Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sargeant [2019] NSWCATOD 140 Hearing dates: 27 and 28 May 2019(final submissions, 23 August 2019) Date of orders: 09 September 2019 Decision date: 09 September 2019 Jurisdiction: Occupational Division Before: A Britton, Principal Member R Lin, Professional Member A Yacoub, Professional Member R Leontini, General Member Decision: 1. If still registered, the Tribunal would have cancelled Mr Sargeant's registration as a radiographer pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW). 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), Mr Sargeant cannot seek review of Order 1 above until 12 months after the date of this decision. 3. Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the National Board is required to record the fact that the Tribunal would have cancelled Mr Sargeant's registration in the National Register kept by the Board. 4. Mr Sargeant is to pay the Health Care Complaints Commission costs in the sum of $14,475. Catchwords: PROFESSIONS AND TRADES — health practitioner — assessment of risk of reoffending — consideration in formulating protective orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 Health Care Complaints Commission v Menz [2017] NSWCATOD 141 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Grant Sargeant (Respondent) Representation: Counsel: N Evans (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self-represented) File Number(s): 2018/00274943 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 Patient A is prohibited. REASONS FOR DECISION 1. In August 2017, radiographer, Grant Sargeant, was convicted by the Inverell Local Court of one count of "aggravated indecent assault" after entering a guilty plea. The victim of the offence, Patient A, had been admitted to Inverell Hospital, reporting difficulty breathing and chest pain. While alone with the victim in the X-ray room, after making gratuitous comments about her breasts, Mr Sargeant touched and squeezed her right breast for about three seconds. On returning from the X-ray room, Patient A reported to her mother "I just got touched up by the X-ray guy". 2. The following day, Mr Sargeant was stood down from his position as head radiographer at Inverell Hospital. 3. In September 2018, after investigating a complaint made by the Hospital, the Health Care Complaints Commission (the Commission) referred a complaint about Mr Sargeant to the New South Wales Civil and Administrative Tribunal (the Complaint). In an amended complaint filed in April 2019, the Commission complained that: 1. Mr Sargeant was convicted of one count of aggravated indecent assault (Complaint 1). 2. Mr Sargeant is guilty of "unsatisfactory professional conduct" as defined by s 139B(1)(l) the Health Practitioner Regulation National Law (NSW) (the National Law) because of the "underlying conduct" of that conviction (Complaint 2). 3. In contravention of s 130(1) of the National Law, Mr Sargeant failed to notify the Medical Radiation Practice National Board within seven days of being charged with, and later being convicted of, the subject offence. As a consequence, Mr Sargeant is guilty of unsatisfactory professional conduct as defined by s 139B(1)(b) of the National Law (Complaint 3). 4. Mr Sargeant is guilty of professional misconduct under s 139E of the National Law, on account of the conduct particularised in Complaints 2 and 3 (Complaint 4). 1. As Mr Sargeant has admitted to the Tribunal in writing, each of the four complaints, the power to make disciplinary orders under Sub-div 6 of Pt 8 of the National Law can be exercised: s 149 of the National Law. 2. The central issue to be decided is whether the power to make disciplinary orders should be exercised and, if so, what orders should be made. 3. The Commission urges the Tribunal to exercise its powers under s 149C(4) of the National Law to declare that if Mr Sargeant were still registered as a radiographer (Mr Sargeant did not renew his registration when it fell due for renewal on 2 January 2018) that the Tribunal would have cancelled his registration; to decide that Mr Sargeant is disqualified from being a registered radiographer for a period of between one to two years, and, to require the Medical Radiation Practice Board of Australia (the Board) to record the fact that if Mr Sargeant were still registered, the Tribunal would have cancelled his registration. The Commission contends that these orders are appropriate because of the seriousness of the subject offence, together with Mr Sargeant's alleged lack of insight into and remorse for the offending conduct. 4. Mr Sargeant opposes the suite of orders proposed by the Commission. He points out that he has worked as a radiographer for over 40 years and the conduct for which he has been convicted is the only time he has acted inappropriately towards a patient. He contends that this conduct was uncharacteristic and the result of a combination of exhaustion and ill health. He urges the Tribunal not to make the orders sought by the Commission but instead to issue a reprimand and to impose conditions on his registration, including that he undergoes regular psychological assessment. 