2019 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member R Perrott, Senior Member (Professional) R Boland, Senior Member (Professional) G Alder General Member (Community Member) Decision: 1. Pursuant to a finding of professional misconduct, under s 149C(4)(a) of the National Law, the Tribunal would have cancelled the practitioner's registration as a physiotherapist if he had still been registered. 2. The National Board is required to record the fact that the Tribunal would have cancelled the practitioner's registration had he still been registered pursuant to s149C(4)(c) of the National Law. 3. The practitioner may not apply for a review of these orders for a period of 7 years from the date of these orders pursuant to s149C(4)(b) of the National Law. 4. Pursuant to s 149C(5A) of the National Law, the practitioner is prohibited from providing any health services as defined by s 4 of the Health Care Complaints Act 1993 (NSW), whether on a paid or voluntary basis, until such time as this Tribunal orders that he may re-register as a physiotherapist. 5. Pursuant to s 163(1)(c) of the National Law, the Tribunal is the appropriate review body. 6. The costs of the Complainant be paid by the Respondent in the fixed sum of $8,975.56. Catchwords: Health practitioner – allegations of sexual misconduct with 3 patients – failure to give notice of convictions – respondent admits guilty of complaints and particulars – finding of professional misconduct – held if respondent still registered registration would be cancelled – protective order made – costs order made. Legislation Cited: Health Practitioner Regulation National Law Cases Cited: Health Care Complaints Commission v Cheng [2017] NSWCATOD 51 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Brian Salim Sarkis (Respondent) Representation: Counsel: D New (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2019/00071217 Publication restriction: Non-publication order with respect to the name of any person who was a patient of the respondent and any information which may tend to identify any such person REASONS FOR DECISION Background 1. These proceedings are constituted by an Amended Complaint by which the applicant Health Care Complaints Commission alleges that the respondent Brian Salim Sarkis is guilty of professional misconduct under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The applicant seeks the making of certain protective orders. 2. We granted the applicant leave to amend the complaint at the commencement of the hearing. The respondent was present and did not oppose the amendments. The Amended Complaint, as anonymised pursuant to protocols adopted by this Tribunal is in the following terms; The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Physiotherapy Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Mr Brian Salim Sarkis ("the practitioner") c/- Matthew Abrahamian, Law Corporation, 6/88 Foveaux Street, SURRY HILLS NSW 2010 being a physiotherapist previously registered under the National Law, COMPLAINT ONE Has been convicted of criminal offences within the meaning of section 144 of the National Law. BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a physiotherapist in 2013. At all relevant times the practitioner was employed at [a named physiotherapy practice] Between around March 2015 and August 2015, Patient A received treatment as a patient of the practitioner for her hamstrings and shins. Between around August 2013 and September 2015, Patient B received treatment as a patient of the practitioner for her left knee. On 14 December 2016, at the Local Court of NSW at Campbelltown, following a plea of guilty, the practitioner was convicted of two separate charges of assault with an act of indecency pursuant to Section 61L of the Crimes Act 1900. In each case the practitioner was sentenced to a term of imprisonment of 12 months. Execution of the sentence was suspended from 14 December 2016. The court directed that the practitioner be released from custody on condition that he enter into a good behaviour bond under Section 12 of the Crimes (Sentencing Procedures) Act 1999 for a term of 12 months with the following conditions: 1.The practitioner is to be of good behaviour. 2.The practitioner is to appear before the court if called upon to do so at any time during the term of the bond. PARTICULARS OF COMPLAINT ONE 1. On 14 December 2016, at the Local Court of NSW at Campbelltown, the practitioner was convicted of the following charge: (a) Crimes Act 1900 (NSW), Section 61L, assault with act of indecency, namely, between 6:30pm and 7:00pm on 17/07/2015 at Camden, did assault Patient A and at the time of the assault committed an act of indecency on Patient A, to wit, touched Patient A on her vagina. 