Morsingh v Health Care Complaints Commission

1. [1]

   WHITE JA: The circumstances giving rise to these applications for leave to appeal and purported appeal are fully set out in the reasons for judgment of Mitchelmore JA, which I have had the advantage of reading in draft. I agree with her Honour’s reasons. I add the following comments in respect of three matters. These reasons assume a familiarity with the reasons of Mitchelmore JA.

2. [2]

   Dr Morsingh purportedly appealed as of right from the Tribunal’s second decision. The notice of appeal did not identify the question of law which would form the subject matter of an appeal as of right (cl 29(1)(d) and (2) of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW); Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [3]-[6] and [22] and cases cited). In his oral submissions Mr Corsaro SC, who appeared for Dr Morsingh, submitted that demonstration that the Tribunal’s discretion miscarried by reason of an error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 raised a question of law. He also submitted that if the Tribunal gave insufficient weight to the materials relied on by Dr Morsingh that that would raise a question of law upon which an appeal lay as of right.

3. [3]

   That submission should be rejected. First, no particular question of law was identified. Secondly, not all errors in the exercise of discretion raise a question of law. For example, two House v The King errors are if the judge mistakes the facts or if, upon the facts, the decision is unreasonable or plainly unjust (House v The King at 505).

4. [4]

   There being no other attempt to articulate a question of law on which an appeal would lie as of right from the Tribunal’s Stage 2 Decision, leave to appeal is also required from that decision.

5. [5]

   The second matter concerns the principal ground upon which Dr Morsingh submitted that the Tribunal erred in accepting the evidence of Patient A, namely, that on the basis of the Tribunal’s finding at para [64] of its first decision (quoted by Mitchelmore JA at [48]) it would have been physically impossible for Dr Morsingh to have examined Patient A in the way she described. In that paragraph the Tribunal held that Patient A misremembered the nature of the bed at the time of consultation and the bed was in fact fixed. Evidently the Tribunal accepted the evidence of the medical receptionist who worked at the practice. She annexed photographs of the fixed bed and its distance from the wall behind the head of the bed. She said that the bed depicted in the photographs was in place until renovations of all of the doctors’ rooms took place in about early April 2019. The distance between the head of the bed and the wall was about 15cm.

6. [6]

   In her AHPRA Complaint, Patient A stated: “Standing behind me, he began pressing firmly on acupressure points on my neck and jaw” and after pressing points between her thumb and forefinger and higher towards her elbow, he lifted the collar of her T-shirt and slid his hand inside her shirt and pressed the top of her breast and then moved his hands to the outside areas of her breasts under her shirt. (The complaint is quoted by Mitchelmore JA at [30]).

7. [7]

   In his response to Patient A’s complaint, in the s 150 proceedings before the Medical Council, Dr Morsingh submitted that it would be impossible to conclude that he was standing behind Patient A considering the layout of the consultation room and the location of the bed and the wall. That contention was maintained before the Tribunal.

8. [8]

   If that contention were correct, given the Tribunal’s rejection of Patient A’s evidence that she was lying on a movable bed, there would be powerful grounds for saying that the Tribunal’s acceptance of Patient A’s evidence in preference to that of Dr Morsingh could be overturned notwithstanding that the Tribunal’s findings were heavily based upon its assessment of Patient A’s demeanour. The Tribunal (at [65]) (quoted by Mitchelmore JA at [48]) rejected the suggestion that it would not have been physically possible for Dr Morsingh to place his hands down the front of Patient A’s top while standing behind her head while she was lying on the bed.

9. [9]

   In her evidence before the Tribunal, Patient A was not asked by counsel for the Health Care Complaints Commission (“HCCC”), nor by counsel for Dr Morsingh, whether she meant that Dr Morsingh was standing directly behind her, or behind but to the side of her. When Dr Morsingh was called, he was not asked to demonstrate that within a 15cm gap between two fixed objects (the head of the bed and the wall behind it) he could have not stood directly behind Patient A. Nor was he asked to demonstrate that he could not have inserted his leg in the 15cm gap and, from behind but to the side of Patient A, leaned over and conducted the examination in the way she described. Even assuming (which was not proved) that Dr Morsingh could not have stood directly behind Patient A if she were lying on the bed in the space between the edge of the bed and the wall, there is no obvious reason why the examination as described by Patient A could not have been carried out by Dr Morsingh in the way Patient A described if her head were not at the top of the bed. This is what the Tribunal found at [65].

10. [10]

    The other matters relied upon by Dr Morsingh as showing that the Tribunal’s acceptance of Patient A’s account was glaringly improbable or contrary to compelling inferences, were that Patient A’s mother said that Patient A did not say anything to her about Dr Morsingh touching the sides of her breasts and that the COPS entry does not record Patient A’s telling the police that Dr Morsingh had hugged her. I agree with Mitchelmore JA that these matters, which were addressed by the Tribunal, do not lead to a conclusion that Patient A’s account was glaringly improbable or contrary to compelling inferences.

11. [11]

    The third matter for comment concerns paragraphs [64]-[66] of the Tribunal’s Stage 2 Decision where the Tribunal said:

12. [12]

    That submission, unexceptionable as it may be, must be understood with the caveat that it would be an error for the Tribunal to conclude from the fact that it has rejected a practitioner’s evidence that the practitioner has deliberately lied. Such a finding should not be made merely on the competing testimony of the complainant, without confirmatory evidence (Smith v NSW Bar Association (1992) 176 CLR 256 at 268; [1992] HCA 36).

13. [13]

    However, the Tribunal’s finding of dishonesty was not solely based on its acceptance of Patient A’s evidence. Nor was it a ground of appeal or submission that the Tribunal made any such error. Nor does it appear that any different order would have been made, or been appropriate, if the Tribunal had not fully accepted the HCCC’s submission quoted at [65] of its reasons.

14. [14]

    It may be noted that order 2 made by the Tribunal on 2 March 2022 contains a slip. That order was made pursuant to s 149C(7) and not s 149C(5) of the Health Practitioner National Law. That slip should be corrected by order of this court. For these reasons, and those of Mitchelmore JA, I agree with the orders her Honour proposes.

15. [15]

    MITCHELMORE JA: The applicant, Dr Raymond Morsingh, was registered as a medical practitioner in general practice in 1994. On 25 June 2020, the respondent, the Health Care Complaints Commission (“the HCCC”), filed an application in the Occupational Division of the Civil and Administrative Tribunal of New South Wales (“Tribunal”) for disciplinary findings and protective orders in respect of Dr Morsingh, pursuant to the Health Practitioner Regulation National Law (“National Law”). The application related to a complaint that a patient of Dr Morsingh made two days after she attended a consultation with him on 29 November 2018 (“November 2018 Consultation”).

