BJC v Children's Guardian

Evidence

1. The respondent and the applicant have both placed material before the Tribunal. The applicant gave oral evidence before the proceedings.
2. Details of the relevant evidence are provided below.

Risk Assessment Report by the Children's Guardian dated 11 March 2014

1. A risk assessment was prepared by the respondent on 11 March 2014 recommending that the applicant be barred from being granted a working with children check clearance. This recommendation was endorsed by a panel review of the Office of the Children's Guardian on 25 March 2014.
2. The risk assessment was triggered by charges laid against BJC in 2005. They consisted of one count of an act of indecency without consent and one count of sexual intercourse without consent. Both charges were dismissed in 2007 on the basis that no evidence was offered by the prosecution.
3. The circumstances leading to the charges are set out in the risk assessment and can be summarised as follows.
4. On 2 December 2005, the applicant was working as a doctor in a hospital in Australia. A 19-year-old woman attended the hospital at 3am with severe vomiting and diarrhoea. The woman, who suffered from inflamed bowel disease, was accompanied by her mother. The applicant attended to the patient and attempted to take a medical history from her. The patient later stated that she had problems providing her medical history given communication difficulties with the applicant, for whom English is not his first language. According to the patient, the applicant cupped her breasts whilst listening to her chest. The applicant then conducted an anal inspection on her. In the risk assessment the circumstances of the inspection are described in the following way: The applicant started to examine the victim's rectum. The victim was not surprised by the applicant's request to perform this examination as she had been exposed to this type of examination previously by her specialist. However she was anxious about having this done, due to the pain it can cause….She described the examination as the defendant feeling around her anus with his fingers. The applicant moved his fingers away from her anus and began to examine the skin between her anus and her vagina, the perineum. The applicant moved his fingers to the entrance of her vagina. This made the victim 'jump' as she was not expecting her vagina to be touched. The applicant asked her if the examination hurt or whether she was in pain. The victim said 'no.' The applicant moved his fingers back towards the victim's anus and he stopped examining her momentarily and so the victim began to compose herself. The applicant again moved his fingers towards the opening of her vagina and slightly inserted his fingers into the victim's vagina. This made her 'jump' forward on the bed.
5. The matter was reported to the police and charges of an act of indecency and sexual intercourse without consent were laid against the applicant. As noted, these charges were dismissed when no evidence was offered in support of them.
6. The risk assessment makes the following observation in this regard: 'Unfortunately it is not currently known why the case was dismissed, other than no evidence being available to offer. Clarity will be sought by the [Office of the Children's Guardian] via AFP.'
7. In its summary, the risk assessment states that 'the [Office of the Children's Guardian] are trying to clarify the reasons why the case was dismissed via communication with AFP (a records review officer is responsible for gaining this), despite this outstanding information the decision to bar is recommended.'
8. A further incident, set out in the risk assessment, is described as follows: On 21/10/07, the applicant picked up a female staff member's ID badge and 'touched her several times on the side and sat close to her invading her personal space.' The female staff member felt 'unsafe.' The applicant was cautioned in relation to his perceptions of others and his interaction with them as a consequence.

Risk Assessment Report by NSW Health dated 3 May 2012

1. An early risk assessment report prepared for the applicant on 3 May 2012 by NSW Health takes into account his employment history in Australia, the 2005 charges laid against him and their subsequent dismissal in addition to the 2007 incident in which the applicant touched a colleague and sat close to her.
2. As part of the assessment, the advice of a medical practitioner was sought in relation to the appropriateness of cupping a patient's breast as part of a chest examination and touching the vaginal area when checking for fissures or fistulas. The advice received stated that depending on the size of the patient's breasts, it is often necessary to move aside breast tissue to get closer to the chest wall and thus better hear sounds…Depending upon how this was achieved, it might be felt by the patient as 'cupping'.
3. The doctor noted that the applicant had stated that he explored the perineum to examine for a fistula given that he had identified an anal fissure. It is possible that he only touched the perineum (which is between the anus and vagina) but that the patient thought he touched her vagina…If the doctor was exploring the perineum under direct vision it is unlikely he accidentally entered the vagina, but the areas are close; he may have touched the vaginal area.'
4. On the basis of the information before him, the risk assessment report recommended that the applicant be cleared for the employment he is currently offered, subject to the applicant:

• being made subject (and consenting) to a structured supervision program including hospital chaperone attendance while examining and treating patients; and
• consenting to the necessary disclosures about his child related risk estimate and employment reference and reports being made to relevant senior [hospital] staff.