2. On 14 December 2016, at the Local Court of NSW at Campbelltown, the practitioner was convicted of the following charge: (a) Crimes Act 1900 (NSW), Section 61L, assault with act of indecency, namely, between 9:00am on 1/09/2015 and 9:00am on 9/11/2015 at Camden South, did assault Patient B and at the time of the assault committed an act of indecency on Patient B, to wit, touched Patient B on her vagina. COMPLAINT TWO Is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(b) of the National Law in that he contravened a provision of the National Law. BACKGROUND TO COMPLAINT TWO As for Complaint One. PARTICULARS OF COMPLAINT TWO 1. On or after 9 September 2015, in contravention of section 130 of the National Law, the practitioner failed to give notice to the Physiotherapy Board of Australia ("the National Board") that he had been charged with an offence punishable by 12 months imprisonment or more, namely, assault with an act of indecency, in breach of Section 61L of the Crimes Act 1900, in relation to Patient A. 2. On or after 9 September 2015, in contravention of section 130 of the National Law, the practitioner failed to give notice to the National Board that he had been charged with an offence punishable by 12 months imprisonment or more, namely, sexual intercourse without consent, in breach of Section 61I of the Crimes Act 1900, in relation to Patient A. 3. On or after 9 September 2015, in contravention of section 130 of the National Law, the practitioner failed to give notice to the National Board that he had been charged with an offence punishable by 12 months imprisonment or more, namely, a further charge of sexual intercourse without consent, in breach of Section 61I of the Crimes Act 1900, in relation to Patient A. 4. On or after 19 November 2015, in contravention of section 130 of the National Law, the practitioner failed to give notice to the National Board that he had been charged with an offence punishable by 12 months imprisonment or more, namely, assault with an act of indecency, in breach of Section 61L of the Crimes Act 1900, in relation to Patient B. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of physiotherapy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of physiotherapy. BACKGROUND TO COMPLAINT THREE As for Complaint One. PARTICULARS OF COMPLAINT THREE 1. On or about 17 July 2015 Patient A attended [a named physiotherapy practice] for treatment by the practitioner. During this treatment session the practitioner: (a) Had his hands close to Patient A's vagina while massaging her hamstring. (b) Rubbed Patient A's foot down the front of his groin three to four times while massaging her hamstring. (c) Pressed his thumb toward the top fold of Patient A's vagina and rubbed her vagina for approximately two to three minutes. (d) Asked Patient A "Does that feel good, does that feel nice?" when he was stretching Patient A's hamstring and rubbing her vagina. 2. On or about 18 August 2015 Patient A attended [the practice] for treatment by the practitioner. During this treatment session the practitioner: (a) Initially held up a towel in front of his face to block his view of Patient A when she was taking her trousers off, however, he then lowered the towel while Patient A was changing, looked at her and said words to the effect of, "What have you got on under there, are they for me?" (b) Moved his hands close to Patient A's vagina while massaging her hamstring. (c) Asked for details of Patient A's tinder dates while massaging her hamstring. (d) Rubbed Patient A's foot on his groin causing an erection. (e) Massaged Patient A's left leg then put his fingers under her underwear and inserted his fingers inside her vagina as she lay face down on the bed. (f) Said words to the effect of, "Oh you're so wet" and continued to put his fingers inside Patient A's vagina for approximately two or three minutes as she lay face down on the bed. (g) Kissed Patient A on her buttock and neck. (h) Either: (i) Told Patient A to grab his penis; or; (ii) Allowed Patient A to continue when she started to touch his penis. (i) Either: (i) Tried to kiss Patient A on the lips, or; (ii) the practitioner and Patient A kissed. (j) Following the conduct in particulars (a) to (i) above, said to Patient A words to the effect of either: (i) "Come on get on the floor; or; (ii) "Get on your knees then." (k) Undid his belt, unzipped his trousers and said to Patient A words to the effect of, "Give me a blow job." (l) Either: (i) Put his erect penis in Patient A's mouth and then put his hand at the back of Patient A's head so she could not move her head away, for approximately two minutes, until he ejaculated over Patient A's clothes, hands and hair, or; (ii) Received oral sex from Patient A. (m) Stated to Patient A, following the conduct in particulars 2(a) to 2(l), words to the effect of, "I'm sorry, I'm embarrassed." (n) Following the treatment session obtained Patient A's mobile number without her consent for the purpose of sending her text messages of a non-professional nature, including a text message stating words to the effect of, "That was embarrassing, I'm really sorry about that." 3. By reason of the actions in particulars 1(a) to 1(d) and 2(a) to 2(l) above, individually or in combination, the practitioner engaged in inappropriate behaviour of a sexual nature towards Patient A. 4. On or about 8 September 2015, during a telephone call with Patient A discussing the practitioner's conduct on 17 July 2015 and 18 August 2015, the practitioner stated words to the effect of: (a) "I will really just appreciate if it stayed between you and I." (b) "Yeah… I could lose my career if this happen, if you…go further with this." (c) "Can that stay between you and I?" COMPLAINT FOUR