Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hanna v Medical Council of NSW [2019] NSWCATOD 139 Hearing dates: 21 – 22 August 2019 Date of orders: 09 September 2019 Decision date: 09 September 2019 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Dr L Cotterell, Professional Member Dr J Aitken, Professional Member Dr C Berglund, General Member Decision: (1) The application for registration as a medical practitioner be dismissed. (2) The applicant is to pay the costs of the respondent of this application. Catchwords: PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings – registration of medical practitioner cancelled – medical practitioner making application for re-registration Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Health Practitioner Regulation National Law (NSW) Mental Health Act 2007 (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Asar v Medical Council of NSW [2019] NSWCATOD 132 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 Bannister v Walton (30 April 1992, CA, unreported) Dr William McBride and the Medical Practice Act, number 40022 of 1995 (decision 1 May 1996) Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Hanna v Medical Council of NSW [2016] NSWCATOD 108 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 Health Care Complaints Commission v Echano [2018] NSWCATOD 30 Health Care Complaints Commission v Hanna [2018] NSWCATOD 113 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Khan (No. 2) [2019] NSWCATOD 37 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 In Re Jason Martin [2010] NSWMT 13 Latoudis v Casey (1990) 170 CLR 534 NSW Bar Association v Meakes [2006] NSWCA 340 NSW Medical Board v Dinakar [2009] NSWMT 8 Ohn v Walton (1995) 36 NSWLR 77 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Roberts v Medical Council of New South Wales [2015] NSWCATOD 35 Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 Category: Principal judgment Parties: Nadi Hanna (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: A Rose (Respondent) Solicitors: Applicant (Self Represented) Medical Council of NSW (Respondent) File Number(s): 2019/00140518 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the name of Person A is prohibited. REASONS FOR DECISION 1. On 13 April 2018 the New South Wales Civil and Administrative Tribunal ("the first Tribunal") cancelled the registration of the applicant (Hanna) as a medical practitioner resulting from a finding of professional misconduct. The Tribunal imposed a non-review period of one year commencing from the date of cancellation: see Health Care Complaints Commission v Hanna [2018] NSWCATOD 113. 2. The applicant now makes application pursuant to s 163A of the Health Practitioner Regulation National Law ("the National Law") for review following the expiration of the prescribed period. The applicant also seeks orders for reinstatement pursuant to s 163B of the National Law as a medical practitioner. 3. The cancellation of registration resulted from the fact that the applicant had been convicted of an aggravated indecent assault upon a 17-year old staff member (Person A). On 29 March 2016, a Magistrate at the Penrith Local Court convicted the applicant of aggravated indecent assault and sentenced him to 250 hours of community service. An Apprehended Violence Order was also made against the applicant to protect the victim. The applicant appealed the conviction and sentence to the District Court of New South Wales. The appeal was dismissed on 7 July 2016. 4. The applicant failed to notify the Medical Board of Australia ("National Board") that he had been charged with, and later convicted of, a criminal offence, contrary to s 130 of the National Law. On 25 July 2016, the respondent instituted proceedings, as are referred to hereunder, under s 150 of the National Law. During the hearing it was found by the first Tribunal that, on the balance of probabilities, the applicant had falsely stated that he had notified the Australian Health Practitioner Regulation Agency on or about 7 July 2016 of his conviction. Facts Personal details 1. The applicant is 54 years of age and emigrated with his parents from Egypt to Australia. He attended secondary school and finished high school at the age of 16 (or 17, the evidence is unclear) in 1982. There was no remarkable history concerning his education either during his school years or at university. The applicant was trained in Australia and graduated with the degrees of MBBS from the University of New South Wales in 1988. He was first registered in NSW as a medical practitioner on 29 December 1987 and had general and specialist registration on the National Register. Following completion of his internship, the applicant spent a year as a Surgical Registrar at Baulkham Hills Private Hospital. Thereafter he worked in a general practice at St Mary's in western Sydney for a year then set up his own general practice at Emu Plains in 1991. At such practice the applicant employed four other doctors and support staff of 10. 2. The applicant sold such business in 1997 to meet the financial demands of a property settlement arising from a divorce from his first wife. He then spent two years working for a skin cancer practice in Macquarie Street, Sydney and another two years at a skin cancer practice in George Street, Sydney. 3. In 2002 the applicant established his own skin cancer clinic in Miranda. The practice operated successfully and it was sold to Primary Health Care. However, due to financial issues and complaints by the applicant concerning poor working practices, he was dismissed by Primary Health Care. Litigation ensued and the applicant thereafter worked as a contract medical practitioner with Penrith Skin Clinic. The applicant's second marriage failed and the applicant was declared bankrupt in 2012. 4. During the period of his bankruptcy, the applicant set up another clinic with others who he had managed in Penrith. Misfortune followed when, according to the applicant's evidence, the applicant's accountant embezzled large sums of money which should have been remitted to the Australian Taxation Office. He was released from bankruptcy in 2016, after a relative assisted the applicant financially. Qualifications for Medical Practice 1. The applicant practised medicine without conditions until 2008. On 13 June 2008 the applicant was the subject of a Performance Assessment which found that his performance "was unsatisfactory in relation to medical records". However, it appears that complaints had been made against the applicant in or about 2004 as a result of which, the applicant was required to submit to an interview with the Medical Council of NSW. 2. On 7 June 2011 a Professional Standards Committee Inquiry constituted pursuant to Part 8 of the National Law was constituted to consider the conduct of the applicant. Such committee found that the applicant's conduct amounted to unsatisfactory professional conduct within the meaning of s 139B(1)(a) and s 139B(1)(b) of the National Law. The Committee, pursuant to s 146B(1)(a) of the National Law, determined to reprimand the applicant. 3. A further Performance Assessment in relation to the applicant was conducted on 18 February 2014. The Delegates considered that the professional performance of the applicant was satisfactory in that it reached the standard reasonably expected of a practitioner of an equivalent level of training or experience. 4. On 25 July 2016 a hearing was convened under s 150 of the National Law relating to the applicant's conduct which was ultimately to lead to the cancellation of his registration. As a result of the decision which was made on 26 July 2016, the registration of the applicant was suspended on that day with effect from 5pm. 5. The applicant sought a stay of the order of suspension of his registration. The application was heard on 3 August 2016 and by the decision dated 15 August 2016 the application for the stay was refused: see Hanna v Medical Council of NSW [2016] NSWCATOD 108. 