16. [16]

    Dr Morsingh seeks leave to appeal from the decision of the Tribunal, handed down on 16 February 2021, which found that he had conducted himself in a manner that constituted unsatisfactory professional conduct and professional misconduct: Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 (“Stage 1 Decision”). As Dr Morsingh seeks to challenge findings of fact that the Tribunal made in the Stage 1 Decision, he requires leave to appeal pursuant to cl 29(4) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW).

17. [17]

    Dr Morsingh also filed an appeal from the further decision of the Tribunal, handed down on 2 March 2022, by which it cancelled his registration as a medical practitioner and made further consequential orders: Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28 (“Stage 2 Decision”). Although Dr Morsingh purported to appeal the Stage 2 Decision as of right, the ground of appeal as it was formulated and developed is not on a question of law. Accordingly, Dr Morsingh requires leave to appeal: see cl 29(4) of Schedule 5 of the Civil and Administrative Tribunal Act. At the conclusion of the hearing on 9 May 2022, the Court granted leave to Dr Morsingh to amend the Summons he filed on 14 May 2021 to include an application for leave in relation to the Stage 2 Decision.

18. [18]

    I would refuse leave to appeal from the Stage 1 Decision. The focus of Dr Morsingh’s challenge to the Stage 1 Decision is the Tribunal’s acceptance of the complainant’s account of the physical examination that he conducted during the November 2018 Consultation. He has not advanced a reasonably arguable error in the Tribunal’s evaluation of her account or the Tribunal’s conclusions having regard to her evidence. Nor has Dr Morsingh advanced an arguable basis on which this Court would find error in the Tribunal’s acceptance of other aspects of the complainant’s account which formed the basis of the particulars of the HCCC’s application.

19. [19]

    As to the Stage 2 Decision, I would grant leave to appeal but dismiss the appeal. There is no substance in Dr Morsingh’s contention that the Tribunal’s exercise of the discretion to cancel his registration was affected by errors of the nature on which he relies, namely, that the Tribunal’s exercise of its discretion was unreasonable and involved a failure to consider or give sufficient weight to relevant evidence. His submissions regarding unreasonableness amount to no more than an expression of dissatisfaction with the outcome. His allegation that the Tribunal failed to consider or give sufficient weight to particular evidence is also unsustainable in the face of the Tribunal’s reasons.

20. [20]

    I will first address the background to the Tribunal proceedings before moving to the Stage 1 Decision and Dr Morsingh’s proposed grounds of appeal in relation thereto. I will then address the Stage 2 Decision and the proposed ground of appeal relating to that decision.

The identity of the complainant and her mother

1. [21]

   The HCCC referred to the person whose complaint about Dr Morsingh formed the basis of its application as “Patient A”. The Tribunal made a non-publication order over the identity of the person referred to as “Patient A” and the identity of Patient A’s mother. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), this Court made a non-publication order with respect to the identity of the complainant and her mother, in accordance with which I will also refer to the complainant as Patient A. I intend no disrespect to Patient A or her mother by not referring to them by name.

The application for disciplinary findings

1. [22]

   It was common ground in the Tribunal that Patient A attended the November 2018 Consultation at the Wentworthville Medical Centre (“the Centre”), which Dr Morsingh established in 2002 and of which he was the Medical Director. Between 2007 and September 2014, Patient A had attended numerous appointments with Dr Morsingh at the Centre. She did not attend the Centre again until the November 2018 Consultation, at which time she was 28 years old. Patient A’s presenting complaint on that occasion was a burning feeling in her right cheek and jaw.

2. [23]

   The HCCC advanced two complaints against Dr Morsingh in relation to the November 2018 Consultation. Complaint One alleged that Dr Morsingh was guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law, in that he had:

3. [24]

   Each of the particulars to Complaint One related to conduct that the HCCC alleged had occurred during the November 2018 Consultation:

4. [25]

   Complaint Two alleged that Dr Morsingh was guilty of professional misconduct under s 139E of the National Law, in that he had:

5. [26]

   The particulars to Complaint Two were as follows:

6. [27]

   In response to the particulars of Complaint One, Dr Morsingh admitted that he showed Patient A his tattoo during the November 2018 Consultation (Particular 6) and that he disclosed to Patient A the matters set out in Particular 7: Stage 1 Decision [101], [105]. Dr Morsingh accepted that this conduct fell below the required standard: Stage 1 Decision [100], [104]. He also admitted that he displayed aromatherapy oils and diffusers in his consulting rooms and that this fell below the required standard (Particular 8): Stage 1 Decision. As to Particular 5, Dr Morsingh admitted that he asked Patient A, “are you a hippy now?”, but he denied making the other statements about Patient A’s eyes that formed part of that particular: Stage 1 Decision [94]-[95].

7. [28]

   Dr Morsingh denied engaging in the conduct that was the subject of the other particulars. However, in this Court he did not maintain his challenge to the Tribunal’s findings in relation to Particulars 4 and 9.

8. [29]

   The HCCC’s evidence in the Tribunal included a statement from Patient A and the complaint that she made to the Australian Health Practitioner Regulation Agency on 1 December 2018, two days after the November 2018 Consultation (“AHPRA Complaint”). In the AHPRA Complaint, Patient A said that she told Dr Morsingh about the sensations in her face, that she had seen a number of doctors over the preceding three years, and she had undergone an MRI which came back clear. According to Patient A, Dr Morsingh “quickly” told her that she was describing trigeminal neuralgia. He felt Patient A’s jaw and told her that the condition was from blockages in the cranial nerves, jaw, and neck.

9. [30]

   Patient A continued her account in the AHPRA Complaint as follows:

10. [31]

    According to Patient A, while she was still lying down Dr Morsingh asked her about her diet, which led to him making the inappropriate disclosure of personal information referred to in paragraphs (a) to (c) of Particular 7 (which he admitted). After pressing points on Patient A’s face and neck some more, Patient A reported that Dr Morsingh “AGAIN pressed my breasts on the sides with his hands” (original emphasis). He said to Patient A, “this is where you need to do it yourself”, touching the sides and top sides of the breast. According to Patient A, Dr Morsingh did not ask for her consent to touch her breasts, and he did not explain why he needed to do so.