is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of physiotherapy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of physiotherapy. BACKGROUND TO COMPLAINT FOUR As for Complaint One. PARTICULARS OF COMPLAINT FOUR 1. On or about early September 2015, the practitioner attended Patient B's residential address to treat Patient B. During this treatment session the practitioner: (a) (b) Put his hands very close to Patient B's vagina while he massaged her hamstrings; (c) Touched Patient B's vagina with "some force." (d) Sent Patient B a text message after her appointment which stated words to the effect of "I'm sorry I went too far." 2. By reason of the actions in particulars 1(b) to 1(d) above, individually or in combination, the practitioner engaged in inappropriate behaviour of a sexual nature towards Patient B. COMPLAINT FIVE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of physiotherapy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of physiotherapy. BACKGROUND TO COMPLAINT FIVE As for Complaint One. Between April 2013 and February 2015, Patient C received treatment as a patient of the practitioner for muscle pain. PARTICULARS OF COMPLAINT FIVE 1. During treatment sessions in around early 2015, including during treatment sessions on 3 February 2015, 20 February 2015 and 25 February 2015, the practitioner positioned his genitals against Patient C's arms during treatment sessions. 2. Following the treatment session on 20 February 2015, the practitioner sent inappropriate text messages to Patient C, which included: (a) Photographs of the practitioner's penis; and (b) A message that stated words to the effect that the practitioner would "like to get a head job in his consultation room." 3. During the treatment session on 25 February 2015: (a) The practitioner took his shoes and pants off and said words to the effect of, "Is this the start of my interview." (b) The practitioner tried to place his hand up Patient C's skirt. (c) Following the conduct in particulars 1, 3(a) and 3(b), Patient C performed oral sex on the practitioner. 4. By reason of the actions in particulars 1, 2(a), 2(b) and 3(a) to 3(c) above, individually or in combination, the practitioner engaged in inappropriate behaviour of a sexual nature towards Patient C. COMPLAINT SIX is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT SIX As for Complaint One. PARTICULARS OF COMPLAINT SIX 1. The following particulars are relied upon individually: (a) Complaint Three, particulars 1 (a), (b), (c) and (d); (b) Complaint Three, particulars 2 (a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l) and (m); (c) Complaint Three, particular 3; (d) Complaint Three, particulars 4 (a), (b) and (c); (e) Complaint Three, particular 5 (a), (b) and (c); (f) Complaint Four, particulars 1 (b) and (c); (g) Complaint Four, particular 2; (h) Complaint Five, particular 1; (i) Complaint Five, particulars 2 (a) and (b); (j) Complaint Five, particulars 3 (a), (b) and (c); (k) Complaint Five, particular 4. 2. Complaints Two, Three, Four and Five inclusive and the particulars thereof are relied upon cumulatively or in any combination. 1. By email communication to the Tribunal received on 12 July 2019, the respondent admitted all of the complaints set out against him and said; "I do not wish to practice in any area of healthcare at any point in the future." We understand the respondent to have intended to have admitted not only that he was guilty of the complaints made, but he was also admitting the particulars of those complaints. Indeed, when the proceedings came on for hearing the respondent conceded the accuracy of all of the complaints and the particulars thereof. He informed us that he had surrendered his registration as a physiotherapist, he did not intend to practice as a physiotherapist ever again and he accepted that an appropriate protective order was that if he were still registered, his registration should be cancelled. 2. At the commencement of the hearing we made a non-publication order prohibiting the publication of the name of any person who was a patient of the respondent or of any information which might tend to identify such person. The evidentiary material 1. In that the respondent had conceded in writing, and again when personally appearing before us, that he was guilty of the complaints made against him and the particulars of those complaints it was strictly not necessary for us to examine the evidentiary material. However, as will be seen, it is necessary for us to make a finding whether the respondent was guilty of unsatisfactory professional conduct or professional misconduct as alleged by the applicant and it is further necessary that we determine what protective orders should be made consequent upon any such finding. These matters could only properly be attended to if we were given access to the underlying evidentiary material. 