6. Following a complaint to the Health Care Complaints Commission, proceedings were instituted in the Civil and Administrative Tribunal ("the Tribunal") against the applicant. These proceedings were heard on the 9th, 10th, 11th, 12th and 13th of April 2018. On 13 April 2018 the Tribunal published this decision. The Tribunal found that the practitioner was guilty of professional misconduct and the registration of the applicant as a medical practitioner was cancelled. The applicant was ordered not to apply for a review of the cancellation until after 13 April 2019: see Health Care Complaints Commission v Hanna [2018] NSWCATOD 113. Additional facts 1. In July 2016, as a result of his conviction, the applicant was placed on the Child Protection Register as a registrable person pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW). His status as a registrable person will expire on 29 March 2024. As a condition of his registration, the applicant was required to, among other things, inform the police of changes to his personal information including if he commenced volunteering, the nature of that work and the name and address of the employer. He was also required to inform police of email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, by him, through the internet or other electronic communication service. 2. On 16 November 2017, pursuant to s 16C of the Child Protection (Offenders Registration) Act 2000 (NSW), police entered the applicant's premises and seized his phone to verify his personal information. The police discovered that since his conviction, the applicant had accessed Snapchat and WhatsApp (sites frequented by children) in breach of his conditions as a registrable person (hereafter referred to as the "WhatsApp and Snapchat breach"). He was charged with failing to comply with his reporting obligations the same day. The applicant claims that the WhatsApp and Snapchat breach of conditions resulted from his misunderstanding that he was not permitted to download such apps and that he did not use them. Nevertheless, he had deliberately adopted a username ("Mr Fun") which could be used to communicate with other people, especially children. 3. The applicant pleaded guilty to the charges and on 1 March 2018, he was sentenced in the Newtown Local Court and received a 12-month good behaviour bond. 4. On 13 April 2018, following the 5-day disciplinary hearing which resulted in cancellation of his registration, the Tribunal made several adverse findings in respect of the applicant. 5. With respect to the applicant's character, the Tribunal noted the following: 1. the Professional Standards Committee that enquired into complaints about the applicant's surgical competencies in 2011, found that he had provided false evidence on various issues; and 2. the Magistrate that heard the proceedings regarding the applicant's offences against Person A, noted that his evidence "shifted frequently to his advantage in his description of the complainant" and that he had "lied as to the circumstances of the offence". 1. The Tribunal then made a series of findings about the applicant's credit from his evidence at the disciplinary hearing, including that: 1. "cross-examination of the practitioner at this hearing reflected very poorly on his credit" and that he was "repeatedly evasive when cross-examined"; 2. he avoided answering questions; 3. he lied to the Court about what happened between him and Person A; 4. he was "a very unreliable witness, who often lied when he perceived it would serve his interests"; 5. it was not possible to rely on any uncorroborated evidence he put forward because of "his other conduct and his very poor credit"; 6. with respect to Complaint 2, his failure to self-notify to the National Board after his conviction "reflect[ed] adversely on the reliability of the practitioner generally and also in terms of credit"; 7. with respect to Complaint 3, "lying to the delegates of the Medical Council at the section 150 hearing is clearly improper and unethical conduct of the practice or purported practice of medicine" and demonstrated "a serious lack of integrity"; and 8. with respect to Complaint 6, the applicant "is not of good character". 1. Accordingly, the Tribunal concluded at [315] that: "…the complaints proved are so serious, the ongoing problems the practitioner has with depression which he has failed to seriously address by psychotherapy, and the prediction that it would take a year of psychotherapy before any appreciable improvement would occur, indicate that the practitioner is a serious risk to the public and to the reputation of the profession." 1. The Tribunal also took into account the applicant's "lack of enthusiasm to address his depression by psychotherapy" when deciding to bar him from making an application for a review of the cancellation for 12 months. Events subsequent to the findings of the first Tribunal 1. On 23 August 2018, the applicant advised Inner West Detectives that he wished to conduct observations of consultations at Newtown Medical Practice, stating that the owner, Dr Sarah (otherwise referred to as "Sara") Guirgis, was a personal friend of his, and that he also wished to volunteer at the Newtown Mission (which is an organisation supporting homeless people). 2. On 3 September 2018, the applicant advised police that his observership would be for one hour per week on a Wednesday with Dr Sara Guirgis. 3. On 7 September 2018, PCSC Caroline Portbury from Inner West Detectives confirmed that the applicant would not require a Working with Children Check for either of these activities. 4. On 11 January 2019, the applicant advised police that he started volunteering at the Newtown Mission on 11 September 2018 and started his observership at Newtown Medical Practice on 12 September 2018. 5. On 15 January 2019, PCSC Daniel Watson from Inner West Detectives spoke with Dr Sara Guirgis who said she did not know the applicant prior to his observership. He also understood that Dr Guirgis was unaware of the applicant's criminal conviction and that he was a registrable person. 6. On 16 January 2019, PCSC Watson filed an application to the Newtown Local Court seeking a child protection prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004 to prevent the applicant from seeking or undertaking paid or voluntary work that brings him into contact with any person under the age of 18 years and from partaking in any position, paid or voluntary, which provides medical advice to any person. 7. In early February 2019, Ms Dawson (the applicant's psychologist) was sufficiently concerned for the applicant's welfare that she arranged with the police to have the applicant scheduled. He was admitted to hospital for approximately two nights. 8. On 16 April 2019, the applicant applied to the National Board for general registration as a medical practitioner. In his application, the applicant confirmed that he has an impairment that detrimentally affects, or is likely to detrimentally affect, his capacity to practise the profession, stating that he has been receiving "treatment for depression from 7/2016 and current" from Dr Philips. The applicant also confirmed that he has obtained 163 CPD points and that he participated in a "3 months medical observership at Newtown Medical Practice" which "will continue as necessary for professional development for re-entry to practice". 9. On 15 May 2019, PCSC Watson signed a statement in support of his application to the Local Court stating that he is concerned that, since the applicant is no longer a registered medical practitioner, he is not bound by the National Law, therefore there is a need to manage him under the child protection legislation instead, to protect young persons seeking medical advice at any place he has an observership or where he volunteers. It appears that there has been no further progress in this matter since this date. 10. On 1 August 2019, the applicant was charged with a further failure to comply with his reporting obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 by failing to make his annual report to police in July 2019. This matter is listed for mention in the Local Court on 12 September 2019. 