11. [32]

    Dr Morsingh next asked Patient A if she “gave a lot of [herself] for free”. When she said that she did, he told her about doTERRA Essential Oils and gave her a sample bottle (this exchange is the subject of Particular 8, which Dr Morsingh admitted). Dr Morsingh then told Patient A that he had been reborn eight weeks ago and had risen as a phoenix, and that he had marked himself with a tattoo of a phoenix (Particular 7(d), which he admitted). He undid the top buttons of his shirt and showed Patient A the phoenix tattoo which was located on his left shoulder, along with the tattoo of a lotus flower that was located beneath the phoenix (this is the subject of Particular 6, which Dr Morsingh also admitted). Dr Morsingh told Patient A that the lotus flower was a representation of his ex-wife (Particular 7(e), also admitted).

12. [33]

    Patient A recorded that Dr Morsingh printed some information on trigeminal neuralgia and handed it to her. As she stood up to leave, Dr Morsingh said: “You really have the most beautiful eyes. I’ve always told you that. You have beautiful eyes.” He then hugged Patient A, and she left. When Patient A arrived home, she was upset and confused about what had happened. Patient A said that she told her mother what happened when her mother arrived home from work. The next day, Patient A told her sister. In the company of her sister, Patient A made a report to NSW Police on the same day as she made the AHPRA Complaint.

13. [34]

    Patient A’s statement in the Tribunal proceedings was broadly consistent with the account she had provided in the AHPRA Complaint. Additionally, however, Patient A addressed a contention that Dr Morsingh had raised in response to her account in the AHPRA Complaint, to the effect that she had dissociated during the November 2018 Consultation. He relied in this regard on her statement in the AHPRA Complaint that she had experienced a “flashback”. Patient A said in her statement in the Tribunal proceedings that “[a] memory of a previous sexual assault came to my mind, but I did not disassociate from my body or the present environment”.

14. [35]

    Patient A’s mother made a statement in the Tribunal proceedings. She said that when she came home from work on 29 November 2018, Patient A told her what happened during the November 2018 Consultation. The account that Patient A’s mother said she received from her daughter was generally consistent with Patient A’s account in the AHPRA Complaint and her statement in the Tribunal proceedings. One difference, on which Patient A’s mother was cross-examined, related to the absence from her evidence of any report from Patient A that Dr Morsingh had touched the sides of her breasts.

15. [36]

    In addition to the evidence of Patient A and her mother, the HCCC relied on two expert reports from Dr Carolyn Ee, a registered General Practitioner, registered Chinese Medicine Practitioner and medical acupuncturist. The HCCC also tendered Patient A’s medical records from the Centre, Dr Morsingh’s response to the AHPRA Complaint, and the transcript of a hearing the Medical Council of New South Wales (“Medical Council”) had conducted for the purpose of determining whether conditions should be imposed on Dr Morsingh’s registration pursuant to s 150 of the National Law (“the section 150 hearing”). The video-recorded interview in which Patient A participated with NSW Police was not tendered, but the HCCC did tender the entry from the Computerised Operational Policing System (“COPS”) maintained by NSW Police relating to Patient A’s attendance at Parramatta Police Station on 1 December 2018.

16. [37]

    In response to the HCCC’s application, Dr Morsingh adopted the account of the November 2018 Consultation that he gave in the section 150 hearing. His account included that he physically examined Patient A while she was seated in a chair, and he did not ask her to lie down at any stage. Dr Morsingh denied the particulars that alleged he had touched Patient A’s breasts during the examination. He said that it was not physically possible for him to place his hands down the front of Patient A’s top while she was lying on the bed and he was standing behind her head, relying on the fixed position of the bed and the limited space (some 15 cm) between the head of the bed and the wall. Dr Morsingh also denied that he hugged Patient A during the course of the examination or made gratuitous comments about her eyes. As to the latter, Dr Morsingh contended before the Tribunal that he observed Patient A’s eyes for pallor, which he had not mentioned in his notes of the consultation or in his account to the Medical Council.

17. [38]

    Dr Morsingh did not challenge Patient A’s credibility. However, he submitted that aspects of her account were unreliable, particularly in relation to the conduct that was the subject of Particulars 1 and 2. As I noted above, Dr Morsingh submitted that Patient A had experienced a “flashback” during the November 2018 Consultation which was triggered by memories of a past sexual assault. He relied in this regard on an expert report from a psychiatrist, Dr Olav Nielssen.

18. [39]

    Patient A was cross-examined in the Tribunal proceedings. The Tribunal described her evidence as consistent with her complaint: Stage 1 Decision [13]. Counsel for Dr Morsingh put to Patient A that the physical examination took place in a chair and that she was never invited to lie on the examination bed. She strongly denied both propositions. Counsel for Dr Morsingh also showed Patient A photographs of Dr Morsingh’s examination room which were taken shortly after the November 2018 Consultation. Patient A said that the bed shown in the photographs was not the bed in the room at the time of the November 2018 Consultation. Her evidence was that the bed was away from the wall and was not a fixed structure but was movable.

19. [40]

    Dr Morsingh was also cross-examined. He agreed that, in hindsight, at the time of the November 2018 Consultation the acrimonious process of separating from his wife in late 2018 affected his thinking to a certain degree and caused him to act in a way that was out of character when he was performing his work. He accepted that trigeminal neuralgia was a significant diagnosis and that, again with hindsight, the symptoms that Patient A described were not consistent with it. Although Dr Morsingh initially agreed that he did not perform a differential diagnosis, he subsequently relied on his notes as supporting that he had done so. He relied on references to “trismus” and “teeth-clenching” in the additional entry he made in Patient A’s records on 30 November 2018. Dr Morsingh accepted that he was not specific with Patient A about his thought processes in this regard, and that he had not said anything about this during the section 150 hearing.

20. [41]

    In relation to his physical examination of Patient A, Dr Morsingh disavowed the evidence he gave to the Medical Council that part of his examination (of the side of Patient A’s neck, the trapezius, and the back of her neck) was unrelated to the complaint she presented with on the day. He told the Tribunal that the examination he conducted of Patient A’s neck and shoulders was part of his assessment for trigeminal neuralgia. Dr Morsingh denied that he had touched Patient A’s breasts and while doing so made the comment that was the subject of Particular 2. He denied that he touched Patient A’s breasts at any other stage during the consultation, or that Patient A told him to stop at any stage during the examination. Dr Morsingh also denied that he made any comment about Patient A’s eyes being mesmerising. He said that he made a point about not noticing any pallor, but he accepted he had not included an observation to that effect in his examination notes or in his account of the examination to the Medical Council.

21. [42]

    As to the addendum that Dr Morsingh made to Patient A’s records the day after the November 2018 Consultation, Dr Morsingh had told the Medical Council that he was motivated to create the addendum to record having given Patient A the doTERRA oil. In cross-examination in the Tribunal, he was challenged about that explanation on the basis that he had added notes about matters other than the doTERRA oil. Dr Morsingh then said that the reason for the addendum was “there was a clinical aspect that I didn’t record, which was the clenching of the jaw and the spasm of the muscles”.