5. For the reasons that follow, we have decided that if Mr Sargeant were still registered we would have cancelled his registration. The circumstances of the offence 1. On being admitted to Inverell Hospital on 27 March 2017, Patient A was sent for an X-ray to investigate her reports of breathlessness and chest pain. After taking the X-ray and assisting Patient A to put on her dressing gown, the following exchange took place: Mr Sargeant: I hope you don't think I'm being too forward, but I think you have really beautiful breasts. Patient A: They're not that great. Used to be better, but after four kids… Mr Sargeant: No I think they are gorgeous. You've got really nice boobs. Mr Sargeant then placed his hand on Patient A's right breast squeezing and caressing it for about three seconds. Mr Sargeant: I hope you don't mind. Patient A: Yeah I do. Mr Sargeant said "sorry" and removed his hand. 1. The next day, a hospital-appointed investigator informed Mr Sargeant that the hospital had received a complaint from Patient A. Mr Sargeant admitted to the allegations made by Patient A and was stood down from his position. Mr Sargeant resigned from the hospital on 13 June 2017. 2. In a letter to the Hospital dated 11 April 2017, Mr Sargeant admitted to the facts alleged by Patient A, as set out in [9] above, except the allegation that he had used the words "boobs". He claimed he used the word "breast". Mr Sargeant wrote that he wished to "apologise unreservedly to the patient for my unprofessional and inappropriate performance". He wrote that he was "devastated by my failings with respect to this patient's treatment" and asserted that "my immediate remorse is demonstrated by my immediate apology when recognising the inappropriateness of my conversation and insights". 3. He wrote that having worked as a radiographer for 40 years, including performing thousands of mammograms; this was the first complaint of this kind. He wrote: I believe that my ability to discern the boundaries of professional conduct was hugely and adversely affected by my overall state of complete exhaustion both physically and psychologically. In this state I believe that my senses of discernment developed over many years of professional conduct were not actuated and through familiarity with mammography my actions drifted into unprofessional and inappropriate conduct. Mr Sargeant's state of health at time of the offence 1. For several years before the offence Mr Sargeant had been working long hours in his role as head radiographer at Inverell Hospital. He was on call most nights and weekends and called in after hours on a regular basis. 2. In an email sent 1 June 2016, Mr Sargeant notified the Director, Hunter New England Imaging, Michael Symonds, and the Chief Radiographer, Hunter New England Imaging, Adrian Snowden, of his intention to resign from his position with the hospital, effective 15 July 2016. Mr Sargeant wrote that the lack of any administrative assistance "has placed far greater pressure on me than is possible to bear … this pressure has been detrimental to my health". 3. Following discussions with Messrs Symonds and Snowden, Mr Sargeant withdrew his letter of resignation. In a letter to Mr Sargeant dated 16 June 2016, Mr Snowden wrote that he had recommended that a relief radiographer be made available for eight weeks to ensure Mr Sargeant had a "decent break away from the workplace" and that a part-time administrative worker be appointed to assist Mr Sargeant. 4. In these proceedings, Mr Sargeant estimated that in the 12 months before the subject offence, he was working on average 70 hours per week. He was rostered to work Monday to Friday 8:00 am to 4:20 pm. In addition, he was required to be on call 24/7. While based at Inverell Hospital, Mr Sargeant travelled each week to Warialda and Bingara to provide radiography services. Warialda and Bingara are about an hour's drive from Inverell. He claimed that the reason he was on call most nights and weekends was because of a shortage of relief radiographers. 5. According to Mr Sargeant, on his return from extended leave (which was cut short by one week because of the lack of relief staff) he continued to work long hours and the promised administrative assistance did not eventuate. 6. In a statement dated 6 July 2017, Mrs Neisha Sargeant attested to her husband's claim of working long hours and being in a state of exhaustion around the time of the offence. She wrote that over the past 24 months, her husband has been experiencing "significant increased workload and periods of subsequent exhaustion". In her opinion, the hospital was making increased use of locum medical practitioners for "emergency hours", which made it increasingly common for her husband to be called in outside his rostered shifts. She wrote that in early 2017 her husband's level of exhaustion was increasing, and he was "feeling the effect of work stressors significantly". She stated that he frequently fell asleep in front of the television in the early evening, had a run of colds and at times was "quite lethargic". She wrote that he would often comment when returning from Warialda and Bingara that he was so tired that he worried about driving. 7. Mrs Sargeant wrote that by the beginning of March 2017, her husband was often irritable and had continual flu-like symptoms. He would regularly come home from work and lie down before dinner. He was often forgetful and not "acutely responsive to situations". She gave as an example, his tendency to fall back to sleep after receiving an after-hours call from the hospital. She claimed that this was in marked contrast to his usual practice of getting up immediately and driving to work. In addition, she wrote that around this time he was becoming "quite vague at times", giving as examples his tendency to leave the stove on and to unplug the telephone charger. 