11. On 5 August 2019, the police informed the applicant of this charge and he became so distressed that the police had to schedule him under s 22 of the Mental Health Act 2007. According to the police report, two officers had attended at his residence to serve a Court Attendance Notice relating to the applicant's alleged failure to comply with the conditions imposed upon him, namely that he report annually to the police. A report should have been made in July. The applicant became upset and stated that he would commit suicide. The police then became concerned for his well-being and escorted him to hospital. He was allowed to leave shortly after arrival. Applicant's evidence 1. In support of the application, the applicant has tendered numerous expert reports, which are referred to hereunder. Dr Ashraf Philips 1. Dr Philips, a consultant psychiatrist, has provided a report dated 30 June 2019. In this report, although Dr Philips does not specifically state the nature of the mental illness suffered by the applicant, Dr Philips has made a psychiatric assessment of the current condition of the applicant, having had consultations on several occasions with the applicant. 2. Dr Philips assessed the current insight of the applicant and stated: "Insight: Dr Hanna has developed insight. He recognises the seriousness of the incident and having comparing his daughter of a similar age to the victim. He is remorseful of his action and realized that he tricked himself as if he was helping her but he now realized he became part of her problem. He is ready to accept the consequences. He feels sorry to the suffering of his family and he blames no one other than himself. He is sorry for the victim that he had to go to court, and he was fighting it under the irrational belief and behaviour because of his depression. He recognized that he was blind into his mental state at that time and in retrospect he should not have been working at that time. Although he recognizes that was not an excuse, but the confounding factors were isolation, relationship issues, bankruptcy and over work. Those factors were influencing and degrading his professionalism." 1. Dr Philips noted that the applicant has undertaken several steps to change his former unacceptable conduct, which has included medical treatment, self-reflection, charity work, three months of medical observation and the fact that he has done numerous courses relating to his profession, namely professionalism, ethics, boundaries and CPD. Dr Philips noted that the applicant intends to follow up with a psychiatrist in the future, to continue medication, to consult monthly with his psychologist, Ms Sharon Dawson, and to work under strict conditions if permitted to do so. 2. Dr Philips arrived at the following conclusion: "Conclusion During the treatment and rehabilitation period, Dr Hanna has shown a commitment to change and he has followed all recommendations of the psychiatrist and psychologist. He has developed insight into the serious of the charges. It is my opinion that in his current mental state, Dr Hanna is fit and proper person to hold registration as a medical doctor. He will practice in accordance with appropriate ethical and professional standards. His current mental state doesn't preclude him from return to work for 3 hours per week. The incident happened spontaneously, unplanned in the middle of the day while there were plenty of staff and other doctors around. It was an aberrant, one off out of character incident. Although the risk cannot be guaranteed 100 per cent, in my opinion, it is unlikely for Dr Hanna to reoffend and the supervision and strict conditions would mitigate any concerns." 1. Dr Philips recommended that to minimise future risk, the following conditions be imposed: "1. Dr Hanna has to work under supervises (sic) in a group practice. 2. Limit the practice hours to 3 hours/week gradually increasing over the following 6 month to a max of 10 hr/week in discussion with his treating team. 3. He cannot see any patient under 18 years of age 4. Dr Hanna has to discuss with his supervisors regularly to present cases in a regular meeting. His supervisor will report to medical board." 1. Dr Philips provided oral evidence by telephone to the Tribunal. Dr Philips confirmed that the applicant has developed insight and recognises the seriousness of his offending. Dr Philips also stated that the applicant is remorseful for his actions and accepts that his conduct towards the victim was improper. When it was put to Dr Philips that the applicant had pleaded not guilty to the criminal offence, Dr Philips stated that the applicant now accepted his guilt and had shown remorse. 2. Dr Philips stated that if the applicant were able to return to practise medicine, it would be therapeutic for him and would be part of his rehabilitation process. When asked about the circumstances leading to the applicant being taken to a hospital on 5 August 2019 by the police pursuant to s 22 of the Mental Health Act 2007, Dr Philips considered that circumstances caused the applicant to become distressed, leading to the police action. Dr Philips stated that the police did not possess the same expertise as a medical practitioner to assess the mental state of the applicant and he noted that, according to his understanding, the applicant was allowed to leave hospital soon after his arrival. 3. Dr Philips confirmed that he had been consulted by the applicant on four occasions from July 2016 following the applicant's conviction for indecent assault and up to the date of the first Tribunal hearing. Dr Philips has seen the applicant on approximately nine occasions thereafter. Dr Philips was asked whether his diagnosis that the applicant was mentally "stable" was consistent with the fact of the incident on 5 August 2019, namely two weeks after the last consultation, when the applicant threatened suicide. Dr Philips did not regard the alleged suicide incident as being significant despite having received no information from the hospital team that had assessed the applicant. Dr Philips said he would continue to see the applicant every month and more if required. Ms Sharon Dawson 1. Ms Dawson is a clinical psychologist. She initially assessed the applicant on 19 June 2018 and has provided 13 sessions of therapy since that date until 12 June 2019. Several psychometric tests have also been administered. Ms Dawson is aware of the events leading to the applicant's cancellation of registration. In her report dated 12 June 2019, she states that the applicant: "… appears to have had limited understanding of psychological matters and has demonstrated little insight into his mental health in the last decade. He has previously demonstrated some insight after his first marriage ended, so his more recent lack of insight would be to some extent attributable to his more severely impacted mental state. Unfortunately Dr Hanna has not appeared to have any useful coping strategies and has instead followed the path he has trod probably all of his life, which is to work hard, first as a schoolboy and medical student and then as a practising doctor. This default strategy was dysfunctional in the circumstances and has made his situation and mental health worse over time." This Tribunal notes that when the police attended the applicant's residence in early August 2019 to serve a Court Attendance Notice arising out of an alleged breach of a reporting condition, the applicant stated that he was intending to kill himself. 1. Ms Dawson stated in her report: "Dr Hanna is currently suffering from 296.23 Major Depressive Disorder, (Severe) with anxious distress per DSM V criteria (diagnostic criteria are included in Appendix1). At the time of the offence it appears that he was suffering from Major Depressive Disorder, and the effects of this illness include a reduction in cognitive ability such that judgement and decision-making are impaired. It is likely that this was a key causal factor for his behaviour in respect of his criminal offence, and the other subsequent lapses of judgement in respect of failure to disclose his telephone application usage, and failure to inform the Medical Board of the criminal charges when they were laid. I am of the view that this condition also underlies Dr Hanna's failure to recognise his own impairment and to report this to the Medical Board." 