22. [43]

    Dr Nielssen was cross-examined on his opinion that high levels of distress can affect memory formation, and that it was possible that Patient A had “interpreted the remembered events as having occurred during that consultation”. He acknowledged that he had not examined Patient A and that he was expressing an opinion as to a possibility. Dr Nielssen also agreed that Patient A’s evidence that she did not dissociate indicated that she was conscious or cognisant of what was happening to her.

The Stage 1 Decision

1. [44]

   The Tribunal found that each of the allegations was proved and amounted respectively to unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. The Tribunal also found that Particulars 1 and 2 amounted to inappropriate conduct of a sexual nature that constituted professional misconduct: Stage 1 Decision [151].

2. [45]

   Of the particulars that remain in issue on the application for leave to appeal, Particular 1 alleged that Dr Morsingh had conducted a breast examination on Patient A in circumstances where there was an initial diagnosis of trigeminal neuralgia, the examination was not clinically indicated, its necessity was not explained, and consent was not obtained. The Tribunal recognised that whether it accepted this particular depended on whether the HCCC had established to the requisite standard that Patient A’s account of that part of the examination was true, noting Dr Morsingh’s contention that it was unreliable: Stage 1 Decision [48], [50].

3. [46]

   After summarising Dr Nielssen’s evidence and the concessions he made in cross-examination, the Tribunal rejected the “two theoretical possibilities” that Dr Nielssen had advanced. The first possibility was that “a person in high distress … might form an inaccurate memory on account of a misinterpretation of the events actually occurring”: Stage 1 Decision [62]. The Tribunal described Patient A’s memory of Dr Morsingh pressing on the top and side of her breasts as “clear and [forming] part of a coherent and cohesive narrative”: Stage 1 Decision [62]. It considered her confidence in this aspect of her account was consistent with:

   1. (1)

      the fact that “the sensation of having one’s breasts pressed very firmly is unlikely to be a misinterpretation”; and

   2. (2)

      Patient A’s selection, in the AHPRA Complaint form, of “minor psychological or emotional harm”, “minor physical harm” and “indecent assault and sexual harassment” as the types of harm she had suffered.

   3. (3)

      In other words, Patient A had “never claimed that the incident caused her high distress, though it did make her cry”: Stage 1 Decision [62]. Such distress as Patient A suffered was largely caused by Dr Morsingh touching her breasts on the first of the two occasions on which that occurred. Even then, Patient A had the presence of mind to think that she should assert herself and said “no, no, no, stop”: Stage 1 Decision [62].

4. [47]

   The second theoretical possibility that Dr Nielssen posited was that “Patient A might have had a flashback which caused her to conflate what was happening in the consultation with her previous experience with the Ayurvedic practitioner in India”: Stage 1 Decision [63]. Apart from the concessions Dr Nielssen made during the hearing, to which I have referred above, the Tribunal considered that there was “no evidence, and no reason to think, that Patient A suffers from post-traumatic stress disorder or from a personality disorder of any kind”: Stage 1 Decision [63]. The Tribunal accepted Patient A’s evidence that she protested and told Dr Morsingh to stop when he touched her breasts the first time, again noting that she had the presence of mind to protest in the moment.

5. [48]

   The Tribunal’s acceptance of Patient A’s evidence was consistent with its impressions of her as a witness. As the following paragraphs of the reasons are of some significance to Dr Morsingh’s arguments on the application for leave, I will set them out in full:

6. [49]

   In relation to Dr Morsingh’s denial of Patient A’s account, the Tribunal said the following at [67]:

7. [50]

   Particular 2 related to the comment that Dr Morsingh was alleged to have made as he touched the top of Patient A’s breasts. In finding the facts established, contrary to Dr Morsingh’s denial, the Tribunal preferred Patient A’s evidence for the reasons at [64]-[67] which I have extracted above: Stage 1 Decision [73]. The Tribunal described Patient A as clear in her evidence, both as to Dr Morsingh having made the comment and why it struck her, and as to his physical actions at the time.

8. [51]

   Particular 3 related to Dr Morsingh’s examination of Patient A’s neck and shoulders, which was alleged to be inappropriate in circumstances where he did not take a history of neck pain, explain why he needed to check for tenderness or obtain Patient A’s informed consent. In concluding that the facts had been established to the requisite standard of proof, the Tribunal again accepted Patient A’s evidence as to what occurred in preference to that of Dr Morsingh: Stage 1 Decision [81]. It also described Dr Morsingh’s purpose in touching Patient A’s neck and shoulders as having varied between the accounts he gave to the Medical Council and the Tribunal “to the point where we consider his evidence on this issue to be unreliable”: Stage 1 Decision [83].

9. [52]

   As to the part of Particular 5 that alleged that Dr Morsingh had made comments to Patient A about her eyes, the Tribunal again preferred Patient A’s evidence having regard to the consistency of her account: Stage 1 Decision [97]. In so far as Dr Morsingh told the Tribunal that he had commented on the absence of pallor in her eyes during the consultation, the Tribunal repeated that he had not referred to having made this observation in his written or oral evidence to the Medical Council: Stage 1 Decision [96].

10. [53]

    Particular 10 alleged that Dr Morsingh had hugged Patient A. As with the other particulars, the Tribunal preferred Patient A’s account, stating at Stage 1 Decision [120]:

11. [54]

    Particular 11 alleged that Dr Morsingh had engaged in inappropriate conduct of a sexual nature towards Patient A by reason of Particulars 1, 2, 5, 6, and 10, individually or in any combination. The Tribunal concluded that the touching of the top and sides of Patient A’s breasts was “wholly unnecessary as part of the consultation, regardless of whether the consultation related solely to Patient A’s presenting symptom of a burning sensation in her right cheek or whether, contrary to our findings, it related to the neck pain she had reported in 2012”. In its view, there was “no reason for Dr Morsingh to touch Patient A’s breasts other than for his own sexual gratification”, such that it constituted “conduct of a sexual nature towards Patient A”: Stage 1 Decision [124]. The Tribunal also found that the comment that was the subject of Particular 2 was conduct of a sexual nature, having regard to the circumstances. However, it was not persuaded to the requisite standard that the conduct that was the subject of Particulars 5, 6 and 10 was sexual, noting that the proposition was not put to Dr Morsingh in cross-examination: Stage 1 Decision [125].