2. The applicant produced into evidence a bundle of documentation which included written statements made by each of the patients, police statements, the transcript of police proceedings before the Local Court and Certificates of Convictions. We have also been provided with an expert report of Tracey Powell physiotherapist which provided an opinion on the conduct of the respondent as alleged in the complaints. The respondent consented to this material becoming evidence in the proceedings. Findings on proof of the complaints 1. Based upon the evidentiary material relied upon by the applicant and taking into account the admissions made by the respondent we are comfortably satisfied to the Briginshaw standard that each of the complaints and the particulars thereof contained within the Amended Complaint have been proven. Professional misconduct 1. The applicant asserted that the respondent was guilty of both unsatisfactory professional conduct and professional misconduct. The latter is more serious, and as we propose to find that the respondent is guilty of professional misconduct, it is only necessary that we consider this matter. We add for completeness that the respondent conceded that he was guilty of professional misconduct. 2. Professional misconduct is defined in section 139E of the National Law in terms which first refer to the definition of unsatisfactory professional conduct, in turn defined in section 139B. We set out both definitions hereunder; 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (remainder omitted because not relevant to these proceedings) 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. Section 139B(1)(b) directs attention to conduct which is significantly below the standard reasonably expected of a health practitioner of an equivalent level of training or experience. The respondent was initially registered on 21 January 2013 and had been practising for a period in excess of 2 years when the conduct the subject of these complaints commenced. We would add however, for completeness, that his behaviour was such that it would always be characterised as significantly below the standard reasonably expected of a physiotherapist, no matter how brief had been his or her experience. 2. In Health Care Complaints Commission v Cheng [2017] NSWCATOD 51 this Tribunal had occasion to characterise conduct of a sexual nature directed to the patient of a medical practitioner. The observations made by the Tribunal in those proceedings are equally applicable to the conduct of a physiotherapist. At [173] the Tribunal said; It is entirely uncontroversial that a medical practitioner must not physically, emotionally, or sexually exploit a patient. All of these patients were female…. A medical practitioner, such as the respondent, who has, as we have found, deliberately and intentionally carried out inappropriate examinations in an inappropriate manner for sexual gratification is clearly guilty of professional misconduct. We repeat, there can be no motivation for the manner in which the respondent exposed and viewed the bodies of these patients, including sensitive areas, and touched them in circumstances where there was no adequate or appropriate clinical reason for doing so, other than sexual gratification. We find that in the aggregate the conduct of the respondent constitutes professional misconduct. 1. In Health Care Complaints Commission v Cheng (No 2) [2017] NSWCATOD 93 the Tribunal said (at [22); We have already concluded that the misconduct of which we have found the respondent guilty carries with it sexual connotations of a most serious kind. The background against which the conduct of the respondent is to be considered is succinctly and appropriately summarised by the following extract from the judgement of the New South Wales Court of Appeal (HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638): Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest." 1. We repeat that the extracts from Cheng (No 2) set out above apply equally to health practitioners practising as physiotherapists. The conduct in which the respondent in these proceedings engaged was sexual predatory conduct, initiated for his own satisfaction. We observe also that the conduct occurred with respect to three separate patients, over a period of time. It was not an isolated incident. 2. In her expert report Ms Powell expressed the opinion that the conduct of the respondent was substantially below the standard which the public may reasonably expect of a physiotherapist. 3. The relationship of health practitioner and patient is intrinsically an unbalanced one, in that a patient will almost invariably be reliant upon the professionalism and integrity of the health practitioner. Furthermore, a health practitioner who initiates unsolicited predatory conduct of the kind which forms the basis of these proceedings cannot undertake his or her professional duties in an objective manner. The judgement of a health practitioner will almost always be clouded by any underlying sexual urges. Such a health practitioner is less likely to bring an objective considered approach to the formulation and administration of treatment. It is for these reasons that health practitioners in general terms are forbidden to engage in sexual relationships with patients for such period as the person remains a patient. (In the case of some health practitioners where the effects of treatment will remain, such as psychologists and psychiatrists, the prohibition on forming a sexual and, indeed, social relationship will persist for some time after the relationship comes to an end). Based on the extracts from the authorities referred to above, the expert opinion of Ms Powell, and what we regard as something so basic as to constitute common knowledge, there can be no doubt that the conduct of the respondent the subject of these proceedings constitutes unsatisfactory professional conduct. 