Statement by Dr Vanita Parekh, Staff Specialist Sexual Health and Assault Medicine

1. In her statement, Dr Parekh explains the differences between a fistula and a fissure: A fistula is an abnormal connection between two structures that are not normally connected. For example between the vagina and bowel. Fistulae may be caused by abnormal pathological process such as cancer, which disrupts the normal tissue planes and anatomy. Other pathological causes of fistulae between the vagina and the rectum are inflammatory bowel disease. A fissure is a linear breach in the skin, the causes are numerous, they may be part of an inflammatory process e.g. inflammatory bowel disease, as a result of injury.

Police record of interview on 15 December 2005 with complainant patient

1. In her record of interview, the patient stated that We talked [with the applicant] for about five minutes trying to make it clear what it was that I was in there for, that they had suspected Crohn's, it wasn't Crohn's disease, but I was diagnosed with Irritable Bowel Syndrome, to get that point across but also that I did have the fissures that I was dealing with as well…..I think me and mum didn't pronounce fissure right so I think he confused that with something else, which is a hard point to get across. …after I rolled over to the side of the bed he started examining, which was fine, he was just looking around in the rectal sort of area…the thing that started me I guess and first made me tense up on the bed was when he moved anywhere further down from around my bottom, like started going to just in between my bottom and my vagina area, just that it's never had to go down that far before, because as I said, they're looking at the actual anus and just around it to see the tears and whatnot, I've never had anyone go down that far before….I think he moved in between where the skin - just to the opening of the vagina.

Statement by the applicant dated 31 January 2006 in response to the complaint

1. On 31 January 2006, the applicant provided a statement in answer to the allegations made by the patient. In part, the statement reads as follows: [The patient] indicated to me that she had diarrhoea..and vomiting…She told me she had previous chronic diarrhoea which had been attended by a specialist gastroenterologist [who] had undertaken a colonoscopy and gastroscopy on April 2005. Reportedly he had indicated there was an anal fistula but no evidence of Crohn's disease at that time….In addition to her abdominal and bowel symptoms it was also noted she was using a Ventolin aerosol inhaler from time to time for her asthma. Given the history of asthma, I also examined her chest using a stethoscope in order to listen to her heart sound and lungs…This examination involved placing a stethoscope in a number of regions in proximity to the patient's breasts. I explained to the patient and her mother that I would need to conduct an examination of her rectal area because of her abdominal pain and in order to determine whether there was an anal fissure or fistula present. The patient consented to this examination. In relation to my examination of the buttocks and vaginal area I can indicate that: I was concerned because I thought she had mentioned an 'anal fistula' when initially taking the history. This is a more serious condition than an 'anal fissure' and can be a complicating factor in Crohn's disease (it should also be noted that the Nursing records indicated 'Bowel Fistula' as a known condition.) For this reason, while I was examining her rectal area, I also looked at the area between the anus and the vaginal opening to look for evidence of a fistula. At all times during my examination the patient remained in the left lateral position. At no time was the patient placed or moved to a dorsal position or any similar position with her legs apart. The examination did not involve any digital or instrumental penetration of the vagina or rectum. At the commencement of this examination I looked out to find a nurse who could assist and act as a chaperone but all of the available nurses appeared to be busy with the other patients. I decided to rely on the presence of the patient's mother as a chaperone, mainly so I could expedite this examination and not subject the patient and her mother to any necessary delay. I am surprised by this complaint and believe that at all times during my attendance I was acting in the best interests of this patient and conducted my examinations in a professional and appropriate manner. I am sorry that this patient has experienced discomfort and anxiety as a result of my examination. In future I will ensure that I always obtain appropriate assistance from other hospital staff to assist with this type of examination.

Statement by registered nurse

1. A statement by a registered nurse on duty at the time of the complainant's admission to the hospital reads in part as follows: At some time shortly after 6.00am, I entered the cubicle behind the curtains that contained [the patient] and her mother. [The patient] was crying and when I questioned her as to what was wrong, she replied that the doctor, a foreign darker skinned man had inappropriately touched her. [The patient] explained that she had been lying on her left side and that although the doctor said he was going to perform a rectal examination, he touched her further forward between her legs. I asked [the patient] what she meant, and she replied that she has had rectal examinations before, and this examination was not a rectal examination. She said the doctor had touched her on her vagina.