8. According to Mrs Sargeant, a further example of her husband's uncharacteristic conduct was the little assistance he provided in organising their daughter's third birthday party, held in early March 2017, describing his behaviour as "disassociated" and "groggy". She wrote that it was around this time that she urged her husband to see his GP. 9. The Sargeants' wedding anniversary fell three days before the day of the offence. Mrs Sargeant wrote that on the day of their anniversary, Mr Sargeant appeared to be mentally and physically exhausted and he told her that he was becoming too sick to handle the continued high demands of work and felt he needed time off to recover. 10. In a letter dated 6 July 2017, apparently tendered in the Local Court proceedings relating to the subject offence, Mr Snowden wrote that he had worked closely with Mr Sargeant since 2008. He stated that in 2014 several colleagues had expressed to him their concern that Mr Sargeant appeared to be stressed at work and was not coping with the volume of on call work. He wrote that having occupied a role which required him to be on call every day of the week, he understood the "effect this can have on your emotions". He wrote that he now "sincerely regrets" his actions in persuading Mr Sargeant to reconsider his decision to tender his resignation in 2016. Mr Snowden wrote that on returning from extended leave, apparently in mid-2016, Mr Sargeant appeared to be refreshed. Opinion of Mr Sargeant's GP 1. On 30 March 2017, three days after committing the offence, Mr Sargeant consulted his GP, Dr Steven McGilvray. In addition to their practitioner-patient relationship, Mr Sargeant and Dr McGilvray had a professional relationship through their respective roles at Inverell Hospital. In a report dated 28 November 2018, Dr McGilvray wrote that Mr Sargeant attended the practice on 30 March 2017, complaining of a "very stressful work environment - working long hours - not being able to get locum cover to have a rest, he was getting very tired and having to work long periods of on call after hours and weekends". He wrote that two months later Mr Sargeant again attended the practice complaining of burning urine, feeling feverish and disoriented. On testing after being admitted to hospital, Mr Sargeant was diagnosed with Staphyloccal Bacteraemia, which Dr McGilvray described as a "serious infection which if not treated can lead to delirium, sepsis, organ failure and death". Dr McGilvray wrote that before commencing antibiotic therapy Mr Sargeant was "quite disoriented, feverish and in the early stages of delirium". Dr McGilvray wrote: [T]here is no way of knowing how long the infection had been present in the prostate before Mr Sargeant was diagnosed in the last few days of May 2017. It is not uncommon for such infections to be present for a long time before they are discovered, and over this time similar episodes of Bacteraemia (bacteria in the blood) could occur and cause confusion and disorientation. Mr Sargeant stated that he felt very unwell through March 2017 and was under extreme pressure at work and had been to a large extent sleep deprived. If at this stage he had prostatitis it could have contributed to abnormal confusion, disorientation and abnormal behaviour. 1. When questioned in these proceedings, Dr McGilvray stated that during the consultation on 30 March 2017 he did not observe any symptoms of the infection for which Mr Sargeant was later diagnosed, or any abnormal behaviour. 2. He wrote that "accepting that in retrospect nothing can be proven medically", nonetheless he thought "it not outside the bounds of possibility that [Mr Sargeant] was suffering in some degree by this illness which later declared itself medically". Dr McGilvray explained that prostatitis (inflammation of the prostate) was a condition which makes the sufferer feel "acutely unwell" and it could have been "grumbling along [in Mr Sargeant] for some time". He acknowledged that he had no direct evidence that Mr Sargeant was suffering from an infection when he saw him on 30 March 2017, but nonetheless rejected the proposition put by the Commission that his hypothesis of a possible link between the infection and the offending conduct was "entirely speculative". 3. Dr McGilvray wrote that throughout the three years he had worked with Mr Sargeant, he has "always been very professional in his behaviour". He wrote that the incident described to him by Mr Sargeant was "completely out of character and totally outside what I would have expected Mr Sargeant to have done". Dr Wang 1. Mr Sargeant consulted psychologist, Dr Wei Wang, on three occasions in April and May 2017. He returned to see Dr Wang in November 2018, apparently to obtain a report for these proceedings. 2. In a report dated 13 July 2017, prepared at the request of the solicitor who represented Mr Sargeant in the criminal proceedings, Dr Wang wrote that when he first saw Mr Sargeant in early 2017, he was experiencing symptoms of depression and anxiety at an "extremely severe" level and stress at a "moderate" level. Dr Wang wrote that at the time Mr Sargeant had "apparent emotional distress and feelings of confusion, shame and depression". 