12. [55]

    The Tribunal concluded that the conduct the subject of the Particulars constituted unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law, describing it as “obviously improper and unethical”, as well as constituting care which was “significantly below the standard reasonably expected of a medical practitioner”: Stage 1 Decision [130]. In concluding, in addition, that the conduct set out in Particulars 1 and 2, individually and collectively, constituted professional misconduct, the Tribunal expressed the view that “all patients, including young women, are entitled to expect, when they attend a medical appointment, that they will not be touched for purposes unconnected with medical diagnosis or treatment, particularly sexually”. The Tribunal acknowledged the “strong public interest” in upholding that expectation, and the further expectation that patients should be, and feel, safe in a medical practitioner’s room: Stage 1 Decision [146].

Application for leave to appeal the Stage 1 Decision

1. [56]

   The first ground of appeal in the draft Notice of Appeal contends that the Tribunal erred in finding that on the evidence, to the standard required by Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, Dr Morsingh engaged in the conduct comprising Particulars 1, 2, 5 and 10; and that, as a result, he had breached sexual or professional boundaries and was guilty of unsatisfactory professional conduct or professional misconduct. The second ground contends that the Tribunal erred in not making the converse findings.

2. [57]

   The focus of these grounds was the Tribunal’s acceptance of Patient A as a reliable witness as to what occurred during the November 2018 Consultation, and its corresponding rejection of Dr Morsingh’s account. In oral submissions, Senior Counsel for Dr Morsingh contended that Patient A’s account of how he carried out the physical examination was against the weight of the objective evidence. He relied in this respect on the configuration of the examination room, in particular the lack of space between the wall and the head of the examination bed, and the fact that the bed was fixed and not movable, contrary to Patient A’s evidence. These factors made it impossible, he submitted, for Dr Morsingh to have examined both sides of Patient A’s neck, and to have touched her breasts, while standing behind her as she alleged. In circumstances where Patient A’s account was, in this respect, “untenable”, the Tribunal engaged in speculation as to how the examination could have taken place if the bed was as depicted in the photographs.

3. [58]

   Dr Morsingh relied on two additional discrepancies between Patient A’s account and other evidence before the Tribunal as casting doubt on her reliability. The first was the evidence of Patient A’s mother that Patient A did not say anything to her about Dr Morsingh touching the sides of her breasts. The second was the absence from the COPS entry of Patient A telling the police that Dr Morsingh had hugged her.

4. [59]

   The Tribunal addressed each of the matters to which Dr Morsingh now calls attention as telling against acceptance of Patient A’s account, in a manner that is not demonstrative of error:

   1. (1)

      In relation to the bed, the Tribunal accepted that Patient A misremembered the nature of the bed: J [64]. At the same time, it noted that Patient A was only asked about the bed for the first time in cross-examination, by which time two years had passed since the November 2018 Consultation and moveable beds were in all of the consultation rooms at the Centre (at the time of the November 2018 Consultation such beds were used in some of the rooms). The Tribunal also rejected that it was physically impossible for Dr Morsingh to have placed his hands inside the front of Patient A’s top whilst standing behind her in circumstances where (as it accepted) the bed was as depicted in the photographs: Stage 1 Decision [65]. The Tribunal described this action as “clearly possible”, noting, for example, that “the patient’s head would not be right at the edge of the top of the bed”: Stage 1 Decision [65].

   2. (2)

      The Tribunal considered that the difference in the accounts of Patient A and her mother was attributable to “the natural imprecision of such conversations”: Stage 1 Decision [66].

   3. (3)

      As to the COPS entry, the Tribunal attributed the difference to “less than perfect attention being paid to the complaint as it was being recorded”: Stage 1 Decision [66].

5. [60]

   The Tribunal stated that Patient A’s misremembering of the bed did not “in any way [reduce] the reliability of her evidence with respect to what she experienced in the consultation”: Stage 1 Decision [65]. Its comment in this regard highlights the extent to which its findings about what occurred during the November 2018 Consultation were the product of the positive view it formed of Patient A as a witness and the adverse view it formed of Dr Morsingh. His challenge to Patient A’s account by reference to the limited matters above does not engage with the broader evaluative task in which the Tribunal was engaged, confronted as it was with the diametrically opposed accounts of Patient A and Dr Morsingh, in respect to some matters, although in other respects Patient A’s account was unchallenged. As the HCCC submitted, it would not follow from those matters that the Tribunal’s acceptance of Patient A’s account was “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [55] and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [28]; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [49]-[50] per Payne JA.

6. [61]

   Dr Morsingh also complains about the adverse view the Tribunal formed of his credibility. Senior Counsel for Dr Morsingh took the Court in this respect to a series of passages in the transcript of the Tribunal hearing which he submitted formed the basis of the Tribunal’s assessment. The purpose of the exercise was to demonstrate that these passages did not support the Tribunal’s characterisation of his evidence at [67] of the Stage 1 Decision as variously involving endeavours not to answer questions directly, frequent interruptions to those questioning him, seeking to lecture, and being evasive and distracting. In my view, the exercise served only to highlight the difficulties facing an appellate court on a rehearing of the nature identified in the cases to which I have just referred.

7. [62]

   Senior Counsel for Dr Morsingh also relied on aspects of his evidence during the section 150 hearing, which he alleged the Tribunal misunderstood or mischaracterised. First, he contended that the example the Tribunal provided for its finding at [67] of the Stage 1 Decision, that Dr Morsingh explained his actions differently from time to time, rested on a misunderstanding of his evidence. The example related to the evidence he respectively gave to the Medical Council and the Tribunal regarding his creation of an additional entry in Patient A’s records the day after the November 2018 Consultation. It was well open to the Tribunal to form the view that the reason Dr Morsingh gave the Medical Council for making that entry (to record his provision of a sample of the doTERRA oils to Patient A) differed from the reason he gave the Tribunal (to record a clinical aspect of the examination).

8. [63]

   Senior Counsel next complained about the Tribunal’s reliance, in finding that Dr Morsingh made the comments about Patient A’s eyes that were the subject of Particular 5, on him not saying anything to the Medical Council about observing her eyes for pallor: Stage 1 Decision [96]. He took issue with this description on the basis that the Medical Council did not ask him any questions during the section 150 hearing that would have elicited this information. However, as the HCCC submitted, the transcript of the section 150 hearing indicates that the Medical Council sought to obtain Dr Morsingh’s account of what occurred in a manner that did not seek to confine or direct his answers. Further, and in any event, what occurred during the section 150 hearing does not explain the absence of any information from the written response to Patient A’s complaint that was provided to the Medical Council on his behalf, on which the Tribunal also relied in [96].