1. Having considered the circumstances of the applicant's conduct, Ms Dawson concluded: "In my opinion Dr Hanna is not yet sufficiently recovered to return to the practice of medicine. Dr Hanna was making good progress in his recovery from his depressive illness when he was volunteering at the Newtown Mission and observing medical practice at the Newtown Medical Centre. This delivered social contact, a sense of contribution to society, and importantly exposure therapy to medical environments that still make him anxious. He had begun to have some hope of returning to work, which is extremely important to his recovery. The impact on his mental health in February 2019 when the police took action that denied him these activities made him actively suicidal and was a significant setback. Since that time Dr Hanna has been extremely proactive in his recovery and I think allowing him to re-register (but remain classified as impaired) will be a very important step in his recovery from his depressive illness. Such a position would allow him to access training and feel that he is progressing towards his goal, in addition to the therapeutic benefits noted above. Beyond that, and when his symptoms have been further reduced, the Board may consider a return to practice. I would suggest an initial restriction in hours to perhaps two days per week of no more than 6 or 7 hours per day. This is to avoid him becoming overwhelmed, as he will need to vigilant about his mental health in the future, as having experienced a depressive episode increases the likelihood of further episodes. He would benefit from some form of supervision from a peer practitioner, and I think he would welcome the support that this would provide. I cannot foresee Dr Hanna resisting any restrictions the Medical Board would request." 1. Ms Dawson provided oral evidence to the Tribunal. This evidence was different in an important respect to her written conclusions. Whereas in her report Ms Dawson concluded that the applicant should not return to practice, she stated that in the intervening period between June 2019 and this hearing, she noticed that the applicant had improved in his mental state. Ms Dawson considered that the applicant could return to practice, subject to conditions being imposed such that the applicant did not take on an excess workload. 2. Ms Dawson stated that the applicant would need to be monitored and supervised in a group practice. She considered that he should be restricted to work initially for no more than 6 to 7 hours only on two days a week, and thereafter there could be a gradual increase of workload. She considered that there were no psychological reasons now to prevent the applicant returning, subject to the conditions, and that the risks were manageable. The risks both to the applicant, and to his patients, would be minimised provided such conditions were imposed. That is, the risks in her view were manageable, and she saw no psychological reason why he could not return to work subject to conditions. 3. In respect of the applicant's failure to comply with the reporting conditions, Ms Dawson considered that the circumstances, as explained by the applicant, indicated that he did not understand his obligations and that his failure to report in July 2019 as required was probably the result of an innocent mistake. 4. Ms Dawson stated that the fact that the police had effectively prevented him from providing any voluntary medical assistance or advice which he was undertaking in Newtown had a very destructive effect on his mental state; that if he were offered the chance to be re-engaged in the medical profession, it would provide the applicant with hope and would help lift him out of his depression from which he still suffers. 5. Ms Dawson was cross-examined concerning the episode on 5 August 2019. She knew little of the details, but when the circumstances of the applicant were made plain to her, she stated that she did not consider that the threat to commit suicide by the applicant arose from depression: rather it resulted from an emotional response caused by the unexpected attendance of the police at his residence for the purpose of issuing him with a Court Attendance Notice. Ms Dawson said such an episode would have been confronting to the applicant, and that his threat was not realistic. The fact that he was promptly discharged from hospital, without any treatment, confirms that the applicant was not in a suicidal state. She contrasted this with the admission in February 2019, when during a consultation with her, the applicant had threatened suicide and had told her what his plans were. He had vials of morphine available to him. She called the police on that occasion, and they called the ambulance, for the applicant to be taken to RPA Hospital. Education Program Report 1. An Education Program Report has been provided relating to a course undertaken by the applicant, extending from 1 November 2018 until 19 June 2019. The components of the course related, in summary, to a Professional Boundaries Module and an Ethics Module. The course included pre-course contact and organisation of a customised program, approval of the learning program, pre-workshop course components, a workshop conducted on 12 June 2019 and a post-workshop follow-up teleconference. Such course was conducted by Carramar Education Pty Ltd, and the stated purpose of the course was to address topics of education and professional boundaries. It was noted that the applicant also sought to: "enhance his knowledge of the relevant legislation, codes, guidelines and standards relevant to the medical profession". 1. The course was not related to the issue of the applicant's competence: rather, to determine the applicant's knowledge, insight and skill in relation to the core concepts of professional practice and the applicant's learning needs. 2. The report, under the heading of "assessment outcome" observes that the applicant willingly participated in scenarios throughout the face-to-face session; that the applicant was able to make appropriate decisions after being provided with some prompts by the facilitator; that the applicant appeared to gain more confidence as he progressed; that he was receptive to the feedback given and acknowledged the importance of boundaries "so as to maintain both the therapeutic relationship and professional relationships with colleagues and staff members". Certificates 1. The Tribunal has been provided with several certificates concerning courses which the applicant has undertaken which include a course on Professional Boundaries (conducted by CourseGenius); General Practice & Acute Medicine: Update Refresher issued by the Australian Medical Forum held between 23 and 24 November 2018; ALM Communication and Consent conducted by Avant on 27 August 2018; a two hour course conducted by Avant entitled "Medical manslaughter: could it happen here?" and other courses conducted by Avant entitled "Dr House Syndrome. The impact of disruptive doctors", "Understanding diagnostic errors" and "Ethics obligations knowledge and skills: Professionalism in Medicine". Testimonials 1. Dr Sarah Guirgis, a general practitioner and the principal of Newtown Medical Practice provided a letter dated 22 February 2019. Such letter refers to the fact that the applicant attended such practice as an observer in September 2018, attending one hour per week. During the period of his attendance (which was not defined), he observed consultations with four adult patients but due to police concerns, the attendances were terminated. Dr Guirgis considered that the applicant was very depressed and referred to the fact that he had tried to commit suicide. It appears that the letter may be written in relation to court proceedings because the author requests that the "court case" should not go ahead. It was noted that the applicant claimed to be repentant on several occasions. Dr Guirgis provided another letter dated 21 August 2019, namely on the second day of the hearing, wherein she confirmed that the applicant had disclosed, in September 2018, the fact of his criminal conviction. 2. Reverend Graham Tutt, Senior Minister at the Newtown Mission provided a reference dated 3 April 2019. He referred to the fact that the applicant attended the Mission in July 2018 "with a desire to connect with a community where he could express his faith and contribute to the lives of others as he worked through the issues of his life". 3. The author states that the applicant has attended Sunday evening service and that he is seeking "to turn his life around". The author believes that the experience has been helpful in giving the applicant a sense of hope for the future and a focus. 