4. In order to come within the definition of professional misconduct the conduct of the respondent must firstly satisfy the definition of unsatisfactory professional and must be conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. This leads to a consideration of whether or not the respondent's conduct would justify suspension or cancellation of his registration. 5. The test has been summarised by reference to relevant authorities in Cheng (No 2) previously cited; 21 It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been most recently, succinctly, referred to in the judgement of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour 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. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. We regard the conduct of the respondent which is the subject of these proceedings as being so serious that it justifies cancellation of registration. The conduct offends every sense of propriety, professionalism and integrity that the public is entitled to expect from a physiotherapist. Accordingly, it may be characterised as professional misconduct, and we so find. Protective orders 1. Having found the respondent guilty of professional misconduct, it now becomes necessary to determine what protective orders should be made as a consequence. Consistent with the authorities referred to above protective orders are intended to protect the public from the conduct of the particular health practitioner, to act as a deterrent to that health practitioner should he or she wish to practice again in the future, to provide a deterrent to other health practitioners from engaging in such conduct and to enhance the confidence of the public in the practice of the profession and thereby enhance the reputation of the profession in the eyes of the public. 2. The available protective orders are set out in section 149C of the National Law 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (omitted as not relevant) (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (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. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order— (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (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. By reason of the conduct of the respondent with respect to each of the patients earlier set out, and by reference also to his conviction for the offences particularised in Complaint 1 and to his failure to notify those convictions particularised in Complaint 2, we are empowered to cancel the registration of the respondent by reference to the provisions of section 149C(1)(b),(c) and (d). 2. We conclude that by reason of his conduct which we have found proven he is unfit to practise physiotherapy. It is a well-established principle that if a person is likely to remain unfit to so practice for a significant indefinite period, then it is in the interests of the protection of the public that his or her registration be cancelled. 3. There is limited information available to us to explain why it is that the respondent engaged in the conduct which he did. In a forensic report dated 14 December 2016, which we infer was prepared for the purpose of the respondent's criminal proceedings, Associate Professor Stephen Woods consultant psychologist elicited information from the respondent as to why he had engaged in the sexual interaction with two of the patients. In general terms, the respondent denied that he had predetermined that he would embark on any particular course of action and said that the sexual interaction "just happened." The respondent told Professor Woods that he regretted his conduct and "felt sick" at having engaged in it. Professor Woods thought that the respondent was at a low risk of reoffending on the basis that he undertook therapy. Whether and to what extent the respondent has done so is unknown to us. For completeness we note that Professor Woods was dealing only with the circumstances pertaining to patients A and B, but not patient C. However, the conduct with respect to patient C predated that pertaining to the other patients. 4. In Cheng (No 2) the Tribunal discussed the various circumstances which might give rise to sexual boundary violations by a health practitioner; 33 Sexual boundary violations represent an abuse of the patient's trust and the practitioner's position of authority. They may be impulsive and opportunistic, planned and predatory or a combination of the two. 34 In very general terms, sexual boundary violations may sometimes be attributed to impaired judgment as a consequence of illness or intoxication, or occur in combination with personality characteristics in a practitioner that increase the risk of recurrent offending. Intoxication, episodic illness (eg a manic phase of a bipolar illness) or increased psychological vulnerability in the practitioner, (for example following bereavement) may in part account for, but not excuse, incidents of impulsive or disinhibited behaviour that contribute to sexual boundary violations. In such a case the underlying illness (substance abuse, mood or adjustment disorder) may be amenable to treatment, thus reducing the risk of reoffending. 