Statement by Dr Graham Magarry

1. Dr Magarry is a medical practitioner specialising in gastroenterology. In discussing examination procedures for fissures and fistula, he stated that: If conducting an examination for an anal fistula as opposed to anal fissures, it may be necessary to examine a wider area surrounding the anus. It would be unusual for a fistula to run into the vagina, but if examining for that, I would be guided by the patient's symptoms, such as complaining of faecal discharge from the vagina.

Psychological report by Dr Seidler

1. A psychological report by Dr Katie Seidler was prepared for the applicant on 16 October 2014.
2. The report sets out the applicant's childhood, educational and professional background.
3. In light of her consultation with the applicant and the documentation before her, Dr Seidler assessed him as posing a low risk of sexually abusive behaviour. In making this assessment, Dr Seidler listed the following issues as being protective against the applicant's risk of sexually abusive behaviour:

• he has apparently never been convicted of a sexual offence;
• he was reportedly notified for engaging in sexually abusive conduct on 2 occasions almost ten years ago;
• he does not present as inherently anti-social, denied a history of entrenched deviancy, hypersexuality or use of sex as an emotional coping strategy;
• he did not endorse attitudes consistent with sexual abuse nor did his endorse a history of notable social or interpersonal deficits;
• he has the experience of mature intimacy in a long-term marriage;
• he has no history of mental health or substance abuse, nor was he a victim of child abuse;
• he has participated meaningfully in the community and his lifestyle has been one of stability and prosociality.
• he is not psychopathic according to the Personality Checklist Revised (PCL-R).

1. Dr Seidler identified two factors considered to elevate the applicant's future risk, namely that there was psychological coercion present in the alleged sexually abusive situation given his role as a doctor; and that he denies any sexual misconduct during the alleged incidents.
2. In acknowledging the allegations made against the applicant, Dr Seidler found that he 'does not present with notable risks in relation to sexually abusive conduct.' She noted the applicant's recognition of the importance of careful risk management in his work generally as a medical practitioner. In particular, he reported that he should always use a chaperone for personal examinations as per hospital protocol. He was also cognisant of the importance of careful explanations being offered to clients that are clear and allow them to ask questions and feel as comfortable as possible with the process. He also recognised the need to practise in an appropriate matter, which would include not physically examining any part of the body that is not indicated in a diagnosis.

Other material contained on file

1. No material is held by the Department of Family and Community Services in relation to the applicant's minor children.
2. Other material contained on file deals with communication issues experienced by the applicant rather than any issues pertained to any risk he may pose to children. For this reason, little weight has been given to the material.

Oral evidence by the applicant

1. BJC gave evidence to the Tribunal that he qualified overseas as a medical practitioner in 1991. In 2005, he was working as a medical practitioner in a hospital in Australia.
2. In response to questions about allegations that BJC had taken a staff member's badge and invaded her personal space, he told the Tribunal that he couldn't remember the incident. He said that he does not usually invade other people's personal space.
3. In relation to the incident on 2 December 2005, he described the patient as stressed, nervous and difficult to understand. He told the Tribunal that whilst he had sought a nurse chaperone prior to examining the patient, when he couldn't find one, he decided that, in light of the presence of the patient's mother, it would be okay to proceed with the examination. Since this time, he has always ensured a chaperone is present prior to conducting similar examination on patients.
4. BJC confirmed that he has worked with children since the 2 December 2005 incident and that he has always adhered to hospital protocol in relation to the treatment of children and vulnerable persons.
5. He confirmed that he had not (digitally) penetrated the patient on 2 December 2005 and that the examination had taken, in all, approximately five minutes.
6. He reiterated the material contained in his statement, namely that he had examined the patient's perineum for caution in light of the confusion as to whether her complaint was for a fistula or a fissure. He had intended to seek a blood test for her but she discharged herself before he could do this. He denied examining the patient for his sexual gratification, stating that it was just in order to conduct a medical examination of her.
7. After hearing from BJC and after considering the material before the Tribunal, Ms Lowson advised the Children's Guardian was no longer submitting that the enabling order should not be granted.