4. Two former patients of the applicant and three reception staff provided references in support of the applicant being allowed to return to practise. In addition, a medical practitioner who worked with the applicant for six years before his cancellation stated that the applicant had always been professional in his management with patients and staff. He had not observed any complaints from any patient. The practitioner states that the applicant was well liked, popular and had extensive patient following. He was confident that the applicant possessed the relevant abilities as a medical practitioner. The Tribunal notes that some of the references were prepared for the first Tribunal hearing and were prepared in 2016. 5. On 2 September 2019, following the conclusion of the hearing, the applicant forwarded to the Tribunal a letter of Dr Sukhvinder Virk of the Richmond Marketplace Medical Centre dated 28 August 2019. In such letter, Dr Virk states that he has been a general practitioner for over 20 years and is the Managing Director of the above medical centre. Dr Virk states that there are eight general practitioners engaged at the centre, together with four nurses, eight allied professionals and seven reception/administration staff. Dr Virk states that he is willing to employ, supervise, refresh and train the applicant in accordance with all Medical Board conditions and recommendations. He states that he is aware of the letter and report from Dr Samuels (psychiatrist) and the NSW Police Conviction Sheet. The Tribunal has considered the contents of such reference. Applicant's submissions 1. The applicant did not provide a statement to the Tribunal but had made a written submission and a closing written submission. He agreed that such submission should be treated as a statement and voluntarily submitted to cross-examination. Such cross-examination principally related to his failure to comply with the conditions that he report, each July, to the police as required by the Child Protection (Offenders Registration) Act 2000. 2. The applicant explained that, in prior years, the police had given him notification of the need to report in July. During 2019 he received no such notification. However, he said that there was an inspection of his home on 30 May 2019 under the Act and that these inspections have been carried out every second month. During 2017 whilst he resided in Sutherland, he stated the police were unconcerned about reporting. However, when he moved his residence to Newtown, he found that the police were more vigilant. 3. During July 2019 the applicant had been with the police in court in respect of an application being made that the applicant should not assist in or participate in any position, paid, voluntary or other which provided medical advice or treatment to any person under the age of 18 years. Such application is that which has been set down for hearing in September 2019. The applicant stated that he had assumed that because of the police inspection on 30 May and the fact that he had seen the police at court during July, there was no need for him to make any further report. The applicant stated that on 1 August, the charge that he had failed to comply with the condition was prepared and stated that he believed a particular police officer was victimising him. Evidence of the respondent before this Tribunal 1. Dr Anthony Samuels, consultant psychiatrist, has provided a report dated 31 July 2019. Dr Samuels saw the applicant on one occasion, namely on 31 July 2019. Dr Samuels considered that the applicant was suffering from an impairment within the meaning of the National Law, namely a mood and anxiety disorder which seemed to be in remission and for which he was receiving treatment. Having considered the history of the applicant, Dr Samuels stated: "I certainly think Dr Hanna is in the relatively early stages of recovering from depression and gaining insight into his psychological vulnerabilities. I do think that with some safeguards in place, consideration could be given to him returning to some form of medical practice, but this should be contingent on him remaining in therapy with both his psychologist and psychiatrist." 1. Dr Samuels acknowledged that the applicant has had some difficulties. In answer to the question whether there were any matters which might hinder or prevent the applicant in his ability to acknowledge the findings of the first Tribunal, Dr Samuels said: "Yes, there are some aspects to Dr Hanna's personality which would appear to prevent or hinder his capacity to reflect upon NCAT's findings. Certainly, major depression would have been a factor and an impediment to this and he now acknowledges that it took some time before he really was able to appreciate the significance of what had occurred and to take responsibility for that. It does seem that Dr Hanna has some underlying personality vulnerabilities which probably stem from his early development. I do note a family history of schizophrenia and he may well have some predisposition to major mental illness. He does seem to have some difficulty dealing with emotional issues, there were clearly difficulties in both his marriages; the second ending in quite extreme circumstances, and it does seem that his main coping strategy has been to immerse himself in work and to not pay attention to important things happening in his life including his own children and financial affairs. It is clear from the psychologist's report that Dr Hanna continues to struggle to deal with psychological and emotional issues but he is making slow and steady progress and seems committed to gaining greater insight. Addressing these types of issues in psychotherapy can be quite a lengthy process, and I would see Dr Hanna as still being in the quite early stages of recovery and I think it is likely that he will need to continue moderately intensive therapy for well into the future." 1. Nevertheless, Dr Samuels considered that the applicant now had developed insight. Dr Samuels said: "It is my view that Dr Hanna has gained insight into the offending behaviour that brought him to the attention of NCAT. He has no previous history of sexual offending and I would see his risks of committing a further sexual offence with a young person as being quite low. Dr Hanna does, however, have a problematic professional history, his life and lifestyle have been chaotic, he is still under a lot of pressure being monitored by the police and going through court cases, and although he is no longer a bankrupt, he still has significant financial problems, he has quite limited social supports and without appropriate supports in place, safeguards and oversight, the potential for other types of misconduct still exist." 1. Dr Samuels concluded that the applicant's mood state appeared to be stable and whilst there was always the possibility that there could be a change, it could be monitored by clinical methods to avoid any adverse ability to practise. Dr Samuels also considered that the experience has been a very salutary one for the applicant and further that the applicant "will go to great lengths to adhere to conditions that are imposed upon him and there is a high likelihood that he will be compliant". 2. Dr Samuels provided evidence by telephone. Dr Samuels confirmed his opinion that in his consideration, the applicant could be returned to practice subject to conditions. Dr Samuels considered that the applicant's failure to comply with the reporting conditions was evidence of poor judgement and suggested that they showed possible personality vulnerabilities. Principles 1. A person is competent to practise a health profession only if, among other things, they have sufficient mental capacity to practise the profession: s 139(a) of the National Law. 2. Accordingly, when a health practitioner is applying to the National Board for renewal of his or her registration, they must include an annual statement that includes a declaration that they do not have an impairment: s 109(1)(a)(i). 3. 'Impairment' is defined in s 5 as relevantly provided: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or … 1. The National Board can decide that an applicant is not a suitable person to hold a general registration if they have "an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk": s 55(1)(a). 