3. In answer to a request from the solicitor to provide his "clinical opinion of why Mr Sargeant may have committed the alleged aggravated assault", Dr Wang wrote: It is difficult to make a definitive judgment here based on three sessions only. Further, the purpose of the EAP [Employee Assistance Program] sessions was to help Mr Sargeant to cope with his emotional distress in the context of what had happened rather than to focus on why it happened. Nonetheless, based on what Mr Sargeant had reported to me at the sessions, I tend to believe that it was an incident happened in the context of a long term stress and pressure related to work, which, as Mr Sargeant stated, in a matter of split second, Mr Sargeant's cognitive ability was weakened such that "the alarm did not go off' as described by Mr Sargeant. Mr Sargeant did 'recover' immediately from his inappropriate and indeed, unprofessional deed, which indicated that his ability to uphold the ethical standards and professionalism was not lost completely. Mr Sargeant apologised immediately and the reflection on what he did made him feel so ashamed but at the same time confused with no clear answer to why. Given his career training with the job and his good relationship with his wife as he stated, I do not believe it would be what Mr Sargeant intended to do at a very conscious level. An accumulation of the workload stress and tiredness would have affected Mr Sargeant's mental ability such that a blurred or confused cognition state, short as it was, played an important role. 1. In a supplementary report dated 30 November 2018, Dr Wang noted but did not comment on Dr McGilvray's opinion that Mr Sargeant's septicaemia and severe prostatitis "could have been present for a significant time before the presentation which could have influenced his physical fitness then". 2. Dr Wang wrote that when he assessed Mr Sargeant in November 2018, he demonstrated no symptoms of depression or anxiety and was mentally fit to work as a radiographer. He wrote that based on Mr Sargeant's presentation and self-report, Mr Sargeant has a "coherent cognitive process with an able insight and judgement". Character references 1. Mr Sargeant tendered several character references in these proceedings. All attest to Mr Sargeant's good character. Most refer to the subject offence. 2. In a letter dated 29 November 2018, Mr Snowden wrote that he had known Mr Sargeant as both a professional colleague and direct manager for a considerable period of time and "apart from his single and acknowledged indiscretion" he has been a "consummate professional operating to the highest of professional standards". While acknowledging that he did not possess the required professional skill to comment on the likelihood of Mr Sargeant's re-offending, Mr Snowden wrote that as a "colleague for many years I can only state that I would have no issue with him performing imaging studies on any of my daughters or wife". 3. Echoing Mr Sargeant's opinion that the offending conduct was the result of ill health and exhaustion, Mr Alistair Williams wrote "I am convinced that … this circumstance would not have arisen without these exceptional external pressures". Mr Williams and Mr Sargeant worked together in a private radiography practice for about ten years from 1987. In addition to general radiography, the practice regularly performed mammography and breast lesion localisations. Failure to comply with reporting obligations 1. Complaint 3 relates to Mr Sargeant's failure to notify the Medical Radiation Practice National Board within seven days of being charged with and later being convicted of, the subject offence. The National Law requires registered health practitioners to notify the relevant National Board within seven days of becoming aware of a "relevant event", here, being charged with an offence punishable by 12 months imprisonment or more and being made the subject of a finding of guilt for an offence, punishable by imprisonment: s 130(1). 2. Mr Sargeant admits failing to notify the Board of these two events. He claims that he was unaware of the notification requirement imposed by s 130(1) until informed by the Commission in the course of these proceedings. He points out that when charged with the subject offence on 30 May 2017, he was hospitalised and on an intravenous drip. He claims that at that time his wife and his solicitor were handling all matters relating to the subject offence. 3. With respect to his failure to notify the Board that he had been convicted of the subject offence, Mr Sargeant claims it was a traumatic time and he was engrossed in "attempting to redirect the life of our young family". Does the conduct particularised in Complaints 2 and 3 amount to unsatisfactory professional conduct? 1. Unsatisfactory professional conduct is defined by s 139B(1) of the National Law to include: ... (b) 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. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. There can be no argument that the conduct described in Complaint 2 — making unsolicited comments of a sexual nature and touching Patient A's breast — was both improper and unethical. Nor can there be any argument that the second element of par (l) of s 139B(1) is established because the conduct occurred in the course of the practice of radiography. Mr Sargeant admits, and we find, that the conduct particularised in Complaint 2 constitutes "unsatisfactory professional conduct" as defined by s 139B(1)(l) of the National Law. 2. In addition, as conceded by Mr Sargeant, he contravened s 130(1) of the National Law by failing to notify the Board within seven days of being charged with and convicted of the subject offence. Each contravention constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(b). Was the conduct found to amount to unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation? 