9. [64]

   The final issue Dr Morsingh took up in this respect related to an aspect of the November 2018 Consultation that was the subject of Particular 3. That particular alleged that Dr Morsingh conducted an inappropriate examination of Patient A’s neck and shoulders, in circumstances where he had not: (a) taken a history of neck pain; (b) explained why he was examining that area; or (c) obtained informed consent: Stage 1 Decision [75]. As to the sub-paragraphs in the particular, the omission in the first was common ground: Stage 1 Decision [82]. As to the second and third, the Tribunal’s findings rested primarily on accepting Patient A’s account of the examination and rejecting Dr Morsingh’s account that Patient A was sitting on a chair and implicitly consented to the neck and shoulder examination by nodding her head forward to facilitate it: Stage 1 Decision [81]. I have already addressed the reasons why Dr Morsingh has not made good his challenge to the Tribunal’s acceptance of Patient A’s account.

10. [65]

    The focus of Dr Morsingh’s submissions related to the finding that his evidence on this issue changed between the section 150 hearing and the Tribunal hearing. Senior Counsel for Dr Morsingh contended in this regard that the Tribunal misunderstood the effect of some of his evidence in the section 150 hearing. I do not accept that contention. In his evidence to the Tribunal, Dr Morsingh said that he examined Patient A’s neck and shoulders because he was considering a differential diagnosis to trigeminal neuralgia, namely, that the sensation was cervicogenic in origin. The Tribunal correctly observed that Dr Morsingh sought to align his evidence in this respect with that of Associate Professor Clyne. In a passage of the cross-examination of Associate Professor Clyne that Senior Counsel took the Court to, he observed, inter alia, that “problems in the neck can be expressed in, by, around, in the area of the trigeminal nerve”.

11. [66]

    A number of difficulties confronted Dr Morsingh in the attempted alignment of his evidence with that of Associate Professor Clyne, not least his evidence in the s 150 hearing. Specifically, Dr Morsingh told the Medical Council that he examined Patient A’s neck “to investigate possible neuralgia” (as opposed to investigating a possible alternative diagnosis), and his examination of the neck and shoulders related to a previous complaint Patient A had presented with and not the burning sensation in her cheek. The Tribunal referred to this difference in its reasons at [83] of the Stage 1 Decision. No error attends the inference it drew from this difference, that “Dr Morsingh’s account of his purpose in touching Patient A’s neck and shoulders has varied over his accounts to the point where we consider his evidence on this issue to be unreliable”.

12. [67]

    As with his complaint regarding the Tribunal’s acceptance of Patient A’s account, Dr Morsingh has sought to disaggregate the Tribunal’s adverse impression of him, relying on the above matters as “relatively unimportant points” from which to make a substantial credit finding. For the reasons I have outlined above, the disaggregation does not reflect the nature of the Tribunal’s task when it came to evaluating the evidence of Dr Morsingh, or the role of this Court in reviewing the findings which were the product of that task.

13. [68]

    Ground 3 of the draft Notice of Appeal is in the following terms:

14. [69]

    This ground was not the subject of oral submissions, and there are no written submissions which address it expressly. One reading of the ground is that it rests on establishing error in the Tribunal’s findings as to the underlying conduct. It would follow from such error that the Tribunal should not have found that the conduct constituted unsatisfactory conduct of sufficient seriousness to constitute professional misconduct. If this is the proper characterisation of the ground, for the reasons I have addressed above it must fail.

15. [70]

    Another reading of the ground is that it proceeds on the basis that the findings regarding the conduct that is the subject of the identified particulars remain, and takes issue with the conclusion that they were of sufficient seriousness to constitute professional misconduct. So characterised, the ground must also fail. The Tribunal’s conclusion of professional misconduct rested on the conduct set out in Particulars 1 and 2. It followed from that conclusion that “the conduct set out in all of the particulars to Complaint 1, taken together, constitute professional misconduct”: Stage 1 Decision [148]. There was no separate finding relevant to the particulars identified in proposed Ground 3.

16. [71]

    It is apparent from what I have set out above that Dr Morsingh’s proposed grounds of appeal regarding the Stage 1 Decision do not raise any arguable error on the part of the Tribunal or point of principle. Accordingly, I would refuse leave to appeal the Stage 1 Decision.

The Stage 2 Decision

1. [72]

   On 2 March 2022, the Tribunal made an order cancelling Dr Morsingh’s registration pursuant to s 149C(1)(b) of the National Law. The Tribunal also imposed a non-review period of two years and prohibited Dr Morsingh from providing any health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW) until such time as he was a registered health practitioner, pursuant to s 149C(5) of the National Law.

2. [73]

   The HCCC did not lead any additional evidence in relation to the Stage 2 Decision. Dr Morsingh relied on evidence from a psychologist, Mr Goonniah (which the Tribunal misspells in the Stage 2 Decision as “Gooniah”), and Dr Girgis, a general practitioner and Dr Morsingh’s supervisor in relation to his compliance with the conditions on his registration that the Medical Council had imposed.

3. [74]

   In his report, Mr Goonniah expressed the opinion that Dr Morsingh was suffering from an adjustment disorder at the time of his report and the November 2018 Consultation. However, he accepted in cross-examination that he was not an objective expert witness, for reasons which included that he used to work at the same practice as Dr Morsingh and received patient referrals from him. The Tribunal referred to this in [27] of the Stage 2 Decision and concluded that Mr Goonniah’s evidence was of “little assistance”: the evidence was “coloured by his long association with Dr Morsingh” and his assumption of “the role of an advocate rather than an objective expert witness”: Stage 2 Decision [30]-[31].

4. [75]

   Dr Girgis gave evidence of perceived improvements in Dr Morsingh’s understanding of patient management, clinical examination standards and professional and sexual boundaries: Stage 2 Decision [34]-[35]. The Tribunal noted the following extract from Dr Girgis’ cross-examination at [40] of the Stage 2 Decision:

5. [76]

   The Tribunal ultimately concluded that Dr Morsingh had used his consultation with Patient A to “indulge his own social and sexual inclinations” and found that the circumstances were sufficiently serious to justify cancellation of registration: Stage 2 Decision [56]-[57]. The circumstances to which it referred in this regard included:

   1. (1)

      the incorrect diagnosis of trigeminal neuralgia and the fact that rather than take the steps that a competent practitioner would be expected to take following such a diagnosis, Dr Morsingh conducted a physical examination which did not seem to relate to his working diagnosis without first obtaining consent or providing a cogent explanation: Stage 2 Decision [51]-[52].

   2. (2)

      the breast examination of Patient A, and Dr Morsingh resuming his touching of Patient A notwithstanding her “wealth of tears”: Stage 2 Decision [53]; and

   3. (3)

      the provision of a bottle of aromatherapy oil following his examination and encouraging her to purchase such oils through a website from which his wife would earn a commission, without providing any evidence of the therapeutic benefits of such oils for the treatment of Patient A’s symptoms: Stage 2 Decision [54].