2. In respect of protection of children pursuant to the Child Protection (Offenders Registration) Act 2000, a registrable person's reporting obligations continue for eight years, commencing from the date of conviction. Findings of the first Tribunal 1. The first Tribunal considered the complaints and the expert evidence leading to the decision to cancel the registration of the applicant. This Tribunal sets out the paragraphs which it considers are relevant to its determination which embody the findings of the first Tribunal as follows: "304 In relation to his financial affairs, it appears that he made a very serious mistake in entering an agreement to sell his practice to Primary Health and as part of that agreement to work for Primary Health in the practice and see specified numbers of patients, which he found he was unable to achieve. This resulted in litigation between him and Primary Health and he was dismissed from the practice. It appears that Primary Health succeeded in the litigation, which subsequently led to him being declared bankrupt in about 2012. As a result of the bankruptcy, he lost a Porsche car and a Mercedes car and other assets. It appears that the family home was lost. 305 Then in July 2015 the assault the subject of these proceedings occurred at a time when the practitioner had been a registered medical practitioner for about 28 years. He was charged but failed to notify the National Board. 306 On 25 July 2016 in a hearing under section 150 of the National Law, the delegates of the Medical Council suspended the practitioner's registration. The practitioner's application for a stay of that suspension was dismissed by the Tribunal on 15 August 2016. The practitioner's appeal to the Tribunal in respect of the suspension was unsuccessful and dismissed on 16 February 2017. 307 The practitioner has, since his suspension in the s150 proceedings by the Medical Council, been unemployed and experienced impecuniosity. 308 When the bankruptcy was to expire after four years, in February 2016 a creditor successfully applied to have it extended for another 4 years. The practitioner appealed against the bankruptcy extension but the appeal was dismissed. In about August 2016 the practitioner was suspended from his then medical practice. His second wife and their two children separated from him in about August 2016. The children have continued to live with their mother and have seen him for contact at times. 309 He was charged with the aggravated indecent assault in 2015. He failed to notify the National Board. He was convicted in the criminal proceedings on 29 March 2016, but failed to notify the National Board of the conviction. He appealed to the District Court against the conviction and on 7 July 2016 that appeal was dismissed. 310 After his conviction for the assault, an Apprehended Violence Order was made against him to protect the victim. The Police also then attended his home and confiscated his extensive gun collection and his firearm licence was cancelled. 311 On 16 November 2017 the practitioner's mobile telephone was confiscated by the Police and he was arrested and charged in respect of the offences under the Child Protection (Offenders Registration) Act 2000. He was subsequently convicted of the two offences. 312 The practitioner's evidence is that his accountant has defrauded him of significant funds. The Australian Taxation Office has pursued him as a director of his practice company for unpaid taxes of the company. 313 The practitioner has an ongoing dispute with the Australian Taxation Office in relation to outstanding tax and failure to lodge returns. 314 After he had been questioned by a panel member about all these adverse events it was put to the practitioner that since the first proceedings before the Professional Standards Committee, his life had been chaotic. He rejected that suggestion. His response was, "Not at all. Normal life is not rosy." 315 The Tribunal has concluded the complaints proved are so serious, the ongoing problems the practitioner has with depression which he has failed to seriously address by psychotherapy, and the prediction that it would take a year of psychotherapy before any appreciable improvement would occur, indicate that the practitioner is a serious risk to the public and to the reputation of the profession. Taking into account that his lack of enthusiasm to address his depression by psychotherapy, the Tribunal has decided under sub-section 149C (7) that an application for review of the cancellation order should not be made until after 13 April 2019, one year from the date of the order." Test to be applied by this Tribunal 1. This Tribunal respectfully adopts the observations in Asar v Medical Council of NSW [2019] NSWCATOD 132 where the Tribunal said: "40 It is not the function of this Tribunal to revisit the conduct which led to the cancellation of the applicant's registration. The Tribunal proceeds upon the basis that the 2016 Tribunal found that the applicant was not a fit and proper person to practise medicine. The issue before this Tribunal is whether it is satisfied, upon the evidence now before it, that the circumstances which led to the cancellation no longer prevail and that the health and public safety of the community are protected in accordance with the requirements of section 3A of the National Law. That is, the Tribunal is required to assess whether or not the deficiencies in the applicant's character have been remedied. As was stated in In Re Jason Martin [2010] NSWMT 13 at page 8: [I]t is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her) reliability for the future". 41 It has been well recognised that the proper handling and prescribing of drugs by medical practitioners is of the greatest importance to the community. Further, if a medical practitioner fails to observe the statutory requirements in a way which is "reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner": see Spicer v New South Wales Medical Board & Ors (unreported) NSW Court of Appeal, Thursday, 19 February 1981 at 5, 6 per Hope JA with whom Reynolds and Hutley JJA agreed. Such principles have been affirmed more recently by the Tribunal in Health Care Complaints Commission v Chen [2016] NSWCATOD 144 especially at [137]. 42 Where a medical practitioner has demonstrated that the issue which led to the cancellation of registration is now fully recognised, and is controlled, the imposition of a further period before reregistration could be granted would serve no purpose. The Tribunal respectfully agrees with the observations of Kirby P (as His Honour then was) in his dissenting judgement in Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 where his Honour said: "There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have an affirmative reproved reform, are afforded a second chance". 43 Although in dissent in respect of the principal issues, His Honour's remarks have been adopted and applied in other decisions in other medical Tribunals: see for example Smithson v Medical Council of New South Wales [2016] NSWCATOD 82 at [46]." 1. Further as Walsh JA noted in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461: "… Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man." 1. More recently, Mahoney JA said in Bannister v Walton (30 April 1992, CA, unreported) that: "The right to practise medicine affords to a practitioner privileges and opportunities that are not available to others. He is expected to maintain a relationship with patients who are affected by his character. The relationship is one which touches matters such as trust, confidence, confidentiality and right conduct. Clinical capacity is by no means the only consideration to which regard is to be had in determining whether a person is appropriate to practise medicine. It is necessary that the public be protected against those who though having the appropriate skills do not have the character for the opportunities and privileges which the right to practise gives." 