1. "Professional misconduct" is defined by s 139E of the National Law to mean: 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. Whether unsatisfactory professional conduct is of a "sufficiently serious nature" to justify an order for suspension or cancellation, will depend in each case upon an evaluative judgment being made by the Tribunal as to the nature and seriousness of the conduct: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [20]. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. 2. Referring to the definition of professional misconduct contained in the now repealed Medical Practice Act 1992 (NSW), which is in similar but not identical terms to the definition contained in the National Law, in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], Basten JA emphasised that the definition is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made. 3. The seriousness of the subject unsatisfactory professional conduct is to be measured by the extent to which it departs from proper standards, not by reference to the worst cases. To do otherwise would risk the misconduct of some practitioners indirectly setting the standards to be applied by the Tribunal: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638. 4. The conduct particularised in Complaint 2 was objectively serious. It resulted in Mr Sargeant being convicted for the offence of "indecent assault in circumstances of aggravation" under the now repealed s 61M(1) of the Crimes Act 1900 (NSW). At the time of the conviction that offence carried a maximum penalty of imprisonment of seven years. The Court imposed a fine of $1,000 and placed Mr Sargeant on a bond to be of good behaviour for a period of three years. Adding to the seriousness of the conduct was the fact that Patient A was unwell, vulnerable and alone with Mr Sargeant. Unsurprisingly, she found the assault distressing: You shouldn't be taken advantage of while you're sick ... it shocked me and I froze … I was really taken aback due to how sick I was and the position Grant held when he touched my breast ... I felt he took advantage of me. 1. Mr Sargeant's conduct represented a serious violation of the proper and necessary boundary that must be observed in any health practitioner and patient relationship. We find that the conduct described in Complaint 2 constitutes unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Sargeant's registration. 2. With respect to the failure to report the fact of being charged with and later convicted of the subject offence, we accept Mr Sargeant's claim that at the time of these events he was unaware of the reporting requirements imposed by s 130(1) of the National Law. Nonetheless, that failure is no small matter. As the Tribunal noted in Health Care Complaints Commission v Menz [2017] NSWCATOD 141 at [67], the effective operation of the national registration and accreditation scheme, established by the National Law for the regulation of health practitioners, is dependent upon a system of self-reporting by registered health practitioners. The integrity of that scheme requires that health practitioners are not only candid in their dealings with and fully cooperate with relevant regulatory bodies but are aware of their reporting obligations under the National Law. 3. Mr Sargeant's failure on two occasions to comply with the reporting requirements imposed by s 130(1) was conduct of a serious nature. However, it was not of a sufficiently serious nature to justify suspension or cancellation of his registration. Nonetheless, when considered together with the unsatisfactory professional conduct particularised in Complaint 2, it amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Sargeant's registration. Should the power to make disciplinary orders be exercised and if so what form of orders should be made? 1. Because Mr Sargeant has admitted the subject matter of the complaint the power to make orders under Sub-div 6 of Pt 8 of the National Law may be exercised. These powers include the power to impose conditions on the practitioner's registration; to order the practitioner to undergo medical or psychiatric treatment or counselling; to complete an educational course specified by the Tribunal; to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal and to order the practitioner to seek and take advice, in relation to the management of their practice, from persons specified by the Tribunal: s149A(1). Where, as here, the person the subject of the complaint is no longer registered as a health practitioner, an order or direction may still be given under s 149A(1) but has effect only: (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered: s 149A(3). 