35 Also, in very general terms, the contribution of an individual practitioner's personality characteristics and traits may be a significant factor. Personality disorders or difficulties are understood to include longstanding pervasive patterns of impairment in a number of situations and across the related domains of 'self' which includes identity, self-direction and emotional regulation; and the 'interpersonal' domain which includes the capacity for empathy and intimacy. Recurrent sexual boundary violations in a professional context may indicate longstanding impairments in both self and interpersonal functioning. This can include antisocial disregard for lawful and ethical frameworks, reduced capacity for intimacy in that exploitation is the primary means of relating to others and a callous disregard and lack of empathy for the consequences of the predatory behaviour. Narcissistic personality traits include a vulnerable and/or over inflated self-esteem with an associated sense of entitlement and lack of empathy for the patient/victim. 36 Very occasionally a lack of education or understanding of what constitutes appropriate behaviour in the doctor-patient interactions might be a contributing factor. 37 Of course, we have no basis for considering whether any of the above matters apply to this respondent. We have mentioned them because they assist in understanding that an identification of any reason for behaviour of this kind enables consideration to be given to appropriate treatment and other measures designed to effect rehabilitation. If no such understanding is possible then the formulation of any prognosis becomes impossible. 1. In assessing and understanding the behaviour of the respondent we are in a similar position to that which confronted the Tribunal in [37] in Cheng (No2) set out above. 2. The conduct of the respondent which we have found proven is such that it is appropriate to make a protective order cancelling his registration as a physiotherapist. We do not regard it as being necessary to elaborate on this conclusion and the reasons therefor. The recitation of the factual matters as proven is sufficient to justify this conclusion. Given the lack of any relevant information concerning specific steps taken by the respondent we are not able to come to any conclusion other than that he remains unfit to practise as a physiotherapist on an indefinite basis. 3. By reason of section 149C(4) we are entitled to conclude, as we do, that if the respondent were still registered we would have cancelled his registration. By reason of section 149 (4) (b) we are empowered to decide that the respondent is disqualified from being registered as a physiotherapist for a specified period. Given the lack of information concerning any appropriate period during which the respondent can establish that he might again become fit to practise as a physiotherapist, we agree with the submissions of the applicant that an appropriate disqualification period is 7 years. 4. The applicant also submitted that we should make an order under section 149C(5) of the National Law prohibiting the respondent from providing health services. The respondent did not oppose the making of such an order. Having regard to the nature of the respondent's conduct which has given rise to these proceedings, it is appropriate that such an order be made, and we shall do so. Costs 1. This is a costs jurisdiction and the applicant sought an order for the payment of costs in its favour. During the course of the hearing the parties reached agreement on the amount of those costs, being $8975.56 and the respondent indicated that he would consent to such an order, albeit he wished to negotiate with the applicant for time to pay. Orders 1. Having regard to the findings which we have made we conclude that it is appropriate to make the following orders in the disposal of these proceedings; 1. Pursuant to a finding of professional misconduct, under s 149C(4)(a) of the National Law, the Tribunal would have cancelled the practitioner's registration as a physiotherapist if he had still been registered. 2. The National Board is required to record the fact that the Tribunal would have cancelled the practitioner's registration had he still been registered pursuant to s149C(4)(c) of the National Law. 3. The practitioner may not apply for a review of these orders for a period of 7 years from the date of these orders pursuant to s149C(4)(b) of the National Law. 4. Pursuant to s 149C(5A) of the National Law, the practitioner is prohibited from providing any health services as defined by s 4 of the Health Care Complaints Act 1993 (NSW), whether on a paid or voluntary basis, until such time as this Tribunal orders that he may re-register as a physiotherapist. 5. Pursuant to s 163(1)(c) of the National Law, the Tribunal is the appropriate review body. 6. The costs of the Complainant be paid by the Respondent in the fixed sum of $8,975.56. ********** 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: 04 September 2019