1. In Health Care Complaints Commission v Brush [2015] NSWCATOD 120, the Tribunal made the following observations regarding fitness and propriety in the context of the National Law (at [72]- [73]): "… it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members 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 (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration"/"fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills." 1. As in all applications in which the Tribunal in NSW is involved under the National Law, the guiding principle and object in s 3A applies. That section provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. In In Re Jason Martin [2010] NSWMT 13 the Medical Tribunal explained 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. Consideration 1. This Tribunal must be confident that the applicant is a fit and proper person to practise: see Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [65] where Toohey and Gaudron JJ said that conduct "may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question". 2. In accordance with the established authorities, this Tribunal must consider the quality of the character of the applicant. It has been held that the term "good character" is not a "summation of acts alone, but relates rather to the quality of a person": it is to be judged by acts and motives, behaviour and the mental and emotional situations accompanying that behaviour: see Ex parte Tziniolis at 475-476 per Holmes JA. Further, it has been held that "conduct may show a defect of character incompatible with a membership of a self-respecting profession": see Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 (2 July 1957). 3. Ultimately, the Tribunal must have regard to the overriding consideration of the protection of the health and safety of the public: see s 3A of the National Law. Further, the Tribunal must be satisfied that the applicant has "sufficient physical capacity, mental capacity, knowledge and skill" to practise: see s 139(a) of the National Law. 4. The Tribunal has considered the psychiatric evidence and the psychological evidence tendered before it. The Tribunal considers that this evidence suggests that, with appropriate protective conditions, the applicant could return to practise on a limited basis at some time in the future. 5. However, there are other considerations which cause the Tribunal concern, which are quite separate from the issues concerning his mental state, and relate directly to his reliability as a witness of truth, as detailed hereunder. 6. The applicant declined the suggestion put to him that this hearing be adjourned until after the hearing of the charge which is currently outstanding against him of failure to comply with the conditions imposed upon him arising out of his criminal conviction. In the Tribunal's mind, this is a most troubling matter, because if the applicant's explanation is not accepted by the court determining whether a breach of the applicant's conditions arising out of his conviction has occurred, it could result in a bond or a penalty being imposed upon the applicant. This is not the first occasion when the applicant has been charged with an offence arising out of conditions imposed upon him under the child protection legislation and the applicant has already been convicted of a breach of one condition relating to his conduct in downloading "WhatsApp" and "Snapchat" to his mobile telephone. 7. The undecided court hearing leaves uncertainty in the Tribunal's mind. If the charge is established and a conviction follows, it signals to the Tribunal that conditions imposed by this Tribunal may be ignored or not complied with. 8. This Tribunal is concerned with certain aspects of the evidence provided during this hearing. Firstly, the applicant's psychologist volunteered in her evidence that in 2019 the applicant possessed vials of morphine. As he had been deregistered in 2016, the applicant had no legal right to have such drugs in his possession. When questioned about his possession of morphine, the applicant stated that he had packed up his surgery in 2016 and that the morphine, together with other drugs, remained in his doctor's bag which was stored in a locked shed at the rear of his wife's residential premises in Newtown. The applicant stated that the police found the morphine on one of their inspections and removed but then returned the vials to him. The applicant stated that he no longer had them in his possession. He then provided two differing versions relating to their disposal then stated that he remembered that he arranged for his daughter to take it to the Marie Bashir Centre in 2019. The Tribunal was not convinced that the response he ultimately provided was truthful. Further, the applicant did not appear to have any understanding of the protocols for keeping Schedule 8 drugs. The applicant's teenage children had access to the shed where the drugs were stored. The applicant seemed to be unconcerned at the gravity of keeping such drugs in his possession three years after he was suspended from practice. 9. Secondly, the applicant was found by the first Tribunal to have told Person A that he regularly consumed drugs, yet Dr Samuels was informed by the applicant that he did not take drugs. Whether the statement to the witness was in fact true is a separate question. However, the first Tribunal found that the applicant did inform the witness of such a fact. It must follow that either the applicant was not telling the truth to Person A, or alternatively, despite his averment denials, he was a drug user. Again, the applicant provided an explanation before this Tribunal that Person A had misconstrued his words and that he never stated the words which he was found to have used by the first Tribunal. 10. Thirdly, the applicant had informed the police that Dr Guirgis was a friend, and that he had arranged through her to observe the consultations with some of her patients at her Newtown practice. However, the police evidence reports that Dr Guirgis did not know the applicant before the applicant made contact with her for the purpose of arranging to observe consultations. The opportunity was given to the applicant to adduce evidence from Dr Guirgis by telephone during the hearing. The applicant stated that he did not wish to call such person as a witness. 11. Fourthly, the applicant has demonstrated hostility to the police. It is apparent from the police records tendered before this Tribunal that the applicant has resented the police enforcing the conditions imposed on him following the first proven breach. That attitude has prevailed thereafter. The applicant maintains that the police are targeting him. The police have informed him they are merely fulfilling their duties. 12. The Tribunal is also concerned by the fact that Ms Dawson had arranged for the applicant to be scheduled in February 2019 and by the fact that in August 2019, the applicant reacted to the police visit to his home and threatened to kill himself. The applicant has demonstrated his fragile mental state when under stress. The Tribunal considers the last two events to suggest that the applicant is not yet of a fit state to be permitted to practise medicine. 13. The Tribunal notes the observations of Dr Samuels concerning the applicant's threat to commit suicide. Dr Samuels stated that the applicant appears to have a personality vulnerability, which he found difficult to assess on only one consultation. Dr Samuels referred to the difficult childhood of the applicant and unemotional and unavailable parents and difficulties with interpersonal relationships. Dr Samuels considered that there remained a risk that the applicant would not adhere to guidelines because the risk of the applicant working to excess was still present. Dr Samuels did not find any psychiatric reason for the applicant not to return to work. However, he acknowledged that the applicant had not paid attention to details with conflicting demands in his life. 14. The Tribunal considers that the circumstances are not dissimilar to that considered in Medical Tribunal of New South Wales in the matter of Dr William McBride and the Medical Practice Act, number 40022 of 1995 (decision 1 May 1996), where the Tribunal found that it was unable to place: "… trust and confidence in that practitioner to be scrupulously honest and straightforward in the event that some conflict should in future arise between his duty to be honest and self-interest." Principles relating to character 1. When considering the issue of "good character" the principles set out in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 in the reasons of Basten JA are instructive. His Honour, at [45] explained the words "'not of good character' do not bear a special or technical meaning". His Honour went on to discuss situations, by reference to authority, where personal conduct, as distinct from professional misconduct, may be relevant to the question of a practitioner's good character. 