2. Where, as here, the Tribunal finds a person who was a registered health practitioner guilty of professional misconduct, 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: s 149C(4). In addition, the Tribunal may make a prohibition order under s 149C(5) of the National Law. Submissions made by the parties about the form of disciplinary orders 1. The parties agree that the conduct found to amount to professional misconduct warrants the exercise of the power to make disciplinary orders. However, they differ on the form of appropriate orders. As noted, the Commission urges the Tribunal to exercise its power to make orders under s 149C(4) of the National Law and, among other things, to declare that if Mr Sargeant were still registered, that the Tribunal would have cancelled his registration. In addition, the Commission seeks an order disqualifying Mr Sargeant from being a registered radiographer for a period of one to two years. Mr Sargeant submits that the more appropriate order is the issue of a reprimand and the imposition of conditions on his registration. 2. While reserved in our decision, we invited the parties to make written submissions and comment on an alternative suite of orders, namely an order under s 149C(4) of the National Law to declare that if Mr Sargeant were still registered that the Tribunal would have suspended his registration together with the imposition of conditions on his registration. That formulation was opposed by the Commission and supported by Mr Sargeant. 3. The Commission submits that the orders it seeks are appropriate for the following reasons. 4. First, the Commission contends that the serious nature of the conduct particularised in Complaint 2 justifies cancellation. The Commission contends that the nature of that conduct raises concerns about Mr Sargeant's fitness to practise. Pointing out that the conduct occurred in the course of a routine X-ray carried out on an otherwise unremarkable day, the Commission asserts that there are no mitigating factors, which might explain the conduct. 5. Second, the Commission contends that Mr Sargeant lacks insight into the offending conduct. The Commission submits that the hypothesis advanced by Mr Sargeant of a causal link between the offending conduct and ill health and exhaustion, cannot be accepted. That hypothesis, submits the Commission, demonstrates both a lack of insight and a failure to acknowledge responsibility for his actions. In addition, the Commission asserts that there is no direct evidence, as he now claims, that Mr Sargeant was either unwell or particularly tired on the day the offence was committed. 6. Third, the Commission contends that Mr Sargeant's claim of being remorseful for his conduct cannot be accepted. The Commission points to Mr Sargeant's failure to immediately report the incident; his focus in these proceedings on the alleged failure of his employer to afford him procedural fairness in the course of its investigation into the complaint made by Patient A; his alleged lack of concern for Patient A; and the submissions he made in these proceedings urging the Tribunal to have regard to the "safety" and interests of health practitioners in the exercise of the power to make disciplinary orders. 7. Fourth, the Commission contends that unless and until Mr Sargeant has undertaken some form of psychological counselling, anything short of an order, which requires that if he were still registered the Tribunal would have cancelled his registration, will be insufficient to protect future patients from the risk of re-offending. The Commission points out that if the Tribunal decides it would have suspended, not cancelled his registration, had he been registered, he would be able to return to practice. 8. Fifth, citing the comments of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) at [34]-[39], the Commission contends that in formulating disciplinary orders it would be an error to focus solely on the risk of the misconduct being repeated and to fail to have regard to the public interest in denouncing the misconduct and signalling to the profession its unacceptability. 9. In support of the disciplinary orders he proposes, Mr Sargeant makes the following arguments. 10. First, he asserts that there is no risk that he will reoffend. He points to his 40-year history of working as a radiographer without complaint. During that period, he performed thousands of imaging studies including mammograms. In addition, he points to the remarks made on sentencing by Magistrate Trad that the likelihood of reoffending is "very low", together with the opinion expressed by Dr Wang and colleagues who have worked with him closely over many years. 11. Second, contrary to the assertion made by the Commission, Mr Sargeant asserts that he is genuinely remorseful, pointing to the statements made by his wife, Dr Wang and Rev Adam Draycott, the vicar of Mr Sargeant's local church. He points out that when contacted by the Hospital's investigators the day following the offence, he immediately admitted the offending conduct. 12. Third, he points to the opinion expressed by Dr McGilvray that it is likely that at the time of the offence he was suffering from the infection which two months later caused him to be hospitalised suffering with delirium. In support of the contention that the condition was long standing, he points to, among other things, the hospital notes made on the day of his admission: "7 months presents with pain…". 13. Fourth, he contends that contrary to the submission made by the Commission, he has always recognised and acknowledged the seriousness of his conduct. He claims that it is for that reason he decided not to return to practice until the Complaint has been determined by the Tribunal. 