Health Care Complaints Commission v Mathad [2018] NSWCATOD 97

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mathad [2018] NSWCATOD 97 Hearing dates: 11 April 2018 Date of orders: 11 April 2018 Decision date: 11 April 2018 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr G Albert, Senior Member Dr K Arnold, Senior Member C Gardiner, General Member Decision: 1. Pending further order the registration of Dr Anil Kotilingaiah Mathad is suspended pursuant to s 165L (3) of the Health Practitioner Regulation National Law. 2. The Health Care Complaints Commission is to give to the other party: written submissions in respect of Stage 2 on or before 20 April 2018. 3. Anil Kotilingaiah Mathad is to give to the other party any written submissions in respect of Stage 2 on or before 4 May 2018. 4. The Health Care Complaints Commission is to give to the other party the following material on or before 25 May 208: submissions in reply (if any). 5. All parties are to give to the Tribunal 5 copies of all their written submissions on or before 25 May 2018. 6. The Stage 2 hearing is to be heard "on the papers". Legislation Cited: Health Practitioner Regulation National Law Category: Procedural and other rulings Parties: Health Care Complaints Commission (Applicant) Dr Anil Kotilingaiah Mathad (Respondent) Representation: Counsel: R Mathur (Applicant) P Aitken (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2017/00217053 Publication restriction: On 29 November 2017 an order was made under cl 7 of Schedule 5D of the Health Practitioner Regulation National Law prohibiting the publication of the name of the Patients and Persons set out in the Schedule to the Complaint.

EX TEMPORE REASONS FOR DECISION 1. HER HONOUR: This matter was listed before the Tribunal today to hear the second stage of the proceedings brought by the Health Care Complaints Commissioner against the practitioner. However, on 22 March 2018, the Health Care Complaints Commission filed an application seeking that the practitioner's registration be suspended pursuant to s 165L (3) of the Health Practitioner Regulation National Law. 2. As the practitioner has advised his solicitor he suffered chest pains requiring his attendance at an emergency department of the hospital this morning, he is not present before the Tribunal, although we note it was his intention to appear. In these circumstances we have determined to hear the interlocutory application and to deal with the Stage 2 hearing on the papers after receipt of written submissions. 3. Mr Aitkin counsel for the practitioner opposes the interlocutory application brought by the HCCC for suspension of the practitioner's registration pending the determination of the stage 2 proceedings. 4. Our power to make the orders sought, as I have indicated, are set out in s 165L of the Health Practitioner Regulation National Law. Subsection (1) of that section provides that: The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand. 1. Subsection (3) on which this application relies is in the following terms: "The The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's or student's registration if: (a) it has found the subject-matter of the complaint against the practitioner or student to have been proved; and (b) the complaint has not yet been finally disposed of; and (c) it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest. 1. In support of this application Ms Mathur of counsel, who appears for the Health Care Complaints Commission, made a number of submissions. We adopt all of her submissions, but I will refer briefly to some of those submissions. Ms Mathur noted although it was correct to say the practitioner had practiced without incident that the landscape had changed because of the Tribunal's findings. These findings include the fact we found all particulars of the complaints, except two minor particulars, established. Ms Mathur also refers to our credit findings in respect of the patient witnesses and persons E and F. In particular, Ms Mathur referred to our findings in the decision, at [194] of our reasons.- 2. In that paragraph we said: We find the practitioner's conduct in respect of Person F was significantly below the standard of a practitioner of an equivalent level of training and experience. It was also highly improper. The texting and behaviour exhibited by the practitioner to this minor was a gross abuse of his power. It was behaviour perpetuated on a vulnerable minor undergoing a traineeship. We find the practitioner relentlessly pressured Person F with frequent text messages endeavouring to persuade her to engage in photographic sessions when it was very clear she did not want to do so. This was deplorable conduct by a 38 year old professional who either completely lacked insight or integrity or pursued Person F knowingly with sexual intent. His invitations to Person F to go to the movies, or go out with him to the zoo or a nightclub were likewise inappropriate. 1. Ms Mathur also refers to our findings in relation to the practitioner's use and abuse of power. She submits that notwithstanding the references provided to the Tribunal and accepted into evidence without objection today that the practitioner's complete lack of insight into his conduct supports the orders sought. 2. In opposing the application Mr Aitkin points out the particulars in relation to person F were admitted, and we certainly note the text messages were admitted. He submits that we should give weight to the references provided noting these include two young persons from the practitioner's workplace. 3. We are satisfied that the complaints established against the practitioner are at a very serious level. 4. We have found the practitioner is guilty of professional misconduct thus satisfying the criteria in s 165L(3)(a). It is not in dispute that the complaints have not been finally disposed of. Our focus has been on s 165L(3) (c). We are not satisfied the practitioner has demonstrated any meaningful insight into his conduct since 2004. We make this finding noting that the referee's evidence is limited to fellow employee's observations in the workplace, and although these have some weight they do not and cannot touch upon the practitioner's own insight for his actions. 5. While we accept the present chaperone conditions provide a measure of protection against inappropriate conduct in the practice in relation to the health and safety of patients of that practice we also have regard to the wider public interest. Women patients are entitled to place significant trust in a doctor who is carrying out an intimate examination. To maintain that level of trust in the profession is a matter of public importance. 6. Given our serious findings about the practitioner's conduct we could not be satisfied that the trust the public are entitled to expect will be evident unless the practitioner is suspended pending our final determination and accordingly we propose to make the orders sought in order 1 of the application for a stay or an interim order filed 22 March 2018.

ORDERS 1. Pending further order the registration of Dr Anil Kotilingaiah Mathad is suspended pursuant to s 165L (3) of the Health Practitioner Regulation National Law. 2. The Health Care Complaints Commission is to give to the other party: written submissions in respect of Stage 2 on or before 20 April 2018. 3. Anil Kotilingaiah Mathad is to give to the other party any written submissions in respect of Stage 2 on or before 4 May 2018. 4. The Health Care Complaints Commission is to give to the other party the following material on or before 25 May 208: submissions in reply (if any). 5. All parties are to give to the Tribunal 5 copies of all their written submissions on or before 25 May 2018. 6. The Stage 2 hearing is to be heard "on the papers".

********** 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: 21 June 2018