2. Ultimately, the question is whether the applicant is a fit and proper person to have the privilege of being a medical practitioner, as considered in Australian Broadcasting Tribunal v Bond. In NSW Bar Association v Meakes [2006] NSWCA 340, Basten JA observed that the protective purpose (of legislation relating to regulation of professions) was firstly to remove the practitioner from membership of the profession or provide a deterrent against repetition of the conduct by way of reprimand or fine; secondly, it reminded other members of the profession of the importance of maintaining the appropriate professional standards; thirdly it gave emphasis to the unacceptability of the conduct involved; fourthly, it was directed to maintenance of public confidence in the standards of the profession as considered by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. 3. As was stated in Health Care Complaints Commission v Khan (No. 2) [2019] NSWCATOD 37 at [46]: "The question of fitness to practise medicine involves the question of whether the impugned conduct was improper or unethical: that is, "viewed objectively, would [it] be regarded by reasonable persons as falling below the standards of conduct to be expected…in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both…": see Office of Local Government v Toma [2016] NSWCATOD 21. See also the observations of French CJ in Parker v Comptroller-General of Customs [2009] 83 ALJR 494; [2009] HCA 7 in which his Honour provided the ordinary meanings of "improper" as being "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, in erroneous, wrong", as was referred to in Health Care Complaints Commission v Liu [2016] NSWCATOD 133. The Tribunal must determine whether the misconduct is "sufficiently serious" to justify an order (where professional misconduct is found): see Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186." 1. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91], Basten JA observed that the public interest includes "…indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of practitioners." A registered medical practitioner must be of the highest moral calibre. In Health Care Complaints Commission v Echano [2018] NSWCATOD 30 at [57] the Tribunal confirmed the purpose of disciplinary orders is protective, as was discussed in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. The Tribunal said, inter alia: "The protection of the health and safety of the public is a paramount consideration: s 3A, National Law. Appropriate disciplinary orders reminded other members of the profession of the public interest in the maintenance of high professional standards, emphasise the unacceptability of the particular conduct and serve to main confidence in the high standards of the relevant profession: NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA. See also Health Care Complaints Commission v Do [2014] NSWCA 307 at (35] per Meagher JA (with whom Basten and Emmett JJA agreed)." 1. To similar effect, in Roberts v Medical Council of New South Wales [2015] NSWCATOD 35, the Tribunal commented that it was necessary for the Tribunal to consider whether it had confidence that the practitioner would uphold and observe "the high standards of moral rectitude required of a medical practitioner". 2. The first Tribunal found that the applicant was not a witness of truth. This Tribunal is concerned, among other issues referred to above, that the explanation which it has been given by the applicant concerning his non-compliance with the condition of his report which was due in July 2019 has yet to be tested. 3. For the above reasons, this Tribunal considers that this application is premature. It has been brought 12 months after the first Tribunal noted serious deficiencies in the applicant's conduct. If the applicant succeeds in his defence to the charge now brought against him, it may then be appropriate for an application for re-registration to be brought. However, in the absence of any conclusive determination on a serious matter of non-compliance with the condition, the Tribunal is satisfied that it could not, with confidence, be satisfied that the applicant possesses the requisite moral standards to be registered as a medical practitioner. 4. The applicant claims that he has a defence to the current charge. That defence appears to be that he was not aware that he was required to report in July 2019. This is a matter for determination by the relevant court. However, if it be established that there have been two breaches of conditions, it would reflect adversely upon the applicant's ability to comply with any conditions that might be imposed upon his return to practise as a medical practitioner. This Tribunal is not prepared to speculate upon the result of the current charge. 5. The applicant bears the onus of establishing that his application should succeed. In Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49, the Tribunal at [24] said: "The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a medical practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the medical profession." For the reasons referred to above, particularly in paras [86]-[91], the Tribunal is not convinced that the applicant is fit to return to practise. Essentially, the Tribunal has doubts about the applicant's ability to comply with and to conform to any conditions that might be imposed on him at this stage. The Tribunal considers that the applicant has failed to discharge the onus. Costs 1. The respondent makes an application that its cost of these proceedings be paid in the event that the applicant is unsuccessful. The applicant claims that he was required to come to the Tribunal to bring the application, and that in any event, he is impecunious. However, he acknowledges that the usual rule is that the party which is to be regarded as successful is entitled to an order that its costs be paid by way of compensation, not by way of punishment. Further, it has been repeatedly held that impecuniosity of a party is not a reason for refusing to make an order for costs against such a person and in favour of the successful party in the proceedings. 2. Under Schedule 5D, clause 13 of the National Law, the Tribunal has power to require a party appearing before it to pay the costs of another party. The New South Wales Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] has confirmed that as a general rule, costs of proceedings before the Tribunal should follow the result: see also NSW Medical Board v Dinakar [2009] NSWMT 8; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67]. 3. In Philipiah, several guideline considerations were set out, confirming that the Tribunal must exercise its discretion in accordance with fixed principles of reasons and justice. For example, there may be factors which militate against full recovery by the successful party, for example, where certain elements of conduct complained of were not established, or where there had been oppressive conduct by the successful party. However, an award of costs is compensatory and is not intended to punish another party: see Latoudis v Casey (1990) 170 CLR 534 at [543] per Mason CJ. See also Ohn v Walton (1995) 36 NSWLR 77. 4. The Tribunal considers that the usual rule as to costs prevails, namely that the unsuccessful party bear the costs of the successful party. Orders 1. The Tribunal orders that: 1. The application for registration as a medical practitioner be dismissed. 2. The applicant is to pay the costs of the respondent of this application. ********** 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 Amendments 09 September 2019 - Decision date revised 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: 09 September 2019