14. Fifth, while acknowledging that in exercising the power to make disciplinary orders the Tribunal must have regard to the health and safety of the public, he contends that the Tribunal must also have regard to the interests of health practitioners. He asserts that if health practitioners in the Hunter New England area conclude that he has been dealt with unfairly, some may reconsider their on-going commitment to the profession, an outcome which would not be in the public interest. Risk of re-offending 1. A disputed issue in these proceedings is whether, as Mr Sargeant contends, a combination of exhaustion and the effects of the Staph infection, were factors which contributed to Mr Sargeant's misconduct. 2. Although there is no direct evidence that, on the day of the offence, Mr Sargeant was displaying symptoms of tiredness or exhaustion, we accept that he was probably exhausted and had been for some time. While not an independent witness, we accept Mrs Sargeant's detailed account of her observations of the signs of exhaustion displayed by her husband and his changed behaviour, in the months before the offence. Those observations are consistent with Mr Sargeant's claim of feeling run down and generally unwell. It is also consistent with his report to his GP three days after the offence, as recorded in the clinical notes made of that consultation. 3. With respect to the hypothesis that at the time of the offence Mr Sargeant was suffering from the effects of an infection, while not implausible, as Dr McGilvray properly acknowledges, on the available material it can be put no higher than a possibility. We cannot be satisfied to the requisite standard that at the time of the offence, Mr Sargeant was suffering from the infection which was diagnosed two months later. 4. That Mr Sargeant holds the firm belief that the reason he acted as he did was because of the combined effect of illness and exhaustion, in our view is not determinative of the question of whether he poses a risk of reoffending. That he holds that belief is hardly surprising given the opinion expressed by his GP, which, while not endorsed by Dr Wang, was not rejected by him. 5. However, this does not dispose of the question of risk. In circumstances where the offence is both serious and occurred in the course of discharging his duties as a radiographer, in our view, there must be cogent and reliable evidence to support a finding that Mr Sargeant will not re-offend before it is appropriate to countenance an order other than a declaration under s 149C(4) of the National Law that we would have cancelled Mr Sargeant's registration had he still been registered as a radiographer. 6. Highly relevant to the assessment of risk is the fact that the offence was a one-off in Mr Sargeant's 40-year career as a radiographer. Over that period Mr Sargeant had ample opportunity to offend. There is no evidence to contradict his claim that this was the first and only time he acted inappropriately towards a female patient. That claim is supported by the testimonials prepared by former work colleagues tendered in these proceedings. 7. In addition, while we accept that in the course of the Commission's investigation of the complaint, Mr Sargeant focussed on his own perceived mistreatment by his employer, this does not necessarily demonstrate a lack of remorse or failure to acknowledge the effect of his actions on Patient A. While no small matter that Mr Sargeant failed to immediately report the incident to the hospital, nonetheless when informed of Patient A's complaint the day following the offence, he immediately admitted culpability. He has not resiled from that admission. Notably, in the criminal proceedings, he entered a guilty plea at the first available opportunity. 8. The statement provided by Rev Draycott that Mr Sargeant has expressed "deep regret and remorse" and "continues to be repentant" is also consistent with Mr Sargeant's claim of being remorseful. Rev Draycott's statement is also consistent with Mr Sargeant's claim that he sought counselling and guidance from Rev Draycott. 9. We view those actions – his admissions and his apology, as well as his plea of guilty at the first opportunity in court – as demonstrating remorse. No doubt he could have done more but his argument that he was denied procedural fairness is a different issue and irrelevant to the question of remorse. We reject the Commission's argument that Mr Sargeant's claim that he was unfairly dealt with by his employer indicates lack of remorse. 10. While we accept that Mr Sargeant is remorseful and that the incident was out of character, this does not fully resolve the question of risk. Sustained exhaustion provides a plausible but not a complete explanation of the cause of Mr Sargeant's perplexing loss of judgement and self-control. While we accept that the conduct was not deliberate, and likely as Dr Wang opined, to have happened at some unconscious level, unless and until Mr Sargeant undertakes some form of psychological counselling to assist him to identify the cause(s) or trigger(s) of that conduct and, importantly to develop strategies to guard against it being repeated, we cannot be satisfied that there is no real and material risk of conduct of that type being repeated. Even if Mr Sargeant's hypothesis is correct and his loss of judgement and self-control can be completely explained by a combination of exhaustion and ill-health, this does not resolve, or adequately resolve, the issue of risk. Given his age, responsibilities for a young family and associated financial pressures, it is possible, if not probable that on occasion, he may again find himself in a situation where he is exhausted at work, even if, he remains committed to not returning to work the gruelling hours he was working at the time of the offence. In our view, it is critical that Mr Sargeant develop strategies to avoid the risk of the conduct being repeated. 