6. [77]

   The Tribunal stated that such factors “alone” made Dr Morsingh’s actions “sufficiently serious to justify suspension or cancellation of his registration as a medical practitioner”: Stage 2 Decision [57]. In addition, the Tribunal noted that rather than admit the conduct and address the reasons for it, Dr Morsingh had sought to discredit Patient A: Stage 2 Decision [59]-[60]. The Tribunal stated that it could not be satisfied that a practitioner who was persistently untruthful about matters that are centrally relevant to the complaints, and persistently sought to undermine the victim’s truthful account of those matters, was capable of acting with integrity and observing the high ethical standards that apply to the medical profession, or that they are a suitable repository of trust and confidence. It considered that such circumstances created a greater need for specific and general deterrence (Stage 2 Decision [65]-[66]), noting that Dr Morsingh had not admitted several of the allegations including as to sexual touching: Stage 2 Decision [67].

7. [78]

   The Tribunal acknowledged Mr Goonniah’s diagnosis but considered that the link between Dr Morsingh’s adjustment disorder and his misconduct was not clearly articulated. Accordingly, the Tribunal derived no assurance from Mr Goonniah’s report that the underlying causes of his misconduct were being addressed: Stage 2 Decision [68]. As to Dr Girgis, the Tribunal acknowledged and accepted his evidence regarding his instruction to Dr Morsingh about professional and sexual boundaries and the improved understanding of these issues. However, the Tribunal found it “very surprising that a general practitioner of Dr Morsingh’s years of practice should need instruction in these basic ethical considerations”: Stage 2 Decision [70].

8. [79]

   In response to the list of cases on which Dr Morsingh relied for the purposes of comparison, the Tribunal did not consider any of them was on all fours with his case: Stage 2 Decision [72]. Although the impugned conduct related to a single consultation over the course of many years of practice, Dr Morsingh had not addressed the issues in a constructive way, and the Tribunal’s paramount consideration had to be the protection of the health and safety of the public: Stage 2 Decision [73]. Dr Morsingh had not apologised for his behaviour, “much of which he has not acknowledged”, and he had not expressed any remorse or contrition: Stage 2 Decision [76]. The Tribunal expressed its conclusion regarding Dr Morsingh’s registration at [77]-[78] of the Stage 2 Decision:

Application for leave to appeal the Stage 2 Decision

1. [80]

   As I noted at the outset of these reasons, Dr Morsingh purported to appeal the Stage 2 Decision as of right. Ground 2 of the Notice of Appeal (which I will treat as a proposed ground) contends that the Tribunal erred in the exercise of its discretion in ordering the cancellation of Dr Morsingh’s registration. By proposed ground 3, Dr Morsingh contends that the Tribunal should have found that his registration could remain on foot, subject to the conditions that the Medical Council had imposed pursuant to s 150 of the National Law.

2. [81]

   In written submissions filed on 12 April 2022, Dr Morsingh contended that the protective orders rest on findings in the Stage 1 Decision which were erroneous. For the reasons I have set out above in relation to the Stage 1 Decision, there is no substance in this contention.

3. [82]

   The second error Dr Morsingh alleged, which was also addressed orally, relied on the Tribunal refusing the HCCC’s application for interim relief. By way of background, in advance of the hearing that led to the Stage 2 Decision, the HCCC had applied for an interim suspension of Dr Morsingh’s registration, pursuant to s 165L(3) of the National Law. The Tribunal, constituted by the Deputy President, refused that interim relief: Health Care Complaints Commission v Morsingh (No 2) [2021] NSWCATOD 31 (the “Interlocutory Decision”).

4. [83]

   Dr Morsingh submitted that the circumstances that the Tribunal considered when it ordered the cancellation of his registration were the same, if not more favourable, to him than the circumstances the Tribunal had considered when it refused to impose an interim suspension order. It followed, he submitted, that the objective of protecting the health and safety of the public was achieved by permitting him to continue practising subject to the restrictions imposed by the Medical Council, and the Tribunal’s conclusion to the contrary was unreasonable.

5. [84]

   There are a number of difficulties with this allegation of error. First, for the purposes of the Stage 1 and Stage 2 Decisions the Tribunal was constituted by four members, only one of whom made the decision regarding interim relief. Second, as the Tribunal emphasised in declining to order that Dr Morsingh’s registration be suspended on an interim basis, that decision did not bind the Tribunal as to the final orders. Among other reasons, at the stage of the application for interim relief Dr Morsingh had not yet had an opportunity to provide detailed evidence either as to factors personal to him which might have had an impact upon his conduct at the relevant time, or to the surrounding circumstances. Nor had he had an opportunity to provide evidence of any measures he may have taken to reduce the possibility of the recurrence of such conduct. The Tribunal continued at [34]:

6. [85]

   Third, the Tribunal’s decision on interim relief was made at a time when Dr Morsingh’s registration was subject to conditions that the Medical Council had imposed under s 150 of the National Law, which included that he was not to consult, examine, treat or perform any procedure on any female aged 12 years and above. One of the matters the Tribunal was required to consider was whether it was satisfied that it was appropriate to suspend Dr Morsingh’s registration “for the protection of the health or safety of any person or persons … or the action is otherwise in the public interest”: s 165L(3)(c) of the National Law. In light of the conditions to which his registration was subject, the Tribunal was not satisfied that an interim suspension of his registration was appropriate for the health and safety of any person(s): Interlocutory Decision [44]. The Tribunal was therefore not satisfied that the interim suspension of Dr Morsingh’s registration “for the next couple of months” was in the public interest: Interlocutory Decision [57].

7. [86]

   The Tribunal was careful to emphasise in the interim decision that its conclusions did not, and should not be taken to, foreshadow the decision on the final disciplinary orders: Interlocutory Decision [45]; [57]. That emphasis reflected that a decision on the suspension or cancellation of a registered health practitioner’s registration under s 149C(1) of the National Law may bring to account a range of factors in seeking to give effect to the directive in s 3A of the National Law. Section 3A provides that in the exercise of functions under a NSW provision (which relevantly includes the provisions in Part 8 for the making and dealing with complaints) “the protection of the health and safety of the public must be the paramount consideration”. As Meagher JA said of the exercise of disciplinary powers in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], which Gleeson JA quoted with approval in Hampshire v Health Care Complaints Commission [2021] NSWCA 283 at [79]:

8. [87]

   In the present case, for example, the Tribunal emphasised in the Stage 2 Decision at [78] the need to denounce the crossing of professional and sexual boundaries and to maintain public confidence in the medical profession.