Consideration of the evidence

1. The Tribunal "must consider" those factors set out in section 30 (1) of the Act in determining an application under Part 4 of the Act, which includes this application. In determining a risk assessment, the Children's Guardian "may consider" matters set out in section 15 (4) of the Act. Both subsections address the same considerations using slightly different language. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to consider both sections 30 (1) and section 15 (4) of the Act.
2. The evidence will be considered under each of the following subheadings. Each of the subheadings combines the considerations under section 15 and section 30 of the Act.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar

1. Charges brought against the applicant in 2005, namely one count of sexual intercourse without consent and one count of committing an act of indecency, were the trigger for a risk assessment by the Children's Guardian.
2. The charges themselves are serious, particularly given that the complainant was the applicant's patient. The applicant was not, however, convicted of the charges as no evidence was offered by the prosecution.
3. On the evidence before me, I am satisfied that in medically examining the patient, the applicant had no sexual intent. Rather, I am satisfied that the applicant examined the patient in a way that was medically appropriate in light of her clinical history and presentation.

The period of time since those offences or matters occurred and the conduct of the person since they occurred

1. The charges were laid in 2005. The applicant came to notice in 2007 when a complaint was made be a colleague that he had touched her on the side and sat close to her invading her personal space. I do not accept that this complaint discloses any risk to the safety of children by the applicant.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

1. The patient was 19 years old when the applicant examined her. Although not a child, she was vulnerable given that she was the applicant's patient.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

1. At the time of the examination, the patient was 19 years old and the applicant was 39 years old. According, there was a difference of age of 20 years.

Whether the person knew, or could reasonably have known that the victim was a child

1. The patient was not a child.

The person's present age.

1. The applicant is now 49 years old

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

1. The applicant does not have a criminal record. On the evidence, there have been no complaints made against him since 2007.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

1. On the evidence before me, I am satisfied that the applicant did not intend a sexual act on the patient. On the evidence, I am satisfied that the applicant simply performed those examinations on the patient that were appropriate in light of her presentation. The patient had a history of inflamed bowel disease and I accept the evidence that her mother advised that her daughter had an anal fistula or fissure. On this basis, it was appropriate that the applicant performed a rectal examination. Expert medical evidence provided by Dr Magarry and contained in the 2012 Risk Assessment Report by NSW Health confirms the appropriateness of such an examination in these circumstances. I am not satisfied that the applicant intentionally touched the patient's vagina in the course of the rectal examination.
2. In relation to the allegation that the applicant cupped the patient's breasts, I accept the applicant's evidence that in light of the patient's history of asthma, he was checking her heart and lungs, an examination which involved a proximity to her breasts. I am satisfied that any touching of her breasts was solely in order to listen to her heart and lungs and that there was no sexual intention behind this action.
3. In her finding that the applicant has a low risk of sexually abusive behaviour, Dr Seidler sets out the many issues that are protective against the applicant's risk of such behaviour and concludes that the applicant does not present with notable risks in relation to sexually abusive conduct.
4. On the basis of Dr Seidler's findings in conjunction with the other evidence before me, I am satisfied that there is little likelihood of any inappropriate conduct by the applicant either against adults or children.

Any other matters that the Children's Guardian considers necessary

1. Having heard the evidence at hearing, Ms Lowson for the Children's Guardian advised the Tribunal that the Children's Guardian was no longer submitting that the enabling order should not be granted.

Conclusion

1. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.
2. Having considered all the evidence before it and having taken into account those issues set out in s30(4), I am not satisfied that the applicant poses a real and appreciable risk to the safety of children.
3. On the evidence, I am satisfied that in examining his female patient on 2 December 2005, the applicant did not have a sexual motive. He was simply undertaking those examinations that were appropriate in light of the patient's medical history and presentation. In relation to the complaint made against him that he touched a colleague and sat too close to her, I am not satisfied that, in doing so, the applicant had no sexual intention towards his colleague. In his evidence before me, the applicant was open and clear. The expert evidence before me confirms that applicant's examination of his patient was appropriate and in her report, Dr Seidler lists the series of factors that satisfy her that the applicant poses a low risk of sexually abusive behaviour.
4. On the evidence before me, and taking into account the matters set out in s30(1) and s15(4) of the Act, I consider that the preferable decision is that the applicant does not pose a risk to the safety of children and should therefore receive a working with children check clearance.

Order

1. The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children check clearance. 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 May 2015