11. In reaching this conclusion we have taken into account the deterrent effect of the investigation, the criminal proceedings and these proceedings are likely to have had on Mr Sargeant. While this bolsters Mr Sargeant's claim that he is an unlikely candidate for recidivism (a view shared by the sentencing magistrate), of itself it is not sufficiently protective against future risk, particularly in circumstances where the assault was spontaneous and not pre-meditated, and Mr Sargeant has not received assistance to understand what caused him to act in that uncharacteristic way and to develop strategies to guard against the risk of re-offending. Appropriate form of orders 1. In the exercise of the power to make disciplinary orders, we are obliged to give paramount consideration to the health and safety of the public: s 3A of the National Law. While the health and safety of the public is the paramount consideration, the consequences of any disciplinary orders for Mr Sargeant are also relevant. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order". We accept that the consequences of an order declaring that we would have cancelled Mr Sargeant's registration, will adversely affect Mr Sargeant. It will prevent him practicing as a radiographer, for the term of any disqualification period and possibly indefinitely. It is likely to adversely impact his self-esteem, standing within the community and income earning capacity. 2. As noted above, we gave consideration to, and invited the parties to comment on, whether as an alternative to the form of orders proposed by the parties it would be appropriate to exercise the power to make an order under s 149C(4), declaring that if Mr Sargeant were still registered we would have suspended his registration, together with an order imposing conditions on his registration. After considering a number of alternative form of conditions, including those proposed by Mr Sargeant, we have decided that at this stage, it is not possible to formulate a set of conditions, to reduce the risk of reoffending, to one that is not real and material. For that reason, we conclude that notwithstanding the adverse consequences for Mr Sargeant that it is necessary and appropriate to declare that if he were still registered we would have cancelled his registration. 3. In addition, we decided to impose a 12 month disqualification period and to direct the Medical Radiation Practice Board of Australia to record the fact that if Mr Sargeant were still registered, we would have cancelled his registration. Should the discretion to make an order for costs be made and, if so, should the power to fix costs be exercised? 1. The Commission seeks an order that Mr Sargeant pay its costs in these proceedings fixed in the sum of $14,475. Mr Sargeant submits that the Tribunal should order that each party bear their own costs. 2. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. 3. We have decided to order Mr Sargeant to pay the Commission's costs because there is no evidence of any disentitling conduct by the Commission which might justify a departure from the "general rule". The fact that Mr Sargeant admitted to each of the complaints, of itself is not a proper basis to depart from that rule. Because of those admissions, the overall costs of the proceedings and the costs incurred by the Commission have been reduced. 4. The Commission requests that we exercise the power to fix the amount of costs, arguing that to refer the issue of costs for assessment if the parties do not reach agreement, as permitted by cl 13(3A) of Sch 5D to the National Law, is likely to result in additional costs being incurred. 5. The Commission has provided a statement itemising its costs and disbursements together with supporting documentation. As the Commission points out, if the parties do not reach agreement on the question of costs and the issue is referred for assessment, further costs will inevitably be incurred. The costs sought by the Commission in our view are reasonable and relatively modest. Relevantly, the Commission does not seek its costs for the second day of the hearing. 6. While as a general rule it will not be an efficient use of the limited resources available to NCAT to fix the costs of proceedings, the above factors taken together lead us to conclude that it is appropriate to exercise the power to fix the costs in the amount sought. Orders 1. If still registered, the Tribunal would have cancelled Mr Sargeant's registration as a radiographer pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW). 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), Mr Sargeant cannot seek review of Order 1 above until 12 months after the date of this decision. 3. Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the National Board is required to record the fact that the Tribunal would have cancelled Mr Sargeant's registration in the National Register kept by the Board. 4. Mr Sargeant is to pay the Health Care Complaints Commission costs in the sum of $14,475. ********** 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: 09 September 2019