9. [88]

   In supplementary written submissions dated 6 May 2022, and in oral submissions advanced on his behalf, Dr Morsingh submitted that the cancellation of his registration was also unreasonable by comparison with three earlier decisions. The Tribunal referred to the table of cases that Dr Morsingh had provided which included these decisions but considered that none of them was “on all fours” with the present case: Stage 2 Decision [72]. In reaching that conclusion, the Tribunal reminded itself of the need for caution in conducting such comparative exercises, by reference to the reasons of Barrett and Macfarlan JJA (with whom Tobias AJA agreed) in Lee v Health Care Complaints Commission [2010] NSWCA 80 at [28]-[31].

10. [89]

    A review of the decisions on which Dr Morsingh relied bears out the need for such caution and does not demonstrate unreasonableness in the orders the Tribunal made. Significantly, two of the three decisions did not involve an allegation of professional misconduct: see Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [4] and the decision of the Professional Standards Committee in relation to Dr Anthony Fong, 22 November 2019, at [4]-[5]. More significantly, none of the cases involved a finding that the practitioner engaged in the impugned conduct for the purpose of sexual gratification.

11. [90]

    The Tribunal’s reasons in Health Care Complaints Commission v He [2020] NSWCATOD 50 demonstrate the significance of that finding on the question of appropriate protective orders. The Tribunal found that Dr He had engaged in professional misconduct. In considering the orders it should make, one of the factors it emphasised at [165] was the absence of sexual misconduct:

12. [91]

    The further error that Dr Morsingh alleges with respect to the Stage 2 Decision is that the Tribunal ignored the evidence of Mr Goonniah and Dr Girgis.

13. [92]

    Ignoring or overlooking apparently credible and relevant information, which might support an essential step in the reasoning process of a tribunal in respect of a claim, if the claim were to be upheld, may constitute a constructive failure to exercise the function conferred on the tribunal: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [98], [112] per Robertson J; Torbey Investments Pty Ltd v Ferrara [2017] NSWCA 9 at [65] per Basten JA (McColl and Simpson JJA agreeing); Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [103]-[105] per Payne JA (Basten and Leeming JJA agreeing). Dr Morsingh’s submissions do not amount to an allegation of error of that nature.

14. [93]

    In relation to Mr Goonniah, Dr Morsingh’s submissions related to what Senior Counsel described as an important paragraph of his report. In [29] of the Stage 2 Decision, the Tribunal stated:

15. [94]

    In Mr Goonniah’s report, the final paragraph in the above extract was labelled “8.5”. In [8.4] of his report, which the Tribunal indicated with an ellipsis between [8.3] and [8.4] (as numbered above), he said the following:

16. [95]

    Senior Counsel for Dr Morsingh submitted that by reason of its omission of [8.4] the Tribunal failed to consider what he described as a significant aspect of Mr Goonniah’s opinion. I do not accept that [8.4] of Mr Goonniah’s report is properly so described. The first sentence of [8.4] is a statement of Mr Goonniah’s understanding about a factual matter. The second sentence involves an opinion outside Mr Goonniah’s field of expertise about what protective orders are appropriate, which he expresses not on the basis of the Tribunal’s findings but rather by reference to “any concerns raised by the HCCC”.

17. [96]

    In any event, in the paragraph that immediately followed the extract from Mr Goonniah’s report, the Tribunal was critical of Mr Goonniah’s evidence on grounds which included that “[s]ome of his evidence was directed towards persuading the Tribunal to make protective orders which serve the interests of Dr Morsingh and his family”: Stage 2 Decision [30]. Mr Goonniah addressed the issue of what level of protective order was appropriate in [8.4]. The Tribunal also referred later in its reasons to what it described as Mr Goonniah’s “assertion” of unawareness of any further complaints, which is obviously a reference to the first sentence of [8.4]: Stage 2 Decision [71].

18. [97]

    As to Dr Girgis’ evidence, Dr Morsingh did not allege a failure to consider any particular part thereof. Rather, Dr Morsingh alleged error in terms of how the Tribunal dealt with this evidence in the Stage 2 Decision. He relied in this regard on [70] of the Tribunal’s reasons:

19. [98]

    Senior Counsel for Dr Morsingh submitted that the Tribunal’s statement that it had no basis on which it could be confident that Dr Girgis’ efforts were bringing about a change in Dr Morsingh’s behaviour was erroneous. As developed in oral submissions, the allegation of error rested on the absence of an explanation for that lack of confidence, in the face of Dr Girgis’ evidence regarding the improvements Dr Morsingh had made. Senior Counsel also relied on the absence of any further incidents since the Medical Council imposed conditions on Dr Morsingh’s registration. However, when the paragraph is read as a whole, it discloses that the Tribunal’s lack of confidence was, at least in part, attributable to Dr Girgis’ evidence. The Tribunal was very surprised that Dr Morsingh, who was a practitioner of many years of experience, should require instruction in “basic ethical considerations”.

20. [99]

    The Tribunal otherwise addressed the absence of further incidents in the Stage 2 Decision at [71], making an unexceptional assessment of the weight it should accord to the evidence of Dr Girgis and Mr Goonniah on that subject in circumstances where Dr Morsingh was practising “in the knowledge that protective orders are being considered”. No error attends that assessment, let alone one that would warrant the intervention of this Court.

21. [100]

    Dr Morsingh has not established that the Stage 2 Decision discloses error on the part of the Tribunal in the exercise of the discretion to cancel his registration. Accordingly, while I would grant leave to appeal from the Stage 2 Decision, I would dismiss the appeal.

Conclusion

1. [101]

   I have had the advantage of reading the draft judgment of White JA. I agree with the correction his Honour proposes (at [14]) in relation to order 2 made by the Tribunal on 2 March 2022, and with the balance of his Honour’s reasons.

2. [102]

   I propose the following orders:

   1. (1)

      The summons seeking leave to appeal the decision of the Civil and Administrative Tribunal of New South Wales in Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 is dismissed.

   2. (2)

      Grant leave to appeal the decision of the Civil and Administrative Tribunal of New South Wales in Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28.

   3. (3)

      Treat the notice of appeal filed on 13 April 2022 in Proceedings No 2022/00106590 as the notice of appeal for which leave has been granted.

   4. (4)

      Vary order 2 of the orders of the Civil and Administrative Tribunal of New South Wales in Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28 by deleting “s 149C(5)” and instead inserting “s 149C(7)”.

   5. (5)

      Otherwise dismiss the appeal.

   6. (6)

      The applicant is to pay the respondent’s costs of both proceedings in this Court.

3. [103]

   BASTEN AJA: I agree with the orders proposed by Mitchelmore JA, and with her reasons.